Contact Energy Limited v Moreau - [2018] NZHC 2884

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] NZHC 2884
Decision Date: 7 November 2018

CaseChat Overview and Summary

In this case, Contact Energy Limited sought various declarations in relation to the interpretation of the Consumer Guarantees Act 1993 (CGA) and the Energy Complaints Scheme. The central dispute was whether the acceptable quality guarantee in s 7A of the CGA applied to events over which the electricity provider had no control. The court concluded that while the guarantee was unlikely to be breached if the safety, reliability, or quality of the electricity supply was affected by an adverse event over which neither the retailer, lines company, nor any other person involved in the supply of electricity had any practical control, the inquiry as to whether the guarantee had been breached was fact and degree specific. The court did not make the declarations sought regarding the acceptable quality guarantee, the approach to statutory interpretation, the obligations under the Energy Complaints Scheme, and the assessment of damages. The court did, however, make some observations on the interpretation of s 7A of the CGA and the Commissioner's approach to natural justice in the complaint at hand.

Orders