Gibbs v First Gas Limited - [2022] NZCA 414

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 Appellant
AND	FIRST GAS LIMITED Respondent

Court:	Cooper P and Dobson J
Counsel:	Appellant in person L P Wallace and H A Froude for Respondent
Judgment: (On the papers)	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…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2022] NZCA 414
Decision Date: 31 August 2022 at 3.00 pm

CaseChat Overview and Summary

In the appeal of Gibbs v First Gas Limited, the appellants, Russell Victor Gibbs, Parani Josephine Gibbs, and Leigh Joseph Horton, as trustees of the RV & PJ Gibbs Family Trust, appealed a decision of the High Court which had granted declarations to the respondent, First Gas Limited, as to its rights over farmland held by the Gibbs Family Trust, as well as a permanent injunction restraining the Gibbs from obstructing First Gas’ access to the land. The primary focus of this judgment was the application by the Gibbs to adduce further evidence in relation to the appeal. The appeal was heard by Cooper P and Dobson J. The Gibbs applied to adduce 20 specified items as further evidence on their appeal, which First Gas opposed. The Gibbs argued that First Gas had a responsibility to discover many of the items, and they accused First Gas of being in breach of its obligations for not doing so. First Gas, on the other hand, argued 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. The Court found that items 1–4 and 7–8, as listed in appellant’s submissions dated 20 June 2022, were not admissible on appeal. However, the Maui Pipeline agreement (item 5) and the submission by the Natural Gas Corporation on the Petroleum Amendment Bill included in item 19 were to be adduced. The remaining items numbered 6, 9–18 and 20 were not admissible on appeal. The Court also granted a one-day extension of time for commencement of the appeal, and there was no order as to costs.

Orders