Sproull v Worksafe New Zealand [2021] NZCA 446 (7 September 2021)

Last Updated: 16 September 2021

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA291/2021 [2021] NZCA 446

	BETWEEN	DANIEL REUEL SPROULL Applicant
	AND	WORKSAFE NEW ZEALAND Respondent

Court:	Collins, Duffy and Peters JJ
Counsel:	A Shaw for Applicant A Everett and R Woods for Respondent
Judgment: (On the papers)	7 September 2021 at 12 noon

JUDGMENT OF THE COURT

1. The application to revisit and amend the direction made by Miller J is declined.
2. The application for leave to appeal will be dealt with on the papers.

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REASONS OF THE COURT

(Given by Collins J)

Introduction

• [1] Mr Sproull seeks leave to bring a second appeal, following his conviction in the District Court on two charges under s 176 of the Health and Safety at Work 2015 (the Act).^[1] Those charges allege Mr Sproull failed to give all reasonable assistance to WorkSafe inspectors to exercise their powers under the Act. Mr Sproull was fined $2,000 on each charge.^[2] The convictions were upheld by Mander J in the High Court.^[3]
• [2] The sole issue at this juncture is whether the application for leave to appeal should be determined on the papers or whether this Court should accede to the request for an oral hearing as sought by Mr Shaw, counsel for Mr Sproull.
• [3] The request for an oral hearing has been made notwithstanding a minute from Miller J dated 28 June 2021, in which he directed that the application for leave to appeal should be dealt with on the papers. Mr Shaw has applied for a reconsideration of the mode of hearing directions. He relies on r 25 of the Court of Appeal (Criminal) Rules 2001 (the Rules).
• [4] The issues identified in the notice of application for leave to appeal say the proposed appeal involves a matter of general or public importance for the following reasons:

(a) There was no proper basis upon which the High Court admitted additional evidence showing that the Chief Executive of WorkSafe New Zealand had, under delegated authority from the Board of WorkSafe New Zealand, duly appointed the WorkSafe inspectors involved in this case.

(b) Absent evidence of the exercise of a delegated power there was insufficient evidence to demonstrate that the inspectors had been validly appointed.

(c) The convictions were entered contrary to s 25(a) and or s 27(1) of the New Zealand Bill of Rights Act 1990.

Rule 25 application

• [5] Mr Shaw’s comprehensive written submissions in support of the application to have us reconsider the mode of hearing may be distilled to the following points:

(a) There was a failure by WorkSafe New Zealand to make full disclosure of relevant documents in the District Court.

(b) In the District Court, counsel for WorkSafe New Zealand did not argue there had been a lawful delegation by the Board of WorkSafe New Zealand to the Chief Executive to appoint the WorkSafe inspectors in this case.

(c) During the hearing of the appeal, counsel for WorkSafe New Zealand sought and was granted leave to adduce documents showing the Board of WorkSafe New Zealand had delegated to its Chief Executive the power to appoint WorkSafe inspectors.

(d) At the trial, delegation had been expressly disavowed by WorkSafe New Zealand as a ground of valid appointment of the inspectors.

(e) The application for leave involves matters of general or public importance.

(f) There is a real risk that a miscarriage of justice has occurred through wrongful conviction.

Analysis

• [6] In McAllister v R,^[4] this Court signalled that when considering applications for leave to bring a second appeal against conviction under s 264(2) of the Criminal Procedure Act 2011, the Court intends “to deal with ... leave applications on the papers where the issues involved make that appropriate”.^[5]
• [7] Factors that may assist in determining whether or not an application for leave can be dealt with on the papers include:

(a) The degree of complexity of the issues raised by the proposed appeal.

(b) Whether the parties are represented by counsel.

(c) Whether the Court believes it would be assisted by an oral hearing.

(d) Whether the application can be fairly dealt with on the papers.

• [8] In the present case, we believe that the Court will be able to fairly deal with the application for leave on the papers. Our reasons for reaching this conclusion are:

(a) We have every confidence that counsel will provide clear and comprehensive written submissions.

(b) We have the benefit of two judgments from the courts below which assist in understanding the issues that Mr Sproull wishes to advance in this Court.

(c) The issues are amenable to written submissions.

• [9] The application to revisit the direction made by Miller J is declined.
• [10] The application to amend the direction made by Miller J is declined. As a consequence, the application for leave to appeal will be dealt with on the papers. That will occur on 11 November 2021.
• [11] Mr Shaw is to file his submissions in support of the application for leave by 30 September 2021.
• [12] Ms Woods is to file her submissions in response by 21 October 2021.

Solicitors:
WorkSafe New Zealand, Auckland for Respondent

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^[1] WorkSafe New Zealand v Sproull [2020] NZDC 25821.

^[2] WorkSafe New Zealand v Sproull [2021] NZDC 195.

^[3] Sproull v WorkSafe New Zealand [2021] NZHC 902 (High Court judgment).

^[4] McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764.

^[5] At [45].