MARITIME NEW ZEALAND v GLASS BOTTOM BOAT LTD [2019] NZHC 81

MARITIME NEW ZEALAND v GLASS BOTTOM BOAT LTD [2019] NZHC 81 [5 February 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECIV-2018-404-000600[2019] NZHC 81BETWEEN MARITIME NEW ZEALANDAppellantAND GLASS BOTTOM BOAT LIMITEDRespondentHearing: 13 September 2018Appearances: R E Schmidt-McCleave for AppellantH M Campbell and K M Proctor-Western for RespondentJudgment: 5 February 2019JUDGMENT OF COURTNEY JThis judgment was delivered by Justice Courtneyon 5 February 2019 at 4.00 pmpursuant to R 11.5 of the High Court RulesRegistrar / Deputy RegistrarDate..Introduction[1] On 30 January 2017, a Maritime NZ (MNZ) inspector issued Glass BottomBoat Ltd (GBB) with an Improvement Notice and a Prohibition Notice in relation toits commercial maritime services in the Goat Island Marine Reserve north ofAuckland. The notices were issued under the Health and Safety at Work Act 2015(HSW Act). In April 2018 Judge M E Sharpe allowed GBB's appeal against theissuing of the notices1. MNZ appeals that decision and seeks orders setting aside theDistrict Court decision and reinstating the Prohibition Notice.2[2] The grounds of appeal are that the Judge erred by:3(a) failing to conduct the appeal on a de novo basis;(b) holding that the Inspector was required to identify a specific breach ofthe HSW Act in issuing the Improvement Notice;(c) wrongly interpreting the word "unreasonable" in s 135 of the HSW Act;(d) wrongly identifying the relevant statutory duty on GBB;(e) finding that because there had been no previous accidents there was no"imminent or immediate" safety risk justifying the issuing of aProhibition Notice under s 103 of the HSW Act.[3] The first appeal to the District Court was brought under s 135 of the HSW Act.Section 135 does not expressly permit or prohibit a second appeal. Section 124 of theDistrict Court Act 2016 provides a general right of appeal to the High Court against adecision of the District Court where no other enactment expressly confers a right ofappeal or expressly provides there is no right of appeal. Because the HSW Act doesnot expressly permit or prohibit second appeals, s 124 of the District Court Act governs1 Glass Bottom Boat Ltd v Maritime New Zealand [2018] NZDC 4351.2 The Improvement Notice has since expired and so cannot be set aside.3 A further ground of appeal was abandoned during the course of the hearing.the appeal.4 Although this appeal is a second appeal, it appears that a general right ofappeal exists without the constraints usually applying to second appeals. The correctapproach is therefore that described in Austin, Nichols & Co Inc v Stichting Lodestar;if MNZ persuades me that the District Court's decision is wrong it will be entitled toa fresh assessment in this Court.5Relevant backgroundThe Goat Island Reserve and its use[4] The area known as Goat Island Marine Reserve is also known by a number ofnames – Cape Rodney-Okakari Point Marine Reserve, Goat Island Marine Reserveand Leigh Marine Reserve (the Reserve). Within the Reserve is a beach with GoatIsland across from the beach.[5] GBB runs sightseeing tours in a glass bottom boat, the Aquador, in the Reserve.It has operated in the Reserve since 1979, though GBB only bought the boat and thebusiness in October 2013. The Aquador is the only commercial vessel operating toursin the Reserve. The boat's glass bottom allows passengers to view the Reserveunderwater while remaining dry. It is designed to operate within the Reserve andthrough the Goat Island channel. It has a shallow draught to enable it to safely traversethe channel at all times. The boat is said to only travel at five knots because bubblesaccumulate under the glass if that speed is exceeded, which makes it difficult to seethe bottom. Especially through the channel, the boat generally travels at a speed ofonly three knots. The channel between the beach and Goat Island is also popular withother recreational water users, including swimmers, snorkelers and divers. TheAquador operates in the same water space as these other recreational users. A numberof commercial operators hire out kayaks, stand up paddle boards, snorkels and divetours. In addition, recreational and commercial boat owners pass through the channel.The area is especially busy between December and February.4 This is the approach also taken by Dobson J in Talley's Group Ltd v WorkSafe New Zealand [2018]NZHC 1565.5 At [23].[6] Around 300,000 people visit Goat Island each year and it was usual for thereto be a few complaints each year, generally from or instigated by local commercialusers of the Reserve competition with the Aquador. However, over the entire time theboat had been operating in the Reserve, it had never struck a person.[7] Self-evidently, however, the operation of a commercial motor vessel in thesame area as swimmers and divers creates safety risks. The Aquador is designed toload and unload passengers from the beach, which involves the boat passing throughswimming and diving areas. It has prop guards which are permanently attached thevessel and which surround the propellers to prevent the propellers hitting swimmers.In peak times, it was GBB's practice to have an extra crew member who acted as a"spotter" of people in the water.[8] At the relevant time, GBB's operations manual referred to the following safetymeasures:(a) A sign on the beach by the boat ramp informs beachgoers of the tourschedule.(b) 15 to 20 minutes before the boat departs, the skipper confers regardingweather conditions, density of reserve visitors, presence of otheroperators, boating schedule and how many trips are planned.(c) The boat crew guide people in the water out of the path of the boat asit moves away from shore.(d) A whistle is used along with voice and arm gestures to gain the attentionof those in the water to encourage them to move away and alert themto the direction the boat is heading. In failure of that, a steel bar tappedon the aluminium surface of the boat is used to alert those in the water,as it can be heard underwater.(e) The boat crew are tasked with keeping an eye out for problems. Thisincludes informing the skipper of any snorkelers, kayakers or divers inthe water as the boat is in motion, loading and unloading. Crew are notto assume the skipper has seen what other crew members haveobserved.(f) Radio contact between shore and boat crew is required when the captainarrives to enquire about water conditions (visibility, wind, swell,swimmers etc); the tour returns through the channel to inform theskipper of any snorkelers, kayakers, divers in the water; and tocommunicate with the skipper when clearing the beach.(g) Swimmers are to be kept at a safe distance from propellers, taking intoaccount water and vessel movement. A distance of three metres isrecommended.(h) Distance is to be used as a guide: 15 metres – beware, 10 metres – alertthe skipper, three metres – neutralise the engines.Complaints about the Aquador[9] Between late December 2016 and early January 2017, MNZ receivedcomplaints regarding GBB's operation. The complaints related to alleged close callsor about the boat berthing or moving too close to people in the water, or its movementsrequiring water users to take evasive action.[10] MNZ's inspector, Mr Patterson, was tasked with investigating the complaints.On 12 January 2017, he commenced a "working document" internal memorandum toMNZ Northern Compliance Manager, Mr Neil Rowarth, on the matter. He noted thatover the past six years there had been several reported incidents of the boat operatingin close proximity to swimmers, snorkelers, and guided groups within the reserve.Investigations of the incidents determined there were no compliance-based issues, butthere was an element of risk-based issues given the vessel operated in close proximityto swimmers, and because of a contributing factor the complaints identified, whichwas that the operator of the vessel would yell and behave aggressively towardsswimmers if the vessel approached them or vice versa.[11] Having observed the situation and spoken with swimmers and swim operatorsand reviewed previous contact with the operation, the Inspector determined that theprimary risk was propeller or vessel strike. Contributing factors were high density ofswimmers in the water, aggressive nature of the operators and no apparent alterationin process to accommodate high swimmer density, which indicated poor health andsafety management processes. The Inspector considered that the likelihood of severeinjury was probable. He considered that exposure to the risk could be described asimmediate or imminent.[12] On 19 January 2017, the Inspector called GBB's sole director, ScottPennington, and asked to meet. Mr Pennington was not available. The Inspectorclaimed that Mr Pennington was defensive when requested to provide informationregarding his operation. The same day, the Inspector emailed a request for informationabout the assessment of hazards and risks and associated procedures and processesrelating to the operation of the boat in close proximity to swimmers. He advised that,at first instance, he wished to engage with Mr Pennington to ensure the suitability ofthe assessment and mitigation process, and advised that he would provide anyeducation about those obligations.[13] Mr Pennington replied by email on 24 January 2017 with a document labelled"Chapter 3 Boat Beach ops" (the relevant part of the operation manual). He invitedthe Inspector to make suggestions. The Inspector considered that the manual did notfeature much relating to safety management of the vessel in close proximity toswimmers. He believed that the activity in the workplace involved a serious risk tothe safety of others and the operator appeared not to be meeting the requirements ofthe HSW Act. As a result, he began internal communications within MNZ as to theoptions and conditions for issuing notices under the HSW Act.The prohibition and improvement notices[14] On 26 January 2017, the Inspector emailed Mr Pennington, advising that hebelieved the information provided did not adequately demonstrate that the risksassociated with the operation of the vessel in close proximity to swimmers were beingmanaged as required under the HSW Act. He required further information andindicated that GBB could be in breach of the HSW Act. He advised that if GBB wasunable to provide any further information directly related to the management of therisk, MNZ may undertake compliance action against GBB.[15] Mr Pennington replied the next day, referring the Inspector to the operationsmanual already provided and the industry guidelines for vessel operations in thevicinity of swimmers. He advised that GBB had put recommendations from a 2016MTOC audit in place and had "a safe management structure in place".[16] At 7pm on 30 January 2017, the Inspector emailed Mr Pennington to say thathe would be available to meet the next day to discuss the request for information.Mr Pennington replied the next morning that he was unable to meet. The Inspectorissued the Improvement Notice and Prohibition Notice later that day.[17] The Improvement Notice was issued on the basis of the Inspector's belief thatss 306 and 36(2) of the HSW Act7 were being contravened or were likely to becontravened because there was limited or inadequate risk assessment andimplementation of processes and procedures for the hazards associated with operatingthe vessel in the vicinity of swimmers. It required GBB to conduct a risk assessmentof the hazards arising from operating the vessel in the vicinity of swimmers and toimplement controls for the risks identified. It recommended focusing on the areas ofswimmer density, and for GBB to consider restricting the operation of the vessel inareas where risks relating to operating the boat in the vicinity of swimmers exist.[18] The Prohibition Notice was issued on the basis that the same provisions werebeing or were likely to be contravened, and the activity that gave rise to the risk thatthose provisions were contravened was propeller strike or vessel strike due to theoperation of the vessel in the vicinity of swimmers. The same reasons for believingthe sections were infringed were given, namely that there was insufficient or6 Section 30 requires a person on whom a duty is imposed under the Act to eliminate risks to healthand safety so far as is reasonable practicable, and if it is not reasonably practicable to do so, thento minimise those risks so far as is reasonably practicable.7 Section 36(2) of the Act requires a PCBU (defined in s 17 as, inter alia, "a person conducting abusiness or undertaking") to ensure, so far as is reasonably practicable, that the health and safetyof other persons is not put at risk from work carried out as part of the conduct of the business orundertaking.inappropriate risk assessment and mitigation provided by the respondent. TheProhibition Notice prevented GBB from conducting vessel operations by way ofentering or transiting in the channel between Goat Island and the immediate foreshore.[19] On 13 February 2017, GBB applied for an internal review of the decisions toissue the notices. This review was completed by MNZ on 27 March 2017. Thereviewer made an amendment to the Improvement Notice but confirmed both notices.First ground of appeal — should the appeal have been conducted as a de novohearing?[20] Appeals to the District Court are governed by Part 18 of the District CourtRules. Rule 18.19 provides that an appeal is by way of rehearing i.e. the appeal isheard and determined on the basis of the record of the oral evidence given below,subject to the discretionary powers to rehear the whole or any part of the evidence oreven to receive further evidence.8 In such cases, an appellate court is slower to disturba discretionary decision of a court that has had the advantage of seeing and hearingthe witnesses.9[21] In the District Court, however, GBB asserted that the appeal should beconducted de novo i.e. an entirely new hearing where the appellate court may hear theevidence afresh and the parties are entitled not only to call the witnesses originallycalled but also further witnesses as they choose. The appellate court approaches thecase afresh and does not start from the presumption that the decision under appeal iscorrect. The onus is as it was in the original proceeding.10[22] The Judge agreed with GBB and held that because there was no hearing leadingto the decision to issue the notices GBB had had no real opportunity to put its caseforward:11In the present case, there was no hearing on which the decisions are based.The Appellant had no real opportunity to put its case forward. The authority8 See Housing New Zealand Corporation v Salt [2008] DCR 697 at [10]–[11], citing Shotover GorgeJet Boats Limited v Jamieson [1987] 1 NZLR 437 (CA) at 440.9 Shotover Gorge Jet Boats Limited v Jamieson [1987] 1 NZLR 437 (CA) at 440.10 At [10]. See also Chief Executive of the New Zealand Customs Service v Jury [2017] NZCA 356at [53].11 At [12] – 5.which made the decision was administrative. I agree with counsel for theAppellant: in such cases, natural justice requires that the opportunity to put itscase forward must be available on appeal.Pursuant to s 135(3) HSWA, the Court must enquire into the decision. AgainI agree with counsel for [MNZ] that this requires the Court to look beyondwhat was before the Inspector at the time he made the decision. The Courtcannot satisfy that requirement by treating this matter as an Appeal by way ofrehearing where it would consider the record before it to determine if thedecisions appeals from were reasonable. To this end I have read, heard andconsidered all the evidence proffered by the parties, including the Appellant'stwo affidavits, viva voce evidence of Mr Pennington and an affidavit on behalfof the Respondent.As I consider that s 135 (3) of the HSWA provides for a de novo Appeal, RuleDCR 18.19 does not apply.The Respondent neither seeks to defend or justify the decisions to issue theNotices. It assisted the Court by explaining the decision-making record andprovided statutory context to MNZ's role under the relevant legislation.[23] MNZ accepts the Judge's decision that the hearing should have been conductedde novo. Its complaint is that, despite concluding that the appeal should be conductedde novo, the Judge failed to conduct the hearing on that basis. Specifically, she didnot adjourn the matter to allow the parties to provide further evidence, with the resultthat the hearing was an amalgam of a de novo hearing and a rehearing, with theprocedure followed effectively that of a rehearing under Part 18 of the District CourtRules. For example, MNZ submits that evidence in the form of affidavits fromMr Patterson and Mr Pennington were filed with leave of the District Court pursuantto r 18.16.[24] It is correct that the Judge proceeded on the basis of both oral evidence fromMr Pennington and affidavit evidence from the Inspector; the hearing took place on23 and 24 January 2018, with the Inspector providing a second affidavit on 24 January2018. In her decision, the Judge held that the appeal was properly conducted de novo.She referred to the bundle, affidavit and Mr Pennington's viva voce evidence.[25] MNZ relied heavily on the process followed by the District Court Judge inTalley's Group Ltd v Worksafe NZ as showing that the Judge in this case had erred inher approach.12 In Talley's, Judge Zohrab did not rely on a bundle of documents as the12 Talley's Group Limited v Worksafe NZ [2017] NZDC 29068 affirmed in Talley's Group Limited vWorksafe NZ [[2017] NZHC 1565.Judge did here, but instead heard full viva voce evidence with cross-examination fromboth parties, including evidence from the relevant inspector, affidavit evidence fromthe internal reviewer who had confirmed the Inspector's decision and technical andexpert evidence.[26] However, simply because there was a full oral hearing in Talley's does not meanthat is required in every case. In Shotover Gorge Jet Boats Ltd v Jamieson the Courtof Appeal observed that a de novo hearing:13 would include a full hearing of oral evidence if any party so insisted There would of course be nothing to prevent the District Court, if the Judgesaw fit and the parties agreed, treating all or part of the evidence taken beforethe Authority as evidence for the purposes of the District Court hearing. Asregards at least some of the recorded evidence, that course might beconvenient. It could be highly desirable to save costs and unnecessaryrepetition of the same point of view.(emphasis added)[27] Whilst parties may seek a full hearing of oral evidence in a de novo hearing,there is no obligation on the Judge to require that if the parties do not wish it. It seemsclear that MNZ did not seek that. It knew that GBB wished to adduce oral evidenceand was permitted to do so. MNZ, however, filed an updating affidavit from theInspector on the second day of the hearing position but did not seek to adduce oralevidence. In these circumstances, I do not accept that the Judge's approach was wrong.[28] Finally, it is notable that in this Court, MNZ did not refer to any evidence itsays could or should have been adduced.[29] This ground of appeal fails.Second ground of appeal — does s 101 of the HSW Act require the Inspector toidentify a specific breach of the Act?[30] This ground of appeal relates to the Improvement Notice. Section 101provides:Power to issue improvement notices13 Shotover Gorge Jet Boats Limited v Jamieson [1987] 1 NZLR 437 (CA) at 440.(1) This section applies if an inspector reasonably believes that a person –(a) is contravening a provision of this Act or regulations; or(b) is likely to contravene this Act or regulations.(2) The inspector may issue an improvement notice requiring the personto –(a) remedy the contravention; or(b) prevent a likely contravention from occurring; or(c) remedy the things or activities causing the contravention orlikely to cause a contravention.[31] The Improvement Notice stated:I Sean Patterson,being an inspector appointed under s 163(1) of the Health and Safety at WorkAct 2015) ("the Act") reasonably believe that you,(a) "are contravening a provision of the Act or regulations made underthe Act, orand require you to remedy this actual or likely contravention, or thethings or activities causing or likely to cause contraventionLegislative provision s 30 s 36(2)How the legislative provision is or is likely to be contravened:Limited or inadequate risk assessment and implementation of processand procedures for the hazards associated with the operation of vesselin the vicinity of swimmers.Recommended prevention or remedial measuresConduct a risk assessment of the hazards arising from operating avessel in the vicinity of swimmers and the mitigation of these risks,focus on the areas swimmer density, and consider restricting theoperation of the vessel in areas were (sic) these risks exists (sic).[32] The Judge held that because s 101 specifically provides that it applies if "aninspector reasonably believes that a person is contravening or likely to contravene aprovision of the Act", the Court must enquire into whether the Inspector had identifieda specific breach which was occurring.14 She found that the events of January 2017were such that the Inspector had not given GBB a reasonable opportunity to provide14 At [45].evidence of "implementation of process and procedures for the hazards associatedwith the operation of a vessel in the vicinity of swimmers", as recorded in theimprovement notice. No meeting had taken place and the Inspector should have givenGBB more notice of the meeting or tried to arrange a meeting Mr Pennington couldattend once he had ascertained Mr Pennington's unavailability. Mr Pennington shouldalso have been given the opportunity to answer the four complaints MNZ had received.[33] The Judge found that:15There is no provision in the HSWA relating to a risk assessment. TheInspector's view that the Appellant's risk assessment was not up to hisstandard or in the form that he preferred was irrelevant as lack of a riskassessment was not and could not of itself be a breach of the HSWA.[34] The Judge referred to Rovera Scaffolding ACT Pty Ltd v Director General ofthe Chief Minister, Treasury and Economic Development Directorate (administrativereview),16 where the Court held in relation to similar Australian legislation that animprovement notice was not properly issued if the perceived risk was not a breach ofthe Act. The Judge agreed, and considered that because the Inspector did not identifya specific or likely breach of the Act, he could not have reasonably believed GBB wascontravening or likely to contravene a provision of the HSW Act.17[35] MNZ argued that s 101 did not necessarily require the Inspector to inquire intowhether a specific breach of the HSW Act was occurring but rather, that it was for himto reasonably believe that the person is contravening or likely to contravene aprovision of the Act. It distinguished Rovera Scaffolding on the basis that the relevantAustralian legislation expressly required an inspector to reasonably believe that theperson "is contravening or has contravened" the Act before an improvement noticecan be issued. In comparison, s 101 permitted a notice to be issued for a "likelycontravention".15 At [55].16 Rovera Scaffolding ACT Pty Ltd v Director General of the Chief Minister, Treasury and EconomicDevelopment Directorate (administrative review) [2016] 127 ACAT (ACT Civil andAdministrative Tribunal).17 At [56]–[57].[36] Ms Schmidt-McCleave, for MNZ, submitted that the Inspector was notsuggesting that the HSW Act required a risk assessment in a particular form and thefailure to so provide was a breach. Rather, he was not satisfied that adequateassessment of the risk of operating the Aquador in the vicinity of swimmers had beenconducted. Consistent with this, the Inspector recommended remedial measures suchas conducting a risk assessment and implementing controls for the identified risks, andthat these should focus on the areas of swimmer density, and that restricting theoperation of the vessel in such areas should be considered. She argued that areasonable belief by the Inspector that there was a failure to conduct such a riskassessment would contravene, or be likely to contravene, ss 30 and 36(2) of the HSWAct.[37] Ms Campbell, for GBB, submitted that the contravention or breach must bedescribed with sufficient particularity to enable the duty holder to be able to remedythe breach. She submitted that to have a "reasonable belief" under s 101, the Inspectorneeded to turn his mind to the elements of the provisions allegedly being contravened,and be satisfied that the elements of that test are met and argued that this is supportedby s 102, which requires inspectors to identify the section being contravened and how.She pointed out that, as an example, in Talley's Group Ltd v WorkSafe New Zealand,the inspector had supported his view that s 36(1) was not being complied with becausehe considered the elements of s 36(1) were met to the extent necessary by identifyingTalley's failure to take two specific practical steps that would have ensured, as far asreasonably practicable, the safety of workers, in relation to a particular piece ofmachinery.18[38] I agree with GBB that the specific contravention or likely contravention of theAct must be identified. If it is not, there is no objective basis on which the recipientof the notice can improve or that improvements can be measured. I therefore agreethe Inspector was wrong to rely on the failure to perform an adequate risk assessmentas being a breach or likely a breach; such an omission is merely the backdrop to anyspecific breach or likely breach.18 Talley's Group Ltd v WorkSafe New Zealand [2017] NZDC 29068 at [104]–[106].[39] It is true that in the Prohibition Notice the Inspector identified the risks of boator propeller strike to swimmers. If he reasonably formed the view that there wasinsufficient evidence of those risks being minimised or adequate mitigation measuresbeing put in place, he could reasonably have believed that ss 30 and 36(2) of the Actwere being breached but the identification of those grounds in the Prohibition Noticedoes not affect the invalidity of the Improvement Notice.[40] This ground of appeal fails.Third ground of appeal – the Judge's interpretation of "unreasonable" in s 135[41] Section 135 of the HSW Act provided the jurisdiction for GBB to appealagainst the internal review of the Inspector's decision:(1) An eligible person may appeal to [the District Court] against anappealable decision on the grounds that it is unreasonable.[42] The Judge held that "unreasonable" in s 135:19 should be interpreted as carrying the ordinary meaning of something whichgoes beyond the bounds of what is reasonable as opposed to the public lawdefinition of decisions taken in bad faith, irrational decisions or givinginappropriate weight to irrelevant consideration (Wednesbury unreasonable).[43] The Judge then examined the statutory context and the circumstances in whichthe notices were issued and concluded that there had been substantiveunreasonableness in the issuing of the Prohibition Notice and procedural unfairness inthe issuing of the Improvement Notice; she considered that the Inspector hadpredetermined the outcome, there was a lack of evidence to support his views aboutGBB's attitude to health and safety and a lack of due process in the investigativeprocess.[44] MNZ submitted that Judge Sharpe erred in her interpretation of "unreasonable"in s 135. It maintained that, leaving aside whether Wednesbury unreasonablenessapplies, s 135 requires public law considerations to be applied in an appeal broughtunder that section; factors such as predetermination, bad faith and breaches of natural19 At [80].justice are to be considered. However, MNZ went on to submit that, notwithstandingthat error, the Judge actually applied public law considerations in the ultimate decisionin some respects such as the breach of natural justice and predetermination.Ms Schmidt-McCleave submitted that consideration of the notices under a full publiclaw framework would have resulted in a determination that the decisions to issue thenotices were reasonable.[45] GBB argued that MBZ had misinterpreted the Judge's decision and that theJudge, while excluding Wednesbury unreasonableness, had nevertheless applied a"fairly orthodox public law-type consideration". Contrary to MNZ's assertion, shehad not rejected the public law definition of unreasonableness.[46] In my view, the way the Judge expressed herself at [80] of her decisionsuggested a rejection of the public law approach to the concept of unreasonableness.If that was intended, it was an error. I agree with the statements in Talley's Group Ltdv WorkSafe New Zealand in which Judge Zohrab accepted the parties' submission thatthe decision in issue would have been unreasonable if it met the conventional test forunreasonableness in administrative law:20(1) The statutory basis for the issuing of a notice did not exist, i.e. areasonable belief that the person conducting the business or undertaking("PCBU") was breaching the Act or Regulations, or was likely to be breachingthe Act or Regulations by continuing to operate the conveyor without takingthe corrective action required by the notice;(2) In reaching that decision, and having regard to all of the informationabove available to them, the decision maker:(a) Took into account irrelevant factors;(b) Failed to take into account relevant factors; or(c) Erred in the interpretation or application of the law; or(d) Exhibited an improper purpose or motive or bias; or(e) The decision maker made a decision that no reasonable decision-maker could have made.20 At [42].[47] On the appeal, Dobson J noted that the parties had agreed that "unreasonable"reflected the administrative law notion of unreasonableness.21[48] However, two things suggest that the Judge may not have intended to rejectpublic law principles. First, it is clear that the Judge was relying on the commentaryfrom Mazengarb's Employment Law, which states, in relation to s 135, that:The word "unreasonable" has acquired the status of a term of art in public lawas applying in extreme cases to decisions taken in bad faith; or which areirrational; or which give inappropriate weight to irrelevant considerations [49] Secondly, the Judge actually proceeded on the basis of public law principles,finding unreasonableness as a result of breach of natural justice, predetermination andlack of evidence. As I have noted, MNZ recognised this fact.[50] Therefore, all that remains of MNZ's argument on this ground of appeal is itsassertion that "a consideration of the Notices under a full public law framework wouldhave resulted in a determination that the decisions to issue the notices werereasonable". However, no argument was advanced to show what errors the Judgemade in her assessment of the case that would have led to that finding. These findingswere ones based on findings of fact and I am not satisfied that the Judge made anyerror in this regard. In these circumstances, there is no basis on which to concludethat the Judge's error in explaining the approach she intended to take led to an error inher ultimate decision.[51] This ground of appeal fails.Fourth ground of appeal – the interaction between ss 30, 36 and 37.[52] The Prohibition Notice was issued pursuant to ss 105(1)(a), 30 and 36(2).Section 105(1)(a) permits an inspector to issue a prohibition notice if he or shereasonably believes that:(i) an activity is occurring at a workplace that involves or will involve aserious risk to the health or safety of a person arising from animmediate or imminent exposure to a hazard; or21 At [9].(ii) an activity may occur at a workplace that, if it occurs, will involve aserious risk to the health or safety of a person arising from animmediate or imminent exposure to a hazard; [53] In comparison to the Improvement Notice, the Prohibition Notice identifiedthe risk and the reasons for his belief that the risk existed;Matter or activity that does or will give rise to the risk:Propeller strike or vessel strike due to the operation of a vessel in the vicinityof swimmers.Basis for believing grounds exist:Insufficient or inappropriate risk assessment and mitigation provided byPCBU, Observation by Inspector of site and work being undertaken.[54] Under s 36(2), GBB was required as a PCBU to: ensure, so far as is reasonably practicable, that the health and safety of otherpersons is not put at risk from work carried out as part of the conduct of thebusiness or undertaking.[55] Section 37(1) requires:A PCBU who manages or controls a workplace must ensure, so far as isreasonably practicable, that the workplace the means of entering and exitingthe workplace and anything arising from the workplace are without risks tothe health and safety of any person.[56] Section 30 sets out the principles applying to duties imposed by the Act:(1) A duty imposed on a person by or under this Act requires the person–(a) to eliminate risks to health and safety, so far as is reasonablypracticable; and(b) if it is not reasonably practicable to eliminate risks to healthand safety, to minimise those risks so far as is reasonablypracticable.(2) A person must comply with subsection (1) to the extent to which theperson has, or would reasonably be expected to have, the ability toinfluence and control the matter to which the risks relate.[57] However, more than one person may have the same duty imposed by or underthe Act at the same time.22 As MNZ acknowledged, other PCBUs operated in the samearea and were subject to the same duties as GBB. In that situation, s 33(3) applies:If more than 1 person has a duty for the same matter, each person –(a) retains responsibility for that person's duty in relation to the matter;and(b) Must discharge that person's duty to the extent to which the personhas the ability to influence and control the matter or would have hadthat ability but for an agreement or arrangement purporting to limit orremove that ability.[58] In determining whether it was reasonable to issue the Prohibition Notice, theJudge held that:23[GBB] lacks the ability to control and influence who enters the marine reserveor the channel as a work place. There are others who also operate commercialbusinesses in the reserve. They too, have an obligation to eliminate orminimise the risks to health and safety so far as reasonably practicable, to theextent of their ability.The duty on [GBB] to ensure so far as reasonably practicable that the healthand safety of other people is not put at risk from the work carried out as partof the conduct of the business needs to be read in light of the duty to managerisks set out in s 30, qualified by the extent to which the PCBU has the abilityto control and influence the matter, together with the duty imposed by s 37 onPCBU who have control of a work place.I find that when the Inspector determined there was a specific breach ofHSWA, he failed to take into account the competing and overlapping dutiesdiscussed above. He also failed to take account of the many other recreationalboats which provide swimmers with exposure to (arguably greater) hazards.Yet no attempt to modify or regulate their actions appears to have beencontemplated.[59] The Judge then noted that if GBB is required to have things like underwatercameras, signage, and underwater acoustic systems (as indicated at the hearing), thenall other motor-powered vessels, whether recreational or otherwise, should be subjectto the same requirements. She considered GBB was not treated even-handedly, givenit was issued a prohibition notice when other recreational and commercial motor-powered vessels in the area, which do not have greater protections against hazardsthan GBB, were not treated identically.22 Health and Safety at Work Act 2015, s 33.23 At [93]–[95].[60] MNZ submitted that the relevant duty was that arising under s 36(2) i.e. thework being carried out as part of the business or undertaking. Ms Schmidt-McCleaveargued that GBB had control over these risks. She submitted that the Judge hadwrongly treated the relevant duty as including that arising under s 37 and s 30(2) asapplying to the workplace (over which GBB does not have control because of thepresence of other boats and people). In any event, the fact that GBB could not fullycontrol the area of operation, i.e. the channel, increased the importance of effectivelyaddressing the risks by ensuring that they provided for the presence of other operatorsand visitors in the area.[61] I do not agree that the only relevant duty is that arising under s 36(2). TheAquador was, clearly, a workplace in its own right. GBB owed duties in respect ofwhat happened on board the vessel as well as the duties relating to how it was operatedin terms of safety to other boat users and swimmers. Nor, given the various activitiesthat take place concurrently in the Reserve, could it be said that GBB had completecontrol and influence over the risks identified in the Prohibition Notice. The Judgeidentified the risk that needed to be managed was the risk of harming swimmers bycontact with the boat or propellers,24 and also noted that GBB neither managed orcontrolled the water of the reserve. Undoubtedly, GBB had significant control overpotential interaction between other users of the area and the Aquador but I do notconsider that the Judge made any error in identifying s 30(2) as a relevantconsideration.[62] I do not agree with the Judge's finding that all other vessels operating in thearea, including recreational users, should be subject to the same requirements, such asunderwater cameras and acoustic systems, as the Aquador. However, it is evident from[98] – [100] of the decision that the Judge was satisfied that GBB had discharged itsduty to minimise the risks created by its operation.[63] This ground of appeal fails.24 See [85], [89] and [91].Fifth ground of appeal —the finding that there was no "imminent or immediate"safety risk[64] As noted earlier, s 105(1)(a)(i), which grants an inspector the power to issue aprohibition notice, requires that the inspector reasonably believe that an activity isoccurring at a workplace and involves or will involve a serious risk to the health orsafety of a person "arising from an immediate or imminent exposure to a hazard".[65] As part of her reasoning that the Inspector acted unreasonably in issuing theProhibition Notice, the Judge held that:25In the Memorandum, the Inspector stated that the exposure to the risk couldbe described as imminent or immediate and therefore the issue of a ProhibitionNotice was prescribed by the guidance material. However, it is unclear howthe Inspector considered that the exposure was imminent or immediate and Ido not understand how or why he reached that conclusion.As there have been no accidents or even what might be described as "closecalls", it is hard to see that there was urgency to issue a Prohibition Notice.Equally, I see no evidence of an imminent or immediate exposure to a hazardrequiring the immediate cessation of work by [GBB] in the channel.[66] MNZ submitted that the Judge failed to recognise that the Inspector's focuswas the elimination or minimisation of risk, being a stated purpose of the HSW Act.Ms Schmidt-McCleave argued that the words in s 105 "imminent" and "immediate"must be read in light of the purpose in s 3(1)(a), which provides that the main purposeof the Act is to provide for a balanced framework to secure the health and safety ofworkers and workplaces by – "protecting workers and other persons against harm totheir health, safety, and welfare by eliminating or minimising risks arising from workor from prescribed high-risk plant". MNZ submitted that the Judge overlooked thefact that the "elimination or minimisation of risk" was the Inspector's focus whenissuing the prohibition notice, which is in keeping with the purpose of the Act.26Further, MNZ submits that to require urgency based on "accidents" or "close calls"before a prohibition notice can be issued is to misinterpret the test to be applied by an25 At [68] and [100].26 Section 3(1)(a) provides that the main purpose of the Act is to provide for a balanced frameworkto secure the health and safety of workers and workplaces by – protecting workers and otherpersons against harm to their health, safety, and welfare by eliminating or minimising risks arisingfrom work or from prescribed high-risk plant".inspector under s 105 of the HSW Act. Just because there have been no prior accidents,does not mean there was no imminent or immediate safety risk.[67] In my view MNZ has conflated the reasons that the Judge gave for her finding.She did not find that the lack of prior incidents meant that there was no imminent orimmediate safety risk. She found that there was no evidence of imminent or immediateexposure to a hazard that required immediate cessation of work. Clearly, she did notaccept the evidence that MNZ relied on about the perceived risk as demonstrating theexistence of that risk. In this regard, Ms Campbell pointed out that MNZ receivedsome of the complaints in December 2016 but did not contact GBB until mid-January2017, suggesting that any risk was not imminent.[68] In any event, I see no error in taking into account that there had been noprevious incidents in determining whether sufficient measures were in place, andwhether swimmers coming into contact with the boat (i.e. the hazard) was imminentor immediate. On that basis, despite the extent of the potential harm being significant,as it could cause severe injury, the fact that there was no evidence to support animminent or immediate exposure was relevant. While risks operate prospectively, thefact that nothing had happened in the past over a long period of time was relevantinformation to inform the assessment of that risk.[69] The Inspector had received four complaints about the use of the Aquador.While he noted in his internal report that there had been previous incidents of theAquador operating in close proximity to water users over the past six years, noneinvolved compliance-based issues. The complaints did not identify very close calls orsomething that might suggest there might be imminent or immediate exposure. Iaccept that the Inspector was entitled to make an independent assessment of whethera prohibition notice was required; as MNZ identified, the point of a prohibition noticeis to quickly prevent serious risks to health or safety continuing. Ms Schmidt-McCleave submitted that, in light of the complaints received about the Aquador'sactivities, the Inspector's observations and the lack of reassurance he received aboutrisk minimisation, it was reasonable for the Inspector to believe that he had groundsto act under s 105(1)(a). But on appeal that is not the question; MNZ needed topersuade me that the Judge's assessment of the evidence before her was wrong, whichit has not done.[70] This ground of appeal fails. For reasons I explain under the seventh ground ofappeal, even if it had been reasonable to consider there was an immediate or imminentexposure to the hazard, I consider there are other procedural improprieties that renderany such belief unreasonable.Sixth ground of appeal – finding of breaches of natural justice[71] The Judge found that the Inspector's failure to give Mr Pennington theopportunity to respond to the complaints against GBB and taking action against GBBbut not other vessel operators in the area amounted to breaches of natural justice.MNZ submitted, first, that these findings were wrong. Ms Schmidt-McCleave pointedto the evidence that the Inspector had made more than one attempt to arrange a meetingwith Mr Pennington to discuss the complaints. Although that is correct,Mr Pennington's evidence was to the effect that he had been unable to meet on the dayproposed and MNZ had not given him details of the complaints but simply proceededto issue the notices without giving him a fair opportunity to respond to them.[72] For example, Mr Pennington said in evidence that:Had I had the opportunity with [the Inspector] at the beginning, we would'veidentified what exactly it as that he was asking for and we have thatinformation.[73] Mr Pennington also said that the Inspector's concern regarding a lack ofinstruction to skippers regarding what to do with swimmers was contained in otherchapters of the manual and he would also orally brief skippers and undergo a formaltraining procedure with them. Mr Pennington said: it sounded like [the Inspector] was asking for something specific which wedidn't quite understand what he was asking for, and there again I'd just clarifyit was so open-ended that we didn't really know what to give him. So that'swhy we sent him that ops.[74] Further, while there was no documentation making the propeller guard propsuse mandatory, he used them as a matter of course in any event. In terms of theInspector's concern about skippers knowing what speed to travel at, the boat itself alsocould not operate above three to five knots in order to operate properly for tours, andwas otherwise restricted to five knots in the area due to the Navigation Safety Bylawand Maritime Rules, Part 91.[75] As the Judge identified, there was no opportunity for Mr Pennington to answerthe complaints MNZ had received, which may have clarified what procedures were(or were not) in place. The investigation occurred over the course of roughly twoweeks, during the high season of GBB's business. The Judge heard fromMr Pennington. Clearly, she accepted his account. There is no basis on which tointerfere with that finding.[76] MNZ also argued that that the Judge was wrong to find that the issuing ofnotices was discriminatory as a result of treating GBB differently from other vesselsusing the area; such a finding would unduly encroach on the role of the regulator andthe balancing exercise (including limited resources) the regulator must undertakewhen considering when to take enforcement action and what type of action toundertake. I accept this submission. However, it does not affect the outcome thatfollows from my rejecting the previous submission. I am not persuaded that theJudge's finding that there was a breach of natural justice in relation to allowing GBBto respond to the complaints was wrong.[77] Finally, MNZ submitted that, in any event, breaches of natural justice werecured by the right of appeal.27 Although it is correct that procedural defects may becured by the opportunity to examine the circumstances in full in the context of anappeal, that principle does not assist MNZ. The breaches of natural justice found tohave occurred were addressed by the Judge's decision to quash the notices. But thatdoes not mean that MNZ can assert that no breaches occurred.[78] This ground of appeal fails.27 Citing Calvin v Carr [1980] AC 574.Result[79] The appeal is dismissed.[80] GBB is entitled to costs. Parties may file memoranda as follows:(a) on behalf of GBB, within 10 working days of the date of this judgment;(b) on behalf of MNZ, within a further 10 working days; and(c) any reply within a further seven working days.____________________P Courtney J