OFF ROAD NEW ZEALAND (1992) LIMITED v THE MACHINERY INSPECTOR [2019] NZHC 1996

OFF ROAD NEW ZEALAND (1992) LIMITED v THE MACHINERY INSPECTOR [2019] NZHC 1996 [15August 2019]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2018-485-000819[2019] NZHC 1996UNDER the Judicial Review Procedure Act 2016IN THE MATTER of a decision pursuant to Regulation 8 of theAmusement Devices Regulations 1978BETWEEN OFF ROAD NEW ZEALAND (1992)LIMITEDApplicantAND THE MACHINERY INSPECTORFirst RespondentWORKSAFE NEW ZEALANDSecond RespondentHearing: 1–2 July 2019Appearances: P V Cornegé and C W Grenfell for ApplicantT G H Smith and N L K Szeto for First and Second RespondentsJudgment: 15 August 2019JUDGMENT OF COOKE JTable of contentsA. Relevant legislative provisions [4]B. Factual background [7]C. Nature of the challenge [27]D. Regulations mandate seatbelts [30]E. Does s 21A apply [35]Is a go-kart an amusement device? [37]Problems with respondents' approach [41]The Respondents' answers [52]Are these answers persuasive? [58]Is there a regulatory hole? [64]Applicant's other challenges [72]Conclusion [75][1] Off Road New Zealand (1992) Limited (Off Road) operates an outdoor go-karting facility near Rotorua under the trading name "Raceline". Members of thepublic pay to be permitted to drive a go-kart on a track that has been constructed tocreate a simulated race environment. The facility has been operating since 2010.[2] Over a number of years there has been a controversy surrounding the need, orappropriateness, of the go-karts of the kind operated at Raceline to be fitted withseatbelts. That is not an issue that has been limited to Off Road's activities, as theappropriateness of fitting seatbelts to go-karts is an issue of debate not only inNew Zealand, but internationally. Off Road is of the view, which is shared by others,that requiring seatbelts to be worn by the drivers of go-karts does not improve safetyand in fact decreases it. The view is that it is safer during any accident for the driverto be thrown free from the go-kart rather than being belted into it (in much the sameway as it would be unsafe for motorcyclists on the open road to be belted into theirmotorbike). That is particularly so in relation to go-karts that travel at higher speeds.[3] The first respondent is the Machinery Inspector appointed pursuant to theHealth and Safety at Work Act 2015. Off Road challenges two decisions made by himunder powers I will address in detail below. On 5 August 2016 he made a decisionrequiring Off Road to fit seatbelts and roll bars on its go-karts by 5 February 2017.There followed a period of engagement between Off Road and the respondentsconcerning that decision during which time the decision was not enforced. Followingthat engagement, a second decision was made by the first respondent on 19 July 2018effectively confirming the first decision. Off Road challenges both decisions by wayof judicial review.A. Relevant legislative provisions[4] The key legislative provisions relevant to this case are set out in the nowrepealed Machinery Act 1950. Section 21A of that Act provided:21A Regulation of amusement devices(1) In this section—amusement device means an appliance to which the motion of aprime mover is transmitted and which is used, or designed or intendedto be used, for the amusement, recreation, or entertainment of personsbeing carried, raised, lowered, or moved by the appliance or any partthereof while it is in motion; and includes the prime mover,transmission machinery, supporting structure, and any equipmentused or intended to be used in connection therewithlocal authority means a territorial authority within the meaning of theLocal Government Act 2002.(2) Every person commits an offence against this Act who erects for thepurposes of operation or operates any amusement device unless—(a) it is registered under this section and a certificate of registrationin respect of the device is for the time being in force; and(b) a permit has been issued by the appropriate local authority forthe erection and operation of the device and the permit is forthe time being in force.(3) Application for registration of an amusement device shall be made inthe prescribed form to the Inspector by or on behalf of the owner ofthe amusement device and shall be accompanied by documentaryevidence that the device can be erected and operated without dangerto persons operating or using the device or in the vicinity thereof.(4) If the Inspector is of the opinion that an application is in order, he shallissue to the applicant, either unconditionally or subject to suchconditions as are specified therein, a certificate of registration in theprescribed form.(6) Before commencing to operate an amusement device the owner shallobtain from the local authority having jurisdiction in the localitywhere the device is to be operated a permit in the prescribed form.(7) On application in that behalf by or on behalf of the owner of theamusement device, accompanied by such evidence as may beprescribed, including evidence,—(a) that a certificate of registration under this section is in force inrespect of the device; and(b) that, having regard to the situation in which the device iserected, the device can be operated without danger to personsoperating or using the device or in the vicinity thereof—the local authority shall issue a permit in the prescribed form.(9) Any certificate of registration or permit under this section may becancelled by the issuing authority if—(a) the owner is convicted of an offence against this section; or(b) the amusement device can no longer, in the opinion of theissuing authority, be operated safely.(10) Where an amusement device is materially altered or is repaired aftersuffering damage necessitating repair by welding or by thereplacement of a load bearing part other than a bolt, the owner shallnotify the Inspector, who may require the owner, before operating thedevice, to produce evidence that the device can be safely operated.(11) The Governor-General may from time to time, by Order in Council,make regulations for all or any of the following purposes:(c) prescribing conditions to which certificates of registration andpermits under this section shall be subject:[5] Section 21A was inserted into the Machinery Act 1950 by the MachineryAmendment Act 1963 with effect from 1968. Regulations contemplated by s 21A(11)were promulgated. They are now the Amusement Devices Regulations 1978 (theRegulations). I will not set out the relevant provisions of the Regulations at this point,although they are significant for the issues that arise.[6] The Machinery Act 1950 was repealed by the Health and Safety at Work Act2015, but under cl 2(3) of sch 1 of that Act, s 21A is treated as continuing in force untilthe Regulations are revoked, and under cl 2(1)(a) the Regulations are to be treated asRegulations made under the Health and Safety at Work Act 2015. The legislation isadministered by the second respondent (WorkSafe).B. Factual background[7] The factual background is complex, and to some extent controversial. I willnot address that background as fully as the parties did, but I will identify some of themore important matters.[8] Off Road commenced research into the operation of a go-kart facility in 2009and decided to proceed. Under the Regulations an engineer must certify that anamusement device subject to the Regulations can be erected and operated withoutdanger to persons operating or using it in its vicinity, and issue a certificate with anyconditions (rr 5–7). The application is then referred to the Inspector who registers theamusement device subject to any additional conditions (r 8). An engineer wasinstructed by Off Road for the purposes of the original certification, and he issued acertification without a requirement to fit seatbelts in July 2010. In response WorkSafeadvised that it had a policy requiring the fitting of seatbelts. It nevertheless permittedOff Road to commence operation without seatbelts, and referred the issue forconsideration by a Technical Interest Group of the Professional Engineers ofNew Zealand (IPENZ). WorkSafe did, however, indicate that if the engineer did notchange his view it might make a complaint to IPENZ.[9] The respondents undertook further work, including seeking advice fromMr Neil Rogers, a mechanical engineer with kart racing experience. He visited OffRoad's facility. On 5 October 2010 he provided a report. It was highly complementaryof Off Road's facility, but concluded "on balance" that the safety environment was notsubstantially different from other kart operations such that seatbelts were unnecessary.Other work, such as a meeting with IPENZ personnel, also took place.[10] In January 2011 WorkSafe issued an improvement notice under s 39 of theHealth and Safety in Employment Act 1992, which allows an Inspector to give such anotice when a person is failing to comply with any provision of the Act. Under thatregime the affected person had a right to appeal to the District Court, which isempowered to vary, rescind or confirm the notice. In 1995 the District Court hadallowed such an appeal by an indoor go-kart operation challenging the requirement tofit seatbelts.1 In Trax Indoor Motor Sport Ltd v Department of Labour Judge Lawsonhad said:2It is not disputed that seat belts act as restraints, restraining a driver of a vehiclefrom being thrown forward and possibly injured by contact with the steeringwheel or other solid object on an impact crash. What is disputed is thelikelihood of injury being sustained in such impact-type situations contrastedwith the likelihood of injury being sustained from other causes for which seatbelts offer no protection. It is clearly the experience of outdoor operators, anda large number of operators of indoor karts, that it is preferable not to have1 Trax Indoor Motor Sport Limited v Department of Labour [1996] DCR 165.2 At 182.seat belts fitted. It is, of course, trite that some risk will always be involvedand accidents will occur despite every precaution. The question really iswhether seat belts will reduce or increase safety overall with indoor go-karts.I believe it has been established that the two likely forms of accidents areimpact and roll-over. The preponderance of evidence was that roll-over wasthe more likely to be injurious. The kart and an adult driver weighapproximately the same. The kart has a very low centre of gravity and withoutseat belts has a flexible chassis which is part of its safety design features.When a kart rolls over or crashes, the preponderance of opinion was that it isbetter that the driver be thrown free of the vehicle in much the same way as amotor-cyclist is better to be thrown free than restrained by a seat belt [11] Off Road challenged its improvement notice on a similar basis — that it wasunreasonable, and would reduce safety.[12] Prior to the hearing of that application there was a meeting in Rotorua whereWorkSafe agreed to withdraw the improvement notice, but that a more detailed riskassessment would be undertaken. The operation would continue without seatbelts inthe meantime. The Inspector, Mr Flood, then issued a certificate in August 2011without the need for seatbelts.[13] Mr Flood explains in his affidavit that he did not attend the meeting, and hewas advised afterwards by legal counsel that the matter had been settled. He says thatafter examination of materials supplied to him following that meeting he was notsatisfied that a certificate of registration should be issued but that he was "instructedto proceed to issue the registration, and I did so".[14] A further certificate in similar terms was later issued in May 2014. Mr Floodsimilarly says that he was advised by his superior, Mr Murray, that WorkSafe hadreached "the end of the line" on the issue and that a certificate needed to be issued,although on this occasion it was issued by somebody other than Mr Flood.[15] In the meantime, WorkSafe had continued its complaint against the originalengineer with IPENZ. IPENZ dismissed the complaint, but made some criticisms ofthe engineer's work. As part of that process a further engineer, Mr GeraintBermingham, was called by IPENZ as an independent witness. Off Road thenapproached Mr Bermingham to undertake the risk assessment of its operation.Mr Bermingham concluded that seatbelts decreased the safety of the operation. Hisviews were peer reviewed, and the peer reviewer confirmed the view that safetystandards were met. This was put forward in the 2016 re-registration processsupported by the certification of a further engineer.[16] The application was made in May 2016. After it was assessed, on 5 August2016 Mr Flood made the first decision challenged in these proceedings. The decisionrequired Off Road to fit seatbelts and roll bars no later than 5 February 2017. Amongstthe reasons outlined for the apparent change in Mr Flood's position was thepromulgation of a new standard in Australia (AS 3533).[17] The applicant did not comply with the decision. In May 2017 WorkSafe askedthe applicant to confirm that it was operating with seatbelts and roll bars, and itprovided a review authored by a further engineer instructed by WorkSafe to assess therisk assessment undertaken for the purposes of the new application, Mr Tim Gibney.Mr Gibney had concluded that the view that the operation was safer without seatbeltswas contrary to the research he had accessed. In July 2017 there was an agreementthat there be further discussions, and a further review letter from Mr Gibney wasobtained by WorkSafe.[18] A meeting was then held in August 2017. That meeting was not attended byMr Flood, but by his manager, Mr Murray. It was agreed that further informationwould be provided to Mr Murray by Off Road, which was duly provided in December2017. Mr Murray indicated he would pass it on to his successor, Mr Humphries.[19] In March 2018 WorkSafe wrote to Off Road advising that it was consideringenforcement action if it did not comply with the first decision. It advised thatprosecution would be considered against s 208 of the Health and Safety at Work Act2015 which provides:208 Requirement to comply with conditions of authorisation(1) A person must comply with the conditions of any authorisation givento that person that are prescribed in or under regulations.(2) A person who contravenes subsection (1) commits an offence and isliable on conviction,—(a) for an individual, to a fine not exceeding $20,000:(b) for any other person, to a fine not exceeding $100,000[20] After further exchanges, the Chief Executive of WorkSafe advised thatWorkSafe would carry out a review of the applicant's concerns relating to the decisionsmade. It would be undertaken by Mr Craig Marriott, the Acting General Manager ofHigh Hazards and Energy Safety.[21] The Marriott review concluded, amongst other things, that the overall riskappeared to be increased through the use of seatbelts when the operation was viewedholistically. It recommended that WorkSafe visit the site and determine what trackconditions were required to maintain an operation without seatbelts.[22] Off Road did not receive a copy of this review until August 2018. In themeantime, in July 2018, Mr Flood made the second decision challenged by Off Road.The second decision required seatbelts to be installed as a condition of certification.[23] Prior to releasing the review by Mr Marriott, WorkSafe contracted ProfessorRaine of the University of Technology, Auckland to conduct a review. Off Roadcomplains about the limited scope of the exercise that Professor Raine undertook. Inhis report Professor Raine referred to the limitation of his instructions and identifiedwhat work would be needed to identify whether Off Road's operation was saferwithout seatbelts. He indicated that if that work was undertaken the conclusions thathe reached in his report might be different. He said:157. To determine, on an evidential basis, whether a driver restraint systemshould be prescribed in higher speed leisure karting operations, an extensiveanalysis would be needed of crashes and injury incidents involving the SodiGT3 type leisure kart, at the Off Road NZ operation, and as used on similarconcession racing tracks across a large number of operations internationally.This may make it possible to build a valid statistical picture of driver injuriesor fatalities related to the nature of the crash and influencing factors. A moredetailed review of existing Off Road NZ crash incident records should beconducted as a first step.[24] He nevertheless reached the following conclusion:148. In the absence of much more quantitative operational evidence tosupport the use of karts without driver restraints, it is my view that low-speedleisure kart racing operations where speeds do not exceed 40 km/h shouldrequire drivers to wear a full four or five-point harness, with a certified factoryor after-market roll bar. Such operations should nonetheless ensure that trackshave soft trackside barriers to avoid high crash decelerations.[25] He also concluded that the risk assessment that had been done had notdemonstrated that Off Road had met the Australian standard or demonstrated that asafer outcome would be achieved by not fitting seatbelts. He gave the followingrecommendations:(i) Seatbelts and roll bars are required for all low speed leisure kartingoperations, but with trackside barriers sufficiently deformable toavoid potentially fatal decelerations from crashes at 40 km/h.(ii) The desirable future state for leisure kart concession racing operationsinvolving higher speeds, such as at the Off Road NZ Mamaku circuit,is one where driver safety is more inherent in the design of the trackand the karts that are used. This would involve specification of acertified roll bar and five-point harness seatbelts, together with anumber of kart and track design features included to largely precludehigh crash decelerations and to more or less eliminate fire risk. Somethe key design features that would be needed are covered in thisreport. The practicality of their execution is challenging, for exampledesigning leisure karts with substantial crush zones to reduce themagnitude of crash decelerations to the driver's body.[26] It is also appropriate to record that other academic research into the issue reliedupon by the respondents also generally supports the use of seatbelts for go-karts. In apaper entitled "Go-kart-related injuries and fatalities in Australia" by R H Grzebietaof the University of New South Wales and others the authors conclude, for example:3It appears that accessible safety devices, such as seat belts, roll bars and well-designed energy dissipating crashworthiness protection systems for barriers,are not being sufficiently incorporated into or used in the current designs ofgo-karts and the barriers they impact. Further research and crash testing needsto be conducted to demonstrate the benefits of safety protection systems andgo-karts, so policy makers and go-karting enthusiasts are aware of thedetriment of not using such validated equipment during a crash.C. Nature of the challenge[27] By way of summary Off Road advances two main kinds of challenge:(a) First, that s 21A of the Machinery Act 1950, and the Regulations, donot apply as Off Road's operation is not a "amusement device" asdefined by s 21A.3 R H Grzebieta and others "Go-kart-related injuries and fatalities in Australia" (2013) 18International Journal of Crashworthiness 397 at 404.(b) Secondly, challenges to the procedure followed by the respondents,involving allegations of procedural impropriety, breach of legitimateexpectation, breach of natural justice, mistake of fact and irrationality.[28] As the argument developed, however, it became apparent that the key argumentin the proceedings was directed to whether the Off Road operation was within s 21Aand the Regulations at all. The argument is based on the premise that the enactmentof s 21A by Parliament in 1968 was directed to the type of machinery, or devices, thatcan be described as fairground attractions such as ferris wheels or roller coasters.4 Thedefinition of "amusement device" should be interpreted accordingly.[29] It is appropriate that I also record before addressing the issues that it wasaccepted by both sides that the issue as to whether go-karting, and particularly outdoorgo-karting at facilities such as Off Road's facility, is safer with or without seatbelts isa matter of legitimate debate. This is particularly so in regard to outdoor go-kartingoperations at higher speeds. It is not disputed that Off Road genuinely believes itsoperation would be less safe if fitted with seatbelts. It is not bringing theseproceedings for any reason associated with cost, as the cost of fitting seatbelts to theirgo-karts has been well exceeded by the costs of this litigation. Equally, andnotwithstanding that Off Road had included irrationality as part of its grounds ofjudicial review, it needs to be remembered that the ultimate conclusion on this kind ofissue would be for the Inspector to make if the Regulations apply. If s 21A and theRegulations apply, then the legislation identifies the Inspector as the person who isrequired to form the opinion on such issues.5 This further demonstrates why the realissue in this case is the applicability of s 21A and the Regulations.D. Regulations mandate seatbelts[30] The argument before this Court suggests that whether or not the Inspectorshould have required seatbelts is ultimately not relevant. That is because of the termsof the Regulations. They provide:4 Schedule 2 to the Regulations has a list of such attractions.5 I note that Mr Flood has personally owned and operated a go-kart.5 Amusement device must be examined before certificate issued(1) An engineer must not issue an engineer's certificate in respect of anamusement device (including a model engineering amusement device)and a competent person must not issue a competent person's certificatein respect of a model engineering amusement device unless the engineeror competent person (as the case may be) has examined the device inaccordance with these regulations and is satisfied:(d) in the case of a device the dynamic effects of whose movementduring normal operation, as a result of the failure of its normalcontrols during normal operation, or as a result of the applicationof an emergency braking system after such a failure, could resultin the ejection of passengers, that the device is equipped withpassenger restraining and containing apparatus, incapable ofinadvertent release by a passenger or by accident, sufficient toprevent such ejection:[31] It seems to me that this means what it says. If the Regulations apply, thenseatbelts are required.[32] Both sides mounted somewhat artificial arguments in relation to the scope ofr 5(1)(d). Mr Cornegé argued that if the Regulations did apply, then r 5(1)(d) did notmandate seatbelts for Off Road's go-karts on the basis that being thrown free from ago-kart was different from "the ejection of" the passenger. Equally Mr Smith for therespondents argued, in response to a submission that the respondents' approach wouldlead to the mandating of seatbelts in other circumstances which would not be sensible(such as jet ski operations which are regulated under the Regulations), that there wasa similar difference between being thrown from, and ejected out of, a device.[33] I regard these arguments as untenable. As I will address in greater detail below,it seems apparent from r 5 (and the Regulations overall), that the drafters of theRegulations did not have go-karts in mind in prescribing the requirements, and thatthey are more naturally directed at fairground attractions. But it appears to me to beinescapable that if the Regulations do apply, r 5(1)(d) applies — that is as a result of afailure of normal controls, (or possibly the application of an emergency brakingsystem),6 that passengers could be ejected from the go-kart. It is accordingly requiredto be fitted with a passenger restraining and containing apparatus (i.e. seatbelts).[34] It is apparent that this may have unfortunate ramifications. To the extent thatoperations such as jet ski hiring operations are covered by the Regulations, r 5(1)(d)will apply. This is likely to be positively dangerous. I was not provided with muchevidence about other hiring operations, although the evidence I do have suggests thereis a wide range of activities potentially affected by this requirement. As I indicatebelow, this is indirectly relevant to the interpretation questions.E. Does s 21A apply[35] The key issue in this case is whether s 21A of the Machinery Act 1950 appliesto Off Road's operations, and in particular whether the definition of "amusementdevice" in s 21A(1) covers Off Road's go-kart operations.[36] The terms of s 21A are set out in full at [4] above. The interpretation sectionof the Act also provides associated definitions for the following terms used in thedefinition of "amusement device" in s 21A(1):prime mover means an engine, motor, or other appliance which providesmechanical energy derived from steam, water, wind, electricity, gas, gaseousproducts, compressed air, the combustion of fuel, or any other sourcetransmission machinery means any shaft, wheel, drum, pulley, system of fastand loose pulleys, gearing, coupling, clutch, driving belt, chain, rope, band, orother device by which the motion of a prime mover is transmitted to orreceived by any machine or applianceIs a go-kart an amusement device?[37] The respondents' stance is based on the wording of the definition of an"amusement device". On the plain wording it can properly be said that each individualgo-kart is an appliance to which motion of a prime mover is transmitted. The word"appliance" is not a defined term and carries its normal meaning — an analogous termis an "apparatus". It can potentially encompass a vehicle. A go-kart can be seen as anappliance (i.e. a vehicle) to which the motion of a prime mover (i.e. an engine) is6 I say this notwithstanding the argument that the emergency braking system is something differentfrom, and additional to the braking system (see r 5(1)(b) and (c)).transmitted. A go-kart is used for the amusement, recreation or entertainment ofpersons being carried or moved by the appliance while it is in motion. It would seem,therefore, that on the literal meaning of the words the definition applies to eachindividual go-kart, and accordingly that s 21A applies, and the Regulationsconsequentially apply.[38] This view appears to have been adopted by the District Court in Trax IndoorMotor Sport Ltd v Department of Labour.7 Here Judge Lawson rejected the argumentthat go-karts were not amusement devices. He held:8The respondent, however, strongly submitted s 21A was wide enough to"catch" go-karts and if they were not caught, then it would seem there was nostatutory criteria available at all which would be a major gap in public safetylegislation.In my view, s 21A does include go-karts: " the motion of a prime mover istransmitted and [the machines are] designed or intended to be used, for theamusement, recreation, or entertainment of persons being carried or movedby the appliance while it is in motion".Regulation 5 of the Amusement Devices Regulations 1978 enacted pursuantto the Machinery Act 1950 in my view contemplates vehicles or appliancessuch as go-karts.Dodgems which are connected directly to a power source in the confines of awalled arena would seem to qualify and I can see no reason for excluding go-karts. I find therefore that they are amusement devices within the ambit of theMachine Act and the Regulations made thereunder.[39] Off Road challenge this interpretation. I accept that there is an alternativeinterpretation available on the wording. That is that the various constituent elementsthat make up an amusement device are contemplated to be separate things. Anamusement device is made up of a prime mover (some sort of engine) with a separateappliance (that is an apparatus such as a seat or capsule) where the motion of the enginegoes through transmission machinery connecting the two, resulting in the carrying,raising, lowering or movement of the appliance. It does not contemplate a singlevehicle that has all such constitutive elements inbuilt within it. Another way of puttingthis is that the "amusement device" and the "appliance" are not to be one and the same7 Trax Indoor Motor Sports Ltd v Department of Labour, above n 1.8 At 172.thing. What is contemplated is a contraption that has the interlinked, but separatelyapparent, elements as outlined in the definition. On that basis a single motorisedvehicle could not be an amusement device. A dodgem enclosure at a fairground wouldbe, however. That is because it has such separate elements — it has a central motor,transmission machinery, and a series of appliances to which the power of the motor istransmitted. This approach corresponds to Off Road's contention that the definitiononly captures fairground type devices.[40] The ultimate question is which approach corresponds to the intended meaning.Statutory interpretation is not a matter of the literal meaning of words. The text of anenactment must be interpreted in light of its purpose.9 Through the task ofinterpretation the statute should be made to work as Parliament must have intended.10Problems with respondents' approach[41] There are three closely related reasons why the respondents' proposedinterpretation is problematic.[42] First, the respondents' approach catches each individual go-kart but not theoverall go-karting operation (including key features such as the track, and the barriersaround the track) as part of the thing that is controlled and regulated by s 21A. Thepurposes of the enactment do not appear to be achieved if critical safety related aspectsare not regulated. That contrasts with amusement devices that are unambiguouslywithin the definition, such as traditional fairground attractions. The only way in whichthe overall go-karting operation could be said to be covered is by saying that they arebrought in though the concluding words — "and any equipment used or intended tobe used in connection therewith". It would be surprising if these residual mop-upwords were needed to enable such key features of the activity to be brought within itsreach. At the very least that is strained.[43] Secondly, s 21A contemplates that amusement devices are "erected". This isreferred to a number of times within the section. Reference is made to operation9 Commerce Commission v Fonterra Co-operative Group Ltd [2007] NZSC 36, [2007] 3 NZLR767.10 Northern Milk Ltd v Northland Milk Vendors Association Inc [1988] 1 NZLR 437 (CA).separately from erection — for example in the offence prescribed in s 21A(2) — butlooked at overall, the section contemplates that amusement devices are erected foroperation, and then operated.11 That is why a separate permission is required from theTerritorial Authority where the amusement device is to be so located. An individualgo-kart is not erected. Only the overall go-kart racing facility, comprising a track andall associated equipment, on which go-karts are operated could be said to beconstructed (and thereby erected). But on the respondents' approach the definitionapplies because it covers individual go-karts.[44] Thirdly, if each individual go-kart is defined as an amusement device, theneverybody who operates such a device must obtain a certificate from the Inspector(and possibly permission from the Territorial Authority) — including anyone whoowns and operates a go-kart for their personal use. This is reasonably common.Indeed, any motorised vehicle used for amusement, recreation or entertainment wouldappear to be captured, which would likely include speed boats, pleasure boats, jet skisand other similar motorised vehicles/craft.[45] It was issues of this kind that led Judge Tompkins to conclude in Departmentof Labour v Waitomo Big Red Limited that an outdoor quad biking operation offeredto the public did not involve an amusement device under the Regulations.12 Here theoperator had been prosecuted under s 21A(2) of the Machinery Act 1950 for notobtaining a certificate under the Regulations. A tourist had been hurt in an accidentand the prosecution was laid. The Judge recorded:[85] In essence, the informant's case is that because a quad bike has "aprime mover" as defined in s 2 (its engine), which transmits its motion to thewheels of the quad bike (by way of a differential) and because the rider sitsastride the running quad bike and is moved around by it for the purpose ofamusement, recreation or entertainment, then the quad bike is an amusementdevice for the purposes of the Act and regulations. There is more than a hint,when put that way, of forcing, under some strain, the activity to comply withthe definition.[46] After an analysis of the legislative history and particular passages from theParliamentary debates on the insertion of s 21A, the Judge held:11 That is also true of the Regulations – see for example r 15(1).12 Department of Labour v Waitomo Big Red Limited [2010] DCR 381.[95] Although, superficially, quad bikes correspond to the statutorydefinition, in my view that correspondence occurs without a properconsideration of the context both of the statutory definition within the widerscheme of the Machinery Act, and the underlying purpose of that Act. As theparliamentary debates show, the legislature did not intend "amusementdevices" to encompass anything other than the traditional fairground type ofamusement devices, which are erected for varying lengths of time (sometimespermanently) in fixed, discrete and ascertainable locations. Those debates areclear as to the enacting legislature's purpose, that being an important matterto be considered in ascertaining the meaning of a statutory provision as bothdirected by s 5(1) of the Interpretation Act 1999, and by the many authoritiesin which that section's predecessor was interpreted and applied.[96] The relevant purpose of the legislation is to regulate, for public safetypurposes, fairground and similar entertainment machines which are "erected"and "operated" in fixed locations. The statutory split between the originalengineering certification, and subsequent local body inspection, is appropriateto this category of services but difficult sensibly to apply to an operation inthe nature of a quad bike tour.[97] Similarly s 21A, with its references to the device being "erected" and"operated", cannot sensibly be applied to quad bikes being used over manykilometres of hill country farm track.[47] Although this conclusion focussed on the erection of the device at fixedlocations, in my view it identifies the issue more broadly.[48] It is apparent that s 21A was inserted into the Act in 1968 to deal withmachinery of a more specific kind. On introduction the Minister of Labour, theHonourable T P Shand said:13... The principal clause in the Bill introduces a new principle, dealing with themanagement of amusement devices — fairground devices such as merry-go-rounds and the various modern machines erected on fairgrounds for theamusement of the public. It provides for the introduction of regulations andthe institution of a procedure to ensure that such machinery is safe to operate,not only from the point of view of the employee working the machinery, butalso from the point of view of the public — mostly children — who use theequipment. New Zealand has been free of serious accidents caused byfairground machinery, and this is a tribute to the sense of responsibility ofthose who over the years have operated fairground machinery. When onethinks of the fantastic number of such devices erected quite hurriedly beforean agricultural show or in some amusement park and then operated day afterday for multitudes of young children, one is amazed that so far in New Zealandthere has been no serious accident due to a defect in that machinery.The trend is to more and more sophisticated machinery. The old merry-go-round, which was about the most complex piece of machinery in mychildhood, has given way to all sorts of fearsome animals which to me appear13 (14 August 1963) 336 NZPD 1157.to have come out of space fiction. It is the potential danger from these devices,if they should be mechanically unsound, which has led to the introduction ofthis legislation and to the decision to institute a system of inspections andlicensing of such equipment.[49] It is also apparent from the Parliamentary debates, and the legislation itself,that Parliament was seeking to cover all kinds of devices of this nature notwithstandingthe potential for future development. The definition of "amusement device" was inbroad terms to ensure that future inventions came within the definition. As was putby the member for Sydenham, Mrs Mabel Howard, in the Parliamentary debates:14... We found the operators of amusement appliances had no insurance cover ofany kind at all, and they were operating huge ferris wheels, switchbackrailways, and boats, which swung right out. The atomic age has really hit thesefair people, and they have all sorts of queer devices. There has been no coverfor these fun fairs , and for the shows held in showgrounds or school grounds,where there are large concentrations of children in small areas, but now thosechildren will be covered, and we believe that is all to the good that the ownersof the machines should take out insurance.[50] These passages were referred to by Judge Tompkins in reaching his decision.They support the view that "amusement device" was directed to a more distinct typeof device, the kind that are erected at locations for entertainment purposes, and wasnot intended to cover all motorised vehicles when used for such purposes. They showthat Parliament had something more particular in mind and more consistent with theproposed interpretation set out in [39] above.[51] It is significant that the Machinery Act 1950 as enacted regulated all kinds ofmachinery. Under the scheme of that Act machinery had a comprehensive definition,but certain types of machinery were excluded from its reach by s 3, which includedthe ability to exclude machinery by order in council. It is perhaps also notable thatthis was legislation first enacted in 1950 prior to the comprehensive regulation ofmotor vehicles under later Land Transport legislation.The Respondents' answers[52] The respondents answered these potential difficulties by emphasising twofactors.14 At 1164–1165.[53] The first point emphasised by Mr Smith is that legislation must be interpretedin a manner that keeps it up to date with changes over time — a concept expressed ins 6 of the Interpretation Act 1999 as "an enactment applies to circumstances as theyarise". This principle is also expressed in other ways, including that legislation is"always speaking", or that an "ambulatory" interpretative approach should be adopted.This may be seen to be particularly pertinent in the current circumstances where it isapparent on enactment in 1968 that Parliament was concerned about futuredevelopments. That explains why the definition has a certain open-ended quality.[54] Looked at in this way, the current outdoor go-karting operation by Off Roadcan be seen as simply the result of incremental development. A dodgem was given itsown engine and no longer relied on a centralised power source. It was then operatedon a racetrack constructed for outdoor use. The ambulatory approach to interpretationwould suggest that such a device is still intended to be caught notwithstanding thesedevelopments, even though they may not have been contemplated at the time ofenactment.[55] The respondents' second point relies on the following provision in theRegulations:4 Applications for registration(1) Every application for registration under section 21A of the Act shallbe made to an Inspector of Machinery in form 1.(2) Every such application shall be in respect of 1 amusement device only.(3) For the purposes of subclause (2), a number of individually propelledmachines such as dodgems, mini-bikes and the like intended to beused and operated in the 1 enclosure and each suitably identified bynumber shall, together with all other equipment and machineryintended to be used during their use and operation, be deemed toconstitute a single amusement device.[56] Regulation 4(3) is of central importance to the respondents' argument in tworespects. First, Mr Smith argued the reference to "mini-bikes" appears to contemplatesomething very similar to a go-kart. If a mini-bike with its own power source operatedwithin a single enclosure is an amusement device, then a go-kart operated within suchan enclosure (inside or outside) should be seen to be too. I accept that this a is apowerful point.[57] Secondly this provision potentially responds to the difficulties associated withthe desirability of covering the whole go-karting operation and not just individual go-karts. As Mr Smith said it deems the overall operation to be a single amusementdevice. It is true that deeming is only for the purpose of making the application forcertification under r 4(2) — but at the very least it gives rise to a need to reconsiderwhether the concluding words in the definition of "amusement device" in s 21A shouldindeed be interpreted so that the whole operation is an amusement device. It ispossible to get to that point by reading the two provisions together.Are these answers persuasive?[58] Notwithstanding these points, it seems to me that the arguments do not providea comprehensive or persuasive answer to the problems with the respondents' approach,and that the interpretation outlined at [39] should be preferred. That is so for a seriesof reasons.[59] First, whilst it is appropriate to interpret regulations in light of the legislationunder which they are promulgated, the reverse is not necessarily true. Only inparticular circumstances will it be appropriate to interpret primary legislation (heres 21A) by reference to regulations. The position was summarised by the Court ofAppeal in Interfreight Limited v Police in the following terms by Tipping J for theCourt:15The circumstances in which regulations may be considered as an aid to theinterpretation of a statute are limited. In short, the general rule is that theregulations must be contemporaneous with the statute, and the statute itselfmust be ambiguous: see Burrows : Statute Law in New Zealand (1st ed 1992at p127); Hanlon v Law Society [1981] AC 124 per Lord Lowry at 193-194and Vergara v Attorney-General of Hong Kong [1988] 1 WLR 919 per LordAckner in the Privy Council at 926-927.[60] There are constitutional reasons for this approach. What the executive says ordoes should only be referred to to interpret the meaning of a Parliamentary enactment15 Interfreight Limited v Police [1997] 3 NZLR 688 (CA) at 692.in certain circumstances. It seems to me that the situation where it would beappropriate to consider regulations when interpreting legislation is when they assist ata better understanding of the wider context, and according to what Parliament wasdriving at in the legislation. But regulations should not be used to alter the meaningof the statute.16[61] In the present case there is ambiguity, but the Regulations were notcontemporaneous with the statute. Section 21A was inserted into the 1950 Act in 1968.The Regulations were promulgated 10 years later in 1978. The earlier regulationspromulgated when s 21A was inserted, the Amusement Device Regulations 1968(repealed by the 1978 Regulations), do not contain these provisions or their equivalent.That means that r 4(3) should not be used as an interpretive guide to s 21A.17[62] Moreover, any interpretive influence of the Regulations does not answer all ofthe problems identified above. It does not respond to the issue that s 21A contemplatesthat amusement devices are erected as well as operated. In addition, whilst r 4(3)deems the whole go-karting operation a single amusement device under r 4(2) of theRegulations, that will not prevent privately owned go-karts that are not operated aspart of an overall facility being an "amusement device" as defined in s 21A. Inresponse to my questions, Mr Smith indicated that motor vehicles in common use bythe public would not be amusement devices because they were used for the purposeof transportation rather than "entertainment" within the words of the definition. Butthat does not address the situation for other vehicles that are operated for amusement,recreation or entertainment purposes — such as go-karts, jet skis, speed boats, andsome types of motor vehicle.[63] It is noteworthy that the definition of "amusement device" does not contain anelement associated with the device being offered to the public by an operator,presumably because Parliament considered that the definition did not need such anelement to capture the machinery in issue. This again suggests that a narrowerinterpretation is more consistent with what Parliament intended.16 See Campbell v Accident Compensation Corporation CA 183/03, 29 March 2004 at [52].17 The fact that s 21A was continued by cl 2(3) of sch 1 of the Health and Safety at Work Act 2015,and the Regulations are treated as regulations under that Act cannot solve that problem. Thedefinition of "amusement device" could not have comprehensively changed in 2015.Is there a regulatory hole?[64] Counsel for the applicant and the respondents both addressed submissions towhether the approach advocated by Off Road would lead to a significant gap in relationto activities that should be regulated. I accept that this could be a legitimate concern,and that the interpretation that is adopted can be influenced by such considerations.However, for a number of related reasons, this point does not lead me to interpret theprovisions in a different way.[65] The first point is that I am not convinced that the Regulations are truly fit forthe purpose of regulating outdoor go-karting operations (and possibly otheroperations). I received evidence on the requirements for safe regulation of go-karting.That included evidence related to the debate concerning the fitting of seatbelts and rollbars, and other significant items, such as the layout of the track, the positioning ofbarriers around the track and their composition, and related issues concerning safetyequipment, such as the wearing of helmets. Amongst the materials were the standardsthat had been applied in other countries, including the promulgation of the Australianstandard (AS 3533).[66] The Regulations were promulgated in 1978. They set out a list of detailedrequirements, particularly in r 5. None of these are directed to the safety issuesconcerning outdoor go-karting operations. One of those requirements that appears tobe primarily directed to fast moving fairground attractions, and the need for passengerrestraint in those circumstances (r 5(1)(d)) is now relied upon by the respondents as acomplete answer to a debate about go-kart seatbelts that has gone on for many years.That debate went on without reference to this regulation. It seems to me that the extentto which it is said to provide such an answer it is a complete accident. It is unrealisticto suggest that when these Regulations were promulgated the safety issues evident inthe fitting of seatbelts for outdoor go-karting were being considered. Moreover, therewould now be adverse consequences if the respondents' argument is accepted — inparticular the apparent need to fit seatbelts in activities such as jet ski operations whichI understand to be currently regulated under the Regulations. Mr Flood explained thatthe Regulations were applied to a range of other activities when they involve motorpower — such as bungy jumping where a winch or crane was involved, and flyingfoxes in similar circumstances. Again, it does not seem to me that the Regulationswere promulgated with such activities in mind, and it seems to me potentially arbitraryto capture such activities when a motor is used, and not otherwise.[67] It is true that s 21A and the Regulations also give general discretionary powersthat can be used if they apply. It is this residual overall discretion that has been usedfor the effective regulations. But to the extent that the Regulations set out specificrequirements in detail, they are ill-fitting to outdoor go-karting. I see some analogywith the decision of this Court in PauaMAC5 Incorporated v Director-General ofConservation where Clark J held that the Wildlife Act 1953 did not provide theappropriate regulatory framework for the regulation of shark cage diving operations.18She said in that case:[60] The end result is that the Department's regulation of shark cage divingoperations, which have increased in attractiveness over the years, has beenattempted in the context of a statute that provides no suitable framework forsuch regulation much less any scope to address the risk to other water usersthat such operations are said to create. The solution must lie in a legislativeframework that confronts the varied and sometimes competing interests atstake. The solution does not lie in giving to the words "catch alive or kill" ameaning that they do not bear - on any principle of statutory construction.[68] The suggestion that r 5(1)(d) provides the regulatory answer to the seatbeltdebate similarly involves the use of a regulatory framework formulated for verydifferent activities.[69] The second point is that accepting Off Road's arguments does not mean theseactivities are unregulated. The general obligations under the Health and Safety atWork Act 2015 will still apply to Off Road, and to any other operations previouslythought seen to be covered by the Regulations that are not so covered. This includesall the general obligations under that Act associated with a safe workplace. It may beunwise for operators who have hitherto operated under the Regulations to now departfrom WorkSafe imposed conditions for safe operation. Those requirements may likelyreflect appropriate safety standards.18 PauaMAC5 Incorporated v Director-General of Conservation [2017] NZHC 1182.[70] I also note that it may be possible to promulgate new regulations under s 211of the Health and Safety at Work Act 2015 if that was thought necessary. Indeed in2016, possibly as a consequence of the decision of the District Court in Departmentof Labour v Waitomo Big Red Ltd, the Health and Safety at Work (Adventure Activity)Regulations 2016 were promulgated.19 These regulations deal with particularadventure activities that are land or water based. It covers activities of the kind set outin sch 2, including abseiling, caving, mountaineering, and "quad-biking or trailbiking" and "off road vehicle driving". It sets out regulatory standards for activitiesof this kind.[71] Mr Cornegé advanced an argument that Off Road's activities were covered bythese regulations. My preliminary view is that may not be so as go-karting may notinvolve the participant being "deliberately exposed to dangerous terrain or dangerouswaters" with the participant being "guided, taught how, or assisted to participate in theactivity" (r 4(1)(a)(iii) and (vi)). The respondents have not applied these regulationsas they explicitly exclude amusement devices (r 4(2)(d)). I reach no concluded viewabout the reach of those regulations, however. But I do not want to encourage the useof other ill-fitting regulations to deal with the situation. It seems to me that if there isperceived to be a need to more fully regulate this kind of activity it should take theform of specifically formulated standards. Those standards could be in the form ofnew regulations or amendment to regulations, in much the same way as standards havebeen promulgated in Australia.Applicant's other challenges[72] As indicated, in addition to contending that s 21A and the Regulations did notapply to Off Road's operations, Off Road advanced a series of other judicial reviewchallenges to the respondents' decision-making.[73] As a consequence of my findings above, those judicial review challenges arenot relevant. Indeed, had I accepted the respondents' argument on the meaning ofs 21A, none of the grounds of challenge advanced by Off Road could have beensuccessful (unless I had accepted the argument that r 5(1)(d) of the Regulations did19 Department of Labour v Waitomo Big Red Ltd, above n 12.not apply). If s 21A and the Regulations apply, and r 5(1)(d) applies, then seatbeltswould have been mandatory irrespective of the interactions between Off Road and therespondents.[74] It may be appropriate to record, however, that had I reached that point I maywell have been prepared to grant Off Road declaratory relief to reflect what appearsto me to have been procedural impropriety in the way its position was approached bythe respondents. For example, on the evidence of Mr Flood, he was directed to issuethe Inspectors certificate under s 21A and the Regulations when he did not think itshould be issued.20 As Mr Smith for the respondents submitted, he was thereby actingunder dictation, and accordingly unlawfully. Such conduct cannot create a legitimateexpectation by Off Road that it would be so granted the certificate, but it does involvean admission that the respondents acted unlawfully in relation to Off Road'sapplication. It also means that Off Road can complain of significant inconsistency intreatment by the respondents. In those circumstances I would have been prepared togrant the applicant declaratory relief to reflect this. But, as I say, this is not relevantgiven my primary findings.Conclusion[75] For the reasons identified above, I grant a declaration that the applicant'soperation does not meet the statutory definition of an amusement device pursuant tos 21A of the Machinery Act 1950. I dismiss the applicant's other claims for judicialreview.[76] The applicant is entitled to costs. If the parties are unable to reach agreementon costs memoranda may be filed.Cooke JSolicitors:Edmonds Judd, Te Awamutu for ApplicantBell Gully for Respondents20 See [12]–[14] above.