SC 55/2007
[2007] NZSC 106
BETWEEN TRANSPOWER NEW ZEALAND
LIMITED
Applicant
AND TODD ENERGY LIMITED
Respondent
Court: Tipping, McGrath and Anderson JJ
Counsel: D J Goddard QC, L Theron, J Shackleton and T Stephens for Applicant
G P Curry and J D Palmer for Respondent
Judgment: 13 December 2007
JUDGMENT OF THE COURT
The applications for leave to appeal and to cross-appeal are dismissed.
REASONS
[1] Some eight years ago Todd Energy Ltd began proceedings under the
Commerce Act 1986 against Transpower New Zealand Ltd and Powerco Ltd. The
case has still not been brought to trial because, it seems, the parties have been
diverted by interlocutory manoeuvering. Now, Transpower seeks leave to appeal
and Todd seeks leave to cross-appeal against a judgment of the Court of Appeal in
respect of certain interlocutory applications. As well as having to satisfy any of the
criteria for leave stipulated by s 13(2) of the Supreme Court Act 2003 they must also
overcome the s 13(4) constraint on appeals from interlocutory orders.
[2] On 26 April 2005 and 15 August 2006 the High Court delivered judgments
on applications by Todd and Transpower relating to Todd’s extant statement of claim
and a proposed further amended statement of claim. Those applications had put in
issue whether various pleaded causes of action were or were not fresh. The answers
would determine whether a particular cause of action was barred by the limitation
provisions of the Commerce Act and/or whether it had arisen since the filing of the
statement of claim. In the former case a pleading would be prohibited by r 187(3)(a)
of the High Court Rules and in the latter case leave to add the cause of action would
be required by r 187(5).
[3] When those applications came before the Court of Appeal that Court struck
out some but not all of Todd’s causes of action and refused summary judgment to
Transpower. It also reinstated a cause of action which the High Court had struck
out, and directed Todd to file and serve an amended statement of claim with certain
specified inclusions and exclusions.
[4] In disposing of the appeal and cross-appeal, the Court of Appeal applied well
established principles including, for example, the test for determining whether a
cause of action is fresh. Todd and Transpower seek to challenge the outcome of
their application. But that does not render the case one of general or public
importance under s 13(2)(a) of the Supreme Court Act. Nor does the appeal involve
a matter of general commercial significance under s 13(2)(c). In order to bring a
civil case within the substantial miscarriage of justice ground under s 13(2)(b), an
applicant must satisfy the principles established by Junior Farms Ltd v Hampton
Securities Ltd (in liq).1 We are not satisfied that either the proposed appeal or
proposed cross-appeal satisfy s 13(2). That being the case s 13(4) requires no
consideration.
[5] The applications are dismissed accordingly with no orders as to costs.
Solicitors:
Simpson Grierson, Wellington for Applicant
Russell McVeagh, Auckland for Respondent
1 [2006] 3 NZLR 522n.
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