Wislang v Attorney-General - [2020] NZHC 2588

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2020-485-006

[2020] NZHC 2588

UNDER the Judicial Review Procedure Act 2016; and the Territorial Sea, Contiguous Zone and
Exclusive Economic Zone Act 1977; and the Exclusive Economic Zone and Continental Shelf (Environmental Effects) Act 2012

IN THE MATTER OF

an application for judicial review

BETWEEN

MILES ROGER WISLANG

Applicant

AND

THE ATTORNEY-GENERAL

First Respondent

WHITE ISLAND TOURS LTD
Second Respondent

WORKSAFE NEW ZEALAND

Third Respondent

Hearing: 31 August 2020

Appearances:

The applicant appears in Person (with J M Wilson in support) K G Stephen and A M Piaggi for the First Respondent

G R Nicholson and O J Towle for the Second Respondent S V McKechnie and T J Bremner for the Third Respondent

Judgment:

1 October 2020

JUDGMENT OF GRICE J

WISLANG v THE ATTORNEY-GENERAL [2020] NZHC 2588 [1 October 2020]

Contents

Introduction[1]

Background[11]

White Island Tours Limited[16]

Claims against Attorney-General (for the responsible ministers)[18]

Claims against WorkSafe[20]

Response of WorkSafe and ministers[24]

Principles of judicial review[28]

Policy issues[32]

Statutory framework[36]

The extra territorial legislation[45]

The health and safety legislative framework[48]

The Health and Safety at Work (Adventure Activities) Regulations 2016[55]

Safety audit standards[71]

WorkSafe’s role under the Regulations[72]

Registration of White Island Tours Ltd[74]

What are the statutory decisions?[80]

Interpretation[87]

Conditions on WITL’s registration[100]

The evidence[107]

Standing[111]

Summary[114]

WorkSafe[114]

The Attorney-General (for the responsible ministers)[117]

Discretion[122]

Conclusion[124]

Costs[130]

Introduction

[1] On 9 December 2019 Whakaari/White Island erupted. Forty seven people had been on the island participating in an adventure activity operated by White Island Tours Limited (WITL). Twenty one died and 26 were injured in the eruption. Dr Wislang filed these proceedings on 20 December 2019, shortly after the eruption. He seeks judicial review against WorkSafe and named ministers claiming that the tragedy would not have occurred had the adventure activity operator been regulated in the manner he suggests and, seeking a prohibition on visits to the island.

[2] Dr Wislang says that WorkSafe should have published a specific safety audit standard to regulate adventure activity operations on live volcanos. He says that the safety standard should have required the adventure activity operator to monitor volcanic activity by reference to the GNS1 monitoring information and that adventure activity visits to the island should not have been permitted when the erupting volcano was at GNS alert level two. Dr Wislang also says that WorkSafe should have refused to register the private adventure operator for activities on Whakaari (an active volcano) as there was no condition requiring it to monitor the erupting volcano in the manner suggested by Dr Wislang nor prohibiting the operation at alert level two. Dr Wislang seeks judicial review in relation to WorkSafe and its minister’s failures in regulating the activity.

[3] WorkSafe responds to the judicial review saying that the claim does not identify any relevant statutory decision or clearly articulate WorkSafe’s alleged failures in exercising that power. Nevertheless, it says that it has published an adventure…

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.

Keep reading for free

Create a free CaseChat account to read Wislang v Attorney-General and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2020] NZHC 2588
Decision Date: 1 October 2020

CaseChat Overview and Summary

The applicant, Dr Wislang, filed a judicial review application against WorkSafe and the Attorney-General (as representative of the ministers) seeking to challenge the registration of an adventure tourism operator, White Island Tours Limited, on White Island, an active volcano. The application followed the eruption of the volcano in December 2019 which caused the deaths of 21 people and injuries to 26 others. Dr Wislang argued that WorkSafe should have published a specific safety audit standard for adventure activity operations on live volcanoes and that it should have imposed conditions on the registration of the adventure tourism operator. He further claimed that the responsible ministers should have prohibited visits to the island. The court found that Dr Wislang had not identified a coherent basis for judicial review. The statutory decisions made by WorkSafe were lawful and the claims against the ministers related to policy decisions outside the scope of judicial review. The court dismissed the judicial review application against all respondents.

Orders