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Saxmere Co Ltd v Wool Board Disestablishment Co Ltd

Saxmere Co Ltd v Wool Board Disestablishment Co Ltd

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Case Copied 3 July 2009 76 min read

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IN THE SUPREME COURT OF NEW ZEALAND

SC 64/2007
[2009] NZSC 72

BETWEENSAXMERE COMPANY LIMITED

First Appellant
ANDTHE ESCORIAL COMPANY LIMITED

Second Appellant
ANDRICHARD KING

Third Appellant
ANDRUSSELL STEWART EMMERSON AND FOREST RANGE LIMITED

Fourth Appellants

ANDWOOL BOARD DISESTABLISHMENT COMPANY LIMITED

Respondent

Hearing:3 March 2009

Court:Blanchard, Tipping, McGrath, Gault and Anderson JJ
Counsel:C C M Owen, S Grey and S Goodall for Appellants

J S Kós QC, J L Bates and J L Verbiesen for Respondent
D B Collins QC, K Muller and C Brown for Attorney-General as Intervener

Judgment:3 July 2009

JUDGMENT OF THE COURT

A THE APPEAL IS DISMISSED.

BThe appellants must pay costs of $15,000 to the respondent together with its reasonable disbursements as fixed by the Registrar.

REASONS
Para No
Blanchard J  [1]
Tipping J  [37]
McGrath J  [50]
Gault J  [121]
Anderson J  [126]

BLANCHARD J
Introduction
[1] After the Court of Appeal delivered a decision which was adverse to Saxmere Co Ltd and the other appellants in this Court (who can conveniently be together called “the Saxmere interests” although they are in fact separate entities or persons), and indeed after this Court had dismissed an application for leave to appeal against that decision, the Saxmere interests raised a separate and new argument. They alleged that the Hon Justice Wilson, one of the panel of three Court of Appeal Judges, should not have sat on the appeal because of an appearance of bias on his part arising from his relationship with Mr Alan Galbraith QC, who was one of the counsel for the opposing party in the case, Wool Board Disestablishment Co Ltd (the Wool Board). This Court then exercised the inherent jurisdiction any senior court, whether established by statute or not, must have to reopen an appeal or a proposed appeal where there may have been an unfair process in order to avoid a possible injustice[1] and granted leave to appeal on that ground.
[1]R v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 2) [2000] 1 AC 119 at p 132, Taylor v Lawrence [2003] QB 528 at pp 544 – 547 (CA), Payne v Payne (2005) 17 PRNZ 518 at para [13] (CA) and R v Bain [2009] UKPC 4 at para [6].
[2] It should be emphasised at once that this is not a case in which it is suggested that the Judge had any apparent bias in favour of the Wool Board or against any of the Saxmere interests because of a personal financial interest or an association with any of the parties or any witness or deponent. Nor was there even the remotest connection between the Judge and the subject matter of the litigation. Moreover, it is not suggested that the Judge was actually motivated by any bias. Instead, the allegation is that, because of his connection with counsel for the Wool Board, his judicial independence may have been affected by an unconscious bias…

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: [2009] NZSC 72
Decision Date: 3 July 2009

CaseChat Overview and Summary

The Supreme Court of New Zealand heard an appeal by Saxmere Co Ltd and others against the Wool Board Disestablishment Co Ltd. The Court of Appeal had previously dismissed Saxmere's appeal, finding no breach of statutory duty or negligence by the Wool Board. The Saxmere interests sought to appeal to the Supreme Court on the basis of an alleged appearance of bias on the part of one of the Court of Appeal judges, Wilson J, due to his relationship with Mr Galbraith QC, counsel for the Wool Board. The Court of Appeal judges had been friends and had business interests together. The Supreme Court found that the relationship between Wilson J and Mr Galbraith QC did not create an appearance of bias. The Court held that the relationship between the judge and counsel was of a type and nature that did not give rise to a reasonable apprehension of bias. The business relationship between the judge and counsel, while substantial, did not create a logical connection that could lead to the conclusion that the judge might unconsciously favour the party represented by counsel. The Court concluded that a fair-minded observer would not have a reasonable apprehension of bias arising from Wilson J's relationship with Mr Galbraith QC. The appeal was dismissed, and the appellants were ordered to pay costs to the respondent.

Orders