Rabson v Chapman [2016] NZCA 45 (4 March 2016)

Last Updated: 10 March 2016

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 judgment^[1] 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.
[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.

[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.

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 Ltd^[7] 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 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) 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.

[13] 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 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.
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).

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^[1] Rabson v Chapman [2014] NZCA 158 (O’Regan P, White and Miller JJ) [Court of Appeal judgment].

^[2] Chapman v Rabson [2012] NZHC 3322.

^[3] Rabson v Chapman CA855/2012, 12 February 2013 [Minute of the Court].

^[4] Rabson v Chapman [2013] NZSC 65.

^[5] Apparently because of what he describes as “hints” from the Supreme Court: Rabson v Chapman [2004] NZSC 90 and Rabson v Chapman [2014] NZSC 103.

^[6] Horowhenua County v Nash (No 2) [1968] NZLR 632 (HC) at 633.

^[7] Rainbow Corporation Ltd v Ride Holdings Ltd [1992] 5 PRNZ 493 (CA).

^[8] Such as Gibson v Complaints Assessment Committee [2010] NZCA 161.

^[9] Unison Networks Ltd v Commerce Commission [2007] NZCA 49.

^[10] Erwood v Maxted [2010] NZCA 93 at [23].

^[11] Ngahuia Reihana Whanau Trust v Flight CA23/03, 16 July 2004 at [3].

^[12] Faloon v Commissioner of Inland Revenue [2006] NZHC 303; (2006) 22 NZTC 19,832 (HC) at [13].

^[13] Court of Appeal judgment, above n 1, at [3].