THE COMMISSIONER OF INLAND REVENUE V MOTORCORP HOLDINGS LIMITED AND OTHERS CA CA17/04

THE COMMISSIONER OF INLAND REVENUE V MOTORCORP HOLDINGS LIMITED AND OTHERS CA CA17/04 19 May 2005IN THE COURT OF APPEAL OF NEW ZEALAND CA17/04BETWEEN THE COMMISSIONER OF INLAND REVENUE Appellant AND MOTORCORP HOLDINGS LIMITED AND OTHERS Respondents Hearing: 16 May 2005 Court: Anderson P, O'Regan and Robertson JJ Counsel: M P Reed QC and J Long for Appellant J H Coleman for Respondents Judgment: 19 May 2005JUDGMENT OF THE COURT A The application is dismissed. B The appellant will have costs of $1,500 together with the usual disbursements. REASONS(Given by Anderson P) [1] On 29 January 2004 the appellant filed in the registry of this Court an appeal against a decision of the High Court which had been delivered by Venning J on 11 December 2003. That appeal was heard on 15 February 2005, and in a decisiondelivered on 7 March 2005 this Court allowed the appeal and made consequential orders. Motorcorp Holdings Ltd, the first respondent, now applies to this Court for a grant of conditional leave to appeal to the Privy Council. [2] Appeals to the Privy Council were abolished by the Supreme Court Act 2003, s 42 of which provides as follows:42 Ending of appeals to Her Majesty in Council(1) No appeal to Her Majesty in Council lies or may be brought from or in respect of any civil or criminal decision of a New Zealand court made after 31 December 2003— (a) whether by leave or special leave of any court or of Her Majesty in Council, or otherwise; and (b) whether by virtue of any Act of Parliament of the United Kingdom or of New Zealand, or the Royal prerogative, or otherwise. (2) Subsection (1) is subject to section 50.[3] The Supreme Court Act contained a transitional provision in respect of decisions of this Court which had been made before 1 January 2004 or made after 31 December 2003 in a proceeding whose hearing was completed before 1 January 2004. That saving provision is s 50 of the Supreme Court. Of particular relevance is subs 1(a) which provides as follows:50 Privy Council may still determine appeals in certain existing proceedings(1) The Privy Council may hear and determine, or continue to hear and determine,— (a) an appeal against a final judgment of the Court of Appeal made before 1 January 2004, or made after 31 December 2003 in a proceeding whose hearing was completed before 1 January 2004, where— (i) the matter in dispute on the appeal amounts to or is of the value of $5,000 or upwards; or (ii) the appeal involves, directly or indirectly, some claim or question to or respecting property or some civil right amounting to or of the value of $5,000 or upwards;[4] Motorcorp Holdings Ltd argues, by counsel, that its case comes within the dispensing scope of s 50(1)(a). It submits that on a proper construction of thatprovision the reference to the "proceeding whose hearing was completed" is a reference to the High Court proceeding and the High Court hearing. On this approach a right of appeal would lie to the Privy Council because the High Court proceeding was heard and determined before 1 January 2004. [5] The substance of the argument in support of the application is that a distinction can be drawn between "proceedings" and "appeals" and that if the legislature had intended to define the cut off date by reference to the hearing of an appeal it would have used the term "appeal" and not the term "proceeding" in s 50(1)(a). Litigation is commenced in the High Court and District Court with a Notice of Proceeding. The Court of Appeal Rules envisage "proceedings" as litigation in the Court appealed from. See, for example, r 7(2) and rr 9(1) and 9(3). In the same rules, r 8(1), refers to "the hearing of an appeal". However, the Rules are not consistent in that respect: for example, r 3 refers to "proceedings" of this Court. [6] Counsel submitted that this approach to the word "proceeding" is mirrored in the Supreme Court Act 2003, for example, s 8 which refers "a party to a civil proceeding in the High Court". However, that can be contrasted with s 7 which refers to "a party to a civil proceeding in the Court of Appeal". [7] In counsel's submission, this points to at least an ambiguity, which should be resolved in favour of preserving a long-established right of appeal rather than abolishing it. [8] Counsel for the appellant submitted that the reference in s 50 to "a proceeding whose hearing was completed before 1 January 2004" can only sensibly mean an appeal which was heard by the Court of Appeal before that date but in respect of which a judgment was not issued until after that date. It was submitted that it would be absurd to interpret s 50(1) of the Act in a way that makes reference to factors never before relevant, namely the progress of the matter in the High Court, and makes that factor determinative.Discussion[9] The purpose of the Supreme Court Act, which ended appeals to the Privy Council, is declared in s 3 in these terms:3 Purpose(1) The purpose of this Act is— (a) to establish within New Zealand a new court of final appeal comprising New Zealand judges— (i) to recognise that New Zealand is an independent nation with its own history and traditions; and (ii) to enable important legal matters, including legal matters relating to the Treaty of Waitangi, to be resolved with an understanding of New Zealand conditions, history, and traditions; and (iii) to improve access to justice; and (b) to provide for the court's jurisdiction and related matters; and (c) to end appeals to the Judicial Committee of the Privy Council from decisions of New Zealand courts; and (d) to make related amendments to certain enactments relating to courts or judicial proceedings. (2) Nothing in this Act affects New Zealand's continuing commitment to the rule of law and the sovereignty of Parliament.[10] In the case of Norske Skog Tasman Ltd v Clarke CA181/03, 8 February 2005, this Court dismissed an application for conditional leave to appeal to the Privy Council from a decision on appeal from the Employment Court where the hearing had concluded before 31 December 2003 but in which judgment was given during 2004. It had been argued that although, prior to the Supreme Court Act there had not been a right of appeal to the Privy Council in respect of Employment Court decisions for some decades, nevertheless the Supreme Court Act opened up a window of opportunity on various grounds. This Court held it was inconceivable that Parliament could have intended to resurrect a right of appeal, long considered inappropriate, and to do so with legislation that ended appeals to the Privy Council.[11] In a similar way, we think it inconceivable that Parliament, in repatriating appeals by way of the Supreme Court Act, could have intended nevertheless to continue a right of appeal against a decision of this Court, not by reference to the timing of that decision but by reference to a lower Court's decision in respect of which an appeal right had been exercised and dealt with. [12] If there were an ambiguity it would have to be in terms of the possibility that the words "whose hearing", in s50(1)(a) could mean "whose hearing in the High Court". We think that is untenable. All of the exemptions from the s 42 barrier, described in s 50(1), relate to final judgments or to decisions of the court of Appeal. There is no exemption for decisions of the High Court notwithstanding that the New Zealand (Appeals to the Privy Council) Order 1910, Rule 2(c) provided for a discretionary appeal directly from the High Court. When the Supreme Court Act has, in limited circumstances, preserved appeals only from judgments or decisions of the Court of Appeal, and has abolished appeals from the High Court, it cannot be the case that the legislature nevertheless determined that the timing of the antecedent disposition of proceedings in the High Court has significance. The fortuity of the date of disposition in a court from which appeals were entirely abolished as at 31 December 2003 can have no logical relevance to the question of continuing appeals from judgments or decisions of the Court of Appeal.Conclusion[13] In short, the argument for the respondents is untenable and the application is dismissed. The appellant will have costs of $1,500 together with the usual disbursements.Solicitors: Lee Salmon Long, Auckland for Appellant Crown Law Office, Wellington for Respondents