Exide Technologies Limited v Attorney-General HC Wellington CIV-2011-485-1549

[2011] NZHC 1141

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CIV-2011-485-1549

UNDER  the Judicature Amendment Act 1972

BETWEEN  EXIDE TECHNOLOGIES LIMITED Plaintiff

ANDTHE ATTORNEY-GENERAL Defendant

Hearing:         19 September 2011

Counsel:         M Chen and S D Barker for Plaintiff

V Casey and C Owen for Defendant

Judgment:      20 September 2011

JUDGMENT OF MILLER J

[1]      Exide  moves  for  a  stay  of  my  judgment  of  16  September,  in  which  I discharged an interim declaration to the effect that the MED ought not grant further export permits and dismissed Exide’s application for judicial review.

[2]      Under r 12 of the Court of Appeal (Civil) Rules 2005 I may order a stay or grant any interim relief pending appeal.   It is necessary to balance the competing rights of the successful defendant against preservation of the appellant’s position in the event of the appeal succeeding.

[3]      I accept that the appeal will not be rendered nugatory if interim relief is denied.   The issue for practical purposes affects two of the four current pending export  permit  applications,  because  it  is  only those  two  applications  that  MED proposes to grant in the near future.  The question of principle would remain relevant even if those applications were granted.  The proposition that it might be rendered

nugatory depends on the evidence that Exide’s plant will close, but it seems to me

EXIDE TECHNOLOGIES LIMITED V THE ATTORNEY-GENERAL HC WN CIV-2011-485-1549 20

September 2011

that Exide has an incentive to keep the plant working pending appeal.     It is noteworthy that Exide never sought interim relief in relation to the five current export permits under which ULABs are being exported at present.

[4]      That said, I accept that there would be significant financial implications for Exide if interim relief were not granted.  The two pending applications, one of which is a renewal, would together allow the export of some 12,000 tonnes of ULABs.  If the appeal were allowed, it is materially less likely that those export permits would be granted.  It appears that substantial quantities of ULABs would be exported in the meantime were the permit applications granted, as is very likely unless MED is restrained.   There are indications that the exporters concerned are ready to export significant quantities more or less at once.

[5]      As  Ms  Casey  conceded,  the  defendant  is  not  directly  affected  in  any economic sense, but I accept that the applicants concerned are.  They have evidently acted in  the  expectation  that  MED  would  continue its  laissez-faire  approach  to permits.  There is evidence about one of the applicants before the Court, from which it appears that a contract was entered to supply ULABs to a plant in the Philippines. The contract was conditional on the approval of the competent authority in that country, but not that of MED.   Under that contract the third party concerned is obliged to supply a substantial quantity of ULABs by 28 June next and is at risk of having the contract cancelled by the Philippines buyer.  There appears to be some exposure to suppliers in New Zealand, and other costs such as insurance have been incurred.    I  accept  that  as  time  goes  on  the  applicants’  ability  to  meet  their obligations must be placed at risk.

[6]      Ms Casey emphasised that the urgency arises here because of the risk that the Exide plant will close.   She noted that Exide has been challenging export permit decisions  since  2008,  and  submitted  that  it  might  have  brought  the  application earlier.   Whenever the application was brought, however, it would have had an impact upon any pending applicants for permits.   Indeed, it is arguable that the applicants ought to have appreciated for some time now that MED’s policy might have to be reviewed in light of Australia’s change of position.

[7]      Ms Chen was unable to say when the appeal might be heard in the Court of Appeal.   It seems to me that urgency is justified.  Against the possibility that that Court may not be able to hear the appeal urgently, however, I made an interim declaration at the hearing that MED ought not grant any further export permits pending  further  order  of  the  Court  of  Appeal.    That  will  allow  that  court  to determine, if it is unable to hear the appeal urgently, whether interim relief ought to continue.

[8]      I record that the affidavit of 2 September 2011 and a letter handed up by Ms Casey  at  today’s  hearing,  dated  19  September  2011  are  subject  to  the confidentiality orders made in terms of counsel’s memorandum of 6 September

2011.  Those documents may not be released to the parties or searched.

Miller J

Solicitors:

Chen Palmer, Public Law Specialists, Wellington for Plaintiff

Crown Law, Wellington for Defendant