ACR Roofing Pty Ltd v The Queen

[2005] HCATrans 154

[2005] HCATrans 154

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M211 of 2004

B e t w e e n -

ACR ROOFING PTY LTD

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 11 MARCH 2005, AT 10.50 AM

Copyright in the High Court of Australia

MR P.G. PRIEST, QC:   If the Court pleases, I appear with my learned friend, MR R.W. TAYLOR, for the applicant.  (instructed by KPA Lawyers)

MR O.P. HOLDENSON, QC:   May it please the Court, I appear with my learned friend, MR W.G. GILBERT, on behalf of the respondent.  (instructed by Solicitor for Public Prosecutions (Victoria))

McHUGH J:   Yes, Mr Priest.

MR PRIEST:   Your Honours, any construction of the expression “engaged by” as used in section 21(3) of the Occupational Health and Safety Act, Mr Justice Nettle robbed the word “by”, the preposition “by”, of any work to do.  We say that his Honour’s construction of the subsection was thus attended by doubt.  His Honour came to the view that the expression “engaged by” is the equivalent of an expression “engaged in or on”, and your Honours will see that in his judgment in the application book, first of all at page 365, paragraph 49 at about line 18.  His Honour said:

Moreover, the express extension in s 21(3) to independent contractors “engaged” by an employer is an explicit indication that it was intended that s 21 provide a broader range of cover than s 2 of the UK Act. The implication as it appears to me is that whereas previously the obligations imposed by s 11 of the 1981 Act –

and I interpolate to say the Victorian Act –

were limited to the person having the management and control of the workplace, the obligations imposed by s 21 of the 1985 Act were intended to extend to any employer in respect of persons engaged in or on matters over which the employer has control.

Over the page at 366 about line 11, paragraph 51, his Honour said –

The intended result might have been achieved with greater clarity if s .21(3) had provided that an employer owes the duties to which it refers to any employee or contractor “engaged in or on” matters over which the employer has control.

HAYNE J:   Now, if we go back to the definition which is at 339, is it not - is that a convenient place to find it?

MR PRIEST:   Yes, your Honour.

HAYNE J:   Two features of the definitions strike me.  One, the word “includes”.  Two, the reference to “employees of the independent contractor”, which contemplate at least one further application of the definition down a chain of independent contracts.

MR PRIEST:   Yes, his Honour ‑ ‑ ‑

HAYNE J:   Is it limited to one further application, or may there be successive application upon application?

MR PRIEST:   There may be successive applications so long as there is a direct relationship between the employer and the independent contractor.

HAYNE J:   What is the nature of that relationship that must exist?

MR PRIEST:   The most obvious way in which that would be created would be through some form of contract directly between the employer and the independent contractor or via some agency.

HAYNE J:   Let me put to you the case of the builder who engages a crane company and, unbeknown to the builder, the crane company’s arrangements with its crane operators are arrangements of the kind you find with lorry owner/drivers; the crane driver owns the truck and operates it as independent contractor to the firm.  How is that picked up, if at all, under 21(3)(a)?

MR PRIEST:   Well, it is not, and that is why we say one must construe the expression “engaged by” as a compound expression rather than torture the language in the way that ‑ ‑ ‑

HAYNE J:   So that the obligation turns upon in important respects the nature of the relationship that may happen between entities further down a chain of arrangements on the building or in connection with the building site?

MR PRIEST:   Your Honour, what it requires is that there be some connection between the employer in the first place and the independent contractor.  Now, what his Honour in effect found was that there is no necessity for there to be privity of contract between the employer and the independent contractor.  In his view, it was sufficient if there was a subcontractor or sub-sub-contractor or sub-sub-sub-contractor in a situation where the employer might not have had in contemplation the employee of the independent contractor so far removed.

HAYNE J:   And do the words “and any employees of the independent contractor” at the end of the definition provide a sufficient verbal hook on which to hang that argument?

MR PRIEST:   No. The use of the words “engaged by” obviously picks up, we would say, only the employees of the independent contractors who are directly engaged by the employer and with respect to matters over which the employer has control. Now, what his Honour has done is in effect substitute for the expression used by the legislature another expression of his own choosing, which his Honour thinks at least by implication should be there. His Honour has construed section 21(3) as against the background of the Robens Committee Report and the United Kingdom Act and the previous Victorian Act, and we say it is not legitimate to read into the statute words that are not there in the way that his Honour has. If privity of contract or some other species like that is required ‑ ‑ ‑

McHUGH J:   Do you accept that it would be sufficient if there was some conscious knowledge or encouragement of the employment?

MR PRIEST:   No, because this was at the heart of what this trial was all about.  Knowledge that somebody further down the line has engaged in a subcontract is not sufficient, because the expression used is “engaged by”.

McHUGH J:   What about encouragement or sufferance?

MR HOWELLS:   Well, the evidence here did not stretch to encouragement; it may have stretched as far as sufferance in the sense that there was some evidence that the estimator for ACR Roofing was aware of the substitution, and somebody called Pam, who was an office girl, was aware of the substitution.  But that again threw into stark relief one of the issues in the case which was whether or not either of those persons, Mr Martin the estimator or Pam the office girl, could be said to be the mind and will of the company for the purposes of the substitution and, if you like, the sufferance, to use your Honour’s expression.  So ‑ ‑ ‑

McHUGH J:   What do you say the error is of Justice Nettle, that he substituted the definition of “control” for “engagement”, do you?

MR PRIEST:   He substituted for the expression “engaged by” another expression, “engaged in or on”.  Now, his Honour said that the subtleties of transitive/intransitive verb forms do not really help much in this situation, but the expression “engaged by” is used transitively and picks up as its object the employer, whereas the intransitive expression that he would substitute does not pick up the employer at all and rather, what it refers to are the matters over which an employer might have control.  So he has attributed, we would say, to the expression a different meaning to the one which the words plainly bear.

Your Honours, if we are right about that, that there needs to be something in the nature of privity of contract between the employer and the independent contract, it means that the judgment of the court below cannot stand.  If contrary to the submission that we put to the Court of Appeal there can be an engagement through an agency, then there has been palpably a substantial miscarriage of justice in this case.  Your Honours will recall that it was the trial judge who found principles of agency defeated the way in which the no case submission was put and we say that there has been plainly a miscarriage of justice.  The Crown case was unfairly reformulated by the trial judge and if we are wrong about that and agency can be a foundation, then his Honour was required to give directions as to agency.  His Honour Justice Nettle recognised as much at the application book 356 to 357.

The second main area that we wish to agitate is the departure from the particulars and the way in which that affected the result in the case, and we can state this fairly quickly. The count is set out at 341 and the count was laid under section 21(1) and (2)(a) of the Occupational Health and Safety Act, and your Honours will see that in the body of the count it was said that ACR had:

failed to provide and maintain plant and systems of work –

and the count goes on.  That was the matter to which the element of control related, we submit.  The particulars then go on to say that:

1.        ACR, through its servant Lawrence Palmer, requested Matthew King and Richard Reynolds to place roofing sheets on to the roof of the subject premises.

2.        The placement requested, caused or permitted by ACR constituted an unsafe system of work –

So the body of the count and the gravamen of the count was that there was a failure “to provide and maintain plant and systems of work that were so far as practicable safe and without risk to health”.  The particulars particularised that particular failure as being in relation to the placement of the roofing sheets, and that placement of the roofing sheets was the system of work.  That placement was to be by crane and it is plain from the evidence that ACR had no control over that.  And the way in which ‑ ‑ ‑

HAYNE J:   Well, what is “that”?

MR PRIEST:   Over the use of the crane and the placement of the roofing sheets.  Now, what ‑ ‑ ‑

HAYNE J:   But it had control over the fact that a crane was to be the means of placement, did it not?

MR PRIEST:   Only in the general sense that that was the means by which the roofing sheets were to be lifted up onto the completed roof.

HAYNE J:   Just so.

MR PRIEST:   And ultimately, that the roof was going to be completed.  These sheets were 14.8 metres long, longer than this courtroom, and the evidence was that getting those sheets up onto the roof could only be accomplished by a crane.

HAYNE J:   Yes.

MR PRIEST:   So control over the cranage, whether they did the work, how they did the work, was the responsibility of the crane crew.

HAYNE J:   Why?

MR PRIEST:   That was ‑ ‑ ‑

HAYNE J:   Why was it not the employer’s responsibility to make sure, as in this case, that overhead powerlines were a risk that was coped with?  Whether you do that by tagging or whatever, or spotters or the various other things mentioned in the particulars, why is that not the employer’s task?

MR PRIEST:   The evidence of Mr Hoare from Associated Rigging, was that this was an easy lift, that the powerlines did not create anything in the way of danger, that when a crane crew turned up on site they would do a site hazard analysis, that was something for the crane crew to do in relation to the cranage.  It appears that the crane crew did do an evaluation of the powerlines and resolved that they could carry out the cranage without difficulty. 

His Honour, we might add, in effect told the jury that the regulations and guidelines relating to no-go zones and so on relating to powerlines was such a dog’s breakfast - that was the expression his Honour used several times - that really they should regard the gravamen of the prosecution case as being the failure to provide for protection, and in particular, I think, the way his Honour left it to the jury, the failure to provide safety mesh.  But the fact of the matter was it was an evaluation done by the crane crew as to

whether or not they could crane the sheets up despite the fact that the safety mesh so-called had not been completed.

So it was the placement that was the matters over which the employer was to have control for the purposes of this count.  And it is plain that that placement was not under the control of the employer.  That was under the control of the crane crew.  Whether they did the lift, how they do the lift, was purely a matter for them.  The evidence of Mr Palmer was that if the crane crew had assessed that they could not do the job and had said, “Well, you’re just going to have to leave the sheets here for another day”, ACR would have had to have been bound by that.  But the crane crew, upon whose expertise ACR relied, resolved that they could do it and could do it safely. 

Your Honours, we say that special leave ought to be granted for these reasons, among others.  The first is that the decision of the court below plainly is wrong; there has been a substantial miscarriage of justice that only this Court can remedy.  Although the expression “engaged by” is not found in other occupational health and safety legislation throughout Australia, the general scheme of all occupational health and safety legislation throughout Australia at a State and a federal level is, as we say, the Robens Report.

His Honour Justice Nettle thought the duties under section 21(3) were the same as common law duties and we say that they are not. Given all those matters, we submit, with respect, this is a proper vehicle for the grant of special leave. If the Court pleases.

McHUGH J:   Yes, Mr Holdenson.

MR HOLDENSON:   This case depends on the facts, and one of the facts about this case is that Martin was not just a mere estimator.  The evidence in this case was that Martin was Palmer’s supervisor and superior for this particular job.  It was Martin who decided to use a crane to get the sheets up onto the roof, and it was intended to have safety mesh fitted prior to the placement of the roofing sheets, prior to the attendance of the crane for the purpose of putting up or lifting up the roofing sheets.  Hoare, from Associated Rigging, as Mr Priest said, did tell Pam in the applicant’s office that James Cranes would be there to do the job.  There was evidence in the case that that had happened before, it was common within the industry.

Now, on the morning of the incident, Palmer, who is at the worksite rings into the office; that is where Pam is.  He speaks to Martin.  He told Martin that not all the safety mesh would be laid out prior to the arrival of the crane.  Someone at the office, perhaps Martin, according to Palmer, notified Palmer that the crane would be coming.  In response Martin says, “Get as much done as possible”.  Palmer and the two employees of ACR continue to put up the safety mesh, but only a small amount is laid out when, lo and behold, the crane from James Cranes arrives.  Then, Palmer rings Martin, tells him that only some of the safety mesh was on the roof and the crane had arrived.  There is some discussion about the state of the safety mesh on the phone.  Palmer said in his evidence that neither he Palmer nor Martin were happy about that, and Palmer said, “It’s up to the crane driver”.  Martin said in response, “If they want the job, it’s up to them” - that is, the crane driver and the dogman – “to assess it as to how they want to do the job and if they do the job”.  Palmer then relays that to the crane driver.

Just pausing there, at no point in time in either of those two phone calls, the second of them being after the crane from James Cranes arrives, does Martin say, “Stop them doing the job.  Stop James Cranes from doing the job”.  Continuing on with the evidence, we all know that Palmer in his evidence had said that his job was to put the roof on.  Palmer then tells the dogman, Mr King, about the safety mesh or the lack of it, and where the roofing sheets were to be laid.  Indeed, there are at least eight passages in the transcript of the evidence of Palmer where he says he was up there telling King, the man who died, where it was that the roofing sheets had to be laid.  For example, at 631 of the transcript line 8 the question was asked:

What happened then?---I directed where I wanted the sheets laid on the roof.

So this is Palmer directing King –

Starting with the first load, what happened?---The first load was put on where I wanted it, as far over as you could get.

McHUGH J:   Where is 631?  There is a jump in my transcript between 626 and 647.

MR HOLDENSON:   Your Honour, there may not be all the pages there, but I am just reading from the trial evidence.  Now, in any event, the crane driver and King, both employees of James Cranes, went on and did the job.  And so there is an abundance of evidence, in our submission, to the effect that the independent contractor, James Cranes, had been engaged by the employer, that is the applicant, at least at the time when the crane driver and Mr King commenced the job of lifting the roofing sheets.

McHUGH J:   Yes, but what do you mean by “engaged”?

MR HOLDENSON:   “Engaged” has its ordinary meaning:  getting someone to do something.  And when one looks at the ordinary meaning, one goes to the dictionary, as occurred in this case, and within the dictionary and all those meanings set out down the page in the judgment of his Honour Justice Nettle, there is nothing there to say that there is some requirement of direct relationship, absence of intermediary, privity of contract, contract.  This Act has scattered through it the expression “contract”, generally in the context of contract of employment, and yet one thing is for certain, employment and engagement are two different things.  We know that from section 21, not subsection (3), but subsection (4)(c) where one sees next to each other with the word “or” in between them, “employ or engage”.  And so, once one goes to the ordinary meaning, no restriction on the absence of intermediary, does not depend upon the identity of the payer being one of the two, that is, engager or engagee, all of which is consistent with the legislative history, the entirety of which is set out in the judgment of his Honour Justice Nettle.  Of course, as was indicated in the judgment below by Justice Nettle, sure there is an indicator pointing the other way.

McHUGH J:   But in your submissions you express the view that “engage” means getting something done, which indicates some mental element.  But at 367, Justice Nettle seems to have taken a rather objective view of the expression.  He seems to say that if the subcontractor or its employees is working under the control of the employer, that is sufficient.

MR HOLDENSON:   Well, there are two aspects to this.  There is the limitation in 21(3)(b), and that is:

matters over which the employer –

(i)       has control –

It is pretty broad there because the words “in relation to” are there set out.  So the two requirements need to be satisfied, (a) and (b), that is 21(3)(a), which is the paragraph which contains the phrase or expression “engaged by”, and then there is paragraph (b), which is the one about control.  And each of the two must be proven by the Crown in order to sheet home liability to the employer with respect to the employees; (a) and (b) must be satisfied.  The ordinary meaning of the phrase - I am repeating myself to some extent – “engaged by” does not require there to be privity of contract between engager and engagee. 

McHUGH J:   Well, one can accept that, but the word does seem to require some mental element.

MR HOLDENSON:   If that be the case, it is made out here on the facts.  There is plenty of evidence to the effect that both Martin and Palmer, Palmer being the man who said in his evidence, application book page 24:

My job was to put the roof on.

Martin, the man who is authorised to speak on behalf of the applicant, he says at application book pages 25 to 26, he was Palmer’s supervisor and superior for this particular job.  There is absolutely no doubt in the world that Palmer on the site saw the words “James Cranes” written on the side of the crane.  There is also not much doubt - certainly inferable said his Honour Justice Nettle - that the man back in the office, Martin, knew that it was James Cranes that had turned up.  So, if it is all going to turn on knowledge as to the precise identity of whoever it is that turns up, then this case is not going to turn on that because that will be resolved inevitably in favour of the present respondent.

HAYNE J:   The chief weight of the applicant’s argument was thrown on the meaning of “engaged by”, but if you go to the notice of appeal at 390, 391, paragraph 2.2 and 2.1(a) raise the “engaged by” point.

MR HOLDENSON:   Yes.

HAYNE J:   Is that point capable of segregation from the point about control over matters presented by 21(3)(b)?

MR HOLDENSON:   The way the notice of appeal has been drafted, as I understand it, is to have a complaint about what is in 21(3)(a) and also, that is, in addition to a complaint about what is in 21(3)(b), perhaps to lay the foundation for what Mr Priest described in this Court this morning as the second matter they sought to agitate.  But in construing 21(3)(a), it is a principle of construction that one should have regard to the context, and part of the context in this case has to be what is written in (b).

HAYNE J:   But if you go to the particulars at 341 of the count, you have the question - particular 3 deals with safety mesh.  Was the particular about safety mesh really an issue by the end of the trial when the man had been electrocuted rather than had died by falling?

MR HOLDENSON:   No, that was not an issue.  Your Honour is right, and there was no issue ‑ ‑ ‑

HAYNE J:   So the question becomes one about particular 4, eliminating risks of electrocution.

MR HOLDENSON:   Well, that certainly went to the jury.

HAYNE J:   That seems to me to join in questions about the operation of 21(3)(b) reflecting back into the issues that it sought to agitate about 21(3)(a).  What do you say about that?

MR HOLDENSON:   If special leave is granted with respect to what is within ground 2.1(a), I am not going to stand in the way of a grant of special leave with respect to what is in 2.1(b) of that draft notice of appeal.  But if what is in your Honour’s mind with respect to those questions just asked of me is referable to the second matter which Mr Priest sought to agitate here today, there is a pretty quick and ready answer to that, apart from the glib answer that the judgment below is clearly correct.  And I can demonstrate it in this way by reference to Mr Priest’s written document.  If I could take your Honours to page 402, your Honours will see in paragraph 3.18, the last two and a half lines read:

The specific focus for the purposes of Count 3 must therefore be on who had control over –

Just pausing there, we are talking about 21(3)(b)(i) –

the placement of the requested –

that is, the placing of the roofing sheets.  That is consistent with what Mr Priest has said on the very next page in paragraph 3.22 where in the middle of the page it reads –

when charging the jury on the extended definition of “employee” and “matters” –

now “matters” is the word within 21(3)(b) –

the trial judge departed substantially from the case as disclosed in the Further Particulars.  Unfairly, it is submitted, he did not confine the relevant “matters” to the placement of the roofing sheets.

But with respect, those contentions are not consistent with what one sees in the particulars, because what one sees in the particulars - and your Honour  Justice Hayne took me to page 341 where they are to be found - what one does not see written there, and this is the way one should read the particulars, “For the purposes of 21(3)(b)(i), the matters over which the applicant has control are the placement of the roofing sheets”.  That is not how these particulars were cobbled together.  They were not cobbled together in response to the question of, “Identify the acts, facts, matters, circumstances and things upon which the Crown relied to prove matters over which the employer has control”, et cetera.  That is not how that is drafted, and that is why placement of roofing sheets, which is certainly a phrase within particular 1, and certainly the phrase at the start of particular 2, that is not how that has been drafted.

The matters over which the employer, that is, the applicant, had control are clearly safety mesh and personal protective equipment or protective individual fall harness, and your Honours will recall the evidence identified by his Honour Justice Nettle in that regard.  There is answer after answer after answer as to all of that within the record of interview of Martin, the man authorised to speak on behalf of the applicant.

HAYNE J:   But at the end of the day, did the mesh or harness loom in the way in which the Crown put its case as it finally went to the jury?

MR HOLDENSON:   Yes.

HAYNE J:   Why, when the man was electrocuted?

MR HOLDENSON:   Causation is not an element of this offence.  This is about an unsafe workplace.  This place was unsafe whether or not this man was killed, whether or not this man was electrocuted.  And indeed, there is a passage within his Honour’s charge where he makes that clear as to the manner in which the prosecutor was putting the Crown case.  An element of the Crown case was not that this man fell, because he was dead before he fell.  This is causation.  This is about an unsafe workplace, not whether or not that which is unsafe caused the death.  The death is often just a means by which one often, not this case, proves unsafeness, and so nothing turns on the fact that the safety mesh, had it existed, or had he been wearing a harness, would have saved him, because it could not have.  And that was identified in the charge to the jury and that is what the elements of the offence are.  The unsafeness need not cause the injury sustained.  There need not be any injury; there just need be an unsafe place.

Mr Priest goes on and says “engaged by” was wrongly construed by the trial judge, and so they were dealt with unfairly.  Well, his Honour Justice Nettle in the Court below did hold that the learned trial juge had misconstrued the phrased “engaged by”, and that was the very reason why the learned trial judge then reformulated or altered or enlarged the Crown case.  And then they say, “We’re prejudiced after that because the judge did not direct the jury”.  They are just seeking to piggyback themselves onto a benefit to which they are not entitled.

McHUGH J:   Yes, but having been a misdirection, prima facie there should be a new trial.  You have to then say that there was no miscarriage of justice because ‑ ‑ ‑

MR HOLDENSON:   That is easy.  I can put the submission with respect to that, and it is this.  The prosecutor opened the case in accordance with the manner in which his Honour Justice Nettle determined the law as to “engaged by”.  The evidence was led, and then when regard is had to the precise manner in which his Honour directed the jury with respect to this, the focus of the directions to the jury were, “You look at the circumstances”, and he did so. 

Could I take your Honours to page 135 of the application book, because at 135 and if I can work by reference to transcript lines, 135, line 12:

The Crown rely and say that the term engaged in this case you should be satisfied that the engagement has taken place on the following circumstances.

So he focused the attention of the jury on the circumstances.  Line 15 –

the original contract with ACR . . . He engaged James Cranes via Mr Kelton . . . He phoned Pam at ACR . . . He had done that before . . . Mr Martin, who you are aware is the job supervisor . . . If he tells Mr Palmer the crane was arriving at about one o’clock –

over the page, page 136, lines 2 and 3 –

the supervisor knew about the substitution . . . further discussion with Palmer . . . can you infer from that that he was aware at that time that the James Cranes Pty Limited crane was on site . . . It is a matter ultimately for you –

and that is repeated down to line 26.  He did it all over again, earlier before the complaint, at page 101 of the application book, that is earlier in his Honour’s charge.  At 101, line 20, having at line 8 focused on the wrong definition of the word “engaged”, line 20:

The facts, as I comprehend it are as follows.  Mr Hoare, who you will understand got the original job . . . A day before or on the day, we are not quite sure, Mr Kelton was not sure . . . Hoare engaged James Cranes –

so his Honour focuses the jury’s attention upon the correct circumstances in order to determine whether or not “engaged by”.  And that is why the court below in our submission was correct to conclude no miscarriage. 

McHUGH J:   But is that an answer, because the jury were directed in terms of agency.  They never determined anything in terms of ‑ ‑ ‑

MR HOLDENSON:   They were directed to the circumstances and told, “If you’re satisfied of all of that, then there is ‘engaged by’”.  That is how they were directed in those two passages.  They were directed to the circumstances.  It is just as if the learned trial judge had done what the sixth grade teachers used to do.  “If you don’t know the meaning of a word, just substitute ‘wheelbarrow’, and in order to find ‘wheelbarrow’, you’ve got to be satisfied of the following”.  Now, that is what has happened here.

His Honour Justice Nettle, with respect, was in error when he said what the judge did was unfair.  What the judge did may have been wrong, but it was of no consequence and so it was not unfair, certainly not an unfairness about which one is entitled to complain on appeal.  It was an unfairness that depended upon an error, so if you disregard the error, there might be an unfairness, but you cannot disregard the error.  And the error was all about “engaged by”.

There is no doubt in the world on the evidence which I identified that both Palmer and Martin knew who was there, and at the time that the work started, that is, the cranage of the roofing sheets up onto the roof, there can be no doubt, in our submission, that there was, at least at that time, an engagement.  Whether one wants to talk in terms of estoppel, ratification or whatever, it is of absolutely no consequence, in our submission, because there is an engagement at that time, and there could only ever be a finding with respect to that matter or that element in favour of the Crown. 

McHUGH J:   Your time is up. 

MR HOLDENSON:   If the Court pleases.

McHUGH J:   Yes, Mr Priest.

MR PRIEST:   May I take your Honours to the application book at 136.  To put this in context, the prosecutor had not opened any form of agency.  At the end of the Crown case we made a submission of no case to answer based on, among other things, there being a lack of evidence going to the independent contractor being engaged by ACR.  His Honour found the concept of “agency” would defeat that no case submission.  We then told his Honour that if he charged the jury along the lines of agency that that would be appealable error.  His Honour resolved that he was going to charge along the lines of agency in any event and at 136 he told the jury unequivocally that the expression “engaged by”, that element was satisfied in this case.  If you go on reading at the point where my friend stopped, line 15 of the transcript marking:

It is a matter ultimately for you in the circumstances to determine whether, firstly, Mr Martin was acting for and on behalf of the company and whether Mr Martin by his actions for and on behalf of the company ratified the appointment of James Cranes made by Associated Rigging, that is the concept of agency, and what I said to you is those are the circumstances that as a matter of law are sufficient, if you found those ‑ 

yes, my friend interrupts me to say –

to establish an engagement in these circumstances -

But his Honour told them that if they found on the way the evidence fell, they would have to find that that element of “engaged by” was satisfied.  One of the other vices that one picks up in that passage and about which complaint was made was that his Honour never, ever instructed the jury along the lines that would be required by Tesco, Meridian Global and so on as to the position of Mr Martin in the company.  It is instructive to look at the evidence and if I can take the Court very briefly to page 24, this is the evidence of Mr Palmer.  The Crown deliberately, we would say, left the evidence of control of this company in a very woolly state.  This is the evidence of Mr Palmer, line 18 of the transcript:

John Mason was general manager, and Ian Martin was estimator.

Next answer:

Carol Martin owned the operation, I believe, but she was not involved in the actual roofing part of it.

If you go across the page to 25, the last line:

Who was your superior or supervisor for this particular job?‑‑‑Ian Martin.

He was described, as we have said, as an estimator.  If you then go to application book 32, the second question on that page at line 7.  This is when the crane crew had arrived:

I had a discussion with him how much mesh was put on, but you know, I’d said well, it’s up to the crane driver, and Ian said let them assess it.

That is Ian Martin.  The next page, page 33, line 10:

After the dogman arrived, did you have any conversation with him?‑‑‑I did, yes.

Jumping down to the second question:

What did you say?‑‑‑I told him about the safety mesh, that we didn’t have it all finished, and he said he just wanted to get the job done.

And if you then go - and this is the last passage that I will take the Court to - to page 37, line 22:

So far as any electrical hazards of craning the material up, you relied on the experts, did you?‑‑‑I did, yes.

You relied on the crane company?‑‑‑I did, yes.

This is clear, isn’t it, in the industry, when the crane crew arrive on site they take control of the site?‑‑‑They do, yes.

The dogman is the one who is in control of the lift.  Isn’t that right?‑‑‑Yes.

You on site have got no power to tell the dogman what to do at all, have you?‑‑‑No, only where I want the load to be put.

Yes.  Whether he does the lift and how he does the lift is up to the dogman, isn’t it?‑‑‑Yes.

If the Court pleases. 

McHUGH J:   The Court is not persuaded that it is reasonably arguable that the Court of Appeal was wrong to conclude that there had been no substantial miscarriage of justice in this case. That being so, the case is not a suitable vehicle to determine the proper construction of section 21(3) of the Occupational Health and Safety Act (1985) or the correctness of the views expressed on those issues by the Court of Appeal.

Accordingly, the application for special leave is refused.

The Court will now adjourn to reconstitute.

AT 11.36 AM THE MATTER WAS CONCLUDED