Peterson v Lucas Mill Pty Ltd - [2012] NZHC 2830

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2009-404-007762 [2012] NZHC 2830

UNDER the Copyright Act 1994

BETWEEN CARL JAMES PETERSON Plaintiff

ANDLUCAS MILL PTY LTD First Defendant

ANDREX CAMERON LUCAS Second Defendant

ANDKATICA LUCAS Third Defendant

ANDWARREN GEOFFREY LUCAS Fourth Defendant

ANDJENNIFER MARGARET LUCAS (DISCONTINUED)
Fifth Defendant

ANDGEOFFREY WILFRED LUCAS Sixth Defendant

ANDDOLORES VIVIENNE LUCAS Seventh Defendant

Hearing: 25 October 2012

Appearances: Plaintiff appears in person
T J Walker and J C Dickson for the defendants

Judgment: 26 October 2012

JUDGMENT OF GILBERT J [on application for leave to appeal]

PETERSON V LUCAS HC AK CIV 2009-404-007762 [25 October 2012]

This judgment was delivered by me on 26 October 2012 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar
Date:

Counsel: T J Walker, Auckland: Tracey.walker@simpsongrierson.com
J C Dickson, Auckland: joanne.dickson@simpsongrierson.com
J K Gorman, Wellington: Jessica.gorman@crownlaw.govt.nz

Copy to: C J Peterson: cpetenow54@hotmail.co.nz

Introduction

[1] Mr Peterson applies for leave to appeal my judgment delivered on

17 September 2012[1] dismissing his application for review of a judgment of Bell AJ[2] in which he found that this proceeding was compromised by a binding settlement agreement. My judgment not only confirmed the Associate Judge’s decision, it also dealt with separate applications brought by the Lucas parties to strike out the patent proceeding[3] and the revocation of patent proceedings[4] on the basis of the same settlement agreement. I granted the Lucas parties’ applications and struck out all three proceedings.

[1] [2012] NZHC 2398.

[2] [2012] NZHC 1101.

[3] CIV 2001-404-003668.

[4] CIV 2011-404-007543.

[2] Mr Peterson has not appealed against my orders striking out the patent proceeding and the revocation of patent proceeding and he is now out of time to do so. If he wishes to appeal those decisions, he will need to seek leave from the Court of Appeal to appeal out of time. The sole issue before me is whether leave should be granted to Mr Peterson under s 26P(1AA) of the Judicature Act 1908 to appeal my decision declining his application for review in the copyright proceeding.

Background

[3] The parties have been in dispute over the intellectual property rights to various sawmills for over 13 years. In February 1999, Mr Lucas issued patent proceedings against Mr Peterson and his company alleging that Mr Peterson’s “Islander” branded sawmills infringed the patent for the “Lucas” sawmill. Mr Lucas succeeded in the High Court and in the Court of Appeal but the Supreme Court upheld Mr Peterson’s appeal and found that the patent claim lacked novelty and was invalid. The Lucas parties discontinued their remaining claims against Mr Peterson and his company in July 2009 by which time Mr Peterson’s company had been
struck off the Companies Register and Mr Peterson was impecunious.

[4] This did not end the disputes between the parties because Mr Peterson brought a counterclaim under s 74 of the Patents Act 1953 seeking damages for unjustified threats of infringement proceedings. This counterclaim was struck out by Priestley…

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: [2012] NZHC 2830
Decision Date: 26 October 2012

CaseChat Overview and Summary

In Peterson v Lucas Mill Pty Ltd, Carl James Peterson sought leave to appeal against the decision of Gilbert J dismissing his application for review of a prior judgment by Bell AJ. The earlier judgment found that Peterson's proceeding was compromised by a binding settlement agreement. The appeal was dismissed by Gilbert J, who found that the proposed appeal did not raise any issue of law requiring clarification or any matter of public interest. The court held that the decision was undoubtedly important to the parties but the amount realistically at stake was comparatively modest. Peterson's desire to continue the litigation must be balanced against the interests of the Lucas parties in achieving an end to it. The court also considered the broader public interest in ensuring the court's resources were not wasted on appeals with no realistic prospect of appreciable benefit.

The main legal issue was whether Peterson's application met the criteria for leave to appeal set out in Waller v Hider. The court found that the proposed appeal did not justify consideration by the Court of Appeal of the same issues that had already been considered and ruled on twice. The appeal was dismissed as it did not raise any issue of law requiring clarification or any matter of public interest. The court held that the amount realistically at stake in the appeal was comparatively modest given the proceeding had not advanced beyond a preliminary stage due to Peterson's inability to pay security for costs.

Orders