Solicitor-General's Reference (no.1 of 2022)
[2022] NZCA 338
•27 July 2022 at 2:30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA313/2022 [2022] NZCA 338 |
| IN THE MATTER OF | SOLICITOR-GENERAL’S REFERENCE (NO 1 OF 2022) FROM CRI-2021-463-55, HIGH COURT AT ROTORUA |
| Court: | Cooper P and Brown J |
Counsel: | B J Thompson for Referrer |
Judgment: | 27 July 2022 at 2:30 pm |
JUDGMENT OF THE COURT
ALeave is granted to the Solicitor-General to refer the following question of law to this Court:
Was the Court correct to find that the issue of producer statements in relation to non-compliant building work does not give rise to liability under s 40 of the Building Act 2004?
BThe Registrar is to appoint counsel to assist the Court.
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REASONS OF THE COURT
(Given by Cooper P)
The Solicitor-General seeks leave pursuant to s 313 of the Criminal Procedure Act 2011 (the CPA) to refer a question of law to this Court for its determination.
The reference arises from a decision of the High Court which overturned the convictions of an engineer and his company for carrying out building work otherwise than in accordance with a building consent.[1]
[1]Cancian v Tauranga City Council [2022] NZHC 556; and Building Act 2004, ss 40 and 386.
The reference asks:
Was the Court correct to find that the [issue] of producer statements in relation to non-compliant building work does not give rise to liability under s 40 of the Building Act 2004?
We are satisfied the leave criteria in s 313 of the CPA are met.[2] Leave to refer is granted.
[2]Criminal Procedure Act 2011, s 313(3); and Re Solicitor-General’s Reference (No 1 of 2016) [2016] NZCA 76 at [11]–[17].
Pursuant to s 314(4) of the CPA the Registrar is to appoint counsel to assist the Court as contradictor and is to set the matter down for an oral hearing.
The reference should be heard with some urgency. If no suitable fixtures are immediately available, then once counsel to assist is appointed the registry should arrange a telephone conference to set a timetable for the filing of submissions prior to the allocation of a fixture, so the reference can be brought on at short notice.
Solicitors:
Crown Law Office, Wellington for Referrer
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