Worksafe New Zealand Mhi Haumaru Aotearoa v RH & JY Trust

[2024] NZHC 315

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2023-463-22

[2024] NZHC 315

UNDER

the Criminal Procedure Act 2011; the Health and Safety at Work Act 2015

BETWEEN

WORKSAFE NEW ZEALAND MHI HAUMARU AOTEAROA

Appellant

AND

RH & JY TRUST

First Respondent

PHILLIP NEVILLE ROBERT ROUCHER
Second Respondent

JOCELYN YVETTE BROWN

Third Respondent

PERPETUAL TRUST LIMITED (trading as PERPETUAL GUARDIAN)

Fourth Respondent

Hearing:	On the papers
Counsel:	D La Hood, T Williams McIllroy and A Bagchi for the Appellant (via VMR)
Judgment:	26 February 2024

JUDGMENT OF HARVEY J

[Application to appeal on question of law]

This judgment was delivered by me on 26 February 2024 at 4.00 pm pursuant to

Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

WORKSAFE NEW ZEALAND MHI HAUMARU AOTEAROA v RH & JY TRUST [2024] NZHC 315 [26

February 2024]

Introduction

[1]                  On 21 December 2023, I issued judgment on an appeal brought by Worksafe New Zealand Mahi Haumaru Aotearoa on a question of law:1 can a trust (or its trustees collectively) meet the definition of “person” in s 16 of the Act which includes a “body of persons, whether corporate of unincorporate”?2

[2]                  The factual background and issues are discussed fully in that judgment. I held that a trust was not a “person” under s 16 of the Health and Safety at Work Act 20153 but that the trustees of a trust collectively are a “body of persons” within the definition of “person” under the Act.

Application for leave to appeal

[3]                  The first, second and third respondents now apply for leave to appeal on a question of law following that determination, on the question:

Do trustees of a trust constitute a “body of persons” within the definition of “person” in section 16 of the Health and Safety at Work Act 2015?

[4]                  Leave is sought per s 303 of the Criminal Procedure Act 2011 which governs the right of appeal against a first appeal court. Section 303(2) provides:

…

(2)   The High Court or the Court of Appeal must not give leave for a second appeal under this subpart unless satisfied that—

(a)  the appeal involves a matter of general or public importance; or

(b)  a miscarriage of justice may have occurred, or may occur unless the appeal is heard.

[5]                  The Court of Appeal has held that the threshold of general or public importance is met where the proposed appeal “raises an important question of law that has broad application beyond the circumstances of the particular case.”4

1      Worksafe New Zealand Mahi Haumaru Aotearoa v RH & Jury Trust [2023] NZHC 3872.

2      This question arose following a determination in the District Court in which Judge Bidois dismissed a charge brought by Worksafe against the RH & JY Trust and others: WorkSafe New Zealand v Kellisa Farms Ltd [2022] NZDC 2490.

3      The Act.

4      Canterbury Regional Council v Dewhirst Land Company Ltd [2019] NZCA 486, [2020] 2 NZLR 10 at [12], referring to R v Kuru [2015] NZCA 414 at [7].

[6]                  The applicants submit that the proposed appeal involves a matter of general or public importance falling within the ambit of s 303(2)(a). They contend that the question bears on the Court’s approach to liability of trustees under the Act; that the answer will have broad effects on individuals and entities beyond the parties to this proceeding; and that the answer must be determined more broadly than on the facts of this particular case, having reference to trusts law and statutory interpretation. For completeness, I note that Worksafe have not filed any submissions in opposition – the opportunity to do so having now expired.5

Discussion

[7]                  I agree with the applicants, for the reasons argued, that the proposed question of law is a matter of general public importance within the meaning of s 303(2)(a). The proper interpretation and application of this provision in the Act affects regulatory liability in an important area of law. The widespread use of trusts to run businesses in New Zealand underscores the need to properly interpret the proposed question of law on appeal to ensure effective enforcement under the Act. The authorities are arguably at variance and will benefit from clarification by the Court of Appeal.

Decision

[8]Leave to appeal is granted.

Harvey J

Counsel
Andrew W Butler KC, Wellington

Solicitors

Luke Cunningham Clere Morgan Coakle, Auckland

5      High Court Rules 2016, r 7.24.