Kapiti High Voltage Coalition Incorporated v Kapiti Coast District Council HC Wellington CIV-2008-485-2723 [2011] NZHC 1513 (20 October 2011)

Last Updated: 16 November 2011

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

_{CIV-2008-485-2723}

BETWEEN KAPITI HIGH VOLTAGE COALITION INCORPORATED

First Plaintiff

AND MICHAEL PHILIP ALEXANDER, BRANDON ROBERT HINDRY AND JUERGEN GERHARD JENKNER Second Plaintiffs

AND KAPITI COAST DISTRICT COUNCIL First Defendant

AND TRANSPOWER NEW ZEALAND LIMITED

Second Defendant

Hearing: 20 September 2011 (Heard at Wellington)

Counsel: G.D.S. Taylor - Counsel for Plaintiff

No appearance for First Defendant

J.A. Knight - Counsel for Second Defendant

Judgment: 20 October 2011 at 4:00 PM

_{JUDGMENT OF ASSOCIATE JUDGE D.I. GENDALL}

This judgment of Associate Judge Gendall was delivered on 20 October 2011 at 4.00 pm under r 11.5 of the High Court Rules.

Solicitors: Waikanae Law, Solicitors, PO Box 8, Waikanae

Chapman Tripp, Solicitors, PO Box 993, Wellington 6140

KAPITI HIGH VOLTAGE COALITION INCORPORATED & ORS V KAPITI COAST DISTRICT COUNCIL

& ANOR HC WN CIV-2008-485-2723 20 October 2011

Introduction

[1] This proceeding concerns an application by the plaintiffs first, for judicial review of various decisions of the first defendant council (the Council) in allowing and approving work undertaken by the second defendant, Transpower New Zealand (Transpower), as owner and operator of this country‘s national electricity grid. Second, in this proceeding the second plaintiffs as affected landowners bring a claim in trespass against Transpower as well as an action for loss of existing user rights.

[2] The work concerned was the maintenance/upgrade of certain parts of the electricity transmission lines running between Mangahao Power Station and Paekakariki in the Waikanae and Paraparaumu areas between 2000 and 2002.

[3] In the present application, the plaintiffs apply for further discovery of documents by Transpower within, in effect, two classes:1

(a) All documents that the second defendant has in its control relating to seven applications made by it to the defendant council; and

(b) Documents indicating the extent of the poles‘ cracking (specified as documents relating to the placement of poles on the lines due to the poles cracking and the six-monthly line componentry field assessment records for the lines).

Background

[4] The first plaintiff is an incorporated society whose objects are protecting the community against allegedly unauthorised actions of Transpower. The second plaintiffs, Messrs Alexander, Hindry and Jenkner, are the owners and occupiers of three separate parcels of land which they say have been affected by the actions of the

_{first defendant council and Transpower.}

1 The plaintiffs‘ application for these interlocutory orders also sought discovery in respect of a further category, relating to valuations of the second plaintiffs‘ land. Agreement has been reached in respect of that class.

[5] The lines running from the Mangahao Power Station and Paekakariki are high voltage lines. As I understand it, they are made up of two sets of lines, A and B, running side-by-side.

[6] On 20 March 1998, the Council issued a certificate of compliance to allow Transpower to replace conductors (the electricity lines themselves) in the Waikanae area. The effect was to increase the diameter of the conductors from 11.68mm to

15.89 mm. That certificate expired on 20 March 2000. On 31 May 2000 the

Council extended the certificate. The work was completed sometime before 20

March 2002. In order to carry out those works, Transpower entered upon Mr

Jenkner‘s land.

[7] On 15 October 2002, Transpower applied for a certificate of compliance in respect of maintenance to the lines in the Paraparaumu area, running between the Paraparaumu substation and Paekakariki. The maintenance proposed was to replace poles, replace the existing conductors, to raise some poles, replacing insulators on the poles and to modify the cross-arms on specified transmission towers. That certificate was granted on 9 December 2002 (RM020283). The work that resulted from that certificate, the plaintiffs contend, means that the transmission capacity in the lines was increased by over three times compared with the original capacity of the lines.

[8] Due to that certificate (RM020283), certificates of compliance, consent or variations to existing certificates were also issued in seven further applications by Transpower. Of those applications which were granted, bar one, it seems they were all granted on a non-notified basis and so the plaintiffs only became aware of them in late 2010. Details of those applications (which I refer to as ―the subsequent applications‖) are relevant for the present application before the Court as it is the documents in respect of those applications that the plaintiffs seek here. Those subsequent applications were:

1. RM070150 (resource consent granted to provide for temporary structures and nets crossing State Highway 1);

ii. RM070259 (certificate of compliance granted to alter the position of a conductor to rectify a clearance violation between two poles crossing the property of Mr Hindry);

iii. RM070274 (certificate of compliance granted to allow the thermal upgrade of the lines south of the Paraparaumu substation);

iv. Variation to RM020283 (variation granted to RM020283 to move poles and raise conductors to avoid damaging an urupa);

v. RM080024 (certificate of compliance issued for Transpower to alter the design of its Paraparaumu substation);

vi. RM080267 (certificate of compliance declined to shorten the cross-arms on poles south of the Paraparaumu substation); and

vii. RM090185 (resource consent granted to realign the lines west of State Highway 1 and immediately south of McKay‘s Crossing which was applied for by Mr Riepen, the former chair of the plaintiff society).

[9] The effect of those seven applications following RM020283 means, as far as the plaintiffs‘ case is concerned, that they were contingent on the validity of RM020283.

[10] On 15 June 2005, the Council granted a further certificate of compliance in respect of lines north of the Paraparaumu substation (RM050129). That application provided for wooden poles to be replaced with concrete ones. In doing so it noted that heavier conductors may be required and longer insulators would be required, but no pole or tower heightening was required.

Principles on a Discovery Application

[11] It is well established that an applicant must establish three jurisdictional requirements for a particular discovery order under r 8.24, which are:2

2 Andrew Beck and others McGechan on Procedure (online looseleaf ed, Brookers) at [HR8.24.03].

(a) Grounds for belief that the party is in or has been in possession of

(b) A document or class of document that

(c) Relates to any matter in question in the proceeding.

[12] On the first two requirements, an applicant is required to demonstrate grounds for a belief that a particular document exists and that it may be, or may have been, in the control of the person from whom discovery is sought. The Judge is required to be satisfied that grounds exist for such a belief, which can be induced by direct or indirect evidence, the nature and circumstances of the case and any document filed in the proceeding. The documents required should be described with

some specificity.3

[13] Rule 8.18 of the High Court Rules provides that an affidavit of documents must list documents that are or have been in that party‘s control and that relate to a matter in question in the proceeding. The general rule remains that an affidavit verifying a list of documents is conclusive, but r 8.24 allows the Court to go behind the affidavit providing there is clear evidence that the list is not conclusive.4

[14] There should be at least a prima facie indication that the documents concerned are, or have been, in the party‘s control.5 But there is no requirement that the applicant must prove, on the balance of probabilities, that there are further

_{documents that have not been discovered.}6

3 AMP Society v Architectural Windows Ltd [1986] 2 NZLR 191 (HC) at 199.

4 Equiticorp Industries Group Ltd v Hawkins [1994] 2 NZLR 738 (HC) at 740.

5 Beecham Group Ltd v Bristol- Myers Co [1979] VicRp 27; [1979] VR 273 at 279; Astra-National Productions Ltd v

Neo-Art Productions Ltd [1928] WN 218.

6 Southbourne Investments Ltd v Greenmount Manufacturing Ltd HC Auckland CIV-2005-404-6675,

12 June 2008 at [42].

[15] On the third requirement (the document must relate to any matter in question in the proceeding), the legal test remains7 that set out in Compagnie Financière et Commerciale du Pacifique v Peruvian Guano Co:8

It seems to me that every document relates to matters in question in the action which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may — not which must — either directly or indirectly enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary. I have put in the words ‗either directly or indirectly‘ because, as it seems to me, a document can properly be said to contain information which may enable the party requiring the affidavit either to advance his own case or to damage the case of his adversary if it is a document which may fairly lead him to a train of inquiry which may have either of those two consequences.

[16] The concept of relevance is an expansive one,9 and is potentially broader than the definition in s 7 of the Evidence Act 2006.10 The matters which are in question have to be identified by reference to the pleadings.11

[17] Once the jurisdictional requirements are made out, it is for the Court to consider whether its discretion should be exercised. The Court will scrutinise carefully the reasons advanced by parties affirmatively resisting production of documents where the jurisdictional requirements are otherwise made out.12

[18] While an applicant need not necessarily show that an order for discovery is necessary at the time, and therefore a conservative approach to discovery is no

7 See M v L [1999] 1 NZLR 747 (CA).

8 (1882) 11 QBD 55 (CA) at 63.

9 M v L [1999] 1 NZLR 747 (CA) at 750.

10 ANZ National Bank Ltd v Commissioner of Inland Revenue [2009] NZCA 150, [2009] 3 NZLR 123 (CA) at [5] and [24]

11 New Zealand Rail v Port Marlborough New Zealand Ltd [1993] 2 NZLR 641 (CA) at 644.

12 See Clear Communications Ltd v Telecom Corporation New Zealand Ltd HC Auckland CL 51/96,

22 July 1998 at 3.

longer stipulated,13 it will be rare that the Court‘s discretion will be exercised and an

order made for particular discovery if such an order is not necessary.14

[19] It is also important to be alive to the consideration that applications should not be used as ―fishing expeditions‖. As to that point, Chilwell J said in AMP Society v Architectural Windows Ltd:15

It is clear that the Court will not order discovery or allow interrogatories where the applicant is doing no more than "fishing". The meaning of the term ―fishing‖ in this context has been discussed in a number of cases. Barker J collected several of them in Securitibank Ltd v Rutherford (Auckland, A 355/81, 14 August 1984 (Securitibank judgment No 31)). In my view, the description of "fishing" in the authorities cited by Barker J and in other authorities cited by counsel come to this: an applicant is fishing when he seeks to obtain information or documents by interrogatories or discovery in order to discover a cause of action different from that pleaded or in order to discover circumstances which may or may not support a baseless or speculative cause of action.

[20] An application for discovery may also be opposed where requiring discovery would be oppressive.16 A balance must be struck between the potential cost, time and difficulty involved in the additional discovery against the potential value that the discovery will add to the proceedings.17

Counsels’ Submissions and my Decision

[21] In the present case, discovery has already been conducted between the parties. Transpower discovered documents relevant to the proceedings which were afoot at that time. The plaintiffs have since, however, filed a fifth amended statement of claim. That statement of claim puts in issue the matters referred to

_{above at [8].}

13 The Oaks Law Centre Solicitors Nominee Company Limited v Quotable Value Limited HC Wellington CIV-2008-485-1691, 16 June 2009 at [23].

14 ANZ National Bank Limited v Tower Insurance Limited [2009] NZHC 1155; (2009) 15 ANZ Insurance Cases 61-816 at

[22]; Cynotech Securities Limited v People Limited HC Auckland CIV-2008-404-1669, 12 February

2009 at [16].

15 [1986] 2 NZLR 191 (HC) at 196.

16 Mao-Che v Armstrong Murray (1992) 6 PRNZ 371 (HC).

17 Houston v Attorney-General HC Wellington CIV-2008-485-2689, 17 December 2009 at [23];

Worldwide NZ LLC v QPAM Ltd HC Auckland CIV-2006-404-1827, 15 May 2009 at [78]-[80].

(a) Documents relating to the seven RMA applications (the subsequent applications), with some limitations on account of documents already held by the plaintiffs.

(b) Documents relating to instructions to value properties of members of the first plaintiff.

(c) Documents relating to poles replaced because of cracking. (d) Transpower‘s latest 6-monthly survey of the lines.

((c) and (d) it seems are really two aspects of the same question: what is the extent of pole cracking?)

[23] Transpower now declines to discover those documents sought by the plaintiffs due principally to the proximity in time to the trial, the sheer volume of documents sought, and (with regard to some) their alleged lack of relevance.

[24] It appears to me, on the affidavits which have been filed, to be clear that Transpower has documents in its possession which fall within the categories asserted by the plaintiffs which have not, as yet, been discovered. The real issues in the present case relate to whether the material is relevant and if so whether making the orders sought by the plaintiffs would be oppressive.

[25] As the documents which are in question have to be identified by reference to the pleadings, it is useful to briefly summarise the plaintiffs‘ relevant claims. With regard to their claim for judicial review, the plaintiffs claim

(a) That Transpower misrepresented the actual state of affairs to the Council in its application on 20 March 1998 (and the extension granted on 31 May 2000), application RM020283, application RM070259, application RM070274 and the variation granted to RM020283 subsequently.

(b) The Council‘s decision on 31 May 2000 to extend Transpower‘s

certificate of compliance was unlawful because it was based on

mistakes of fact and based on information which Transpower knew or ought to have known was misleading, it was made without notification and was unreasonable as the Council considered that no one was adversely affected by Transpower‘s proposal.

(c) The Council‘s decision regarding RM020283 was unlawful because again it was based on mistakes of fact and based on information which Transpower knew or ought to have known was misleading, it was made without notification and was unreasonable as the Council considered that no one was adversely affected by Transpower‘s proposal, relevant factors were not considered and irrelevant factors were considered.

(d) The Council‘s decision regarding RM050129 was unlawful because again it was based on mistakes of fact and based on information which Transpower knew or ought to have known was misleading, and was unreasonable as the Council considered that no one was adversely affected by Transpower‘s proposal.

(e) The Council‘s decisions regarding RM070259, RM070274, the variation to RM020283 and RM080024 were unlawful in consequence of the unlawfulness of the Council‘s decision regarding RM020283.

(f) The works undertaken by Transpower with regard to all of the above applications in entering the land of each of the second plaintiffs were unlawful as it was not for maintenance in terms of s 23(1)(a) of the Electricity Act 1992 or alternatively, even if it was maintenance, the actions resulted in the land being injuriously affected contrary to s

23(3)(b) of that Act.

[26] As to their claim in trespass, the second plaintiffs claim that Transpower‘s

actions referred to in [25](f) amounted to a trespass.

[27] With regard to the final claim by the first plaintiff society and Mr Jenkner, it is claimed that, as Transpower had de-energised the lines, it lost any existing use rights under s 10 of the Resource Management Act 1991.

[28] At the hearing of the present application, I was informed by Mr Knight, for Transpower, that Transpower has agreed to discover certain documents. Indeed he said that Transpower is currently preparing a further affidavit of documents, which are relevant to, and predate, each of the identified subsequent applications. Mr Knight submitted, however, that requiring Transpower to discover documents related to those subsequent applications, but created after the date of the granting of each application, would be inappropriate either because they are not relevant or alternatively because it would be oppressive to require Transpower at this late stage to identify and discover those documents.

[29] In response, Mr Taylor, for the plaintiffs, argued that Transpower‘s statement of defence to the plaintiffs‘ fifth amended statement of claim puts the following matters in issue in relation to the applications:

(a) RM050129 – denies an obligation to notify plaintiffs (para 22) and says it [has] no knowledge [of] whether it told the [Council] that the line[s] had been optimised out and de-energised – para

24.

(b) RM070259 and RM070274 – denies a duty to give notice to

[Mr] Hindry and persons affected respectively (para 25 re paras

25 and 26).

(c) RM070259 and RM070274, and variation of RM020283 – denies these would adversely affect persons and that Transpower misled [the Council] – para 40.

(d) RM080024 and RM080267 – denies it had a duty to give notice and says it has insufficient knowledge [of] whether it gave notice (para 27).

(e) Denies that the actions implementing RM070259, [RM]070274, [RM]080024, and the variation of RM020283 were legally unauthorised and therefore involved trespass (paras 46-49).

[30] Mr Taylor further submitted that documents arising at any time may be relevant to showing Transpower‘s knowledge and intentions before its applications in respect of the 31 May 2000 certificate extension or RM020283. In particular, the plaintiffs contend that Transpower is likely to have evidence post dating those two applications which hint at the fact it mislead the Council at the time that the two applications were made. Mr Taylor went on to suggest that the evidence in his words would likely be in the form of ―we did hold back this‖ or ―we really ought to have disclosed this‖.

[31] Mr Knight countered by suggesting that the plaintiffs‘ real relevance argument is addressed by the discovery already in the throes of being undertaken by Transpower. He argued that the plaintiffs here are really seeking to impugn the Council‘s decisions with regard to RM020283 and the 31 May 2000 certificate extension. Transpower has accepted that documents post-dating those applications may be relevant, but that is limited to those documents pre-dating each subsequent application. I took Mr Knight to argue that given the volume of documents that would be involved and the difficulty which Transpower would have in trawling through all of the material, some sensible cut off needs to be made. Mr Knight contended that this should be in the nature of not requiring discovery of any documents relating to the subsequent applications, which were created after the application to which it is related was granted.

[32] Mr Knight further argued that the plaintiffs‘ claims of relevance are focused around the defendants‘ duty to notify the plaintiffs of Transpower‘s applications. He argued this is a question of law and one on which Transpower‘s discovered documents are unable to assist. In response, Mr Taylor suggested that in reality they are mixed questions of fact and law.

[33] I agree with Mr Taylor that the question whether the defendants did have a duty to disclose must be informed by the circumstances of the case. However, in my view it is unlikely that documents not yet discovered by Transpower will much inform that. Likewise, while it is possible that Transpower may well have documents in the form of ―we did hold back this‖ or ―we really ought to have disclosed this‖ with regard to the 31 May 2000 certificate extension or RM020283, it is in my view unlikely that any documentation would be bluntly in that form.

Nevertheless, as I see the position, it is difficult to escape the conclusion that Transpower may well have in its possession documentation in the particular area in question which may directly or indirectly enable the plaintiffs to advance their case. Indeed, as deposed by Mr Browne for Transpower, in an email search across Transpower‘s servers, 5,000 emails responded positively to the key words ―MHH PKK‖ (a common acronym for the lines running from the Mangahao Power Station to Paekakariki). Where some 5,000 emails are examined, in my judgment it is likely that something will be of relevance to matters before the Court in this proceeding.

[34] Given therefore that I am satisfied that the plaintiffs have done enough here to satisfy the threshold requirements of r 8.24, I now turn to consider whether I should nevertheless in the present case decline to exercise my discretion to order that Transpower produce further documents.

[35] In considering whether to exercise this discretion, I am mindful of the fact that these proceedings were issued nearly three years ago in December 2008, and discovery was initially completed in September 2009. I acknowledge that the delay between then and now was in large measure due to admirable attempts by the parties to reach a settlement, which to date have failed. Briefs of evidence are required to be exchanged by 21 October 2011 and a fixture allocated for a five day trial of this

matter has been fixed for the week of 12 February 2012.18 I am also mindful in the

circumstances here of the statement of Keane J in Worldwide NZ LLC v QPAM Ltd

where his Honour at [80] highlighted:19

Recent instances of exercises of discretion against wide discovery, particularly discovery in the hope that something will turn up, are Slick v Westpac Banking Corporation (No 2) [2006] FCA 1712 at 43; Austal Ships Pty Ltd v Incat Australia Pty Ltd [2009] FCA 368.

[36] On all of this, Mr Knight submitted that, in light of the comments made by

Mr Browne in his affidavit on behalf of Transpower, a requirement to undertake further discovery of the kind sought here by the plaintiff would be extremely time

18 See the Minute of Ronald Young J Kapiti High Voltage Coalition Inc v Kapiti Coast District

Council HC Wellington CIV-2008-485-2723, 12 June 2011.

19 HC Auckland CIV-2006-404-1827, 15 May 2009.

intensive and costly for Transpower. Transpower has a number of different operational groups and it seems none use the same file numbering system as another. Accordingly, Transpower would need to identify particular individuals who were involved with each application and access those individuals‘ records. Along with the

5,000 emails identified, each document would need to be considered for relevance.

[37] In response, Mr Taylor maintained that, even if Transpower has one document which shows that Transpower withheld information, with the effect that it mislead the Council, that is enough to justify the discovery sought. Accordingly, Mr Taylor submitted that this application is only oppressive if Transpower itself has been responsible for making it oppressive. As to the issue of timing, the plaintiffs say that as the applications in question were on a non-notified basis, they were only made aware of them in late 2010. There was no way that they could have known that those applications had already been made and therefore further documents may well be relevant. Nevertheless, I do note that the parties engaged in a call-over of this proceeding on 13 June 2011. Following that, the plaintiffs filed their fifth amended statement of claim on 23 June 2011. A statement of defence was filed on 2

August 2011. On 22 August 2011 counsel for Transpower responded to the plaintiffs‘ request for further discovery. On 1 September 2011, the present discovery application was received by this Court and on 20 September 2011 I heard the application. Nevertheless, Mr Alexander deposes to having been made aware of the subsequent applications in late 2010 (no date was specified). The plaintiffs cannot therefore claim that they have been entirely timeous in their application.

[38] But, by the same token, given the matters I have noted at [36] above, I should also comment here that a defendant ought not to be ―rewarded‖ in discovery situations for cumbersome document management systems.

[39] In conclusion, and in light of all the matters I have outlined above, I consider that Transpower‘s suggestion in the present case noted at [31] above is sensible. That is that a temporal limit should be placed around the documents to be discovered here. I accept the comment of the Court of Appeal in BNZ Investments Ltd v The Commissioner of Inland Revenue that it will not be beyond counsel to come up with

―a sensible mechanism for avoiding the risk of unfairly selective discovery and production‖.20 In the present case, given the likely cost to Transpower (as deposed to by Mr Browne), the low prospect of relevant material and the actual alleged relevance of any information (ie to the 31 May 2000 extension and RM020283), it would be oppressive as I see it to require Transpower to discover all documents relating to the subsequent applications. The likelihood that comments made after

each application will be relevant to the plaintiffs‘ claims must be taken to be very low. To put the plaintiffs‘ claim to the contrary any higher would amount, in my view, to what is merely a fishing expedition.

[40] I clarify, however, that this means that Transpower is, therefore, required to discover all relevant documents relating to those subsequent applications which were created for and pre-dated the applications. I consider that it is likely that there would be some comment with regard to those applications as to Transpower‘s disclosed material in the earlier two matters. For that reason, and indeed Transpower appears to accept this, discovery in that regard must be undertaken.

The Pole Splitting Documents

[41] Transpower‘s opposition to discovering these documents is limited to

questions of relevance.

[42] The plaintiffs claim in this regard is linked to Transpower‘s application in RM020283 where it said that it needed to replace a number of wooden poles with concrete poles. The plaintiffs say that Transpower mislead the Council in that it knew that that proposal would have adverse effects. Part of the plaintiffs‘ claim is that the concrete poles used were defective, and different to the usual concrete poles used by Transpower. The plaintiffs say that this was known to the defendants, and was not simply a case of one or two bad poles in a batch. In other words, the poles used it is said were of lower strength. The plaintiffs claim that the defective poles

_{pose a danger to people and livestock. Mr Taylor argued that discovery of the}

20 BNZ Investments Ltd v The Commissioner of Inland Revenue [2007] NZCA 356, [2008] 1 NZLR

598 at [57].

numbers of poles replaced and the numbers found cracked is therefore relevant to the proceeding.

[43] It is clear the poles were replaced by Transpower subsequent to RM020283. Mr Knight submitted that the plaintiffs‘ claim must be that Transpower knew prior to its application in RM020283 and its work being carried out in 2002 that the poles were defective. Any evidence of subsequent cracking cannot be probative to that fact. Only evidence of prior knowledge can support the plaintiffs‘ claim here.

[44] I agree with Mr Knight‘s submission. While evidence of cracking subsequent to Transpower‘s application and its installation of the poles may support the plaintiff‘s allegation that the poles are dangerous, that cannot support their claim that Transpower mislead the Council, in the sense that they knew or ought to have known that the poles were defective, as to the safety of the poles at the time its application was made.

Conclusion

[45] For the reasons outlined above, I consider that the plaintiffs‘ application must fail to the full extent of the discovery orders they have sought here. As discussed above, however, I am satisfied that the plaintiffs are entitled to discovery with regard to the subsequent applications to some extent. As it appears from Mr Knight‘s assurances to the Court that Transpower is already about to provide further discovery to this extent, formal orders are not, at this time, required. Should any issues arise between the parties, however, I grant the plaintiffs leave to apply to this Court on 24 hours notice for orders to be made in terms of [40] above or otherwise.

[46] Both parties seek costs on the present application. With regard to the plaintiffs‘ abandonment of an earlier claimed category of documents (see fn 1 above), as it was abandoned before the first call of this application, I see no need to make an award of costs for that. While my conclusion here is that I consider Transpower is required to undertake some discovery in relation to the subsequent applications, that is no more than Transpower was already undertaking as far as I was advised by Mr Knight. Accordingly, Transpower being materially successful in its opposition to the plaintiffs‘ application as I see it is entitled to an award of costs. Counsel are agreed that costs should be awarded on a 2B basis. I accordingly allow

costs to Transpower on that basis along with disbursements to be fixed by the

Registrar for this application.

‘Associate Judge D.I. Gendall’