Collier v Creighton CA108/97 [1998] NZCA 278 (23 February 1998)

Last Updated: 30 December 2023

IN THE COURT OF APPEAL OF NEW ZEALAND CA 108/97

BETWEEN J M COLLIER

Applicant

AND J N and B M CREIGHTON

First Respondents

AND PURNELL JOHNSTON CREIGHTON AND

Second Respondents

Coram: Gault J Henry J Keith J

Hearing: 16 February 1998

Counsel: Applicant in Person

N Till for Respondents

Reasons for

Judgment: 23 February 1998

REASONS FOR JUDGMENT OF THE COURT DELIVERED BY GAULT J

Mr Collier took proceedings against Mr and Mrs Creighton and the law firm of which Mr Creighton is a member. He was successful in part but appealed unsuccessfully. A cross-appeal was determined against him in this Court. He appealed to the Privy Council where it was held that his claim was barred by the Limitation Act: Collier v Creighton [1996] UKPC 7; [1996] 2 NZLR 257.

Mr Collier now contends that factual findings as to his knowledge of matters making up his cause of action were based on perjured evidence. He applied in the High Court for an order directing a new trial. His application was dismissed on the ground of lack of jurisdiction for the reasons given in the judgment of Robertson J delivered on 22 April 1997.

Since then he has been attempting to have this Court set aside the original judgment of the High Court and the judgment of this Court on what have been formulated as originating applications. Although the Registrar informed him that the Court lacked jurisdiction he has persisted and in addition has sought leave to bring further evidence.

In an attempt to have the matter of jurisdiction clarified the respondents applied for directions. Mr Collier has opposed that application maintaining that the Court does have jurisdiction to entertain his applications.

Having considered his oral and written submissions we are satisfied that Mr Collier has not established that this Court, when no longer seized of the matter, can set aside a judgment that has been appealed to and upheld by the Privy Council.

There is a further reason for rejecting jurisdiction. The appropriate course where it is alleged that a judgment has been obtained by fraud is to commence a separate proceeding: Sulco Ltd v E S Redit and Co Ltd [1959] NZLR 45,70. In that case this Court referred to Jonesco v Beard [1930] AC 298,300 where Lord Buckmaster said (300)

It has long been the settled practice of the Court that the proper method of impeaching a completed judgment on the ground of fraud is by action in which, as in any other action based on fraud, the particulars of the fraud must be exactly given and the allegation established by the strict proof such a charge requires.

Mr Collier relied on certain English authorities in support of a submission that the requirement of a separate action may not be an invariable rule: Lazarus Estates Ltd v Beasley [1956] 1 QB 702,712, Midland Bank Trust Co v Green [1980] Ch 590, 624, HIP Foong Hong v H Neotia & Company [1918] UKPC 65; [1918] AC 888,894 and Brady v Group Lotus [1987] 2 ALL ER 674,690. Those decisions indicate however that the circumstances which may justify departure from the general rule are exceptional as where the fraud or perjury is established in the course of an application for a new trial or appeal, that is within the Court’s jurisdiction.

Having delivered its judgment in the proceedings, this Court has no residual jurisdiction and nothing in the case cited by Mr Collier can confer jurisdiction to entertain originating applications and, in effect, set aside a judgment of the Privy Council.

For these reasons we ruled accordingly. We direct that no further steps be taken on the applications filed in this Court by Mr Collier.

Solicitors

Young Hunter, Christchurch, for Respondents