Comalco New Zealand Limited v Television New Zealand Limited CA283/96 [1997] NZCA 303; [1997] NZAR 145 (5 February 1997)

Last Updated: 15 January 2019

IN THE COURT OF APPEAL OF NEW ZEALAND CA 283/96

BETWEEN COMALCO NEW ZEALAND LIMITED

Appellant

AND TELEVISION NEW ZEALAND LIMITED

First Respondent

AND BROADCASTING STANDARDS AUTHORITY

_{Second Respondent}

Coram Richardson P Gault J McKay J Henry J Blanchard J

Hearing 5 February 1997

Counsel J E Hodder and P A Cashmore for Appellant

H Rennie QC and P J Ryder-Lewis for First Respondent

L J Taylor for Second Respondent

_{Judgment 5 February 1997}

_{JUDGMENT OF THE COURT DELIVERED BY HENRY J}

The appellant (Comalco) appeals “orders” made by Gallen J in the High Court at Wellington on 14 November 1996. The proceeding in question is an appeal to the High Court brought under s18 of the Broadcasting Act 1989 against a decision of the Broadcasting Standards Authority. In its decision the Authority rejected a complaint by Comalco in respect of a television broadcast by TVNZ on its Frontline programme

of 12 September 1993. The decision of the Authority has also been under challenge in tandem proceedings for judicial review. Interlocutory issues under both proceedings have already been before this Court, and were the subject of a judgment of 14 December 1995 under CA148/95.

On 14 November Gallen J gave leave to Comalco to amend its grounds of appeal under s18, and also made orders or rulings relating to the reception by the High Court of further evidence at the hearing of that appeal. The latter were apparently made in reliance on the discretionary powers of the Court under Rule 718(4) of the High Court Rules, and in issue on the present appeal are the restrictions or limitations placed by the Judge on the evidence sought to be adduced by Comalco. Rule718(4) provides:

“In every general appeal, the Court shall have full discretionary power to hear and receive further evidence on questions of fact, either by oral evidence or by affidavit.”

TVNZ cross appeals, submitting that no further evidence at all should be received by the High Court for the purposes of the hearing.

A preliminary question arises as to the jurisdiction of the Court to entertain the appeal and the cross-appeal. Section 18 of the Broadcasting Act provides for a right of appeal to the High Court against the decision of the Authority. Under subs(4), any such appeal is to be heard and determined as if the Authority’s decision was made in the exercise of its discretion.

The appeal and cross-appeal purport to be brought only under s66 of the

Judicature Act 1908, which provides:

“The Court of Appeal shall have jurisdiction and power to hear and determine appeals from any judgment, decree, or order save as hereinafter mentioned, of the High Court, subject to the provisions of

this Act and to such rules and orders for regulating the terms and conditions on which such appeals shall be allowed as may be made pursuant to this Act.”

For two separate reasons we are satisfied there is no jurisdiction.

First, s19 of the Broadcasting Act stipulates that the determination of the High Court on any appeal under s18 shall be final. Section 66 cannot possibly apply to provide a right of appeal against the High Court’s final determination of the present s18 proceeding, and counsel did not contend otherwise. The general provisions of s66 must be read in the light of the subsequent express and particular provisions of the 1989 legislation. As noted by the author of McGechan on Procedure in his commentary on s66, the legislative practice is not to graft exceptions onto s66 but to specify in the particular later legislation any limitation to a right of appeal. There are many examples of this practice. It would therefore be extraordinary, to say the least, if there were to be a right of appeal on an ancillary or interlocutory matter, yet no right of appeal against a substantive decision. The intent of s19 is clear. In our view the High Court is the Court of last resort. The rulings in question are no more than matters which are part of and incidental to the hearing and disposal of the s18 appeals itself, which could well have been made or have arisen during the course of the hearing of the substantive appeal. We have no doubt that the word “determination” in s.19 embraces and was intended to embrace orders or rulings such as the present. The fact that regulatory authority concerning the conduct of the hearing of the appeal is contained in the High Court Rules does not alter the position.

Secondly, in Murphy v Murphy [1988] NZCA 193; [1989] 1 NZLR 204 this Court held in a majority judgment that a decision on an application to the High Court under s39(4) of the Matrimonial Property Act 1976 for that Court, on an appeal from the Family Court, to rehear evidence and to receive fresh evidence was not within the meaning of the words “judgment decree or order” in s66. The Court there applied the reasoning

of its earlier decision in Re Alwinco Products Ltd [1985] 1 NZLR 710. The rationale in Murphy was that the refusal to hear evidence on the appeal was an ancillary matter, and only a step in the hearing of the substantive argument. Any right of appeal had to be found outside s66. We agree with that approach. Although as a matter of practical convenience the present rulings were made in advance of the substantive hearing, they can be afforded no greater rights than the s18 appeal itself has. It is clear that Rule 718, which is contained in Part X of the High Court Rules and deals with miscellaneous appeals to the High Court, is directed at the conduct of the hearing of such an appeal, rather than the substantive rights of the parties.

Murphy was also referred to by this Court in TNT Worldwide Express (NZ) Ltd v. Cunningham (1992) 6 PRNZ 88 in an appeal on a similar issue. Jurisdiction was there accepted, but because the right of appeal arose under s135 of the Employment Contracts Act 1991, which is expressed as being against “any decision” of the Employment Court. The authority of Murphy was not questioned.

Finally it is pertinent to note that the earlier reference of matters to this Court in the s18 appeal was pursuant to an order for transfer under s64 of the Judicature Act

1908, and did not involve the exercise of a right of appeal afforded by s66.

The appeal and cross-appeal must accordingly be dismissed. The first respondent, TVNZ, is entitled to costs which are fixed in the sum of $5,000, together with any disbursements as approved by the Registrar. There will be no order for costs in respect of the second respondent, the Broadcasting Standards Authority.

Solicitors

Chapman Tripp Sheffield Young, Wellington, for Appellant

Bartlett Thompson & Partners, Wellington,for First Respondent

Bell Gully Buddle Weir, Wellington, for Second Respondent