Burton v Thompson no.2 [2012] NZHC 1610 (9 July 2012)

Last Updated: 12 July 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2012-404-1465 [2012] NZHC 1610

BETWEEN REBECCA JESSIE BURTON, JAMES RICHARD BURTON AND ANNE MARJORIE BURTON AS TRUSTEES OF THE REBECCA BURTON FAMILY TRUST

Applicants

AND BRENDAL MAREE THOMPSON First Respondent

AND GRAEME ROBERT LITTLE Second Respondent

AND BEBE CORPORATION LIMITED Third Respondent

AND DOLLY BOUTIQUE LIMITED Fourth Respondent

AND FIRST CHOICE COLLECTIONS (NZ) LIMITED

Fifth Respondent

Hearing: (on the papers)

Counsel: JK Goodall for Applicants

JG Miles QC and AJ Wedekind for First to Fourth Respondents

No appearance by or on behalf of Fifth Respondent

Judgment: 9 July 2012

_{JUDGMENT (NO. 2) OF HEATH J}

This judgment was delivered by me on 9 July 2012 at 2.15pm pursuant to Rule 11.5 of the High Court Rules

_{Registrar/Deputy Registrar}

BURTON V THOMPSON HC AK CIV 2012-404-1465 [9 July 2012]

[1] In my judgment of 13 June 2012, I criticised the application made for an order that further proceedings need not be heard by Woodhouse J.[1] In consequence, I dismissed that application.[2]

[2] I have received a memorandum from counsel for the first to fourth respondents, in which they have pointed out, correctly, that I misunderstood the basis on which the application had been made. Contrary to what appears in my judgment, the application was made properly, under r 7.49(5) of the High Court Rules, to ensure that the application for variation or rescision of the orders made by Woodhouse J could be heard by a Judge other than His Honour. In those circumstances, both my criticism of solicitors and counsel acting for those respondents and the order made in my judgment were both made in error.

[3] I regard each as slips. I do not need to hear from the applicants, as the issue raised does not affect their interests. Rather, the orders I will make are intended to ensure that no public record of the earlier judgment that may be accessed readily is seen to criticise those who represented the relevant parties.

[4] I make the following orders:

(a) I recall my judgment of 13 June 2012. It will be reissued today with the same NZHC number but deleting para [17] and para [76](d).

(b) I direct that the Registrar advise legal publishers that the correct version of this judgment is that reissued today and legal publishers should be asked to replace the earlier version with this one.

(c) The order made in para [76](d) of my earlier judgment is replaced by an order allowing the application. This is a natural consequence of the fact that I heard the application to vary or rescind the order made

_{by Woodhouse J.}

[5] I apologise to the solicitors and counsel for the first to fourth respondents for making an unjustified criticism of them. I thank them for drawing the point to my

_attention.

_{P R Heath J}

Delivered at 2.15pm on 9 July 2012

Solicitors:

Hornabrook MacDonald, PO Box 91845, Auckland

Morgan Coakle, PO Box 114, Auckland

Counsel:

J K Goodall, PO Box 1778, Shortland Street, Auckland

J G Miles QC, PO Box 4338, Shortland Street, Auckland

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[1] _{Burton v Thompson [2012] NZHC 1330 at para [17].}

[2] Ibid, at para [76](d).