G G Graham v Hawkes Bay Power Distributors Limited

[2002] NZCA 83

IN THE COURT OF APPEAL OF NEW ZEALAND CA38/02

BETWEEN	G G GRAHAM
Appellant

AND	HAWKES BAY POWER DISTRIBUTORS LIMITED
Respondent

Hearing:	24 April 2002
Coram:	Richardson P Keith J Blanchard J
Appearances:	Appellant in Person D J White QC for Respondent
Judgment:	24 April 2002

JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J

1. This is an application for leave to appeal out of time against a judgment of Ellis J in the High Court at Napier delivered on 7 December 2001.  The proceeding was brought by the present applicant, Mr Graham, who claimed that the predecessor of the defendant, The Hawke’s Bay Electric Power Board, acted in breach of reg30 of the Electrical Supply Regulations 1984 in the manner in which it charged him for electricity during the period 1 December 1991 to 1 April 1993 when those regulations were repealed.

2. The matter has previously been to this Court (Hawke’s Bay Power Distributors Limited v Graham, CA243/98, 9 June 1999) for determination of some questions of law.  This Court gave an interpretation of the critical portion of reg30 but was unable to answer certain of the questions because material facts had not been established.  The issues before Ellis J at the hearing last year had necessarily to be determined applying the interpretation of reg.30 given by this Court.  Essentially the High Court had to decide whether the Board had notified terms and conditions of supply for Napier City as a separate part of its area of supply and whether those conditions were reasonable.  Ellis J found, on essentially unchallenged evidence, that there had been the necessary notification.  He also found that the differential in the electricity charges was reasonable and accordingly the Board’s actions were within the proviso to reg30(1) and protected accordingly. 

3. The 28 day period for the appeal expired on 28 January 2002.  As the decision of this Court in White v New Zealand Stock Exchange [2001] 1 NZLR 683 - given a year before the decision in this case - makes clear, time ran from the date of delivery of judgment.

4. Unfortunately the applicant was relying upon McGechan on Procedure which had not been updated to refer to the decision in White.  He believed that the 28 days would run from the date of sealing of the judgment.  As it happened, the respondent sealed the judgment on 21 December 2001 but, through an oversight, failed to send a copy of the sealed judgment to Mr Graham.

5. When Mr Graham discovered that the judgment had been sealed he took steps to lodge his appeal on 20 February 2002 but was out of time.  The respondent accepts that the failure to appeal in time was unintended and occurred for the reasons given by the applicant.  It says, however, that special leave to appeal should not be granted under r5 of the Court of Appeal (Civil) Rules 1997 because in the circumstances the appeal is frivolous, vexatious, and/or without merit.  This is because what Mr Graham is really attempting to do is to have this Court reconsider the interpretation of reg.30 which it gave in the judgment of 9 June 1999.  But, the respondent says, that decision is binding as between the parties and the applicant is prevented from challenging it by the principle of estoppel per rem judicatam.  It further says that the appeal is frivolous because the amount at stake – the difference in the applicant’s electricity charges during the period in question – is only $187.92; that his proceeding was not a representative claim on behalf of other electricity consumers and that any third party claim would now be well out of time.  On his own evidence, the applicant would not be in a position to meet the costs of the respondent in the event of an unsuccessful appeal.

6. Appearing on his own behalf, Mr Graham sought, in the event that the present application is granted, that a Full Court of five Judges should sit in order to reconsider the issues of interpretation.  It was clear from his submissions that he was looking to the Court to “rectify” what he says is its earlier “flawed” judgment.  No application for re-call ever having been made, however, and there having been no appeal from that judgment, this Court would not be in a position to review the decision in a further hearing between the parties to it.  Mr White’s submission on that question must be correct.

7. As the proposed appeal could not succeed for this reason, the application for leave to appeal out of time is dismissed.

8. If any question of costs arises memoranda may be submitted.

Solicitors:

Izard Weston, Wellington