Frankel Consultants Limited v Enviro Waste Services Limited

[2012] NZHC 2142

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-8211 [2012] NZHC 2142

BETWEEN  FRANKEL CONSULTANTS LIMITED Plaintiff

ANDENVIRO WASTE SERVICES LIMITED Defendant

Hearing:         28 June 2012

Appearances: Mr I Williams and Mr E Krishnan for Plaintiff

Mr B Stewart QC and Mr S Cook and Ms O Obushenkova for
Defendant

Judgment:      23 August 2012

JUDGMENT OF ASSOCIATE JUDGE DOOGUE

This judgment was delivered by me on

23.08.12 at 4.30 p.m., pursuant to

Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Counsel

Buddle Findlay, P O Box 1433, Auckland – [email protected] /

[email protected]

(Counsel: Mr B Stewart QC – [email protected]

Mr I Williams, Barrister, Auckland – [email protected]

FRANKEL CONSULTANTS LIMITED V ENVIRO WASTE SERVICES LIMITED HC AK CIV-2011-404-

8211 [23 August 2012]

Factual background

[1]      In the mid to late 1970s, the Auckland Regional Council (“ARC”) operated landfills at Pikes Point East and Pikes Point West, Onehunga.  Tipping at the Pikes Point East landfill began in 1974 and ended in 1977.   Tipping at the Pikes Point West landfill began in 1977 and ended in 1981.  By 2008 — the point at which the events occurred which give rise to the dispute between the parties — although ARC was no longer operating the site as a tip, it continued to oversee what is called the “after-care” aspects of the tip to ensure that statutory environmental standards were being met.  A more detailed discussion about what powers and obligations the ARC had in relation to the site follows later in this judgment.

[2]      The defendant/applicant, EnviroWaste Services Limited (“EnviroWaste”), is a provider of waste services.  At the time when the events giving rise to the dispute in this matter occurred, the defendant was providing after-care services to the ARC under contract.

[3]      From the early 1990s onwards, Mr Prem Singh (a senior landfill engineer at EnviroWaste) was primarily responsible for aftercare at the Pikes Point sites.  In Mr Singh’s words, his involvement with the site “was as an employee of EnviroWaste, with  responsibility  for  undertaking  those  companies’  contractual  obligations  to ARC”.  One of Mr Singh’s responsibilities was to report to the ARC at least monthly “in respect of its obligations”.

[4]      The  plaintiff/respondent,  Frankel  Consultants  Limited  (“Frankel”),  is  a property developer  that  now  owns  the  former  Pikes  Point  landfill  site.    At  the relevant time, it was developing the site upon which it intended to construct warehousing and office buildings.   There were other entities involved, including contractors who were there at the direction of and with the authority of the plaintiff, but for the purposes of this judgment when I describe actions taken at the site, they will be attributed to the plaintiff.

[5]      The work was being carried out pursuant to a resource consent which had been issued by the Auckland City Council (“ACC”).   Essentially this consent permitted the plaintiff to subject the ground at the site to pre-loading processes.

[6]      However during the course of this development, Frankel carried out a major excavation of the landfill material on the site.   Mr Singh became aware of the excavations and visited the site.   Just how Mr Singh became aware that this had occurred was the subject of controversy.  Mr Singh said that he was alerted to the fact that excavation was being carried on the site because from his offices (which were approximately 1 km distance from the site), he began to smell the odour of refuse.

[7]      In any event, for whatever reason, Mr Singh visited the site and his response can be summarised by saying that he was taken aback by what was occurring at the site.  His concerns were these.  First, he considered that the excavation lay outside the terms of the resource consent that the plaintiff had obtained from the ACC.  The development for which consent was obtained in relation to the site envisaged only limited excavation for drainage purposes.  Further, it was his view that a protective clay cap or cover that had been placed over the landfill area had been partially destroyed.

[8]      Mr Singh said that the scale of the excavation was very large.  He thought some 40,000 cubic metres of material had been dug out and stockpiled elsewhere on the site.    Additionally,  the way in  which  the  excavation  operations  were being conducted at the time he inspected the site gave him cause for concern.  He said that he observed that wind-driven dust was blowing over employees of the contractor who were working on the site.   Those persons did not, according to his evidence, have any protection against wind driven asbestos dust.  As well, there was a public walkway near to the former tip site and he was concerned about pedestrians being exposed to asbestos dust.   He understood that there was asbestos in the landfill material that was in danger of being dispersed as it was being lifted out and moved to a different location on the site.  Mr Singh made his observations on 12 June 2008.

[9]      In an e-mail that he sent to ARC staff members on the same day, Mr Singh referred to the possible generation of leachate that could find its way into the Manukau Harbour as a result of the excavations and other works that the defendant had undertaken at the site.  He further considered that the operations that were being carried out may be in breach of the Resource Management Act 1991 (RMA). It was his evidence that he told a representative of Southpark this.  Southpark was involved with the plaintiff in the development of the site.

[10]      On 16 June 2008, Ms Ross who was a compliance officer for the ARC, visited the site and issued a stop work notice.  Ms Ross followed this with a letter to the plaintiff dated 17 June 2008.  In this letter, she referred to the fact that what had occurred had the potential to permit rainwater to enter the landfill, leading to an increase in production of leachate and methane.  She also referred to the fact that the excavation had been carried out without consent from ARC, and the placement of rubbish on the land without proper methods or measurements to reduce the risk of pollution  to  the  environment  and  human  health.    She  referred  to  the  fact  that discharge of contaminants onto the ground or into natural water was an offence under the RMA unless authorised.

[11]     On 17 June 2008, Mr Singh wrote to Ms Ross commenting on the need to cover the stockpile, to prevent any possibility of airborne asbestos or other uncontrolled waste being blown off the site.

[12]     From at least the beginning of July 2008 the ARC consulted with ACC about measures that ought to be taken in respect to the Pikes Point site.  An exchange of e- mails on 7 and 8 July is illustrative of this.   They show that both parties were in discussion about who had jurisdiction to address which aspects of the excavation that had occurred at the site.  The ACC manager involved in the e-mail exchange agreed that the asbestos issue was one that was more appropriately to be dealt with by his organisation.  He noted:

It is Dowdell & Associates [a specialist air-monitoring contractor] opinion that potential public risk from asbestos fibre release exists in this case only when the stockpile is disturbed i.e. via required excavation and removed to licensed landfill.

[13]      On 16 July, an abatement notice under the RMA was sent to the plaintiff.  In the letter that accompanied it, Ms Ross referred to the fact that the excavation works had not been consented to and were likely to result in discharge of contaminants that may enter water.  She said that the works were a contravention of the RMA.

[14]     Also produced in evidence was a report that Ms Ross and another ARC officer wrote on 2 October 2008.  This referred to the fact that unconsented work had been carried out and that some 25,000 m³ of the landfill had been excavated together with clay cap cover and placed in the stockpile.  It referred to the fact that abatement notices had been served “to halt the works, to cover the stockpile, carry out remedial works, and provide an explanation why these works were carried out”.

[15]     Significantly, the 2 October report also referred to concern about asbestos being excavated. It was reported that:

Initial testing of air quality in the area has shown that the risk to airborne asbestos is small and not currently a health risk, and covering the stockpile with  polythene  sheeting  has  helped  to  reduce  the  risk.    Auckland  City Council ACC are currently managing the asbestos issue from a human health perspective.

[16]     The  report  of  2  October  also  referred  to  the  fact  that  the  plaintiff  had appealed the issue of the abatement notices, which were going to be withdrawn, but were reissued with the company apparently taking the view that there had not been any non-compliance at the site.

[17]     The firm of Dowdell & Associates, who specialised in asbestos monitoring, went to the site to carry out monitoring of the asbestos risk on 30 June 2008.  They apparently tested on two separate occasions.  They reported the results of their first sampling procedures and assessed that there was no airborne asbestos discharge from the site, but they did accept that those tests had been carried out when conditions were wet.   That was significant, I understand, because rainfall would result in the dampening down of the landfall material and a reduction of the amount of dust that would emanate from the site.

[18]     Mr Singh’s involvement in the issue continued with communications between

him and the ARC and also he was provided with copies of various reports.  One of

these was provided by Mr Sax, a director of the plaintiff. The report included a summary of the test results obtained by Dowdell & Associates.  Mr Sax expressed his opinion that it was highly unlikely that there was any free asbestos outside acceptable guidelines to be found anywhere on the site.  He said that all that would be found would be some fragments of asbestos cement fibreboard which could not constitute a health hazard.

[19]     When a copy of this report was sent to Mr Singh, he responded on 7 July

2008 criticizing the methodology that was being used in carrying out the test.   His main point was that what was being reported on was not the same situation he had observed — where the material was being excavated, carted and dumped and left unexposed on the site.  Mr Singh’s e-mail of 30 June 2008 is to the effect that the sampling was flawed because it did not reflect possible asbestos release arising from the excavation operations that had been carried on at the site, but which were not being carried on when the testing was done.

[20]     The asbestos issue continued to be a live one right through 2008.  In October, Tonkin & Taylor, a firm of consulting engineers, produced a report on the asbestos testing showing that asbestos was present in 25 per cent of the samples that they took from the landfill, with some such samples showing asbestos levels in excess of the acceptable asbestos soil levels for residential sites.  However, in the majority of the samples, asbestos was bound in cement rather than in free fibres, and that was the reason why the report concluded that the asbestos present was “likely to be non- respirable”.   Two quotations from the report will give the flavour of the report sufficiently for the purposes of the present proceedings.   The first passage is as follows:

6.1      Key stockpile investigation findings:

...

Both refuse and non-refuse material contains asbestos, largely bound up in cement board fragments greater than 2mm. Therefore, in terms of human health, the asbestos risk in all refuse and non-refuse material must be managed through either offsite disposal to license landfill or, redistribution onsite.

[21]     The second passage is as follows:

6.3.3    Asbestos

Throughout the refuse and non-refuse materials asbestos occurs.  While the asbestos is largely bound up in cement board fragments greater than 2mm, its presence means that human health exposure needs to be managed during redistribution of the stockpile and in the disposal areas onsite.

The asbestos regulations set out requirements for disposal of asbestos waste. Specifically item (3) states:

“(3)      Every employer must take all practicable steps to ensure that all asbestos waste is, as soon as possible after it is produced, disposed of safely and regularly by –

(a)       depositing it in a place approved for the purpose by a territorial authority under the Resource Management Act 1991;

(b)      immediately covering it with not less than 1 metre of

earth”.

Therefore, to comply with the asbestos regulations a 1 metre thick cap of clean asbestos-free imported material will need to be placed over all areas where refuse and non-refuse material is disposed onsite.

[22]     My understanding of the effect of this report is that it did not dissent from the earlier findings of Dowdell & Associates about the non-existence of the non- respirable asbestos levels.   However, because there was asbestos on the site, the developers were required to deal with it in accordance with regulations promulgated for that purpose.  The Tonkin & Taylor report was obtained on the instructions of the plaintiff.  Even from the perspective of that report, while the escape of breathable asbestos from the site was not an issue, there were still statutory controls that had to be observed with respect to the way the asbestos that had been found in the sampling of the site needed to be handled.

[23]     Apparently the ARC wished to have some further clarification of the health hazards inherent in the site even after the Tonkin & Taylor report of October 2008. Tonkin & Taylor added the further comments 2 December 2008.  In their reply they said that the scope of their additional comments were as follows:

2.0      Objective and scope of this letter

The objective of this letter is to provide information in response to the ARC

email dated 19 November 2008. The following information was requested:

An appraisal of risk to human health through asbestos exposure during the creation  of  the  stockpile  (while  the  excavation  and  stockpiling  was occurring).   This should cover site workers and those on adjacent properties/members of the public etc.

List, describe brief details, and discuss pros and cons of Option 1 (redistributing) and Option 2 (removal) with respect to asbestos.  Of interest is how asbestos fibres will react to further spreading and to compaction.  In addition,  please  include  a  brief  environmental  risk  assessment  of  each option.

Detail liaison with the Department of Labour and OSH through the duration of this development.

These issues are discussed in detail in the following sections.

[24]     At paragraph 3.4 of their report, they stated:

In summary

The mean concentration of asbestos in soil was an order of magnitude lower than possible acceptance values currently being discussed in the scientific community.

The predominant type of asbestos present was chrysotile which presents lower risk than other asbestos materials.

The period of exposure was more than two orders of magnitude lower than assumed in deriving these currently discussed values;

Site conditions during the works were such that dust generation was extremely unlikely to occur, and wind direction was such that any dust was highly unlikely to migrate towards publicly accessible areas.

This indicates that the risk to site and adjacent site workers and the general public from exposure of airborne asbestos fibres during the stockpile formation was orders of magnitude lower than the level of risk on which current acceptance values and discussion documents are based.

[25]     Yet   another   expert   report   was   obtained   about   the   site   from   a

Messrs McFarland, Dangerfield and Sprott, dated December 2009.

[26]     This  report  affirmed  that  there  was  risk  to  human  health  from  asbestos escaping from the site.  However, it must be noted that the report was dependent on the observations that Mr Singh said he made when he visited the site on 12 June

2008, and that dust had been carried off the site on that day as part of the excavation

that was being undertaken.  The report’s authors noted that no air monitoring testing was  carried out  at  the  stage  when  the excavation  and  stockpiling was  in  train. Further, they apparently took the view that available case studies and models reporting on asbestos or airborne carriage of asbestos samples and resulting exposure to asbestos contamination might not be applicable to a situation where excavation, transport and stockpiling of the material was taking place.  The latter circumstances, they opined, carried with it a greater potential for liberation of asbestos.

[27]     The ARC and the ACC both served abatement notices on the plaintiff, which had the effect of stopping the work at the site.

[28]     The ARC issued a stop-work notice on 16 June 2008, which required that the refuse stockpile be removed, that clay be placed over the excavated area, an earthworks  management  plan be provided,  and  an  explanation  given  as  to  why earthworks were undertaken.   The justification for that notice was set out in its grounds.  Two of those grounds were related to asbestos issues.  However the stop work notice also gave as grounds that the excavation on the site could cause storm water  to  enter  the  stockpile  and  potentially  increase  leachate  and  methane production.

[29]     The ARC issued an abatement notice on 16 July 2008.  That too required the cessation of earthworks or discharges in breaches of the Resource Management Act, the exposure of refuse or stockpiling of clay, fill material or refuse in breach of the Resource Management Act, and any building works, until required consents were obtained.    The  reasons  given  were  that  as  at  16  June  2008,  excavation  and stockpiling of landfill material in an amount of 42,000 cubic metres had occurred. Gravel and geo-textile fabric had been laid over the excavated area.  The earthworks were “likely to result in the discharge of contaminant on to land where it may enter water”.

[30]     It will be observed that the abatement notice did not in turn refer to asbestos contamination emanating from the site.   The abatement notice was issued on the general grounds that the activities on the site had been in contravention of ss 9(3) and 15(1)(b) of the RMA.

[31]     On  22  July  2008,  the  ACC  issued  an  abatement  notice,  which  Mr  Sax described in the following terms:

37.On  16  July  2008,  the ARC  issued  Frankel  an  abatement  notice requiring Frankel to cease any earthworks or discharges in breach of the RMA, any exposure of refuse or other material, and any building works until required consents were obtained (exhibit PS16).   The notice did not refer to asbestos.  The reason given for the notice was that the earthworks undertaken were “likely to result in the discharge of contaminant onto land where it may enter water”.

[32]     Mr Sax also observed that:

38.On  22  July  2008,  the ACC  issued  Frankel  an  abatement  notice requiring it to cease further earthworks, maintain the stockpile under a geo-textile cover, and to undertake further contamination and geotechnical reporting of the stockpile.   Again, the notice did not refer to asbestos.

[33]     The ACC issued an amended abatement notice on 13 August 2008.   An earlier abatement notice issued by ACC required the plaintiff to cease further earthworks, maintain the stockpile under a geo-textile cover, and to undertake further contamination and geo-technical reporting of the stockpile.  This amended abatement notice extended the time for compliance with part of the steps that were required to be taken  by the original  abatement  notice.    A  further  clause  was  added  to  the amended  abatement notice “requiring a  methodology for this stockpile contamination investigation” to be provided to the ACC by 27 August 2008.  The abatement notice required all stockpile material to be removed to an appropriate licensed landfill facility.  It required the cessation of earthworks that resulted in the exposure  of  refuse  or  stockpiling.  It  also  required  that  the  plaintiff  cover  the stockpile with:

an  appropriate low permeability material to  minimise  rainfall or surface water from entering the stockpile.  The material must also be appropriate to ensure against any potential asbestos fibre release.

[34]     The notice also directed that:

a)If the cover is compromised, monitoring of airborne asbestos shall be undertaken until the cover is re-instated.

[35]     The abatement notice also required the plaintiff to engage consultants to develop  a  site  management  plan  for  the  disposal  of  the  stockpile  and  the management of the site.  The site management plan was to contain an assessment of the geo-technical stability of the stockpile and required the preparation of a site plan which  showed,  amongst  other  things,  “an  estimate  of  the  type  and  quantity  of material and of asbestos within and on the stockpile”.   The site management plan was also to make recommendations to the council on how to avoid, remedy or mitigate any adverse affects on the environment and human health as a result of the stockpile’s  creation  and  placement.    There  was  also  an  obligation  to  engage  a suitably qualified consultant to investigate the type and quantity of material and of asbestos within the stockpile.  The notice also referred to the fact that:

(d)       Limited testing of the service of the stockpile has confirmed the presence of asbestos.  The presence of asbestos has the potential to pose risks to the health of users of the adjacent council walkway.

[36]     On 10 September 2008 the ARC issued an amended abatement notice which forbade the carrying out of earthworks, exposure of refuse or stockpiling of, inter alia, refuse.  The reasons given for the notice were:

On 16 June 2008 at Pikes Point Landfill, 5 Miami Parade, Onehunga, earthworks were being carried out by Mirza Nominees Ltd including the excavation and stockpiling on site of about 24,470 cubic metres of landfill material and the laying of gravel and geotextile fabric directly over the excavated area.   The earthworks were likely to result in the discharge of contaminants onto land where they may enter water.

This abatement notice is issued because in my opinion such an activity is a contravention of sections 9(3) and 15(1)(b) of the RMA.   Such a contravention is an offence.

[37]     Thus, three months after the first inspection of the site the reasons given for the abatement notice were to prevent any further stockpiling or any exposure of refuse (other than for purposes of stabilising the stockpile or moving it off the site to a approved facility).  There was no reference in the 1 September abatement notice to the asbestos issue. The notice did, however, forbid the exposure of refuse, which could have been construed as being a reference to the hazard of airborne asbestos being carried off the site by wind.  It may also have been directed to preventing the escape of rubbish from the site.   The amended abatement notice was numbered A1214.   On the same date, a second abatement notice, A1215, was served, which

gave detailed directions as to the investigations that the plaintiff was to put in hand to establish matters such as stockpile stability, presence of asbestos and a methodology for removal of contaminated material.  There were also provisions for covering the stockpile and collecting storm water run and other matters.

[38]     In December 2008, the ACC commenced a prosecution against the plaintiff and related companies, upon the grounds that the plaintiff removed a clay cap which had been placed over the refuse and that this had been done while carrying out the excavation work.  In November 2009, ACC amended the particulars of the charge to state that in removing the clay cap, the plaintiff breached a rule of the District Plan in that it permitted an activity on a known contaminated site where the activity was not expressly allowed by a resource consent.   This must have been a reference to the excavation of the landfill material that the plaintiff carried out.  The Auckland City Council drafted a summary of facts.  It sought comment from Mr Singh concerning the draft that it had prepared.   It was asserted in the fact summary that after the landfill operation ceased in 1977, a cap was placed on it and over the top of that a

2.5 metre layer of clean fill was later added.   It was further alleged that after the plaintiff acquired the property, it obtained a resource consent in March 2008 to undertake earthworks over an area of 2.8 hectares on the site.  The permitted activity involved dynamic compaction of the site in order to gain a stable building platform and minimise the risk of post-development subsidence.   I interpolate that dynamic compaction involves the repeated loading of the ground (in this case landfill) to “densify” in order to form a stiff raft of material which will constitute a stable building platform.   The fact summary further alleged that Frankel Consultants breached the District Plan in that they permitted the removal of the clay cap of soil as part of these operations.  The prosecution alleged that the consent was granted on the basis that the cap would not be removed.  It was further stated that the removal of the clay cap exposed refuse, including asbestos, and was in contravention of the resource consent obtained for the activity.  In other words, the dynamic compaction would take place over the area of the landfill with the cap in place.  The summary included information that had been obtained from Mr Singh about what he said he witnessed when he visited the site on 12 June 2008, namely the excavation and dumping of refuse material causing dust.  Mr Singh also referred again to the fact that he had said to others who had visited the site with him in June 2008 that the dust

could have contained asbestos.  Reference was made in the summary to a letter that Tonkin & Taylor wrote to the ACC, which explained that during the preparation work for the construction of a large warehouse, consolidation work had taken place, but:

...as a result of lower than anticipated level of consolidation being achieved by the dynamic compaction process, refuse and surface material were removed to facilitate construction for the building.

[39]     Mr Singh’s input into the fact summary, along with that of other persons, was provided around about February 2009.

[40]     Mr Sax has given evidence that:

In February 2010, Frankel reached an agreement with the ACC regarding the ongoing prosecution.  In exchange for Frankel agreeing to remediate the site to address the contamination of soil with asbestos, the council dropped its charge against the company.

[41]     On 24 March 2010, the plaintiff obtained a report from an asbestos consulting firm, Anza Consultants Limited, commenting on the observations that it had made while excavations were being carried out on the site.  It is not entirely clear exactly what  part  of the excavations  they observed  —  whether it  was  limited  drainage excavations (Anza Consultants were retained by the drainage contractor) or whether it was  the entire excavation  of  the landfill  that  resulted  in  the large  mound  of material being excavated and placed on another part of the site.   In any case the principal of the firm, Mr Turner said:

Overall Anza Consultants staff have spent more than 50 hours actually on the site and have watched and inspected every metre of the excavations. The only signs of any asbestos containing materials has been the odd broken piece of fibrolite pipe or super six roofing material all of which were below the capping layer, were wet and therefore not a hazard.  At no time was any raw asbestos or other asbestos containing materials found.

[42]     The opinion was also offered that the amount of asbestos in the ground “where  the  drain  excavations  were  undertaken”  is  minute  and  consistent  with random odd pieces of old fibrolite fencing pipe work and roofing.  It also expressed the view there was no measurable asbestos hazard on the property and that was

consistent  with  the  measurements  that  had  been  carried  out  by  Dowdell  & Associates.

[43]     In December 2011 the plaintiff commenced the present proceeding.   The central allegations in the statement of claim concerning the facts of the case are set out in paragraph 12 which stated as follows:

On that date or shortly thereafter, EnviroWaste provided a report by Mr

Singh to the ARC informing it inter alia that:

(a)       The earthworks removed a clay ‘cap’ from the site and exposed

refuse;

(b)       Removal of the cap exposed site workers and the public to asbestos present in the refuse;

(c)       Removal of the cap resulted in considerable odour;

(d)      Site workers were covered in dust which may have been asbestos; These and other aspects of the report conveyed the impression that there was

a high risk to the environment.

[44]     The plaintiff further pleaded:

Particulars

(a)       As EnviroWaste did know or should have known, there was never a clay cap installed to seal the landfill

(b)       Testing   by   experts   commissioned   by   the  ACC   and   Frankel established that removal of the cap had not actually exposed site workers and the public to any risk from asbestos present in the refuse;

(c)       The removal of the cap had not resulted in odour;

(d)       Site workers had not been covered in dust, since the site had been water-logged at the relevant time;

(e)       There was no evidence of a high risk to the environment.

[45]     For these reasons, it  was  said  that  “by issuing  and  repeating allegations against Frankel which were incorrect”, EnviroWaste engaged in misleading or deceptive conduct.  The plaintiff says that it suffered loss for two reasons.  First of all, the incorrect statements that Mr Singh made about the asbestos risk produced by the excavation operations on the site caused the issue of the abatement notices,

which prevented the plaintiff from proceeding expeditiously with work on the site. As a result, completion of the construction of the commercial premises was put back, with resulting financial losses accruing to the plaintiff.  Further, the plaintiff suffered loss through having to take steps to defend the proceedings that were brought against it, proceedings that it says would not have been initiated had it not been for the false statements that Mr Singh made.

The defendant and ARC’s role with relation to the site

[46]     The ARC’s statutory rights in relation to the site was originally established under s 707AA of the Local Government Act 1974 (“LGA”):

707AA  Residual powers of the Auckland Regional Council

(1)       Notwithstanding section 50 of the Local Government Amendment Act 1992, but subject to subsection (2) of this section, it is hereby declared that the Auckland Regional Council shall retain the same powers –

(a)       To dispose of refuse; and

(b)       To require and maintain designations for the purposes of and in relation to refuse disposal; and

(c)       To dispose of leachate, gas, and other noxious or harmful substances which emanate from time to time from refuse or waste deposited at sites designated by it,

- as it had before the commencement of section 50 of the Local Government Amendment Act 1992 and before the transfer of its refuse disposal undertaking to Northern Disposal Systems Limited on the 1st day of November 1991.

(2)       Notwithstanding subsection (1) of this section, but without limiting the powers of the Auckland Regional Council under paragraphs (b) and (c) of that subsection, it is hereby declared that the Auckland Regional Council may exercise from time to time its power under paragraph  (a)  of  that  subsection  (being  the  power  to  dispose  of refuse) only if, in its opinion, the business of refuse disposal in the Auckland Region has failed or is likely to fail.

[47]     Additionally, under s 707AA, the ARC had powers to take all necessary precautionary actions to protect against, or limit the present or future discharge of,

leachate, gas, and other noxious or harmful substances which emanate from time to time from the site, and, in particular:1

Enter into any contract or arrangement requiring another person to carry out any works falling within the powers described in this section and requiring any such other person to give security for the carrying out of such works.

[48]     In 1993, the ARC entered into a contract with Northern Disposal Services Limited (NDSL) by which it paid NDSL to provide “aftercare” at landfill sites including the Pikes Point sites (the aftercare contract).   The terms of the aftercare contract include the following:

a)       “Aftercare” is defined as the proper disposal of leachate, gas, and other noxious or harmful substances that may emanate from time to time from the deposit of refuse or waste at landfills.

b)The ARC agrees that it is financially responsible for aftercare at “completed” landfill sites, including the Pikes Point landfill.   The ARC agrees to pay NDSL to provide aftercare at these landfills.

c)       Aftercare at “completed” landfills includes monitoring for leachate,

gas, and measures to control such emissions.

d)In providing aftercare at completed landfills, NDSL is “acting as an independent contractor and not as the agent of the ARC”.

e)       NDSL  agrees  to  carry  out  certain  aftercare  services  at  “current”

landfill sites at its own cost.

[49]     In or about 1995, NDSL assigned the aftercare contract to EnviroWaste. EnviroWaste describes itself as providing a “comprehensive range of services”, including refuse collection, recycling, and “landfill design, operation and aftercare”.

[50]     It was the submission of Mr Williams that s 707AA merely declares that the

ARC has the same powers as it had prior to its sale of its refuse disposal operations

1 Section 707AA(2)(c), Local Government Act 1974.

to NDSL, including the power to dispose of leachate and other harmful substances from landfills.  The section does not, he said, impose a duty on the ARC to ensure the proper disposal of such substances.   There was, in other words, no duty of aftercare.  Recital B to the aftercare contract is consistent with this interpretation of s

707AA:

Pursuant to section 707AA of the Local Government Act 1974, ARC continues to have certain powers to the carrying out of aftercare obligations arising in respect of certain refuse disposal sites described in that section.

[51]     On the other hand, the defendant’s case was that ARC’s statutory rights in relation to the site were originally established under s 707AA of LGA.   ARC’s residual powers in relation to disposal sites, including the site included disposal of leachate, gas, and other noxious or harmful substances which emanate from time to time from refuse or waste deposited at the site.  Additionally, under s 707AA, ARC had powers to take all necessary precautionary actions to protect against, or limit the present or future discharge of, leachate, gas, and other noxious or harmful substances which emanate from time to time from the site, and, in particular:

Enter into any contract or arrangement requiring another person to carry out any works falling within the powers described in this section and requiring any such other person to give security for the carrying out of such works.

[52]     I accept the above as an accurate description of ARC’s powers.  I also accept the further submission by the defendant that under s 30 of the RMA, ARC’s statutory duties include the following:

Every regional council shall have the following functions for the purpose of giving effect to this Act in its region:

...

the control of the use of land for the purpose of

...

(v)      the prevention or mitigation of any adverse effects of the storage, use, disposal, or transportation of hazardous substances;

...

(ca)     the  investigation  of  land  for  the  purposes  of  identifying  and monitoring contaminated land.

[53]     My conclusion therefore, is that it is not correct to say that ARC had only powers in respect of the site.   It also had obligations.   I also conclude that the defendant had obligations to the ARC to assist it in respect of all aspects of its powers and obligations with relation to the Pikes Point site which included reporting on statutory non-compliance and providing information and evidence at the request of the ARC.

Issues in the proceeding

[54]     There are six issues for determination which Mr Williams in his submissions summarised as follows:

a)        whether EnviroWaste was “in trade” as required under the Fair

Trading Act 1986 (“FTA”) at all material times;

b)       if so, is Frankel's claim time barred under the FTA;

c)       if not, is EnviroWaste immune from liability as it was acting as an agent of a public body, ARC, at all material times;

d)if not, is Mr Singh (and therefore EnviroWaste) immune from liability as a witness;

e)       if  not,  were  Mr  Singh's  statements  and  comments  to  the Councils  on  12 June  2012  (or  at  any  other  material  time) misleading or deceptive; and

f)        if they were misleading, did Mr Singh, in providing any report to the Councils cause the loss or damage allegedly suffered by Frankel.

[55]     In summary, the defendant’s answer to these six issues are as follows:

(a)      at  all  material  times,  EnviroWaste  was  not  “in  trade”  as required under the FTA as it did not enter into any commercial or other arrangements with Frankel prior to or during the relevant period;

(b)      if EnviroWaste was in trade, Frankel’s claim is time barred as

it was not made within three years after the date, being 16 July

2008,  on  which  the  likelihood  of  loss  or  damage  was discovered or ought reasonably to have been discovered;

(c)      if Frankel's claim is not time barred, EnviroWaste was at all material times acting as an agent of ARC, which is a public body,  in  carrying  out  ARC’s  statutory  functions  under  the RMA and therefore is immune from liability;

(d)if EnviroWaste does not have immunity from liability, then Mr Singh, in providing any information or comments to the Councils to assist with a regulatory prosecution, was acting as a primary witness and should therefore be protected by witness immunity;

(e)      if Mr Singh (and accordingly EnviroWaste) does not have the protection of witness immunity, then he did  not make any misleading   or   deceptive   statements   and   any   comments provided by him to the Councils were reasonable and correct; and

(f)      if  (which  is  denied)  Mr  Singh  did  make  misleading  or deceptive statements, those statements were not causative of any loss or damage suffered by Frankel.

Summary judgment

[56]    The applicable principles that the Court is guided by when considering defendants' applications for summary judgment were described in Westpac Banking Corporation v M M Kembla in the following terms:2

[60]      Where a claim is untenable on the pleadings as a matter of law, it will not usually be necessary to have recourse to the summary judgment procedure because a defendant can apply to strike out the claim under R 186. Rather R 136(2) permits a defendant who has a clear answer to the plaintiff which cannot be contradicted to put up

2Westpac Banking Corporation v M M Kembla New Zealand Limited [2001] 2 NZLR 298 at [60]–

[64].

the evidence which constitutes the answer so that the proceedings can be summarily dismissed. The difference between an application to strike out the claim and summary judgment is that strike-out is usually determined on the pleadings alone whereas summary judgment requires evidence. Summary judgment is a judgment between the parties on the dispute which operates as issue estoppel, whereas if a pleading is struck out as untenable as a matter of law the plaintiff is not precluded from bringing a further properly constituted claim.

[61]      The   defendant   has   the   onus   of   proving   on   the   balance   of probabilities that the plaintiff cannot succeed. Usually summary judgment for a defendant will arise where the defendant can offer evidence which is a complete defence to the plaintiff's claim. Examples, cited in McGechan on Procedure at HR 136.09A, are where the wrong party has proceeded or where the claim is clearly met by qualified privilege.

[62] Application for summary judgment will be inappropriate where there are disputed issues of material fact or where material facts need to be ascertained by the Court and cannot confidently be concluded from affidavits. It may also be inappropriate where ultimate determination turns on a judgment only able to be properly arrived at after a full hearing of the evidence. Summary judgment is suitable for cases where abbreviated procedure and affidavit evidence will sufficiently expose the facts and the legal issues. Although a legal point may be as well decided on summary judgment application as at trial if sufficiently clear (Pemberton v Chappell [1987] 1 NZLR 1), novel or developing points of law may require the context provided by trial to provide the Court with sufficient perspective.

[63]      Except in clear cases, such as a claim upon a simple debt where it is reasonable to expect proof to be immediately available, it will not be appropriate to decide by summary procedure the sufficiency of the proof of the plaintiff's claim. That would permit a defendant, perhaps more  in  possession  of  the  facts  than  the  plaintiff  (as  is  not uncommon where a plaintiff is the victim of deceit), to force on the plaintiff's case prematurely before completion of discovery or other interlocutory steps and before the plaintiff's evidence can reasonably be assembled.

[64]      The defendant bears the onus of satisfying the Court that none of the claims can succeed. It is not necessary for the plaintiff to put up evidence at all although, if the defendant supplies evidence which would satisfy the Court that the claim cannot succeed, a plaintiff will usually have to respond with credible evidence of its own. Even then it is perhaps unhelpful to describe the effect as one where an onus is transferred. At the end of the day, the Court must be satisfied that none of the claims can succeed. It is not enough that they are shown to have weaknesses. The assessment made by the Court on interlocutory application is not one to be arrived at on a fine balance of the available evidence, such as is appropriate at trial.

[57]     I shall apply those principles in this judgment.

Fair Trading Act – “in trade”

[58]     Under s 9 of the Fair Trading Act 1986 (FTA), no person shall, in trade, engage  in  conduct  which  is  misleading  or  deceptive  or  is  likely to  mislead  or deceive.  Section 2 of FTA defines “trade” as follows:

Trade means any trade, business, industry, profession, occupation, activity of commerce, or undertaking relating to the supply or acquisition of goods or services or to the disposition or acquisition of any interest in land.

[59]     The definition of “services” in s 2 is also relevant:

Services includes any rights (including rights in relation to, and interests in, real or personal property), benefits, privileges, or facilities that are or are to be provided, granted, or conferred and, without limiting the generality of the foregoing, also includes the rights, benefits, privileges, or facilities that are or are to be provided, granted, or conferred under any of the following classes of contract:

(a)       A contract for, or in relation to,—

(i)       The performance of work (including work of a professional nature), whether with or without the supply of goods...

...but does not include rights or benefits in the form of the supply of goods or the performance of work under a contract of service:

[60]     The defendant submits, correctly in my view, that Frankel must establish that EnviroWaste was “in trade” before it can succeed in a claim that its conduct was misleading or deceptive.

[61]     For the plaintiff, Mr Williams noted the submission made for the defendant that it was never in trade with the plaintiff, Frankel.  He submitted that it was not necessary  for  the  plaintiff  to  establish  that  such  a  state  of  affairs  existed. Mr Williams submitted that:

On the natural and ordinary meaning of s 9, read with s 2, Envirowaste was “in trade” at material times.  As explained below, Mr Singh’s conduct was pursuant to his responsibilities for carrying out Envirowaste’s contractual obligation to provide aftercare at the site, a service of a professional nature for which Envirowaste was remunerated.

Authorities

[62]     The following passage in Gault on Commercial Law in  is of assistance in interpreting s 9 of the FTA:3:

In Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594; 92

ALR 193 (HCA), the High Court of Australia considered the meaning of the

phrase “in trade or commerce”. The majority took the view that the conduct in question, a statement by the appellant that a metal grate was secured by six bolts, was not “in trade or commerce”. The majority (Mason CJ, Deane, Dawson, and Gaudron JJ) said at p 604; p 51,364:

“What the section is concerned with is the conduct of a corporation towards persons, be they consumers or not, with whom it (or those whose interests it represents or is seeking to promote) has or may have dealings in the course of those activities or transactions which, of their nature, bear a trading or commercial character. ...”

[63]     I further note the submission of Mr Williams that in Red Eagle Corporation Ltd v Ellis,4  the Supreme Court observed that “in trade” is a “broad term encompassing all kinds of commercial dealing”, including “transactions between large, sophisticated corporations as well as to those of persons dealing with consumers”.

[64]     As well, counsel made submissions on two High Court authorities which I

now consider.

[65]     The first was the decision of Heath J in Norbrook Laboratories Ltd v Bomac Laboratories Ltd.5     At issue in the case were allegedly misleading representations made by Bomac Laboratories in the course of seeking regulatory approval from the Agricultural Compounds and Veterinary Medicines Group to sell prescription animal remedies.  Heath J held that he was satisfied that the purpose underlying s 9 of the FTA  was  sufficient  to  justify  such  a  representation,  if  false,  falling  within  the

boundaries of s 9.6

3      Thomas Gault (ed) Gault on Commercial Law (online looseleaf ed, Brookers) at [FT9.03].

4      Red Eagle Corporation Ltd v Ellis [2010] NZSC 20, [2010] 2 NZLR 492 (SC) at note 13.

5      Norbrook Laboratories Ltd v Bomac Laboratories Ltd (No 3) HC Auckland CP 241-SW02, 2

December 2002.

[66]     The essential argument in that case was whether when providing information to a regulatory authority, a party could be liable for representations made in trade and therefore come within the provisions of the FTA.

[67]     Heath J concluded that the question should be answered in the affirmative. He said:7

It is important that the Courts support the desirability of accurate information being conveyed to regulatory authorities required to make determinations. In this case the ACVM’s determination impinged upon both animal welfare and public health (in the sense that milk or meat from treated cows is likely to enter the food chain) considerations.

[68]      A  second  judgment  that  counsel  referred  to  was  that  of  Associate

Judge Abbott in McVicker v Vodafone (NZ).8

[69]     In that case, a company called Connell Wagner was retained as a consultant by Vodafone to assist in an application for consent to the erection of a cellphone transmission power.   An application was duly made to the local authority with relevant jurisdiction.  The consultants submitted to the Council that it should not be necessary to notify the plaintiffs who occupied the neighbouring property that the application had been made.   This submission was justified on the basis that the erection of the cellphone tower would be of minor importance.

[70]     The plaintiffs owned a property adjoining that where the cellphone tower was to be erected and they considered that it would significantly detract from the visual amenities of their property.  They claimed to have suffered loss and sued Vodafone on the basis that the submission made on their behalf was deceptive and misleading and therefore contrary to s 9 of the Act.  The Court decided that there could be no liability because the activities of the consultants were not “in trade”, they were for the purpose of advancing Vodafone’s statutory entitlement to seek consent for the

works in question.

7 Ibid, at [217].

8      McVicker v Vodafone (NZ) HC Auckland CIV-2005-404-180, 3 April 2006.

[71]     Abbott AJ observed:9

In my view, Connell Wagner’s conduct was not “in trade”.  It was conduct in the course of exercise of a statutory right (to seek a resource consent from the consent authority).   In my view, Norbrook can be distinguished on the basis that in that case the conduct related directly to the nature and quality of products which were to be released to the consuming public.  In this case, there is no such link to the consuming public.   I do not consider that the public’s rights and interests under the Resource Management Act are to be equated with the consumer protection purposes of the Fair Trading Act.

[72]     The Court agreed with the defendant’s contention that the duty under s 9 of the FTA does not apply to the regulatory regime under the Resource Management Act for granting consents, and that the conduct between the consultant and the local authority was in exercise of statutory rights, not an activity “in trade”.

[73]     In McVicker the Court appears to have reasoned that if services are provided with the objective of assisting a party to invoke statutory rights, that by definition the services will not be provided “in trade”.  I respectfully disagree if that is the correct interpretation of McVicker.

[74]     I agree with the submission made for the plaintiff in this case that when Mr Singh provided the information that he did to the ARC, he did so as part of his employment by the defendant, and that the defendant, whom he was representing, was acting in the course of its business as a consultant.   To that extent, the information that Mr Singh provided to the ARC can be viewed as being within the ambit of representations “in trade”.

[75]      The provision of information on Mr Singh’s part had the necessary trading or commercial character that Gault on Commercial Law refers to in the passage which I have set out at paragraph [62] above.

[76]     Taking that as the point of departure, the only way the Court would  be justified in taking a different view was that there were policy considerations that made it clear that such a meaning ought not to be given to the words of the statute. If  anything,  the  types  of  policy  considerations  that  Heath  J  identified  as  being relevant in the passage from his judgment (which I have set out at paragraph [67])

support the conclusion that information provided by Mr Singh in the circumstances of this case fell within the definition.

[77]     It  would  seem  likely  that  there  were  several  purposes  to  which  the information which Mr Singh provided to the ARC might be put.   There was a possibility that abatement notices would issue, or that either the ARC might launch its own prosecution, or that it might assist the ACC to commence its own.  But the fact that the information might potentially be used for the purposes of a prosecution is not an argument for viewing representations made accordingly as being outside the scope of the FTA.   What Heath J said in a different context (in that of the licensing of goods) applies with even greater force in circumstances where the information may be used for enforcement reasons.  To the extent that the information provided in this case might influence the process, providing incomplete or inaccurate information  could  lead  regulatory  or  enforcement  authorities  to  make  faulty decisions.

[78]     There is one feature of the case, though, which is not clear to me and that concerns the possibility that Mr Singh might have acted in different capacities at different times.   It seems fairly clear that at least part of the time when he gave information to the ARC he was probably acting in furtherance of an obligation which is employer owed to that organisation.  It is possible that the Court could come to a different conclusion when it considers the supply of information to the ACC to whom the defendant did not own any contractual obligations.   Mr Singh’s communications to the ACC, though, may well have indirectly come about at the behest of the ARC, which determined that it should make information held by its employees available to the ACC.  At the summary judgment stage, detailed analysis of the position is not possible.  All that can be said is that it seems likely that some of the communications by Mr Singh were in the course of trade.

[79]     It does not assist the case for the defendant to say that the defendant was never “in trade” with the plaintiff.  Such a connection between the parties is not a requirement under the FTA.   It is possible for a third party to make a claim in circumstances where the misrepresentation was not actually made to him.  In such a case questions of the degree of remoteness of the harm suffered from the deceptive

or misleading conduct may arise.  The need to prove causation may be another issue that requires careful thought.   However, I do not understand that there is a requirement under the FTA that the person to whom the representations are made must actually be carrying on with the representor the activities that conform to the description “in trade”.

Conclusions on “in trade” point

[80]     My  conclusion  is  when  he  gave  advice  to  the  ARC,  Mr  Singh  and  his employer would have been doing so “in trade”.  I do not consider that the defendant is entitled to summary judgment for the defendant on this ground.

Limitation

[81]     Section 43(5) of the FTA provides:

An application under subsection (1) may be made at any time within 3 years after the date on which loss or damage, or the likelihood of loss or damage, was discovered or ought reasonably to have been discovered.

[82]     A claim under the FTA must therefore be brought within three years of the date when the cause of action arose.   The proceedings were issued in December

2011.

[83]     Time begins to run under s 43(5) only once a plaintiff discovers (or ought reasonably to discover) loss (or the likelihood of loss) as a result of a contravention of the Act: Commerce Commission v Carter Holt Harvey.10

[84]     In the Commerce Commission case Tipping J observed:11

… in a case like the present, the question to be answered is when did the Commission become aware that it was more probable than not that a person or persons had suffered loss.  As loss is not relevant for present purposes unless it was occasioned by a contravention of the Act, the words “as a result of a contravention of the Act” are necessarily implicit in this question.

(Emphasis added)

10     Commerce Commission v Carter Holt Harvey Ltd [2009] NZSC 120, [2009] 1 NZLR 379 (SC).

[85]     The loss or damage which is complained of in this case is losses of rental occasioned by the fact that the abatement notices and the charge had the effect of stopping progress on the property development for approximately 19 months from

19 July 2008 to February 2010.  The second part concerns legal fees incurred by the plaintiff in defending the charge brought against it by the ACC.  The pleading by the defendant on the limitation point is that the plaintiff’s claim was time-barred as it was not made within three years after the date on which the likelihood of loss or damage ought reasonably to have been discovered:

In particular, Frankel knew, or ought to have reasonably known, from on or about 16 July 2008 that loss or damage was likely due to the issue of the abatement notice on that date, which required Frankel to stop the works and to undertake various actions as set out in the abatement notices.

[86]     In this part of the judgment, I will analyse the issues on the basis that time begins to run when the claimant knows;

a)        That    there    has    been    a    contravention    of    the    Act    (hereby misrepresentation); and

b)That the misrepresentation has resulted in the occurrence of an event from which loss was caused or was likely to be caused.

[87]     The defendant’s position is that right from 16 June 2008 when the ARC issued a “pollution incident field letter” requiring the work to stop, time began to run. The defendant submitted in reliance upon Commerce Commission:12

Furthermore, Frankel's disagreement with the facts set out in the abatement notices and its correspondence with the Councils in June-July 2008 would have informed Frankel that it was, in its view, likely to suffer loss or damage as a result of incorrect information or facts.   In this regard if a plaintiff knows that more than minimal loss or damage is likely to have resulted from probable contravention of the FTA, then it is up to the plaintiff to make all necessary further enquiries as to the contravention and file their proceedings within three years of acquiring that knowledge. Therefore, as Frankel had knowledge of the likelihood of more than minimal loss or damage in June or July 2008, it had to file its proceedings by July 2011.   It was then up to Frankel to investigate who was involved apart from the Councils, if as it claims, it did not have the knowledge of Mr Singh's involvement by July

2008.

[88]     However,  the  pollution  incident  field  letter  referred  to  the  broad  subject matter of the discharge of contaminants, namely refuse, on to land in circumstances that may result in contaminant entering water.   On the face of the field letter, the concerns were not discharge of asbestos to the air.  The circumstances did not alert the plaintiff that Mr Singh had made the alleged misrepresentation about asbestos dangers arising from the activities on the site.

[89]     A further abatement notice was issued on 16 July 2008, but it too identified the reasons for the notices as the concern that leaving landfill material uncovered on the site was likely to “result in the discharge of contaminant onto land where it may enter water”.

[90]     A further abatement notice was issued on 13 August 2008, which actually referred  to  the  perceived  risk  of  asbestos  fibre  release.    However,  there  is  no evidence that at the point where this abatement notice was issued, that the plaintiff knew about the alleged misrepresentations by Mr Singh concerning asbestos risk. Mr Sax, who described himself as a consultant employed by the plaintiff, attended a meeting on 25 June 2008.   Mr Sax said he had represented the plaintiff at the meeting at which the imposition of abatement notices was discussed.  He said that representatives of both the ARC and the ACC were present.  He said that Mr Singh was present and that:

The Councils expressed a deep concern that the unauthorised excavations and the formation of a stockpile left uncovered had exposed site workers and members of the public (who may have used the public walkway adjacent to the site) to airborne asbestos.

31.I now  understood  that  the  other  main  concern  expressed  by  the Council,  being  the  possibility  of  increased  leachate  run-off  as  a result of the stockpile, was subsidiary to the primary concern about airborne asbestos.

[91]     There is no doubt that by this date the plaintiff knew that the ARC and the ACC had formed the view that airborne asbestos was a potential hazard that had been  created  by  the  plaintiff  when  excavating  into  the  landfill  material  and stockpiling it on the site.   From the perspective of the plaintiff, the ACC and the ARC would have either formed this view as a result of those who had responsibility for issuing abatement notices themselves forming the view, without the intervention

of third-party opinions risk, or alternatively, because that they had received information from third parties such as consultants or employees that an asbestos risk had arisen.

[92]     It cannot be assumed that right from the outset the plaintiff appreciated that the apparent belief of the councils that there was an asbestos risk was wrong.  By the end of June 2008, at which point Mr Sax prepared his report, it is clear that the plaintiff regarded the view that there was an asbestos risk at the site as incorrect.

[93]     However, it is the plaintiff’s evidence is that it was not until 2009 that it discovered that Mr Singh had communicated to the ARC and the ACC his view that there was a potential asbestos problem arising from the operations of the plaintiff at the tip site.  The issue for determination is what the required extent of the plaintiff’s knowledge was before time began to run.   As the extract from the Commerce Commission case shows, knowledge that there had been loss attributable to a breach of the Act must be established.

[94]     Even assuming for the purposes of argument that the abatement notices were issued without proper reason, such an occurrence on its own does not give rise to an inference that it resulted from misleading or deceptive conduct.

[95]     The essence of the breach of the Act that the plaintiff complained of is that Mr Singh reported that during the course of excavation of the landfill windborne dust clouds were being created, and that these were hazardous for reasons of possible asbestos particle content.

[96]     The defendant  says  that  the identification  of  Mr Singh  as  the  informant became apparent to the plaintiff when it received the letter dated the 24 June 2008 from ARC.  The relevant part of that letter stated:

On 12 June 2008 we were alerted by Prem Singh from Envirowaste services limited (ESL) about excavation works and stockpiling of refuse in relation to the development works [at Pikes Point].

[97]     The fact that Mr Singh  informed the Council  that excavation was  being carried on at the site is not what the cause of action is concerned with.  It cannot be

concluded from the terms of the letter that Mr Singh had misrepresented the position about asbestos and therefore breached the FTA.

[98]     The plaintiff would have reasonably taken from the letter dated 24 June 2008 no more than that Mr Singh had raised a generalised question about whether the activities at the site were permitted.   It did not alert the plaintiff to the additional statements that Mr Singh made about potential asbestos exposure from the dust that are the subject matter of the claim under the FTA.

[99]     I therefore agree with the plaintiff that there is evidence that discovery of loss attributable to a breach of the FTA may not have occurred until February 2009.  If that is the case, the defendant is unable to establish at summary judgment stage that the plaintiff’s cause of action under the FTA is time-barred.

[100]   My conclusion is therefore that the defendant has not discharged the burden on it to prove that the limitation period had expired when the proceedings were issued in December 2011.

The defence that Mr Singh’s actions are outside of the FTA because they are

part of the enforcement of statutory duties

Local authority immunity

[101]   The defendant argued that there are substantial policy reasons why the FTA ought not to be construed in such a way as to allow a claim in the circumstances of this case.  Mr Stewart submitted that guidance in this area is available from cases in which a duty of care in the tort of negligence has been found not to exist because there are good policy reasons for such an outcome.

[102]   The defendant made reference to the case of Bella Vista Resort Ltd v Western Bay  of  Plenty  District  Council.13      In  that  case,  the  Council  had  permitted  the applicant  for  consent  to  proceed  without  notifying  occupants  of  neighbouring

property of the application for consent.  A subsequent variation to the consent was

13 Bella Vista Resort Ltd v Western Bay of Plenty District Council [2007] NZCA 33, [2007] 3 NZLR

429.

granted, again on a non-notified basis.  However, the affected parties had consented to a development that was of a different character from that which consent was ultimately obtained for.  The neighbour successfully applied for judicial review to set aside the Council’s decision.  Thereafter, the applicant brought proceedings against the Council based on negligence, which seems to have included a complaint of making a decision that was not reached in accordance with the requirements of the RMA (the decision to allow the consent on a non-notified basis).

[103]   The applicant, having failed in the High Court, brought an appeal.

[104]   The Court of Appeal determined that the Council did not owe a duty of care. The principal focus of the judgment was not on the matter of proximity, which seems to have been assumed, but whether a novel cause of action in negligence ought to be allowed when there are policy factors telling against such a development in the tort of negligence.  One such policy factor which provided a negative indication that the local authority ought to be liable for damages was that in considering the application for consent, the local authority was concerned with detriment of economic activity on the environment and was not concerned with ensuring the economic interests of applicants such as the appellant.   Further, when the Council was processing applications for consent, it was engaged in the provision of a quasi-judicial decision rather than in operational activities.  As well, the Council could not be required to check the accuracy of the consents to ensure that they matched the terms of the application for approval which was before the Council.  The consent procedure was used to dispose of a great quantity of applications.  To impose such a duty on the Council would be intolerable.  As well, to recognise a duty would mean the Council staff would become defensive in the performance of their duties and there would be potential delays in processing applications.  Finally, applicants in the position of the appellant had other legal remedies available to them.

[105] Another case to which the defendant made reference was Brooks v Commissioner of Police for the Metropolis.14     In that case the plaintiff had been present when a friend was murdered in a racist attack.  He claimed with justification

that he had not been properly treated by police officers in the aftermath of the attack

14 Brooks v Commissioner of Police for the Metropolis [2005] UKHL 24, [2005] 1 WLR 1495.

and that the deficiencies in the way that they dealt with him exacerbated the post- drama stress disorder that he was suffering from.  He himself was a surviving victim of the same attack.  The plaintiffs sued the police in negligence alleging breaches of duty of care, including treating him as a witness only, rather than as a victim of the attack; adopting the view that he and the deceased had been involved in the fight rather than that they had been gratuitously attacked because of their race; and the failure of the police to use the plaintiff’s information to search the area for the assailants, amongst other matters.

[106]   The House of Lords accepted that the plaintiff had not been treated with courtesy and respect, but declined to elevate these ethical requirements to the level where they were viewed as the subject of a duty of care in negligence as to recognise such a duty would have detrimental effects on law enforcement.  To adopt such an approach  would  mean  that  time and  resources  would  be  spent  on  avoiding the possibility that offence might be taken by a potential witness or potential victim, all of which would inhibit a robust approach in assessing a person as a possible suspect, witness or victim.  The result would be to impede the ability of the police to perform their duties fearlessly and with dispatch.  It would lead to a defensive approach in combating crime.

[107]   The defendant’s argument was that in this case there were some other policy arguments available which ought to persuade the Court that a “duty of care” in the FTA ought not to be permitted.

[108]   The policy reasons which the defendant identified included that parties had remedies under the RMA to challenge decisions and a concurrent right under the FTA would be inconsistent with and “cut across” the RMA procedures for review of decisions etc.

[109]   It was also said that a further policy reason for not extending the reach of the FTA into this area was that under the RMA, local authorities have investigative and enforcement roles that they would be inhibited in performing if the agents assisting them, such as the defendant, were to be subject to action under the FTA.

[110]    The submission was made that the imposition of a duty of care on a public body would interfere with the proper exercise of the investigative function of the public body, and result in a detrimentally defensive frame of mind, thus interfering with the proper exercise of statutory functions.15

[111]   The defendant also submitted that it is clear that local authorities making decisions on resource management issues do not owe a duty of care to landowners and it is not a local authority’s role under the RMA to protect individual landowners against economic loss.16

[112]   It was implicit in the submissions for the defendant that the FTA should be interpreted in a way that was consistent with how the Courts had approached negligence claims arising out of failures to properly observe the requirements of the RMA.

[113]   The Bella Vista decision and others provide examples of the reasoning that Courts will adopt when they are asked to recognise a novel duty of care.  In this case, of course, the cause of action is not one in negligence.

[114]   That question that arises in this case is a different one from inquiring whether the tort of negligence ought to be expanded into novel situations and considering the policy arguments for and against doing so.  What the Court is being asked to do is to interpret the FTA so that it does not apply in circumstances where the language of the statute, reasonably construed, says that it should.  The interpretation for which the defendant contends would result in the Act not applying to deceptive or misleading conduct during the process of providing information to an enforcement authority for use in carrying out its statutory functions.

[115]   There is no statement contained in the Act suggesting a statutory purpose or object that might justify the Court interpreting the legislation in the way that the

defendant suggests.  No material external to the provisions of the Act (such as a Law

15 Ibid, at [30].

16 Bella Vista Resort Ltd v Western Bay of Plenty District Council, above n 13, at [56]-[60].

Commission paper) that might suggest such an interpretation was appropriate has been provided.

[116] In summary, there is no indication that the legislature intended that interpretation of the Act should be approached by having regard to the policy considerations that have commended themselves to the Courts when dealing with expansion of the tort of negligence into the area of local authorities’ liability.

[117]   I agree that there are some indications in cases such as Bella Vista that if the function  which  the council  is  exercising is  one that  involves  the application  of judgement or discretion then a duty of care is less likely to be owed.   A decision whether or not to halt development by means of an abatement notice may fall into this category.

[118] But one of the most influential arguments against a cause of action in negligence (and therefore a factor that counters arguments that the statute ought to be read down) is that it would not seem that liability to pay damages would have an adverse effect on the procedures under the RMA.  That is because outcomes under the Act would not be adversely affected.   Anything that had the tendency to discourage inaccurate information being fed into those processes would in fact assist their integrity, and not the reverse.  It would ensure that information that the local authority received from parties such as the defendant was accurate.

[119]   I accept that parties who have an obligation under their contracts to detect and  assist  in  the  enforcement  procedures  under  the  RMA  might  in  theory  be inhibited  from  doing so  if  they were too  readily held  to  account  for  providing incorrect information.  While I do not know what the position is in the case which is the subject of these proceedings, it is possible that consultants and advisers can obtain insurance to provide themselves with some protection in the event that they are found liable for deceptive or misleading conduct (not involving, fraud).

[120]   Further, a balancing argument is that the financial consequences to those who are exposed to regulatory or enforcement action can obviously be severe.   It is difficult to think of other avenues for redress which would be open to the plaintiff in

cases where harm was suffered as a result of the mis-application of local authorities enforcement powers by way of issuing abatement notices.   It is true that there is power to appeal against the issue of an abatement notice pursuant to s 325 of the RMA.  There is no financial address available by that route, however.  Further, there may be a distinction to be drawn between the local authority (for whose immunity from negligence claims good arguments can be mounted), on the one hand, and a party who supplies the information which sets the local authorities processes in train, on the other.   The obligation which is sought to be enforced against the latter is to avoid providing misleading information to the former.

[121]   There are simply too many issues that call for an enquiry for these to be

suitable matters for determination on a defendant’s summary judgment application.

[122]   I do not say that the arguments for restrictively interpreting the provisions of the FTA cannot succeed.  The analogy with negligence claims may in the end assist the  defendant.    My  conclusion,  though,  is  that  in  the  context  of  the  summary judgment  application  that  refers  to  the  evidence  provided  and  the  arguments addressed to me, I am not convinced that it was Parliament’s intention that the FTA should  not  apply to  contractors in  the position of the defendant  when  they are engaged in the process of providing information to the principal that might lead to enforcement steps being taken.

Witness immunity

[123]    The defendant also asserts that in interpreting the provisions of the FTA, the

Court should be guided by a common law principle of witness immunity.

[124]   The rationale for the principle, Mr Stewart said, is the advancement of public justice:

As a matter of policy, in order to ensure the free and unfettered availability of witnesses in any cause, they are provided with an absolute immunity from civil action, regardless of the nature of the proceeding, and irrespective of whether the evidence was true or false, or given in good faith or with malice. The immunity is limited to ‘civil’ proceedings.

[125]   I consider that similar conclusions are justified in relation to the defendant’s further argument that the FTA should not be construed to apply to parties such as EnviroWaste because of the principle of witness immunity.  This argument could, in any event, only potentially affect such steps as Mr Singh took in his capacity as a potential witness for the prosecution.  A witness is protected from civil proceedings in respect of the evidence given by the witness in a judicial proceeding, and in respect of things said and done in the course of preparation for such proceedings.

[126]   For  the  defendant,  it  was  submitted  that  witness  immunity  extends  to statements made outside Court for purposes of being bona fide repeated as evidence in Court.   The purpose of this extension is to ensure that witnesses can provide information freely without a fear of being litigated against:

The principle on which this extension rests is that if witnesses are to be encouraged to come forward to tell the truth without fear of consequences, for  the  enhancement  of  the  process  of  justice  it  is  also  necessary  to encourage them, before giving evidence, to be able to communicate the nature and content of their proposed testimony freely to the parties and their advisers.

[127]   For the defendant it was also submitted that the defendant ought to be able to take advantage of such witness immunity as Mr Singh personally would have been able to claim had proceedings been brought against it.  I will assume for the purposes of argument that that submission is correct.

[128]  The defendant’s submission was that Mr Singh’s assistance with the prosecution of the plaintiff was limited to an e-mail he sent in February 2009, providing comments on a draft “summary of facts” which had been prepared for the purposes of the prosecution.   Mr Singh was not engaged as a witness in those proceedings, and beyond offering the comments, he did not have any further part in the prosecution.   The defendant submits that immunity did not apply to Mr Singh because he was neither engaged nor called as a witness.

[129]   Mr Williams submitted:

74.Witness  immunity  extends  to  out-of-court  statements  but  only  if such statements were made by a prospective witness who subsequently gave evidence in court. The Court in Dentice observed

that the extension of immunity to out-of-court statements is to encourage witnesses “before giving evidence to be able to communicate the  nature  and  content of their  proposed  testimony freely to the parties and their advisers”.   Thus, in Dentice, reports prepared by witnesses in preparation for an arbitration at which they gave evidence were held to be within the scope of witness immunity. Similarly, the House of Lords in Watson v M’Ewan [1905] AC 480 held that a witness was protected not only for statements made in court but also for statements made to his solicitor in the course of preparing his brief of evidence.

[130]   In  Dentice  v  Valuers  Registration  Board,17   the  case  before  the  Court concerned disciplinary proceedings that had been brought against two registered valuers for misconduct.  The charges against them arose out of evidence that they gave before an arbitration.  Eichelbaum CJ affirmed that the principle of immunity of  witnesses  applied  to  evidence  given  at  arbitration.     The  Judge  reviewed authorities, which included Cabassi v Vila. In Cabassi, Starke J said: 18

No action lies in respect of evidence given by witnesses in the course of judicial proceedings, however false and malicious it may be, anymore than it lies against judges, advocates or parties in respect of words used by them in the course of such proceedings or against juries in respect of their verdicts.

[131]   Further on in his judgment, Starke J said:19

The law protects witnesses and others, not for their benefit, but for a higher interest, namely the advancement of public justice.

[132]   Eichelbaum J said: 20

The rationale of the rule appears sufficiently from the judicial statements quoted.  As Starke J put it, broadly it is the advancement of public justice. As a matter of policy, in order to ensure the free and unfettered availability of witnesses in any cause, it has been thought best to provide an absolute immunity from civil action, regardless of the nature of the proceeding, and irrespective of whether the evidence was true or false, or given in good faith or with malice.

[133]   These statements of principle make it clear that immunity attaches to what a person has said in the course of a civil proceeding because, were the law otherwise,

witnesses would be unwilling to give evidence or may be influenced in the type of

17 Dentice v Valuers Registration Board [1992] 1 NZLR 720 (HC).

18 Cabassi v Vila (1940) 64 CLR 130 at 140.
19 Ibid, at 141.

20 Dentice v Valuers Registration Board, above n 17, at 724.

evidence they give, by concern that they will be subject to civil actions.  There is an adjunct immunity that extends to the statements made by a witness when interviewed by counsel or solicitors or parties during the process of preparing evidence for the hearing.  What is clear is that the immunity does not have any application other than in circumstances involving the giving of evidence or preparation of evidence for that purpose in the course of civil proceedings.   It follows that statements Mr Singh might have made relating to the possibility of statutory abatement notices and the like being served on the plaintiff are outside the scope of the immunity.

[134]   The only transaction that comes close to the circumstances in which witness immunity might apply in this case, is, as Mr Williams has pointed out, at the point where Mr Singh made comments on the fact summary that the prosecution in the District Court proceedings was preparing for the purposes of those proceedings. However, preparation of such a fact summary is quite a different matter from preparation of witness statements or briefs of evidence that an intending witness intends to provide at the hearing.  Mr Singh’s comments that were supplied to the prosecution were not put forward in his capacity as a potential witness.  Indeed, on the basis of the evidence presently before the Court, I assume that the fact summary was prepared for the conventional purpose of informing the Court of the circumstances of the case in the event that there was a plea of guilty in which case witnesses would not need to be called to give evidence.

[135]   For all of these reasons I conclude that the application so far as it is based upon the defendant being entitled to take advantage of a witness immunity that was available to Mr Singh cannot succeed.

Deceptive or misleading conduct?

[136]   The  statement  of  claim  refers  to  five  different  categories  of  incorrect statements attributed to Mr Singh that are the foundation for the plaintiff’s claim that EnviroWaste engaged in misleading or deceptive conduct.  These I have set out at paragraph [43] above.

[137]   Subsequently  in  the  statement  of  claim  the  plaintiff  pleads  that  these assertions by Mr Singh were false.  The statement of claim alleges:

Particulars

(a)       As EnviroWaste did know or should have known, there was never a clay cap installed to seal the landfill;

(b)       Testing   by   experts   commissioned   by   the  ACC   and   Frankel established   that removal of the cap had not actually exposed site workers and the public to any risk from asbestos present in the refuse;

(c)       The removal of the cap had not resulted in odour;

(d)       Site workers had not been covered in dust, since the site had been water-logged at the relevant time;

(e)       There was no evidence of a high risk to the environment.

[138]   The statement of claim goes on at paragraph 20 to allege that:

By issuing and repeating allegations against Frankel which were incorrect, EnviroWaste engaged in misleading or deceptive conduct.

[139]   This pleading is to be understood as a claim that the particularised false statements attributed to Mr Singh were repeated on subsequent occasions and were the cause of the loss that the plaintiff claims it suffered.  The question that is raised by this ground of defence is that the statements of fact and opinion attributed to Mr Singh in paragraph 12 of the statement of claim were incorrect.

[140]   The allegation concerning the removal of the cap is in two  parts.    It  is impossible on a summary judgment basis to conclude whether Mr Singh was correct about the first issue (whether there had been a clay cap which the plaintiff had removed).  The second part concerns the assertion that the removal of the clay cap exposed refuse and the related allegation about the possible exposure of the public to asbestos present in the refuse.  The only comment that I would make is that while no clear judgment can be reached about whether there had been a clay cap and whether it had been removed, there is no doubt that refuse had been exposed for the very reason that it was excavated and stockpiled and left in an uncovered state on the site.

[141]   The disputes about the asbestos that now appear to be the key part of the plaintiff’s claim are as follows.  When Mr Singh went to the site in early June 2008, he  was  confronted  and  taken  by  surprise  at  the  scale  of  the  excavation  and stockpiling of refuse on the site.  He said that he observed dust being blown down

onto an area where employees were located.  The employees were not wearing any protective covering.   Mr Singh assumed that there would be a risk that airborne asbestos was being carried downwind to the hazard of those employees and also to other persons in the vicinity.  He did not, of course, have equipment to carry out the specialised scientific monitoring of the dust to see if it in fact contained airborne particles of asbestos.  He apparently assumed that there were substantial amounts of asbestos in the former tip site from which the refuse had been extracted.  The basis of his knowledge is not clear.  He apparently also assumed that if there was asbestos in the refuse then if the right conditions were present it could be released as airborne particles.   The right conditions included that the stockpile on which the work was being carried out was dry, and that the landfill material was being agitated in the processes of being excavated, transported and dumped onto the stockpile.  He said that both these latter conditions were present on the day when he inspected the site.

[142]   It would seem that the first reference that Mr Singh made to asbestos was in an email to the ARC dated 17 June 2008, which contained the passage:

The exposed refuse in the stockpile needs to be covered up immediately to stop any asbestos material or other controlled waste becoming airborne. Apparently they have not cover (sic) the refuse since they started excavating. There is a public walkway downwind of the stockpile.

[143]   In a subsequent e-mail to the ARC on 19 June 2008, Mr Singh said:

All refuse must be wetted to stop dust becoming airborne.

[144]   In that e-mail, Mr Singh effectively critiqued a report that Mr Sax had made on 26 June 2008.  In that report, Mr Sax had said that no free asbestos was observed anywhere in the relevant area, except for one small piece of asbestos fibreboard cement.  He said that it was his view there was extremely little prospect of airborne asbestos  being  detected  within  detection  limits.    He  further  said  it  was  highly unlikely that free asbestos outside acceptable national guidelines would be found anywhere on the refuse covered site; that it was likely a few small fragments of asbestos fibreboard would be recovered, but they were not a health hazard and there were no reasons for concern about free asbestos contaminating adjoining properties.

[145]   Mr Singh’s critique was that he apparently considered that the monitoring or the inspection had not been on a large enough scale and that importantly the circumstances in which the inspection was carried out were quite different from the conditions that Mr Singh witnessed when he visited the site in early June 2008.

[146]   The plaintiff’s position is that there was very little asbestos in the landfill. The only asbestos in the landfill was in substantial sized pieces, which were different from small particles which could be ingested.   The defendant denied that the conditions were dry (and hence resulted in dust being produced) during the time the landfill was excavated. To the contrary, the defendant’s position is that at all times the landfill was damp or wet because of rainfall.

[147]   The plaintiff claims that its position has been vindicated by specialist air monitoring analysis, which failed to find airborne asbestos particles at detectable limits.

[148]   Mr Singh’s initial response to the position taken by the plaintiff was that the sampling of the landfill was inadequate. As to the airborne particle testing, Mr Singh argued that the conditions in which the tests had been carried out did not replicate the conditions he observed, where wind driven dust was rising from the landfill and being carried off the site, whereas the samples were taken in damp conditions where no dust was being generated.   He therefore considered that the tests were not conclusive.

[149]   Since the dispute originally started, there have been other expert tests and examinations carried out that do not appear to have detected the condition that was obviously of central concern to the local authorities, namely the generation of windborne asbestos particles.  Eventually, the site was effectively covered so that if there ever had been such a hazard, it would have effectively ended because of the remedial steps taken.

[150]   The  defendant  has  not  established  on  the  balance  of  probabilities  that Mr Singh did not make an incorrect statement about the asbestos issue.  In his e-mail of 17 June, Mr Singh spoke of “any asbestos material or other uncontrolled waste

becoming airborne” (emphasis added).  Mr Singh may not have been expressing a concluded view that there actually was airborne asbestos emanating from the site. His comments though would reasonably be understood to assert that while it could not be proved that there was airborne asbestos, the release of airborne asbestos could not be affirmatively ruled out.   Although the materiality of this statement is not directly relevant to whether or not it was an accurate statement, I observe that in the context where Mr Singh was reporting to a regulatory authority, even a risk of airborne asbestos would be likely to provoke the ARC or ACC into demanding preventive measures.

[151]   If the required conditions prerequisite to the generation of airborne particles were not in fact present, then even to suggest that there was a risk or possibility of asbestos in the dust emanating from the site was a misstatement.  The fact that the air testing did not detect airborne asbestos will be influential, but may not be conclusive. It may be that Mr Singh’s criticisms of the circumstances in which the test was carried out have validity.  On the other hand, expert evidence may be forthcoming that given the small amounts of asbestos in the landfill, the form that such particles of asbestos took and the likely effect of the agitation of the material by excavation etc, there was no chance of airborne asbestos particles emanating from the site.

[152]   My  conclusions  are  these.    Mr  Singh  did  state  that  dust  that  probably contained asbestos was generated by the excavation work and employees were exposed  to  that  dust.    He  did  not,  of  course,  state  categorically  that  the  dust contained asbestos.  He would have known that he could not conscientiously make an unconditional statement to that effect.  But the substance of the statements as a reasonable person would understand them was that there was a substantial chance that airborne asbestos was emanating from the site.  A substantial part of the expert opinion subsequently obtained seems to be contrary to Mr Singh’s contention.  That is not to say that all of that evidence ruled out that there was actually an occurrence of asbestos-laden dust coming from the site.  It may be fair to say that as a matter of inference, there is substantial evidence available that the necessary preconditions to escape of asbestos dust were not present at the site because of the low level of asbestos material in the fill and the fact that it was cement-bound.  There may also be arguments about whether dust would have escaped having regard to the moisture

content in the landfill.  But these are all matters which will need to be subjected to careful analysis at trial.  Certainly, I am clear that summary judgment in favour of Mr Singh cannot be justified on the basis of the evidence put forward thus far.

Causation

[153]   In order for a plaintiff to seek remedies under the FTA, it will have to show that there was a misrepresentation that caused a misconception on the part of one or both of the Councils that issued the abatement notices halting the work on the site.  I have already discussed the form of the misrepresentation relating to potential harm from asbestos in the stockpile.  It is the case for the defendant that even if Mr Singh was wrong about the asbestos, such influence as they had on the Councils was displaced by other factors causing the Councils to issue the abatement notices.  Mr Singh’s statements did not contribute to that outcome occurring.  The Councils had their own compliance managers working on the site.  They had access to technical reports about matters, including the asbestos risk, such as the report which Tonkin & Taylor produced in October 2008.

[154]   This report was obtained on the direction of the ARC.  The report was largely directed to analysing the contents of the landfill.   As part of the analysis, specific attention was paid to the asbestos present in the landfill.   At paragraph 4.2.3, the report’s authors stated:

We are not aware of any defined acceptance level for asbestos fibre in soil, particularly in a commercial context.  Various regulatory authorities around the world have considered the subject and provide some guidance.  Most of that consideration has been focused on what particular concentration in soil might result in an unacceptable concentration of asbestos fibre in air.

[155]   Later in the report analysis is provided of the type of asbestos present and the comment is made that given that the samples were bound in cement rather than free fibre form it was likely that the asbestos present was non-respirable.

[156]   Air sampling was carried out by a specialist firm with relevant expertise

26 June 2008.

[157]   A separate report from experts in the field of asbestos contamination was obtained by the ACC in December 2009.

[158]   It was not, of course, Mr Singh’s decision as to whether abatement notices, or prosecution should follow.   The information that he provided was fed into the decision-making process, but it was only one source of information.  It was limited in time to the early stages of discovery of the activities of the developer at the site.  It is true that Mr Singh was asked to contribute to a fact summary that was prepared for Court proceedings in early 2009, but throughout 2008 and 2009, responsibility for decisions about the site were being taken by the Councils’ enforcement staff.   No doubt they were influenced by the expert evidence.  It is probable that they took a very conservative view  about  risk  management  because of the unpalatability of having asbestos exposed to the elements in built-up areas.

[159]   Notwithstanding that there was substantial evidence, such as the conclusions contained in the Tonkin & Taylor report, that respirable asbestos was probably not a risk, the fact summary prepared for the District Court prosecution that commenced in

2009 contained references to asbestos.  Mr Singh was consulted about the contents of the fact summary.  That was probably because he was the original witness who observed what was happening at the site before work was hastily discontinued on the site.

[160]   The  further  submission  concerning  causation  was  that  there  were  other grounds, quite independent of the asbestos concerns, which actuated both Councils to  take steps  against  the plaintiff.    The site contained  contaminated  landfill.    I understand that this means that regardless of asbestos, there were other noxious chemicals and substances in the landfill material.  Conditions to control the state of the site had been imposed.  The plaintiff had obtained a resource consent to place material on the site to compress the sub-stratum, which included landfill material preparatory to building.   As part of that consent, there was limited entitlement to carry out excavation into the landfill for the purposes of drainage.  Purportedly in conformity with the resource consent, the plaintiff embarked upon works on the site. However,  instead  of  the  landfill  material  being  left  largely  undisturbed  a  large volume was excavated and stockpiled.   Estimates seemed to vary between 25,000

cubic metres and 40,000 plus cubic metres.  Arguments about the exact dimensions are beside the point.  There was a very large unauthorised stockpile constructed on the site.  Further, the stockpile was exposed to the elements and potentially would generate leachate runoffs.  As well, the regulatory authority had concerns about the geotechnical stability of the stockpile.

[161]   A further issue that was of concern to the regulatory agencies was what was to be done with the stockpiled material — whether it should be taken offsite to a sanitary landfill, or whether it could be managed on the site itself.   Parts of the Tonkin & Taylor report were directed to this issue.

[162]   I accept that if it were established that concerns about asbestos stemming from their statements of opinion that Mr Singh provided from June 2008 were still factors  causing the Councils to take steps  against the plaintiff when  issuing an abatement notice and/or instituting a prosecution, then if it was established that the information provided by Mr Singh was a contributory causative factor the plaintiff might have a cause of action under the FTA.

[163]   The overall view I take is that the Court cannot resolve, in the context of the defendant’s summary judgment application, that Mr Singh’s allegations about asbestos risk being created at the site by the manner in which the plaintiff was carrying  out  earthworks  in  June  2008  was  not  a  factor  which  influenced  the respective Councils to issue abatement notices and, in the case of the ACC, to issue District  Court  proceedings.    I accept  that  the  plaintiff will  have to  surmount  a substantial evidential hurdle if it is to convince a Court at trial that the causative effect of what Mr Singh said in June 2008 was a substantial cause of the delay to the project and was a factor that led to the initiation of the Court proceedings.

[164]   The causation ground, does not therefore justify the Court’s entering

summary judgment against the plaintiff.

Conclusion

[165]   The summary judgment application is dismissed.   I suggest that the parties confer on the matter of costs relating to the summary judgment application and

advise the Court in due course whether the costs are to be reserved or whether some other order is sought.  If there is to be an argument on costs, the parties are to submit memoranda not exceeding eight pages in length on each side within 14 days of the date of this judgment.   The parties should also confer on what interlocutory steps need to be taken from this point and attempt to settle a timetable for that purpose. The proceeding is to be listed for mention in my Chambers list at 2:15 p.m. 6

September 2012

J.P. Doogue

Associate Judge