ROBERTS v CRESSWELL [2023] NZCA 360
The recall application was declined because there was no extant recusal application, the previously unreported judgment had subsequently been published and made available, and the alleged suppression breach did not arise as the names used were fictitious.
Source-derived case information.
- Citation
- [2023] NZCA 360
- Parties
- Appellant: ROBERTS; Respondent: CRESSWELL; Applicant (sought Recall; in Person): T F Dunstan
- Court
- Court of Appeal
- Jurisdiction
- New Zealand
- Judgment Date
- 11 August 2023
- Procedural Posture
- Appeal (court of Appeal) / Application for Recall of Judgment (on the Papers)
- Outcome
- Application for recall declined
- Legal Topics
- Recall of Judgment, Access to Court Documents, Recusal, Publication of Judgment, Name Suppression, Statutory Suppression
Source-derived case record
Summary, issues, holding and outcome
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Parties
ROBERTS
Appellant
CRESSWELL
Respondent
T F Dunstan
Applicant (sought Recall; in Person)
Procedural Posture
Appeal (court of Appeal) / Application for Recall of Judgment (on the Papers)
Legal Issues
- 1 Whether to recall the Court of Appeal judgment under r 8A of the Court of Appeal (Civil) Rules 2005
- 2 Whether an extant recusal application existed sufficient to warrant recall
- 3 Whether the earlier statement that a judgment was published and available was erroneous and material
Ratio Decidendi
The recall application was declined because there was no extant recusal application, the previously unreported judgment had subsequently been published and made available, and the alleged suppression breach did not arise as the names used were fictitious.
Court Disposition
Application for recall declined
Orders
- Application for recall of [2023] NZCA 168 declined.
Full Case Text
Judgment text and source record
1 paragraphs
ROBERTS v CRESSWELL [2023] NZCA 360 [11 August 2023]NOTE: PURSUANT TO S 139 OF THE CARE OF CHILDREN ACT 2004, ANYREPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND11D OF THE FAMILY COURT ACT 1980.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA545/2022[2023] NZCA 360BETWEEN ROBERTSAppellantAND CRESSWELLRespondentCounsel: Applicant (T F Dunstan) in personV A Crawshaw KC and S M Wilson for AppellantS N van Bohemen, A J Summerlee andE S M L B Gawar Kohistani for RespondentJudgment:(On the papers)11 August 2023 at 10.30 amJUDGMENT OF THE COURTThe application for recall of [2023] NZCA 168 is declined.____________________________________________________________________REASONS OF THE COURT(Given by Brown J)[1] In a judgment dated 12 May 2023 I declined Ms Dunstan's application underthe Senior Courts (Access to Court Documents) Rules 2017 seeking copies of variousdocuments in this appeal.11 Roberts v Cresswell [2023] NZCA 168.[2] Ms Dunstan has applied under r 8A of the Court of Appeal (Civil) Rules 2005for an order that my decision be "rescinded". Her application is based on two grounds:(a) that I am the subject of an unresolved recusal application;(b) that the statement in my judgment that the judgment in Roberts vCresswell2 was published and available to Ms Dunstan in any event wasin error.[3] I am unaware of any extant recusal application.[4] Contrary to my then understanding, at the date of my 12 May 2023 decisionthe judgment in Roberts v Cresswell had not been published by the Judicial Librariesof the Ministry of Justice. However I am advised by Judicial Libraries that thejudgment was published on 7 June 2023 and is now available for access byMs Dunstan.[5] In her application for recall Ms Dunstan further suggests that I acted in breachof the statutory suppression of the names of the parties in Roberts v Cresswell.However the names in the judgment are not the parties' real names but fictious names.[6] For these reasons I am satisfied there are no grounds warranting the recall ofmy judgment. Ms Dunstan's application for recall is declined.Solicitors:Glaister Ennor, Auckland for AppellantParry Field Lawyers, Christchurch for Respondent2 Roberts v Cresswell [2023] NZCA 36.