SPROULL v WORKSAFE NEW ZEALAND [2021] NZCA 446

SPROULL v WORKSAFE NEW ZEALAND [2021] NZCA 446 [7 September 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA291/2021[2021] NZCA 446BETWEEN DANIEL REUEL SPROULLApplicantAND WORKSAFE NEW ZEALANDRespondentCourt: Collins, Duffy and Peters JJCounsel: A Shaw for ApplicantA Everett and R Woods for RespondentJudgment:(On the papers)7 September 2021 at 12 noonJUDGMENT OF THE COURTA The application to revisit and amend the direction made by Miller J isdeclined.B The application for leave to appeal will be dealt with on the papers.____________________________________________________________________REASONS OF THE COURT(Given by Collins J)Introduction[1] Mr Sproull seeks leave to bring a second appeal, following his conviction inthe 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 to1 WorkSafe New Zealand v Sproull [2020] NZDC 25821.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 appealshould be determined on the papers or whether this Court should accede to the requestfor 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 fromMiller J dated 28 June 2021, in which he directed that the application for leave toappeal should be dealt with on the papers. Mr Shaw has applied for a reconsiderationof 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 theproposed appeal involves a matter of general or public importance for the followingreasons:(a) There was no proper basis upon which the High Court admittedadditional evidence showing that the Chief Executive of WorkSafeNew Zealand had, under delegated authority from the Board ofWorkSafe New Zealand, duly appointed the WorkSafe inspectorsinvolved in this case.(b) Absent evidence of the exercise of a delegated power there wasinsufficient evidence to demonstrate that the inspectors had beenvalidly appointed.(c) The convictions were entered contrary to s 25(a) and or s 27(1) of theNew Zealand Bill of Rights Act 1990.2 WorkSafe New Zealand v Sproull [2021] NZDC 195.3 Sproull v WorkSafe New Zealand [2021] NZHC 902 (High Court judgment).Rule 25 application[5] Mr Shaw's comprehensive written submissions in support of the application tohave 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 disclosureof relevant documents in the District Court.(b) In the District Court, counsel for WorkSafe New Zealand did not arguethere had been a lawful delegation by the Board of WorkSafeNew Zealand to the Chief Executive to appoint the WorkSafeinspectors in this case.(c) During the hearing of the appeal, counsel for WorkSafe New Zealandsought and was granted leave to adduce documents showing the Boardof WorkSafe New Zealand had delegated to its Chief Executive thepower to appoint WorkSafe inspectors.(d) At the trial, delegation had been expressly disavowed by WorkSafeNew Zealand as a ground of valid appointment of the inspectors.(e) The application for leave involves matters of general or publicimportance.(f) There is a real risk that a miscarriage of justice has occurred throughwrongful conviction.Analysis[6] In McAllister v R,4 this Court signalled that when considering applications forleave to bring a second appeal against conviction under s 264(2) of the CriminalProcedure Act 2011, the Court intends "to deal with leave applications on the paperswhere the issues involved make that appropriate".54 McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764.5 At [45].[7] Factors that may assist in determining whether or not an application for leavecan 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 withthe application for leave on the papers. Our reasons for reaching this conclusion are:(a) We have every confidence that counsel will provide clear andcomprehensive written submissions.(b) We have the benefit of two judgments from the courts below whichassist in understanding the issues that Mr Sproull wishes to advance inthis 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 aconsequence, the application for leave to appeal will be dealt with on the papers. Thatwill occur on 11 November 2021.[11] Mr Shaw is to file his submissions in support of the application for leave by30 September 2021.[12] Ms Woods is to file her submissions in response by 21 October 2021.Solicitors:WorkSafe New Zealand, Auckland for Respondent