Swedish Torp Limited v Standing
[2017] NZHC 460
•16 March 2017
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV-2016-404-2799 [2017] NZHC 460
BETWEEN SWEDISH TORP LIMITED
Appellant
AND
ALAN STANDING First Respondent
KEITH STANDING Second Respondent
Hearing: 22 February 2017 Appearances:
E St John and S P Maloney for the Appellant
P Amaranathan for the RespondentsJudgment:
16 March 2017
JUDGMENT OF MUIR J
This judgment was delivered by me on Thursday 16 March 2017 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules
.
Registrar/Deputy Registrar
Date: ………………………
Counsel/Solicitors:
E St John, Barrister, Auckland
S P Maloney, Barrister, Auckland
Stafford Klaassen Solicitors, Greenwoods Corner, Auckland (B Stafford) P Amaranathan, Rice Craig, Papakura
SWEDISH TORP LTD v STANDING [2017] NZHC 460 [16 March 2017]
Introduction
[1] Swedish Torp Limited (STL) appeals from a decision of the District Court striking out its causes of action in negligence against the first and second respondents (Messrs Standing).1
[2] Such decision was based on the stated existence of an issue estoppel by reason of a prior determination of what the District Court held to be “the same issues by a judicial tribunal”.2
[3] The relevant ‘tribunal’ for the purposes of the District Court’s decision was an investigator appointed under s 91 of the Plumbers, Gasfitters and Drainlayers Act 2006 (the Act).
[4] The central issue raised in the appeal is whether the doctrine of issue estoppel can apply to the findings of such an investigator having regard to the relevant statutory framework.
Background
[5] In March 2008, STL engaged the first respondent to undertake drainage works associated with the relocation of a house onto a block basement at its property in Silverton Avenue, Wai O Taiki Bay, Auckland. Because the development was to occur over a public sewer main, replacement of the mains with a vitaclay pipe was required. The second respondent, who is the first respondent’s son, assisted with the works.
[6] After completion of the contract it is alleged that the property flooded on three separate occasions with raw sewage contamination.
[7] The claim is for a modest amount comprising various uninsured costs and insurance excesses. It was originally commenced in the Disputes Tribunal but
transferred to the District Court at the direction of the Tribunal.
1 Swedish Torp Ltd v Standing [2016] NZDC 19484.
[8] Before such proceedings were commenced, however, STL invoked procedures available under the Act to make a complaint to the Plumbers, Gasfitters and Drainlayers Board. It alleged that Messrs Standing had committed a disciplinary offence by carrying out sanitary plumbing or drainlaying work which was, in terms of s 89 of the Act, negligent, incompetent or contrary to relevant legislation. Its complaint was made on 13 September 2013.
[9] On receipt of that complaint the Registrar of the Board appointed Mr F C Jones as an investigator.3 Section 92 of the Act provides that such investigator must determine whether the complaint should be considered by the Board and report his/her findings to the Board.
[10] Mr Jones reported to the Board on 4 February 2014. He recommended that the complaint should not be considered by the Board. In the words of the District Court Judge, Mr Jones:4
… determined that no fault could be attributed to the work of the Standings which complied with the New Zealand Building Regulations, and was inspected and passed.
[11] STL took issue with the determination and asked Mr Jones to reopen his investigation which he did on 24 March 2014. He focused particularly on three issues which the District Court Judge recorded as:5
(i) Mr A Standing’s awareness and involvement with the setting of the levels.
(ii) Mr A Standing’s awareness and involvement with the additional
storm water flooding sewer main.
(iii) Mr A Standing’s knowledge and/or instruction to install a non-return valve prior to the flood.
[12] In his final report dated 6 June 2014, Mr Jones concluded that Messrs
Standing were not at fault in any respect. He determined that the complaint should not be considered by the Board.
3 The Registrar was under a statutory obligation to appoint an investigator unless satisfied that the complaint was frivolous or vexatious. See Plumbers, Gasfitters and Drainlayers Act 2006, ss 90(4) and 91.
4 At [8].
[13] Messrs Standing relied on these findings to allege an issue estoppel in relation to any allegation of negligence, incompetence or breach of statutory duty.
[14] STL responded in terms that the decision of the investigator was not a final decision by a New Zealand judicial tribunal of competent authority such as to invoke the estoppel. It also alleged that the investigator’s determination was not a decision over the subject matter of the litigation.
The District Court decision
[15] The District Court found against STL on both these grounds. The second is not pursued on appeal.
[16] As to the first, the learned District Court Judge considered the decisions in X v Y6 and Thrasyvoulou v Secretary of State for the Environment,7 both of which had been referred to in argument. He then stated that his own researches had identified the recent decision of the English Court of Appeal in Christou v Haringey London Borough Council,8 and cited extensively from the judgment of Elias LJ in that case. He concluded that:
[25] ... The Act has created a specific jurisdiction, which the plaintiff elected to trigger, for the determination of issues which established the existence of legal rights. The inspector had the power to find that Alan Standing was at fault which would have established a legal right for STL to pursue remedies that flows from that. (emphasis added)
[17] He further found that:
[27] Clearly in this case, the investigator was operating independently of the parties and his findings amounted to an adjudication between them.
[18] After then holding that the plaintiff had not identified any issue requiring determination in the District Court proceedings which had not otherwise been dealt
with by the investigator in his two reports, the Judge struck the claims out.
6 X v Y [1996] 2 NZLR 196 (HC).
7 Thrasyvoulou v Secretary of State for the Environment [1990] 2 AC 273 (HL).
8 Christou v Haringey London Borough Council [2013] EWCA Civ 178, [2014] QB 131.
The appellant’s argument
[19] The appellant argues that the District Court Judge erred in law in:
(a) finding the investigator acted as a judicial tribunal or competent authority for the purposes of issue estoppel;
(b)finding the investigator had the power to determine finally and conclusively issues of fact or law for the purposes of the appellant’s civil claim;
(c) relying on cases distinguishable from the present and making errors of reasoning to reach conclusions that do not logically flow from the legislation or cases;
(d)recognising an issue estoppel in a manner contrary to public policy in that it would:
(i) act to discourage complaints under the Act when the Board’s
disciplinary role has public health implications;
(ii) be contrary to notions of justice and fairness to complainants; (iii) constitute an unjustified interference with the Court’s
jurisdiction; and
(iv) constitute the sort of “over-rigorous” application of the
doctrine frequently cautioned against by the Courts; and
(e) striking out the claim when it was not a sufficiently clear and appropriate case for it.
[20] Central to the appellant’s argument is the submission that, irrespective of whether findings by the Board would give rise to an issue estoppel, those of the investigator could never do so as his sole function was to determine whether a
complaint should be considered by the Board and not to consider guilt or innocence in the broad sense.
Discussion
[21] There is no disagreement between the parties in terms of the essential principles underlying a plea of issue estoppel – in this case per rem judicatam. Katz J summarised these with her usual succinctness and clarity in Weaver v HML Nominees Ltd in the following terms:9
(a) Issue estoppel precludes a party from re-litigating an identical issue (whether of fact or of law) that has previously been raised and determined with certainty between the parties.
(b) Issue estoppel is concerned with the prior resolution of issues rather than causes of action.
(c) Issue estoppel can only be founded on findings which are fundamental to the original decision and without which it cannot stand. Other findings cannot support an issue estoppel, however definite the language in which they are expressed.
(d) The purpose of any estoppel is to work justice between the parties.
It is therefore open to the courts to recognise that in special circumstances inflexible application of an estoppel may have the
opposite result. The application of issue estoppel is ultimately a matter at the discretion of the judge in the subsequent proceedings:
“A judicial doctrine developed to serve the ends of justice should not be applied mechanically to work an injustice”.
(emphasis added and footnotes omitted)
[22] I have highlighted the words “determined with certainty” given the extent to
which this requirement features subsequently in my analysis.
[23] Nor is there any disagreement that the relevant decision must be one of a judicial tribunal of competent authority and that such a tribunal need not be a court. As the Supreme Court said in Arbuthnot v Chief Executive of the Department of Work and Income:10
… an issue estoppel can arise only from a matter determined by a judicial
tribunal, that is, a person or body of persons exercising judicial functions by
9 Weaver v HML Nominees Ltd [2015] NZHC 2080 at [98].
10 Arbuthnot v Chief Executive of the Department of Work and Income [2007] NZSC 55, [2008] 1
NZLR 13 at [27]-[28].
statute or otherwise in accordance with the law. They need not have been constituted as a Court.
[24] The central question on this appeal therefore is whether the Judge was correct in holding that the decision of an investigator appointed under the Act was a determination of a judicial tribunal of sufficient finality and certainty for the plaintiff to be estopped from denying the investigator’s findings.
[25] In Weaver v HML Nominees, Katz J made the point that:11
Determining whether a body constitutes a competent court for the purposes of issue estoppel requires a close fact assessment of the nature and role of the body under scrutiny.
Relevant legislative provisions
[26] The stated purposes of the Act are as follows:
3 Purposes of this Act
The purposes of this Act are—
(a) to protect the health and safety of members of the public by ensuring the competency of persons engaged in the provision of sanitary plumbing, gasfitting, and drainlaying services; and
(b) to regulate persons who carry out sanitary plumbing, gasfitting, and drainlaying.
[27] In furtherance of this purpose, the Act creates disciplinary offences:
89 Disciplinary offence
For the purposes of this subpart, a person to whom this subpart applies is guilty of a disciplinary offence if that person is found, in any proceedings under this subpart, or in any appeal under Part 4,—
(a) to have carried out or caused to be carried out sanitary plumbing, gasfitting, or drainlaying work—
(i) in a negligent or incompetent manner; or
(ii) in a manner contrary to any enactment relating to sanitary plumbing, gasfitting, or drainlaying that was in force at the time the work was done; or
11 At [103].
(b) to have intentionally or negligently created a risk of serious harm to any person, or significant property damage, through—
(i) having used or caused to be used faulty or improper appliances, pipes, drains, sanitary fixtures, or fittings; or
(ii) having carried out or caused to be carried out any sanitary plumbing, gasfitting, or drainlaying work; or
…
[28] The Act then sets out mechanisms for dealing with complaints. Section 90 of the Act allows complaints to be made to the Board:
90 Complaints
(1) Any person (including any person in the service of the Crown acting in his or her official capacity) may complain to the Board about the conduct of a person to whom this subpart applies by making the complaint in the prescribed manner to the Registrar.
(2) However, a complaint may not be made under subsection (1) by the
Board, a member of the Board, or the Registrar.
(3) The Registrar must, as soon as practicable after receiving a complaint,—
(a) inform the Board; and
(b) inform the person complained against of the general nature of the complaint.
(4) However, if the Registrar is satisfied that the complaint is frivolous or vexatious,—
(a) subsection (3) does not apply; and
(b) section 91 does not apply; and
(c) the Registrar must inform the complainant that the complaint will not be investigated or proceeded with.
[29] Once a complaint is made, an investigator is appointed under s 91 of the Act:
91 Registrar must appoint investigator
(1) The Registrar must, as soon as practicable after receiving a complaint, appoint an investigator to investigate the complaint unless the Registrar acts under section 90(4).
(2) The person appointed as the investigator must not be a member of the Board or the person who made the complaint.
(3) No person who is employed by a local authority may be appointed to be an investigator without the prior consent of that authority.
[30] The investigator’s role is set out in s 92 of the Act:
92 Investigation of complaint
(1) The investigator may require that a complaint be supported by any statutory declaration that the investigator thinks fit.
(2) The investigator must—
(a) determine whether, in the investigator’s opinion, the
complaint should be considered by the Board; and
(b) report the investigator’s findings to the Board.
(3) The investigator may recommend that the Board make an order under section 102 in respect of the person complained against pending the determination of disciplinary proceedings against that person.
(4) Before the investigator makes a determination that the complaint should be considered by the Board, the investigator or the Registrar—
(a) must send particulars of the complaint to the person complained against; and
(b) must give the person a reasonable opportunity to make written submissions and be heard on the matter, either personally or by that person’s representative.
(5) The Registrar must send a copy of the investigator’s report under subsection (2) to the person complained against and to the complainant.
[31] The investigator has reasonably extensive powers, as set out in s 93 of the
Act:
93 Investigator’s powers
(1) An investigator, for the purpose of investigating a complaint,—
(a) may, at any reasonable time, enter and re-enter any land or premises and—
(i) inspect and test any sanitary plumbing, gasfitting, or drainlaying work on that land or those premises:
(ii) make any inquiries that are reasonably necessary to determine whether or not any sanitary plumbing, gasfitting, or drainlaying work on that land or those
premises has been carried out in a competent and safe manner and in accordance with enactments relating to sanitary plumbing, gasfitting, or drainlaying that were in force at the time the work was done; and
(iii) generally do any other things on that land or those premises that are reasonably necessary to enable the investigation to be carried out; and
(b) may, by written notice served on any person, require that person to—
(i) produce for inspection, within any reasonable period that the investigator may specify, any document or class of document in the possession or under the control of the person:
(ii) provide, within any reasonable period that the investigator may specify, any information or class of information that the investigator may require; and
(c) may take copies of, or extracts from, any of the documents referred to in paragraph (b).
(2) Subsection (1)(a) applies in respect of dwellinghouses subject to section 96.
(3) Every person who is required to supply information or documents to an investigator has the same privileges in relation to the supply of the information or documents as witnesses have in any court.
[32] Section 99 provides that it is an offence to fail to comply with a notice by an investigator under s 93(b) requiring the production of documents or information.
[33] Sections 94 to 98 of the Act contain additional provisions relating to warrants of authority, restrictions on entry, and notice requirements. They are not immediately relevant for present purposes.
[34] Sections 100 to 120 of the Act then deal with the procedure and powers of the
Board. Section 100 requires the Board to hold a hearing:
100 Board must hold hearing if investigator reports that complaint should be considered by Board
(1) If the investigator reports that a complaint should be considered by the Board, the Board must hold a hearing to determine whether it should exercise its disciplinary powers under section 106.
(2) If the investigator reports that a complaint should not be considered by the Board, the Registrar must inform the complainant and the person complained against of that determination.
[35] Section 101 contains the notice requirements if a hearing is to be held (I set out subsection 1 only):
101 Notice of disciplinary proceedings
(1) If the Board is required to hold a hearing in respect of any person, the chairperson must serve on the person concerned a notice—
(a) that contains a statement to the effect that the investigator has reason to believe that a ground exists entitling the Board to exercise its powers under section 106; and
(b) that contains the particulars that are reasonably necessary to clearly inform the person of the substance of the ground believed to exist; and
(c) that specifies a date, being not less than 20 working days after the date of service of the notice, on which the Board intends to hear the matter.
…
[36] The investigator prosecutes the complaint at the hearing before the Board:
114 Investigator to prosecute matter
(1) If the investigator reports that in the investigator’s opinion a complaint should be considered by the Board, the matter must be prosecuted by the investigator at the hearing held by the Board under this subpart (unless the Board orders otherwise).
(2) The investigator may be represented by counsel or otherwise.
[37] The Board is bound by certain procedural requirements in carrying out its functions and duties under the ‘Discipline’ subpart of the Act. For example, s 112 requires the Board to observe the rules of natural justice. Section 113 requires meetings of the Board to be held in public, with limited exceptions. Section 115 provides for the optional appointment of a legal advisor to assist the Board on questions of law and procedure.
[38] The Board has extensive disciplinary powers under s 106, which are triggered if the Board is satisfied that the person complained about has committed a disciplinary offence (as defined in s 89).
[39] An appeal to the District Court is available in the following circumstances:
162 Appeals
(1) A person who is dissatisfied with the whole or any part of any of the following decisions, directions, or orders may appeal to a District Court against the decision, direction, or order:
(a) any decision of the Board to decline to register the person or to decline to issue a licence to the person or to decline to renew the licence of the person:
(b) any decision of the Board to decline to issue a limited certificate under section 14 to the person or to decline to renew the limited certificate of the person:
(c) any decision of the Registrar to decline to issue a provisional licence to the person or to decline to renew the provisional licence:
(d) any decision of the Board or Registrar to suspend or cancel
the person’s registration or licence:
(e) any decision of the Board or Registrar to impose any term or condition in relation to the person’s limited certificate, registration, or licence or to vary any of those terms or conditions:
(f) any decision, direction, or order under any of sections 53 to
56, 66, 79, 83, and 178 or subpart 1 of Part 3 (except section 96).
(2) For the purposes of this Part, any decision of the Electrical Workers Registration Board acting under Part 2 must be treated as a decision of the Board.
(3) Subsection (1) does not confer a right to appeal against a decision under any of sections 28 to 35.
[40] The investigator’s decision to refer a complaint to the Board (or not to do so) is a decision under subpart 1 of Part 3 of the Act, and therefore s 162(1)(f) confers a right of appeal in respect of that decision.
Review of statutory framework
[41] First, I note that complaints are not made to the investigator but to the Board.12 It is only the Board which can ultimately find a disciplinary offence made out.13
[42] The investigator’s role and the singular determination which he or she makes is whether the complaint should be considered by the Board.14 He or she expresses an “opinion” in this regard. Although the investigator must report his or her “findings”, no determination of any specific factual or legal question is required.
[43] Such opinion, if to the effect that the complaint should be considered by the Board, is to be conveyed to the person concerned in terms that “the investigator has reasons to believe a ground exists”,15 including the relevant particulars of the
“grounds believed to exist”.16 The investigator does not him/herself make findings
that the Board is entitled to exercise its powers under s 106.
[44] Clearly, given the statutory structure, if the investigator’s findings purported to include a finding of negligence no issue estoppel could be raised against the tradesperson in that respect. The tradesperson could rightly claim it was merely an expression of opinion to be considered by the Board in light of all the available evidence tendered at a public hearing and conducted in accordance with the principles of natural justice.
[45] To that extent I cannot accept the District Court Judge’s finding that “[the] inspector had the power to find that Alan Standing was at fault which would have established a legal right for STL to pursue remedies that flowed from that.17 Nor in my view was the Judge correct in concluding that the investigator’s findings
“amounted to an adjudication” between the parties,18 or that the investigator “was a
12 Plumbers, Gasfitters and Drainlayers Act 2006, s 90(1).
13 Plumbers, Gasfitters and Drainlayers Act 2006, s 106(1).
14 Plumbers, Gasfitters and Drainlayers Act 2006, s 92(2).
15 Plumbers, Gasfitters and Drainlayers Act 2006, s 101(1)(a).
16 Plumbers, Gasfitters and Drainlayers Act 2006, s 101(1)(b).
17 At [25].
18 At [27].
person with authority to hear and determine a dispute by authority of the statute”.19
The Act does not empower the investigator to hear and determine a dispute; it empowers him or her to consider whether, in his or her opinion, the complaint should be considered by the Board.20
[46] If a determination that a complaint should be considered by the Board could not give rise to an issue estoppel for want of the necessary level of certainty and finality, should the position be any different if the determination is that it should not be considered? I accept in this context that the statutory scheme does not appear to contemplate the Board continuing with a disciplinary inquiry in the face of an investigator’s determination that the complaint not be considered. The Board would not, for example, be able to satisfy the s 101 requirement that it serve a notice setting out the investigator’s belief and grounds for suggesting that the Board was entitled to exercise its powers. Nor would the contemplated mechanism for prosecution of the complaint before the Board by the investigator apply because that is premised on the investigation “report[ing] that in the investigator’s opinion a complaint should be
considered by the Board”.21 So I accept that if the investigator’s opinion is that the
complaint should not be considered, it has some element of finality not present in the converse case.
[47] However, it would in my view be inappropriate to recognise an asymmetric issue estoppel which applied in one context but not in the other. In both cases all the investigator is doing is expressing his/her “opinion” about whether the complaint should be further considered. In that sense the determination lacks the element of certainty in respect of an issue of fact or law which application of the doctrine
requires.
19 At [22].
20 The position in this respect is analogous to that under the Medical Practitioners Act 1995 (since repealed), which was considered by the Court of Appeal in Complaints Assessment Committee v R CA 282/01, 20 June 2002. Although the Court in that case considered a different issue it commented on the role of the Complaints Assessment Committee at [20]: “the Committee’s
function in relation to disciplinary action is not to determine guilt. It determines whether the
complaint should be considered by the Tribunal … frames any appropriate charge … and prosecutes any such charge”. Under the Medical Practitioners Act, the Complaints Assessment Committee was similarly required to determine whether the Medical Practitioners’ Disciplinary Tribunal should consider the complaint.
21 Plumbers, Gasfitters and Drainlayers Act 2006, s 114.
[48] I accept also the submission of the appellant that a person making a complaint could not reasonably expect that the decision of an investigator, performing what was essentially a “gate keeping” role in relation to a disciplinary process (itself unable to deliver any compensatory remedy), would be determinative of such person’s civil claims. In my view this would involve exactly the sort of “over-rigorous” application of the doctrine that the Supreme Court cautioned against
in Arbuthnot.22 As Katz J observed in Weaver, the ultimate purpose of an estoppel is
to work justice between the parties, 23 and factual findings made for a fairly narrow and limited purpose:24
… should not automatically preclude a deeper and more extensive analysis being subsequently undertaken by a court faced with determining difficult legal issues, albeit arising out of some of the same broad factual context.
[49] In my view therefore no determination of the investigator should be considered to have sufficient finality or certainty to found an issue estoppel. An expression of opinion as to whether a complaint should or should not be considered by the Board is that and no more. It would in my view work an injustice to say that the associated “findings” precluded re-examination in a civil context and an even greater injustice to say that an expressed opinion that the Board should not consider the complaint further should be determinative of negligence in such a context.
[50] Nor would I have been prepared to find that the investigator constituted a “competent court” for the purposes of an issue estoppel. In that respect I consider that a comparison of the powers and procedures of the Board and those of the investigator is useful.
[51] The following table compares the powers and procedures of the Board and the investigator:
22 Arbuthnot v Chief Executive of the Department of Work and Income, above n 12 at [29].
23 At [98].
24 At [127].
The Board The investigator
The Board must observe the rules of natural justice.25
No equivalent provision.
The Board must hold a hearing.26
No equivalent provision.
Persons to whom the hearing relates are entitled to appear and be heard, either personally or by their representative.27
The investigator must send particulars of the complaint to the person complained against, and give that person a reasonable opportunity to make written submissions and be heard on the matter, either personally or by their representative.28
The Board may receive as evidence any statement, document, information, or matter that in its opinion may assist it to deal effectively with the subject of the inquiry, whether or not it would be admissible in a Court of law.29
No equivalent provision.
The Board may summon witnesses and take evidence on oath, as well as administer an oath.30
The investigator may by notice require the production of documents and information.31
The Board may appoint a legal advisor to advise the Board on questions of law or procedure.32
No equivalent provision.
If the Board is satisfied that the person complained about is guilty of a disciplinary offence, the Board has wide-ranging disciplinary powers (including cancellation of registration or ordering the payment of fines).33
The investigator must determine whether, in the investigator’s opinion, the complaint should be considered by the Board and report his or her findings to the Board.34 If the investigator refers the complaint to the Board, the investigator prosecutes the matter at the hearing held by the Board (unless the Board orders otherwise).35
25 Plumbers, Gasfitters and Drainlayers Act 2006, s 112(1).
26 Plumbers, Gasfitters and Drainlayers Act 2006, s 100(1).
27 Plumbers, Gasfitters and Drainlayers Act 2006, s 112(2).
28 Plumbers, Gasfitters and Drainlayers Act 2006, s 92(4).
29 Commissions of Inquiry Act 1908, s 4B(1). Plumbers, Gasfitters and Drainlayers Act 2006, s 118.
30 Commissions of Inquiry Act 1908, ss 4B(2) and 4D. It is an offence not to comply with a summons: Commissions of Inquiry Act 1908, s 9(1).
31 Plumbers, Gasfitters and Drainlayers Act 2006, s 93(1)(b). It is an offence not to comply with
such a notice: Plumbers, Gasfitters and Drainlayers Act 2006, s 99.
32 Plumbers, Gasfitters and Drainlayers Act 2006, s 115.
33 Plumbers, Gasfitters and Drainlayers Act 2006, s 106.
34 Plumbers, Gasfitters and Drainlayers Act 2006, s 92(2).
35 Plumbers, Gasfitters and Drainlayers Act 2006, s 114.
[52] It is clear from the above table that the investigator’s powers and the procedural rules imposed on him or her are not equal to those of the Board. Although the investigator does have power to enter premises or to require production of documents and information,36 his or her powers are specifically restricted when compared with those of the Board, which has all the powers conferred by ss 4 and
4G to 9 of the Commissions of Inquiry Act (being generally those of the District Court and including in particular the power to summon witnesses and administer oaths).37
[53] Further, although the investigator must provide particulars of the complaint to the person complained about and give them an opportunity to “make written submissions and be heard on the matter, either personally or by that person’s representative”,38 the Board is required to conduct a hearing in person and in all matters observe the “rules of natural justice”.39 Importantly, by involving that
concept in s 112, the Act emphasises the proximity of the Board’s processes to those observed by a court of law. There is no equivalent requirement in respect of the investigator.
[54] Nor does the investigator have the power to appoint a legal advisor. That is consistent with the fact that although his or her opinion about negligence, competence or adherence to statutory obligations will undoubtedly inform the Board’s determination about whether the complaint should be further considered, no determination about the existence or otherwise of negligence is in fact being made. By contrast, the Board is empowered to access such advice.40 Negligence is a legal concept. If a finding that it either exists or does not exist is to be considered binding for the purposes of an issue estoppel, in my view both complainant and tradesperson
could expect that finding to be informed by legal advice.
36 Plumbers, Gasfitters and Drainlayers Act 2006, s 93.
37 Plumbers, Gasfitters and Drainlayers Act 2006, s 118.
38 Plumbers, Gasfitters and Drainlayers Act 2006, s 92(4).
39 Plumbers, Gasfitters and Drainlayers Act 2006, s 112.
40 Plumbers, Gasfitters and Drainlayers Act 2006, s 115(1).
[55] In aggregate these differences in powers and procedures underscore the subordinance of the inquiry undertaken by the investigator in the disciplinary hierarchy set up by the Act. The processes of the Board are far more closely aligned with those of a court and in my view significantly more likely to invoke the doctrine of issue estoppel. In that respect the findings of the investigator mirror the situation in Weaver where Katz J declined to apply an issue estoppel (beyond one limited aspect) on the grounds that the processes involved were “at least partly inquisitorial in nature” and certain “procedural processes or safeguards present in more complex
litigation [were] absent”.41
[56] The respondents place considerable weight, however, on the fact that there is a right of appeal to the District Court from a determination of the investigator. They say that this is a strong indicator that the investigator should be considered a judicial tribunal for the purposes of an estoppel. I do not, in the particular circumstances of
this case, accept that submission. As the Supreme Court said in Arbuthnot:42
An over-rigorous application of the issue estoppel doctrine to circumstances where there was no right of appeal or where … it was not reasonable to expect any such right to be exercised in practice, would indeed produce unfairness disproportionate to the object of achieving finality in litigation.
[57] There are a number of conceptual problems relating to an appeal from an investigator’s determination that the Board not consider a complaint. Were such appeal successful then it is difficult to see how the Board could comply with the s 101 notice obligations. Nor could the investigator satisfy the statutory criteria for prosecution of the complaint before the Board in s 114.
[58] However, the more significant point relates to the reasonableness of an expectation that an appeal would be pursued in practice. All that such an appeal could theoretically result in is a determination that there were reasons to believe that grounds existed for the Board to exercise its disciplinary powers. Again there would be no finding, as such, of a disciplinary offence. That remains a matter for the Board ultimately to decide. So an appeal could at best deliver the complainant one further
step along the path to a disciplinary finding. It would have to be a very determined
41 At [123]
42 At [29].
complainant to take such a step, particularly given the fact that, although the Board has comprehensive powers of censure and discipline, it has no power to order compensation to a complainant. By making a complaint all that a person can hope to achieve is support for the public health and safety purposes articulated in s 3 of the Act.
[59] In support of the District Court’s decision the respondents cited a number of cases including: X v Y, Dental Council of New Zealand v Gibson,43 Clark v In Focus Asset Management and Tax Solutions Ltd,44 and Coke-Wallis v Institute of Chartered Accountants in England and Wales.45 However, I do not ultimately find any of them of particular assistance as none relate to the decision of an initial complaints
assessment committee or officer and, as such, do not engage the issues of finality and certainly which exercise me in this case. In X v Y Williams J expressed the “tentative view” that a decision of the Medical Practitioners’ Disciplinary Committee should be held to be a decision or judgment of a judicial tribunal for the purposes of issue estoppel. 46 I am not required in this case to express an opinion about application of the principle to a decision of the Board, but I would express the same provisional view as Williams J.47 That, however, is irrelevant to the status of the preliminary inquiry conducted by the investigator.
[60] Likewise in Dental Council of New Zealand v Gibson it was a decision of the Dentists’ Disciplinary Tribunal, before which a formal hearing had been conducted, at which witnesses were called, counsel was present and submissions made, which was in issue. And in Coke-Wallis v Institute of Chartered Accountants in England
and Wales, the Supreme Court of the United Kingdom similarly recognised that a
43 Dental Council of New Zealand v Gibson HC Auckland CIV-2010-404-230, 3 June 2010.
44 Clark v In Focus Asset Management and Tax Solutions Ltd [2014] EWCA Civ 118, [2014] 3 All
ER 313.
45 Coke-Wallis v Institute of Chartered Accountants in England and Wales [2011] UKSC 1, [2011]
2 AC 146.
46 At 207.
47 I accept the submission of the respondents that if an issue estoppel could arise out of a decision of the Board but does not apply to a decision of the investigator that a complaint not be
considered by the Board then there is a potential anomaly to the extent that a tradesperson who is
so demonstrably non negligent that a complaint goes no further would be in a worse position in terms of asserting issue estoppel than one whose actions were referred to the Board but who was ultimately exonerated. In my view that anomaly is not such as to outweigh the injustices I identify in [48] and [49] if an issue estoppel based on the investigator’s opinion about whether a complaint should be further considered was recognised.
cause of action estoppel could apply to proceedings of a disciplinary tribunal set up under the by-laws of the Institute of Chartered Accountants to which the appellant belonged. But again such Tribunal conducted a hearing on the merits, was advised by a legal assessor and made a final decision (in that case to dismiss the complaint). In none of these cases were the relevant Tribunals acting in a complaints assessment capacity. To the contrary, they were empowered to finally determine the relevant complaint or dispute.
[61] Nor do I consider the case relied upon by the learned District Court Judge – Christou v Haringey London Borough Council as determinative. That case was cited by the Judge as support for the proposition that the “tentative” remarks expressed by Williams J in X v Y could now be considered to have been put “beyond doubt”,48 on the basis that any Tribunal invested with power to “determine a dispute by …. statute” could now be considered a judicial tribunal for the purpose of issue estoppel. 49 That may be the case, but the operative words for present purposes are “determine a dispute”. The “opinion” of a complaints assessor or in this case investigator that there are or are not “grounds” for another body to exercise disciplinary powers does not, in my view, fall into the category of “determining” a dispute.
[62] I make one final observation. If I am incorrect in my conclusions and an issue estoppel could potentially have applied to the investigator’s findings, it would nevertheless in my view have been incorrect for the District Court to strike out the plaintiff’s claims. At most the issue estoppel could have applied to the investigator’s specific factual findings, as for example that Messrs Standing were not responsible for setting the levels for the relevant drain. It must still have been open to the plaintiff to argue, for example, that there was an obligation to check the information or directions provided by others. I express no view about whether, on that assumption, a cause of action in negligence might be made out. That is a trial issue to be considered in the context of all the relevant evidence. I simply emphasise the point that in those cases where an issue estoppel does apply it is important, as Katz J
did in Weaver, to focus very specifically on what issue of fact or law forms the
48 Swedish Torp Ltd v Standing, above n 1, at [20].
49 Christou v Haringey London Borough Council above n 8, at [41].
proper subject of the estoppel. Only in the event of a final and certain finding by a judicial tribunal that no negligence had been established would it, in my view, have been appropriate to strike out a subsequent cause of action premised on that tort.
Result
[63] I allow the appeal with the result that the plaintiff’s causes of action against
the first and second defendants are reinstated.
[64] I remit the matter to the District Court for case management and trial directions.
Costs
[65] I award costs on the part of the appellant to be calculated on a 2B basis.
[66] In the absence of agreement between counsel as to quantum of costs, memoranda may be filed. They are to be exchanged in advance to limit areas of
difference.
Muir J
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