TALLEY’S GROUP LIMITED v WORKSAFE NEW ZEALAND [2019] NZSC 37

TALLEY'S GROUP LIMITED v WORKSAFE NEW ZEALAND [2019] NZSC 37 [5 April 2019]IN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUISC 11/2019[2019] NZSC 37BETWEEN TALLEY'S GROUP LIMITEDApplicantAND WORKSAFE NEW ZEALANDRespondentCourt: Glazebrook, O'Regan and Ellen France JJCounsel: J H M Eaton QC and P C Dawson for ApplicantM L Wong for RespondentJudgment: 5 April 2019JUDGMENT OF THE COURTThe application for leave to appeal is dismissed.____________________________________________________________________REASONSIntroduction[1] Talley's Group Ltd (Talley's) was charged by WorkSafe New Zealand(WorkSafe) with failing to take all practicable steps to ensure the safety of its employee(Ms Hēmi) while at work contrary to ss 6 and 50(1)(a) of the Health and Safety inEmployment Act 1992 (the Act).1 The charges arose out of the operation of a forkliftat the vegetable processing plant at which she worked. On Talley's application in theDistrict Court, the charge was dismissed under s 147 of the Criminal Procedure Act1 Now repealed (Health and Safety at Work Act 2015, s 231(1)).2011.2 That decision was reversed in the High Court3 and Talley's appealedunsuccessfully to the Court of Appeal.4 Talley's now seeks leave to appeal to thisCourt.Background[2] Under the Act, charging documents had to be filed within a six-month timeperiod.5 The charging document in this case was filed on 20 November 2015, one daybefore the six-month time limit was to expire. The charging document gave noparticulars of the practicable steps Talley's ought to have taken to ensure the safety ofMs Hēmi. Rather, the document provided that Talley's:Being an employer, failed to take all practicable steps to ensure the safety ofits employee, namely [Ms] Hemi, while at work, in that it failed to take allpracticable steps to ensure that she was not exposed to hazards arising out ofthe operation of a Yale forklift.[3] On 1 December 2015, the charging document and a summary of facts wereserved by WorkSafe on Talley's. The summary of facts identified, in some detail, thefour practicable steps it was alleged WorkSafe had not taken.[4] Talley's pleaded not guilty. An expanded list of omitted practicable steps wasprovided in August 2016. Talley's applied to stay the proceeding or dismiss the chargeon the basis the August expansion was an evasion of the six-month time bar and sowas an abuse of process. Further, Talley's said that the charge as framed did notcontain sufficient particulars to comply with the requirement in s 17(4) of the CriminalProcedure Act for Talley's to be fully and fairly informed of the substance of thecharge.2 WorkSafe New Zealand Ltd v Talley's Group Ltd [2016] NZDC 23299, [2017] DCR 683(Judge Maze).3 WorkSafe New Zealand Ltd v Talley's Group Ltd [2017] NZHC 1103, (2017) 14 NZELR 584(Faire J).4 Talley's Group Ltd v WorkSafe New Zealand Ltd [2018] NZCA 587, [2019] 2 NZLR 198 (Cooper,Winkelmann and Williams JJ) [CA judgment].5 Health and Safety in Employment Act 1992, s 54B. Under s 146 of the Health and Safety at WorkAct 2015, there are differing periods (12 months and 6 months). See also ss 147 and 149 of thatAct.[5] The charge was dismissed in the District Court in part because there wereinsufficient particulars. Further, while the charge was not a nullity, the Courtconsidered the defects were not saved by s 379 of the Criminal Procedure Act whichprovides that proceedings are not invalid for want of form unless the defects give riseto a miscarriage of justice.[6] In the High Court, Faire J agreed with the District Court the particulars wereinsufficient to comply with s 17(4) of the Criminal Procedure Act. But the Judgefound the defect was not fatal in terms of s 379 because the summary of facts providedsufficient particulars. Talley's could not point to actual prejudice sufficient to establisha miscarriage.[7] The Court of Appeal dismissed Talley's appeal and a cross-appeal byWorkSafe. The Court found the particulars were the "pith and essence" of the chargeand so were required to be included.6 The Court concluded the charging documentwas not a nullity although defective in failing to provide the particulars.7 It was not anullity because there were particulars, albeit too sparse to comply with s 17(4). TheCourt also found that the charging document was saved by s 379.8 The particulars inthe summary of facts gave Talley's sufficient notice and Talley's would suffer nomiscarriage of justice. The Court amended the charging document but the amendmentwas confined to the particulars set out in the summary of facts served on 1 December2015.9 Finally, the Court rejected Talley's claim the proceeding should be stayed.10The proposed appeal[8] Talley's seeks leave to appeal from the decision of the Court of Appeal. Itwishes to argue as follows:6 CA judgment, above n 4, at [41]. This aspect was the basis of WorkSafe's cross-appeal in theCourt of Appeal.7 At [68].8 At [77].9 At [77]. That meant that if WorkSafe wanted to expand the particulars to reflect the August 2016summary of facts, that would require an application to amend under s 133 of the CriminalProcedure Act 2011 for an order to that effect: at [78].10 At [86].(a) In considering s 379, the Court of Appeal was wrong to take intoaccount the summary of facts. In part that is because even if a summarycan be relied on, it cannot include a summary prepared after the expiryof a statutory time bar.(b) The Court of Appeal was wrong not to order a stay particularly givenWorkSafe's practice of filing unparticularised charging documents verylate in the piece along with a summary of facts.Assessment[9] Taking first the approach to s 379, the principles applicable to provisions in theform now reflected in s 379 of the Criminal Procedure Act11 have beenwell-traversed.12 Further, as the Court of Appeal noted, citing this Court's decision inDotcom v Attorney-General, the assessment required under s 379 is "factual andcontextual" and all of the relevant surrounding circumstances may be considered.13No question of general or public importance is accordingly raised by this aspect of theproposed appeal. Rather, the question is one of the application of those principles tothe particular facts. The arguments Talley's wishes to raise to support the contentionthe approach taken has given rise to a miscarriage of justice were carefully evaluatedby the Court of Appeal. Nothing raised by Talley's suggests that a miscarriage ofjustice arises from that evaluation.[10] In deciding not to stay the charge, the Court of Appeal applied the principlesdiscussed by this Court in Wilson v R.14 No question of general or public importancearises. Nor do we see any appearance of a miscarriage of justice in the Court ofAppeal's assessment. The Court noted that it was not suggested this was a case ofactual bad faith and, further, that in "the circumstances of this case and WorkSafe's(now former) charging practice, the balance must fall on the side of bringing thoseaccused of offences to trial".1511 Section 379 replaced s 204 of the Summary Proceedings Act 1957 in substantially similar terms.12 See, for example, Dotcom v Attorney-General [2014] NZSC 199, [2015] 1 NZLR 745.13 CA judgment, above n 4, at [73].14 Wilson v R [2015] NZSC 189, [2016] 1 NZLR 705.15 CA judgment, above n 4, at [85].[11] In these circumstances, the criteria for leave are not met.16 The application forleave to appeal is dismissed.Solicitors:Dawson & Associates Ltd, Nelson for ApplicantCrown Law Office, Wellington for Respondent16 Supreme Court Act 2003, s 13(2) and (4); and Senior Courts Act 2016, s 74(2) and (4).