Winstone Pulp International Ltd v Attorney-General [1999] NZCA 164; (1999) 13 PRNZ 593 (30 August 1999)

Last Updated: 1 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA175/99

	BETWEEN	WINSTONE PULP INTERNATIONAL LIMITED
		Applicant

	AND	THE ATTORNEY-GENERAL
		Respondent

Hearing:	23 August 1999
Coram:	Richardson P Gault J Thomas J
Appearances:	M N Dunning for Applicant M T Parker for Respondent
Judgment:	30 August 1999

JUDGMENT OF THE COURT DELIVERED BY RICHARDSON P

[1] The threshold question is whether the court has jurisdiction to entertain the application by Winstone Pulp International Limited (Winstone) for special leave to appeal.
[2] On 30 April 1999 Winstone applied pursuant to cl 5 of the Second Schedule to the Arbitration Act 1996 to appeal an arbitral award assessing for licence fee review purposes the value of land held under a Crown Forestry Licence. Clause 5 relevantly provides:

(1) Notwithstanding anything in articles 5 or 34 of the First Schedule, any party may appeal to the High Court on any question of law arising out of an award -

(a) If the parties have so agreed before the making of that award; or

(b) With the consent of every other party given after the making of that award; or

(c) With the leave of the High Court.

(2) The High Court shall not grant leave under subclause (1)(c) unless it considers that, having regard to all the circumstances, the determination of the question of law concerned could substantially affect the rights of one or more of the parties.

(3) The High Court may grant leave under subclause (1)(c) on such conditions as it sees fit.

...

(5) With the leave of the High Court, any party may appeal to the Court of Appeal from any refusal of the High Court to grant leave or from any determination of the High Court under this clause.

(6) If the High Court refuses to grant leave to appeal under subclause (5), the Court of appeal may grant special leave to appeal.

[3] In its notice of appeal, Winstone contended that:

(a) on a correct interpretation of clauses 1.1.5 and 1.1.6 of the CFL, principles concerning the valuation of land established under the VLA [Valuation of Land Act 1951] also apply to a valuation of Karioi Forest pursuant to the CFL, and accordingly;

(b) the arbitrator erred in law in his finding that:

(i) principles established under the VLA are not relevant to an assessment of Land Value of Karioi Forest pursuant to the CFL; and

(ii) pre-plant costs and fertility differences including the farm effect should not be taken into account in a determination of the Land Value of Karioi Forest; and

(c) by refusing to recognise the application of the relevant principles established pursuant to the VLA in assessing the Land Value of Karioi Forest pursuant to the CFL, the Award is wrong in law.

[4] In his judgment of 14 June 1999 Williams J accepted that all Crown Forestry Licences were in identical terms so that if leave were granted the High Court decision would affect all such licences. However, he considered that in Carter Holt Harvey Forests Ltd v Attorney-General and Juken Nissho Ltd v Attorney-General (CL9/98, Auckland Registry, judgment 29 March 1999) Paterson J had decided the principal point of law in issue and noted that leave had been sought to appeal that decision to this court. Williams J concluded that subject to the possibility of Paterson J's decision being reversed on appeal, Winstone had not demonstrated that there was any question of law arising out of the award made in this case. For the reasons he gave he adjourned the application for leave to appeal the arbitral award pending determination of the Carter Holt Harvey appeal proceeding.
[5] By notice filed in the High Court on 21 June 1999 Winstone sought leave to appeal. The grounds stated in the notice related to the question of law arising from the arbitral award and ended with the ground that it was in the interests of justice that an appeal on the question of law be allowed. The application was not specifically directed to the actual result of the judgment of 14 June 1999, namely that the application for leave to appeal on a question of law from the arbitral award was adjourned.
[6] The notice of 21 June 1999 invoked both cl 5 of the Second Schedule to the Arbitration Act and s24G of the Judicature Act 1908. Section 24G provides:

(1) No appeal shall lie from an interlocutory decision of the High Court in respect of any proceeding entered on a commercial list unless leave to appeal to the Court of Appeal is given by the High Court on application made within 7 days of the decision being given or within such further time as the High Court may allow.

(2) If the High Court refuses leave to appeal from any such interlocutory decision, the Court of Appeal may grant that leave on application made to the Court of Appeal within 21 days of the refusal of leave by the High Court.

[7] In his judgment of 13 July 1999 Williams J noted that the application for leave to appeal to this court was advanced by Winstone on the basis that the High Court was in error in holding that the question of law arising from the arbitral award had already been determined in Carter Holt Harvey Forests and Juken Nissho. No issue was taken with the court's finding that the other matters referred to were essentially questions of fact. No jurisdictional issues were mentioned.
[8] Williams J dealt with and rejected the argument for leave to appeal. Following his rejection of that argument he concluded:

Accordingly the Court concludes that its adjournment of the application for leave to appeal was the appropriate course to follow in the circumstances and that, at least until the Court of Appeal's decision in Carter Holt Harvey Forests Ltd and Juken Nissho Ltd and its possible effect on these proceedings can be assessed, there is no serious question of law or fact outstanding in this matter and the application for leave to appeal against the judgment should be and is therefore declined.

[9] By application dated 16 July 1999 Winstone has sought leave to appeal to this court, again invoking cl 5 and s24G, and again contending that it is in the interests of justice that an appeal on the question of law arising from the arbitral award be allowed, and that leave to bring that appeal be granted. Mr Dunning ended his written submissions seeking for Winstone the leave of this court to appeal the 14 June decision which denied it leave to appeal the arbitrator's award.
[10] Clearly there is no jurisdiction in this court under cl 5(6) to grant leave to appeal. The High Court has not refused to grant leave. It has simply adjourned the application. Equally, the High Court lacked jurisdiction under cl 5(5) to entertain an application for leave to appeal. The High Court had not refused to grant leave from the arbitral award and it had not determined a question of law arising out of the award.
[11] Mr Dunning submitted, nevertheless, that the leave application to this court should be viewed as an application under s24G for leave to appeal against the decision of the High Court to adjourn the application to appeal the arbitral award and, it seems, for the High Court judgment of 13 July 1999 to be treated as a refusal of leave to appeal against the adjournment decision.
[12] This new submission is inconsistent with the approach taken by Winstone when seeking leave from the High Court to appeal to this court where the decision of 14 June 1999 was in its effect characterised as a decision refusing leave to appeal from the arbitral award.
[13] It is also inconsistent with the stance taken in the points on appeal and written submissions in this court reflected in the relief sought being the grant of leave to appeal the arbitral award. And given that any leave application to this court is contingent on the refusal of leave by the High Court, it would not be consistent with the scheme of the commercial list procedures which, as we have emphasised in numerous cases, are designed for expedition and finality (see for example Meates v Taylor [1992] 2 NZLR 36 and Hudson v Wylie (1994) 7 PRNZ 545) to allow such a change of stance.
[14] In any event, it is not every ruling or direction by a commercial list Judge which is an appealable decision for the purposes of s24G. That section is the relevant appeal provision. Section 66, the general provision for "appeals from any judgment, decree or order save as hereinafter mentioned of the High Court" is then expressed to be "subject to the provisions of this Act". Section 24G is the special provision governing appeals from interlocutory decisions in commercial lists. As this court observed in Hudson v Wylie at p548, it is a comprehensive provision designed as a restraint on appeals against commercial list decisions and it would be wholly inconsistent with the object and scheme of that provision to allow the general jurisdictional provisions of s66 and the rules to apply - in that case to a refusal of extension of time.
[15] Section 24G empowers the High Court to extend the time for applying for leave to this court. In Meates v Taylor at p40, this court held that in the context of s24G "refusal to allow an extension of time is not to be regarded as an interlocutory decision from which an appeal may be brought" and following further argument in Hudson v Wylie the court reached the same conclusion and held it had no jurisdiction to entertain the application.
[16] These judgments recognise that "decision" is a popular non-technical word of variable meaning and the particular meaning necessarily depends on the context in which it is used. In context, it may be employed in its broadest sense of any determination or conclusion, or in a narrow sense as confined to particular kinds of determination or determinations having particular effects. Thus, in context, "decision" has been held not to include criminal law matters (R v Chung Chuck [1930] AC 244) or a stay decision (Annheuser-Busch Inc v Carling, O'Keefe Breweries of Canada Ltd (1982) 142 DLR (3rd) 548) or an interlocutory ruling such as an order on discovery (R v Lands Tribunal, ex parte City of London Corporation [1982] 1 WLR 258) or the refusal of leave to appeal (Bland v Chief Supplementary Benefit Officer [1983] 1 WLR 263) or decisions in the course of proceedings "as to times of hearings, adjournments, ... " (Children's Aid Society of Halifax (City) v H (1989) 90 NSR (2nd) 44) or as to the admissibility of evidence (New Brunswick Telephone Co Ltd v John Maryon International Ltd (1980) 116 DLR (3d) 581). And in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321, 337, Mason CJ said: "To take an example, the refusal by a decision-maker of an application for an adjournment in the course of an administrative hearing would not constitute a reviewable decision, being a procedural matter not resolving a substantive issue and lacking the quality of finality".
[17] The context is all important. Section 24G(1) provides that no appeal shall lie "from an interlocutory decision of the High Court in respect of any proceeding entered on a commercial list" unless leave to appeal is given on timely application. There are two immediate points and one broader conclusion. First, "decision" has a different meaning in s24G from what the same word has in s24E. Unlike the position under s24E which provides that the parties to any proceeding entered on a commercial list may agree that"the decision of the court shall be final", "decision" in s24G does not refer to the substantive decision finally determining the rights of the parties. Second, s24G is an appeal provision dealing with interlocutory decisions but in a setting where procedures are designed to achieve the efficient and expeditious disposal of the commercial list cases.
[18] Broadly speaking, interlocutory rulings (to use a neutral word) fall into at least three categories: those that determine or affect the rights or liabilities which are in issue, that is the merits; those that decide the shape of the substantive proceedings; and those ancillary but important rulings on times and procedures. That classification corresponds broadly with the categories noted by Donaldson MR in Bland v Chief Supplementary Benefit Officer at p266 - decisions determining a matter in dispute; "possibly an order determining how the matter shall be determined - the ordinary interlocutory procedure order which is made in any form of legal proceedings"; and the grant or refusal of a permission "which determines nothing at all".
[19] Section 24G cannot sensibly apply to all the myriad of decisions that commercial list Judges may make. Effective case management and timetabling necessarily involve directions, rulings and other decisions as to times and procedural aspects. In exceptional cases such a decision may affect rights and liabilities. An example discussed in Kersten v Stack (1992) 6 PRNZ 300 is USA v Callahan (M489/91, Auckland Registry, judgment 27 March 1991) where Tompkins J concluded that the adjournment for six months of an application for extradition carried such consequences as to affect the rights or privileges of the applicant, at least sufficiently to give the court jurisdiction to entertain the application. In the ordinary run, however, an adjournment is simply procedural or administrative, not affecting rights or liabilities as such, and the rights or liabilities immediately in issue will remain for substantive determination. As it is put in 4 Corpus Juris Secundum para 106, generally an order granting or refusing to grant a motion for continuance, postponment, adjournment or stay is not appealable but under some statutes an appeal will lie from such orders if they affect substantial rights.
[20] The present case does not fall into an exceptional category and it follows that in context the adjournment decision in question is not within the meaning of decision in s24G. Accordingly the court has no jurisdiction to entertain the application.

Solicitors
Russell McVeagh McKenzie Bartleet & Co, Auckland, for applicant
Crown Law Office, Wellington, for respondent