Attorney-General v Offshore Mining Co Ltd CA173/82 [1982] NZCA 103 (17 December 1982)

Last Updated: 6 January 2013

IN THE COURT OF APPEAL OF NEW ZEALAND CA173/82

BETWEEN ATTORNEY-GENERAL
Appellant

AND

OFFSHORE MINING CO LTD , SHELL (PETROLEUM MINING) CO LTD , BP (OIL EXPLORATION) COMPANY OF NEW ZEALAND LTD and TODD PETROLEUM MINING CO LTD
Respondents
Coram: Woodhouse P
Hearing: 17 December 1982
Counsel: R J M Shaw for appellant

J M Morrison for respondents

Judgment: 17 December 1982
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ORAL JUDGMENT OF WOODHOUSE P.
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On 1st October 1973 the Crown entered into a complex contract with Offshore Mining Co. Ltd. and others for the supply and purchase of natural gas. Article 12 of the con- tract provides inter alia that in the event of a dispute as to liability for monies claimed under the contract that dispute shall be referred in effect to the arbitration of an independent expert. Such a dispute arose and was referred to the arbitration of J. H. Wallace Esq., Q.C., who duly delivered an award.

The Crown being of the opinion that there was an error of law on the face of the award took steps to have the award set aside by the High Court. At that point Offshore Mining Co. Ltd. and its associates moved to have those proceedings struck out. The motion came before White J. on 19th July 1982 and by a judgment delivered on 21st October he found in favour of Offshore Mining. Then on 17th November 1982 the Crown gave notice of motion of appeal to this Court against the decision of White J. However on 9th December Offshore Mining obtained a certificate from the Court in terms of s 24(2) of the Crown Proceedings Act 1950 which would have the effect of persuading the Crown to make immediate payment of an agreed sum due in terms of the award, although of course in the event of the appeal being successful the challenge to the award will have to be heard and determined in the High Court. The amount involved is $6,102,907.60 together with costs, and interest is running on that amount compounded at monthly intervals as I understand it.

We have reached the last day of the judicial year and I have found it necessary to deal myself with an application now put before this Court by the Crown in terms of the proviso to s 24(2) which reads as follows: "Where in any civil proceedings any order (whether for costs or otherwise) is made by the Court in favour of any person against the Crown or the Attorney-General or any Government Department or officer of the Crown, and the person in whose favour the order is made so requests, the proper officer of the Court shall issue to that person, without payment of any fee, a certifi- cate in the form numbered (5) in the Third Schedule to this Act or to the like effect: Provided that, if the order provides for the payment of money, the Court by which the order is made or any Court to which an appeal against the order lies may direct that, pending an appeal or otherwise, payment of the money so payable, or any part thereof, shall be suspended, and (if the certificate has not been issued) may order any such directions to be inserted therein."

In effect the application is for a stay of execution - if one can express the matter in terms of litigation between private persons. As I say, I am dealing with this matter myself because it is a last-minute application and I do so in terms of s 61A of the Judicature Act 1908.

In my opinion a number of obvious considerations affect the answer to the application now made by the Crown. First, a large sum is involved with the obvious implications that fact must have both from the point of view of the successful party in the High Court and for the Crown who must pay. The second matter is the pending appeal. In ordinary circumstances one would look to see whether the appeal appeared to have at least some superficial merit. Naturally I am quite unable to consider that question by reason of the pressures of time and in any event it should not be assumed in my opinion that the Crown would embark upon such an appeal simply for purposes of delay. Then there are the practical implications which will arise depending upon whether or not the appeal succeeds. It seems to me that if the appeal were to succeed it ought to be possible for the High Court to deal speedily with the Crown's application to have the award set aside on grounds of error of law. On the other hand if the appeal does not succeed and no further step is to be taken by way of appeal to the Privy Council then of course it will follow that payment will be made forthwith. Should it happen, however, that the Crown wished to go to the Privy Council it will be open to Offshore Mining to invite this Court to order execution. I would not wish to be thought to be expressing a view as to the outcome of an application in that event but one would imagine that if there were likely to be any significant delay at that point execution might well be ordered. Finally there is a question as to when the appeal itself can be heard. I am in no doubt that this is an important commercial cause and should be given a priority fixture. In the circumstances there will be a fixture to meet the convenience of the parties but no later than 14th February 1983.

Taking into account the comparatively brief time ahead until that date and putting that short period against the time that has elapsed until now since the dispute arose I am of the opinion that execution should be stayed. I repeat, should it become necessary Offshore Mining may renew its application to be paid the amount due to it should the Crown's appeal fail and further steps are then taken to go on to the Privy Council. It is right to add that in the very brief time available to counsel each of them has given me the maximum assistance that could be expected. The costs of this application are reserved.