Burden v ESR Group (NZ) Limited - [2020] NZHC 2745

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2018-404-002775 CIV-2014-404-002456

[2019] NZHC 2745

UNDER THE Copyright Act 1994 and Fair Trading Act 1986

IN THE MATTER OF

Infringement of copyright and breach of the Fair Trading Act 1986

BETWEEN

IAN JAMES BURDEN

First Plaintiff

PGT-RECLAIMED (INTERNATIONAL) LIMITED

Second Plaintiff

PLANTATION GROWN TIMBERS (VIETNAM) LIMITED

Third Plaintiff

AND

ESR GROUP (NZ) LIMITED

First Defendant

ELISA NORAH MCLENNAN

Second Defendant

Hearing: 25 October 2019

Appearances:

A H Brown QC and J R Wach for Plaintiffs J Miles QC and A Pietras for Defendants

Judgment:

29 October 2019

JUDGMENT OF VENNING J

On applications for leave to appeal

This judgment was delivered by me on 29 October 2019 at 11.30 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………
Solicitors: James & Wells, Auckland
AJ Pietras & Co, Lower Hutt in 2456

Counsel: A Brown QC, Auckland
J Miles QC, Auckland in 2456

BURDEN v ESR GROUP (NZ) LIMITED [2019] NZHC 2745 [29 October 2019]

Introduction

[1] In a judgment delivered on 3 July 2019 the Court declined the application by the plaintiffs in CIV-2014-404-2456 (the 2014 proceedings) for leave to amend the third amended statement of claim in those proceedings and also declined the application by the defendants in CIV-2018-404-2775 (the 2018 proceedings) to strike out the plaintiffs’ claim against them in those proceedings.1

[2] The unsuccessful applicants in each case now seek leave to appeal to the Court of Appeal.

[3] The relevant background facts are set out in the substantive judgment. It is unnecessary to repeat them.

The 2014 proceedings

[4] Although the application for leave in the 2014 proceedings is said to be advanced on a contingent basis and will only be pursued if the defendants’ application for leave to appeal in the 2018 proceedings is granted, it is convenient to deal with that application first as there is a short jurisdictional answer to it.

[5] While s 56(3) of the Senior Courts Act 2016 (SCA) provides leave is required to appeal to the Court of Appeal on any interlocutory decision or order, s 186 also confirms that transitional provisions apply. Schedule 5 and particularly cl 10 of that schedule apply. Clause 10 provides:

10 Proceedings, etc, continue under relevant Act

(1)All proceedings pending or in progress in a court operating under the relevant Act immediately before the commencement of this clause may be continued, completed, and enforced only under the relevant Act (including the relevant rules of court) as if that Act had not been repealed by this Act.

(2)All jurisdictions, offices, appointments, Orders in Council, orders, warrants, rules, regulations, seals, forms, books, records, instruments, and generally all acts of authority that originated under the relevant Act or another enactment continued or repealed by this Act, and that are subsisting or in force on the commencement of this clause, have

1 Burden v ESR Group (NZ) Ltd [2019] NZHC 1546.

full effect…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] NZHC 2745
Decision Date: 29 October 2019

CaseChat Overview and Summary

The High Court of New Zealand, Auckland Registry, presided over a case involving multiple plaintiffs and defendants in proceedings that raised issues of copyright infringement and breaches of the Fair Trading Act 1986. The plaintiffs, Ian James Burden, PGT-Reclaimed (International) Limited, and Plantation Grown Timbers (Vietnam) Limited, brought claims against ESR Group (NZ) Limited and Elisa Norah McLennan. The primary dispute centred around allegations of copyright infringement and breaches of fair trading laws, with the plaintiffs asserting their rights against the defendants for actions dating back to 2013. The defendants sought to have the plaintiffs' claims struck out, while the plaintiffs applied for leave to amend their claims. The court's task was to determine whether the plaintiffs could proceed with their amended claims and whether the defendants' claims for a strike-out should be granted.

The legal issues before the court involved interpreting the principles of abuse of process in the context of copyright law and the Fair Trading Act. Specifically, the court had to decide if the plaintiffs' decision to pursue secondary infringement claims rather than primary infringement claims constituted an abuse of process. Additionally, the court had to assess whether the plaintiffs' right to access the court outweighed the defendants' right to have their claims considered on their merits. The court also needed to consider the transitional provisions under the Senior Courts Act 2016 and the applicability of the Judicature Act 1908 in determining the defendants' right to appeal.

The court reasoned that the principles of abuse of process in copyright law, as articulated in Henderson v Henderson, required a nuanced approach. The court noted that while the plaintiffs had their right to access the court, they had failed to pursue a primary infringement claim when they had the opportunity. However, the court found that the plaintiffs' focus on the ownership of the copyright and secondary infringement was sufficient to warrant their claims proceeding. The court also considered that the possible delay caused by an appeal did not significantly impact the proceedings, given the long period since the alleged infringements began. The court concluded that the principles of justice supported granting leave to the defendants to appeal, considering the potential impact on the proceedings and the importance of the issues at stake.

In conclusion, the court granted leave to the defendants in the 2018 proceedings to appeal the decision declining their application to strike out the plaintiffs' claims. The court found that the possible errors in the application of the "could and should" test and the broader principles of access to justice warranted an appeal. The court also noted that the plaintiffs' right to appeal without leave under transitional provisions did not affect the defendants' right to appeal on the grounds presented.

Orders