Linfox Logistics (NZ) Ltd v Worksafe New Zealand
[2018] NZHC 583
•29 March 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2018-404-000040
[2018] NZHC 583
BETWEEN LINFOX LOGISTICS (N.Z.) LTD
Appellant
AND
WORKSAFE NEW ZEALAND
Respondent
Hearing: 12 March 2018 Appearances:
G Nicholson and O Welsh for the Appellant A Longdill and L Moffitt for the Respondent
Judgment:
29 March 2018
JUDGMENT OF WOOLFORD J
This judgment was delivered by me on Thursday, 29 March 2018 at 12:45 pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors/Counsel:
Kensington Swan, Auckland
A Longdill, Barrister, AucklandLegal Services, WorkSafe New Zealand, Auckland
LINFOX LOGISTICS (N.Z.) LTD v WORKSAFE NZ [2018] NZHC 583 [29 March 2018]
Introduction
[1] Linfox Logistics (N.Z.) Limited (Linfox) is charged under s 36(1)(a) of the Health and Safety at Work Act 2015 (the Act) with failing to ensure, so far as is reasonably practicable, the health and safety of a truck driver, employed by a contractor, who was injured when he was hit by a forklift at a distribution centre in Mangere. Linfox was responsible for the transportation of goods to and from the distribution centre and for the induction of truck drivers undertaking that role.
[2] The particulars of the charge allege that Linfox failed to consult with two other companies connected with the distribution centre to:
(a)Develop an adequate safe system of work for forklift operators and truck drivers to follow when loading curtain-sider trucks, and to incorporate this into site inductions provided to drivers; and
(b)Develop and implement a system to ensure that the loading bay at the distributions centre was adequately monitored and supervised during the night shift.
[3] Before entering a plea, Linfox applied to the Manukau District Court under s 133 of the Criminal Procedure Act 2011 (CPA) for an order amending the charge against it from one under s 36(1)(a), which carries a maximum fine of $1.5 million,1 to one under s 34(1), which carries a maximum fine of $100,000. Section 34(1) provides that if more than one person has a duty imposed by the Act each person must, so far as is reasonably practicable, consult, co-operate with or co-ordinate activities with those parties. Linfox submitted that charging the company under s 36(1)(a) was wrong in circumstances where the alleged failure to ensure the health and safety of the truck driver was solely in relation to consultation with others. Linfox said it should have been charged under s 34 as that section expressly imposed a duty of consultation on Linfox. It said the necessary inference to be drawn from Parliament’s inclusion of s 34 is that a failure to consult cannot constitute a breach of s 36. Thus the facts alleged did not disclose any offence at law under s 36. In a reserved decision dated
1 Health and Safety at Work Act 2015, s 48(2)(c).
22 December 2017, Judge Mahon refused the application to amend the charge.2 Linfox now appeals against that decision.
[4] A preliminary issue has been identified as to whether there is jurisdiction to appeal Judge Mahon’s decision. By minute of 28 February 2018, Lang J ordered that question be addressed separately. This judgment deals solely with that issue of jurisdiction.
Statutory right of appeal
[5] Linfox applies for leave to appeal Judge Mahon’s decision under s 296 of the CPA. Section 296 relevantly provides:
296 Right of appeal
(1)This section applies if a person has been charged with an offence.
(2)The prosecutor or the defendant may, with the leave of the first appeal court, appeal under this subpart to that court on a question of law against a ruling by the trial court.
(3)The question of law in a first appeal under this subpart must arise—
(a)in proceedings that relate to or follow the determination of the charge; or
(b)in the determination of the charge (including, without limitation, a conviction, an acquittal, the dismissal of the charge under section 147, or a stay of prosecution).
…
Enforceable undertakings
[6] The parties submit it is relevant to this application that Linfox wishes to resolve the charge by way of an enforceable undertaking. It is a feature of the Act that charges can be resolved in some circumstances by the defendant giving an enforceable undertaking to WorkSafe.3 The enforceable undertaking is a binding voluntary agreement to remedy a breach of the Act. If an enforceable undertaking is accepted, WorkSafe will stop the prosecution process and withdraw the charges.
[7] On 18 September 2017, Linfox advised WorkSafe of its desire to negotiate and agree an enforceable undertaking as a means to resolve the current prosecution.
2 Worksafe New Zealand v The Supply Chain Ltd [2017] NZDC 29421.
3 Health and Safety at Work Act 2015, ss 123–129.
WorkSafe considered the suitability of Linfox for such an agreement and on 20 September 2017 advised Linfox that the contravention met the suitability assessment for an enforceable undertaking. WorkSafe, therefore, invited Linfox to submit an application for an enforceable undertaking.
[8] Linfox has, however, not yet applied for an enforceable undertaking. It says it cannot do so until the identity of the charge it faces is confirmed.
Linfox’s submissions
[9] Linfox notes that the only question on the issue of jurisdiction is whether Judge Mahon’s decision to refuse to amend the charge “relates to … the determination of the charge”. Linfox submits that the application to amend the charge relates to the determination of the charge on the basis that:
(a)The enforceable undertakings procedure is a “determination of the charge” because it puts an end to a charge and any controversy between the parties and is thus analogous to a discharge without conviction; and
(b)The application to amend the charge “relates to” a determination of the charge as a decision on the identity of the charge will frame the negotiation of the enforceable undertaking that will ultimately resolve the charge.
WorkSafe’s submissions
[10] WorkSafe submits that the decision to accept an enforceable undertaking rests with WorkSafe as the regulator. Where an enforceable undertaking is accepted, there is no “determination” of the charge by the Court. Charges are withdrawn by WorkSafe. There is simply no judicial decision which engages with, or decides, the charge. Although leave is given by the Court to WorkSafe to withdraw the charge, that is still not a determination.
[11] WorkSafe further submits that even if a decision to accept an enforceable undertaking and to withdraw a charge could constitute a determination, there is
insufficient link between the District Court’s decision to dismiss the application to amend the charge and any decision on an enforceable undertaking. The reason is that there is obviously no bar to Linfox seeking an enforceable undertaking now based on the current charge. It has simply chosen not to do so at this stage.
Discussion
[12] In order to fall within the Court’s jurisdiction, the question of law must arise in proceedings that relate to the determination of the charge. Thus here, for there to be jurisdiction, the application to amend must have been a proceeding that related to determination or disposition. As in Anderson v R, in which the Court of Appeal discussed the correct interpretation of s 296, the question turns on the correct interpretation of “relate to” and “determination” in that section.4
[13] Linfox submits that the negotiation and acceptance of an enforceable undertaking is, in itself, a determination of the charge as s 129(4) of the Health and Safety at Work Act requires WorkSafe to discontinue the proceedings if it accepts an enforceable undertaking. It refers to the Webster’s Dictionary definition of “determination”, cited by the Court of Appeal in Anderson v R, as “the settling and ending of a controversy esp by judicial decision” and submits that involvement by the Court is, therefore, not necessarily required to determine a charge.5 I do not agree that acceptance of an enforceable undertaking can amount to a determination. The Court has control of the charge and whatever happens between the parties outside of the Court can never be a determination of a charge. Section 296 talks of the determination of the charge, not determination of the controversy between the parties.
[14] The only realistic argument that Linfox has in relation to the enforceable undertaking, therefore, is that leave given by a judge to withdraw the charge as a result of an enforceable undertaking is a determination of it. Linfox argues this is analogous to a discharge without conviction. With respect, I disagree. It is more aptly compared to the withdrawal of charges following the acceptance of diversion by the Police for minor charges. Unlike a discharge without conviction, where a judge makes a
4 Anderson v R [2015] NZCA 518, [2016] NZLR 321.
5 At [41].
considered decision on the substantive merits of the case per statutory criteria and thereby determines the charge, the negotiation and settlement of an enforceable undertaking is completely outside of any judicial process or oversight. A judge has no control over the process and does not approve the enforceable undertaking. Rather, the judge is presented with a fait accompli and absent any abuse of court processes will grant leave to withdraw the charge.
[15] There is also a strong line of authority commencing with Burton v Police,6 which establishes that granting leave to withdraw a charge is not a determination.7 Linfox submits this line of authority is no longer of relevance because of the implementation of a new statutory regime under the CPA. However, in Anderson v R, the Court of Appeal stated that it was of some significance that the legislature had retained the language of “determination”.8 The Court went on to state:9
It is not always easy to draw the line between those matters seen to fall within a determination and those that do not. Similar judgments will be called for in the application of s 296. The retention of the language of “determination” and the availability of other remedies suggest an expansive view of s 296 is not required.
[16]Furthermore, in D (CA716/2015) v R the Court of Appeal stated:10
We are further reinforced in our view that there is no jurisdiction under s 296 by consideration of the relevant legislative history and purpose of the Criminal Procedure Act. As noted in Anderson, the main focus of the Act was to simplify procedures rather than affect substantive appeal rights. It follows, as held in Anderson, that an expansive interpretation of s 296 is not justified. The position regarding appeals against refusals of stays and discharges prior to the enactment of the Criminal Procedure Act was well established. Had Parliament intended to make a major change that would be likely to result in an increase in the number of appeals to this Court and to delay trials, it is reasonable to expect there would have been some mention of it in the background papers or parliamentary debates. Significantly, Mr Shamy was unable to point to any.
[17] I therefore accept the line of authority as persuasive and find that the withdrawal of a charge is not a determination in terms of s 296.
6 Burton v Police [1961] NZLR 698 (SC).
7 Police v Norman [1975] 1 NZLR 391 (CA); Police v S [1977] 1 NZLR 1 (CA); Bell v Police HC Dunedin CRI 2007-412-000015, 6 June 2007; Graham v Police [2014] NZHC 1130.
8 Anderson v R [2015] NZCA 518, [2016] 2 NZLR 321 at [47].
9 At [54].
10 D (CA716/2015) v R [2016] NZCA 190 at [22].
[18] However, I do not consider the matter of enforceable undertakings, on which the parties focused their submissions, is determinative. The question on which Linfox seeks leave to appeal does not arise from a decision by WorkSafe to accept or reject an enforceable undertaking and therefore withdraw a charge. Rather, it arises from the District Court Judge’s decision as to whether to amend a charge. Any later decision to apply for or accept an enforceable undertaking is completely independent of that application from the Court’s perspective. Indeed, the prospect of an enforceable undertaking was not even mentioned in Judge Mahon’s decision. An offer or acceptance of an undertaking may not happen, and in the event that it does not Linfox will presumably be tried on the charge.
[19] I do not see that the motive for which Linfox seeks amendment bears any relevance to whether this amounts to a decision that relates to the determination of a charge. It cannot be that in some cases a decision to amend a charge relates to determination in terms of s 296 and in others does not because the party seeking the amendment does so in order to resolve it outside court. To compare the situation to that in Anderson v R, a decision to elect a jury trial is no less a decision relating to the determination of the charge if the defendant believes that election might lead to the charge being dropped by police.
[20] The correct question is therefore not whether negotiation and acceptance of an enforceable undertaking amounts to determination, but whether generally a decision to amend (or not amend) a charge relates to the determination of that charge.
[21] The Court of Appeal in Anderson v R held that there must be some link between the question in issue, here the amendment of the charge, and determination. This does not necessarily require a temporal connection.11 The Court noted “it is not always easy to draw the line between those matters seen to fall within a determination and those that do not”.12 However, it held that “the retention of the language of “determination” and the availability of other remedies suggest an expansive view of s 296 is not required”.13 It concluded in that case that a decision about election of trial
11 At [42].
12 At [54].
13 At [54].
by jury was closely linked to disposition because it decided the form of trial at which the determination would be made, and who would make the determination.14
[22] In D (CA716/2015) v R, the Court of Appeal was faced with the question of whether declining to grant a discharge was a decision relating to a determination for the purposes of s 296. The Court held this was in a “fundamentally different category” to the decision in Anderson.15 The Court noted that the trial would “take place in exactly the same manner as if the application for a discharge had not been brought”.16 It noted further that an alternative remedy was available. Therefore the decision to decline a discharge did not fall within s 296.
[23] Turning to the question here, the nature of the charge is fundamentally important to whether a person is convicted, acquitted or the charge dismissed, i.e., to how the charge is determined. Quite clearly a change in charge may alter its determination. The legal elements to be proven will be changed. The trial procedure may change. So too may the means of resolution.
[24] The link between the charge and the determination seems far closer than the link between election of trial by jury and the decision; there the proceeding relates to how the charge will be determined, here it relates to what charge will be determined. It is a step on the way to determination of the charge that fundamentally affects how it will be determined, and so is closely linked to its determination. In this respect a decision not to allow an amendment of charges is much more analogous to the decision in Anderson not to allow a late election of jury trial than to the decision in D (CA716/2015) v R not to allow a discharge, as the nature of the charges (much like the nature of the trial) directly impacts the way in which the determination occurs. I am therefore of the view that a decision to amend (or not to amend) a charge falls within s 296(3).
[25] However, WorkSafe raises one final point that requires consideration. The legislature, in enacting the Criminal Procedure Act 2011, chose to give a specific
14 At [56].
15 D (CA716/2015) v R [2016] NZCA 190 at [20].
16 At [20].
pretrial right of appeal to a defendant or prosecutor in a jury trial against a decision amending or refusing to amend the charge under s 133.17 The legislature chose, however, not to give a specific pretrial right of appeal to a defendant or prosecutor in a Judge-alone trial. WorkSafe submits that to find there is jurisdiction to allow leave to appeal on a question of law under s 296 from Judge Mahon’s decision under s 133 would be to accord Linfox a pre-trial right of appeal which the legislature specifically chose not to confer on parties to a summary trial.
[26] After careful consideration, I do not agree this would undermine Parliament’s intention. Section 296 gives only a very limited appeal right, namely an appeal with leave on a question of law only. To apply s 296 to pre-trial decisions in non-jury cases is not to afford such cases the same status as pre-trial decisions in jury cases. Sections 217(1) and (2)(e) allow general pre-trial appeals with leave on prescribed matters, and the courts have no jurisdiction to entertain such appeals on any other matters. But matters not listed in s 217 may still be the subject of an appeal on a question of law under subpart 9 of the Criminal Procedure Act. Section 217 gives a broad right of appeal; section 296 is significantly more limited. In D (CA716/2015) v R, the Court of Appeal agreed this section was not determinative, accepting that the scope of the appeal right in s 296 is not limited to those matters specified in s 217. The Court held:18
We agree that the inclusion of the words “relate to” contemplates the possibility of some pre-trial appeals being entertained under s 296. We also agree that the fact the type of pre-trial appeal in question is not one of those listed in s 217 will not of itself preclude jurisdiction under s 296. … The two sections (ss 217 and 296) are not co-extensive.
[27] I accept there are some other remedies available to Linfox. Judicial review of Judge Mahon’s decision is available in accordance with the procedures set out in the Judicial Review Procedure Act 2016. Linfox could also proceed to negotiate the terms of an enforceable undertaking based on the charge it currently faces. Finally, it could also go to trial on the current charge and if convicted could then pursue a general appeal against conviction pursuant to s 229 on the same grounds. However, the Court in Anderson v R found that the ability to remedy any error after trial is “relevant in
17 Criminal Procedure Act, s 217(1) and (2)(e).
18 D (CA716/2015) v R [2016] NZCA 190 at [16] (emphasis added).
construing the scope of s 296” and means an expansive view is not required. This does not mean the availability of another option is determinative of whether a given proceeding falls under s 296. In my view, a reading of s 296 consistent with Anderson v R means the High Court has jurisdiction here.
Conclusion
[28] I consider there is jurisdiction for Linfox to apply for leave to appeal against Judge Mahon’s decision on a question of law under s 296 of the CPA.
[29] I note this decision does not decide whether leave should be granted, nor whether the question on which Linfox seeks to appeal is a question of law, nor make any comment on the substance of Judge Mahon’s decision. Those matters are for another day. I merely hold the High Court has jurisdiction to consider the application for leave to appeal on a question of law.
[30] I direct that Linfox’s application for leave to appeal on a question of law is to be called at 9.00 am on Friday 20 April 2018, for the allocation of a hearing date and timetable directions for the filing of submissions.
Woolford J
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