Solicitor-General's Reference (no.1 of 2022)

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: (On the papers)	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

CaseChat Overview and Summary

In the matter of the Solicitor-General's Reference (no. 1 of 2022), the Court of Appeal of New Zealand, presided over by Cooper P and Brown J, was presented with a significant question concerning the interpretation of the Building Act 2004. The Solicitor-General sought leave to refer a matter arising from the High Court decision in Cancian v Tauranga City Council, which overturned the convictions of an engineer and his company for carrying out building work without proper consent. The critical issue before the Court of Appeal was whether the High Court was correct in finding that the issuance of producer statements relating to non-compliant building work does not constitute liability under section 40 of the Building Act 2004.

The legal issue that the Court of Appeal had to decide was whether the act of issuing producer statements, even if the building work was not compliant, could be deemed a violation of section 40 of the Building Act 2004. This section pertains to the requirement for building work to be carried out in accordance with a building consent. The Court had to examine whether the act of providing producer statements, which are official documents attesting to the compliance of building work, could independently lead to liability under the Act when the underlying work was non-compliant.

The Court of Appeal granted leave for the Solicitor-General to refer the question to the Court, following the criteria outlined in section 313 of the Criminal Procedure Act 2011. It was determined that the matter required urgent attention, and the Registrar was instructed to appoint counsel to assist the Court. The Court emphasized the need to expedite the proceedings, either through an oral hearing or a telephone conference if no immediate fixtures were available, to ensure that the matter was addressed promptly. The Registrar was tasked with setting a timetable for the filing of submissions, facilitating a swift resolution of the reference.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established