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Baiada Poultry Pty Ltd v Glenister

Baiada Poultry Pty Ltd v Glenister

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Case Copied 17 December 2015 77 min read

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2014 0155

BAIADA POULTRY PTY LTD	Appellant
v
INSPECTOR MARK KENNETH GLENISTER (Victorian WorkCover Authority) & ANOR	Respondents

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JUDGES:	FERGUSON and McLEISH JJA and ROBSON AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	16 July 2015
DATE OF JUDGMENT:	17 December 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 344
JUDGMENT APPEALED FROM:	[2014] VSC 265 (Ginnane J)

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APPEAL – Judicial Review – Appellant owned chicken processing factory where employee of cleaning contractor died – Appellant charged with offence under Occupational Health and SafetyAct 2004 – Charge alleged failure to ensure chicken processing line not operating and failure to ensure there was an adequate system to prevent contact with machine when being cleaned – Question of validity of charge – Magistrate found charge invalid – On review, trial judge held charge valid – Charge must contain particulars necessary to give reasonable information as to the nature of the charge – More than recitation of statute required – Valid charge did not require specification of detailed actions reasonably practicable for defendant to take to prevent identifiable risk eventuating – Fundamental requirement that charge specify act or omission which constitutes contravention – Use of a standard described as ‘adequate’ – Occupational Health and Safety Act 2004 (Vic) ss 20 and 26 – Criminal Procedure Act 2009 (Vic) ss 6 and 8 and Schedule 1 – Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 considered.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr D J Neal SC with Mr R O’Neill	K & L Gates
For the First Respondent	Mr G Lyon QC with Mr A Palmer	Victorian WorkCover Authority

FERGUSON JA
McLEISH JA:

We have had the benefit of reading, in draft form, the reasons of Robson AJA.

We agree with his Honour that appeal ground 1 should be dismissed. We would add that a reasonable defendant reading the charges would understand that the workplace is the factory owned by the appellant (‘Baiada’) at Laverton. Similarly, the reasonable defendant would understand that the matter over which it is alleged that it had control was the chicken processing line, regardless of the position of the subcontractor and without distinction between times when cleaning is taking place and when it is not. There is no mention of the subcontractor in the charge. Nor is such reference necessary if the allegation is (as it must be) that Baiada, rather than or in addition to the subcontractor, had control over that matter. It will be a matter for trial whether the Victorian Workcover Authority (‘VWA’) can make out its case in relation to the element of control by Baiada. Ground 1 is without merit.

With respect, we take a different view to Robson AJA so far as appeal grounds 2 and 3 are concerned. We would grant leave to appeal because those grounds have a prospect of success which is real in the sense that it is not fanciful.[1] Nevertheless, for the reasons…

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: [2015] VSCA 344
Decision Date: 17 December 2015

CaseChat Overview and Summary

In the case of Baiada Poultry Pty Ltd v Glenister, the appellant, a company operating a chicken processing factory, faced a charge under the Occupational Health and Safety Act 2004. The charge arose after an employee of a cleaning contractor was fatally injured while cleaning a processing line that was operating. The appellant was charged with failing to ensure that the processing line was not operating during the cleaning and that there was an adequate system in place to prevent contact with the machinery while it was being cleaned. The dispute centred on the validity of the charge, with the appellant arguing that the charge did not provide sufficient detail.

The central legal issue was whether the charge was valid under the Occupational Health and Safety Act 2004. Specifically, the court needed to determine if the charge contained the particulars necessary to give reasonable information as to the nature of the charge, as required by the Criminal Procedure Act 2009. The appellant contended that the charge was insufficient because it did not specify the detailed actions reasonably practicable for the defendant to take to prevent the risk of contact with the machinery. The court examined whether the charge met the fundamental requirement of specifying the act or omission that constituted the contravention.

The court held that the charge was valid. It determined that the use of the term "adequate" in describing the system required to prevent contact with the machinery did not render the charge invalid. The court held that the charge did not need to specify the detailed actions reasonably practicable for the appellant to take. Rather, the essential requirement was that the charge specify the act or omission that constituted the contravention. The court referenced Kirk v Industrial Court of New South Wales, which emphasised that the particulars of the charge must enable the defendant to understand the nature of the offence with sufficient clarity to enable a proper defence to be prepared. The trial judge's decision to uphold the validity of the charge was affirmed.

The final orders of the court were not explicitly detailed in the text, but the affirmation of the trial judge's decision suggests that the charge against Baiada Poultry Pty Ltd was considered valid, thereby upholding the prosecution's ability to proceed with the matter.

Orders