BETWEEN THE COMMISSIONER OF POLICE Applicant AND JOHN RICHARD BRACKEN First Respondent BRACKEN ENTERPRISES LIMITED Second Respondent THE BRACKEN FAMILY TRUST Third Respondent

[2023] NZHC 2528

IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY

I TE KŌTI MATUA O AOTEAROA TŪRANGANUI-A-KIWA ROHE

CIV-2018-416-00044

[2023] NZHC 2528

UNDER

the Criminal Proceeds (Recovery) Act 2009

IN THE MATTER

of an application under s 41

BETWEEN

THE COMMISSIONER OF POLICE

Applicant

AND

JOHN RICHARD BRACKEN

First Respondent

BRACKEN ENTERPRISES LIMITED
Second Respondent

THE BRACKEN FAMILY TRUST

Third Respondent

AND

ANZ BANK NEW ZEALAND LIMITED

First Interested Party

RICHARD THOMAS BRACKEN
Second Interested Party

SHIRLEY LESLEY BRACKEN
Third Interested Party

ROBERT RICHARD BRACKEN
Fourth Interested Party

KATRINA LEIGH MARTIN
Fifth Interested Party

A (by her litigation guardian ROBERT RICHARD BRACKEN)
Sixth Interested Party

MARGARET ALEXANDRIA BRACKEN

Seventh Interested Party

(continued over page)

COMMISSIONER OF POLICE v BRACKEN [2023] NZHC 2528 [8 September 2023]

B (by his litigation guardian KATRINA LEIGH MARTIN)

Eighth Interested Party

Hearing:

On the papers

Counsel:

M J M Mitchell for Applicant First Respondent in person

J M Matheson for Second Respondent and Fourth, Fifth, Sixth and Eighth Interested Parties

R E Harrison KC for Third Respondent P J Davey for Seventh Interested Party G Young for Official Assignee

Judgment:

10 July 2023

Recalled and reissued:

8 September 2023

JUDGMENT OF RADICH J

(Recalling and reissuing decision)

[1]                 In my judgment of 10 July 2023, I extended the restraining orders in place in this proceeding (the judgment).1 On 11 July, counsel for the second respondent, the fourth to sixth interested parties and the eighth interested party filed a memorandum on three matters arising from the judgment:

(a)it was asked that the names of the sixth and eighth interested parties (who are children) be anonymised to “A” and “B”;

(b)it was asked that it be recorded in the judgment that no submissions had been filed on behalf of the actively opposing parties; and

(c)it was pointed out that the Court had referred mistakenly to, and relied on, Detective Paul Camplin’s affidavit dated 30 May 2023 (the Camplin affidavit) in the judgment when, at [23(4)] of a minute on 7 June 2023,

1      Commissioner of Police v Bracken [2023] NZHC 1790.

the Court had ordered by consent that the Camplin affidavit would be removed from the Court’s file. The Camplin affidavit was referred to in [16] and relied on in [27], [30] and [33] of the judgment.

[2]                 In my minute of 12 July,  I proposed to deal with  the first two matters under  r 11.10 of the High Court Rules 2016 – the ‘slip rule’. I sought clarification on whether counsel was seeking to have the third matter addressed through recall, as it was not a matter that could be addressed through the slip rule.

[3]                 On 11 August 2023, counsel for the fourth and fifth interested parties filed an application to recall the judgment under r 11.9 of the High Court Rules 2016 on the basis of the matter described in [1(c)] above. The application makes the point that the inclusion of, referral to, and reliance on the Camplin affidavit did not reflect the intention of the order made on 7 June 2023 when it was removed from the file.

[4]                 The Commissioner has no objection to the recall of the judgment. Counsel for the Commissioner has submitted, in a memorandum of 14 August 2023, that the ultimate outcome of the extension application is unlikely to be altered by putting the Camplin affidavit to one side given, as counsel has put it, the lack of evidence to support the opposition to the application and the enduring factors underpinning the orders’ original grant.

Legal principles

[5]Recall is dealt with in r 11.9 of the High Court Rules which provides:

11.9     Recalling judgment

A Judge may recall a judgment given orally or in writing at any time before a formal record of it is drawn up and sealed.

[6]                 The leading authority is Horowhenua County v Nash (No. 2) where, at 633, Wild CJ said: 2

2      Horowhenua County v Nash (No. 2) [1968] NZLR 632 at 633; see also Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 122, [2010] 1 NZLR 76; and Rainbow Corporation Ltd v Ryde Holdings Ltd (1992) 5 PRNZ 493 (CA).

Generally speaking, a judgment once delivered must stand for better or worse subject, of course, to appeal. Were it otherwise there would be great inconvenience and uncertainty. There are, I think, three categories of cases in which a judgment not perfected may be recalled

— first, where since the hearing there has been an amendment to a relevant statute or regulation or a new judicial decision of relevance and high authority; secondly, where counsel have failed to direct the Court’s attention to a legislative provision or authoritative decision of plain relevance; and thirdly, where for some other very special reason justice requires that the judgment be recalled.

[7]                 Wild CJ’s approach was endorsed by the Supreme Court in Saxmere Company Ltd v Wool Board Disestablishment Co Ltd.3 In exercising its jurisdiction to recall a judgment, a Court must balance the interests of justice with the principle of finality in litigation. The tenet that a judgment must stand subject to an available right of appeal yields, where appropriate, to principles of natural justice and to circumstances in which, after a judgment has been sealed, some external factor makes it a nullity.4

[8]                 Counsel for the first and third respondents and for the seventh interested party have indicated that they do not oppose the application. In a minute of 6 September 2023, I asked that any other party wishing to be heard or to file any document in response to the application let the Court know by midday on Friday 8 September, failing which I would issue a decision on the application. No further responses were received.

[9]                 I accept counsel for the fourth and fifth interest parties’ submission that the situation here fits squarely within the third category referred to by Wild CJ in the passage cited above.

[10]             In preparing the judgment, I overlooked the 7 July 2023 order removing the Camplin affidavit from the file.5 Having considered carefully the extension application in the absence of the Camplin affidavit, I am satisfied that, by removing references to it, the intention and outcome of my judgment are undisturbed.

3      Saxmere Company Ltd v Wool Board Disestablishment Co Ltd (No 2) [2010] 1 NZLR 76 at [2].

4      R v Smith [2003] 3 NZLR 617 at [29]; citing R v Nakhla (No 2) [1974] 1 NZLR 453; Craig v Kanseen [1943] KB 256; and Kofi Forfie v Seifah [1958] AC 59 at 67

5      In circumstances similar to those which warranted recall in Y v Foulkes [2014] NZAR 982 at [33].

[11]             For these reasons I will reissue my judgment in the amended form.6 In doing so, I deal, through rule 11.10, with the matters referred to in [1](a) and (b) above.

[12]             In preparing this decision, I have seen that, on 9 June 2023, counsel for the third respondent and the fourth, fifth and sixth interested parties asked in a memorandum that the reference, in [23(7)] of my minute of 7 June 2023, be amended so that it reads (taking into account also the matter raised in [1(a)] above):

(7)Katrina Leigh Martin is appointed as litigation guardian for B under rr 4.31, 4.33 and 4.35 of the High Court Rules.7

[13]I so order, under rule 11.10 of the High Court Rules.

Radich J

Solicitors:

Elvidge & Partners, Napier for Applicant

Douglas Burgess, Auckland for Second, Third and Fourth Respondents and Fourth Fifth, Sixth and Eighth Interested Parties

6      The amendments I have made are the minimum necessary to correct the issues referred to in [2] to [6] in the memorandum of counsel for the second respondent, fourth to sixth and eighth interested parties.

7      The second matter raised in the 9 June memorandum has been addressed through the 11 August 2023 memorandum of counsel for the first respondent.