McMurtrie v District Court at Rotorua
[2015] NZHC 3170
•11 December 2015
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CIV-2015-463-000008 [2015] NZHC 3170
UNDER the Judicature Amendment Act 1972 IN THE MATTER
of an application for review of a decision of the District Court made under s 54C(2) of the Health and Safety in Employment Act 1992
BETWEEN
DONNA AILSA MCMURTRIE Applicant
AND
DISTRICT COURT AT ROTORUA First Respondent
MAUNGAWARU LOGGING LIMITED Second Respondent
Hearing: 9 December 2015 Appearances:
M J Hine for Applicant
First Respondent abides
H A Cull QC for Second RespondentJudgment:
11 December 2015
JUDGMENT OF GILBERT J
This judgment is delivered by me on 11 December 2015 at 2.30 pm pursuant to r 11.5 of the High Court Rules.
..................................................... Registrar / Deputy Registrar
Solicitors: Families Matter Law Practice, Rotorua
Counsel: H Cull QC, Wellington
MCMURTRIE v DISTRICT COURT AT ROTORUA & ANOR [2015] NZHC 3170 [11 December 2015]
Introduction
[1] David McMurtrie was killed in a forestry accident while working for Maungawaru Logging Ltd on 26 June 2012. His widow, Donna McMurtrie, wishes to pursue a private prosecution against Maungawaru Logging under the Health and Safety in Employment Act 1992. The problem is that there is a six month time limit for filing a charging document which expired on 26 December 2012.
[2] The Ministry of Business Innovation and Employment (the Ministry) wrote to Ms McMurtrie on 20 March 2013 advising:
Thank you for your cooperation during this time.
I advise that the Ministry of Business Innovation and Employment have completed its Investigation. The Ministry’s summary of evidence pertaining to the above fatal accident has been forwarded to the Rotorua Coronial Office – for their information and action.
This letter is to inform you that the Ministry of Business Innovation and Employment will be taking no further action in regards to this event at this time.
Should you have any queries or correspondence in relation to this event, please contact the Coroner’s Office directly. The contact details are listed below.
…
[3] Ms McMurtrie, who was understandably still grieving following the loss of her husband, says she did not understand the significance of this letter.
[4] At about this time, the Coroner sent the Ministry’s final report to Ms McMurtrie. This report concluded that Maungawaru Logging had complied with its duties under the Act and had taken all practical steps required of it as the employer. The concluding recommendation was:
That no further action is taken against Maungawaru Logging Ltd. This matter is to be referred to the Coroner.
[5] It was not until Ms McMurtrie attended a rally in Wellington organised by the Council of Trade Unions in April 2014 that she learnt about the possibility of bringing a private prosecution. Following that meeting, on 27 April 2014,
Ms McMurtrie notified the Ministry, pursuant to s 54 of the Act, of her interest in knowing whether enforcement action would be taken by an inspector.
[6] The Ministry responded on 4 May 2014:
Further to the receipt of your Notification of Interest received 28th April
2014 in relation to the death of Mr David Wayne McMurtrie, I wish to advise you as follows:-
The investigation into this matter has been completed.
A decision has been made not to take enforcement action.
The reason for this decision was that there was no evidence to indicate a breach of the Health and Safety in Employment Act 1992.
[7] On 30 May 2014, Ms McMurtrie applied for an extension of time under s 54C of the Act to file a charging notice. This section relevantly provides:
54CExtension of time for person other than inspector to file charging document
(1) This section applies if –
(a) an inspector or another person has not taken enforcement action in respect of a matter; and
(b) WorkSafe has notified relevant persons under section
54(2)(a) that an inspector has not and will not take enforcement action against any possible defendant in respect of the matter.
(2)On application, the District Court may extend the time for a person other than an inspector to file a charging document.
(3)An application under subsection (2) must be made within 1 month after receiving notice from WorkSafe under subsection (1)(b).
(4) The court must not grant an extension of time unless it is satisfied –
(a) that another person wishes to decide whether to file a charging document in respect of that matter;
(b) it is unreasonable, having regard to the time taken by an inspector to respond to the matter, to expect, or to have
expected, the person to make that decision before the 6- month period referred to in section 54B expires; and
(c) an application under section 54D has not been made.
[8] Ms McMurtrie’s application was declined by Judge P W Cooper in a reserved judgment delivered on 31 October 2014.1 The Judge accepted that Ms McMurtrie had applied within the one month period specified in s 54C even though he found that she had been notified by the Ministry on 20 March 2013 that it did not intend to
take further action in relation to the accident. However, the Judge declined to exercise his discretion to extend time for reasons he summarised as follows:
[28] In exercising exercising the discretion under s 54C(2) and the present case, I take into account the following factors:
(a) That the applicant knew of the decision by the inspector not to take any further action from about 20 March 2013 but
delayed taking any action herself until 30 May 2014.
(b) That the total delay from the date of the accident on 26 June
2012 to the date the applicant applied for an extension of time was approximately one year, 11 months.
(c) If a prosecution was to be commenced by the applicant and
defended by the proposed defendant, it is unlikely that any charge could be heard before mid 2015, meaning that the total delay from the time of the accident to the hearing would be in the order of three years.
(d) There is bound to be some degradation in the recollection of potential witnesses as a result of a three year delay.
(e) The public interest considerations in this case are multi-
faceted:
(i) There is a public interest in having offenders held accountable where there has been a breach of the Act;
(ii) There is a public interest in prosecutions being brought promptly;
(iii) There is a public interest in enquiring into and
addressing the causes behind the high number of fatal accidents in the forestry industry;
(iv) There is a Coronial inquest into a number of
forestry deaths, including the death of David McMurtrie. This inquest is at present delayed by these proceedings and would be further delayed by a prosecution. That inquest is an important inquiry into forestry fatalities and the causes that lie behind them.
(f) The applicant’s explanation for not taking action at an
earlier point in time. This explanation is that she was still grieving for the loss of her husband and did not understand
or have anyone to help her with official paperwork.
[9] Ms McMurtrie applies for judicial review of this decision contending that the
Judge:
(a) made a mistake of fact in that he misinterpreted the 20 March 2013 letter by overlooking the words “at this time” and, as a result, wrongly concluded that Ms McMurtrie had delayed filing her application for an extension of time for 14 months from 20 March 2013 to 30 May
2014 whereas, in fact, she did not receive “unequivocal notice” from
the Ministry until 4 May 2014; and
(b) failed to take account of relevant considerations:
(i)Ms McMurtie’s psychological distress caused by the death of her husband and her consequent inability to understand and/or act on the Ministry’s correspondence and/or reports.
(ii)The Ministry’s failure to explain to Ms McMurtrie the meaning of the 20 March 2013 letter and advise her about her rights under the Act.
[10] Ms McMurtrie seeks an order setting aside the decision.
[11] At the conclusion of the hearing, I advised the parties that I had reached the clear view that the application for judicial review must be dismissed. Time did not permit me to give reasons at the time because I had another case due to commence that afternoon. I accordingly dismissed the application and said that I would provide my reasons later.
Did the Judge make a mistake of fact?
[12] Mr Hine commenced this part of his argument by referring to s 54C(1)(b) of the Act. This section requires consideration of whether the “relevant person” has been notified that an inspector “has not and will not take enforcement action against any possible defendant in respect of the matter”. Mr Hine submits that the 20 March
2013 letter does not meet the “will not” requirement because the advice is qualified by the words “at this time”. He submits that these words can only mean that no final decision has been made about whether a prosecution will be taken in the future. He argues that the Judge made a material error of fact in characterising this letter as
advice that “no further action would be taken”.2
[13] The Judge accepted, in Ms McMurtrie’s favour, that the 20 March 2013 letter did not trigger the one month time limit under s 54C. He did so because he was persuaded that “relevant persons” are confined to those who have sent a notice of interest under s 54(2)(a). The Judge accepted that this yielded “an odd outcome” but he considered that this was how the legislation is framed. I am not sure that the Judge was right to accept this analysis.
[14] However, the only relevance of the notice that an inspector has not and will not take enforcement action is to set time running under s 54C. The Judge resolved that issue in Ms McMurtrie’s favour by accepting that the 20 March 2013 letter did not meet the notification requirements and that it was not until 4 May 2014 that a s 54C(1)(b) notice was given. Had the Judge not reached this conclusion, there would have been no jurisdiction to entertain Ms McMurtrie’s application to extend time.
[15] The Judge took into account the advice given to Ms McMurtrie in the
20 March 2013 letter, as he was obliged to do.
[16] First, it was relevant to the statutory constraint on the discretion in terms of s 54C(4)(b) set out above. The Judge was not entitled to grant an extension of time unless he was satisfied that it was unreasonable, having regard to the time taken by an inspector to respond to the matter, to expect Ms McMurtrie to make that decision before expiry of the six month time limit. The 20 March 2013 letter was relevant in fixing the outer limit of the time taken by the Ministry to respond to the matter and therefore the period against which to judge the reasonableness of the time taken by Ms McMurtrie to decide whether to file a charging document.
[17] Second, the Judge was obliged to take into account the advice conveyed to Ms McMurtrie in this letter. It states clearly that the Ministry’s investigation has been “completed” and the Ministry’s report has been forwarded to the Coroner’s Office for their information and action. The letter also advised Ms McMurtrie that the Ministry “will be taking no further action”. Although this is qualified by the words “at this time”, these words appear to have little significance given that the investigation had been completed and a decision made not to take any further action.
[18] Ms McMurtrie’s evidence was that she “didn’t understand the letter”. She did not suggest that she was misled by the words “at this time” as indicating that the Ministry’s investigation was ongoing or that there remained a real prospect that the Ministry would initiate a prosecution against Maungawaru Logging.
[19] I consider that Mr Hine is attempting to place considerably more weight on these words than they are capable of bearing. This is particularly so when the letter is read in conjunction with the Ministry’s report which makes plain its conclusion that Maungawaru Logging had met all of its obligations under the Act and that no further action would be taken against it. Instead, the matter was to be referred to the Coroner’s Office.
[20] For these reasons, I reject the first ground of review. I consider that the Judge made no material error of fact.
Did the Judge fail to take account of relevant considerations?
[21] Ms McMurtrie alleges that the Judge failed to take into account the psychological distress she suffered as a result of the loss of her husband and her consequent inability to understand the correspondence and reports she received from the Ministry. However, it is clear that the Judge did take this into account. He noted that Ms McMurtrie “was still grieving for the loss of her husband” at the time she
received the 20 March 2013 letter.3 The Judge specifically listed this as one of the
factors that he took into account in determining how to exercise his discretion.4 He then went on to state, when balancing the competing considerations:5
I sympathise with her situation in endeavouring to cope with the death of her husband.
[22] The Judge could hardly have made it clearer that he took this factor into account. This ground of review also fails.
[23] Finally, Ms McMurtrie alleges that the Judge failed to take into account the
Ministry’s “failure” to explain the meaning of its 20 March 2013 letter to her or to
3 At [10].
4 At [28].
advise her of her rights under the Act. There was no such “failure” because the Ministry has no duty to explain its correspondence or to advise persons of their rights under the Act. In any event, it would have been open to Ms McMurtrie to contact the Ministry for advice had she wished to do so. The Ministry also advised her:
Should you have any queries or correspondence in relation to this event, please contact the Coroner’s office directly. The contact details are listed below.
[24] The Judge approached this aspect of the matter on the basis most favourable to Ms McMurtrie. He accepted that she took no action because she did not understand the position and did not “have anyone to help her with official paperwork”.6 In other words, the Judge proceeded on the basis that Ms McMurtrie did not have access to any advice from the Ministry, the Coroner’s Office or anyone else. That was a particularly generous view of the facts.
[25] This ground of review is also without merit and must be rejected.
Conclusion
[26] For these reasons, the application for judicial review must be dismissed. The Judge did not make any material error of fact, nor did he fail to take account of relevant considerations as alleged. Further, there is nothing to indicate that Maungawaru Logging breached any obligation and should be prosecuted.
Result
[27] The application for judicial review is dismissed.
M A Gilbert J
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