Peterson v Lucas - [2013] NZCA 641

IN THE COURT OF APPEAL OF NEW ZEALAND

CA768/2012
[2013] NZCA 641

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 December 2013 at 3.30 pm

JUDGMENT OF THE COURT

The applications for recall and stay are dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Ellen France J)

Introduction

Mr Peterson has applied to vacate this Court’s judgment[1] declining to grant him special leave to appeal against a decision of Gilbert J[2] and/or for a stay of our judgment. The decision of Gilbert J was made on review of a decision of Associate Judge Bell.[3] Gilbert J struck out Mr Peterson’s claims in copyright on the basis that the parties had settled the claim. Gilbert J concluded that the parties’ settlement agreement was enforceable and in doing so rejected various arguments by Mr Peterson challenging the agreement. Those arguments included a submission that Mr Peterson entered into the settlement agreement under duress because of a threat he said Mr Warren Lucas made about bringing copyright infringement proceedings.

Process

[1]Peterson v Lucas [2013] NZCA 453.

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

[3]Peterson v Lucas Mill Pty Ltd [2012] NZHC 1101.

We have treated Mr Peterson’s application to vacate as an application for recall. We are satisfied that this application and the application for a stay can be dealt with on the papers on the basis of the material submitted by Mr Peterson and that it is not necessary to seek submissions from the Lucas interests, the respondents.[4]

The recall application

[4]See discussion of the process to be followed where an application for recall has been made in Erwood v Maxted [2010] NZCA 93, (2010) 20 PRNZ 466 at [23] and Rabson v Gallagher [2012] NZCA 237, (2012) 29 FRNZ 23 at [4]. We deal with some other procedural issues arising in relation to this and other appeals involving the same parties in a minute of the same date as this judgment.

As we read Mr Peterson’s application, his primary submission is that the judgment should be recalled because there are two relevant provisions to which our attention was not drawn. It is well established that a judgment will only be recalled on this basis where the provision that has not been referred to is of “plain relevance”.[5]
[5]Horowhenua County v Nash (No 2) [1968] NZLR 632 (SC) at 633.
The first of the provisions on which Mr Peterson now relies is s 34 of the Designs Act 1953. The second provision to which he now refers is art 5 of the Berne Convention for the Protection of Literary and Artistic Works.[6]
[6]Berne Convention for the Protection 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 Peterson v Lucas

Details

AGLC: Peterson v Lucas [2013] NZCA 641
Case: [2013] NZCA 641
Decision Date: 11 December 2013 at 3.30 pm

CaseChat Overview and Summary

Peterson v Lucas is a case that came before the Court of Appeal of New Zealand, where the applicants, Carl James Peterson and Peterson Portable Sawing Systems Ltd (in liquidation), sought to challenge the Court's previous decision that declined to grant them special leave to appeal against a decision of Gilbert J and/or for a stay of the Court's judgment. The respondents were Rex Cameron Lucas and G W Lucas & Sons Pty Ltd (now Lucas Mill). The case arose from a copyright dispute, where Mr. Peterson had originally filed claims against the respondents. However, Gilbert J had struck out Mr. Peterson's claims on the basis that the parties had settled the claim. Mr. Peterson contested the enforceability of the settlement agreement, arguing that he had entered into it under duress due to a threat made by Mr. Warren Lucas. The legal issues before the Court of Appeal were whether the judgment should be recalled due to the omission of two relevant provisions and whether a stay should be granted pending the determination of the High Court proceedings filed under s 34 of the Designs Act. The Court found that neither the omission of the relevant provisions nor the filing of High Court proceedings justified recalling the judgment or granting a stay. The Court concluded that the omitted provisions did not change the outcome, as they related to factual assessments rather than legal questions. Moreover, the Court did not have jurisdiction to grant a stay as the High Court application did not fall within the categories specified in the Court of Appeal (Civil) Rules 2005. Ultimately, the Court dismissed both the application for recall and the application for a stay.

Orders