MUSUKU v COMMISSIONER OF INLAND REVENUE [2017] NZCA 255

MUSUKU v COMMISSIONER OF INLAND REVENUE [2017] NZCA 255 [15 June 2017]IN THE COURT OF APPEAL OF NEW ZEALANDCA631/2016[2017] NZCA 255BETWEEN JAWAHAR BHASKAR MUSUKUAppellantAND COMMISSIONER OF INLANDREVENUERespondentCounsel: G J Thwaite for AppellantM Deligiannis and M Bryant for RespondentJudgment:(On the papers)15 June 2017 at 12.30 pmJUDGMENT OF BROWN J(Application for recall)A The application for recall is declined.B The appellant is to pay the sum of $6,600 by way of security for costs within 10 working days of this decision.____________________________________________________________________REASONSIntroduction[1] In my judgment of 28 April 20171 I declined Mr Musuku's application toreview a decision of Deputy Registrar McGrath under r 7(2) of the Court of Appeal (Civil) Rules 2005 declining his application to dispense with security for costs in his appeal.1 Musuku v Commissioner of Inland Revenue [2017] NZCA 144.[2] Mr Musuku now applies for recall of my judgment. Reliance is placed solely on the third category for recall identified in Horowhenua County v Nash (No 2),namely that "for some other very special reason justice requires that the judgment be recalled".2[3] The circumstances in this case said to qualify as very special reasons are:(a) The Judgment does not address the argument that the willingness of counsel to act in the appeal is a sufficient reason in itself to dispense with security for costs: paragraphs [3], [11] and [12].(b) The Judgment employs the wrong standard of appellate review, in that it reaches its conclusion on the basis of a review of the decision of the Deputy Registrar, rather than on a full de novo analysis: paragraphs [8], [9], and [12].(c) The Judgment does not consider specifically the argument that the bankruptcy involves the fundamental right to counsel in criminal proceedings: paragraphs [8] and [13].[4] Cases appropriate for recall on that third basis are likely to be rare.3Specifically with reference to complaints about the manner in which submissions are addressed in judgments this Court stated in Unison Networks Ltd v Commerce Commission:4[34] We conclude by observing that the Court's reasons and the issues itchooses to address are within the discretion of the Court. It will often be unnecessary to deal with all of the submissions presented because of the way in which a case is finally resolved. The Court plainly is able to address submissions in the manner it chooses. While a decision may be recalled where a material issue properly put before the Court is not addressed, excluding a slip or minor error, the cases in which justice will require a recall on this basis are likely to be rare.[5] In considering this application for recall I follow the process noted in the guidelines in Erwood v Maxted5 and determine the application on the papers.2 Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633.3 Ngahuia Reihana Whanau Trust v Flight CA23/03, 26 July 2004 at [3].4 Unison Networks Ltd v Commerce Commission [2007] NZCA 49.5 Erwood v Maxted [2010] NZCA 93, (2010) 20 PRNZ 466 at [23(c)].Grounds for recall[6] The first and third grounds for recall involve an alleged failure to address arguments claimed to have been made on the application for review. As a preliminary matter I observe that while a Judge should record the matters critical to the decision, the duty to give reasons does not extend to reciting and discussing every point advanced irrespective of its significance, particularly when, as in this case, detailed written submissions were filed.[7] With reference to the first issue, the broad proposition at [3(a)] above that the willingness of counsel to act on the appeal is a sufficient reason in itself to dispense with security for costs was not advanced in the written submissions for Mr Musuku. Rather, the reference in the written submissions to the fact that counsel was prepared to act without remuneration was made in the context of the question of the identification of meritless cases.[8] The point made in Reekie v Attorney-General6 was that such a financial arrangement was likely to entail some assessment by counsel that the case was aproper one for appeal. However counsel's assessment is not determinative. Notwithstanding that Mr Thwaite's assessment of the case may be favourable, the Deputy Registrar's analysis was that the appeal had slim merits.7 That was also my own assessment.8 The fact of Mr Thwaite's willingness to act without remunerationdid not necessitate specific discussion. It does not follow from the fact that it was not discussed that there was a failure to decide an issue.[9] As to the third ground, while there was reference to the fact that Mr Musuku was facing criminal charges, the submissions which were provided for my consideration on review did not include an argument of the tenor of the contention described in [3(c)] above.6 Reekie v Attorney-General [2014] NZSC 63, [2014] 1 NZLR 737 at [37].7 Musuku v Commissioner of inland Revenue, above n 1, at [12].8 At [13].[10] So far as the second ground set out in [3(b)] is concerned, the de novo review function was acknowledged.9 While noting that I discerned no error in the DeputyRegistrar's analysis,10 I formed my own conclusions which, as I stated, were thesame as the Deputy Registrar's.11[11] In view of the above the present case is not one which qualifies as a very special reason such that justice requires that the judgment be recalled. Accordingly, the application for recall is declined.Extension of time[12] In the event his application was unsuccessful, Mr Musuku sought an order extending the time for providing security for costs to a date 20 working days after the decision on the recall application. That order was opposed by the respondent who submitted that there was no merit in the application, it being no more than a further attempt by Mr Musuku to delay the effect of the judgment of Associate Judge Doogue adjudicating him bankrupt.[13] Mr Musuku's original application to have security dispensed with or reduced was lodged on 25 January 2017. Having regard both to the time which has since elapsed and the extensions of time which have already been provided first by the Deputy Registrar and secondly in my judgment, I do not consider that a further extension of 20 working days is appropriate. Mr Musuku is to pay the sum of $6,600 by way of security for costs within 10 working days of this decision.Solicitors:Abraham Lincoln Chambers, Auckland for AppellantCrown Law Office, Wellington for Respondent9 At [4].10 At [9].11 At [9] and [13].