Legal Updates

Tauranga Tourism Services Ltd v WorkSafe New Zealand [2024] NZHC 2813 per O’Gorman J

WorkSafe charged Tauranga Tourism Services Ltd (TTSL), along with several other parties, with breaching the Health and Safety at Work Act 2015 (HSWA), following the eruption of Whakaari/White Island on 9 December 2019.

At the close of the prosecution case, TTSL successfully applied for a dismissal of the charges against it on the basis that it did not owe a duty under s 36(2) HSWA.

The District Court declined to award costs to TTSL, concluding that WorkSafe had sufficient evidence to support the charge prior to trial. TTSL appealed.

The appeal was allowed. The High Court awarded costs to TTSL of $40,000. It found that the District Court:

1. Failed to consider TTSL’s position in the supply chain separately from the other tour operator.
2. Had not properly determined whether WorkSafe had sufficient evidence to support the conviction of TTSL at the commencement of the proceedings.
3. Erred in finding that TTSL’s insurance position was relevant to the issue of costs.

Beca Carter Hollings & Ferner Ltd v Wellington City Council [2024] NZSC 117

We now have the final say from the Supreme Court on the meaning and scope of the “longstop” limitation period in s 393(2) Building Act 2004 and whether it applies in the situation of a claim for contribution.

On 2 August 2019, BNZ sued the Wellington City Council, seeking around $101 million in damages in relation to alleged negligence in the design of the building’s substructure and superstructure.

On 26 September 2019, the Council issued a claim against Beca Carter Hollings & Ferner Ltd (Beca), which had been engaged by CentrePort to undertake design work and monitor construction of the building, claiming contribution under s 17(1)(c) Law Reform Act 1936.

Beca denied liability and asserted that it had the protection of the longstop provision in s 393(2) Building Act 2004, as the relevant actions by it (issuing producer statements in February 2007 and March 2008) were outside the 10-year period.

The High Court found in favour of the Council. Beca appealed. The Court of Appeal dismissed the appeal, upholding the High Court decision. Beca then sought leave to appeal to the Supreme Court on the question of whether the Court of Appeal was right to conclude that the Building Act longstop provisions do not apply to a contribution claim.

By a split 3/2 decision the Supreme Court held that the claim against Beca was not time barred. It made the following findings:

• If s 393(2) Building Act 2004 was intended to override the special regime for contribution claims, the legislation needed to make that clear, and it did not.
• It was possible to give effect to the statutory purposes of both the Building Act 2004 (to provide certainty and finality in building claims and to prevent individuals from remaining liable for an unlimited period of time) and the Limitation Act 2010 (to remedy injustices otherwise faced by joint tortfeasors).

The minority (Glazebrook and O’Regan JJ) would have allowed the appeal.

Under their analysis of the legislation, if contribution claims were to be excluded from s 393(2), this needed to be stated explicitly. They disagreed that it is possible to give effect to the purpose of both statutory regimes, noting that on the majority’s interpretation, the certainty intended to be provided by s 393(2) is substantially undermined.

Re Solicitor-General’s Reference (No 1 of 2022) [2024] NZCA 514

Building consent authorities may accept producer statements certifying that the work has been carried out in accordance with the building consent and building code. This process reduces the cost and delays that would be incurred if consent authorities carried out their regulatory functions using their own employees.

The issue of criminal liability for issuing producer statements arose in Cancian v Tauranga City Council [2022] NZHC 556. The District Court convicted an engineer and engineering company under s 40 Building Act 2004 for issuing producer statements in connection with The Lakes development near Tauranga. On appeal, the High Court quashed those convictions, holding that the issuing of producer statements in relation to non-compliant building work does not give rise to liability under s 40.

The Solicitor-General, with leave, referred a question of law arising from this judgment to the Court of Appeal under s 313(3) Criminal Procedure Act 2011.

The Court found that the issue of producer statements (following or as a result of construction monitoring) in relation to non-compliant building work does give rise to liability under s 40 Building Act 2004.

In considering the argument that the outcome would criminalise the giving of an opinion, in the context of a strict liability offence, the Court noted:

[69] … However, the producer statement is more than an opinion – it reflects the work the author has carried out to be able to express the opinion, and confirms the author has reasonable grounds for belief in compliance.

[70] Building consents and the building code have prescriptive and verifiable standards as to what they each require. The author of the producer statement will not be criminally liable unless it is established beyond reasonable doubt that the matters certified in the statement are incorrect. In the present case, Judge Mabey was readily able to conclude beyond a reasonable doubt that the producer statements were wrong. If that standard could not be met, no offence would be committed.

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