Baiada Poultry Pty Ltd v The Queen - [2012] HCATrans 15

[2012] HCATrans 015

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M126 of 2011

B e t w e e n -
BAIADA POULTRY PTY LTD
Appellant
and
THE QUEEN
Respondent

FRENCH CJ
GUMMOW J
HAYNE J
HEYDON J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 7 FEBRUARY 2012, AT 10.17 AM

MR P.G. PRIEST, QC: If the Court pleases, I appear with my learned friend, MR M.J. CROUCHER, SC, for the appellant. (instructed by Norton Rose Australia)

MR D.A. TRAPNELL, SC: May it please the Court, I appear with my learned friend, MS K. ARGIROPOULOS, for the respondent. (instructed by Solicitor for Public Prosecutions (Vic))

FRENCH CJ: Yes, Mr Priest.

MR PRIEST: If the Court pleases, each member of the court below was of the view that ground 4 in that court which went to practicability had been made out. The difference in approach between Justice Nettle and the majority in the court however was, of course, that Justice Nettle held that the proviso could not be applied in the circumstances of the case, whereas the majority were of the view that it could. Essentially, Justice Nettle held that the proviso could not be applied because there had been a failure properly to put Baiada’s secondary defence before the jury and in those circumstances, his Honour was of the view that the situation was not functionally dissimilar to a situation where there had been a denial of procedural fairness, and we would say his Honour of course was right to come to that view.

The other members of the court came to the view that the proviso could be applied, but, in our submission, they made a number of errors along the way, the first of those errors being, in our submission, that the majority took the view that the application of the proviso involved the exercise of discretion, and so much is plain, in our submission, from the words that they used.

FRENCH CJ: In what sense do you say they were using the word “discretion”?

MR PRIEST: Your Honour, discretion, we would submit, in its ordinary ‑ ‑ ‑

FRENCH CJ: In what sense was the court using it? We know it is a slippery ‑ ‑ ‑

MR PRIEST: Yes, of course, but generally when judges in criminal courts use the word “discretion” it suggests a choice between alternatives, all of which might be open, and it suggests, in our submission, a choice between alternatives. The language that was used by the court was emblematic of that because they spoke of a discretion which they were capable of exercising. We would submit that that demonstrates a fundamental error in the application of the proviso when one has regard to the statutory language of the proviso.

FRENCH CJ: I am just wondering whether, having regard to the second sentence in 57 of what appears at 617 of the appeal book…

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: [2012] HCATrans 15
Decision Date

CaseChat Overview and Summary

Baiada Poultry Pty Ltd (the appellant) appealed to the High Court of Australia against its conviction for offences under the *Workplace Injury Management and Workers Compensation Act 1998* (NSW). The dispute concerned the appellant's liability for workers compensation insurance premiums. The appeal was heard by French CJ, Gummow, Hayne, Heydon and Crennan JJ.

The central legal issue before the High Court was whether the appellant, as a principal contractor, was liable for the workers compensation insurance premiums of its subcontractors, notwithstanding that those subcontractors had themselves failed to comply with their own obligations under the Act. Specifically, the court had to determine the scope of the appellant's vicarious liability for the non-payment of premiums by its subcontractors.

The High Court held that the appellant was indeed liable for the unpaid premiums. The Court reasoned that the *Workplace Injury Management and Workers Compensation Act 1998* (NSW) imposed a primary obligation on principal contractors to ensure that their subcontractors were insured and that premiums were paid. This obligation was not contingent on the subcontractors' own compliance. The Court emphasised that the legislative intent was to ensure that workers were protected by workers compensation insurance, and this protection should not be undermined by the failure of either the principal contractor or the subcontractor to fulfil their respective duties. The statutory scheme placed the onus on the principal contractor to take reasonable steps to ensure compliance, and a failure to do so rendered them liable for the premiums.

The appeal was dismissed.

Orders