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Unison Networks Ltd v Commerce Commission

Unison Networks Ltd v Commerce Commission

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Case Copied 7 March 2007 16 min read

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA284/05
[2007] NZCA 49
BETWEENUNISON NETWORKS LIMITED

Applicant

ANDTHE COMMERCE COMMISSION

Respondent

Hearing:7 February 2007

Court:Hammond, O'Regan and Ellen France JJ
Counsel:D J Goddard QC and L Theron for Applicant

R A Dobson QC and J S McHerron for Respondent

Judgment:7 March 2007 at 3 pm

JUDGMENT OF THE COURT

A The application for recall is declined.
BThe applicant must pay to the respondent costs of $3,000 plus usual disbursements.

REASONS OF THE COURT
(Given by Ellen France J)

Introduction
[1]       The applicant, Unison Networks Limited, applies for the recall of the judgement which this Court gave on 19 December 2006 dismissing an appeal against a judgment of Wild J: HC WN CIV-2004-485-960, 28 November 2005. Wild J had dismissed Unison’s application for judicial review in proceedings concerning the thresholds set by the Commerce Commission under Part 4A of the Commerce Act 1986 for the possible regulation of large electricity lines businesses like Unison.
[2]       The central issue on the appeal was whether the Commission had acted consistently with the Commerce Act in setting the two, initial and revised, thresholds. That required a determination about the purpose of the thresholds and whether the thresholds met that purpose.
[3]       We held that the initial threshold was not lawful as it was inconsistent with the Commerce Act, but that the revised threshold was lawful. By a majority, O’Regan J dissenting on this issue, the Court decided not to grant any relief despite the breach in relation to the initial threshold.
The recall application
[4]       Unison raises four grounds in support of the recall application.
[5]       The first ground is that the judgment does not discuss arguments made by the applicant. In particular, it is said there is no discussion of the argument that the Commission misdirected itself in law and asked the wrong question; nor of the argument that the Commission did not have regard to relevant considerations. Unison argues that if the Commission misdirected itself, that is a distinct ground on which the Commission’s decision should be set aside.
[6]       Second, Unison says the judgment should be recalled because the judgment does not consider the appropriateness of granting declaratory relief, even if no order is made setting the thresholds aside. This ground and the next are advanced as alternatives to the first ground.
[7]       The third ground is that the Court was not referred by counsel to s 4(5) - (5C) of the Judicature Amendment Act 1972.
[8]       Finally, the applicant seeks recall because the judgment did not deal with costs at first instance.
[9]       The Commission opposes the application for recall.
Principles for recall
[10]     The principles governing recall of a judgment are well settled and are set out in Horowhenua County v Nash (No 2) [1968] NZLR 632. Wild CJ said at 633:
Generally speaking, a judgment once delivered must stand for better or worse subject, of course, to appeal. Were it otherwise there would be great inconvenience and uncertainty.…

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: [2007] NZCA 49
Decision Date: 7 March 2007

CaseChat Overview and Summary

Unison Networks Limited sought to recall a judgement from the Court of Appeal, which had dismissed its appeal against a judgment by Wild J. The appeal concerned the thresholds set by the Commerce Commission for the possible regulation of large electricity lines businesses under the Commerce Act 1986. The applicant argued that the Court of Appeal had failed to discuss certain arguments, had not considered the appropriateness of granting declaratory relief, had not been referred to a particular section of the Judicature Amendment Act 1972, and had not dealt with costs at first instance. The Court of Appeal considered the principles for recall, which include situations where there has been an amendment to a relevant statute or regulation, counsel has failed to direct the Court’s attention to a legislative provision, or where justice requires the judgment be recalled. The Court found that Unison's application did not satisfy the test for recall, as there was no basis for a reopening of proceedings. The Court emphasised that the issues and arguments it chooses to address are within its discretion and that a decision may be recalled where a material issue properly put before the Court is not addressed. However, the cases in which justice will require a recall on this basis are likely to be rare. The Court dismissed the application for recall and ordered Unison to pay costs to the Commerce Commission.

Orders