IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2017-485-962
[2018] NZHC 2884
UNDER the Declaratory Judgments Act 1908 BETWEEN
CONTACT ENERGY LIMITED
Plaintiff
AND
NANETTE ALICE MOREAU
First Defendant
MINISTER OF COMMERCE AND CONSUMER AFFAIRS
Second Defendant
Hearing: 13 and 14 August 2018 Counsel:
S M Bisley and O C Gascoigne for Plaintiff
A L Holloway and E B Moran for First Defendant W L Aldred for Second Defendant
Judgment:
7 November 2018
JUDGMENT OF THOMAS J
Introduction [1]
Background [6]
The electricity industry [7]
Power disturbances [12]
The Complaint [17]
Declarations sought [24]
Purpose [26]
Section 7A of the Consumer Guarantees Act 1993 [29]
Background History [31]
History of the CGA [31]
Contact Energy Ltd v Jones [33]Parliamentary material [39]
Submissions [43]
Analysis [50]
CONTACT ENERGY LIMITED v MOREAU [2018] NZHC 2884 [7 November 2018]
The Complaint [65]
Rule 24 of the Scheme [71]
The Energy Complaints Scheme [71]
Declaration sought [80]
Approach to interpretation [89]
Statutory interpretation [92]
The Disputes Tribunal Act [94]Overseas jurisdictions [99]
(i)England and Wales [100]
(ii)Australia [104]
Analysis [107]
Natural justice [124]
What does the Scheme require? [126]
What does natural justice require? [128]
The Complaint [131]
Should the declaration be made? [134]
Damages [142]
Declarations [153]
Result [158]
Introduction
[1] On 4 June 2015, an unknown third party crashed a car into a power pole owned by the electricity distribution company, Vector Ltd, damaging the pole and power lines. This caused over-ground high-voltage lines conveying 11 kV of electricity to come into contact with low-voltage lines designed to convey 400 V of electricity. The low voltage lines were connected to a nearby house owned by Mr S. As a result, an unknown, but high, voltage entered the electrical circuits in Mr S’s house, causing damage.
[2] Mr S sought compensation from his electricity retailer, Contact Energy Ltd (Contact). He then made a complaint under the Electricity and Gas Complaints Commissioner’s Scheme of which Contact is a member (the Complaint). The first defendant (the Commissioner) dealt with the Complaint. She found Contact had breached the guarantee of acceptable quality for the supply of electricity under s 7A of the Consumer Guarantees Act 1993 (CGA) and recommended Contact pay Mr S a sum of money in compensation.
[3] Contact and the Commissioner have agreed to seek the Court’s guidance on how the acceptable quality guarantee in s 7A applies in relation to adverse events over which the electricity provider has no control.
[4] Contact also seeks declarations as to the approach the Commissioner should follow in determining complaints under the Energy Complaints Scheme (the Scheme) approved by the Minister of Commerce and Consumer Affairs under the Electricity Industry Act 2010 (EIA), in particular as to her obligation to comply with applicable legal authority and observe the principles of natural justice. The Commissioner opposes the making of these declarations.
[5] The Minister of Commerce and Consumer Affairs (the Minister) abides the decision of the…
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