Body Corporate 344862 v E-Gas Limited HC Wellington CIV 2007-485-2168
[2010] NZHC 1837
•28 September 2010
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CIV-2007-485-2168
BETWEEN BODY CORPORATE 344862
First Plaintiff
ANDALAMIR COMPANY LIMITED Second Plaintiff
ANDNOVA GAS LIMITED Third Plaintiff
ANDK 2 G LIMITED Fourth Plaintiff
ANDE-GAS LIMITED First Defendant
ANDE-GAS 2000 LIMITED Second Defendant
Judgment: 28 September 2010 at 3.30 pm
JUDGMENT OF ASSOCIATE JUDGE D.I. GENDALL
This judgment was delivered by Associate Judge Gendall on 28 September 2010 at
3.30 pm under r 11.5 of the High Court Rules.
Solicitors: Izard Weston, Solicitors, PO Box 5348, Wellington
Kensington Swan, Solicitors, PO Box 10246, Wellington
BODY CORPORATE 344862 AND ORS V E-GAS LIMITED AND ANOR HC WN CIV-2007-485-2168 28
September 2010
Introduction
[1] On 31 August 2010, I delivered a judgment on certain applications brought by the third plaintiff Nova Gas Limited (“Nova”) relating to discovery and further and better particulars. As part of that judgment, I made various orders requiring the first and second defendants, E-Gas Limited and E-Gas 2000 Limited (“E-Gas”), to discover certain categories of documents. The third plaintiff, Nova now seeks clarification of particular orders made in that judgment pursuant to the “slip rule”, r
11.10 of the High Court Rules.
Application under the Slip Rule
[2] The orders in question appear at [95](b)(iv) and (v) of my judgment. They require discovery by E-Gas of invoices relevant to two issues, price increases and the charging of an “incorrect pressure factor”. It is helpful to set out the orders in full:
(b) Particular Discovery — within 20 working days of today E-Gas is to file and serve a verified supplementary list of documents stating with respect to the documents outlined in paras (b)(i) to (vii) inclusive below relevant to matters in issue whether it has or has had in its control those documents and if such documents have been but are no longer in E-Gas’ control, the best knowledge and belief of E-Gas’ officers as to when the documents ceased to be in E-Gas control and who now has control of them:
...
(iv) Copies of invoices rendered to any (current or former) E-Gas customers on dates immediately prior to and immediately following any price increases relating to such customers during the periods August 2004 to February 2007; alternatively such documents in relation to the Remaining Transferring Customers;
(v) Copies of all invoices rendered: (a) any (current or former) E-Gas Group customer for whom an incorrect pressure factor has been charged; and (b) the customers specified in the attached Schedule Two, on dates immediately prior to and following any changes in pressure factors (or, if there have been no changes in a particular customer’s pressure factor, on the most recent date for which an invoice has been rendered to that customer); alternatively such documents in relation to the Remaining Transferring Customers only ...
[3] It will be immediately apparent that the orders include an alternative formulation, limiting discovery to invoices in relation to the “Remaining Transferring Customers”. The relevant parts of the judgment, however, indicate that
no such limitation was intended. With respect to the matter of price increase invoices, I considered that the following considerations were relevant:
Category E
[26] Category E concerns price increase letters rendered to E-Gas Group customers, and invoices with respect to those customers on dates immediately prior to and following any price increases during the periods August 2004 to February 2007. In its statement of defence to E-Gas’ counterclaim, Nova alleges that E-Gas unlawfully increased its charges for supply of gas following the price increase letters sent in 2005 and 2006 to various E-Gas customers. This allegation was made in response to E-Gas’ claim that it invoices its customers for gas supply in accordance with the provisions of the E-Gas Group customer contracts.
[27] Nova submits that analysis of substantial numbers of E-Gas Group invoices will be necessary for the parties to address this issue. E-Gas argues that copies of template price increase letters rendered to E-Gas customers have already been discovered, together with a list of customers to whom “one of the price increase letters was sent”. It further submits that the invoices have either already been discovered or are otherwise irrelevant.
[28] On this, E-Gas does not appear to elaborate on its claim that the invoices in question are irrelevant. And, given the wide Peruvian Guano test of relevance, I disagree and find that the invoices may well be relevant here. An order for their discovery will follow. If they have already been discovered and, as I understand it that is disputed, that will not affect the position to any extent. As to the price increase letters sought, no order is to be made. Copies of these template letters together with a list of recipients as I understand it have already been provided.
[4] The pressure factor issues were dealt with as follows:
Category F
[29] Category F concerns all invoices rendered to any E-Gas Group customer “for whom an incorrect pressure factor has been charged” on dates immediately prior to and following any changes in pressure factors. In its statement of defence, Nova alleges overcharging by E-Gas due to use of an incorrect pressure factor. As with Category E, it claims that the invoices are necessary to address these overcharging allegations.
[30] E-Gas accepts that a simple and genuine error in metering did occur at the time which meant that some of its customers were overcharged and some undercharged. But it says that this category of documents is irrelevant to the current proceedings, as the information relating to this genuine pressure factor mistake only became known to Nova in December 2008 and to E-Gas in February 2009, but Nova’s initial allegation that E-Gas was overcharging its customers was made back in May 2007. E-Gas does not dispute that some customers were overcharged (and some undercharged) as a result of the pressure factor metering error. It submits that Nova cannot use the pressure factor information retrospectively to establish that it was justified in making the overcharging allegations to E-Gas customers. Nova submits that whether it was aware of the pressure factor issue at the time of the customer switch requests is not determinative, as the overcharging allegations are “live pleaded issues” and the documents are relevant to those issues.
[31] Documents must be discovered if they “relate to a matter in question in the proceeding”: r 8.18. Those matters are identified by reference to the pleadings: NZ Rail v Port Malborough [1993] 2 NZLR 641 (CA). Having regard to the E-Gas’ counterclaim and Nova’s statement of defence, I consider that the invoices are relevant to the overcharging allegations. An order will follow.
[5] Nova submits that it is unlikely to have been the Court’s intention to make orders in the alternative, and that it would have been apparent from the analysis of these issues in the judgment if the Court had intended to limit the scope of the orders to the Remaining Transferring Customers. Nova argues that the judgment emphasises the parties’ broad discovery obligations, that it refers in those broad terms to invoices relevant to the price increase issues and pressure factor issues respectively, and that it does not expressly or impliedly suggest that the orders should be limited to invoices involving the Remaining Transferring Customers.
[6] E-Gas opposes any amendments to the orders as made, on the basis that 11 of the available 20 working days for compliance with the orders had elapsed before any “clarification” was sought, and no reason for this delay has been provided, although Nova has in the meantime filed an application for review of a number of other aspects of the judgment. It is further submitted that there is no support for Nova’s contention that the alternative formulations were the result of a clerical error or that they do not represent the intention of the Court.
[7] E-Gas maintains that, if Nova was dissatisfied with the orders, the appropriate course would have been to include the matter in its grounds for review of the decision. It is alleged that Nova now in effect seeks to remedy a defect in its own review application. E-Gas claims that it has proceeded on the basis that the orders were made in the manner in which they were intended and that it has made substantial progress on preparing that particular discovery in reliance on the alternative nature of the orders. It is submitted that it is inappropriate for Nova to belatedly seek to broaden the parameters of the discovery required, in a manner that would have significant and onerous consequences for E-Gas.
[8] Lastly, E-Gas argues that, if the orders had been made in the form contended for by Nova, it would in all likelihood have sought a review of the orders. Given that
the time for seeking review has now expired, variation of the orders would require E- Gas to bring an application for review out of time.
My Decision
[9] Rule 11.10 of the High Court Rules provides that a Court may correct a judgment that contains a clerical mistake or an error arising from an accidental slip or omission, or that is drawn up so that it does not express what was decided and intended.
[10] In my view, application of this rule is clearly appropriate here, despite the presumption of finality of judgments. The orders as they currently stand obviously contain a drafting error. They do not make sense. In particular, I did not intend to include an alternative formulation limiting the scope of discovery to Remaining Transferring Customers. Even if the slip rule, for some reason, was not applicable here, there would still be jurisdiction to recall the judgment, which apparently has not yet been sealed.
[11] The fact that the orders were unworkable - or at least quite ambiguous - must have been apparent to E-Gas when preparing the further discovery. I do not accept E-Gas’ submission, therefore, that it would somehow be prejudiced by variation of the orders, either because it would have sought review of my decision if the alternative formulation had not been included, or because it has already prepared discovery in reliance on the alternative formulation. If E-Gas was concerned about the scope of its discovery obligations under the orders, it could have sought clarification of the orders, just as Nova has now done. In any event, E-Gas could still seek leave to review the decision out of time if it considers the amended orders to be overly burdensome.
[12] I also do not accept that there has been undue delay on the part of Nova in bringing this application. It was filed on 16 September 2010, just over two weeks after the judgment had been issued. The fact that Nova had already filed an application for review of the decision is, in my view, immaterial. The two applications deal with separate matters. E-Gas has not suggested that there is no
jurisdiction to apply the slip rule, or alternatively to recall the judgment, on the basis that the application for review has rendered me functus officio.
[13] There is authority for the proposition that jurisdiction to recall should not ordinarily be exercised once an appeal has been determined: Redcliffe Forestry Venture Ltd v Commissioner of Inland Revenue (2010) 24 NZTC 24,079 at [12]; Time v Fagalilo HC Wellington CIV-2008-485-540, 30 June 2010 at [11]. This may constitute a slight departure from the approach that seems to have been applicable previously, whereby a Court usually became functus officio once an appeal had been lodged: see Russell v Klinac HC Whangarei AP18/01, 11 December 2001 at [15]. In any event, it would seem that the slip rule would amount to an exception to the rule, given that it is applicable even after the judgment has been sealed. I proceed on this basis.
[14] On these aspects, in White v NZ Stock Exchange [2001] 1 NZLR 683 at [94], Thomas J concluded that it was “repugnant in both theory and practice that a High Court Judge should be called upon to determine an application to recall his or her judgment at a time when a notice of appeal against that judgment is extant”. In Russell v Klinac HC Whangarei AP18/01, 11 December 2001, O’Regan J stated at [15]:
It is clear that a common law rule exists that once a Court has made an order, and an appeal has been lodged against that order, the Court becomes functus officio and is therefore unable to take further action in relation to the matter.
[15] The rule could, however, be ousted by a statutory context that was incompatible with its operation. In Redcliffe Forestry Venture Ltd v Commissioner of Inland Revenue (2010) 24 NZTC 24,079, however, Venning J stated at [12]:
Related to the principle of finality, is the principle that the trial Court is functus officio once its decision has been finally recorded or overtaken by the processes in superior courts… Prima facie, it will generally not be appropriate for a trial court to recall its judgment or order a new trial, once appeals have been taken (and determined) because for the recall or order for new trial to have effect, it would have to amount to a recall of the judgments of the superior court(s).
[16] Similarly, in Time v Fagalilo HC Wellington CIV-2008-485-540, 30 June
2010, Ronald Young J considered that he had jurisdiction to consider an application for recall because the judgment had not been sealed and the appeal that had been filed had not been heard (at [11]).
Conclusion
[17] In my view, it is appropriate here to amend my 31 August 2010 in the manner sought in accordance with the slip rule.
[18] The orders at [95](b) (iv) and (v) of my judgment are varied to delete the alternative formulations “alternatively such documents in relation to the Remaining Transferring Customers” and “alternatively such documents in relation to the Remaining Transferring Customers only”.
[19] To ensure that E-Gas is not prejudiced by amendment of the orders, I now make a further order allowing E-Gas a further fifteen (15) working days from the date of this judgment to comply with its discovery obligations under [95](b)(iv) and (v) of my 31 August 2010 judgment as amended.
‘Associate Judge D.I. Gendall’
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