Appeal against District Court decision to dismiss an appeal against WorkSafe notices as moot – Health and Safety at Work Act 2015, s 135 – was the District Court wrong to determine that the appeal is moot? – should the District Court have exercised its discretion to hear the appeal for public interest reasons? – did the District Court fail to comply with its obligation under s 135(3) Health and Safety at Work Act 2015 to inquire into the decision under appeal?
Ward Demolition Ltd v WorkSafe New Zealand [2024] NZHC 1548 per McHerron J
Ward Demolition Ltd was removing asbestos and undertaking demolition work for Aoraki Construction Ltd at a site in Lambton Quay, Wellington.
In June 2022, WorkSafe issued Ward Demolition with two notices under the Health and Safety at Work Act 2015 (HSWA):
(a) a prohibition notice which banned work, activity and disturbance in a ‘smoko’ area at the site where asbestos contamination had been identified, except for the purposes of survey, decontamination and clearance; and
(b) an improvement notice recommending that Ward Demolition review its systems for use and storage of respiratory protective equipment, provide workers with training on revised procedures, and provide WorkSafe with evidence of compliance.
As a result, the site was shut down until the notices were complied with. This led to contractual and commercial issues for Ward Demolition, Aoraki and other third parties as well as project delays.
Ward Demolition sought an internal review of the decision to issue the notices (s 132 HSWA). Following the review, WorkSafe confirmed its decision to issue the notices, but varied the timeframe for compliance.
In July 2022, Ward Demolition appealed WorkSafe’s decision to issue the notices to the District Court (s 135 HSWA). Before the appeal was heard, Ward Demolition complied with the notices so work could continue at the site and it could meet its contractual obligations.
In October 2023, WorkSafe sought dismissal of the appeal on the grounds that it was now moot.
On 20 December 2023, the District Court dismissed the appeal as moot. The judge considered that Ward Demolition had no ongoing obligations in respect of the notices as it had complied with them, and any potential impact of the notices was speculative and could not be considered to have an ongoing practical effect on Ward Demolition’s rights.
Ward Demolition appealed to the High Court.
Applicable principles: HSWA, s 135 – was the District Court wrong to determine that the appeal is moot? – should the District Court have exercised its discretion to hear the appeal for public interest reasons? – did the District Court fail to comply with its obligation under s 135(3) HSWA to inquire into the decision under appeal?
Held: The appeal is allowed. The District Court appeal is not moot. Ward Demolition was entitled to comply with the notices without prejudice to its appeal. This approach appropriately balances its legal rights with the importance of maintaining the health and safety of workers and the community.
Ward Demolition’s appeal also raises issues that are potentially of broader application than to the immediate parties. Section 135(3) HSWA requires the District Court to “inquire into the decision”, which requires an active assessment of the merits of either party’s case by the court. The matter is remitted to the District Court for the substantive s 135 appeal to be heard.
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