Southpac Trucks Limited v Ports of Auckland Limited

[2007] NZCA 259

IN THE COURT OF APPEAL OF NEW ZEALAND

CA111/07
[2007] NZCA 259

BETWEENSOUTHPAC TRUCKS LIMITED

Applicant

ANDPORTS OF AUCKLAND LIMITED

Respondent

Hearing:18 June 2007

Court:Glazebrook, Chambers and Wilson JJ

Counsel:F R McLaren for Applicant

C R Carruthers QC and G Mercer for Respondent

Judgment:26 June 2007     at 10 am

JUDGMENT OF THE COURT

AThe application for leave to appeal from the decision of the High Court dated 17 October 2006 is granted. 

BThe approved grounds of appeal are:

(1)       Was the High Court correct in holding that Ports of Auckland Limited could avail itself of the statutory exemption from liability conferred by s 6 of the Carriage of Goods Act 1979? 

(2)       Was the High Court correct in holding that the operator of the fork-lift was exempt from liability under s 16(2) of the Act, with the consequence that his employer (Ports of Auckland Limited) could not be vicariously liable? 

CCosts reserved.

REASONS OF THE COURT

(Given by Chambers J)

[1]       Southpac Trucks Limited, the applicant, purchased a truck from a supplier in Australia.  The truck was shipped to the port at Auckland.  Under the contract of carriage, Ports of Auckland Limited was to provide stevedoring services.  While the truck was being driven across Bledisloe Wharf in Auckland by an employee of a sub-subcontractor of Ports of Auckland, an accident occurred.  A fork-lift driven by an employee of Ports of Auckland collided with the truck, causing substantial damage to it.  Southpac sued Ports of Auckland as employer of the fork-lift driver for the cost of repairs to the truck.  The cause of action was negligence. 

[2]       In the District Court, Southpac succeeded in obtaining summary judgment: DC AK CIV 2004-004-003246 16 September 2005.  Judge Joyce QC rejected Ports of Auckland's defence based on ss 6 and 16 of the Carriage of Goods Act 1979.  Ports of Auckland successfully appealed to the High Court: [2007] DCR 203; (2007) 8 NZBLC 101,885.  Allan J held that ss 6 and 16 did provide Ports of Auckland with a defence.  The difference of view centred on the meaning of “liable as such” in both those sections. 

[3]       Southpac sought leave to appeal to this court under s 67 of the Judicature Act 1908.  Allan J declined leave.  Southpac then sought leave from this court, pursuant to s 67(2). 

[4] We have decided leave should be granted. According to counsel, most claims under the Carriage of Goods Act are within the District Courts’ jurisdiction. According to Allan J, prior to his decision, there was no decision of the High Court on the point of what “liable as such” means in ss 6 and 16 of the Carriage of Goods Act: at [2]. The point has never previously been considered by this court either.

[5]       The importance of Allan J's decision as a precedent is shown by the fact it has already been reported in two series of reports and is shortly to be reported in the New Zealand Law Reports.  Ms McLaren, for Southpac, made the point that, if we do not grant leave to appeal, Allan J's decision will effectively become the law and be unchallengeable.  That flows from the fact most carriage of goods claims are dealt with in the District Courts, whose judges will be bound by Allan J's decision.  Appeals will not be worthwhile as High Court judges would be almost certain to follow Allan J's decision, especially in circumstances where this court had declined leave to appeal from it. 

[6]       The case involves arguable points of law of general and public importance, justifying a second appeal. 

[7]       These reasons have been “stated briefly and in general terms only”, as permitted by r 27 of the Court of Appeal (Civil) Rules 2005.

Solicitors:
Fortune Manning Law Partnership, Auckland, for Applicant
Gellert Ivanson, Auckland, for Respondent