Peterson v Lucas

[2014] NZCA 6

IN THE COURT OF APPEAL OF NEW ZEALAND

CA40/2010
[2014] NZCA 6

BETWEEN	CARL JAMES PETERSON Appellant
AND	REX CAMERON LUCAS First Respondent
G W LUCAS & SONS PTY LTD Second Respondent

CA651/2011
AND BETWEEN	CARL JAMES PETERSON Appellant
AND	LUCAS MILL PTY LTD First Respondent
REX CAMERON LUCAS Second Respondent
WARREN GEOFFREY LUCAS Third Respondent
GEOFFREY WILFRED LUCAS Fourth Respondent
DOLORES VIVIENNE LUCAS Fifth Respondent

CA766/2012
AND BETWEEN	CARL JAMES PETERSON First Appellant
PETERSON PORTABLE SAWING SYSTEMS LTD (IN LIQUIDATION) Second Appellant
AND	REX CAMERON LUCAS First Respondent
G W LUCAS & SONS PTY LTD (NOW LUCAS MILL) Second Respondent

CA767/2012
AND BETWEEN	CARL JAMES PETERSON Appellant
AND	LUCAS MILL PTY LTD First Respondent
REX CAMERON LUCAS Second Respondent

CA768/2012
AND BETWEEN	CARL JAMES PETERSON First Applicant
PETERSON PORTABLE SAWING SYSTEMS LTD (IN LIQUIDATION) Second Applicant
AND	REX CAMERON LUCAS First Respondent
G W LUCAS & SONS PTY LTD (NOW LUCAS MILL) Second Respondent

Court:

O’Regan P, Ellen France and Wild JJ

Counsel:

C J Peterson in person
T J Walker and J C Dickson for Respondents

Judgment:

(On the papers)

11 February 2014 at 10.30 am

JUDGMENT OF THE COURT

AThe appeals in CA40/2010, CA651/2011, CA766/2012 and CA767/2012 are struck out.

BThe appellants must pay the respondents the sum of $398 by way of costs in relation to each of CA766/2012 and CA767/2012.

CThe further application for recall of the judgment of 30 September 2013 in CA768/2012 is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Ellen France J)

Introduction

1. In a judgment delivered on 11 December 2013,[1] we dismissed applications by Mr Peterson for a recall and stay of our judgment delivered on 30 September 2013[2] declining to grant him special leave to appeal from a judgment of Gilbert J.[3]

   [1]Peterson v Lucas [2013] NZCA 641.

   [2]Peterson v Lucas [2013] NZCA 453. Both judgments of this Court relate to CA768/2012.

   [3]Peterson v Lucas Mill Pty Ltd [2012] NZHC 2398.

2. We invited submissions from the parties as to various directions sought by the respondents in relation to the remaining appeals filed by the Peterson interests.  This judgment deals with those matters.

Strike-out of the remaining appeals

1. The Lucas parties seek an order striking out the remaining applications, CA40/2010, CA651/2011, CA766/2012 and CA767/2012, and costs in relation to CA766/2012 and CA767/2012.  The strike-out application reflects the position taken by Arnold J in a minute of 21 June 2013 where his Honour said:[4]

   [5]       As I see the position, if Mr Peterson is unable to persuade this Court that it should grant special leave to appeal in CA768/2012, Gilbert J’s judgment will stand and the result will be that all issues relating to the underlying dispute will have been settled.  The effect of this will be that the appeals in CA40/2010, CA651/2011, CA766/2012 and CA767/2012 will fall within the ambit of the settlement agreement and must be discontinued or struck out.

   [4]Peterson v Lucas CA40/2010, 21 June 2013.

2. We asked Mr Peterson to confirm, or otherwise, that the appeals in CA40/2010, CA651/2011, CA766/2012 and CA767/2012 are abandoned.  If that was not Mr Peterson’s position, Mr Peterson was asked to provide submissions setting out why these appeals should not be struck out.  We indicated we would then deal with that matter on the papers.

3. Mr Peterson has filed a memorandum in response but does not deal with this issue.

4. It is plain that these appeals all come within the scope of the settlement agreement entered into between the two sets of interests which was the subject of Gilbert J’s judgment.  The effect of our judgment declining special leave to appeal from the judgment of Gilbert J is that the settlement agreement stands.  Strike‑out of these remaining appeals is accordingly appropriate and we make an order to that effect.

5. The respondents sought awards of costs of $398 in respect of each of CA766/2012 and CA767/2012.  Mr Peterson was asked to advise whether he took issue with an award of costs in those two appeals and, if so, to provide submissions on this point.  Mr Peterson’s response does not deal with the matter.

6. There is no good reason why the respondents should not get the costs sought in relation to these appeals.  We order accordingly.

Other matters

1. Mr Peterson in his memorandum in response says he will continue to “press for damages under Section 34 of the Designs Act 1953 firstly to formally prove the illegitimacy of the Lucas threat, secondly on that basis to apply for a second recall of the present Court of Appeal ruling”, that is, the judgment of 30 September 2013 in CA768/2012.  It is not clear to us whether Mr Peterson is making a further recall application.  For completeness, we proceed on the basis that a further application for recall has been made.  However, no good reason is advanced for us to depart from our earlier decision declining a recall.  The further application for recall is accordingly dismissed.

Result

1. For these reasons, the appeals in CA40/2010, CA651/2011, CA766/2012 and CA767/2012 are struck out.  The appellants must pay the respondents the sum of $398 by way of costs in relation to each of CA766/2012 and CA767/2012.  The further application for a recall of the judgment of 30 September 2013 in relation to CA768/2012 is formally dismissed.

Solicitors:
Simpson Grierson, Auckland for Respondents