George Graham v Hawke's Bay Power Distributors

The Court of Appeal of New Zealand heard an application from George Graham, an appellant, to recall a judgment dismissing his application for leave to appeal out of time against a judgment delivered by Ellis J in the High Court at Napier on 7 December 2001. The appeal concerned Hawke’s Bay Power Distributors Ltd, the respondent. The case was heard on 16 September 2002 by Gault P, Blanchard J, and Glazebrook J, with the appellant appearing in person and D J White QC representing the respondent. The judgment was delivered on 25 September 2002 by Glazebrook J. The appeal related to the purchase of Bay City Power by Hawkes Bay Electric Power Board (HBEPB) on 1 December 1991, with the respondent now being the successor of HBEPB. Graham, a former customer of Bay City Power, argued that upon the acquisition, all consumers of Bay City Power were entitled to the same tariffs as HBEPB consumers by virtue of a regulation, and he was overcharged by $187.92. The Court of Appeal had previously determined questions of law in a different appeal but did not establish material facts. Graham contended that the earlier Court of Appeal decision was flawed, preventing Ellis J from considering a major part of his submissions. However, the Court of Appeal dismissed his application for leave to appeal out of time, finding that the proposed appeal could not succeed and that the Court was not in a position to review the decision in a further hearing between the parties.

The Court of Appeal examined whether it would recall the judgment refusing leave to appeal. Mr Graham argued that justice required the judgment to be recalled so that he could pursue his appeal, attributing the delay to factors beyond his control. He also stated that it was always part of his appeal that Ellis J was wrong in other respects. The Court of Appeal noted that Mr Graham did not set out his other grounds of appeal before the Court, either in his application for leave to appeal out of time or in the documents or oral arguments supporting that application. The Court of Appeal held that Mr Graham should have been alerted to the necessity to provide his other grounds of appeal by the respondent’s submissions in opposition to the application for leave to appeal out of time. The Court of Appeal also considered that in any event Mr Graham's appeal would not succeed on the grounds he was now putting forward. The Court of Appeal declined the application for recall and ordered costs of $500 in respect of this application, noting that the order was very lenient in the circumstances given that the application was without merit.

The Court of Appeal declined the application for recall, and ordered costs of $500 in respect of this application. There will be no order for costs in respect of the application for leave to appeal out of time. The Court warned Mr Graham that he can expect no further indulgence in relation to costs should he attempt to continue this litigation and is unsuccessful.