FORESTRY CORPORATION OF NEW ZEALAND & ANOR v THE ATTORNEY-GENERAL [1999] NZCA 306 (13 December 1999)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca278/99

	between	FORESTRY CORPORATION OF NEW ZEALAND AND OTHERS
		Applicants

	and	the attorney-general and others
		Respondents

Hearing:	13 December 1999
Coram:	Richardson P Henry J Tipping J
Appearances:	M E Casey for Applicants M T Parker for Respondents
Judgment:	13 December 1999

judgment of the court delivered by RICHARDSON p

[1] The applicants apply to this Court for leave to appeal the judgment of the High Court delivered by Williams J in the Commercial List on 16 September 1999, leave having been refused by Salmon J in the High Court on 18 November 1999.

[2] The judgment of Williams J dealt with an application by the respondent, the Attorney-General, for a stay of proceedings so that an arbitration between these parties might proceed, and an application by the present applicants for an interim declaration that the arbitration should be stayed pending resolution of this matter.Williams J held that the proceeding should be stayed and the arbitration allowed to proceed.

[3] The applicants seek leave pursuant to s24G of the Judicature Act 1908 which 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.

[4] The preliminary issue is whether this Court has jurisdiction to grant leave.As we emphasised recently in Winstone Pulp International Limited v Attorney-General (CA 175/99, judgment 30 August 1999) it is not every ruling or direction by a commercial list Judge which is an appealable decision for the purposes of s24G.An order granting an adjournment or a stay is not generally appealable, although in exceptional circumstances the decision may affect the rights or privileges of the applicant sufficiently to give the court jurisdiction to entertain the application.This is not such a case.

[5] Mr Casey for the applicants submits that the crucial issue in this proceeding concerns the validity of the Crown's counter notice and counter proposal.Their case is that the counter notice was required to set out a counter proposal in the form of an applicable methodology by which the licence fee could be calculated and that if it did not do so (as alleged in this case) the counter notice was invalid.In such circumstances there was no issue to go to arbitration because the arbitration procedure is triggered by the giving of the counter notice.

[6] He submits that with the adducing of expert evidence directed to the point the hearing in the High Court could be completed in one day as against two weeks for the arbitration.Williams J ruled that it will be for the umpire to determine the jurisdictional question pursuant to the powers conferred by Article 16 and that while there is a serious question to be tried between the parties to this proceeding the balance of convenience between them indicates that this proceeding should be stayed and the arbitration on which the parties have embarked should be permitted to proceed.We are satisfied that there are no special features or prejudice arising from the stay so as to render the decision appealable.

[7] Further, had there been jurisdiction, we would not have been persuaded that the Judge erred in the exercise of his discretion.Leave is refused and the respondent is awarded costs in the sum of $1,500 together with any reasonable disbursements as fixed if necessary by the Registrar.

Solicitors

Kensington Swan, Auckland, for applicant

Crown Law Office, Wellington, for respondents