PROGRESSIVE MEATS LTD V MINISTRY OF HEALTH CA CA484/06

PROGRESSIVE MEATS LTD V MINISTRY OF HEALTH CA CA484/06 27 June 2007IN THE COURT OF APPEAL OF NEW ZEALAND CA484/06 [2007] NZCA 261BETWEEN PROGRESSIVE MEATS LTD Applicant AND MINISTRY OF HEALTH Respondent Hearing: 18 June 2007 Court: Glazebrook, Chambers and Wilson JJ Counsel: R M Lithgow QC and N Levy for Applicant A M Powell and C M Lloyd for Respondent Judgment: 27 June 2007 at 11amJUDGMENT OF THE COURT A Special leave to appeal is granted. B The question for determination is set out at [9] below. C Costs are reserved.____________________________________________________________________REASONS OF THE COURT(Given by Glazebrook J)Introduction[1] Progressive Meats Ltd (Progressive) operates a meat processing plant in Hastings. In 2002, in consultation with its employees and the union, it constructed a separate room at the plant for the use of smokers. The entry to the smoking room is through a small vestibule off the cafeteria leading to a sealed self-closing door. The smoking room has been designed so that the smoke in that room cannot find its way back into the cafeteria, either through the entrance door or via the air ducts. [2] Progressive is required to meet various stringent hygiene requirements under New Zealand law and Overseas Market Access Requirements. This means that it is not practical for workers to leave designated protective clothing areas to go outside to smoke. This is the reason for the smoking room, which is a designated protective clothing area. [3] Progressive was charged with a breach of s 5(1) of the Smoke-Free Environments Act 1990 in relation to the smoking room. This prohibits all smoking in a workplace, subject to two exceptions which are inapplicable in this case. On 24 February 2006, Judge Watson found the charges proved but stated a case for the High Court. The key facts were not in dispute and were summarised in the case stated. The question posed for the opinion of the High Court was:Does the smoking room described above fall within the definition of a workplace under section 2 of the Smoke-Free Environments Act and therefore infringe section 5 thereof?[4] On 28 September 2006 Baragwanath J answered that question in the affirmative. He refused leave to appeal to this Court on 7 December 2006. Progressive now seeks special leave to appeal.Discussion[5] It is accepted by the Ministry of Health that this is a matter of public importance and that there is a question of law involved. The sole ground for resisting the grant of leave is that the appeal is doomed to failure. In the Ministry'ssubmission, the plain words of the provisions and the scheme and purpose of the Act lead inexorably to the conclusion that the answer to the question in the case stated is in the affirmative. [6] Progressive, on the other hand, argues that the plain words of the provisions allow an interpretation that excludes the smoking room from the definition of workplace and that this interpretation is clearly to be preferred when proper regard is had to the purpose provisions of the Act as a whole and those related to the particular provisions at issue in this case. [7] In our view, the Crown arguments are strong but Progressive's position is not totally unarguable. As the case involves points of law of high general and public importance, this justifies the grant of leave.Result[8] Special leave to appeal is granted. It may be preferable, however, for the appeal to be heard by a differently constituted court, given that the argument in the leave application was focused on the details of the statutory interpretation which will be the issue in the appeal. [9] The question for the appeal is essentially the same as in the case stated:Does the smoking room, as described in the case stated to the High Court at [2] – [12], fall within the definition of a workplace under s 2 of the Smoke-Free Environments Act 1990 and therefore infringe s 5 of that Act?[10] Costs are reserved.Solicitors: Napier Law-Donkin Lloyd, Napier for Applicant Crown Law Office, Wellington