PGG Wrightson Seeds Limited v Wholesale Seeds Limited

[2019] NZHC 377

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2018-476-44

[2019] NZHC 377

UNDER

The Plant Variety Rights Act 1987 and the Contract and Commercial Law Act 2017

BETWEEN

PGG WRIGHTSON SEEDS LIMITED

Plaintiff

AND

WHOLESALE SEEDS LIMITED

First Defendant

AND

JAMES GRAY SMITH

Second Defendant

Hearing:

6 March 2019

(By Telephone Conference)

Appearances:

E M Greig for the Plaintiff

D L Marriott for the First and Second Defendants

Judgment:

8 March 2019

JUDGMENT OF ASSOCIATE JUDGE LESTER

[1]                  The parties agreed that the defendants’ application for a split trial would be dealt with at a telephone conference. The parties filed brief memoranda addressing the grounds for a split trial and spoke to those and expanded on their respective positions at the telephone conference held on 6 March 2019.

PGG WRIGHTSON SEEDS LTD v WHOLESALE SEEDS LTD & SMITH [2019] NZHC 377 [8 March 2019]

[2]                  Mr Marriott for the defendants argued in favour of the hearing being split between quantum and liability. This is a case concerning intellectual property issues and he suggested it was the common, if not usual course in intellectual property cases that liability and issues as to quantum be determined separately.

[3]                  Mr Marriott argued that the quantum and liability here involved different factual issues and would involve different witnesses.

[4]                  Mr Marriott went further in saying that the findings as to liability would help refine the quantification of any loss, assuming there was a liability finding, as the liability finding would make the quantum exercise more discrete. He also raised the practical issue that here liability was hotly contested and if there was a liability finding it would assist with settlement negotiations. Mr Marriott also agreed that a liability finding in the defendants’ favour would mean resources would be saved for both parties in avoiding having to deal with quantum.

[5]                  Mr Marriott also pointed to the fact that at the moment the pleading of loss was unparticularised as it sought an account of profits (unspecified) or in the alternative an enquiry to damages. The submission was to the effect that such a pleading contemplated a two stage approach.

[6]                  I asked Mr Marriott for his best estimate of the hearing time in respect of liability and in respect of quantum. He said it was hard at the moment to determine the hearing time required for a liability hearing, but his best estimate was one to two weeks. He said he was more confident about the timing in respect of quantum, estimating one to two days.

[7]                  Mr Greig for the plaintiff developed a number of points. One was the presumption that there would be one trial at which liability and quantum would be determined and the onus was on the defendants to displace that presumption.1

1      McGechan on Procedure (online loose-leaf ed, Thomson Reuters) at [HR10.15.05].

[8]                  Mr Greig noted that the plaintiff acknowledges that the current pleadings will be amended but the plaintiff requires discovery to do that as key information to allow the pleadings to be refined and for the plaintiff to elect between seeking damages or an account of profits is in the hands of the defendants.

[9]                  In respect of practical issues, Mr Greig did not accept that there was a clear demarcation between liability and quantum.

[10]               Just as I asked  Mr Marriott  about  the  estimates  for  the length  of hearing, I raised the issue with Mr Greig. He suggested five to six days for liability – broadly consistent with the defendants’ estimate, but he made the point that if quantum was only going to involve a day or so of hearing time, that was not a significant enough time saving to justify a split hearing. With the need for counsel to get up to speed for a second liability hearing if that is necessary, and with the inevitable delay between the two hearings, Mr Greig said that the saving of a day or so in respect of quantum did not outweigh the risks inherent in a split hearing as noted in McGechan on Procedure2.

[11]               It  is  relatively  early  days   in   this   proceeding   which   was   filed   on   14 September 2018. As noted, discovery has not been completed and the plaintiff has not particularised aspects of its claim.

[12]               I agree with Mr Greig that the saving of a day or so of hearing time stands squarely against there being a separation of liability and quantum, that being consistent with the comment in Rod Milner Motors Ltd v Attorney-General, where quantum is straightforward, that stands against a split hearing.3

[13]               I am not convinced that the defendants have met the burden of rebutting the presumption that all matters will be dealt with in one trial. However, having recognised that it is early on in the life of this proceeding, I reserve leave for there to be a further application if the merits of splitting liability and quantum become more clear cut.

2      McGechan on Procedure, above n 1, at [HR10.15.06].

3      Rod Milner Motors Ltd v Attorney-General [1999] 2 NZLR 568 (CA) at 581.

[14]Accordingly, the application is dismissed.

[15]Costs are reserved.

Associate Judge Lester

Solicitors:

Duncan Cotterill, Wellington

Tavendale and Partners, Christchurch
Copy to counsel: D L Marriott , Barrister, Auckland