IN THE COURT OF APPEAL OF NEW ZEALAND
CA855/2012
[2016] NZCA 45
BETWEEN
MALCOLM EDWARD RABSON
Applicant
AND
WAYNE SEYMOUR CHAPMAN
Respondent
Court:
Stevens, Wild and French JJ
Counsel:
Applicant in person
S A Barker for Respondent
Judgment:
(On the papers)
4 March 2016 at 4.00 pm
JUDGMENT OF THE COURT
The application for recall is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Stevens J)
Introduction
[1]
Mr Rabson seeks an order recalling this Court’s judgment1 striking out his
appeal against a decision of Kós J granting Mr Chapman vacant possession of a
property.2 His main concern appears to be the costs order made by this Court when
striking out the appeal.
1
2
Rabson v Chapman [2014] NZCA 158 (O’Regan P, White and Miller JJ) [Court of Appeal
judgment].
Chapman v Rabson [2012] NZHC 3322.
RABSON V CHAPMAN [2016] NZCA 45 [4 March 2016]
[2]
The appeal had a complicated procedural history, as the attached chronology
shows.
It is apparent from the chronology that this Court had responded to
Mr Rabson’s unsuccessful application for stay or interim relief (heard on 21
December 2012) by allocating an urgent fixture for the appeal itself. Thus the
hearing was set down for 13 February 2013. In the absence of Mr Rabson filing a
case on appeal, the solicitors for the respondent did so on 23 January 2013.
[3]
Instead of paying the security for costs and arguing his appeal on the
allocated date, Mr Rabson took the various steps set out in the chronology to
challenge the Registrar’s decision. Once the review process of this Court was
exhausted, Mr Rabson signalled an intention to seek leave to appeal to the Supreme
Court. This meant the panel hearing the appeal was faced with a late application for
adjournment by Mr Rabson, the day before the scheduled hearing. The reality was
that, as payment for security for costs had not been met, the appeal hearing could not
proceed. The presiding Judge, O’Regan P, recorded the position in a minute issued
on 12 February 2013.3
[4]
Relevant for present purposes are the directions set out in the minute. The
President said this:
[7]
Under r 37 of the Court of Appeal (Civil) Rules the Court has the
power to strike out an appeal if security for costs has not been paid by the
time payment is due, if an application is made seeking that outcome. If the
appellant wishes to pursue his challenge to the decision of Randerson J in the
Supreme Court, he should file an application for leave to appeal in that Court
within the next seven days. If he does not do so then it will be open to the
respondent to make an application for the appeal to be struck out. Even if he
does do so, there is nothing to stop the respondent making an application to
strike out the appeal but in that event it is unlikely that this Court would
consider the application until the decision of the Supreme Court was
available. In practical terms it would be sensible to await the Supreme Court
decision before any application to strike out the present appeal is made if the
appellant does seek leave to appeal to that Court.
[8]
In the event that the appellant seeks leave to appeal to the Supreme
Court and is successful, so that security is dispensed with, the Registrar will
then need to confer with the parties and set a new fixture for the hearing of
the present appeal.
3
Rabson v Chapman CA855/2012, 12 February 2013 [Minute of the Court].
[5]
The prospect of the respondent making an application to strike out the appeal
was expressly contemplated, particularly once the Supreme Court had given a
decision on any application by Mr Rabson for leave. This is what occurred. The
application for leave was dismissed by the Supreme Court on 2 July 2013.4 Shortly
thereafter the solicitors for the respondent filed an application to strike out the appeal
for failure to pay security for costs. The power of this Court to make an order
striking out an appeal if security for costs is not paid under r 37 of the Court of
Appeal (Civil) Rules 2005 (the Rules), and this Court’s minute dated 12 February
2013, were specifically referred to.
[6]
The judgment which Mr Rabson seeks to recall was given following a
hearing on 7 April 2014 at which Mr Rabson failed to appear, despite having been
served with the strike-out and being made aware of the hearing date.
The recall application
[7]
Mr Rabson seeks to recall the Court of Appeal judgment on two grounds.
First, he says he lacked standing to be involved in the appeal. Second, he says that
by the time this Court came to consider the strike-out application the appeal was
“long dead” and it ought not to have been “revived”. Making the strike-out order
served no useful purpose and no costs order ought to have been made. Because of
his status as an undischarged bankrupt (which he describes as a “legal no-man’s
land”), Mr Rabson tentatively suggests this Court should act “on their own
initiative”.5 We will return to this point below.
[8]
The application to recall is opposed.
The respondent says it makes no
difference in practical terms whether the appeal was struck out or deemed to be
abandoned. In either case, the question of costs is at the discretion of the Court.
4
5
Rabson v Chapman [2013] NZSC 65.
Apparently because of what he describes as “hints” from the Supreme Court:
Chapman [2004] NZSC 90 and Rabson v Chapman [2014] NZSC 103.
Rabson v
Analysis
Applicable principles
[9]
The application to recall the Court of Appeal judgment is advanced on the
basis of a special reason under the case of Horowhenua County v Nash (No 2), where
Wild CJ said:6
Generally speaking, a judgment once delivered must stand for better or
worse subject, of course, to appeal. Were it otherwise there would be great
inconvenience and uncertainty. There are, I think, three categories of cases
in which a judgment not perfected may be recalled – first, where since the
hearing there has been an amendment to a relevant statute or regulation or a
new judicial decision of relevance and high authority; secondly, where
counsel have failed to direct the Court’s attention to a legislative provision or
authoritative decision of plain relevance; and thirdly, where for some other
very special reason justice requires that the judgment be recalled.
[10]
The principles in that case have been adopted by this Court in Rainbow
Corporation Ltd v Ride Holdings Ltd7 and in many subsequent decisions.8
In
Erwood v Maxted, this Court agreed on the guidelines applying to applications to
recall judgments not falling within r 8 of the Rules (accidental slip or omission),
confirming that the criteria set out in Horowhenua County v Nash (No 2) (adopted by
this Court in Unison Networks Limited v Commerce Commission)9 are to be followed
and will be strictly applied.10 We also refer to Ngahuia Reihana Whanau Trust v
Flight, where Anderson P said:11
It is becoming a matter of concern not just to this Court but to others in the
western common law system that disaffected litigants, usually appearing in
person, repeatedly make application for recall of judgments which they
steadfastly refuse to accept. It is timely to characterise plainly unmeritorious
applications of that sort as an abuse of the Court’s process and to reaffirm the
rarity of legal justification for recalling judgments.
[11]
Similarly in Faloon v Commissioner of Inland Revenue, the Court said:12
While the third category is not defined with particularity in the judgments, it
is quite clear that the discretion to recall must be exercised with
6
7
8
9
10
11
12
Horowhenua County v Nash (No 2) [1968] NZLR 632 (HC) at 633.
Rainbow Corporation Ltd v Ride Holdings Ltd [1992] 5 PRNZ 493 (CA).
Such as Gibson v Complaints Assessment Committee [2010] NZCA 161.
Unison Networks Ltd v Commerce Commission [2007] NZCA 49.
Erwood v Maxted [2010] NZCA 93 at [23].
Ngahuia Reihana Whanau Trust v Flight CA23/03, 16 July 2004 at [3].
Faloon v Commissioner of Inland Revenue (2006) 22 NZTC 19,832 (HC) at [13].
circumspection, and it must not in any way be seen as a substitute for appeal.
In particular there are some things that it can be said the power to recall does
not extend to. It does not extend to a challenge of any substantive findings
of fact and law in the judgment. It does not extend to a party recasting
arguments previously given, and re-presenting them in a new form. It does
not extend to putting forward further arguments, that could have been raised
at the earlier hearing but were not.
The grounds advanced
[12]
The first ground raised by Mr Rabson has no merit. This Court at the hearing
on 7 April 2014 was plainly aware of Mr Rabson’s status as an undischarged
bankrupt. As the judgment records:13
(d)
[13]
The Official Assignee has now filed a memorandum dated 14 April
2014 confirming that Mr Rabson was adjudicated bankrupt on
18 March 2013 and that, in accordance with ss 117 and 118 of the
Insolvency Act 2006 and decisions of this Court and the Supreme
Court, the Official Assignee has formally abandoned this appeal. As
a consequence of Mr Rabson’s adjudication in bankruptcy, he had no
standing to pursue the appeal which vested in the Official Assignee.
The Court nevertheless saw fit to exercise its discretion to award costs
against Mr Rabson. If Mr Rabson was concerned about the implications of an
adverse costs order, he could have attended the hearing himself and raised the matter
then. This is not the type of issue which should give rise to a recall on the basis of
the “very special reasons” ground.
[14]
The second ground is equally lacking in merit. This is not a case in which
r 43 of the Rules had any relevance. As the chronology shows, a fixture for the
appeal had been allocated by the Registrar for 13 February 2013. The respondent
had earlier filed the case on appeal. Mr Rabson chose not to proceed with the appeal
and applied for an adjournment. The ability of the respondent to apply for an order
striking out the appeal under r 37 of the Rules was expressly preserved by the
directions of the Court when (reluctantly) granting Mr Rabson’s adjournment
application.
[15]
Here, as of the deemed abandonment date (18 June 2013), a decision on
Mr Rabson’s application to the Supreme Court for leave to appeal against a judgment
13
Court of Appeal judgment, above n 1, at [3].
of this Court, given in Mr Rabson’s appeal, was pending. If Mr Rabson’s argument
were correct, had he succeeded in the Supreme Court there would have been no
appeal to this Court for him to pursue. That cannot be correct.
[16]
We add that the provision under r 43 of the Rules for abandoning an appeal if
not pursued is intended to cover situations where an appellant simply takes no steps
in relation to the appeal. It would apply, for example, where the appellant does not
apply for the allocation of a hearing date and file the case on appeal within the
requisite time limit. Here, there was no basis upon which r 43 could operate: a case
on appeal had been filed and a fixture had been allocated. It is significant that the
Registrar, as is usual practice in such cases, did not send Mr Rabson a notice
advising of any deemed abandonment under r 43. Accordingly this is not a case, as
Mr Rabson contends, of an appeal being treated in the Court of Appeal judgment “as
live and then declared … dead more than a year after [the Judges] knew it to be
dead”. Indeed, if Mr Rabson had wished to make this point he should have done so
at the hearing of which he had notice.
[17]
We have dealt with the application for recall on the assumption Mr Rabson
has standing to bring it. He claims in his application that as he is bankrupt he is “in a
legal no-man’s land … where he has no standing”, even to apply for a recall. As
noted, he invited the Court to grant the order for recall of its own motion. We
decline to do so. It has no merit.
Result
[18]
The application for recall is dismissed.
[19]
There is no order as to costs.
Solicitors:
Buddle Findlay, Wellington for Respondent
RABSON v CHAPMAN - CA855/2012
Date
Event
18.12.2012
Appeal filed; appeal accompanied by application for stay.
21.12.2012
Following a telephone hearing, application for stay or interim relief
dismissed: [2012] NZCA 621. Registrar directed to liaise with Mr
Rabson and respondent’s solicitor to set a fixture for hearing of the
appeal, if Mr Rabson wishes to proceed with it: at [18].
11.1.2013
Security for costs fixed at $5,880.
14.1.2013
Registrar sends parties notice of fixture for the appeal scheduled for
13 February 2013.
17.1.2013
Mr Rabson files application under r 35(6) to dispense with or reduce
security.
23.1.2013
Case on appeal filed by solicitors for respondent.
28.1.2013
Registrar declines application to dispense or reduce security and
directs it be paid by 13 February 2013.
7.2.2013
Mr Rabson applies to review Registrar’s decision.
11.2.2013
Randerson J on review upholds Registrar’s decision on security for
costs: [2013] NZCA 5.
12.2.2013
Application by Mr Rabson to adjourn the appeal hearing scheduled
for 13 February 2013 pending determination of review of decision of
Randerson J.
Appeal panel issue minute vacating fixture on basis that security for
costs not met. Court gave directions that, following the Supreme
Court application, the next step would either be the allocation of a
fixture or an application striking out the appeal: Minute at [7]–[8].
18.3.2013
Mr Rabson adjudicated bankrupt.
18.6.2013
Last day for filing case on appeal and applying for fixture in
compliance with r 43, if relevant. Not complied with by Mr Rabson.
Setting down fee not satisfied and no fee waiver application received.
2.7.2013
[2013] NZSC 65. Application for leave to appeal dismissed. No
costs ordered as Mr Rabson bankrupt.
10.7.2013
Application filed by respondent to strike out appeal for failure to pay
security for costs, relying on r 37 and Court of Appeal Minute dated
13 February 2013. Filing fee paid.
Date
Event
10.7.2013
Mr Rabson applies to Supreme Court to recall its 2 July 2013
judgment.
16.7.2013
Supreme Court dismisses Mr Rabson’s recall application:
[2013] NZSC 69.
7.4.2014
Hearing of respondent’s application to strike out the appeal. No
appearance by Mr Rabson. Official Assignee files a memorandum.
29.4.2014
[2014] NZCA 158. Appeal struck out. Mr Rabson ordered to pay
costs on the application.
13.5.2014
Mr Rabson applies to Supreme Court for leave to appeal Court of
Appeal’s strike-out judgment (on basis appeal had been deemed
abandoned under r 43).
8.7.2014
Glazebrook J issues minute suggesting Mr Rabson’s best course is to
apply to Court of Appeal to recall its judgment. Adjourns leave
application in the interim.
8.7.2014
Mr Rabson applies to Supreme Court to review Glazebrook J’s
minute.
14.7.2014
[2014] NZSC 90. Supreme Court dismisses application to review
Glazebrook J’s minute.
6.8.2014
[2014] NZSC 103. Supreme Court dismisses application to recall its
14 July 2014 judgment. Indicates if Mr Rabson does intend to apply
to Court of Appeal to recall its judgment he should inform Supreme
Court by 14 August 2014.
15.8.2014
[2014] NZSC 112. Supreme Court dismisses application for leave to
appeal against judgment of Court of Appeal [2014] NZCA 158.
25.8.2015
Mr Rabson applies to Court of Appeal to recall its 29 April 2014
judgment.
23.2.2016
[2016] NZSC 14. Supreme Court dismisses second application for
leave to appeal against judgment of Court of Appeal [2014] NZCA
158.
25.2.2016
[2016] NZSC 17. Supreme Court dismisses application to recall
Rabson v Chapman [2014] NZSC 112.
2016
Mr Rabson will be automatically discharged from bankruptcy
(3 years after he files statement of affairs under s 47 or 67 of
Insolvency Act: s 290).