Hong v Wasan International Co Limited CA132/01 [2001] NZCA 395 (24 July 2001)

Last Updated: 11 December 2018

COURT OF APPEAL OF NEW ZEALAND CA132/01



BETWEEN YOON CHEOL HONG

Intended Appellant

AND WASAN INTERNATIONAL CO LIMITED

First intended Respondent

AND EDWARD KANG

Second intended Respondent


Hearing: 16 July 2001

Coram: Keith J Blanchard J McGrath J

Appearances: Intended appellant in person
R J Connell for intended respondents
Judgment: 16 July 2001 Reasons and
Judgment (No. 2): 24 July 2001

REASONS FOR JUDGMENT AND JUDGMENT (NO. 2) ON COSTS DELIVERED BY KEITH J

[1] At the end of the hearing we dismissed the application which Mr Hong had made for special leave to appeal under s144(3) of the Summary Proceedings Act 1957. We reserved the question of costs. We now give our reasons for refusing leave and deal with costs.

[2] Mr Hong filed informations under the Summary Proceedings Act against Wasan International Co Ltd and Edward Kang for alleged breaches of s13(e) of the Fair Trading Act 1986. The informations were based on claims made
by the defendants in their advertising that they had “a 99% success rate over the past few years” relating to various immigration applications. At the end of the case for the informant, the District Court Judge accepted the defence application to dismiss the informations on the basis that there was no case to answer. Her principal reason was that the informant had not been “able to produce any reliable evidence pinpointing an accurate percentage rate of success during any particular time”. Further, he had limited his investigation to purported Korean clients of the defendants. The informant had “endeavoured to pinpoint the accurate percentage rate by calling” an officer of the Immigration Service, but the Judge rejected the informant’s attempts to introduce various documents, through that officer, as business records under the Evidence Amendment Act (No. 2) 1980.

[3] Mr Hong then applied to the District Court Judge to state a case on a question of law under s107 of the Summary Proceedings Act. The two proposed questions were whether the documents were wrongly held inadmissible and whether there was a prima facie case to answer without those documents. The first question, the Judge ruled, was excluded by s108 under which no determination can be appealed against by reason only of improper admission or rejection of evidence. The second question was too imprecise and general to constitute a proper question of law.

[4] The informant then purported to appeal to the High Court against that refusal. At this stage a jurisdictional issue arises. The only possibly relevant appeal provision is s144 but it is limited to appeals against the determination of the High Court on any case actually stated for the opinion of that Court under s107 or against any determination of that Court on a question of law arising in any general appeal. It follows that s144 is not applicable in the current situation. Rather, the informant’s remedy was to apply under s109(2) under which the applicant for the case stated may apply to the High Court for an order requiring the District Court Judge who had refused to state a case to do so. That choice of the wrong method of challenge may be of no consequence at the High Court level given the nature of the inquiry by the High Court
Judge. But, as will appear, it does have consequences for access to this Court.

[5] Priestley J in the High Court rejected the challenge to the District Court Judge’s refusal to decline to state a case. The defendants had also appealed against the level of the costs orders made in their favour by the District Court Judge. While Priestley J would have been inclined to make a larger order had he been the trial judge, he declined to interfere with the awards. The informant’s cross appeal in respect of costs was dismissed or declined out of time “as the case may be”. The informant also criticised defence counsel for unprofessional conduct based on counsel’s cross-examination of the informant and on his submissions. Those complaints were rejected.

[6] Mr Hong then sought leave from the High Court to appeal to this Court under s144(2). Paterson J rejected the application. Mr Hong now applies to this Court for special leave to appeal under s144(3). As already indicated, those provisions do not extend to the current situation. They are limited in the ways indicated. Accordingly, this Court has no power to grant leave in this case. We might note, as well, that there is no apparent power to challenge a decision of the High Court given under s109(2) confirming or indeed overriding the refusal to state a case.

[7] While we indicated to Mr Hong in the course of the hearing that we did not have jurisdiction, we did go on to consider the substance of his application. Before Paterson J he had alleged that four questions of law arose out of Priestley J’s decision. Before us, he no longer pursued two questions relating to evidence. He again focused on whether he had established a prima facie case and whether defence counsel’s behaviour amounted to a breach of his duty as an officer of the court.

[8] Were s144(3) to be applicable, this Court may grant leave if in its opinion the question of law involved in the appeal is one by which of reason of its general or public importance or for any other reason ought to be submitted to
it for decision. The statutory requirements for the grant of leave to appeal are not to be diluted; eg R v Slater [1997] 1 NZLR 211.

[9] Paterson J agreed with the District Court Judge that the question framed by Mr Hong, we assume about the prima facie case, was too imprecise and too general to constitute a proper question of law. Mr Hong did not, before us, give that question any greater definition as a matter of law. His basic contention was that the District Court Judge’s factual assessment was in error. He is plainly convinced that the consumer protection purpose of the Fair Trading Act has been violated by the defendants’ advertising. (He mentioned that the Commerce Commission had indicated to him that it would not be able to take up his concerns for about a year and that he had not used the procedures which are available through the advertising standards bodies.) But his conviction does not help him identify a question of law which would have qualified under s144.

[10] So far as the attack on the conduct of counsel is concerned, Paterson J records Priestley J’s rejection of the criticism and goes on “There is no question of law involved in this matter. It is a factual matter on which the Judge has made a finding.” We agree. The relevant principles about the duty of counsel are not in doubt in this case. There can be no basis for upsetting the factual findings made by Priestley J. This ground would also not qualify under s144.

[11] It was for the above reasons that the Court dismissed the application for leave to appeal.

[12] Mr Connell sought costs in respect of the proceedings in this Court. We make an order in favour of the intended respondents of $2,000 plus reasonable disbursements including the travel and accommodation expenses of counsel, to be fixed by the Registrar if the parties cannot agree.

Solicitors:

Connell & Connell, Auckland for the intended Respondents.