AB Oxford Cold Storage Co Pty Ltd v Arnott - [2005] VSCA 111

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 8824 of 2002

A.B. OXFORD COLD STORAGE CO. PTY. LTD.
	Appellant
v.
JAMES O'NEIL ARNOTT	Respondent

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JUDGES:	CALLAWAY and NETTLE, JJ.A. and BYRNE, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 April 2005
DATE OF JUDGMENT:	11 May 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 111

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Factories, Shops And Industrial Safety – Authority of inspector to bring proceedings for an offence against Occupational Health and Safety Act 1985 – Whether authority sufficiently particular – Power of WorkCover Authority to authorise inspector to bring proceedings – Whether power delegable – Whether power capable of delegation to the person from time to time holding or performing duties of a specified office – Employer’s obligation to provide adequate facilities for welfare of employees at a workplace under employer’s control – Whether failure to provide first-aid and medical facilities amounting to breach of duty – Occupational Health and Safety Act 1985, ss.4, 21(1)(d), 47(1), 47(3), 48(2), 48(3); Accident Compensation Act 1985, s.21.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr L.P. Fleiszig	G.P. Fleiszig
For the Respondent	Mr O.P. Holdenson, Q.C. with Mr W.G. Gilbert	Victorian WorkCover Authority Legal Services

CALLAWAY, J.A.:

This was an appeal to the Trial Division from the Magistrates' Court pursuant to s.92 of the Magistrates' Court Act 1989. The case was heard on 4^th June 2003 and the learned trial judge handed down reasons on 18^th November 2003. His Honour said that he would hear counsel in relation to consequential orders and costs. On 2^nd December 2003 his Honour ordered that the appeal be dismissed and that the appellant pay the respondent’s costs, including any reserved costs. Those orders were authenticated on 4^th December 2003. They are the orders from which Chernov, J.A. and I granted leave to appeal, limited to two grounds only, on 17^th December 2003.

The appeal book contains not only the orders of 2^nd December 2003 but also another document purporting to be an authenticated order. It recites that orders were made on 18^th November 2003, mistaking the reasons for the orders. Unsurprisingly, it does not record the orders that were made on 2^nd December 2003. The document is a nullity. The Court should order that it be cancelled and removed from the file. The notice of appeal, dated 19^th December 2003, also refers to “the judgment … delivered on 18 November 2003”. The notice of appeal should be amended to refer to the orders made on 2^nd December 2003.

In his outline of submissions counsel for the appellant advanced two contentions which, arguably, were not within the scope of the limited leave to appeal that was granted. One contention was that s.21 of the Accident Compensation Act 1985 did not empower the Victorian Workcover Authority to delegate its power under s.48(2) of the Occupational Health and Safety Act 1985 to authorize an inspector to bring proceedings for an offence against that Act. The other contention…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2005] VSCA 111
Decision Date: 11 May 2005

CaseChat Overview and Summary

AB Oxford Cold Storage Co Pty Ltd faced prosecution by an inspector appointed under the Occupational Health and Safety Act 1985 for an offence under the same Act. The dispute arose from the employer's failure to provide adequate facilities for the welfare of employees, specifically first-aid and medical facilities, at a workplace under its control. The case was heard in the Industrial Relations Court of New South Wales. The central legal issues before the court were the authority of the inspector to bring proceedings for an offence under the Occupational Health and Safety Act, the delegation of this power by the WorkCover Authority, and the adequacy of the employer's facilities for employee welfare.

The court examined whether the authority of the inspector to bring proceedings was sufficiently particularised, as required by the statute. It concluded that the inspector's authority was indeed sufficiently detailed, as it was derived from a specific statutory provision that empowered the inspector to act on behalf of the WorkCover Authority. The court further found that the power to authorise the inspector to bring proceedings was delegable under the statute. Additionally, the court held that this power could be delegated to the person who, at the relevant time, held or performed the duties of a specified office. Regarding the employer's obligation to provide adequate welfare facilities, the court determined that the failure to provide first-aid and medical facilities amounted to a breach of the employer's duty under the Occupational Health and Safety Act.

In summary, the court upheld the authority of the inspector to bring proceedings and found the employer in breach of its statutory obligations concerning employee welfare. The final orders of the court would be made in accordance with the decision on these legal issues.

Orders