Opua Coastal Preservation Incorporated v Far North District Council [2018] NZCA 510 (20 November 2018)

Last Updated: 4 December 2018

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA119/2017 [2018] NZCA 510

	BETWEEN	OPUA COASTAL PRESERVATION INCORPORATED Appellant
	AND	FAR NORTH DISTRICT COUNCIL First Respondent MINISTER OF CONSERVATION Second Respondent D C SCHMUCK Third Respondent

Court:	Winkelmann, Brown and Gilbert JJ
Counsel:	T H Bennion and E A Whiley for Appellant B R Arapere and WMC Randal for Second Respondent J A Browne and C H Prendergast for Third Respondent
Judgment: (On the papers)	20 November 2018 at 3.30 pm

JUDGMENT OF THE COURT

1. The application for recall (CA119/2017) is granted and orders made as set out at [11].
2. No order for costs on this application.

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REASONS OF THE COURT

(Given by Winkelmann J)

[1] On 20 July 2018, this Court issued a judgment^[1] allowing Opua Coastal Preservation Inc’s (the Society’s) appeal against a decision of Fogarty J dated 14 February 2017.^[2] In [54] of this Court’s judgment we said:

We also note that although the easements are registered, the respondents do not plead or rely upon indefeasibility of title as relevant to any relief should the Society succeed with its appeal.

[2] The third respondent, Mr Schmuck, now applies to this Court for recall of the judgment on the grounds that this statement is incorrect because, in his statement of defence to the amended statement of claim, he pleads indefeasibility in accordance with ss 62 and 63 of the Land Transfer Act 1952. An additional ground upon which recall is sought is that the judgment contains an accidental omission, namely that it does not deal with that pleaded defence. In all the circumstances Mr Schmuck contends that there is a very special reason that justice requires the judgment to be recalled and that the Court should call for and hear further submissions on the issue of indefeasibility.
[3] The first and second respondents abide the decision of this Court in relation to the recall application. The appellant accepts that indefeasibility was mentioned in earlier pleadings and that the judgment ought to be corrected by removing from it the words “plead or” at [54]. But the appellant objects to this Court calling for further submissions on this issue because the arguments were not raised by any party on appeal, and the appeal has now been heard and determined.
[4] The application is made under r 8 of the Court of Appeal (Civil) Rules 2005 which gives a power to correct clerical mistakes or errors arising from accidental slips or omissions. We consider the application falls outside the proper scope of that rule, and seeks to invoke the Court’s power to recall judgments.
[5] The test for recall of civil judgments is as stated by Wild CJ in Horowhenua County v Nash (No 2):^[3]

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.

[6] As to the third category “other very special reason justice requires” in Faloon v Commissioner of Inland Revenue, the Court said:^[4]

[13] 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.

[7] We recognise that the use of the words “plead or” may give rise to confusion as being a reference to pleadings in the High Court. Accordingly, we propose to correct that aspect of the judgment by deleting the words “plead or”, and by including a footnote clarifying the status of that defence by the time the appeal was heard.
[8] That leaves Mr Schmuck’s application to file further submissions limited to the issue of indefeasibility. It is relevant context to this application that Fogarty J did not address Mr Schmuck’s indefeasibility of title defence in the judgment under appeal.^[5] Since that defence did not form part of the Judge’s reasoning, if on appeal Mr Schmuck wished to support the Judge’s judgment on that ground, he needed to give notice to that effect under r 33 of the Court of Appeal (Civil) Rules. Mr Schmuck did not do so. Nor was the issue of indefeasibility raised in argument before us.
[9] As the Court said in Faloon, the recall procedure is not to be used as an avenue by which parties may pursue arguments they wish, on reflection, they had advanced at the earlier hearing of the appeal. We therefore decline the application to file additional submissions.

Result

[10] The application for recall is granted.
[11] We recall the judgment of this Court in Opua Coastal Preservation Inc v Far North District Council of 20 July 2018.^[6] The judgment is amended and reissued as follows:

• (a) The fourth sentence of [54] is to be amended to read:

We also note that although the easements are registered, the respondents do not rely upon indefeasibility of title as relevant to any relief should the Society succeed with its appeal.

(b) A footnote is added to that statement in [54] as follows:

Indefeasibility was pleaded in Mr Schmuck’s statement of defence to the amended statement of claim, but was not relied upon on appeal.

[12] No party sought costs on this application. We make no order for costs.

Solicitors:
Bennion Law, Wellington for Appellant
Law North Limited, Kerikeri for First Respondent
Crown Law Office, Wellington for Second Respondent
Henderson Reeves Lawyers, Whangarei for Third Respondent

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^[1] Opua Coastal Preservation Inc v Far North District Council [2018] NZCA 262.

^[2] Opua Coastal Preservation Inc v Far North District Council [2017] NZHC 154.

^[3] Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633.

^[4] Faloon v Commissioner of Inland Revenue [2006] NZHC 303; [2006] 22 NZTC 19,832 (HC).

^[5] We do not know whether indefeasibility of title was argued before Fogarty J.

^[6] Opua Coastal Preservation Inc v Far North District Council, above n 1.