Utumapu v Bull - [2013] NZCA 175

IN THE COURT OF APPEAL OF NEW ZEALAND

CA554/2011
[2013] NZCA 175

BETWEEN MARGARET UTUMAPU
Appellant

AND ADRIAN BULL AND HAMISH SPEEDY
Respondents

Hearing: 10 April 2013

Court: Harrison, Wild and French JJ

Counsel: A M Powell and P D Marshall for Appellant
J W Maassen and N Jessen for Respondents

Judgment: 23 May 2013 at 2 pm

JUDGMENT OF THE COURT

A The appeal is allowed.

B The declaration made in the High Court is set aside.

C There is no order for costs.

REASONS OF THE COURT

(Given by Harrison J)

Introduction

This appeal raises an issue about the nature and extent of the powers of an inspector employed by the Department of Labour when questioning a person in the course of an investigation conducted under the Health and Safety in Employment Act 1992 (the HSE Act).

Facts

The late Henry Whale was a farm hand employed by Mangaohane Station Ltd (MSL) on Mangaohane Station near Taihape. Both respondents, Adrian Bull and Hamish Speedy, were directors of MSL; Mr Speedy was also station manager. On 8 March 2011 Mr Whale died when the tractor he was driving on the station tipped and crushed him.
The police notified the Department of Labour of the accident. Two safety inspectors including the appellant, Margaret Utumapu, attended the station and started an investigation under the HSE Act.
On 18 March 2011 Ms Utumapu telephoned Messrs Bull and Speedy to arrange an interview with them at the station on 23 March. However, on 22 March Cooper Rapley, a firm of solicitors in Palmerston North representing Messrs Bull and Speedy, wrote to the Department. The firm advised that while their clients were willing to provide information required as part of the investigation they were unwilling to assist “... in an uncontrolled manner without prior notice of the issues or questions they are required to answer”; that the meeting scheduled for the next day would not proceed; and that a written summary was requested of the questions which the Department intended to direct towards Messrs Bull and Speedy together with copies of a number of documents.
On 1 April 2011 Ms Utumapu wrote in reply that the Department did not provide actual questions to be asked given that the investigation was of a criminal nature. However, she advised that the proposed questions would focus on relationships, roles and responsibilities of those interviewed and others in the workplace; management of health and safety in the workplace; and health and safety practices in the workplace including conditions, materials or equipment that affect employees working on the station. On 7 April Cooper Rapley responded to the effect that the Department’s provision of topics was insufficient, and considerably more detail would be required.
On 11 April Ms Utumapu gave Cooper Rapley formal notice that she required Messrs Bull and Speedy to attend an interview pursuant to s 31(1)(f) of the HSE Act, pointing out that both had a duty to assist an inspector under s 47 of the Act…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Utumapu v Bull

Details

AGLC: Utumapu v Bull [2013] NZCA 175
Case: [2013] NZCA 175
Decision Date: 23 May 2013

CaseChat Overview and Summary

The case of Utumapu v Bull involved an appeal by Margaret Utumapu, a safety inspector, against a decision of the High Court which had granted a declaration sought by Adrian Bull and Hamish Speedy, directors of Mangaohane Station Ltd. The High Court had found that Ms Utumapu had acted unlawfully when she required Messrs Bull and Speedy to submit to an interview as part of an investigation into the death of Henry Whale, a farmhand who had been crushed by a tractor on the station. The Court of Appeal allowed Ms Utumapu's appeal and set aside the declaration made by the High Court. The Court of Appeal found that Ms Utumapu's request for an interview with Messrs Bull and Speedy was lawful and that they were required to participate in the interview and answer questions, subject to the statutory privilege provided by s 31(6) of the Health and Safety in Employment Act 1992. The appeal was heard on the basis of consent as it had become moot, but the Court of Appeal agreed to hear it due to the importance of the issue to future investigations. The Court of Appeal found that the statutory provisions governing an inspector's powers of entry and inspection empowered Ms Utumapu to ask questions and oblige Messrs Bull and Speedy to answer, subject to the privilege against self-incrimination. The Court of Appeal disagreed with the High Court's finding that an inspector must provide a broad indication as to the purpose of the interview and the type of allegations which the interviewee might face, and that where the employer is a company, an inspector cannot nominate or require the employer to nominate a person to be interviewed on its behalf. The Court of Appeal found that the statutory context of the provisions empowered Ms Utumapu to request Messrs Bull and Speedy to answer questions relating to the Department's enquiry and imposed corresponding obligations on them to answer. The Court of Appeal found that the appeal was allowed and the declaration made in the High Court was set aside. There was no order for costs as the issue was now moot and the respondents had participated on that basis.

Orders