NICHOLAS v COMMISSIONER OF POLICE [2019] NZCA 37

NICHOLAS v COMMISSIONER OF POLICE [2019] NZCA 37 [11 March 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA470/2016[2019] NZCA 37BETWEEN VALENTINE BARCLAY NICHOLASAppellantAND COMMISSIONER OF POLICERespondentCourt: Williams and Duffy JJCounsel: Appellant in personR W Jenson for RespondentJudgment:(On the papers)11 March 2019 at 1.00 pmJUDGMENT OF THE COURTA The application to recall the judgment is declined.B There is no order as to costs on this application.____________________________________________________________________REASONS OF THE COURT(Given by Williams J)[1] Mr Nicholas applies to recall this Court's judgment delivered on19 October 2017 relating to asset and profit forfeiture orders made pursuant tothe Criminal Proceeds (Recovery) Act 2009.1 In that judgment this Court allowed1 Nicholas v Commissioner of Police [2017] NZCA 473 [Court of Appeal judgment]. The originaljudgment was delivered by a Court comprising Harrison, Duffy and Williams JJ. Harrison Jretired before the application for recall was made. The relevant period under s 177(3) of the SeniorCourts Act 2016 has now expired. The remaining judges heard the application, acting unders 62(1) of the Senior Courts Act.the appeal and the High Court's judgment was set aside in part.2 The matter wasremitted to the High Court to hear evidence with respect to undue hardship caused bythe loss of land.3[2] Mr Nicholas filed a "notice of appeal" in this Court on 26 July 2018. He wasadvised that there is no jurisdiction to file a notice of appeal when the appeal againstthe relevant judgment has already been heard and determined. Mr Nicholas wasadvised to seek leave to appeal out of time to the Supreme Court. Mr Nicholas wasadvised by the Registrar that his "notice of appeal" could, however, be treated as anapplication for recall of this Court's decision. Mr Nicholas confirmed that he wantedhis notice of appeal to be treated as an application for recall.[3] The Commissioner of Police (the Commissioner) opposes the application.Procedural history[4] It is necessary to set out the procedural background to the present applicationin some detail.[5] On 17 August 2016, Hinton J made forfeiture orders against Mr Nicholas inrespect of five properties, cash and assorted vehicles.4 These orders were sealed on24 August 2016. Mr Nicholas appealed against Hinton J's decision, initially seekingto have the decision set aside in its totality. The grounds of appeal were, however,narrowed when the appeal was heard to relate only to four of the five forfeitedproperties.5[6] On appeal, this Court allowed Mr Nicholas' appeal in relation to two ofthe properties. The following direction was made:6The matter is remitted to the High Court to hear evidence with respect towhether the loss of the Whakamārama land and 633 Maketū Road would causeundue hardship in accordance with s 56 of the Act. Mr Nicholas will berequired to make an application according to file fresh evidence in light of our2 Commissioner of Police v Nicholas [2016] NZHC 1913 [High Court judgment].3 Court of Appeal judgment, above n 1, at [77].4 High Court judgment, above n 2.5 Court of Appeal judgment, above n 1, at [2].6 Court of Appeal judgment, above n 1, at [77].conclusions and the narrower scope of the application which we are preparedto admit. Relevant timetabling will be for the High Court.[7] What happened after this Court issued its judgment is helpfully recorded byWoolford J in a minute dated 5 July 2018:[5] The matter was then called in the High Court on 2 November 2017.Mr Nicholas was at that time represented by counsel. Hinton J issued a minutedirecting that counsel file memoranda with regard to the timetabling requiredas a consequence of the Court of Appeal decision.[6] Mr Nicholas then brought separate proceedings in the MāoriLand Court, seeking to change the status of the Maketu Road properties andthe Whakamarama property from general title to that of Māori freehold title.This application was dismissed.[7] On 18 January 2018, Mr Nicholas filed a memorandum advising thathe was having difficulties instructing counsel, and seeking a stay of the saleof the properties while he sought to resolve the issue. The Commissioner ofPolice responded by way of memorandum dated 26 January 2018, noting thatthe Official Assignee had confirmed that he would take no action to disposeof the properties until the proceedings had been resolved.[8] Following a conference, in a minute dated 26 March 2018, Hinton Jdirected Mr Nicholas to file his application for relief, setting out the groundsof undue hardship alleged by 5pm on Tuesday 24 April 2018. Due to illnessof Mr Nicholas' counsel, Hinton J in a further minute dated 19 April 2018,directed that there would be an extension of time until 11 May 2018 forthe application to be filed.[9] No application was filed by that date. Instead, Mr Nicholas filed:(a) An application dated 9 May 2018 seeking an urgent stay ofthe proceedings, an immediate freezing order and an orderthat the Commissioner of Police does not enter or interferewith any of his property.(b) An application dated 11 May 2018 seeking interim relief byway of an urgent stay of proceedings and for a re-hearing.[10] The matter was then called before Wylie J on Wednesday13 June 2018. Mr Nicholas appeared in person. The Commissioner of Policewas represented by Mr Jenson.[8] At this hearing, it appears that Wylie J made various timetabling orders,requiring compliance before 15 June 2018. Wylie J made clear to Mr Nicholas that ifthe relevant materials were not filed, the Court would proceed to deal withthe Commissioner's application without further reference to Mr Nicholas.Mr Nicholas did not file the relevant documents by 15 June 2018.[9] On 5 July 2018, Woolford J proceeded to deal with the Commissioner'sapplication without further reference to Mr Nicholas. Woolford J considered that therewas no application or evidence before the Court to satisfy it that Mr Nicholas wouldsuffer undue hardship were the properties at issue to be forfeited and he accordinglymade an order that the relevant properties be made the subject of the profit forfeitureorder made by Hinton J on 17 August 2016.Recall[10] The circumstances in which a judgment may be recalled are well settled.7The three categories are:8(a) where since the hearing there has been an amendment to a relevantstatute or regulation or a new judicial decision of relevant and highauthority;(b) where counsel have failed to direct the court's attention to a legislativeprovision or authoritative decision of plain relevance; or(c) where for some other very special reason justice requires thatthe judgment be recalled.[11] This Court in Erwood v Maxted confirmed that the Horowhenua criteria are tobe applied strictly,9 and that applications which merely seek to relitigate mattersalready considered, or to challenge substantive findings of fact or law, will not beentertained.10Submissions[12] Mr Nicholas seeks recall of this Court's judgment on the grounds that hiscounsel withdrew some of Mr Nicholas' original grounds of appeal withoutMr Nicholas' knowledge or consent. Mr Nicholas submits that as a result, all relevant7 Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC).8 Horowhenua County v Nash (No 2), above n 7, at 633.9 Erwood v Maxted [2010] NZCA 93, (2010) 20 PRNZ 466 at [23(b)(i)].10 At [23(b)(ii)].information was not available to the Court and that this changed the outcome ofthe appeal. He appears to rely on the second and third Horowhenua categories.[13] The Commissioner submits that any application to recall the judgment wouldhave to fall under the third Horowhenua category. The Commissioner submits thatdespite being partially successful in this Court, Mr Nicholas failed to pursue his claimfor undue hardship in the High Court and that Court ultimately ruled that the relevantproperties were to be made part of the forfeiture order initially made.[14] The Commissioner submits that in analogous cases where recall waseffectively an afterthought, applications for recall were declined.11Analysis[15] We consider that the substance of Mr Nicholas' application is to challenge notonly the fact that he was only partially successful in this Court but also to challengethe determination of Woolford J in the High Court.[16] To the extent that Mr Nicholas' application challenges this Court's decision,we disagree with Mr Nicholas' submission that his counsel's failure to address othergrounds of appeal falls into category two of Horowhenua. Similarly, we are ofthe view that Mr Nicholas' grounds do not provide "very special reasons" such thatjustice requires recall of the judgment. Counsel's failure to argue particular groundsof appeal is best characterised as a ground for an appeal to the Supreme Court.The requirements of justice can best be served by Mr Nicholas raising the ground thathis counsel did not pursue his appeal as instructed by appealing, out of time, tothe Supreme Court.[17] We accordingly decline to recall the judgment.[18] Any challenge to what happened after this Court's decision in the High Courtshould be brought by way of an appeal to this Court. If Mr Nicholas pursues this11 See Ashe v Tauranga Marina Society (1991) 4 PRNZ 89; and Cooper-Davies Trustees Number 6Ltd v Cooper Trustees Number 11 Ltd [2014] NZHC 335.appeal, he should apply for a stay of the High Court orders if it is not already too lateto do so.Result[19] The application to recall the judgment is declined.[20] There is no order as to costs on this application.Solicitors:Crown Solicitor, Tauranga for Respondent