BURDEN v ESR GROUP (NZ) LIMITED [2019] NZHC 2745

BURDEN v ESR GROUP (NZ) LIMITED [2019] NZHC 2745

Leave to appeal was granted because the High Court's treatment of the Henderson v Henderson principle is arguable: it may have over-emphasised plaintiffs' right of access to the Court and thereby confined application of the 'could and should' test; on balance the interests of justice warranted permitting an appeal from the strike-out refusal in the 2018 proceedings.

Citation
[2019] NZHC 2745
Parties
First Plaintiff: Ian James Burden; Second Plaintiff: PGT-Reclaimed (International) Limited; Third Plaintiff: Plantation Grown Timbers (Vietnam) Limited; First Defendant; Second Defendant: ESR Group (NZ) Limited; Elisa Norah McLennan
Court
High Court
Jurisdiction
New Zealand
Judgment Date
29 October 2019
Procedural Posture
Infringement of Copyright and Breach of the Fair Trading Act 1986 / Applications for Leave to Appeal (interlocutory)
Outcome
Leave to appeal granted to the applicants in the 2018 proceedings; applicants in the 2014 proceedings do not require leave to appeal under transitional Judicature Act provisions.
Legal Topics
Abuse of Process, Henderson V Henderson Rule, Could and Should Test, Strike Out, Leave to Appeal, Access to Court
Copyright Law Fair Trading Act Civil Procedure Abuse of Process Henderson V Henderson Rule Could and Should Test Strike Out Leave to Appeal +1 more

Case Brief

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Parties

Ian James Burden

First Plaintiff

PGT-Reclaimed (International) Limited

Second Plaintiff

Plantation Grown Timbers (Vietnam) Limited

Third Plaintiff

ESR Group (NZ) Limited; Elisa Norah McLennan

First Defendant; Second Defendant

Procedural Posture

Infringement of Copyright and Breach of the Fair Trading Act 1986 / Applications for Leave to Appeal (interlocutory)

Legal Issues

  1. 1 Whether the High Court erred in failing to apply or consider Kim Dotcom v District Court at North Shore
  2. 2 Whether the High Court failed to apply the 'could and should' test/Henderson v Henderson principle
  3. 3 Whether the High Court improperly weighed plaintiffs' right of access to court against abuse of process

Ratio Decidendi

Leave to appeal was granted because the High Court's treatment of the Henderson v Henderson principle is arguable: it may have over-emphasised plaintiffs' right of access to the Court and thereby confined application of the 'could and should' test; on balance the interests of justice warranted permitting an appeal from the strike-out refusal in the 2018 proceedings.

Court Disposition

Leave to appeal granted to the applicants in the 2018 proceedings; applicants in the 2014 proceedings do not require leave to appeal under transitional Judicature Act provisions.

Orders

  • Leave to appeal granted in CIV-2018-404-002775
  • No leave required for appeal in CIV-2014-404-002456 under Judicature Act s66 and Schedule 5 cl10 of the Senior Courts Act 2016