GIBBS v FIRST GAS LTD [2022] NZCA 414

GIBBS v FIRST GAS LTD [2022] NZCA 414 [31 August 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA29/2022[2022] NZCA 414BETWEEN RUSSELL VICTOR GIBBS, PARANIJOSEPHINE GIBBS AND LEIGH JOSEPHHORTON AS TRUSTEES OF THE R V &P J GIBBS FAMILY TRUSTAppellantAND FIRST GAS LIMITEDRespondentCourt: Cooper P and Dobson JCounsel: Appellant in personL P Wallace and H A Froude for RespondentJudgment:(On the papers)31 August 2022 at 3.00 pmJUDGMENT OF THE COURTA The application to adduce further evidence is unnecessary in relation toitems 1–4 and 7–8 as listed in appellant's submissions dated 20 June 2022.The application to adduce further evidence is also unnecessary in respectof the Select Committee report on the Petroleum Amendment Bill (No 2)1980 included in item 19. Those items may be provided to the Court aspart of the authorities cited in support of the appeal.B The Maui Pipeline agreement (item 5) may be adduced. The submissionby the Natural Gas Corporation on the Petroleum Amendment Billincluded in item 19 may also be adduced.C The remaining items numbered 6, 9–18 and 20 are not admissible onappeal.C A one-day extension of time for commencement of the appeal is granted.D There is no order as to costs.____________________________________________________________________REASONS(Given by Dobson J)Introduction[1] The appellants (the Gibbs) appeal a decision of the High Court granting therespondent (First Gas) declarations as to its rights over farmland held by theRV & PJ Gibbs Family Trust (the Gibbs Family Trust), and a permanent injunctionrestraining the Gibbs from obstructing First Gas' access to the land.1 The appellantshave applied to adduce further evidence in relation to that appeal. This judgment dealsprimarily with the application to adduce further evidence. An earlier minute of theCourt directed that the application was to be determined on the papers prior to thesubstantive appeal.2[2] First Gas owns and operates the Maui Pipeline that carries natural gas fromTaranaki gas fields to the upper North Island. First Gas commenced proceedings inthe High Court seeking declarations as to the extent of rights created for it by certainPetroleum Easement Certificates (PECs) issued under the Petroleum Act 1937.3Those PECs are registered against the titles of farmland held by the Gibbs on trust.[3] In a reserved judgment issued on 6 December 2021 Grice J made declarationsconfirming the scope of the rights granted to First Gas under the PECs. The Judgealso granted a permanent injunction prohibiting the Gibbs from obstructing First Gas'access to the Gibbs' land for the purposes of inspecting, maintaining, repairing oroperating the Maui Pipeline.41 First Gas Ltd v Gibbs [2021] NZHC 3309.2 Gibbs v First Gas Ltd CA29/2022, 30 May 2022 (Minute of Courtney J).3 The Petroleum Act 1937 has since been repealed by the Health and Safety in Employment Act1992, s 62(1). However, the Crown Minerals Act 1991 contains savings provisions continuing theeffect of the relevant sections in the former Act: see Crown Minerals Act, sch 1 cl 12.4 First Gas Ltd v Gibbs, above n 1, at [278]–[279].[4] The Gibbs are acting for themselves in pursuing the appeal. They havestanding as the trustees of the Gibbs Family Trust that owns the farmland in issue.Application to adduce further evidence[5] The Gibbs have applied to adduce 20 specified items as further evidence ontheir appeal. Those items are listed in the Gibbs' submissions on the application toadduce further evidence dated 20 June 2022. First Gas has opposed that applicationand both parties have filed comprehensive submissions in support of their respectivepositions.[6] To admit further evidence on appeal, the Court needs to be satisfied that theevidence is fresh, credible and cogent.5 Evidence will not be regarded as fresh if itcould, with reasonable diligence, have been produced at trial.6 The documents soughtto be adduced on this application are historical and span the period from 1960 tothe 1980s. Clearly none of them are "fresh" in the sense of being created since theHigh Court hearing. The Gibbs claim that First Gas had a responsibility to discovermany of the items, and they accuse First Gas of being in breach of its obligations fornot doing so. First Gas' rejoinder is to the effect that none of the documents wererelevant to the claims it pursued in the High Court, so that it did not have anyobligation to discover them.[7] In exceptional circumstances, the Court may admit evidence that is not fresh.7Considering this application, cogency in the sense of relevance to the issues raised bythe appeal is the determining factor. All the items are credible in the sense that therecould be no doubt about their authenticity as representing what they appear to be, andtheir provenance is reliable.Assessment[8] Items 1–4 in the Gibbs' list of further documents sought to be adduced areextracts from parliamentary debates taken from Hansard from November and5 Erceg v Balenia Ltd [2008] NZCA 535 at [15].6 At [15], citing Rae v International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR190 (CA) at 192.7 Rae v International Insurance Brokers Ltd, above n 6, at 193.December 1962, September 1967 and November 1974. As acknowledged by theGibbs in their reply submissions, parliamentary materials such as these Hansardextracts are not required to be produced as evidence and may be placed before theCourt as part of the authorities to be cited in supported of their appeal.[9] Item 19, which is a Commerce and Energy Select Committee report on thePetroleum Amendment Bill (No 2) 1980 (74-1), comes within the same category.The Gibbs wish to include as a component of this a submission on the Bill from theNatural Gas Corporation, a predecessor in title to First Gas. The Select Committeereport is to be treated the same as the Hansard extracts, that is it can be included in theGibbs' authorities on appeal. In the circumstances, we also grant leave for thesubmission on the Bill by First Gas' predecessor to be adduced as having possiblerelevance in considering the content of the Select Committee Report.[10] Items 7 and 8 are the 6 August 1975 proclamation signed by theGovernor-General and the Minister of Mines pursuant to s 70A of thePetroleum Act 1937 (the Maui Pipeline Proclamation), and maps and plans which aredescribed by the Gibbs as forming part of the Maui Pipeline Proclamation. These twoare official documents that the Gibbs are permitted to place before the Court withouthaving them adduced as evidence, given the scope of the arguments theyforeshadowed on their appeal.[11] All of the items considered thus far could arguably have some relevance as aidscontributing to an analysis of the interpretation of the PECs most directly in issue.In taking that view, we do not reject the submissions for First Gas which deny anypossible relevance for those documents, on a variety of grounds. The approachsignalled in First Gas' submissions on this application remains open to it in all respectsof its argument on the substantive appeal.[12] The issues on appeal are essentially matters of interpretation of statutoryinstruments brought into existence pursuant to legislative powers. Such documentsare to be contrasted with documents of a contractual nature. In some cases relating tothe formation of contracts, extrinsic evidence such as correspondence and records ofnegotiations leading to a contract may be admissible, where such items may throwlight on the meaning intended by the parties in the terms of their concluded contract.8[13] The remainder of the items sought to be adduced by the Gibbs are eithercontractual, or potentially have relevance to the terms of certain contractualundertakings. Item 5 is the Maui Pipeline Agreement (MPA). It was concludedbetween Maui Development Ltd, which was responsible for construction of thepipeline and is First Gas' original predecessor in title, and Federated Farmers ofNew Zealand Inc.[14] First Gas opposes the admission of the MPA on grounds including that it wasa contract to which First Gas was not a party, and that its provisions have beensuperseded by the PECs registered, relevantly over the Gibbs' land.[15] Although unlikely, we cannot eliminate entirely the prospect that the MPA mayhave some relevance to the arguments sought to be raised on appeal by the Gibbs.It certainly appears that they wish to rely on its provisions as part of the narrativeexplaining the influences they cite as relevant to the intended scope of the PECs.We acknowledge that the MPA is not fresh in that it could, with reasonable diligence,have been adduced as evidence in the High Court. However, given its possiblerelevance as a part of the narrative the Gibbs seek to provide in support of theirarguments on interpretation, we treat their position as an exceptional one that justifiesits admission despite it not being fresh.[16] We have reached this view about admissibility to the MPA having consideredthe recent High Court decision of Associate Judge Johnston on an application for astay of the enforcement of Grice J's judgment, issued on 4 August 2022.9 In reviewingarguments advanced by the trustees in support of a stay, the Associate Judge was notpersuaded that the MPA was likely to be relevant in determining the rights andobligations of the parties.10 We are not to be taken as rejecting the reasons offered by8 See generally Bathurst Resources Ltd v L&M Coal Holdings Ltd [2021] NZSC 85,[2021] 1 NZLR 696 on the admissibility of extrinsic evidence in contract interpretation.9 First Gas Ltd v Gibbs [2022] NZHC 1894.10 At [30].the Associate Judge for his view, and have reached our decision on the cautious basisoutlined in the previous paragraph.[17] Accordingly, we allow the MPA to be adduced as evidence on the appeal.We reserve in all respects the arguments already foreshadowed and any others thatFirst Gas may raise against the relevance of its provisions to the issues on the appeal.[18] The remaining items the Gibbs seek to adduce comprise correspondence initems 6, 9–18 inclusive and 20 of their list. Correspondence such as these items cannothave any relevance to the issues raised by the Gibbs' appeal. We accept First Gas'submission that their admission would unnecessarily prolong the argument of theappeal. Any attempt by the Gibbs to rely on them would distract from the focus onwhat is likely to be relevant in challenging the High Court decision. We accordinglydismiss the application for admission of these items as additional evidence on theappeal.Appeal commenced out of time[19] The formal date of delivery of the High Court judgment under r 11.5 of theHigh Court Rules 2016 was 6 December 2021. Counting 20 working days from thatdate and making allowance for statutory holidays in which the court was not open, thetime limit for filing an appeal against the judgment expired on 24 January 2022.The Gibbs filed their notice on appeal on 25 January 2022. The point that it was oneworking day out of time has not been taken, and we have not sought submissions onthe point. The time delay is minor, readily explicable given the intervention of theholiday period, and there can be no possible prejudice to First Gas. We accordinglygrant leave for the appeal to be filed one day out of time, as it was.[20] First Gas sought costs, in the event that the application to adduce furtherevidence was dismissed. There has been partial success, and in the circumstances noorder as to costs is warranted.Result[21] The application to adduce further evidence is unnecessary in relation to items1–4 and 7–8 as listed in appellant's submissions dated 20 June 2022. The applicationto adduce further evidence is also unnecessary in respect of the Select Committeereport on the Petroleum Amendment Bill (No 2) 1980 included in item 19. Thoseitems may be provided to the Court as part of authorities cited in support of the appeal.[22] The Maui Pipeline agreement (item 5) may be adduced. The submission bythe Natural Gas Corporation on the Petroleum Amendment Bill included in item 19may also be adduced.[23] The remaining items numbered 6, 9–18 and 20 are not admissible on appeal.[24] A one-day extension of time for commencement of the appeal is granted.[25] There is no order as to costs.Solicitors:Govett Quilliam, New Plymouth for Respondent