The Gama Foundation v Fletcher Steel Limited

[2020] NZHC 1265

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CIV-2020-409-000183

[2020] NZHC 1265

BETWEEN

THE GAMA FOUNDATION

Plaintiff

AND

FLETCHER STEEL LIMITED

Defendant

Hearing:	On the papers
Appearances:	A J Forbes QC and R A Hearn for Plaintiff W R Potter and J M Phillips for Defendant
Judgment:	9 June 2020

JUDGMENT OF DUNNINGHAM J

This judgment was delivered by me on 9 June 2020 at 11.30 am, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date: 9 June 2020

[1]                The plaintiff has applied by way of originating applications dated 6 May 2020 for:

(a)leave to appeal an arbitral award dated 5 February 2020;

(b)the setting aside of part of the arbitral award that relates to repudiation of the lease that was the subject of the arbitration.

[2]The defendant opposes both applications.

THE GAMA FOUNDATION v FLETCHER STEEL LTD [2020] NZHC 1265 [9 June 2020]

[3]                Both parties agreed to the applications being heard together. However, the defendant’s agreement is conditional on:

(a)there being no delay in hearing the leave application caused by this; and

(b)the leave application being conducted in accordance with r 26.16, of the High Court Rules 2016.

[4]                Rule 26.16 restricts both counsel to a 30 minute time limit for their oral submissions, and to 10 minutes for counsel for the plaintiff to reply.

[5]                Counsel for the plaintiff seeks an extension of the default time limits in r 26.16 for oral submissions on the application for leave to appeal to permit to 60 minutes of oral submissions for each party, with 15 minutes for the plaintiff’s reply. This is sought because the large number of questions of law raised and because there is a dispute over what factors are relevant to the grant of leave.

[6]                In support, the plaintiff points to commentary on this rule which says the High Court has the power to extend the time for an application for leave to appeal, although this would be the exception rather than the rule. In this case, the plaintiff says that, as their submissions demonstrate, the merits and strength of the proposed questions of law need to be considered by the Court in order to decide whether leave should be granted.1

[7]                The defendant opposes this request and considers that the matters can and should be sufficiently addressed within the  time  allowance  prescribed  by  the  High Court Rules. It says the purpose of the leave hearing is not to argue the proposed points of law but, in terms of the “merits” aspects of the test for leave, to determine whether the plaintiff has established the points as sufficiently strongly arguable to justify an appeal. It says this case is not of sufficient complexity to justify departure from the timetable that the rules provide for these types of applications.

1      Relying on Gold & Resource Developments (NZ) Ltd v Doug Hood Ltd [2000] 3 NZLR 318 (CA) and Pukeroa Properties (No 2) Ltd v Rotorua Hunting & Fishing New Zealand Ltd [2019] NZHC 1367.

Discussion

[8]                The parties have agreed that this can be determined on the papers and I advised in my minute of 5 June 2020 that I would do so.

[9]                The decision in Gold & Resources Developments (NZ) Ltd discussed not only the test for leave, but the procedure on an application for leave. It emphasised that the hearing of the application should be kept brief. It assumes that the Judge has read the application and the supporting submissions, and so the hearing:2

…should be merely an opportunity for the Judge to ensure that he or she has a grasp of the arguments and so enabling a determination to be made of whether the applicant has, in light of the nature of the point of law and the factors to be considered, established a sufficiently strong case to justify the grant of leave.

[10]            The decision goes on to cite Lord Donaldson MR in Ipswich Borough Council v Fisons Plc, where he said “it is not the function of the judge to hear the putative appeal, before deciding whether or not to grant leave.”3

[11]There are four general topics raised in the plaintiff’s appeal, being:

(a)Did the arbitrator correctly apply the rule in Joyner v Weeks?

(b)Did the arbitrator properly apply cl 5.1 of the lease?

(c)Did the arbitrator properly apply cl 14.1 of the lease? and,

(d)Did the arbitrator properly apply the test in cl 8.1(a) in respect of wear and tear of the rear warehouse floor?

However, these four issues are then said to give rise to 10 specific alleged errors in law. I accept it would be difficult to speak even fleetingly about each of them within the time limit provided, as well as to address the other factors relevant to the grant of leave. However, I am mindful that the merits of the appeal ought to be self-evident on

2      Gold & Resource Developments (NZ) Ltd v Doug Hood Ltd, above n 1, at [57].

3      Ipswich Borough Council v Fisons Plc [1990] CH 709; [1990] 1 All ER 730 (CA) at 732-733.

the face of the submissions, and there can be no expectation that this issue would need to be covered in depth in respect of each issue raised.

[12]            In my view, having perused the submissions, I consider it would be in the interests of justice to extend the time for oral submissions, but I only propose to do so by 15 minutes to allow each side 45 minutes to present their case. The right of reply will still only be 10 minutes in length.

[13]            This extension honours the principle that the hearing should be brief, and the merits of the application should emerge from the written submissions filed in advance, while acknowledging that in this case, the number of errors of law alleged might require a little more time to address.

[14]            This would only extend the hearing time by 30 minutes so it should still be possible to hear both applications together.

Direction

[15]            The timeframes specified in r 26.16(4)(a) and (b) of the High Court Rules are modified so that counsel for the plaintiff and the defendant will each have 45 minutes to give their oral submissions.

Solicitors:

Corcoran French, Christchurch Meredith Connell, Auckland