Spurr v Farmlands Fuel Limited [2014] NZCA 48 (4 March 2014)

Last Updated: 13 March 2014

IN THE COURT OF APPEAL OF NEW ZEALAND
CA363/2013 [2014] NZCA 48
BETWEEN	STUART GRAEME SPURR Applicant
AND	FARMLANDS FUEL LIMITED Respondent

Court:	Randerson, Stevens and French JJ
Counsel:	Applicant in person M B Couling for Respondent
Judgment: (On the papers)	4 March 2014 at 10.00 am

JUDGMENT OF THE COURT

The application for recall is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Stevens J)

Introduction

[1] Mr Spurr has applied for the recall of this Court’s judgment^[1] dismissing his application to extend the time to appeal against a High Court decision adjudicating him bankrupt.^[2] Mr Spurr has filed a 22-page synopsis of argument in support, together with an affidavit of similar length.
[2] The application is opposed by Farmlands Fuel Ltd (Farmlands) (previously CRT Fuel Ltd).

The application for recall

[3] The principles applicable as to recall of judgments were recently restated by this Court in Erwood v Maxted:^[3]

[3] The grounds upon which a judgment may be recalled are strictly limited. The leading statement in New Zealand as to recall of judgments is that of Wild CJ in Horowhenua County v Nash (No 2):^[4]

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.

[4] The exact content of the third ground, the existence of some other very special reason, has recently been elaborated upon as follows:^[5]

While the third category is not defined with particularity in judgments, it is quite clear that the discretion to recall must be exercised with circumspection, and it must not in any way be seen as a substitute for appeal. In particular there are some things 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 representing them in new form. It does not extend to putting forward further arguments, that could have been raised at the earlier hearing but were not.

[5] Mr Spurr relies on all three of the grounds outlined in Horowhenua County. We will deal with each of these categories in turn.

Discussion

New judicial decision of relevance and high authority

[6] Mr Spurr relies on the Supreme Court decision Commissioner of Inland Revenue v Redcliffe Forestry Venture Ltd.^[6] This decision dealt with the grounds for setting aside a judgment based on, or procured by, fraud. It does not assist Mr Spurr. The rationale for allowing subsequent judicial decisions to become relevant on a recall is to ensure that an applicant or plaintiff gains the benefit of that new decision. However, the judgment of the Supreme Court in Redcliffe was given in November 2012. It was decided well before Mr Spurr’s application to extend time. He always had access to, and could have relied upon, that decision had he wished to do so.
[7] The judgment in Redcliffe merely confirmed the availability of fraud as a well-settled exception to the finality of judgments in New Zealand.^[7] This is not a new judicial decision of relevance in the present circumstances and does not assist Mr Spurr’s case for recall.

Failure of counsel or party to direct the Court’s attention to a decision of relevance

[8] Under this head, Mr Spurr points once again to the decision in Redcliffe. He apparently seeks to invoke the fraud exception, and submits extensively as to Farmland’s alleged fraud in their dealings. This claimed similarity to the discussion in Redcliffe does not assist with an application for recall in this category. There is no operative failure to direct the Court’s attention to this decision by either party, because that decision is not relevant.
[9] Mr Spurr raised these same allegations of fraud in his application for an extension of time.^[8] Mr Spurr had also raised these matters before Associate Judge Matthews during the adjudication hearing on 30 April 2013 and in the original application to set aside the bankruptcy notice.^[9] This Court concluded in its judgment on the application to extend time that it was too late for Mr Spurr to raise these arguments.^[10] He could have appealed at every step of these proceedings: he did not do so.
[10] These same issues cannot be raised on a recall application. Moreover, there is no satisfactory evidence before this Court, or any other Court, which supports Mr Spurr’s claim of fraud. Mr Spurr has not advanced any other specific reasons why this Court’s decision dismissing his application to extend time should be recalled. In reality Mr Spurr is seeking to obtain an order nullifying the adjudication of bankruptcy conducted by Associate Judge Matthews on 30 April 2013. This is outside the ambit of a recall application. He has therefore failed to bring himself within the second category.

Recall for some other special reason

[11] A recall application under this third category must not be seen as a substitute for appeal, nor does the power to recall extend to: substantive challenges to the law or fact; to recasting arguments already made; or to advancing arguments which should have been made earlier.^[11]
[12] Mr Spurr has sought to use a recall application for these impermissible purposes. Mr Spurr does not make submissions specific to the decision he apparently seeks to recall. Rather, his submissions pertain exclusively to the alleged fraud on the part of Farmland. Repetition of allegations of fraud cannot make such allegations true.
[13] As noted above, Mr Spurr has already attempted to advance these claims numerous times. They were dismissed by this Court, finding that there were various decisions against which he had a right to appeal, and in respect of which it would have been appropriate to raise these arguments. But he did not do so.
[14] We are sensitive to Mr Spurr’s absence of legal advice. Nevertheless, there is no special reason of justice to recall the judgment. This Court has previously indicated that it will deal with recall applications such as this without a hearing, and will give only brief reasons.^[12] We have considered Mr Spurr’s submissions and affidavit. We consider that nothing further is required to deal with this application.

Result

[15] For these reasons, the application for recall is dismissed.

Solicitors:
Anderson Lloyd, Dunedin for Respondent

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^[1] Spurr v CRT Fuel Ltd [2013] NZCA 567.

^[2] CRT Fuel Ltd v Spurr HC Timaru CIV-2012-476-237, 30 April 2013.

^[3] Erwood v Maxted [2010] NZCA 93.

^[4] Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633.

^[5] Faloon v Commissioner of Inland Revenue (2006) 22 NZTC 19,832 (HC) at [13]. See also Ngahuia Reihana Whanau Trust v Flight CA23/03, 26 July 2004.

^[6] Commissioner of Inland Revenue v Redcliffe Forestry Venture Ltd [2012] NZSC 94, [2013] 1 NZLR 804.

^[7] At [28]–[33] referring to Shannon v Shannon (2005) 17 PRNZ 517 (CA) at [123]. The availability and ambit of the finality exception was extensively canvassed in Shannon by Glazebrook J for the Court at [102]–[125].

^[8] Spurr v CRT Fuel Ltd, above n 1, at [13].

^[9] At [15].

^[10] At [20].

^[11] Faloon, above n 5, at [13].

^[12] Erwood v Maxted, above n 3 at [23].