BAY OF PLENTY ELECTRICITY LIMITED V COMMERCE COMMISSION CA CA45/06

BAY OF PLENTY ELECTRICITY LIMITED V COMMERCE COMMISSION CA CA45/06 2 August 2006IN THE COURT OF APPEAL OF NEW ZEALAND CA45/06BETWEEN BAY OF PLENTY ELECTRICITY LIMITED Appellant AND THE COMMERCE COMMISSION Respondent Hearing: 19 June 2006 Court: Robertson, Arnold and Ellen France JJ Counsel: H N McIntosh and C R J Hosie for Appellant B W F Brown QC for Respondent Judgment: 2 August 2006JUDGMENT OF THE COURT It is ordered that Bay of Plenty Energy Limited reimburse the Commerce Commission $1,100.00 being half of the setting-down fee paid.____________________________________________________________________REASONS OF THE COURT(Given by Robertson J) [1] There was listed before us on 19 June 2006 an appeal which had been filed by Bay of Plenty Electricity Limited (BOPE) from a decision delivered by Wild J in the High Court at Wellington on 13 February 2006. [2] Formal notice of abandonment of appeal having been received, the appeal was noted accordingly and struck out.[3] The issue of costs remained and we have, since that time, received written submissions from counsel who have advised they do not require a hearing. [4] The only issue in contention is whether the Commerce Commission should be reimbursed by BOPE for the $2,200.00 which they paid as a setting-down fee.The facts[5] On 13 February 2006, Wild J issued a judgment setting aside a claim for privilege by BOPE in respect of seven documents. The Judge reserved determination on twelve remaining documents. On 10 March 2006, BOPE filed a notice of appeal challenging that judgment. After a teleconference with both parties, Wild J issued a further judgment on 6 April 2006 in relation to the twelve remaining documents. [6] In a minute which had been issued by Wild J on 16 March 2006, it was recorded that the parties had been offered a four week fixture for hearing the substantive case in the High Court in February 2007. The parties were also advised that an August fixture was available in the Court of Appeal for hearing the appeal about privilege. Counsel were required to advise the Court whether the 2007 trial fixture was suitable and whether an August appeal fixture provided enough time for trial preparation. [7] On 10 April 2006, BOPE was advised by the Court of Appeal that the August fixture was no longer available and that a hearing date could not be allocated until an application was made and a setting-down fee paid. On 12 April, the Commission, upon making an inquiry at the Court of Appeal, was informed that dates for the fixture were available in September but that "these dates are filling up very quickly, therefore the earlier you get your application in the sooner this matter will get a hearing date". [8] On 21 April 2006 the Commission made an application for the allocation of a hearing date and paid the required fee of $2,200. A letter was sent to BOPE's solicitors on the same day advising that they would seek recovery of this fee.[9] On 22 May 2006 BOPE filed a notice of abandonment at the Court of Appeal.Contentions of the parties[10] The Commission contends that they had no choice but to make the application and pay the setting-down fee because of BOPE's delay. They felt compelled to act in order to have the appeal fixture allocated promptly and avoid jeopardising the February 2007 trial fixture. They did not have any indication from BOPE that they did not intend to pursue the appeal. [11] In response, BOPE argues that there was no delay on their behalf as they were waiting for Wild J's second judgment before deciding whether to pursue the appeal. Wild J's second judgment did not come out until 6 April 2006. Further, the Commission failed to ask BOPE whether it intended to pursue the appeal before lodging the application for the allocation of a fixture. BOPE asserts that the Commission acted preemptively and unreasonably and should not be entitled to reimbursement.Discussion[12] In accordance with r 53 of the Court of Appeal (Civil) Rule 2005, this Court has the discretion to make any order regarding costs "that seems just". [13] We are of the opinion that it is "just" that both parties equally share the cost of the setting-down fee. While it was reasonable for the Commission to feel compelled to lodge the application for a fixture so as to not jeopardise the substantive trial date, it was incautious of them to act without first consulting with BOPE. This is yet another instance where counsel could have dealt with the matter without incurring any delay by telephone or other email contact.Result[14] There will be an order that BOPE reimburse the Commission $1,100.00, being half of the setting-down fee which was paid.Solicitors: Russell McVeagh, Wellington, for Appellant