ESR Group (NZ) Limited v Burden

[2017] NZCA 292

IN THE COURT OF APPEAL OF NEW ZEALAND

CA387/2016
[2017] NZCA 292

BETWEEN	ESR GROUP (NZ) LIMITED Appellant
AND	IAN JAMES BURDEN First Respondent
AND	PLANTATION GROWN TIMBERS (INTERNATIONAL) LIMITED Second Respondent
AND	PLANTATION GROWN TIMBERS (VIETNAM) LIMITED Third Respondent

Court:

Harrison and Brown JJ

Counsel:

J G Miles QC and A J Pietras for Appellant
A H Brown QC and JRE Wach for Respondents

Judgment:

(On the papers)

10 July 2017 at 10 am

JUDGMENT OF THE COURT

AThe application to recall the judgment of this Court is declined.

BThe appellant is ordered to pay the respondent costs as for a standard application to recall on a band A basis and usual disbursements.

____________________________________________________________________

REASONS OF THE COURT

(Given by Harrison J)

1. On 26 May 2017 this Court issued a judgment allowing ESR’s appeal and Mr Burden’s cross-appeal against a judgment of the High Court, setting aside the judgment and amending it in certain respects ordering costs to lie where they fell.[1]  The litigation arose from Mr Burden’s claim that ESR had infringed his copyright in furniture imported from Vietnam. 

   [1]ESR Group (NZ) Ltd v Burden [2017] NZCA 217 (Randerson, Harrison and Brown JJ). Randerson J has since retired so we sit as two.

2. On 6 June 2017 ESR applied to recall the Court’s judgment.  Mr Burden has filed a notice of opposition. 

3. ESR’s application is brought on the ground that when delivering its judgment this Court apparently overlooked or misunderstood two of its key submissions.  The first ground was that the judgment wrongly suggested that ESR did not dispute Mr Burden’s contention that the material time at which knowledge of an infringement of copyright was to be assessed was at the point of importation of the goods into New Zealand.[2]  ESR’s position in its written synopsis was that proof of knowledge of the infringement or reason to believe in its existence was to be assessed at the time the container ships carrying the infringing goods left Vietnam for New Zealand, as once on board they could not be returned.  If the Court had adopted this approach, then ESR submits it would have found that the company did not infringe Mr Burden’s copyright for shipments that arrived in August and September 2014 given the time it takes a container ship to travel a long distance.  All the evidence suggested that ESR was unaware of the status of the furniture when the containers left port in Vietnam.

   [2]At [58].

4. The second ground is that the Court failed to address ESR’s submission that the appropriate course for Mr Burden when dealing with the containers would have been to send them back to their Vietnamese supplier pursuant to s 142(1)(c) of the Copyright Act 1994. 

5. We agree with Mr Brown QC that there is no “very special reason” which in the interests of justice demands that the substantive judgment be recalled.[3]  There would be no point in recalling the judgment.  As our judgment recites, the law is clear in requiring that knowledge be established at the time of importation of the goods; that is, into New Zealand.[4]  Indeed, Mr Miles QC’s submission notes tendered at the hearing on 2 May 2017 appeared to accept that proposition and his argument before us proceeded without reference to the export-oriented argument now propounded.  Also, a ruling on whether the goods could be returned to Vietnam without possession being taken was unnecessary given that ESR had not appealed the High Court finding that the goods detained by Customs were infringing copies.[5]  In the result Customs was not free to release the goods.  We note also that the point was not raised in ESR’s amended notice of appeal or statement of issues. 

   [3]Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633.

   [4]ESR Group (NZ) Ltd v Burden, above n 1, at [19(b)].

   [5]At [17]–[20].

6. This application is misconceived.  Both grounds on which it relies occupied little if any time during oral argument.  The question is always whether the Court was correct in its decision.[6]  The issues raised by ESR are of no material consequence to this Court’s judgment and, if they were, ESR was entitled to pursue its right to apply for leave to appeal to the Supreme Court. 

   [6]University of Canterbury v Insurance Council of New Zealand Inc [2013] NZCA 609, (2013) 18 ANZ Insurance Cases 62-001.

7. The application is declined.

8. ESR is ordered to pay Mr Burden costs as for a standard application to recall on a band A basis together with usual disbursements.

Solicitors:
A J Pietras & Co Ltd, Lower Hutt for Appellant
James & Wells Solicitors, Auckland for Respondents