Graeme Martin Contracting Ltd v Disputes Tribunal
[2018] NZCA 328
•28 August 2018 at 10.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA662/2017 [2018] NZCA 328 |
| BETWEEN | GRAEME MARTIN CONTRACTING LIMITED |
| AND | DISPUTES TRIBUNAL |
| AND | DISTRICT COURT AT WELLINGTON |
| AND | CHORUS NEW ZEALAND LIMITED |
| Hearing: | 15 August 2018 |
Court: | Cooper, Winkelmann and Gilbert JJ |
Counsel: | E J Tait for Appellant |
Judgment: | 28 August 2018 at 10.30 am |
JUDGMENT OF THE COURT
AThe appeal is dismissed.
BThe appellant must pay the third respondent costs for a standard appeal on a band A basis and usual disbursements.
____________________________________________________________________
REASONS OF THE COURT
(Given by Gilbert J)
Introduction
This is an appeal against a judgment of Collins J dismissing applications for judicial review of two decisions, a decision of the Disputes Tribunal and a decision of the District Court dismissing an appeal against the Tribunal’s decision.[1] The appellant complains that the Disputes Tribunal breached rules of natural justice by refusing to transfer the proceedings from Wellington to Christchurch where the events giving rise to the claim occurred and the witnesses were based and, second, by refusing an adjournment to enable the appellant to locate witnesses and arrange for them to be present at the hearing.
[1]Graeme Martin Contracting Ltd v Disputes Tribunal [2017] NZHC 2636 [High Court judgment].
We commence by briefly outlining the dispute. We then set out the procedural history in some detail before examining the appellant’s essential complaint that it was not given a proper opportunity to be heard.
The dispute
It is common ground that on 16 January 2015 the appellant, Graeme Martin Contracting Ltd (GMCL) severed a fibre optic cable belonging to the third respondent, Chorus New Zealand Ltd (Chorus). The cable was housed inside a 100 mm diameter duct laid at a depth of approximately 2.5 metres. The damage occurred while GMCL was carrying out contract work for Fulton Hogan digging trenches and laying deep sewer mains that were to be connected to a new pump station in Christchurch.
Chorus repaired the cable at a cost of $17,173 and issued an invoice for this amount to GMCL on 4 July 2015 claiming it was liable in negligence for the repair cost. GMCL disputed liability on the basis that it took all reasonable steps to locate services and this particular cable was not shown on the service drawings.
Disputes Tribunal
Chorus filed a claim against GMCL in the Disputes Tribunal for $15,000, being the limit of the Tribunal’s jurisdiction.[2] The claim was filed in the Disputes Tribunal at Wellington because that is where Chorus is based.[3] On 16 March 2016 the Tribunal notified the parties that the claim would be heard in Wellington on 5 May 2016.
[2]Disputes Tribunal Act 1988, s 10 (1A).
[3]Disputes Tribunal Act, s 24(2).
On 23 March 2016 GMCL’s solicitors applied for the proceedings to be transferred to Christchurch because this is where the incident took place and all witnesses were located there. This application was declined on 29 March 2016 on the basis that the appellant and its witnesses could attend the hearing by teleconference.
On 13 April 2016 GMCL’s solicitors sought an adjournment of the hearing because Graeme Martin, the managing director of GMCL, would be overseas from 19 April 2016 until 23 May 2016. A hearing date after 23 May 2016 was accordingly sought. This request was followed on 19 April 2016 by a formal application for an adjournment of the hearing. The application for transfer of the proceedings to Christchurch was renewed at the same time. In the supporting affidavit, Mr Martin explained GMCL’s response to the claim, namely that the cable was not shown on the plan. He said he wished to call five witnesses, including a witness employed by Fulton Hogan, all of whom lived in Christchurch. Chorus objected to the proceedings being transferred on the basis that all witnesses would be able to attend by teleconference.
On 26 April 2016 a Disputes Tribunal referee granted the request for an adjournment and directed that the matter be set down for a hearing after 23 May 2016, as requested by GMCL. The request for transfer was declined on the basis that the witnesses could attend the hearing by teleconference.
On 28 April 2016 the Disputes Tribunal gave notice of a new hearing date of 3 June 2016.
Mr Martin returned from overseas on 18 May 2016, five days earlier than stated in the adjournment application. The following day, Mr Martin made a third request for the proceedings to be transferred to Christchurch. He again explained that GMCL wished to call several Christchurch based witnesses, some of whom were not employees, and he feared that the company would be unable to present its case fairly unless it was transferred to Christchurch. A court registry officer responded the same day explaining that the application for transfer had already been determined and there was no basis to revisit it.
On 31 May 2016 Mr Martin wrote to the Tribunal making an urgent request for the proceedings to be adjourned and transferred to Christchurch. He explained that he was managing a significant contracting business employing some 40 staff. Since his return from overseas, he had not had time to prepare properly for the hearing on 3 June 2016. He said he wished to call a minimum of three witnesses but had been unable to contact two of them. He said the company would be unfairly prejudiced if it were not able to have its witnesses appear in person at the hearing and it would be easier for the company if the matter were heard in Christchurch. The court registry officer responded a short time later confirming his earlier reply that the application for transfer had already been determined and he had no power to overrule it. The application for a further adjournment was also declined given the adjourned date was set in accordance with GMCL’s request.
The hearing took place on 3 June 2016. Chorus was represented by David Mills, a long-term employee who works in the team responsible for overseeing the maintenance and operation of Chorus’ copper and fibre network. One of his roles is to represent Chorus in the Disputes Tribunal. He is not a lawyer, nor is he legally trained, but he frequently represents Chorus in the Tribunal. Mr Martin attended by telephone from Christchurch representing GMCL.
At the outset of the hearing, the referee asked Mr Martin about the witnesses he wished to call. Mr Martin advised that GMCL wanted to call three witnesses — two former employees of GMCL and a Fulton Hogan employee. Mr Martin said he did not have statements from any of these witnesses and had not yet been able to track them down. He had ascertained that the Fulton Hogan employee was in England, one of the former GMCL employees was in Australia and the other was in Christchurch but he did not know where.
The referee then invited Mr Mills to explain the basis of Chorus’ claim. Mr Mills pointed out on the service plan where the relevant duct was shown. All participants, including the referee, had a copy of this plan in front of them. Mr Mills referred to the Worksafe Guide for Safety with Underground Services warning that cables should be expected at any depth, all services must be found before excavation commences, and if there is doubt as to where a service is located the service owner should be consulted.[4]
[4]Guide for Safety with Underground Services (Department of Labour, October 2002) at [29].
Mr Martin was then invited to respond. Mr Martin pointed out that the plan shows two lines, not three. He referred to a photograph showing two 100 mm Chorus ducts found side by side at a depth of less than a metre (double‑ducts). Although the referee did not have a copy of the photograph it is clear from the transcript of the hearing that he understood what it depicted based on Mr Martin’s description. Mr Martin maintained that the separate 100 mm duct found at a depth of 2.5 metres was not shown on the Chorus plan. Mr Mills’ response was that if one looks closely at the plan it is apparent that the double duct is represented by a single line and the single duct that was severed is represented by the other line.
Before inviting Chorus to call its witness, the referee summarised his understanding of GMCL’s defence to the claim — GMCL took all steps required of a reasonable contractor; all services shown on the plan were located using ground penetrating radar including the two ducts shown in the photograph; and GMCL could not reasonably have expected to find this duct at a depth of 2.5 metres. Mr Martin confirmed the accuracy of this summary.
At this stage, Chorus was invited to call its witness, George Johnson, who also attended the hearing by telephone from Christchurch. Mr Johnson was involved in locating the damaged cable and overseeing its repair. He stated that the double duct was represented on the plan by a single line and the damaged duct by the other single line. He confirmed the location of the damage and explained the work required to carry out the repair. Mr Martin questioned Mr Johnson, but not about whether the damaged duct was shown on the plan. He suggested to Mr Johnson, however, that even the Chorus personnel who initially attended after the breakage occurred had difficulty locating the duct.
The referee then questioned Mr Johnson about the issues Mr Martin had raised in the earlier discussions. He asked why the depth of the cable was not shown on the plan. Mr Johnson explained they do not generally measure the depth. The referee then asked how someone reading the plan could ascertain where the ducts start and finish. Mr Johnson responded that you can see this by following the lines drawn on the plan. He pointed out that the single duct containing the fibre optic cable that was severed is represented by a single line running alongside McCormacks Bay Road and terminates at a manhole near the intersection with Basil Place whereas the double duct, also represented by a single line, continues in an easterly direction past this manhole towards Glenstrae Road. The referee also asked Mr Johnson what depth ducting such as this would normally be laid at in Christchurch. Mr Johnson replied that where the ducts are laid in trenches, they are usually laid at a depth of between .6 and .8 metres. However, because of liquefaction following the earthquakes, the ducts can be drilled as deep as four metres to avoid other services. The referee also questioned Mr Johnson closely about the amount of time spent and consequent costs associated with the repair of the cable.
Once the questioning was complete, the referee asked Mr Martin what his witnesses could have added to what had already been covered if they had been present. Mr Martin replied that they were onsite when Chorus personnel arrived following the breakage. He said he was not party to the conversations that took place at that time but understood these witnesses may have had something useful to add. The referee pointed out that these conversations took place after the event and therefore were unlikely to assist. Mr Martin responded “but we don’t know, do we?”
The referee released his decision on 10 June 2016 finding in favour of Chorus. The Tribunal addressed GMCL’s defence as follows:
[6] While I understand GMCL’s point regarding the steps it had taken to identify the services (including the use of hand-digging and of ground penetrating radar), the unusual depth of the cable/ducting, and the provision that it had made to leave the other located services undisturbed and protected during the construction phase (including, for example, by leaving appropriate gaps in the sheet piling), the fact remains that GMCL had failed to positively identify the cable/ducting, despite it being clearly marked on the relevant plans. Had GMCL been left in any doubt as to whether there were other, unidentified, services in the area, the reasonable course of action would have been to have continued to search, or to have contracted Chorus, and requested Chorus to mark out the course of the cable/ducting: I understand that Chorus provide that service free of charge to requestors.
The referee also addressed the question as to whether GMCL was prejudiced by the earlier decision of another referee not to transfer the proceedings to Christchurch:
[12] Finally, I raised the issue of the hearing location at the beginning of the hearing, noting that GMCL had applied, unsuccessfully, to a different Referee to have the proceedings transferred to the Christchurch District Court. The reason for that application was, I understand, because GMCL, its witnesses, Chorus’ witness, and a Chorus office were all in Christchurch, only Mr Mills (who appeared for Chorus in the Wellington District Court) was in Wellington, and the claim was only filed in Wellington because that was where the Chorus head office was located. Consequently, GMCL had concerns that it might be prejudiced by having the claim heard by a Referee in Wellington.
[13] However, as it transpired, GMCL had no witnesses at the hearing (despite having had ample time to obtain written statements if the witnesses were unavailable in person), two being overseas in any event and the other being untraceable, and GMCL was permitted to attend the hearing from its own offices, rather than from a local court, as was the Chorus witness. It may be that in other cases a transfer would be appropriate but, in this case, I am satisfied that GMCL was not disadvantaged by the usual rule that the claim is heard in the court nearest to where the applicant resides.
Appeal to District Court
GMCL appealed to the District Court on the following grounds:
(a)the Tribunal’s refusal to grant a second adjournment of the proceedings prevented GMCL from calling its witnesses and properly presenting its case;
(b)the Tribunal determined the case without having the correct plan or, alternatively, without a proper understanding of the plan; and
(c)the Tribunal failed to consider: the case should have been heard in Christchurch; the plan in GMCL’s possession did not show the relevant duct; and the Tribunal prevented GMCL from calling Chorus employees who attended after the damage occurred and would have said that they “were unaware of the existence of the cable”, “spent hours trying to find it”, “arrived with Chorus plans that did not show the duct” and “could not find the duct onsite as the duct was not shown on the Chorus plans”.
Mr Martin provided an affidavit in support of the appeal stating, among other things, that the plan shows “two Chorus duct cables only… at a depth of approximately .35 of a metre on the footpath area and .5 of a metre on the road area”. He said that these two duct cables could be seen in the photograph that was discussed at the hearing at the approximate depth shown on the plan. Mr Martin said that the referee did not understand that the damaged duct was not marked on the plan. He concluded that the referee cannot have been looking at the correct plan. This, he said, “underscores my extreme concerns about the case being heard in Wellington and my being forced against my protestations, to proceed when the Appellant’s witnesses were not available”.
Mr Martin subsequently produced almost identical statements from two witnesses he wished to call, both former employees of GMCL, Tully Forest and Sven Bergerson. They both stated:
This plan showed that there were duct cables of Chorus’ at a depth of .5 of a metre. We carefully dug out the earth above that. There was nothing on the plan indicating any duct cable at any greater depth.
It transpired that there was a cable at a depth of 2.5 metres.
The appeal was heard on 10 November 2016. Mr Tait, who has assisted GMCL throughout, presented GMCL’s submissions. He refined the grounds of appeal to two essential points. First, there was procedural unfairness because the referee did not grant a second adjournment thereby depriving GMCL of the ability to call key witnesses. Secondly, the reasons given in the decision showed the referee was confused about the plan.
Judge Hastings dismissed the appeal in a decision delivered on 30 January 2017.[5] The Judge was not persuaded there was procedural unfairness given nearly three months had passed from the time the claim was filed until the hearing, an adjournment had already been granted and there was adequate opportunity for GMCL to prepare for the second hearing.[6] Even if there was procedural unfairness, it could not have prejudicially affected the outcome of the proceedings because the witness statements do not indicate that any further steps were taken to avoid damage once the cable was not found at the expected depth of half a metre.[7] The Judge rejected GMCL’s alternative submission that the referee’s reasoning demonstrated that he was not looking at the correct plan or had misinterpreted it. After comparing the plan produced in evidence by Mr Martin with the version on the Tribunal’s file, the Judge was “satisfied that the discussion at the hearing referred to the same places on the same plan, that the referee had the correct exhibit before him, and that he understood it”.[8] The Judge was also satisfied the referee understood what was depicted in the photograph referred to by Mr Martin at the hearing.[9]
Application for rehearing in the Disputes Tribunal
[5]Graeme Martin Contracting Ltd v Chorus New Zealand Ltd [2017] NZDC 1622.
[6]At [13]–[14].
[7]At [14].
[8]At [15].
[9]At [15].
GMCL then applied to the Disputes Tribunal for an extension of time to apply for a rehearing. This application was also advanced on the basis that the evidence of witnesses it wished to call was not available at the original hearing. This evidence was said to establish that only two ducts were shown on the Chorus plan, both at a depth of .5 metres, and GMCL could not reasonably have known there was a third duct at a depth of 2.5 metres. GMCL relied on affidavits from Mr Martin, Mr Forest and Ian Harrison, an independent expert. Mr Harrison states in his affidavit that the Chorus plan shows two ducts only, both at a depth of .35 to .5 metres; it does not show any other cable duct at any other depth. Mr Harrison states that it is usual practice and reasonable for contractors to rely on Chorus plans to determine the location of cable ducts. Mr Harrison concludes that GMCL acted reasonably and in accordance with good practice.
This application was dismissed by the referee in a decision dated 12 April 2017. The referee noted that Mr Forest’s statement was available to Judge Hastings, Mr Martin’s affidavit replicated statements in his earlier affidavit also provided to the Judge, and no reason had been given why evidence could not have been obtained from Mr Harrison or some other expert for the purposes of the 3 June 2016 hearing. The referee also noted Judge Hastings’ conclusion that the unavailability of the proposed witnesses did not prejudicially affect the outcome of the proceedings.
Application for judicial review in High Court
GMCL then filed judicial review proceedings in the High Court challenging the decisions made by the Disputes Tribunal and the District Court.
GMCL challenged as unreasonable the Disputes Tribunal’s decisions:
(a)refusing to transfer the proceedings to Christchurch;
(b)refusing the second adjournment application; and
(c)declining to grant a rehearing.
GMCL challenged the Disputes Tribunal’s substantive decision on the basis that the referee misdirected himself on matters of fact, particularly in finding that the duct containing the fibre optic cable was marked on the plan. GMCL also claimed the decision was given in breach of the principles of natural justice assured by s 27 of the New Zealand Bill of Rights Act 1990. It sought an order that the decisions dated 10 June 2016 (substantive determination) and 12 April 2017 (declining a rehearing) be quashed.
GMCL also sought an order that the District Court’s decision be quashed on ground that it too was unreasonable.
Collins J dismissed the applications for judicial review in a judgment delivered on 27 October 2017.[10] The Judge identified the key factual issue in the underlying dispute as being whether the Chorus plan disclosed the existence of two or three ducts.[11] The Judge was satisfied there were no procedural irregularities justifying intervention by the Court on judicial review.[12] The Judge gave five reasons for reaching this conclusion. First, the Tribunal granted GMCL’s request for an adjournment on 26 April 2016.[13] Secondly, GMCL had the benefit of legal advice and had ample time (11 weeks from being notified of the claim until the hearing) to obtain witness statements.[14] Thirdly, Mr Martin could not identify at the hearing what the witnesses would say.[15] Fourthly, Judge Hastings considered the witness statements from Messrs Forest and Bergeson and correctly found they did not advance GMCL’s case.[16] Fifthly, Mr Harrison’s evidence could have been obtained with reasonable diligence prior to the Tribunal hearing.[17] In summary, the Judge was satisfied that GMCL was not denied its right to be heard.[18]
[10]High Court judgment, above n 1.
[11]At [7].
[12]At [24].
[13]At [25].
[14]At [26].
[15]At [27].
[16]At [28].
[17]At [29].
[18]At [30].
Collins J was also not satisfied that the factual findings made by the Tribunal and upheld by Judge Hastings were unreasonable.[19] On the contrary, Collins J considered those findings were correct — “The plans appear therefore to refer to three ducts, not two”.[20]
Was there a breach of natural justice?
Submissions
[19]At [31].
[20]At [32].
Mr Tait’s essential submission on appeal to this Court is that the refusal to grant a second adjournment of the proceedings in the Disputes Tribunal meant that GMCL could not call critical witnesses and properly present its case. GMCL was accordingly denied its fundamental right to natural justice. Mr Tait emphasises that the principles of natural justice apply in all tribunals, including the Disputes Tribunal. He contends that the High Court placed too much emphasis on the importance of fast and inexpensive resolution of disputes in the Disputes Tribunal and did not properly apply the audi alteram partem rule — a party should be given the opportunity to respond to a claim made against it.
Mr Tait submits there was procedural unfairness giving rise to substantive unfairness by the Tribunal refusing to transfer the proceedings to Christchurch in the following circumstances:
(a)the claim arose in Christchurch and all witnesses were there;
(b)Mr Martin had been given only a short time to prepare;
(c)Mr Martin could not secure the attendance of witnesses at the hearing;
(d)Mr Martin was disadvantaged by not being able to address the Tribunal directly with reference to the photograph and the plans;
(e)Mr Martin was unfamiliar with court processes whereas Chorus was represented by Mr Mills, an experienced advocate. Mr Tait contends that the Tribunal did not approve Chorus being represented by Mr Mills as required under s 38(3) of the Disputes Tribunal Act 1988.
Legal principles
The principles of natural justice undoubtedly apply to hearings in the Disputes Tribunal; these principles apply in all tribunals.[21] However, what is necessary to facilitate the right to natural justice depends on the particular circumstances.[22] The question is what is required to ensure fairness in the particular case.[23] Context is always important, including the significance of the decision[24] and the purpose of the statute under which the decision-making power is exercised.[25]
[21]New Zealand Bill of Rights Act 1990, s 27.
[22]Daganayasi v Minister of Immigration [1980] 2 NZLR 130 (CA) at 141; Wyeth (NZ) Ltd v Ancare New Zealand Ltd [2010] NZSC 46, [2010] 3 NZLR 569 at [40]; and Dotcom v United States of America [2014] NZSC 24, [2014] 1 NZLR 355 at [120].
[23]Russell v Duke of Norfolk [1949] 1 All ER 109 (CA) at 118.
[24]Ali v Deportation Review Tribunal [1997] NZAR 208 (HC) at 220.
[25]R v Secretary of State for the Home Department, ex parte Doody [1994] 1 AC 531 (HL) at 560.
The purpose of the Disputes Tribunal Act is to provide for the prompt resolution of disputes involving modest sums. The Tribunal is required to determine disputes coming before it according to the substantial merits and justice of the case without being bound to give effect to strict legal rights or obligations, legal forms or technicalities.[26] Orders of the Tribunal are final and binding on the parties in terms of s 23 of the Act, subject to the limited appeal rights conferred under s 50. The only available appeal right in this case is that the proceedings were conducted by the referee in a manner that was unfair to GMCL and prejudicially affected the result of the proceedings.
Transfer
[26]Disputes Tribunal Act, s 18(6).
Proceedings in the Disputes Tribunal are commenced by lodging a claim in the appropriate office of the Tribunal, being the office nearest by the most practicable route to where the applicant resides.[27] However, the Tribunal may transfer the proceedings to another office if it is satisfied that the claim can be more conveniently or fairly heard there.[28]
[27]Section 24(2).
[28]Section 24(3).
There is some force in Mr Tait’s submission, as Collins J recognised, that these proceedings should have been transferred to Christchurch given this is where the cause of action arose and where all witnesses were ordinarily resident. It would also have been more convenient for the claim to be heard in Christchurch so Mr Martin and any witnesses could be present in person and more easily explain their competing contentions concerning the correct interpretation of the plans and the photograph. There was no compelling reason for the proceedings to be heard in Wellington. Transferring them to Christchurch would have caused little, if any, inconvenience to Chorus as it is a large corporate with offices throughout New Zealand, including in Christchurch. Chorus’ only witness was also based in Christchurch.
We can understand Mr Martin’s concern about the Tribunal’s insistence that the proceedings be dealt with in Wellington in these circumstances. The Tribunal needed to be cognisant of the potential unfairness in Chorus being represented by a person who was very familiar to the Tribunal, who was based in Wellington and who was the only person physically present with the referee at the hearing.
Representation
The Tribunal did not directly address the question of Chorus’ representation by Mr Mills despite such approval being required. Section 38 of the Disputes Tribunal Act relevantly provides:
38 Right to appear at hearings
(1) At the hearing of a claim every party shall be entitled to attend and be heard.
(2) Subject to subsection (3), no party shall be entitled to be represented at a hearing by a representative unless it appears to the Tribunal to be proper in all the circumstances to so allow, and the Tribunal approves such representative.
(3) The following parties may be represented by a representative who is approved by the Tribunal:
…
(b) a corporation or an unincorporated body of persons, if the representative is an officer or employee or a member of the corporation or body or holds a majority interest in it:
…
(4) Where a representative of a party is proposed for the Tribunal’s approval, the Tribunal shall satisfy itself that the person proposed has sufficient knowledge of the case and sufficient authority bind the party.
…
(7) The Tribunal shall not—
…
(b) approve as a representative under subsection (2) or subsection (3); or
…
any person who is, or has been, enrolled as a barrister and solicitor, or who, in the opinion of the Tribunal, is, or has been, regularly engaged in advocacy work before other tribunals; …
(8) Where the Tribunal … approves any person under subsection (2) or subsection (3) … of this section, the Tribunal may impose in respect of any such … approval such conditions as it considers necessary to ensure that any other party to the proceedings is not substantially disadvantaged by that appointment or approval.
It is implicit that the Tribunal approved Mr Mills and Mr Martin to appear as the respective representatives of the parties. However, it would have been preferable in the interests of transparency and procedural fairness for this issue to have been addressed and dealt with expressly.
Refusal to adjourn
Nevertheless, for the reasons that follow, we are satisfied that there was no breach of natural justice, particularly given the careful way the referee conducted the hearing.
GMCL was given formal notice of the claim against it on 16 March 2016, 11 weeks before it was heard on 3 June 2016. GMCL was aware of the basis for the claim much earlier. The cable was severed on 16 January 2015 and GMCL knew that Chorus claimed it was liable for the repair cost at least from the time it received the invoice dated 4 July 2015. GMCL’s response to the claim was clarified in correspondence in August 2015 and turned on the straightforward question of whether the cable that was damaged was shown on the plan.
GMCL, through its solicitors, applied on 13 April 2016 for an adjournment of the original hearing date because Mr Martin was going to be overseas. There was no mention of witnesses being unavailable, despite four weeks having elapsed since the hearing date was notified. An adjournment was granted in accordance with GMCL’s request to allow Mr Martin to appear at the hearing following his return on 23 May 2016 and even if the witnesses were not available on the day, Mr Martin had ample time to obtain statements from them.
The referee took particular care to ensure fairness, taking into account the difficulties Mr Martin complained of. The referee ensured that Mr Martin understood the basis of the claim and had an uninterrupted opportunity to explain his response to it. It is clear the referee understood Mr Martin’s position, including his interpretation of the plan and what the photograph depicted. The referee summarised GMCL’s defence and obtained Mr Martin’s confirmation of its accuracy before proceeding further with the hearing and hearing the evidence. After Mr Martin had completed his questioning of Chorus’ witness, the referee asked further questions to explore GMCL’s defence that the cable was not shown on the plan. The referee also tested the reasonableness of the time taken by Chorus to repair the cable and the associated costs. Before concluding the hearing, the referee again asked Mr Martin how the proposed witnesses would have been able to advance GMCL’s case. No doubt this was done because it would have been open to the referee to adjourn the hearing part-heard if he had been persuaded that it was necessary to do so to enable these witnesses to be heard in the interests of justice. However, Mr Martin was not able to explain how the proposed witnesses could help determine the critical issue as to whether the duct was shown on the plan.
Having now seen the evidence that GMCL would have given, we agree with the assessment of Judge Hastings, confirmed by Collins J, that this evidence would not have assisted GMCL in any material way. Messrs Forest and Bergerson say that the plan showed duct cables at a depth of .5 of a metre but there is nothing on the plan indicating any duct cable at any greater depth. Mr Harrison makes the same assertion. The problem with this evidence is that it is not substantially helpful. None of these witnesses claims special expertise in reading plans. We are not persuaded that any such expertise is required to interpret the Chorus plan given there was no dispute about what the relevant symbols on the plan represented. It was for the referee to determine what the plan shows by examining it himself.
We are not persuaded that the referee erred in reaching his conclusion that the relevant cable was marked on the plan. The plan shows, as a single line, the double duct found by GMCL and shown in the photograph. The plan also shows, as another single line, a single duct — the one that was damaged. Although the depth of this duct is not shown, and there is nothing on the plan indicating services at a depth of 2.5 metres, this does not mean it is not present.[29] The WorkSafe Guide for Safety with Underground Services emphasises that cables “should be expected to be found at ANY DEPTH”.
Conclusion
[29]Guide for Safety with Underground Services, above n 4, at [A1.7].
We conclude that GMCL was given a reasonable opportunity to be heard. The witnesses GMCL wished to call could not have provided material assistance on the proper interpretation of the plan. None of them confronts head-on Chorus’ case (which appears to be correct) that the double duct is represented on the plan by one single line and the single duct that was damaged is represented by the other single line.
Result
The appeal is dismissed.
The appellant must pay costs to the third respondent for a standard appeal on a band A basis and usual disbursements.
Solicitors:
Malley & Co Lawyers, Christchurch for Appellant
Chapman Tripp, Wellington for Third Respondent
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