Home | Databases | WorldLII | Search | Feedback Supreme Court of Samoa

Z Ltd v Offshore Corporations (Samoa) Ltd [2013] WSSC 34 (14 June 2013)

SUPREME COURT OF SAMOA

Z Ltd v Offshore Corporations (Samoa) Ltd and Samoa International Finance Authority [2013] WSSC 34

Case name:

Z Ltd v Offshore Corporations (Samoa) Ltd and Samoa International Finance Authority

Citation: [2013] WSSC 34

Decision date: 14 June 2013
Parties:
Z LTD a company incorporated in the People’s Republic of China. (Applicant) v OFFSHORE INCORPORATIONS (SAMOA) LTD in its capacity as the Resident Agent of Y Ltd a company incorporated in Samoa and having its registered office at Ground Floor, SNPF Building, Beach Road, Apia, Samoa (Respondent) and SAMOA INTERNATIONAL FINANCE AUTHORITY a body corporate established pursuant to the Samoa International Finance Authority Act 2005. (Third party)

Hearing date(s): 6 June 2013

File number(s): MISC 1083/10

Jurisdiction: CIVIL

Place of delivery: Mulinuu

Judge(s): Chief Justice Patu Falefatu Sapolu

On appeal from:

Order:
Representation:
B P Heather-Latu for appellant
G Stowers for respondent
M T Lui and A Ah Leong for third party

Catchwords:
Words and phrases:
Norwich Pharmacal jurisdiction
Norwich Pharmacal relief
Proportionality
Appeal as of right
Duty of full and fair disclosure aka duty of full and frank disclosure

Legislations cited:
International Companies Act 1988
Judicature Ordinance 1961
Samoa International Authority Act 2005

Cases cited:
Campaign Against Arms Trade v BAE System Plc [2007] EWHC 330
Fullers Bay of Islands Ltd v Northland Regional Council [2001] NZCA 14
Golden Eye (International) v Telefonica UK Ltd [2012] EWHC 723
Norwich and Peterborough Building Society v Steed [1991] 2 A11 ER 880
Mohamed R (on the application of) v Secretary of State for Foreign and Commonwealth Affairs [2008] EWHC 2048,
My Noodle Ltd v Queenstown-Lakes District Council [2009] NZCA 224
R v Slater [1996] NZCA 268; [1997] 1 NZLR 211
Re Bateman Television Ltd (In Liquidation) [1974] 2 NZLR 221
Robertson v Gilbert [2010] NZCA 429
Rugby Football Union v Viogogo Ltd [2011] EWCA 1585; [2012] UKSC 55
Stowers v Stowers [2012] WSSC 30
Commissioner of Inland Revenue v Vela Fishing Ltd [2001] NZCA 371

Summary of decision:

IN THE SUPREME COURT OF SAMOA

HELD AT MULINU’U

MISC 1083/10

IN THE MATTER: of the International Companies Act 1988.

BETWEEN:

Z LTD, a company incorporated in the People’s Republic of China.

Appellant

A N D:

OFFSHORE INCORPORATIONS (SAMOA) LIMITED in its capacity as the Resident Agent of Y Limited a company incorporated in Samoa and having its registered office at Ground Floor, SNPF Building, Beach Road, Apia, Samoa.

Respondent

A N D:

SAMOA INTERNATIONAL FINANCE AUTHORITY a body corporate established pursuant to the Samoa International Finance Authority Act 2005.

Third party

Counsel:

B P Heather-Latu for appellant

G Stowers for respondent

M T Lui and A Ah Leong for third party

Hearing (camera): 6 June 2013

Oral Judgment (in camera): 6 June 2013

Judgment (in camera): 14 June 2013

JUDGMENT OF SAPOLU CJ

Non - publication of this judgment

1. Copies of this judgment are given to counsel for the respective parties. Copies of this judgment are also to be included in the copies of the record of appeal to be prepared by the appellant for the Court of Appeal and to be served on the respondent and the third party. This judgment is not to be published in any manner whatsoever without the approval of this Court. This order is subject to any order to be made by the Court of Appeal.

Proceedings

2. After hearing all counsel on 6 June 2013 on the questions of extending time for the appellant to appeal and granting to the appellant leave to appeal, I stated my conclusions denying an extension of time to appeal and leave to appeal. Effectively, this is refusing to the appellant leave to appeal out of time. I told counsel that I will prepare a written judgment setting out my reasons for those conclusions. This is that judgment.

Background

3. On 6 December 2012, I granted an ex parte motion by the present appellant Z Ltd, which is a company registered and operating pursuant to the laws of the People’s Republic of China, against the present respondent Offshore Incorporations (Samoa) Ltd (OIL) which is a trustee company under the International Companies Act 1988 and is the local resident agent for Y Ltd which is an international company registered under the same Act. The orders which were sought pursuant to the appellant Z Ltd’s ex parte motion were (a) a gag order, (b) a sealing order, and (c) an order by way of Norwich Pharmacal relief requiring the respondent OIL to disclose and deliver to the appellant copies of all books, records, materials, and documentation in its possession, custody, power, or control relating to Y Ltd or relating to any companies owned or controlled by Y Ltd or its principals.
4. Subsequently, OIL and the present third party the Samoa International Finance Authority (SIFA), which is a body corporate established pursuant to the Samoa International Finance Authority Act 2005, filed oppositions to the ex parte orders granted to Z Ltd seeking, in effect, a discharge of those orders. On 24 December 2012, after hearing submissions from all counsel, I gave a brief oral judgment discharging the ex parte orders granted to the appellant on 6 December 2012.
5. On 23 January 2013, Z Ltd filed a notice of appeal from my judgment of 24 December 2012. This notice of appeal was only served on the respondent on 15 May and on the third party on 14 May. I, myself, was not made aware of the notice of appeal until 13 May, which was a public holiday, when my assistant registrar informed me about it. At the in chambers meeting with counsel on 15 May 2013 regarding the appellant’s notice of appeal, Ms Heather-Latu appeared as the new counsel instructed by the appellant Z Ltd. I told all counsel that I need to prepare a written judgment as this matter was going to the Court of Appeal but I was not aware of the appeal until 13 May. My written judgment was then prepared and given to counsel on 24 May. Leave was granted to Ms Heather-Latu for the appellant Z Ltd to file a motion for extension of time to appeal as the 30 day time limit provided in r.18 of the Court of Appeal Rules 1961 for an appeal to be brought had expired without the appeal being served on the other parties. Leave was also granted for the appellant to file and serve an amended motion for leave to appeal as the original notice of appeal was filed on 23 January 2013 before my written judgment was given to counsel on 24 May and therefore did not reflect my written judgment. This was done by Ms Heather- Latu on 5 June 2013.

Extension of time to appeal and leave to appeal

6. Every appeal to the Court of Appeal shall be by notice of motion which must be filed with the Registrar and served on every party directly affected by the appeal. This appears from r.10 of the Court of Appeal Rules 1961 which provides:

“Appeals to be by notice stating grounds – All appeals to the Court of Appeal shall be by notice of motion stating the grounds of the appeal and whether the whole or part only of the decision is complained of. The notice of motion shall be filed with the Registrar and shall be served on every party directly affected by the appeal”.

7. The time period allowed to bring an appeal to the Court of Appeal from a decision of the Supreme Court is 30 days unless an extension of time to appeal is granted by the Supreme Court or Court of Appeal. Rule 18, which is the relevant rule, provides:

“Time limit for appeal – No appeal to the Court of Appeal from any decision of the Court shall be brought after the expiration of 30 days from the time when the appellant first had notice thereof unless the Supreme Court or Court of Appeal shall enlarge the time of giving notice of appeal”.

8. Rule 18 gives the Supreme Court or Court of Appeal a discretion to decide whether time should be extended to a party to bring an appeal outside of the 30 days time limit. The factors to be taken into account in the exercise of that discretion are set out in the judgment of this Court in Stowers v Stowers [2012] WSSC 30, paras 21-24 following the decisions of the New Zealand Court of Appeal in My Noodle Ltd v Queenstown-Lakes District Council [2009] NZCA 224 per O’Regan J at para [19]; Robertson v Gilbert [2010] NZCA 429 per Hammond J at para [24]; and the decision of the English Court of Appeal in Norwich and Peterborough Building Society v Steed [1991] 2 A11 ER 880 per Lord Donaldson MR at p.885. These factors are length of the delay, reasons for the delay, conduct of the parties, degree of prejudice to the respondent as a result of the delay, and merits or prospects of success of the appeal. This last factor is particularly influential as the Court would be reluctant to grant an extension of time where the proposed appeal appears hopeless: My Noodle Ltd v Queenstown-Lakes District Council [2009] NZCA 224, para [22] or has no legs: Robertson v Gilbert [2010] NZCA 429, para [24]. However, the overarching consideration in determining whether to grant an extension of time to appeal is where the interests of justice lie.
9. On the issue of leave to appeal, it is important to bear in mind the distinction between an appeal as of right where leave to appeal would be automatic and an appeal by leave of the Court which is discretionary. Section 51 of the Judicature Ordinance 1961 provides:

“Appeals in civil cases – An appeal shall lie in any action, cause or matter, not being a criminal proceedings, to the Court of Appeal from the Supreme Court:

“(a) As of right when the matter in dispute amounts to or is of the value of $400 or upwards; and

“(b) With leave of the Court of Appeal or the Supreme Court if in the opinion of either Court the question involved in the appeal is one which by reason of its general or public importance or the magnitude of the interests affected, or for any other reason, ought to be submitted to the Court of Appeal for decision”.

10. It is clear from s.51 that a proposed appeal which comes under s.51(a) would lie as of right where the matter in dispute amounts to or is of the value of $400 or upwards. On the other hand, a proposed appeal which falls within s.51(b) would require leave to appeal at the discretion of the Court of Appeal or the Supreme Court. Thus, s.51(b) is discretionary.
    11. Section 54 then provides:

“Order granting leave to appeal – (1) No such appeal, whether as of right or not, shall be brought except in pursuance of an order of the Supreme Court granting leave to appeal:

“Provided that, subject to the provisions of subsections (3) and (4) of this section, the Supreme Court shall grant such leave in every case where the appellant is entitled to appeal as of right”.

12. Section 54 thus makes it clear that where an appeal is as of right, leave to appeal must be granted whereas with an appeal that is not as of right, leave to appeal is required from the Court. This relates back to the provisions of s.51 which provides for an appeal as of right and an appeal by leave of the Court.
13. As already mentioned, an appeal is as of right in terms of s.51(a) if the matter in dispute amounts to or is of the value of $400 or more. With an appeal that requires leave in terms of s.51(b), the question involved in the appeal must be one which by reason of its general or public importance or the magnitude of the interests affected, or for any other reason, ought to be submitted to the Court of Appeal for decision. To adapt what Thomas J said in R v Slater [1996] NZCA 268; [1997] 1 NZLR 211, para [4], to the circumstances of these proceedings, this means that there must be: (a) a question; (b) the question must be one which, by reason of its general or public importance or the magnitude of the interests affected, or for any other reason, ought to be submitted to the Court of Appeal for decision; and (c) the Court must be of the opinion that it ought to be so submitted. Thus, in terms of s.51(b), the enquiry must be directed at whether there is a question which by reason of its general or public importance or the magnitude of the interests affected, or for any other reason, ought to be submitted to the Court of Appeal for decision. In this connection, I am of the opinion that the merits or prospects of success of an appeal is a relevant factor to be taken into account, for how can an appeal without merits or any realistic prospect of success be one that ‘ought to submitted to the Court of Appeal for decision’ on any of the specified grounds. To grant leave to an appellant with such an appeal would, in my respectful opinion, be unnecessarily costly, time consuming, and a waste of the time of the Court of Appeal. Such an appeal would, therefore, not be one involving a question which by reason of its general or public importance or the magnitude of the interests affected, or for any other reason, ought to be submitted to the Court of Appeal for decision. As the merits or prospects of success of an appeal is also a relevant factor to be taken into account in determining whether to grant an extension of time to appeal, there is an inter-connection between the question of extension of time to appeal and the question of leave to appeal.

Discussion

14. For convenience, I will deal first with the question of whether an extension of time should be granted to the appellant Z Ltd to appeal out of time and then with the question of whether leave to appeal should be granted. The two questions seem to be inter-connected.

(a) Extension of time to appeal

15. Following the approach adopted in Stowers v Stowers [2012] WSSC 30, I will now consider in turn each of the relevant factors which are relevant in determining whether to grant an extension of time to appeal. These factors are: the length of the delay, reasons for the delay, conduct of the parties, any prejudice to the other parties as a result of the delay, and merits and prospects of success of the appeal.

(i) Length of the delay

16. It was common ground between counsel for the respondent and counsel for the third party that 23 January 2012 was the last day of the 30 day time limit provided in r.18 for bringing an appeal to the Court of Appeal. There was no opposition from counsel for the appellant. I, therefore, take it that the 30 day time limit for bringing an appeal from my oral judgment of 24 December 2012, discharging the ex parte orders that had been granted to the appellant, expired on 23 January 2013.
17. A combined reading of r.10, which requires that every notice of motion to appeal shall be filed with the Registrar and shall be served on every party, and r.18, which provides that no appeal to the Court of Appeal from any decision of the Supreme Court shall be brought after the expiration of 30 days from the time the appellant first had notice of such a decision, clearly suggests that a notice of appeal must be filed and served within 30 days from the time the appellant first had notice of the decision which is the subject of the appeal, that is to say, that both the filing and service of the notice of motion to appeal must be done within that time limit. I am, therefore, in agreement with the argument by counsel for the third party that a notice of appeal must be filed and served in terms of r.10 within the 30 day time limit provided in r.18. Where the notice of motion to appeal is filed within the 30 day time limit but not served on the parties within that time limit, then the appeal must be deemed not to have been ‘brought’ in terms of r.18 within the time limit. Leave for an extension of time to appeal is therefore required.
18. From 23 January 2013 when the original notice of appeal was filed until 15 May and 14 May when it was served on the respondent and the third party respectively is a delay of about 3 months and 3 weeks. This is a significant delay.
    • (ii) Reasons for the delay
19. The reason for the delay in serving the respondent and the third party with the appeal was not known until Ms Heather-Latu, the present counsel or the appellant, informed the Court and counsel for the other parties about it at the hearing on 6 June. She told the Court that there had been an appeal against the award of hundreds of millions of USD made by an arbitral tribunal in Hong Kong in favour of the appellant Z Ltd against the company to which I would refer as “Company B”. The appellant alleges that the chairman and controlling mind of Company B is an individual I would refer to as “Mr. X”. Mr X, as further alleged by the appellant, is the ultimate beneficial owner of Y Ltd which is an international company registered under the International Companies Act 1988. For the purposes of that Act, the resident agent in Samoa for Y Ltd is the respondent OIL against whom the ex parte motion was filed by the appellant for (a) a gag order, (b) a sealing order, and (c) an order for disclosure and inspection of documents by way of Norwich Pharmacal relief.
20. The reason given by counsel for the appellant for the non-service of the notice of appeal on the respondent and the third party within the 30 day time limit is that the appellant decided to await the outcome of an appeal by Company B against the arbitral award made in favour of the appellant in Hong Kong. This is because the appellant considered that if the appeal by Company B in Hong Kong was successful then it would serve no useful purpose for the appellant to continue with its appeal in Samoa. As that appeal has failed, according to counsel for the appellant, the appellant has decided to continue with its appeal in Samoa and to have it served on the respondent and the third party.
21. If this is right, then the delay in serving the appeal was not due to any mistake, ignorance, or oversight on the part of the appellant but to a conscious decision by the appellant to withhold service of its appeal in spite of the time limit of 30 days in which to file and serve its appeal. I must say I do not find this explanation to be a satisfactory excuse for not serving the appeal within time. The appellant could still have served its appeal on the respondent and the third party within the time limit; if, subsequently, the appeal by Company B in Hong Kong turns out to be successful the appellant may still withdraw or discontinue its appeal in Samoa instead of not serving its appeal and keeping quiet about it. All of that, of course, was before Ms Heather-Latu was engaged as counsel by the appellant. Furthermore, the reason that had been given by previous counsel for the appellant for the ex parte motion seeking disclosure and production of books, records, and documents in the possession, custody, power, or control of the respondent OIL was to find out whether they contain any information which would assist the appellant to bring possible legal actions in mainland China and Hong Kong against the said Mr X, Company B, Y Ltd, and other legal entities. There was no mention of any appeal by Company B against the award made by the arbitral tribunal Hong Kong. That information only came up at the hearing on 6 June.
    • (iii) Conduct of the parties
22. It is evident that the respondent and the third party did not contribute in any way to the delay in effecting service of the appellant’s notice of appeal. It is the appellant that was wholly responsible for the delay by purposely withholding service of its notice of appeal which it could easily have done within the prescribed 30 day time limit. The reason given by the appellant for the delay in effecting service of its appeal is also unsatisfactory.
    • (iv) Prejudice to the respondent and third party
23. The respondent and third party must have felt that there was no appeal by the appellant from my oral judgment of 24 December 2012 when they were not served with such an appeal at the expiration of the 30 day time limit to appeal and then for about 3 months and 3weeks thereafter. It must have been a frustration to them to find out that there was actually such an appeal when they were served with it. Apart from this, there was no other prejudice; at least no other prejudice was referred to by counsel for the respondent or the third party.
    • (v) Merits or prospects of success
24. In my written judgment of 24 May 2013 where I have set out my reasons for my brief oral judgment of 24 December 2012 discharging the ex parte orders I had granted to the appellant on 6 December 2012, I pointed out that Norwich Pharmacal relief, which is in the nature of third party discovery, is an equitable remedy that lies in the Court’s equitable jurisdiction. As such, Norwich Pharmacal relief is a discretionary remedy. Based on what Thomas LJ said in delivering the judgment the English Court of Appeal in Mohamed R (on the application of) v Secretary of State for Foreign and Commonwealth Affairs [2008] EWHC 2048, para 64, I set out the requirements to be satisfied for Norwich Pharmacal relief as follows:
    • (a) Was there a wrongdoing?
    • (b) Was the respondent, however innocently, involved in the arguable wrongdoing?
    • (c) Was the information necessary?
    • (d) Was the information sought within the scope of the available relief?
    • (e) Should the Court exercise its discretion in favour of granting relief?
25. Given the circumstances and the urgency required in getting out my written judgment of 24 May 2013, I assumed without deciding that the requirements for Norwich Pharmacal existed except for the last requirement which is the exercise of discretion. In the exercise of that discretion, I decided to discharge the ex parte orders on two grounds. The first was that if the ex parte order for disclosure was allowed to stand it would be creating a precedent which could lead to the demise of the third party SIFA which is contributing so much to the economic well-being of the country. This would be disproportionate to any inconvenience to the appellant if the order for disclosure was discharged. I also referred to English cases such as Golden Eye (International) v Telefonica UK Ltd [2012] EWHC 723; Campaign Against Arms Trade v BAE System Plc [2007] EWHC 330; Rugby Football Union v Viogogo Ltd [2011] EWCA 1585; [2012] UKSC 55 where proportionality was considered a relevant factor to the exercise of discretion for Norwich Pharmacal relief.
26. The second ground which was taken into account in the exercise of my discretion is s.227 of the International Companies Act 1988 which was not cited in the appellant’s ex parte motion, affidavit in support, or submissions. When considering s.227, I had in mind the duty of full and fair disclosure, also known as the duty of full and frank disclosure, which applies to ex parte motions and applications. Non – compliance with that duty could lead to the discharge of an order obtained ex parte. Section 227, as far as relevant, provides as follows:

“Certain information to be kept confidential – (1) For the purposes of this section, information or communications of an international company or a foreign company registered under this Act (whether in Samoa or elsewhere) are ‘information or communications to which this section relates’, if the information or communication relates to or concerns:

(a) the shareholding in or beneficial ownership of any share or shares in such a company;
(b) the identity of any member of such a company or the interest (legal or beneficial) or any such member in such a company;
(c) the management or officers of such a company;
(d) any of the business, financial or other affairs or transactions of such a company;
(e) the assets or liabilities of such a company; or
(f) the contents of any register maintained by such a company.

(2) Any person or entity who:

(a) divulges information or communications to which this section relates;

(b) attempts, offers or threatens to divulge information or communications to which this section relates; and

(c) induces or attempts to induce other persons to divulge information or communications to which this section relates;

(d) incites, abets counsels or procedures any person to divulge information or communications to which this section relates; or

(e) is knowingly involved with the divulging of information or communications to which this section relates,

commits an offence against this Act.”

27. Section 227(3) then provides for certain exceptions to the prohibition against disclosure provided in s.227(1) and (2). None of those exceptions applies to these proceedings and therefore I need not refer to them. Section 227(4) – (6) then provides:

“(4) Notwithstanding subsection (3), the Authority may in its absolute discretion:

(a) prohibit any disclosure of any information permitted by this Act; or
(b) require that any information that is provided be subject o any restriction on its disclosure, or the giving of an undertaking that it shall be kept confidential.

“(5) In recognition of the desirability of maintaining confidentiality in respect of the activities of all international companies and foreign companies registered under this Act, the Authority may do all things which, in its opinion, are necessary to give effect to the provisions of this section.

“(6) This section shall apply to every international company and to every foreign company to the extent to which that information relates to any:

(a) branch of the foreign company in Samoa; or
(b) any business which the company conducts in Samoa; or
(c) to any person associated with the company who is a lawful resident of Samoa.”

28. In my opinion, the broad provisions of s.227 provide a complete bar to the ex parte motion by the appellant. If I had been aware of s.227 at the time of the appellant’s ex parte motion, I would not have granted the orders sought. So when the respondent and the third party sought a discharge of the ex parte order for disclosure granted against the respondent, I decided at the hearing on 24 December 2012 to discharge that order. As a result, the ex parte gag order and sealing order that had also been granted were also discharged as they longer served any useful purpose.
29. In these proceedings for extension of time to appeal and for leave to appeal, present counsel for the appellant referred not only to s.227 but also to s.227 B which, as far as relevant, provides:

“(1) Subject to subsections (2) to (5), a Court may order that the records and registers of an international company are to be deposited with the Registrar and that such records, books and registers, and the entries in the Registrar’s registers and records relating to that company are to be made available by the Registrar for inspection in accordance with the order of the Court, if:

“(a) in any proceedings for winding - up an international company the Court is satisfied that the international company or any officer of the company has failed to comply with any provision of this Act; or

“(b) an international company or any officer of the company is convicted by any Court of any offence under this Act”.

30. Evidently, s.227 B (1) empowers the Court to make an order for inspection of the records, books and registers of an international company as well as the relevant entries in the Registrar’s registers in appropriate proceedings for winding - up an international company or where an international company or any of its officers is convicted of an offence under the Act. None of these situations applies to these proceedings. So s.227 B(1) is not relevant. Neither is any other provision of s.227 B.
31. The argument presented by counsel for the appellant is that neither s.227 nor s.227 B excludes the equitable jurisdiction of the Court to make an order for disclosure against the respondent by way of Norwich Pharmacal relief. That jurisdiction therefore still applies. With due respect to counsel for the appellant, I am of the view that her argument is untenable. Not only is there no express provision in ss.227 or 227 B to show that the Court in its Norwich Pharmacal jurisdiction can still issue orders for disclosure in spite of those provisions but such a jurisdiction cannot be implied given the clear prohibition in s.227 against the making of such orders. To accede to the argument for the appellant would result in the Court re-drafting the provisions of s.227. But, of course, the Court cannot do that. The appeal by the appellant, therefore, has no realistic prospect of success.

Conclusion on extension of time to appeal

32. Given the significant delay in bringing the appellant’s appeal, the fact that the reason given by the appellant for the delay is unsatisfactory, that the appellant was wholly responsible for the delay, and particularly the fact that the appeal has no realistic prospect of success, I conclude that leave for an extension of time to appeal should be declined.

Leave to appeal

33. The relevant statutory provisions on the question of leave to appeal are ss.51 and 54 of the Judicature Ordinance 1961 set out in paras 9 and 11 of this judgment. Counsel for the appellant submitted that the appeal by the appellant is as of right in terms of 51(a) of the Ordinance because the matter in dispute amounts to more than $400. Counsel said the matter in dispute relates to a dispute in mainland China and Hong Kong worth millions of US dollars between the appellant and a different party. With respect, I am not able to agree with counsel for the appellant that this is an appeal as of right in terms of s.51(a)
34. The dispute in mainland China and Hong Kong is between the appellant and a different party. It is not a dispute between the appellant and the respondent. The words ‘matter in dispute’ in s.51(a) must mean the matter in dispute before this Court between the appellant and the respondent. That matter in dispute was principally about whether an order for disclosure and inspection of books, records, and documents in the possession, custody, and control of the respondent should have been made against the respondent. It is not possible to place a monetary value on such a matter. That was also the position taken by counsel for the respondent and for the third party. The appeal by the appellant is therefore not as of right in terms of s.51(a) as the value of the matter in dispute is not measurable in monetary terms.
35. I turn now to the decisions of the New Zealand Court of Appeal which provide helpful guidance to the interpretation to be placed on s.51(a). In Re Bateman Television Ltd (In Liquidation) [1974] 2 NZLR 221 the Court had to consider and apply the Order in Council of 1910 which applied to appeals from the New Zealand Court of Appeal to the Privy Council. Rule 2 of the Order in Council, which was the relevant rule, provided:

“Subject to the provisions of these Rules an appeal shall lie –

“(a) As of right from any final judgment of the Court of Appeal where the matter in dispute on the appeal amounts to or is of the value of five thousand New Zealand dollars or upwards, or where 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 five thousand New Zealand dollars or upwards; and

“(b) At the discretion of the Court of Appeal from any other judgment of that Court, whether final or interlocutory, if, in the opinion of that Court, the question involved in the appeal is one which by reason of its general or public importance or of the magnitude of the interests affected or for any other reason, ought to be submitted to Her Majesty n Council for decision”.

36. The essential facts of Re Bateman Television Ltd (In Liquidation) were that the appellants were contributories as shareholders in the winding up of certain companies and they sought leave to appeal to the Privy Council from a judgment of the New Zealand Court of Appeal which approved a motion by the liquidator for liberty to sell a major part of the assets of the said companies to the respondents for a sum of over $300,000. Counsel for the appellants contended, inter alia, that the appellants appeal was as of right as the matter in dispute was more than five thousand New Zealand dollars in value. The Court did not accept that contention as the appellants claim did not relate directly to any property but to a motion by the liquidator seeking liberty to sell part of the assets of the companies in liquidation. In the opinion of the Court the claim by the appellants was not a direct but an indirect claim to property. In delivering the judgment of the Court, McCarthy P said at pp 222-223:

“In claiming leave as of right, Mr Patterson first says that the application falls within the first leg of R2 (a) for ‘the matter in dispute on the appeal amounts to or is of the value of five thousand New Zealand dollars’. We do not accept this. The [appellants] make no direct claim to the property affected by the motion to the Supreme Court, a motion by the liquidator seeking liberty to sell assets mentioned on specific terms. True, the applicants dispute the power of the liquidator to dispose of the assets in that way, but on the monetary aspect all they can urge is that if the sale in the particular form proposed does not take place, they as shareholders in the companies may – and it is a doubtful may – have some chance of there being a surplus after payment of creditors and hence of their participating in a distribution. This is not an application which fits into the first leg of R2(a)”.

37. McCarthy P then continued at p.223:

“The motion with which we are concerned does raise a question respecting the assets proposed to be sold but the applicants interest in the question is, as we have indicated, merely an indirect one; it is not a direct claim to the property. To place a value on this interest is extremely difficult.”

38. Then further on at p.223, McCarthy P said:
    • “As we read the rule [R2(a)], the first leg is suitable for cases where the applicant’s claim involves directly the sub-ject matter of the litigation, such as a claim for debt or damages. In such claims, it is proper that the applicant’s right to leave be determined by the value of the property or sum of money claimed”
39. Section 51(a)of our Judicature Ordinance 1961 which provides for an appeal as of right is similar in terms to the first limb of R2(a) of the Order in Council of 1910 (NZ). It appears from Re Bateman Television Ltd (In Liquidation) [1974] 2 NZLR 221, pp 22-223, that a claim to a direct interest in property would fall within the first part of R2(a) but not a claim to an indirect interest in property as it would be extremely difficult to place a monetary value on such an indirect interest. In addition, the first limb of R2(a) is suitable to such claims as a claim for debt or damages which can be measured in monetary terms. This is one of the points made by counsel for the third party in their well-argued submissions. So it would appear that the argument for the present appellant that its appeal is as of right because it is somehow connected to a dispute which involves the appellant and a different party in mainland China and Hong Kong is not supported by Re Bateman Television Ltd (In Liquidation) (supra).
40. The next decision of the New Zealand Court of Appeal which was concerned with an application for leave to appeal to the Privy Council under R2(a) of the Order in Council of 1910 is Fullers Bay of Islands Ltd v Northland Regional Council [2001] NZCA 14 where Blanchard J in delivering the judgment of the Court said at para [9]:

“[9] Turning to the second requirement of at least $5,000 in value, the Rule provides that it can be met in one of two ways. The first entails there being a matter in dispute on the appeal of a value of at least $5,000. Under this limb an indirect claim, even if of the requisite value, cannot suffice; (Re Bateman Television Ltd (In Liquidation) [1974] 2 NZLR 221, 222). As neither of the proceedings in which the appeal was brought directly raises any question of measurable value this limb of R2(a) is not satisfied”

41. In the third case where the New Zealand Court of Appeal dealt with R2(a) of the Order in Council of 1910, namely, Commissioner of Inland Revenue v Vela Fishing Ltd [2001] NZCA 371, para [25], Tipping J in delivering the judgment of the Court, agreed with the interpretation of the first limb of R2(a) by the Court in Re Bateman Television Ltd (In Liquidation) [1974] 2 NZLR 221.
42. The New Zealand authorities I have referred do lend support to the view I have adopted that the present appeal is not an appeal as of right in terms of s.51(a) of the Judicature Ordinance 1961 because the value of the matter in dispute cannot be measured in monetary terms. Leave is, therefore, not automatic.
43. The appellant also relied in the alternative on s.51(b) which is discretionary and has been discussed in paras 10 and 13 of this judgment. Under s.51(b) leave of the Court to appeal to the Court of Appeal is required. Counsel for the appellant submitted that the appeal contains a question which by reason of its public importance ought to be submitted to the Court of Appeal for decision. It has been difficult to identify any relevant question of public importance which arises from the context of this appeal as the proceedings by the appellant against the respondent were principally for the disclosure and inspection of books, records, and documents in the possession, custody, power, and control of the respondent. These are proceedings between two individual companies of a private nature for what is in effect third party discovery. Counsel for the appellant therefore submitted that the question of public importance which ought to be submitted to the Court of Appeal for decision is the viability of the third party as an offshore finance centre. With respect, I disagree. That was not a question for decision in these proceedings. The potential impact of the ex parte order for disclosure on the existence of the third party was only a factor taken into account in determining whether the ex parte order for disclosure ought to be discharged in the exercise of the Court’s discretion. There was another important factor which was taken into account in the exercise of the Court’s discretion. This was the secrecy provisions of s.227 of the Act which bans disclosure of the information sought by the appellant.
44. The third party was also established under the Samoa International Finance Authority Act 2005 by reason of government policy. The viability or otherwise of the third party would be more a matter within the province of the executive branch of government.
45. In any event, I have decided that the appeal has no merit or realistic prospect of success. So even if the viability of the third party is a question of public importance in this context as submitted for the appellant, I am of the view that it is not a question that ought to be submitted to the Court of Appeal for decision because the appeal is without any realistic prospect of success. In addition, I have also declined extension of time to appeal.

Conclusions

50. 50. For the foregoing reasons, I have arrived at the following conclusions:

(a) Leave to extend time to appeal is denied.

(b) Leave to appeal is also denied.

51. As I have been informed that the appellant will seek leave to appeal to the Court of Appeal, costs are reserved.
    

CHIEF JUSTICE

Solicitors

Latu Law Firm for appellant

Stevenson Lawyers for respondent

Attorney General’s Office, Api,a for third party