Solicitor-General's Reference (no.1 of 2022) [2022] NZCA 338 (27 July 2022)

Last Updated: 2 August 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

1. Leave 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?

2. The Registrar is to appoint counsel to assist the Court.

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REASONS OF THE COURT

(Given by Cooper P)

• [1] 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.
• [2] 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]
• [3] 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?

• [4] We are satisfied the leave criteria in s 313 of the CPA are met.^[2] Leave to refer is granted.
• [5] 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.
• [6] 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

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^[1] Cancian v Tauranga City Council [2022] NZHC 556; and Building Act 2004, ss 40 and 386.

^[2] Criminal Procedure Act 2011, s 313(3); and Re Solicitor-General’s Reference (No 1 of 2016) [2016] NZCA 76 at [11]–[17].