PRIDMORE v THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT [2017] NZHC 2569

PRIDMORE v THE CHIEF EXECUTIVE OF THE MINISTRY OF SOCIAL DEVELOPMENT [2017] NZHC2569 [20 October 2017]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-Ā-TARA ROHECIV-2016-485-000585[2017] NZHC 2569BETWEEN JOHN PRIDMOREApplicantAND THE CHIEF EXECUTIVE OF THEMINISTRY OF SOCIALDEVELOPMENTRespondentHearing: On the papersJudgment: 20 October 2017JUDGMENT OF VENNING JON RECALL APPLICATIONThis judgment was delivered by me on 20 October 2017 at 12.45 pm; pursuant to Rule 11.5 of theHigh Court Rules.Registrar/Deputy RegistrarDateSolicitors: Crown Law, WellingtonCopy to: Appellant[1] In a judgment delivered on 4 October 2017 the Court dealt with Mr Pridmore'sappeal from the decision of the Social Security Appeal Authority declining hisapplication for New Zealand superannuation to be paid to him in Japan. The appealwas by way of case stated. It raised two questions:(a) Did the Authority err in its interpretation and application of s 26B ofthe New Zealand Superannuation and Retirement Income Act 2001 (theAct)?(b) Was there any evidence on which the Authority could conclude that theappellant was not ordinarily resident in New Zealand at the time of hisapplication for portability in 2011?[2] The Court answered the questions as follows:(a) No. The Authority did not err in its interpretation in the application ofs 26B; and(b) Yes. There was evidence on which the Authority could conclude MrPridmore was not ordinarily resident in New Zealand at the time of hisapplication for portability in 2011.[3] The appeal was dealt with on the papers as Mr Pridmore lives in Japan. Theparties agreed the matter would be dealt with on the papers.[4] Mr Pridmore now seeks to recall the judgment.[5] He submits the judgment should be recalled because Mr Howell, who had beenacting as his McKenzie friend, only received the Crown submissions and commonbundle on 4 October, and Mr Pridmore says he did not receive the Crown submissionsand common bundle until 7 October.[6] Mr Pridmore wishes to address further submissions, effectively submissions inreply.[7] Rule 11.9 of the High Court Rules enables a Judge to recall a judgment at anytime before a formal record of it is drawn up and sealed.[8] Recalling a judgment is a serious step. The judgment will only be recalled inlimited circumstances. The very limited circumstances in which a judgment mayproperly be recalled were recently confirmed by the Supreme Court in SaxmereCompany Ltd v Wool Board Disestablishment Company Ltd (No 2):1[2] Three categories of case have been recognised by the New Zealandcourts in which a judgment may be recalled if not already perfected. They areconveniently set out in the judgment of Wild CJ in Horowhenua County vNash (No 2):"[F]irst, where since the hearing there has been an amendment to arelevant statute or regulation or a new judicial decision of relevance andhigh authority; secondly, where counsel have failed to direct the Court'sattention to a legislative provision or authoritive decision of plainrelevance; and thirdly, where for some other very special reason justicerequires that the judgment be recalled."[9] The first two criteria do not apply. All relevant authorities were before theCourt. The leading authority in this area is the case of Greenfield v Chief Executive,Ministry of Social Development.2 The Court was aware of that decision andconsidered it in the course of its judgment. Further, it was referred to in the decisionof the Appeal Authority. It was known to Mr Pridmore.[10] Nor is there any other very special reason to recall the judgment.[11] Mr Pridmore says he would like to make further submissions in light of thematerial provided by the Crown in its submissions. But there was no provision forsubmissions in reply.[12] This was an appeal by way of case stated to be dealt with on the papers. Evenif the Crown were late in serving their submissions it could have had no impact on the1 Saxmere Company Ltd v Wool Board Disestablishment Company Ltd (No 2) [2010] 1 NZLR 76(footnote omitted).2 Greenfield v Chief Executive, Ministry of Social Development [2015] NZSC 139.outcome of the answers to the legal questions. The Court had all relevant materialbefore it.[13] Essentially Mr Pridmore wants to reargue his case. The cases he refers to inhis application to recall cannot affect the Court's ruling. He also says he wishes tosubmit his letter of 22 July 2011 does not confirm his ordinary residence in Japan. Itsimply indicated that he was living there. That letter was only one factor taken intoaccount by the Court in determining that there was evidence on which the Authoritycould conclude he was not ordinarily resident in New Zealand at the time he made hisapplication for portability in 2011.[14] There is nothing raised in the material submitted on behalf of Mr Pridmore tosatisfy the criteria for recall.[15] The application for recall is dismissed.__________________________Venning J