Privy Council Appeal

1. (1) Shane Campbell De Morgan and (2) Dale De MorganPetitioners

v.

The Director-General of Social Welfare Respondent

and

2. Victor Frederick SearsPetitioner

v.

The Attorney-GeneralRespondent

FROM

THE COURT OF APPEAL OF NEW ZEALAND

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REASONS FOR REPORT OF THE LORDS OF THE

JUDICIAL COMMITTEE OF THE PRIVY COUNCIL

UPON PETITIONS FOR SPECIAL LEAVE TO APPEAL

OF THE 10th July 1997, Delivered the

7th October 1997

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Present at the hearing:-

Lord Browne-Wilkinson

Lord Jauncey of Tullichettle

Lord Slynn of Hadley

Lord Lloyd of Berwick

Lord Steyn

  ·[Delivered by Lord Browne-Wilkinson]

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There were before their Lordships two petitions for special leave to appeal to the Judicial Committee against decisions of the Court of Appeal of New Zealand.  In each case, so it was submitted, the relevant statutory legislation provides that the decision of the Court of Appeal on the issue is to be "final" or "final and conclusive".  The question is whether the Privy Council has jurisdiction to entertain the appeals at all.  At the conclusion of the argument, their Lordships indicated that the petitions would be dismissed for want of jurisdiction for reasons to be given at a later date.  These are those reasons.

 The De Morgan case.

The underlying dispute in this case is whether the petitioners are entitled, by reason of an increase in the rate of Goods and Services Tax payable, to increase the contractual price for services which they provide at a rest home.  The petitioners claim to be entitled to such increase under section 78(2) of the Goods and Services Tax Act 1985.

1. The petitioners brought proceedings in the District Court where their claim was dismissed.  They appealed to the High Court which allowed the appeal.  On a further appeal, with leave, to the Court of Appeal the decision of the High Court was reversed and the decision of the District Court reinstated: [1996] 3 N.Z.L.R. 677.  The petitioners seek special leave to appeal to the Board, leave having been refused by the Court of Appeal.

2. Since the sums at stake are substantial, the petitioners would in the ordinary case have a right of appeal to the Privy Council as of right: Rule 2 of the New Zealand (Appeals to the Privy Council) Order 1910.  However where, as in the present case, proceedings are started in the District Court, rights of appeal are restricted by sections 67 and 68 of the Judicature Act 1908 which provide:-

"67.  The determination of the High Court on appeals from inferior Courts shall be final unless leave to appeal from the same to the Court of Appeal is given by the High Court or, where such leave is refused by that Court, then by the Court of Appeal.

68.(1)  If either party in any civil proceedings or criminal proceedings in any inferior Court having extended jurisdiction is dissatisfied with the determination or direction of that Court in point of law or upon the admission or rejection of any…