GIBSON V NEW ZEALAND LAND SEARCH AND RESCUE DOGS INCORPORATED HC WN CIV-2011-485-000913

GIBSON V NEW ZEALAND LAND SEARCH AND RESCUE DOGS INCORPORATED HC WN CIV-2011- 485-000913 [26 September 2012]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYCIV-2011-485-000913[2012] NZHC 2477UNDER the Judicature Amendment Act 1972IN THE MATTER OF an application for judicial reviewBETWEEN ROBERT GIBSONPlaintiffAND NEW ZEALAND LAND SEARCH ANDRESCUE DOGS INCORPORATEDDefendantJudgment (on the papers): 26 September 2012JUDGMENT OF COLLINS J[Application for Recall of Judgment]Introduction[1] This case was heard by me on 21 and 22 May 2012. At the end of the hearing, after I had heard all witnesses and submissions I invited the parties to give serious consideration to resolving their dispute. In making the suggestion I:(1) emphasised that I was willing to give judgment;(2) pointed out that I was concerned that no meaningful attempt to settle the dispute appeared to have been made;(3) suggested to counsel what I considered to be a sensible solution, namely:(a) that the defendant revoke its decision expelling Mr Gibson;(b) that Mr Gibson would resign from the defendant; and(c) that the parties bear their own costs.To assist the parties I told counsel that if I were to deliver judgment I would have to uphold the application for judicial review and that costs would be awarded to the plaintiff.[2] Counsel thought at that stage that there was a realistic prospect of settlement being achieved. I therefore deferred issuing judgment until 12 June 2012. By that time I had been advised that settlement was not possible.[3] At paragraph [64] of my judgment of 12 June 2012 I dealt with the issue of costs in the following way:Although the plaintiff is not entitled to damages, he is entitled to an award of costs on a scale 2B basis. Leave is reserved to the parties to return to the Court if any issue in relation to costs is not able to be resolved.Application for recall[4] The defendant submits that this is one of those rare instances in which I should recall my judgment pursuant to r 11.9 of the High Court Rules. The plaintiffrelies on the well known statement of the High Court's jurisdiction to recall judgments in Horowhenua County v Nash (No 2),1 in which Wild CJ identified three grounds for recall:(1) where post the hearing there has been an amendment to legislation orregulations or a new decision of "high authority" that is relevant;(2) where counsel have failed to draw the Court's attention to "plainly relevant" legislation or decisions; and(3) "where for some other very special reason justice requires that the judgment be recalled".1 Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC).[5] The principles governing the recall of the judgment have been explained by the Court of Appeal in Unison Networks Ltd v Commerce Commission2 and Erwood v Maxted3 in which their Honours explain:(1) Recall is not a substitute for an appeal;(2) Recall cannot be used to challenge substantive findings;(3) Recall cannot be used to recast arguments previously made or to advance arguments that could have been made that were not advanced previously.Could the parties have made submissions on costs in this case?[6] When distilled to its most basic point the defendant says that I should recallmy decision awarding the plaintiff's costs on a scale 2B basis because the defendantbelieves it was not afforded an opportunity to make submissions on costs.[7] In fact, the defendant was clearly told after the hearing on 22 May 2012 that I would award costs in favour of the plaintiff if the litigation was not settled. It is true, however, that I did not receive submissions on costs or on the scale of costs that I should consider awarding. Nevertheless, I am in no doubt that both parties had every opportunity to file any submissions that they wanted on the question of costs. In the absence of any submissions I awarded costs on a scale 2B basis based upon my assessment that this was an appropriate scale in the circumstances of this case.Was I wrong to award costs on a scale 2B basis?[8] The defendant says there are five reasons why a scale 2B award of costs wasnot appropriate in this case. I will address each of the defendant's arguments:2 Unison Networks Ltd v Commerce Commission [2007] NZCA 49.3 Erwood v Maxted [2010] NZCA 93, (2010) 20 PRNZ 466.(1) That the plaintiff was substantially the author of his own legal difficultiesI cannot and will not revisit my earlier findings of fact. They speak for themselves. Suffice it to say that judgment was awarded in favourof the plaintiff because of the defendant's failure to adhere toprinciples of natural justice.(2) The public has an interest in whether the defendant pays costsIn delivering judgment, and including my award as to costs, I wasvery aware of the public nature of the defendant's activities.(3) That a 2B costs award imposes a form of damagesAgain, I will not revisit my substantive judgment. Suffice to say damages were not awarded to the plaintiff and costs were not seen as being a substitute for damages.(4) That judicial review justifies a more generous approach to costsSuffice it to say I was fully aware of the nature of the proceeding.(5) The plaintiff's claim for costs is not consistent with his claims forreinstatementWith respect, this submission does appear to involve some form of conflation of a costs award with the potential consequences of enforcement of the award.What are the consequences for the defendant?[9] In delivering my judgment I was fully aware that the defendant is a voluntary organisation and that it was likely to face significant financial challenges as a result of the litigation and the judgment that I was delivering.Analysis[10] I have carefully considered whether or not this is an instance in which I should recall my judgment awarding costs on a scale 2B basis in favour of the plaintiff. Notwithstanding the pleas on behalf of the defendant, I do not believe this is an instance in which I should revisit this issue.[11] There is nothing within the defendant's submissions which cause me toconclude that an injustice has been caused through my awarding the plaintiff costs on a scale 2B basis.Result[12] The application for recall is dismissed.[13] The parties have five working days in which to file any memoranda they wish in relation to costs in relation to the recall application.____________________D B Collins JSolicitors:Alan Heward, City Legal, Nelson for PlaintiffChapman Tripp, Auckland for Defendant