Gibbs v First Gas Limited
[2022] NZCA 414
•31 August 2022 at 3.00 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA29/2022 [2022] NZCA 414 |
| BETWEEN | RUSSELL VICTOR GIBBS, PARANI JOSEPHINE GIBBS AND LEIGH JOSEPH HORTON AS TRUSTEES OF THE R V & P J GIBBS FAMILY TRUST |
| AND | FIRST GAS LIMITED |
| Court: | Cooper P and Dobson J |
Counsel: | Appellant in person |
Judgment: | 31 August 2022 at 3.00 pm |
JUDGMENT OF THE COURT
A The application to adduce further evidence is unnecessary in relation to items 1–4 and 7–8 as listed in appellant’s submissions dated 20 June 2022. The application to adduce further evidence is also unnecessary in respect of the Select Committee report on the Petroleum Amendment Bill (No 2) 1980 included in item 19. Those items may be provided to the Court as part of the authorities cited in support of the appeal.
BThe Maui Pipeline agreement (item 5) may be adduced. The submission by the Natural Gas Corporation on the Petroleum Amendment Bill included in item 19 may also be adduced.
C The remaining items numbered 6, 9–18 and 20 are not admissible on appeal.
C A one-day extension of time for commencement of the appeal is granted.
D There is no order as to costs.
____________________________________________________________________
REASONS
(Given by Dobson J)
Introduction
The appellants (the Gibbs) appeal a decision of the High Court granting the respondent (First Gas) declarations as to its rights over farmland held by the RV & PJ Gibbs Family Trust (the Gibbs Family Trust), and a permanent injunction restraining the Gibbs from obstructing First Gas’ access to the land.[1] The appellants have applied to adduce further evidence in relation to that appeal. This judgment deals primarily with the application to adduce further evidence. An earlier minute of the Court directed that the application was to be determined on the papers prior to the substantive appeal.[2]
[1]First Gas Ltd v Gibbs [2021] NZHC 3309.
[2]Gibbs v First Gas Ltd CA29/2022, 30 May 2022 (Minute of Courtney J).
First Gas owns and operates the Maui Pipeline that carries natural gas from Taranaki gas fields to the upper North Island. First Gas commenced proceedings in the High Court seeking declarations as to the extent of rights created for it by certain Petroleum Easement Certificates (PECs) issued under the Petroleum Act 1937.[3] Those PECs are registered against the titles of farmland held by the Gibbs on trust.
[3]The Petroleum Act 1937 has since been repealed by the Health and Safety in Employment Act 1992, s 62(1). However, the Crown Minerals Act 1991 contains savings provisions continuing the effect of the relevant sections in the former Act: see Crown Minerals Act, sch 1 cl 12.
In a reserved judgment issued on 6 December 2021 Grice J made declarations confirming the scope of the rights granted to First Gas under the PECs. The Judge also granted a permanent injunction prohibiting the Gibbs from obstructing First Gas’ access to the Gibbs’ land for the purposes of inspecting, maintaining, repairing or operating the Maui Pipeline.[4]
[4]First Gas Ltd v Gibbs, above n 1, at [278]–[279].
The Gibbs are acting for themselves in pursuing the appeal. They have standing as the trustees of the Gibbs Family Trust that owns the farmland in issue.
Application to adduce further evidence
The Gibbs have applied to adduce 20 specified items as further evidence on their appeal. Those items are listed in the Gibbs’ submissions on the application to adduce further evidence dated 20 June 2022. First Gas has opposed that application and both parties have filed comprehensive submissions in support of their respective positions.
To admit further evidence on appeal, the Court needs to be satisfied that the evidence is fresh, credible and cogent.[5] Evidence will not be regarded as fresh if it could, with reasonable diligence, have been produced at trial.[6] The documents sought to be adduced on this application are historical and span the period from 1960 to the 1980s. Clearly none of them are “fresh” in the sense of being created since the High Court hearing. The Gibbs claim that First Gas had a responsibility to discover many of the items, and they accuse First Gas of being in breach of its obligations for not doing so. First Gas’ rejoinder is to the effect that none of the documents were relevant to the claims it pursued in the High Court, so that it did not have any obligation to discover them.
[5]Erceg v Balenia Ltd [2008] NZCA 535 at [15].
[6]At [15], citing Rae v International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190 (CA) at 192.
In exceptional circumstances, the Court may admit evidence that is not fresh.[7] Considering this application, cogency in the sense of relevance to the issues raised by the appeal is the determining factor. All the items are credible in the sense that there could be no doubt about their authenticity as representing what they appear to be, and their provenance is reliable.
Assessment
[7]Rae v International Insurance Brokers Ltd, above n 6, at 193.
Items 1–4 in the Gibbs’ list of further documents sought to be adduced are extracts from parliamentary debates taken from Hansard from November and December 1962, September 1967 and November 1974. As acknowledged by the Gibbs in their reply submissions, parliamentary materials such as these Hansard extracts are not required to be produced as evidence and may be placed before the Court as part of the authorities to be cited in supported of their appeal.
Item 19, which is a Commerce and Energy Select Committee report on the Petroleum Amendment Bill (No 2) 1980 (74-1), comes within the same category. The Gibbs wish to include as a component of this a submission on the Bill from the Natural Gas Corporation, a predecessor in title to First Gas. The Select Committee report is to be treated the same as the Hansard extracts, that is it can be included in the Gibbs’ authorities on appeal. In the circumstances, we also grant leave for the submission on the Bill by First Gas’ predecessor to be adduced as having possible relevance in considering the content of the Select Committee Report.
Items 7 and 8 are the 6 August 1975 proclamation signed by the Governor‑General and the Minister of Mines pursuant to s 70A of the Petroleum Act 1937 (the Maui Pipeline Proclamation), and maps and plans which are described by the Gibbs as forming part of the Maui Pipeline Proclamation. These two are official documents that the Gibbs are permitted to place before the Court without having them adduced as evidence, given the scope of the arguments they foreshadowed on their appeal.
All of the items considered thus far could arguably have some relevance as aids contributing to an analysis of the interpretation of the PECs most directly in issue. In taking that view, we do not reject the submissions for First Gas which deny any possible relevance for those documents, on a variety of grounds. The approach signalled in First Gas’ submissions on this application remains open to it in all respects of its argument on the substantive appeal.
The issues on appeal are essentially matters of interpretation of statutory instruments brought into existence pursuant to legislative powers. Such documents are to be contrasted with documents of a contractual nature. In some cases relating to the formation of contracts, extrinsic evidence such as correspondence and records of negotiations leading to a contract may be admissible, where such items may throw light on the meaning intended by the parties in the terms of their concluded contract.[8]
[8]See generally Bathurst Resources Ltd v L&M Coal Holdings Ltd [2021] NZSC 85, [2021] 1 NZLR 696 on the admissibility of extrinsic evidence in contract interpretation.
The remainder of the items sought to be adduced by the Gibbs are either contractual, or potentially have relevance to the terms of certain contractual undertakings. Item 5 is the Maui Pipeline Agreement (MPA). It was concluded between Maui Development Ltd, which was responsible for construction of the pipeline and is First Gas’ original predecessor in title, and Federated Farmers of New Zealand Inc.
First Gas opposes the admission of the MPA on grounds including that it was a contract to which First Gas was not a party, and that its provisions have been superseded by the PECs registered, relevantly over the Gibbs’ land.
Although unlikely, we cannot eliminate entirely the prospect that the MPA may have some relevance to the arguments sought to be raised on appeal by the Gibbs. It certainly appears that they wish to rely on its provisions as part of the narrative explaining the influences they cite as relevant to the intended scope of the PECs. We acknowledge that the MPA is not fresh in that it could, with reasonable diligence, have been adduced as evidence in the High Court. However, given its possible relevance as a part of the narrative the Gibbs seek to provide in support of their arguments on interpretation, we treat their position as an exceptional one that justifies its admission despite it not being fresh.
We have reached this view about admissibility to the MPA having considered the recent High Court decision of Associate Judge Johnston on an application for a stay of the enforcement of Grice J’s judgment, issued on 4 August 2022.[9] In reviewing arguments advanced by the trustees in support of a stay, the Associate Judge was not persuaded that the MPA was likely to be relevant in determining the rights and obligations of the parties.[10] We are not to be taken as rejecting the reasons offered by the Associate Judge for his view, and have reached our decision on the cautious basis outlined in the previous paragraph.
[9]First Gas Ltd v Gibbs [2022] NZHC 1894.
[10]At [30].
Accordingly, we allow the MPA to be adduced as evidence on the appeal. We reserve in all respects the arguments already foreshadowed and any others that First Gas may raise against the relevance of its provisions to the issues on the appeal.
The remaining items the Gibbs seek to adduce comprise correspondence in items 6, 9–18 inclusive and 20 of their list. Correspondence such as these items cannot have any relevance to the issues raised by the Gibbs’ appeal. We accept First Gas’ submission that their admission would unnecessarily prolong the argument of the appeal. Any attempt by the Gibbs to rely on them would distract from the focus on what is likely to be relevant in challenging the High Court decision. We accordingly dismiss the application for admission of these items as additional evidence on the appeal.
Appeal commenced out of time
The formal date of delivery of the High Court judgment under r 11.5 of the High Court Rules 2016 was 6 December 2021. Counting 20 working days from that date and making allowance for statutory holidays in which the court was not open, the time limit for filing an appeal against the judgment expired on 24 January 2022. The Gibbs filed their notice on appeal on 25 January 2022. The point that it was one working day out of time has not been taken, and we have not sought submissions on the point. The time delay is minor, readily explicable given the intervention of the holiday period, and there can be no possible prejudice to First Gas. We accordingly grant leave for the appeal to be filed one day out of time, as it was.
First Gas sought costs, in the event that the application to adduce further evidence was dismissed. There has been partial success, and in the circumstances no order as to costs is warranted.
Result
The application to adduce further evidence is unnecessary in relation to items 1–4 and 7–8 as listed in appellant’s submissions dated 20 June 2022. The application to adduce further evidence is also unnecessary in respect of the Select Committee report on the Petroleum Amendment Bill (No 2) 1980 included in item 19. Those items may be provided to the Court as part of authorities cited in support of the appeal.
The Maui Pipeline agreement (item 5) may be adduced. The submission by the Natural Gas Corporation on the Petroleum Amendment Bill included in item 19 may also be adduced.
The remaining items numbered 6, 9–18 and 20 are not admissible on appeal.
A one-day extension of time for commencement of the appeal is granted.
There is no order as to costs.
Solicitors:
Govett Quilliam, New Plymouth for Respondent
3
0