Nichols v Attorney-General - [2014] NZHC 1341

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2014-404-000139 [2014] NZHC 1341

BETWEEN
ROY SYDNEY BRUCE NICHOLS

Appellant

AND

THE ATTORNEY-GENERAL (on behalf of the Ministry of Agriculture and Forestry

– now Ministry of Primary Industries) Respondent

Hearing: 12 June 2014

Appearances:

A D Banbrook for the Appellant
K G Stephen for the Respondent

Judgment:

16 June 2014

[RESERVED] JUDGMENT OF WYLIE J

This judgment was delivered by Justice Wylie on 16 June 2014 at 1.00 pm
Pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

NICHOLS v THE ATTORNEY-GENERAL [2014] NZHC 1341 [16 June 2014]

Introduction

[1] The applicant, Mr Nichols, has applied for leave to appeal a first (partial) award (with reasons) made by an arbitrator, Mr Tómas Kennedy-Grant QC, pursuant to s 162A(5) of the Biosecurity Act 1993 (as it stood in 2011).

[2] The application for leave relates to a claim made by Mr Nichols in April 2011 for compensation for losses he alleged he sustained as a result of the exercise by the Ministry of powers open to it under the Act. In 2006, the Ministry, under ss 111 and
118 of the Biosecurity Act, uplifted nine reptiles from Mr Nichols’ property. It subsequently euthanased eight of those reptiles, and it repatriated the ninth to its country of origin. Mr Nichols claimed $882,000 by way of compensation. His claim for compensation was declined by the Ministry on the grounds that, in terms of s 162A(4) of the Biosecurity Act, any loss sustained was in relation to unauthorised goods or uncleared goods, and was therefore not eligible for compensation.

[3] Mr Nichols disputed this decision. Section 162A(5) of the Biosecurity Act provided that any dispute concerning eligibility for compensation had to be submitted to arbitration, and that the provisions of the Arbitration Act 1996 applied. At the request of Mr Nichols, Mr Kennedy-Grant was appointed as arbitrator, and his first (partial) award (with reasons) was provided to the parties on 24 October 2013.

Application for leave to appeal – was it served in a timely fashion?

[4] As noted, pursuant to the Biosecurity Act as it stood in 2011, the Arbitration

Act applied to arbitrations held pursuant to s 162A(5).

[5] Section 6 of the Arbitration Act 1996 provided at the time, and continues to provide, that if the place of arbitration is New Zealand, the provisions of Schedule 1, and those provisions of Schedule 2 (if any), which apply to the arbitration under subs (2), apply in respect of the arbitration. Section 6(2) provided, inter alia, that a provision in Schedule 2 applies to domestic arbitrations, unless the parties have agreed to exclude it.

[6] The arbitration by Mr Kennedy-Grant was a domestic arbitration and it follows that appeals against his arbitral award are governed by cl 5 in Schedule 2 to

the Arbitration Act. Moreover, although it was expressed to be a first partial award, it purported to finally decide an issue – namely who bore the burden of…

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.

Continue reading Nichols v Attorney-General

Details

AGLC: Nichols v Attorney-General [2014] NZHC 1341
Case: [2014] NZHC 1341
Decision Date: 16 June 2014

CaseChat Overview and Summary

In the High Court of New Zealand, Roy Sydney Bruce Nichols sought leave to appeal an arbitration award rendered by Mr Tómas Kennedy-Grant QC. The appeal pertained to a compensation claim that Mr Nichols filed against the Ministry of Agriculture and Forestry (now the Ministry of Primary Industries) after the Ministry seized and euthanised nine reptiles from his property under the Biosecurity Act 1993. Mr Nichols claimed $882,000 in compensation, which the Ministry refused on the basis that the reptiles were unauthorised or uncleared goods, rendering them ineligible for compensation under the Act. Mr Nichols disputed this decision and sought arbitration, which led to the award that he now sought to appeal.

The court had to determine if Mr Nichols' application for leave to appeal was served in a timely fashion, in accordance with the rules and provisions governing appeals from arbitral awards. The court noted that the application for leave was filed on 24 January 2014, the last day of the three-month period stipulated by clause 34(3) of the First Schedule to the Arbitration Act 1996. However, the originating application and accompanying memorandum were not served on the respondent until 18 February 2014, which was 25 days after the filing and beyond the timeframe required by the rules. The court found that the delay in serving the application and memorandum was significant and did not fall within the phrase “immediately after” as required by the rules. As a result, the application for leave to appeal was not properly brought, and the court dismissed it.

The court also considered an oral application for leave to file a late affidavit in relation to the service of the notice of application. The court found that the point was plainly put in issue from the outset and that it would be unfair to the respondent Ministry to allow the late filing of an affidavit at that stage. The court declined the oral application for leave to file a further affidavit, citing concerns about unnecessary delays and the efficient use of court time.

Finally, the court awarded costs to the respondent Ministry, stipulating the timeline and length for any applications and memoranda related to the costs. The court would deal with the issue of costs on the papers unless the assistance of counsel was required.

Orders