Baiada Poultry Pty Ltd v Glenister & Anor

[2016] HCATrans 171

[2016] HCATrans 171

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M16 of 2016

B e t w e e n -

BAIADA POULTRY PTY LTD

Applicant

and

INSPECTOR MARK KENNETH GLENISTER, VICTORIAN WORKCOVER AUTHORITY

First Respondent

MAGISTRATES’ COURT OF VICTORIA

Second Respondent

Application for special leave to appeal

KIEFEL J
GORDON J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO MELBOURNE

ON THURSDAY, 28 JULY 2016, AT 10.53 AM

Copyright in the High Court of Australia

MR D.J. NEAL, SC:   May it please your Honours, I appear with my learned friend, MR R.W. O’NEILL, on behalf of the applicant.  (instructed by Sparke Helmore)

MR G.J. LYON, QC:   May it please the Court, I appear with MR A.J. PALMER for the first respondent.  (instructed by Victorian WorkCover Authority)

KIEFEL J:   Yes, Mr Neal.

MR NEAL:   Your Honour, can I begin by highlighting the points of general importance that we say are at stake in this application.  These offences arise out of what is almost a national legislative scheme.  All of the jurisdictions bar Western Australia and Victoria subscribe to the uniform occupational health and safety legislation.  Western Australia and Victoria are the holdouts on that but the central concepts in the general duty offences apply across all of the jurisdictions.

KIEFEL J:   Well, that may be so but really the question here is whether or not the particulars of the offence were sufficient and Kirk has said what is sufficient so what will this case add to the jurisprudence on this matter?

MR NEAL:   Two things - well, actually three things, your Honour.  Firstly this - Kirk was decided under the New South Wales regime where reasonable practicability was not an element of the offence.  That is now an element of the offence in all of the jurisdictions.  We say then applying the standard principles applicable to charging, that the elements of the offence, both legal and factual, the essential legal and factual elements of the offence must be present in the charge and we say in this case they are not and that the reasoning in the Court of Appeal below went wrong in that respect.

Secondly, Kirk did not involve the issue of control over a matter which is in section 26(2) of the Victorian legislation and its equivalents occur in all of the other jurisdictions as well.  So, this Court has not ruled on those things and again, these charges contain no reference to the question of control over a matter, either as a legal element by reference to section 26(2) of the offence or by way of any essential factual elements in support of that legal element.

KIEFEL J:   But the two points of distinction that you have identified - the express reference to “so far as was reasonably practicable” and that the employer had control of the workplace - if they are not expressed in other legislation they would be implicit, would they not?  You would have to have control of a workplace as an employer.

MR NEAL:   Well, two points to make there, your Honour.

KIEFEL J:   And, “so far as reasonably practicable” would have to be a criterion for liability.

MR NEAL:   Let me take control of the section 26(1) and section 26(2) points first, your Honour.  Your Honour said control of the workplace - that is mentioned in the charges and that is the part of section 26(1) which we do not challenge.  However, the duty is further limited in section 26(2) to only those matters over which the defendant has control and those are the issues that arose in the Western Australian and South Australian cases to which we have referred where an independent contractor was doing things under the aegis of a principal contractor.

So that it might be, as was the case in Complete Scaffold and Scaffidi, that the factory itself was under the control of the proprietor of the factory but the court held clearly that on legislative provisions which are almost identical to these, the fact that there were specialist contractors in the factory doing a fit‑out and who are erecting scaffolding, the erection of the scaffolding which collapsed, was not the responsibility of the principal.  It was the responsibility of the independent contractor over whom traditionally the principal has no direct control. 

The courts said in that case and they said also in the Western Australian cases referred to in our submissions, Reilly v Devcon and Kirwin, that unless that was so the extent of the duty of a principal contractor would be absolutely endless.  So the distinction we say between sections 26(1) and 26(2) are essential distinctions in this because they go to the level of the liability.

GORDON J:   But can I just understand, if you go to the charge sheet and you go to charge [4], which I understand is the subject of the application, is not the core of the charge there set out?  You have the reference to the allegation that the applicant was in control – “management or control of a workplace”.

MR NEAL:   Yes.

GORDON J:   What is missing?

MR NEAL:   The section 26(2) allegation, your Honour, that it was control of the matter.

GORDON J:   But the matter is then identified.  You have:

control of a workplace ‑

in which:

you failed to ensure, so far as was reasonably practicable, that the workplace and the means of entering and leaving it were safe and without risks to health.

That is the matter, is it not?

MR NEAL:   No, your Honour, it is not.  That would be ignoring the reasoning in the South Australian and Western Australia Court of Appeal decisions that I have just referred to.

KIEFEL J:   Or, is the matter the chicken processing line that was identified in the charge.  That is what the Court of Appeal said.

MR NEAL:   We say that is mischaracterised too, your Honour.  What really is the matter is the set of facts which gave rise to the risk. So, in this case, it was not the chicken ‑ ‑ ‑

GORDON J:   But they are set out in the particulars, are they not?

MR NEAL:   Could I finish my answer to her Honour Justice Kiefel first and then come to your point next, please.  Your Honours, in Reilly v Devcom, for example, the principal contractor was the main builder on the site.  What was happening was that steel was being erected on that site and it had to have certain tolerances and measurements and so on.  The allegation that the principal contractor was the occupier, controller of the site is true.

But we then need to go to section 26(2) of the legislation which says, but this duty extends only as far as matters over which the principal contractor has control and the matter which was focused on in the reasoning in that case and the parallel reasoning in Complete Scaffold and Scaffidi was the erection and bracing of the steel work which was a matter for the independent contractor who was expert in those fields.

There is similar authority on this same point in England in a case called Associated Octel Co Ltd, which is referred to in our submissions, and similarly in this Court’s decision in Baiada in the High Court and below in the Court of Appeal where again the issue as between a principal contractor and independent contractor - and the same points go firstly in relation to control, did the principal contractor have the right to control the actions of the independent contractor. 

In Baiada in the High Court - and the same point is made by Justice Nettle in the Court of Appeal - there was a question about contract.  Is there something in the contract between the principal contractor and the independent contractor which entitled the principal contractor to give directions to the independent contractor about the matters of concern. 

That was the first point and then the second point, if that is so, is the principal contractor entitled to say that it discharged its liability under the Act entirely by the engagement of a competent independent contractor.  So, as you will see from the very brief statement of the charges and the elements in this offence, that level of specificity is entirely absent.  There is no word at all about the concept of reasonable practicability.  There is not a reference, for instance, to the criteria set out in section 20(2) of the legislation which ‑ ‑ ‑

KIEFEL J:   But is not your central point that the charges need to specify the measures that should have been taken?

MR NEAL:   No, your Honour.  Our central points are that the very essential proposition that underlies the whole of this case is this:  that all of the legal elements of the offence must be specified and the factual allegations, the essential factual allegations which support those legal elements must also be stated.  That comes out of a line of authorities starting with Smith v Moody, picked up in Johnson v Miller, picked up again in Kirk with specific reference to this legislation.  So that if any one of these elements is not specified either legally or factually the charge falls. 

The question of measures, your Honour, that you are referring to in Kirk - the only issue at stake in Kirk was measures.  Reasonable practicability arose by way of a defence so it could not be said that that should have been something that should have been specified in the charge.

KIEFEL J:   No, the point in Kirk was that the charge did not say what they had done wrong.  It did not actually identify the elements of the offence.

MR NEAL:   In Kirk, your Honour?

KIEFEL J:   Yes.

MR NEAL:   Yes, that is right and we say this charge is bad on that score too, but ‑ ‑ ‑

KIEFEL J:   How can you say that when it explains that an adequate system was not in place and describes what occurred?  That is where the offence lies.

GORDON J:   Like my reference to two respects.

KIEFEL J:   Yes, in two respects.

MR NEAL:   Yes, your Honour.  Two points to make about it.  Firstly ‑ ‑ ‑

KIEFEL J:   The basic point is that the processing chain line should not have been operating while a cleaning procedure was undertaken.

MR NEAL:   Your Honour, the problem with it is twofold.  Firstly, it actually falls foul of almost the exact ‑ ‑ ‑

KIEFEL J:   Bad description, I think.

MR NEAL:   ‑ ‑ ‑ fault that was in Kirk.  It refers to an adequate system being in place to do this, that or the other thing.  It is said by our learned friends that these particulars are well in excess of what were the particulars in Kirk.  We say that is not the case.  The particulars in Kirk refer to the Mount Hercules Farm which was run by the Kirk Company and the use of an ATV and then it describes various systems and the court says, well, the inadequacy of the system does not tell you the act or omission that should have been performed.

GORDON J:   I understand that, Mr Neal, but here you have the precise step that tells you where the system failed.  The chicken processing chain line should not have been operating.

MR NEAL:   Your Honour, we say that that is an outcome.  It is not a measure, it is not an act or omission, something ‑ ‑ ‑

GORDON J:   It sounds like a measure to me.  It is turned off.

MR NEAL:   Well, your Honour, the ‑ ‑ ‑

GORDON J:   It is not operating.  Not operating means not operating.

MR NEAL:   Even if that were true, your Honour, even if that were true, it still does answer the questions about, well, was it reasonably practicable to do that and if what was reasonably practicable in order to do this, what had been specified as ultimately - well, there is a proposed amendment you might see at page 16 of the application book, which highlights the distinction that we are making.  The amendment to it says:

Ensuring that the chicken processing line was tagged and locked out before any cleaning commenced and remained so throughout the cleaning process.

We say that that exposes the problem that what the charge says - talks about an adequate system for ensuring certain things.  Now, Kirk at paragraph 33 says, well, look adequate systems to ensure this and that - that is not an adequate or sufficiently specific identification of the act or omission that is concerned.

GORDON J:   I think it is a danger to use that as a sort of statutory set of rules or criteria.

MR NEAL:   Yes, your Honour, it is.

GORDON J:   I mean, here the first particular does refer to adequate system but goes on to explain what that adequate system is to ensure - that the thing is not operating.  It is stopped.

MR NEAL:   There is a parallel in Kirk.  One of the particulars in Kirk says an adequate system (a) to ensure that the drivers were properly trained or that there was a risk assessment carried ‑ ‑ ‑

GORDON J:   It is very broad, compared to ‑ ‑ ‑

MR NEAL:   These are broad things which really start to expose one of the other criticisms that we make of this case, that these failures compound because if you do not know what that system should be - should it be a system that says Baiada should have directed Ecowize who is the cleaner - these cleaners come in at night and they clean a processing line that runs for a kilometre or more.  These are the processing lines that have been used during the day by people to put chickens on, take them off and do various processes.  The processes stop at a certain time and then in the evening the cleaners come in and do the cleaning. 

So the question is well, Baiada should have prevented the machine from running during the cleaning, it seems.  Well, how?  By what mechanism should it have given a direction?  Should it have done it itself? Should someone else have done it?  Should Ecowize have done it?  Was it entitled in fact to say to Ecowize you must do it this way and to say nothing of - and was it possible in fact to clean the machinery adequately because of health standards.  If it remains stationary during the whole cleaning process, was that in fact a safe thing to do?

The reference that I made to the Kirk particulars, you can see those particulars at paragraph 21 in the Kirk Case.  So the complaint in Kirk and the complaint that the court seized on was to say there was a measure of specificity that has to be adopted in relation to the charges.  These are criminal charges which are essentially negligence based in their formation but if the act has not sufficiently specified what actually needs to be done to effect the stopping of the operation of the machine it then is very difficult to work out, well, who should have done that and in a situation - and this is our third complaint about these particulars, the charges themselves make no reference whatsoever to the presence of an independent contractor in this mix and again, these are problems which the court below simply ignored or put to one side.

It disregarded the question of control and it disregarded or said it was permissible to disregard the specification of the duty against the principal contractor without any reference whatsoever to the independent contractor who was the person who was actually performing the work. 

Now, the overall requirement of the charge under section 8 of the Criminal Procedure Act (Vic) is that reasonable information must be provided in order to elucidate the nature of the offence. We say that that is the same principle. It is a codification of common law principles relating to what must be found in a valid criminal charge.

The reasoning for that lies that back in the earliest decision of Smith v Moody.  We have cited that in our summary and it says this, that it has always been the rule for charging in England and adopted here that the charge must be stated with specificity in order to avoid the refuge in generalities and a failure by the person drafting the charge to turn their mind to the specifics of the issues. 

Now, these charges were filed on the last day before the limitation period.  If you look at the extent of the particulars in them, they are extraordinarily briefly stated.  Given the complexity of the situation that they were dealing with we say it could not possibly be said that these charges have provided reasonable information about the nature and the manner of the offending when it does not say anything about the concept of reasonable practicability whatsoever, when it says nothing about section 26(2), that is, the requirement that the defendant had control over the matter, being the cleaning, by either pointing to a contractual provision or the like or then, when you come to the practicability of it, by saying anything about the likelihood of the risk, the consequences that would have happened if the risk materialised, has this ever happened before or is it a common occurrence, is there something to be said about the defendant being on notice about the risk associated with this or like many of the particulars that we receive in these cases, is there some evidence or factual material about industry knowledge of the risks associated with the cleaning of food processing machinery.

So, for example, we provided yesterday to the Court, in fact, the particulars out of John Holland, a case that special leave was refused, was decided in the New South Wales Court of Appeal, but it was a case about

engineering and the particulars in that made use of the word “adequate” but they made use of the word “adequate” in a particular which specifically invoked the engineering drawings prescribed for the construction of the tunnel which wanted shotcrete of a certain dimension and steelwork of another dimension and so on. 

These particulars run to some two to three pages as compared with these particulars which are opaque and, we say, are completely lacking in perhaps what is the most central element of the offence, reasonable practicability.  There are simply no facts on which to base that and where the court below really proceeded on a process of inferences which offend the principles that are expounded in Johnson v Miller and adopted specifically in this legislation in Kirk, being that the charges must go to the specificity. 

That is what is needed for a valid charge in order to provide reasonable information such that the court can make an assessment of what is relevant evidence and the defendant can respond to the charges and that, even before any other step is taken, those matters should be informed in order to allow the charge to be regarded as valid in the first place.

His Honour Justice Nettle in fact made that specific point in relation to another one of the occupational health and safety cases arising out of Victoria, ACR Roofing, and in the Court of Appeal he reiterated that point and said in relation particularly to this issue of control that both the right to control the matter and the practicability of the defendant controlling the matter were essential features in this legislative scheme and had always been accepted in Victoria and we say, accepted ultimately, his view, he was in dissent in the Court of Appeal but was accepted in the High Court on this point, where the High Court says in its majority judgment at three places, the fact that it is possible to do something does not mean that it is practicable. 

KIEFEL J:   Yes, you see the time.  Thank you, Mr Neal.  We do not need to call upon you, Mr Lyon. 

In our view, there is no reason to doubt the correctness of the decision of the Court of Appeal.  Special leave is refused with costs.

AT 11.15 AM THE MATTER WAS CONCLUDED