Thomas v Accident Compensation Corporation

[2014] NZCA 186

IN THE COURT OF APPEAL OF NEW ZEALAND

CA670/2013
[2014] NZCA 186

BETWEEN	ALAN THOMAS Applicant
AND	ACCIDENT COMPENSATION CORPORATION Respondent

Court:

Stevens, White and French JJ

Counsel:

Applicant in person
D K L Tuiqereqere for Respondent

Judgment:

(On the papers)

16 May 2014 at 3.00 pm

JUDGMENT OF THE COURT

AThe application for recall is dismissed.

BThe applicant must pay the respondent costs calculated as for a standard application on a band A basis and usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by French J)

Introduction

1. In a judgment delivered on 24 March 2014, this Court dismissed Mr Thomas’s application for special leave to appeal a decision of the High Court.[1]

   [1]Thomas v Accident Compensation Corporation [2014] NZCA 89.

2. Mr Thomas now seeks recall of that judgment.

Background

1. Mr Thomas’s application for special leave related to an appeal he wished to bring against a decision of Gilbert J under s 98(1) of the Accident Rehabilitation and Compensation Insurance Act 1992.[2]  In that decision, Gilbert J upheld a finding in the District Court that Mr Thomas was not incapacitated or unable by reason of personal injury to engage in his pre-accident employment.[3]

   [2]Thomas v Accident Compensation Corporation [2012] NZHC 3206.

   [3]Thomas v Accident Rehabilitation Compensation Insurance Corporation DC Auckland DCA129/98, 21 April 2010.

2. In this Court’s decision of 24 March 2014, the Court held that the appeal Mr Thomas wished to bring was misconceived and had no realistic prospect of success.[4]

Application for Recall

[4]At [7].

1. The principles regarding applications for recall of judgments are well established.  They were conveniently summarised in Horowhenua County v Nash (No 2):[5]

   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.

   [5]Horowhenua County v Nash (No 2) [1968] NZLR 632 (CA) at 633.

2. Applying those principles to this case, we are satisfied that there is no basis for a recall of the judgment.  There is no suggestion that either the first or second categories referred to in Horowhenua County apply.  As to the third category, the matters raised by Mr Thomas simply seek to relitigate issues already considered by the Court.

3. The application for recall is accordingly dismissed.

4. There is no reason why costs should not follow the event.  The respondents were put to the cost of responding to the application.

5. We accordingly order the applicant to pay the respondent costs on the recall application calculated as for a standard application on a band A basis and usual disbursements.

Solicitors:
Medico Law Ltd, Auckland for Respondent