Carter Holt Harvey Building Products Group Ltd v Commerce Commission [2003] NZCA 37; (2003) 16 PRNZ 835 (3 March 2003)

Last Updated: 18 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA180/00

BETWEEN CARTER HOLT HARVEY BUILDING PRODUCTS GROUP LIMITED
Appellant

AND THE COMMERCE COMMISSION
Respondent

Hearing: 17 February 2003

Coram: Gault P Keith J McGrath J

Appearances: R A Dobson QC for the Appellant
M T Scholtens QC for the Respondent

Judgment: 3 March 2003

JUDGMENT OF THE COURT DELIVERED BY KEITH J

[1] The Court granted the appellant conditional leave to appeal to the Privy Council on 7 December 2001 under rule 2(a) of the New Zealand (Appeals to the Privy Council) Order 1910. Leave was granted by consent on the conditions that

(a) The appellant was to seal the judgment of this Court within 28 days.

(b) The appellant was to take the necessary steps to prepare the record, secure the necessary certificate of the Registrar of the Court of Appeal as to the record, dispatch the record to London and lodge it in the Privy Council and secure registration of the appeal at the Privy Council by 31 May 2002.

(c) The appellant was to enter within 28 days into good and sufficient security in the sum of $2000 in accordance with r5(a).

[2] The appellant complied with conditions (a) and (c). It has not however complied with condition (b).
[3] On 13 November 2002 the appellant applied for final leave to appeal to the Privy Council while the respondent, as well as opposing that application, applied for an order rescinding the conditional leave order. That application we were told was filed out of caution in response to remarks made by this Court in E v E [1972] NZLR 932, 935-936. The application before us presents two questions. The first is whether the Court has jurisdiction to grant final leave where a condition has not been satisfied in time and the application for leave has been made after the final date fixed in the conditions. The second is whether, if the Court has jurisdiction, it should in its discretion grant final leave.
[4] The respondent’s argument on the first point is that the appellant must have taken some steps before the expiry of conditional leave to keep that leave alive. The conditional leave simply lapses. While the New Zealand (Appeals to the Privy Council) Order 1910 and the Judicial Committee (General Appellate Jurisdiction) Rules 1982 do not address the issue before us, rules 17 and 21 of the 1910 order (about delays in seeking a final order when conditions were satisfied and delays, after the final order, in despatching the record) do allow an inference, the respondent says, that conditional leave lapses where a condition is not met and no steps are taken to preserve the situation before the time expires. The power of the Registrar of the Judicial Committee under the 1982 Rules to dismiss an appeal for non prosecution after the record is despatched is also cited as supporting that contention. The respondent points as well to the ability of the appellant, in the present context too, to seek leave directly from the Judicial Committee in those circumstances. Further, in the known cases, the appellant had applied for extension of time or for final leave before the date fixed in the condition (Lomas v Foreland Investments Ltd (1991) 5 PRNZ 199 (at least apparently) and Mobil Oil NZ v Bagnall [2001] NZCA 12; (2001) 14 PRNZ 666).
[5] This Court in those two cases referred to the decision of the Privy Council in Roulstone v Panton [1979] 1 WLR 1465 as confirming the jurisdiction to extend the period or grant final leave although the relevant conditions had not been met in time. The Privy Council distinguished between a period fixed (as a maximum) by the Rules themselves and a period to be fixed by the Court granting leave. In respect of the second, it could “see no justification for holding that there is no jurisdiction to refix the period either expressly or implicitly on or before granting final leave” (1468). It may well be that in that case, as Lomas and Mobil Oil, that the relevant application was made before the time fixed in the unsatisfied condition had passed, but the Privy Council, like this Court in the two cases, made nothing of that.
[6] We adopt the same approach. In this case, the initial application for leave to appeal was in order. A conditional order was made. For the appellant, the further steps of complying with the conditions or seeking to amend them and of applying for final leave (and if granted taking the further necessary steps) remained. There is nothing in the Rules to prevent this Court considering this application if the condition has not been satisfied. As the Privy Council said, we can “refix the period” when granting final leave.
[7] We accordingly conclude that we have jurisdiction to consider this application, and we turn to the question whether we should grant final leave.
[8] The primary argument for the respondent is the very lengthy delay of the appellant as appears from this chronology:

10-12 September 2001 Hearing before the Court of Appeal

5 November 2001 Decision of the Court of Appeal

20 November 2001 Appellant’s application for conditional leave to appeal

30 November 2001 Memorandum filed by Commerce Commission consenting to conditional leave

7 December 2001 Order granting conditional leave. See [1] above.

21 & 22 May 2002 ACCC v Boral Masonry Ltd argued in the High Court of Australia

31 May 2002 Condition (b) as to preparation and dispatch of the Record to be fulfilled

19 September 2002 First communication from appellant’s solicitors to respondent relating to appeal and/or Record since the previous December

23 September 2002 Commission’s response

8 November 2002 Appellant’s solicitors advise on scope of issues on appeal and therefore Record

12 November 2002 Commission agrees Record (without prejudice as to timing issue)

13 November 2002 Appellant files notice of motion for final leave

22 November 2002 Respondent’s notice of opposition, application to rescind conditional order and affidavit in support filed

7 February 2003 High Court of Australia decides Boral 2003 HCA 5

[9] The only affidavit filed on behalf of the appellant was by its General Counsel. He explains the reasons for the appeal to the Privy Council. They are significant but they do not in any way relate to the lengthy delay beyond, it might be noted, the unusually long period allowed for preparing the record of six months rather than the usual three. The only reason he offers relates to the Boral case, argued just ten days before the expiry of the time fixed in the condition:

The appellant considered that the High Court judgment in the Boral case could have direct relevance to this case generally and in particular on the issue [about the test for dominance] which I have referred to ... above. If that matter was clarified, it might lead the appellant to decide not to continue with its appeal to the Privy Council. Accordingly, the appellant has been waiting on the Boral judgment and as a result it has not until fairly recently, it is acknowledged, taken steps to prepare and complete the record.

[10] The affidavit concludes:

The appellant acknowledges that delay has occurred in proceeding with its appeal particularly between May and October while it has been waiting for the decision of the High Court of Australia in the Boral case. Given, however, the lengthy chronological history of this case there would not seem to be any prejudice to the Respondent in allowing this appeal to proceed.

[11] Counsel for the appellant, in response to a question from the bench, said that it was a fair characterisation that this was not a matter of solicitor’s error.
[12] The attitude of the appellant to satisfying the conditions may be gathered from its solicitor’s letter of 19 September 2002, the first communication relating to the appeal for nine months:

As you know, Carter Holt Harvey Limited lodged its secured conditional leave to appeal to give it time to seek additional advice from London counsel and to await the outcome of the important Boral litigation in Australia. Advice has been received from English counsel and the Boral Decision is expected shortly. At this stage it is likely that the appeal will proceed.

We have arranged for the record to be printed by our London agents, DLA. They advise us that the record can be printed in two to three weeks.

As to the consent of the record, we suggest that it should include the following:

1. Volumes 1-9 of the Court of Appeal record which contains all the formal pleadings, evidence, exhibits and judgments.
2. The two core bundles.

The parties would be at liberty to produce at the hearing any parts of the rest of the Court of Appeal record so long as adequate written notice of intention to do so was given.

Please let us have your comments on these suggestions as soon as possible.

[13] The respondent, four days later in its reply to the letter, expressed surprise at receiving it, said that it had assumed the appeal had been abandoned because of non compliance with the conditions and questioned the basis for the knowledge attributed to it in the first sentence. The application for final leave was not filed for another seven weeks.
[14] We do not see the pending Boral decision as providing any reason at all for the delay. It was after all in prospect when leave was initially sought in November 2001. The Full Federal Court had given its decision as long ago as 27 February 2001 ([2001] FCA 30) and the High Court granted special leave to appeal to it on 14 December 2001. The applicant has given no reason at all why the conditions could not have been satisfied in May. Had it satisfied the condition, the timing of the final Boral decision might possibly have been relevant to the time of the hearing in the Privy Council. Prospective appellants cannot simply rest on the grant of conditional leave, well beyond the time fixed in the conditional grant.
[15] To condone the approach of the appellant to this appeal would be quite inconsistent with recent efforts, reflected in changes to the Rules of this Court, to deter the practice of lodging but not prosecuting appeals. It would be inconsistent also with the very purpose of imposing a time condition for preparation and despatch of the record. Respondents are entitled to have litigation brought to finality with reasonable diligence.
[16] We refuse the grant of final leave to appeal and rescind the grant of conditional leave. The respondent is entitled to costs of $1,500.

Solicitors:

Russell McVeagh, Auckland for the Appellant
Commerce Commission, Wellington for the Respondent