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Court of Appeal of New Zealand |
Last Updated: 22 March 2019
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BETWEEN |
VALENTINE BARCLAY NICHOLAS Appellant |
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AND |
COMMISSIONER OF POLICE Respondent |
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Court: |
Williams and Duffy JJ |
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Counsel: |
Appellant in person R W Jenson for Respondent |
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Judgment: (On the papers) |
11 March 2019 at 1.00 pm |
JUDGMENT OF THE COURT
____________________________________________________________________
REASONS OF THE COURT
(Given by Williams J)
[1] Mr Nicholas applies to recall this Court’s judgment delivered on 19 October 2017 relating to asset and profit forfeiture orders made pursuant to the Criminal Proceeds (Recovery) Act 2009.[1] In that judgment this Court allowed the appeal and the High Court’s judgment was set aside in part.[2] The matter was remitted to the High Court to hear evidence with respect to undue hardship caused by the loss of land.[3]
[2] Mr Nicholas filed a “notice of appeal” in this Court on 26 July 2018. He was advised that there is no jurisdiction to file a notice of appeal when the appeal against the relevant judgment has already been heard and determined. Mr Nicholas was advised to seek leave to appeal out of time to the Supreme Court. Mr Nicholas was advised by the Registrar that his “notice of appeal” could, however, be treated as an application for recall of this Court’s decision. Mr Nicholas confirmed that he wanted his notice of appeal to be treated as an application for recall.
[3] The Commissioner of Police (the Commissioner) opposes the application.
Procedural history
[4] It is necessary to set out the procedural background to the present application in some detail.
[5] On 17 August 2016, Hinton J made forfeiture orders against Mr Nicholas in respect of five properties, cash and assorted vehicles.[4] These orders were sealed on 24 August 2016. Mr Nicholas appealed against Hinton J’s decision, initially seeking to have the decision set aside in its totality. The grounds of appeal were, however, narrowed when the appeal was heard to relate only to four of the five forfeited properties.[5]
[6] On appeal, this Court allowed Mr Nicholas’ appeal in relation to two of the properties. The following direction was made:[6]
The matter is remitted to the High Court to hear evidence with respect to whether the loss of the Whakamārama land and 633 Maketū Road would cause undue hardship in accordance with s 56 of the Act. Mr Nicholas will be required to make an application according to file fresh evidence in light of our conclusions and the narrower scope of the application which we are prepared to admit. Relevant timetabling will be for the High Court.
[7] What happened after this Court issued its judgment is helpfully recorded by Woolford J in a minute dated 5 July 2018:
[5] The matter was then called in the High Court on 2 November 2017. Mr Nicholas was at that time represented by counsel. Hinton J issued a minute directing that counsel file memoranda with regard to the timetabling required as a consequence of the Court of Appeal decision.
[6] Mr Nicholas then brought separate proceedings in the Māori Land Court, seeking to change the status of the Maketu Road properties and the Whakamarama property from general title to that of Māori freehold title. This application was dismissed.
[7] On 18 January 2018, Mr Nicholas filed a memorandum advising that he was having difficulties instructing counsel, and seeking a stay of the sale of the properties while he sought to resolve the issue. The Commissioner of Police responded by way of memorandum dated 26 January 2018, noting that the Official Assignee had confirmed that he would take no action to dispose of the properties until the proceedings had been resolved.
[8] Following a conference, in a minute dated 26 March 2018, Hinton J directed Mr Nicholas to file his application for relief, setting out the grounds of undue hardship alleged by 5pm on Tuesday 24 April 2018. Due to illness of Mr Nicholas’ counsel, Hinton J in a further minute dated 19 April 2018, directed that there would be an extension of time until 11 May 2018 for the application to be filed.
[9] No application was filed by that date. Instead, Mr Nicholas filed:
(a) An application dated 9 May 2018 seeking an urgent stay of the proceedings, an immediate freezing order and an order that the Commissioner of Police does not enter or interfere with any of his property.
(b) An application dated 11 May 2018 seeking interim relief by way of an urgent stay of proceedings and for a re-hearing.
[10] The matter was then called before Wylie J on Wednesday 13 June 2018. Mr Nicholas appeared in person. The Commissioner of Police was represented by Mr Jenson.
[8] At this hearing, it appears that Wylie J made various timetabling orders, requiring compliance before 15 June 2018. Wylie J made clear to Mr Nicholas that if the relevant materials were not filed, the Court would proceed to deal with the Commissioner’s application without further reference to Mr Nicholas. Mr Nicholas did not file the relevant documents by 15 June 2018.
[9] On 5 July 2018, Woolford J proceeded to deal with the Commissioner’s application without further reference to Mr Nicholas. Woolford J considered that there was no application or evidence before the Court to satisfy it that Mr Nicholas would suffer undue hardship were the properties at issue to be forfeited and he accordingly made an order that the relevant properties be made the subject of the profit forfeiture order made by Hinton J on 17 August 2016.
Recall
[10] The circumstances in which a judgment may be recalled are well settled.[7] The three categories are:[8]
- (a) where since the hearing there has been an amendment to a relevant statute or regulation or a new judicial decision of relevant and high authority;
- (b) where counsel have failed to direct the court’s attention to a legislative provision or authoritative decision of plain relevance; or
- (c) where for some other very special reason justice requires that the judgment be recalled.
[11] This Court in Erwood v Maxted confirmed that the Horowhenua criteria are to be applied strictly,[9] and that applications which merely seek to relitigate matters already considered, or to challenge substantive findings of fact or law, will not be entertained.[10]
Submissions
[12] Mr Nicholas seeks recall of this Court’s judgment on the grounds that his counsel withdrew some of Mr Nicholas’ original grounds of appeal without Mr Nicholas’ knowledge or consent. Mr Nicholas submits that as a result, all relevant information was not available to the Court and that this changed the outcome of the appeal. He appears to rely on the second and third Horowhenua categories.
[13] The Commissioner submits that any application to recall the judgment would have to fall under the third Horowhenua category. The Commissioner submits that despite being partially successful in this Court, Mr Nicholas failed to pursue his claim for undue hardship in the High Court and that Court ultimately ruled that the relevant properties were to be made part of the forfeiture order initially made.
[14] The Commissioner submits that in analogous cases where recall was effectively an afterthought, applications for recall were declined.[11]
Analysis
[15] We consider that the substance of Mr Nicholas’ application is to challenge not only the fact that he was only partially successful in this Court but also to challenge the determination of Woolford J in the High Court.
[16] To the extent that Mr Nicholas’ application challenges this Court’s decision, we disagree with Mr Nicholas’ submission that his counsel’s failure to address other grounds of appeal falls into category two of Horowhenua. Similarly, we are of the view that Mr Nicholas’ grounds do not provide “very special reasons” such that justice requires recall of the judgment. Counsel’s failure to argue particular grounds of appeal is best characterised as a ground for an appeal to the Supreme Court. The requirements of justice can best be served by Mr Nicholas raising the ground that his counsel did not pursue his appeal as instructed by appealing, out of time, to the Supreme Court.
[17] We accordingly decline to recall the judgment.
[18] Any challenge to what happened after this Court’s decision in the High Court should be brought by way of an appeal to this Court. If Mr Nicholas pursues this appeal, he should apply for a stay of the High Court orders if it is not already too late to do so.
Result
[19] The application to recall the judgment is declined.
[20] There is no order as to costs on this application.
Solicitors:
Crown Solicitor, Tauranga for
Respondent
[1] Nicholas v Commissioner of Police [2017] NZCA 473 [Court of Appeal judgment]. The original judgment was delivered by a Court comprising Harrison, Duffy and Williams JJ. Harrison J retired before the application for recall was made. The relevant period under s 177(3) of the Senior Courts Act 2016 has now expired. The remaining judges heard the application, acting under s 62(1) of the Senior Courts Act.
[2] Commissioner of Police v Nicholas [2016] NZHC 1913 [High Court judgment].
[3] Court of Appeal judgment, above n 1, at [77].
[4] High Court judgment, above n 2.
[5] Court of Appeal judgment, above n 1, at [2].
[6] Court of Appeal judgment, above n 1, at [77].
[7] Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC).
[8] Horowhenua County v Nash (No 2), above n 7, at 633.
[9] Erwood v Maxted [2010] NZCA 93, (2010) 20 PRNZ 466 at [23(b)(i)].
[10] At [23(b)(ii)].
[11] See Ashe v Tauranga Marina Society (1991) 4 PRNZ 89; and Cooper-Davies Trustees Number 6 Ltd v Cooper Trustees Number 11 Ltd [2014] NZHC 335.
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