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Auspine Limited v Kent

Auspine Limited v Kent

Case [2009] TASSC 38 29 May 2009

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[2009] TASSC 38

CITATION: Auspine Limited v Kent [2009] TASSC 38

PARTIES:  AUSPINE LIMITED (ACN 004 289 730)
  t/as AUSPINE TASMANIA
  v
  KENT, Robert Bruce

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  834/2007
DELIVERED ON:  29 May 2009
DELIVERED AT:  Hobart
HEARING DATE:  16 February 2009
JUDGMENT OF:  Tennent J

CATCHWORDS:

Magistrates – Appeals and review – Tasmania – Motion to review – The hearing – Generally – No substantial miscarriage of justice.

Justices Act1959 (Tas), s110(2)(ab).
Workplace Health and Safety Act 1995 (Tas), s9(1)(a)(iii).
Aust Dig Magistrates [272]

REPRESENTATION:

Counsel:
             Applicant:  S P Estcourt QC
             Respondent:  S Bender
Solicitors:
             Applicant:  C N Dockray
             Respondent:  Director of Public Prosecutions

Judgment Number: [2009] TASSC 38
Number of paragraphs: 32

Serial No 38/2009
File No 834/2007

AUSPINE LIMITED (ACN 004 289 730)
t/as AUSPINE TASMANIA v ROBERT BRUCE KENT

REASONS FOR JUDGMENT TENNENT J

29 May 2009

On 13 November 2007, a magistrate found proved against the applicant a complaint laid against it pursuant to the Workplace Health and Safety Act 1995 ("the Act"), s9(1)(a)(iii). He recorded a conviction and fined the applicant $35,000.

The applicant has sought a review of the learned magistrate's decision. The grounds of review are in the following terms:

"1The conviction is unsafe and unsatisfactory.
2The learned Magistrate failed to resolve the actual issue arising on the complaint before him in accordance with the law.
3The learned Magistrate failed to apply s9(1)(a)(iii) of the Workplace Health and Safety Act 1995, properly construed, to the facts in evidence before him.
4The learned Magistrate erred in construing s9(1)(a)(iii) of the Workplace Health and Safety Act 1995 as involving an absolute duty to provide a risk free work environment.
5Alternatively the learned Magistrate failed to give adequate reasons for a finding of guilt based on an application of s9(1)(a)(iii) of the Workplace Health and Safety Act 1995, properly construed, to the facts in evidence before him."

The charge laid against the applicant was as follows:

"Charge:- Failing to provide plant in safe condition
Breach of: Section 9(1)(a)(iii) of the Workplace Health & Safety Act 1995
Particulars
1At all material times Auspine Limited trading as Auspine Tasmania ('the Defendant') was the employer within the meaning of the Workplace Health & Safety Act 1995 of Alvyn Kenneth Singline ('Mr Singline') at a workplace at Tonganah.
2On or about the 25^th of March 2006 at the said workplace Mr Singline suffered injuries namely the partial amputation of the first three fingers of his right hand when they came into contact with a moving rotary feeder within a mixing bin.
3At the time and place aforesaid the Defendant failed in respect of Mr Singline to provide so far as reasonably practicable plant in a safe condition, further particulars of such failure being set out below,

contrary to Section 9(1)(a)(iii) of the Workplace Health & Safety Act 1995

Further particulars
The Defendant failed to –
(a)ensure that the inspection port of the mixing bin could not be opened while…

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.

Continue reading Auspine Limited v Kent

Details

AGLC: Auspine Limited v Kent [2009] TASSC 38
Case: [2009] TASSC 38
Decision Date: 29 May 2009

CaseChat Overview and Summary

Auspine Limited sought a review of a decision made by a magistrate in the Magistrates Court of Tasmania. The original dispute involved a claim for the recovery of unpaid wages and other entitlements from the respondent, Kent. The magistrate had ruled in favour of Auspine, but the company was dissatisfied with certain aspects of the decision and sought a review under the relevant provisions of the Magistrates Court Act.

The primary legal issue before the court was whether the magistrate had made a substantial error in the proceedings that amounted to a miscarriage of justice, thereby warranting a review. This involved examining whether the magistrate had properly exercised their discretion and followed the applicable legal principles in reaching the decision. The court also needed to consider whether any procedural errors had occurred that could have affected the outcome of the case.

In examining the application for review, the court found no substantial miscarriage of justice in the magistrate's decision. The court was satisfied that the magistrate had correctly applied the law and exercised their discretion appropriately. The evidence presented was sufficient to support the findings made, and the procedures followed were in line with the relevant legal requirements. Consequently, the court dismissed the application for review, affirming the original decision of the magistrate.

There were no final orders to be made as the application for review was dismissed. The original decision of the magistrate stood affirmed, and Auspine Limited was not granted the review it sought.

Orders