N v Chief Executive Officer Counties Manukau District Health Board [2016] NZHC 277 (1 March 2016)

Last Updated: 29 December 2018

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2016-404-236 [2016] NZHC 277

UNDER	the Habeas Corpus Act 2001
IN THE MATTER	of an application for a writ of Habeas Corpus
BETWEEN	MR N AND MRS N Applicant
AND	CHIEF EXECUTIVE OFFICER COUNTIES MANUKAU DISTRICT HEALTH BOARD Respondent

	On the papers
Judgment:	1 March 2016

JUDGMENT OF THOMAS J [RECALL APPLICATION]

This judgment was delivered by me on 1 March 2016 at 2.30 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date:...............................

Solicitors:

Meredith Connell, Auckland.

MR N AND MRS N v CHIEF EXECUTIVE OFFICER COUNTIES MANUKAU DISTRICT HEALTH BOARD [2016] NZHC 277 [1 March 2016]

[1] On 25 February 2016 I heard an application for a writ of habeas corpus in this matter in respect of Mrs N.

[2] My judgment was delivered at 11.00 am on 26 February 2016.

[3] Mr N emailed the High Court Registry early on the morning of 26 February 2016 with a “memorandum of process failure and associated matters”. He emailed another “memorandum of process failure and associated matters” later that morning. Mr N then filed a “memorandum to recall decision” in the afternoon.

[4] On Monday 29 February 2016, Mr N emailed “an application to recall decision”.

[5] Although in his “memorandum to recall decision” dated 26 February 2016 Mr N states that his first “memorandum of process failure and associated matters” was sent to the Court on 16 February 2016, it was in fact sent on the 26 February 2016. He sent it at 10.13 am and then emailed a “further concerns of deceit” at 10.42 am. None of these matters was referred to me until late in the day on Friday 26 February 2016, following issue of the judgment that morning.

[6] As Mr N will understand, Registry staff deal with a large volume of cases and are not necessarily instantly available to deal with emails immediately they arrive. In this case, not only did the staff have other urgent matters requiring attention, but also the hearing had concluded. There is no provision in the High Court Rules which allows for the filing of a document after the close of a hearing.

Date of filing

[7] One of the matters on which Mr N relies as a “process failure” and in support of his application for a recall, concerns how the application for a writ of habeas corpus (the application) was filed with the Court.

[8] Mr N emailed the application to the Ministry of Justice email address which was allocated to a person previously employed to work in the High Court Registry. That person no longer works for the Ministry of Justice and her email address was in
the process of being archived, before the account was revoked. The first email shown on the court system from Mr N to the former staff member was on Friday 19 February at 3.30pm.

[9] On 21 February 2016 at 6.04 pm the High Court email system sent an automated email to Mr N with the subject “not read; application for habeas corpus”. The body of the email said “was deleted without being read on Sunday 21 February 2016 6:04:12PM”. This was due to the automated archiving process taking place, which removed the email, prior to the final removal of that email account.

[10] The Court’s email system then shows Mr N forwarded the application on Monday 22 February 2016 at 8.30 am, again to the staff member who is no longer in the employ of the Ministry but also to a current staff member.

[11] The Registry does not refuse to accept for filing an application for a writ of habeas corpus simply because the prescribed form and manner of the application is not met.¹ Applications which are inconsistent or non compliant with the High Court Rules are accepted for filing in the case of applications for writs of habeas corpus. However, applications will be accepted for filing by email only with the prior approval of the Registry or Judge.² The rules relating to obtaining leave of the Court to file by email are contained in rr 5.2 and 5.6 of the High Court Rules, which require an original signature on any document to be filed and that any document which does not comply with the rules may be received for filing only by leave of a Judge or Registrar. No such leave was given in this case.

[12] The application was deemed filed when it was in fact received by the Court on Monday 22 February 2016 at 8.30 am. The hearing was held within the time required by s 9 of the Act.

Application for recall

[13] A Judge may recall a judgment under r 11.9 of the High Court Rules.

¹ Habeas Corpus Act 2001, s 7(7).

² High Court Rules, r 5.2.

[14] It is appropriate to recall a judgment where there has been an amendment to a relevant statute or regulation since the hearing 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.³ Applications for recall coming within the third category on the basis that a material issue was not properly addressed will be rare.⁴

[15] There is nothing in the matters raised in any of the documents filed by Mr N which fall into the first two categories, and neither do they show a very special reason that justice requires the judgment to be recalled. The additional submissions of Mr N which were received subsequent to issuing the judgment of 26 February do not advance any issues further to those canvassed at the hearing. Similarly, the request to “correct the application typing error to just record AN” as the applicant does not warrant recall. The application was made in both names.

[16] The other matters referred to by Mr N, in his various documents, take issue with the judgment and repeat a number of matters already raised by Mr N.

[17] For the reasons given, the application to recall the judgment is dismissed.






Thomas J

3. Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633, approved of in Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 122, [2010] NZLR 76.

⁴ Unison Networks Ltd v Commerce Commission [2007] NZCA 49.