WINSTONE PULP INTERNATIONAL LIMITED & ANOR v THE ATTORNEY GENERAL [1999] NZCA 305 (13 December 1999)

IN THE court of appeal of new zealand

ca276/99

	between	winstone pulp international limited
		Applicant

	and	the attorney general
		Respondent

Hearing:	13 December 1999
Coram:	Richardson P Henry J Tipping J
Appearances:	M N Dunning for Applicant M T Parker for Respondent
Judgment:	13 December 1999

judgment of the court delivered by henry j

[1] Winstone Pulp International Limited seeks special leave to appeal a decision of the High Court dated 2 November 1999, refusing Winstone's application for leave to appeal against an arbitral award delivered on 4 February 1999, leave to appeal that decision to this Court having been refused by the High Court on 17 November 1999.

Background

[2] The background to this matter is fully set out in Winstone Pulp International Ltd v Attorney General (CA175/99, judgment 30 August 1999). It can be summarised for present purposes.

[3] On 30 April 1999 Winstone applied pursuant to clause 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.

[4] 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.

[5] In a judgment delivered on 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.The Judge concluded at p.16 of his judgment:

... subject to the possibility that Paterson J's decision in [in Carter Holt Harvey Forests Ltd v AG, Juken Nissho Ltd v AG (CL 9/98 and CL 17/98, Auckland High Court, judgment 29 March 1999)] may be reversed on appeal, the Court's view is that it is left in no real doubt that the arbitrator's award was in accordance with the law as it currently stands and that the other issues raised by Winstone Pulp are matters of fact alone.

[6] Having reached that decision the Judge determined that the application for leave to appeal the arbitrator's decision should be adjourned to await the fate of Carter Holt Harvey v AG, Juken Nissho v AG.

[7] 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.It was dismissed on 13 July 1999.

[8] In its judgment of 30 August 1999 this Court held that it had no jurisdiction to grant leave to appeal against an order made in the High Court adjourning an application for leave to appeal.

[9] Following delivery of that judgment, Winstone sought an order from the High Court rescinding its adjournment of Winstone's application for leave to appeal and dismissing the same.Counsel for the Attorney General did not object.

[10] On 2 November 1999 the High Court rescinded its 14 June adjournment of Winstone's application for leave to appeal against the arbitral award and, for the reasons set out in the decision of 14 June, dismissed the application.On 17 November 1999 the High Court refused leave to appeal that decision to this Court.

Leave to appeal

[11] Much of the argument presented to the High Court, and again to this Court, centred on whether the claimed errors of law have been determined by the High Court in the Carter Holt Harvey case.The first issue however is whether it was appropriate to decline leave to appeal under article 5 on the ground that the question of law has been determined by a High Court judgment in a proceeding before different parties, that judgment being under appeal to, but as yet unheard by, this Court.We consider that was an erroneous approach to an exercise of the Article 5 discretion.

[12] First, the refusal of leave to appeal effectively deprived Winstone of any ability to challenge the award regardless of the outcome of the Carter Holt Harvey case.The award will continue to bind Winstone.Secondly, for a number of reasons the Carter Holt Harvey appeal may not proceed to a final judgment of this Court determining the identified question of law.In that event Winstone will have been deprived of the opportunity provided by Article 5 to test the validity of the High Court judgment.This no doubt influenced Williams J in initially adjourning the application before him. Thirdly, even assuming a decision of this Court does eventuate, there is no reason apparent at this stage why it would necessarily be inappropriate for Winstone to seek to re-argue an issue or issues, in particular for the purpose of preserving possible rights of further appeal.

[13] Williams J has held that the pre-requisite of Article 5 - that determination of the questions of law could substantially affect the rights of one or more of the parties - has been met.In the course of his submissions Mr Parker contended that the issues were in substance factual, and did not constitute a question or questions of law appropriate to the grant of leave. We are satisfied that the Judge's conclusion in this respect was correct, and that the application sufficiently identified a relevant question of law as discussed in the judgment of 13 July 1999, and set out in paragraph 20(a) of Winstone's Notice of Appeal dated April 1999.

[14] For the above reasons we are satisfied that leave to appeal to the High Court should have been granted.It is unnecessary for us to decide whether the question of law is identical to or differ from those at issue in the Carter Holt Harvey appeal.Accordingly special leave to appeal to this Court is granted, the appeal is allowed and Winstone is granted leave to appeal to the High Court.As successful applicant, Winstone is entitled to costs in the sum of $1500 together with disbursements including the reasonable travelling and accommodation expenses of counsel, to be approved by the Registrar if necessary.

Solicitors

Russell McVeagh McKenzie Bartleet & Co, Auckland, for Applicant

Crown Law Office, Wellington, for Respondent