Graham v Hawke's Bay Power Distributors Limited Ca38/02
[2002] NZCA 349
•25 September 2002
| IN THE COURT OF APPEAL OF NEW ZEALAND | CA38/02 |
| BETWEEN | GEORGE GRAHAM |
| Appellant |
| AND | HAWKE’S BAY POWER DISTRIBUTORS LTD |
| Respondent |
| Hearing: | 16 September 2002 |
| Coram: | Gault P Blanchard J Glazebrook J |
| Appearances: | Appellant in person D J White QC for Respondent |
| Judgment: | 25 September 2002 |
| JUDGMENT OF THE COURT DELIVERED BY GLAZEBROOK J |
Introduction
Mr Graham applies for recall of a judgment of this Court of 24 April 2002 dismissing his 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 matter had already been to this Court (Hawke’s Bay Power Distributors Limited v Graham, CA243/98, 9 June 1999) for determination of questions of law.
The sole ground for the proposed appeal against Ellis J’s decision that was articulated in Mr Graham’s application for leave to appeal out of time dated 25 February 2002 was that that Court of Appeal decision was flawed. In Mr Graham’s submission the flaw had prevented Ellis J from considering a major part of his submissions.
Leave to appeal out of time was declined on the basis that, although the late filing of the appeal may have been excusable, the proposed appeal could not succeed. This Court would not be in a position to review the decision in a further hearing between the parties to it, there having been no appeal from the earlier “flawed” judgment and no application for recall of that judgment.
Mr Graham submits that the Court was acting under a misapprehension as to his grounds of appeal. While he had thought that this Court would be able to revisit its earlier decision he also had other grounds of appeal that were not reliant on it so doing. The judgment should therefore be recalled to enable the Court to take this into account in determining the application for leave to appeal.
Background Facts
The proceedings arose out of the purchase of the undertaking of Bay City Power by the Hawkes Bay Electric Power Board (HBEPB) on 1 December 1991. The respondent is sued as the successor of HBEPB.
Bay City Power was the name under which the Napier City Council supplied power to consumers within part of the area of the City of Napier. Bay City Power was supplied by HBEPB and the tariffs oncharged to consumers were frequently higher than HBEPB’s tariffs. While for much of 1991 the tariffs had been almost the same as HBEPB’s, Napier City increased the Bay City Power tariffs before sale so as to increase the value of the undertaking. HBEPB continued to charge the former Bay City Power customers the higher tariffs for a period after acquisition.
Mr Graham was a former customer of Bay City Power. Put simply his argument is that, as soon as Bay City Power was acquired by HBEPB, all consumers of Bay City Power were entitled to the same tariffs as HBEPB consumers by virtue of reg 30 of the Electrical Supply Regulations 1984. He says that he was overcharged by $187.92 (and some 5000 fellow consumers were similarly overcharged to the extent of about $2m).
In determining the earlier appeal referred to in para [1] above this Court was considering the answer to three questions of law – one posed by Mr Graham and two by the company. Mr Graham’s question was whether in the relevant period, in the absence of valid authorisation by the Minister, HBEPB was required by reg 30 to supply electricity on the same terms and conditions to all consumers throughout its area receiving electricity in similar circumstances. In providing an answer to this question the Court provided an interpretation of the critical portion of reg 30. It said that, “if the company notified terms and conditions of supply for Napier City as a separate part of its area of supply and that was reasonable in the circumstances that would not be precluded by reg 30”. The Court found itself unable to make any further comment because material facts had not been established.
The Court stated that it was similarly unable to answer HBEPB’s first question, as further evidence was needed. This question asked whether the part of Napier City previously supplied by Bay City Power constituted a “part” of HBEPB’s area of supply in terms of reg 30 thereby entitling HBEPB to charge a different tariff to those customers. The second question posed by HBEPB was whether there was a valid authorisation by the Minister. This was answered in the negative by the Court.
Mr Graham contends that this Court’s judgment was flawed as it assumed that, if HBEPB notified terms and conditions for Napier City as a separate part of its area of supply and that was reasonable in the circumstances, then it was able to charge differential tariffs. He says that this overlooks the requirement that the part of Napier City previously supplied by Bay City Power must be a “part” of HBEPB’s territory in terms of reg 30. As an aside we do not think that there is anything in the judgment of the Court that suggests that this second inquiry could not be made.
Ellis J (whose judgment Mr Graham seeks to appeal) was required to decide the case in accordance with the principles set by this Court in light of the evidence put before him. He found that there had been the necessary notification, that the differential in the electricity charges was reasonable and that therefore they were protected in terms of the proviso to reg 30(1). He did not consider if the part of Napier City previously supplied by Bay City Power was a part of HBEPB’s territory in terms of reg 30.
Ellis J found that the purchase of Bay City Power had been priced on the basis of the higher tariffs charged to its consumers. Ellis J noted that all witnesses were agreed that to buy on the basis that the tariffs would be reduced immediately to the same level as HBEPB’s tariffs would be to provide a windfall for the existing customers of Bay City Power at the expense of HBEPB’s existing customers. He accepted that this would not be commercially sound and that therefore the decision to charge the differential tariffs was reasonable.
In terms of notification Ellis J accepted the evidence that Bay City Power had a schedule of its tariffs available and that this was taken over by HBEPB and held available on request. He also accepted the evidence that HBEPB had written to the Secretary after settlement informing him that the existing Bay City Power tariffs would continue to apply. Any changes to those tariffs for individual customers were notified to those customers.
Discussion
It is well established that this Court will only recall a judgment in very limited circumstances. In this case Mr Graham would have to show that, for some special reason, justice requires that the judgment refusing leave to appeal be recalled.
Mr Graham says that justice requires the judgment to be recalled so that he can pursue his appeal. He submitted it was not his fault that the appeal was filed out of time and a recall and a grant of leave would only put him in the same position as if he had filed the appeal in time. Apart from the alleged flaw in this Court’s judgment he says it was always part of his appeal that Ellis J was wrong in other respects. He submits that Ellis J was wrong to take into account commercial, financial and accounting justifications for the tariff differential. He also says that he was wrong to hold that there had been proper notification. In his submission, when Bay City Power was acquired by HBEPB, consumers were immediately entitled to a reduction in tariff to the level of other HBEPB consumers. If HBEPB then wished to charge a higher tariff to former Bay City Power consumers this had to be notified to all individual consumers as it represented a change in tariff.
Mr Graham submits that justice requires that he should be allowed to put these arguments to this Court on appeal, especially as they affect numerous other consumers. Even if those other consumers would now be out of time for commencing proceedings he says that there would be other avenues for redress if he succeeds in his appeal.
The first point is that Mr Graham did not set out his other grounds of appeal before this Court either in his application for leave to appeal out of time or in the documents put before this Court in support of that application or indeed in oral argument in support of that application. He says that he did not know that he was unable to challenge the prior decision of this Court or that he should put all his grounds before the Court in the leave application.
We consider that Mr Graham should have been alerted to the necessity to provide his other grounds of appeal by Mr White’s submissions in opposition to the application for leave to appeal out of time. Mr White’s submissions clearly set out the argument that the appeal was without merit as the only ground of appeal was that the previous Court of Appeal decision was flawed and this was not arguable as the decision was binding on the parties.
We note too that it was only in response to questions during the hearing of the application for recall that Mr Graham articulated his other grounds. None of Mr Graham’s documents filed in support of this application for recall articulated his added grounds.
As Mr Graham did not put before this Court his full grounds of appeal he cannot now complain that the judgment refusing leave did not take them into account. There must be finality in litigation and this Court will not recall a judgment so that further arguments can be advanced which should have been advanced at the original hearing. We also note that the amount at stake for Mr Graham is only $187.92. His is an individual claim with any other consumers being out of time to begin legal proceedings. It would not be proper in this context to speculate, as we were asked to do, on other possible redress for those consumers should Mr Graham succeed.
Although this would be sufficient to dispose of this application we note that in any event we consider Mr Graham’s appeal would not succeed on the grounds he is now putting forward. In terms of notification we consider that the tariffs charged to the Bay City Power consumers both before and after the purchase remained the same. We therefore do not consider that Mr Graham’s argument that there was a change requiring individual notification could succeed. We also agree, for the reasons given by Ellis J, that there had otherwise been proper notification in terms of reg 30. In addition we consider that Ellis J was entitled to hold that the commercial reasons put forward for the differential in tariff were reasonable in terms of reg 30. While Ellis J did not go on to consider whether the consumers of Bay City Power could be deemed part of the area, on the ordinary meaning of the words it would be difficult to argue that they were not.
Result and Costs
For the reasons given the application for recall is declined.
Mr White has asked that solicitor and client costs be ordered in respect of his client’s opposition both to this application and to its opposition to the original application for leave to appeal out of time. In normal circumstances a substantial costs order would have been in order. In this case, as Mr Graham is of limited means and a litigant in person who appears to have misunderstood the law, we consider a more modest award of costs is appropriate.
We therefore make an order for 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.
Mr Graham should realise that this order for costs is very lenient in the circumstances, given that this application was without merit. We warn Mr Graham that he can expect no further indulgence in relation to costs should he attempt to continue this litigation and is unsuccessful.
Solicitors:
Izard Weston, Wellington for Respondent
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