Link Technology 2000 Ltd v Attorney-General Ca191/03 - [2005] NZCA 27

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA191/03
BETWEENLINK TECHNOLOGY 2000 LIMITED

First Appellant
ANDHARRY MEMELINK

Second Appellant

ANDTHE ATTORNEY-GENERAL (NEW ZEALAND CUSTOMS SERVICE)

Respondent

Hearing:5 July 2004
Court:Anderson P, McGrath and O’Regan JJ
Counsel:T Ellis and A Shaw for First and Second Appellants

I C Carter and A S Butler for Respondent

Judgment:3 March 2005

JUDGMENT OF THE COURT

A The appeal is dismissed.
B The respondent is awarded costs of $3,000 together with reasonable disbursements to be agreed by counsel or, if not agreed, to be fixed by the Registrar.
REASONS
(Given by O’Regan J)
Table of Contents

Para No

Introduction   [1]
Background  [2]
The summary judgment application  [11]
Relevant rules  [13]
The High Court decision  [18]
Issues  [25]
Compensation under the Bill of Rights  [27]
Submissions  [28]
Discussion  [34]
Issue estoppel/res judicata
Submissions  [40]
Discussion  [47]
Judgment in rem
           Submissions  [56]
           Discussion  [60]
Abuse of process  [61]
Walker v Wilson  [63]
Attorney-General v Beggs  [68]
Discussion  [83]
Other matters  [87]
Costs in the High Court  [91]
           Submissions  [92]
Discussion  [95]
Costs in this Court  [97]
Introduction
[1]       This is an appeal against a decision of Hammond J in the High Court (reported as Link Technology 2000 Limited v Attorney General (2003) 7 HRNZ 166). In that decision, Hammond J declined an application made by the appellants that the Court should enter summary judgment for the appellants on the issue of liability, and direct a trial on the issue of the amount of damages. Hammond J awarded costs against the appellants. The appellants now appeal against the refusal to order the entry of summary judgment on the issue of liability and also appeal against the award of costs made against them.
Background
[2]       The history of this case stretches back to 1994. At that time the first appellant (“Link”) was carrying on business as an importer in Petone. The second appellant, Mr Memelink, was the principal shareholder and managing director of Link (he is now the only shareholder). Mr Memelink owned the business premises occupied by Link.
[3]       In 1994 the Customs Department (now New Zealand Customs Service) began an investigation of Link. This investigation focused on the importation of router bits by Link. The issue was whether these bits were made of tungsten carbide (in which case they would be dutiable) or of carbide only (in which case they would be duty free).
[4] It was decided to seek permission to search Link’s premises. A Customs officer who held a warrant under s 216 of the Customs Act 1966 (the legislation in force at the relevant time) sought the permission of the Collector of Customs to apply to the District Court to sanction the use of the warrant to search Link’s premises. Permission was granted and a Deputy Registrar of the District Court sanctioned the use of the warrant. Four Customs officers conducted a daylight search of Link’s business premises in reliance on the warrant.…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] NZCA 27
Decision Date: 3 March 2005

CaseChat Overview and Summary

Link Technology 2000 Limited and Harry Memelink, its managing director, appealed against a decision of the High Court that refused an application for summary judgment on the issue of liability in their civil proceedings against the Attorney-General for breach of the New Zealand Bill of Rights Act 1990, trespass to goods, trespass to land and misfeasance in public office. The proceedings arose from a search of Link's business premises by Customs officers in 1994, which was found to be unlawful and unreasonable in a criminal prosecution against Memelink. The appellants argued that, assuming the District Court finding of a breach of the Bill of Rights could not be challenged, the issue of liability for that breach was resolved and only the amount of compensation needed to be determined. They also argued that it would be an abuse of process for the respondent to contend that the search was lawful and reasonable. The Court of Appeal held that the entry of summary judgment was not appropriate in this case. A finding of a breach of the Bill of Rights does not, of itself, establish liability on the part of the respondent to pay monetary compensation, which is discretionary. There were also no issue estoppel or res judicata because the issues in the present proceedings were not identical to those before Judge Willy. The Court of Appeal also held that it would not be an abuse of process for the respondent to contest the finding that the search was unlawful and unreasonable. It was necessary for the Court to conduct a review of all the circumstances surrounding the sanctioning of the warrant and the conduct of the search in order to determine the Bill of Rights compensation issue. The Court of Appeal dismissed the appeal and awarded costs of $3,000 together with reasonable disbursements to the respondent.

Orders