RYAN PROPERTY INVESTMENTS LIMITED V WELLINGTON ELECTRICITY LINES LIMITED HC WN CIV 2011-485-2011

RYAN PROPERTY INVESTMENTS LIMITED V WELLINGTON ELECTRICITY LINES LIMITED HC WN CIV 2011-485-2011 [4 April 2012]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYCIV 2011-485-2011[2012] NZHC 670BETWEEN RYAN PROPERTY INVESTMENTSLIMITEDPlaintiffAND WELLINGTON ELECTRICITY LINESLIMITEDDefendantCounsel: J C La Hatte with G Warren for PlaintiffR Gordon with O Meech for DefendantSupplementaryJudgment: 4 April 2012SUPPLEMENTARY JUDGMENT OF WILLIAMS JFURTHER CONSIDERATION FOLLOWING RECALL[1] When the oral hearing in this matter concluded in the afternoon of 12 December 2011, Mr La Hatte indicated that although he had made some oral submissions in reply, he wished to make further written submissions on the difficult question of historical authorisation. I readily granted leave to both parties to address this question in writing. I did not impose any particular time line, expecting, as I indicated in Court, that both parties would have submissions filed before Christmas and that this provided a sufficiently robust parameter.[2] Mr Gordon filed his submissions on 16 December but no reply was received from Mr La Hatte before Christmas.[3] I issued a judgment in this matter on 10 February 2012. On 13 February I received a memorandum from Mr La Hatte seeking leave to file his submission the following day. Mr La Hatte indicated that his client had been very ill over theChristmas period and for that and other reasons it was not possible to obtain instructions to file until the date of the memorandum.[4] In a minute of 14 February I granted leave and recalled the judgment pending consideration of these submissions.[5] It transpired, that Mr La Hatte's "closing submissions" as he called them were not strictly in reply at all. Rather, as Mr Gordon complained in his own memorandum of 15 February, they amounted to "a substantive rework and recasting of [the plaintiff's] case". The submissions comprised 180 paragraphs reflecting the fact that Mr La Hatte had benefitted from the double advantage of two months drafting time and possession of my judgment for four days before filing them.[6] Armed as I now am with knowledge of what was involved in Mr La Hatte's "closing submission", I consider that it might have been wiser for me to view thesubmission and hear from counsel before recalling the judgment, but what is done is done and I have taken the opportunity to consider Mr La Hatte's submission indetail.[7] On my view of matters, it is unnecessary for me to rule on the appropriateness of the course of action adopted by Mr La Hatte, even though Mr Gordon argued strenuously that this was the only appropriate course for me. I am of this view because Mr La Hatte's submissions have not convinced me that theresult in this case should be different from that contained in my judgment of 10 February 2012.[8] Mr La Hatte's primary attack is on the terms of the 1956 authorising Order- in-Council. He says the order, in its terms, authorises electrical lines only. It does not authorise stand-alone installations such as the kiosk which, he argues, is technically a substation within the meaning of the applicable definition in the Electricity Supply Regulations 1935. In this, Mr La Hatte recasts his argument somewhat. He no longer argues that the 1956 authority was too general to be valid as submitted in Court. Instead he argues that the authority was too specific to validly incorporate the kiosk.[9] His point is, I accept, at least arguable, although there are also reasons to adopt a more flexible and facilitative approach to interpreting the order. For example the order does not just authorise lines. It also authorises "works" in cl 2.Works are more broadly and inclusively defined than electricity lines. Works aresaid to include "the whole or any part of the undertaking". A further consideration is that in construing the order, it may well be appropriate to take account of the inconvenient consequences, not just in this case, but perhaps in many others, if a more restrictive approach were chosen.[10] In the end, however, the ambit of the 1956 order is not decisive because, as I set out at [23]–[29] of the judgment, s 4(1) of the Electric Power Boards Amendment Act 1961 retrospectively validated any defect in the authorisation for the kiosk. I do not see any merit in the alternative interpretation of s 4(1) set out at [99] of the submissions.[11] I am satisfied that all other matters raised by the plaintiff are adequately dealt with in the judgment. The result will remain as set out in [41] and [42] of the judgment and I decline to make any amendment to it. WEL will also be entitled to costs in respect of this recall.____________________Williams J