New Zealand Meat Board v The New Zealand Meat Industry

[2002] NZCA 329

IN THE COURT OF APPEAL OF NEW ZEALAND CA192/01

BETWEEN	NEW ZEALAND MEAT BOARD
First Appellant

AND	THE NEW ZEALAND MEAT INDUSTRY ASSOCIATION INCORPORATED
Second Appellant

AND	PARAMOUNT EXPORT LIMITED (IN RECEIVERSHIP AND IN LIQUIDATION)
First Respondent

AND	RONNICK COMMODITIES (NZ) LIMITED (IN RECEIVERSHIP AND IN LIQUIDATION)
Second Respondent

Coram:	Keith J McGrath J Anderson J
Counsel:	C R Carruthers QC and J E Sutton for the First Appellant W M Wilson QC and T P Cleary for the Second Appellant G J Judd QC and F M R Cooke for the Respondents
Judgment   (On the papers):	18 December 2002

JUDGMENT OF THE COURT ON APPLICATIONS FOR CONDITIONAL LEAVE TO APPEAL TO THE PRIVY COUNCIL AND TO RECALL PART OF THE JUDGMENT

1. The parties agree that two applications before the Court relating to the judgment of this Court given on 10 September 2002 should be dealt with on the papers.

2. The first is an application for conditional leave to appeal to the Privy Council.  That application, which is consented to by the respondents, is granted on the conditions that:

   (a)       within three months from 25 November 2002 (the date on which the application for leave to appeal was scheduled to be heard) each appellant enter into good and sufficient security, to the satisfaction of this Court, in the sum of $2,000;  and

   (b)       within the same three months, the necessary steps be taken for the purpose of procuring the preparation of the record and its dispatch to England.

3. The second application, which is opposed, is an application by the respondents to recall one aspect of the judgment.  This Court dismissed the appeal by the Board and the Association (the defendants in the High Court) and confirmed the High Court findings of breach of contact and causation of loss.

4. In respect of one aspect of the calculation of damages the Court said this:

   [120]    He [the High Court Judge] applied that 30% discount to Mr Lazelle’s pre-loss valuation of $3,072,000 … .  [Mr Lazelle was an expert called by the plaintiff companies, the respondents in this Court.]  That valuation was determined on the agreed cashflow basis.  That valuation is taken from Mr Lazelle’s initial brief. In his reply brief he reduced the figure to $2,637,300.  He also reduced the provisional deficiency on liquidation in his reply brief and it is that lower figure which the Judge adopted : see the next paragraph.  While nothing was made of this in written and oral submissions to us we do reserve leave to apply to the High Court in respect of this matter.

5. The issue is also mentioned at the end of the judgment in the statement of the result (para [131]).  The High Court had ordered an inquiry into the deficiency on liquidation of the plaintiff companies – that being the other matter referred to in the passage just quoted.

6. The respondent companies’ application for recall is based on the contention that the granting of such leave to the appellants was made in breach of natural justice and in circumstances where the Court was unaware of the background circumstances in relation to the matter.

7. The respondents point out that the particular matter identified in para [120] had not been raised at any stage in the proceedings in this Court.  Further, this Court did not know that the matter had been raised by the respondents, at the initiative of Mr Lazelle (their expert), with the appellants and the High Court Judge following judgment and that the appellants had made no relevant application to the Judge.  Accordingly the respondents say their right to natural justice in this Court was breached : the appellants at no stage put the particular matter in issue, including in their points on appeal, and the Court gave no notice to the parties of its intention to raise and make a ruling on the issue.

8. The appellants respond that the decision of the Court to refer the issue back to the High Court was a proper exercise of the Court’s powers under its Rules and that the application does not fall within the principles on which recall may be granted, as stated in Horowhenua County v Nash (No 2) [1968] NZLR 632, 633 and applied by this Court eg in Gazley v Attorney-General (1996) 10 PRNZ 47, 50.  In terms of those principles it could not be said that for some “very special reason justice requires the judgment to be recalled”.  Further, the Association says that the appellants in their appeals did dispute damages generally.  It is also the case that issues of damages may be pursued both in the High Court and Privy Council and that this Court made no decision on the particular issue but left it for later decision.

9. We consider that in the circumstances of this case “very special reasons” requiring this particular aspect of the judgment to be recalled are not established.  We reach that conclusion essentially for the reasons given by the appellants and particularly because questions of damages remain open in these proceedings. 

10. Accordingly, the application for recall is dismissed.  We make no order for costs on either application. 

Solicitors:
Rudd Watts & Stone, Wellington for the First Appellant
T P Cleary, Wellington for the Second Appellant
Short & Co, Auckland for the Respondents