Baiada Poultry Pty Ltd v The Queen

[2011] HCATrans 251

[2011] HCATrans 251

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M20 of 2011

B e t w e e n -

BAIADA POULTRY PTY LTD

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

HAYNE J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 2 SEPTEMBER 2011, AT 12.46 PM

Copyright in the High Court of Australia

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

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

HAYNE J:   Yes, Mr Priest.

MR PRIEST:   Your Honours, there were two defences at trial.  The first one was that the applicant did not have control over matters affecting health and safety, in particular, that the applicant did not have control over that matter affecting health and safety which was important, that being forklift management and control at the grower farms and, in particular, the Houben farm.  The second defence was based on practicability, that is, the applicant’s case at trial was that if the jury found against it in relation to its first offence, it was entitled to rely on the the engagement of independent contractors to satisfy the test of practicability.  That is putting it in a positive way, of course.  It was required that the prosecution prove beyond reasonable doubt that that was not a practicable method of ensuring health and safety.

Now, what the trial judge effectively did in this case, as Justice Nettle found and indeed as the judges of the majority found, was remove from the jury’s consideration that second defence and that is where the minority, Justice Nettle, and the majority, Justices Neave and Kyrou, parted company.  Justice Nettle, correctly in our view and in our submission, was of the opinion that the removal of a defence in those circumstances could not be anything other than a substantial miscarriage of justice, therefore, the proviso could not be invoked and applied. 

Justices Neave and Kyrou, on the other hand, despite the error having been found, were content to apply the proviso and, in our submission, their application of it was ill conceived for at least two reasons.  The first is their Honours took the view that they had a discretion as to whether or not to apply the proviso and that, in our submission, based on interpretation of the words of the proviso, is plainly wrong, and we will endeavour to develop that in a moment.  The second is this.  They seem to take comfort from the fact that the jury returned a guilty verdict in relation to the count and consistently, they thought, with what was said in Weiss they were entitled to take that into account.

HAYNE J:   Where do we see that, do you say, Mr Priest?

MR PRIEST:   Your Honours, I just cannot put my finger on it for a moment.  Might I come back to it in a moment?

HAYNE J:   Yes, go on.

MR PRIEST:   Now, can I take the Court first of all to what was said by Justice Nettle because it is important so that the distinction can be seen between what he said and the majority said.  Can I take the Court first of all to application book at 84 and, in particular, line 10.  Perhaps I will start a little above that, the last three lines of the previous paragraph:

It would have been wrong for the judge to direct the jury to hold that engagement of DMP and Azzopardi Haulage was enough to discharge Baiada’s obligation. 

I am persuaded, however, that Baiada has legitimate cause for complaint about the judge’s failure to direct the jury that they could not convict Baiada of failing to do what was reasonably practicable to provide and maintain a safe working environment in respect of the loading operations unless they were satisfied beyond reasonable doubt that Baiada’s engagement of DMP and Azzopardi Holdings was insufficient to discharge Baiada’s obligation to do what was reasonably practicable to provide and maintain a safe working environment in that respect.

If I can take the Court over then to application book 85 at about line 5, his Honour is talking about the re‑direction that was given after an exception was taken by counsel at trial.  He said of the re‑direction:

But it was certainly not sufficient to convey to the jury, with the weight of the judge’s authority, that the jury were bound to consider whether the engagement of DMP and Azzopardi Haulage was sufficient to discharge Baiada’s obligation to do what was reasonably practicable to provide and maintain a safe work site in relation to the loading activities.  To the contrary, by referring to defence counsel’s submission on the point, and telling the jury that it was a matter which they ‘might consider’, the judge in effect implied that the jury were at liberty to ignore it at their option.

Of course, your Honour, with the conventional directions given to the jury in this case at the outset of the charge that the comments of counsel were things that they could choose to ignore if they wanted to. 

HAYNE J:   But all members of the Court agree upon these conclusions you have just taken us to, do they not? 

MR PRIEST:   These conclusions, yes.

HAYNE J:   So that we begin from the premise misdirection. 

MR PRIEST:   That is right, your Honour.  Well, more to the point, and this is the very essence of this, it was the withdrawal of a defence.

HAYNE J:   Yes. 

MR PRIEST:   Now, when we come to look at what the majority said, they equated this to a misdirection on an element of an offence, and this is a very different species, in our submission, because there were only two defences.  When the jury were satisfied beyond reasonable doubt that there was control over matters, they would have turned then to the second defence but it was non‑existent because it had been taken away by the judge.  Now, if I can take the Court then to what Justice Nettle said with respect to the proviso at 86 of the application book, about line 15, paragraph 50:

But there is then a further question of whether, even if I am persuaded of Baiada’s guilt to the requisite degree, I think this to be a case in which it is still proper to allow the appeal.  In my view, it is.

The inadequacy of the judge’s direction denied Baiada the benefit of the jury’s consideration of one of its two principal defences.  To that extent, the inadequacy of the direction deprived Baiada of ‘the ordinary entitlement of an accused person to have serious criminal charges decided in the first instance by a jury’.  While that is not the same as a ‘significant denial of procedural fairness’ – which the High Court in Weiss instanced as an exemplar of cases in which appeals should be allowed – it is, in this case, functionally not dissimilar. 

With respect, we would endorse those comments.  Could I then take the Court to, by way of distinction, what was said by the majority and start at 87 of the application book, about line 27.  It is paragraph 54, the third line of that paragraph.  Their Honours find:

that ground 4 is made out.  However, with great respect to his Honour, we are of the view that, in accordance with the principles in Weiss v The Queen, the proviso to s 568(1) of the Crimes Act 1958 applies –

and it goes on.  I then want to take the Court over the page to 88 where the first of the advices to be found in the majority’s reasons are located.  At paragraph 57 of page 88 the Court says this:

The Court’s discretion to apply the proviso to s 568(1) of the Crimes Act 1958 can be exercised on appeal where the trial judge has failed to direct a jury on all the elements of an offence or has misdirected the jury in part.  The Court is required to reach an independent conclusion on whether a substantial miscarriage of justice has actually occurred as a result of the misdirection.  In the circumstances of this case there was no substantial miscarriage of justice. 

We say, and the Court will see immediately, that the majority purports to be relying upon advice for the proposition that there is a discretion to be exercised.  If you go to the bottom of 88, the last sentence:

At the hearing of the application, it was not suggested that there had been a significant denial of procedural fairness at trial.

With respect, that was right in one sense, we did not characterise it as procedural fairness, but we did complain with as much earnestness as we were able to muster that the removal of a defence, which is tantamount of absence of procedural fairness, did amount to a substantial miscarriage of justice.  We go down then to the next paragraph, midway through:

It is not irrelevant that, although the direction on the reasonable practicability requirement was inadequate, that element was not altogether ignored by his Honour, who re-directed the jury at the request of defence counsel in the terms set out by Nettle JA. 

Now, one is left to ask, why it is, as they say, a not irrelevant factor in circumstances where it was a comment by counsel only, as it was characterised, one that the jury were entitled to accept or reject at whim?

HAYNE J:   Well, there seem, if I may say so, to be two distinct elements in your argument.  First, if an appeal court concludes that there is no substantial miscarriage of justice, is the court bound to dismiss the appeal or may the court nonetheless decline to do so?  Now, that is a question of construction of the relevant provision and a question of whether it is a finance facilities type provision.  That is one set of questions.  But the second set of questions, which I think may be distinct, seems to be in a case where, as you would have it, a defence is not left to the jury, what use can an appellate court make in its assessment of the record below of the fact that the jury has brought in a guilty verdict.  As I would understand it, your argument is where a defence has not been sufficiently left, well, the verdict takes you nowhere.  Is that the nub of it?

MR PRIEST:   That is it, your Honour.  We do not want to overstate it.  It may be that some might argue the verdict is of some relevance insofar as one can see that an aspect of the defence that was left was rejected, but insofar as ‑ ‑ ‑

HAYNE J:   But it requires articulation, articulation of the argument that is being engaged.  If you say verdict of guilty returned, I can use that to reach a conclusion about substantial miscarriage.  There is an undistributed middle that needs to be explored and explained.

MR PRIEST:   Yes.  In our submission, it really boils down to a question of logic.  How can a jury’s verdict be interpreted as meaning anything about a defence when that defence simply was not left to them?  It was not exposed for their consideration at all.  I am not sure that that is answer to your Honour’s question; it is endeavouring to be.  What I wanted to do is to take the Court to Weiss and deal with this question of statutory interpretation because ‑ ‑ ‑

BELL J:   Just before you do that, Mr Priest, it is at application book 89.  The first sentence of paragraph 59 is the passage you were earlier looking for in which the majority – the first and second sentence in which the majority have regard to the plea of guilty.

MR PRIEST:   Yes, thank you, your Honour.  May I with – and I hope this does not sound unctuous – express my gratitude to your Honour for finding it because it was staring me right in the face.  Can I take your Honours briefly to Weiss which is in tab 5 of ‑ ‑ ‑

HAYNE J:   With a view to demonstrating what, Mr Priest?

MR PRIEST:   Well, what I wanted to do was take the Court to one passage in particular which we would place reliance upon to demonstrate – it possibly does not need much demonstration, but the categories are not closed when it comes to substantial miscarriage of justice and the passage was ‑ ‑ ‑

HAYNE J:   I am not sure that we need persuasion of that proposition, but where do we go from there is my real question?

MR PRIEST:   What we press upon the Court is this.  This has got to be, in our submission, the way in which one looks at the question of a proviso and one must hark back, of course, to the words of the proviso.  Can I respectfully remind the Court of the terms of the proviso, and it is set out in the headnote conveniently for Weiss at tab 5:

The Court of Appeal on any such appeal against conviction shall allow the appeal if it thinks that the verdict . . . is unreasonable – 

and so on, and there are three heads. 

HAYNE J:   All this has been changed in 2010 but not in respect of this case.

MR PRIEST:   No, your Honour, and so far as that is concerned ‑ ‑ ‑

HAYNE J:   It is common around the country otherwise, I understand that.

MR PRIEST:   It is, and the new federal provisions are going to have this in it, “Provided that the Court of Appeal may, notwithstanding” and so on.  Now, our friends have not said anything about this question of discretion in their written submissions so we are not sure what answer they have put so far as this is concerned, but we would submit that the word “may” does not import a discretion in the sense that there is a choice between competing factors. 

In our submission, the way in which the section must be read is this.  You start from the proposition that if you fall within any of those three heads – and here we say a wrong decision on a question of law or miscarriage of justice – then the appeal must be allowed.  It shall be allowed unless the respondent, the Crown, can show that there is no substantial miscarriage of justice.  That is all the word “may” has to do in the proviso.  It is only giving one alternative.  The appeal can only be dismissed if it can be shown there is no substantial miscarriage of justice.  So that, in our submission, is the way in which the proviso ought to have been interpreted in this case.  It can hardly be said, in our submission, that removal of a defence is anything other than a substantial miscarriage of justice, particularly when there were only two defences. 

BELL J:   Was the court invited to apply the proviso respecting the question of the adequacy of the way in which the defence had been put?

MR PRIEST:   I cannot recall now, your Honours.  I cannot recall whether it was the court’s own notion or it was the second ‑ ‑ ‑

BELL J:   I think your opponent ‑ ‑ ‑

MR PRIEST:   My learned friend is indicating ‑ ‑ ‑

BELL J:   ‑ ‑ ‑ says that the court was invited to apply the proviso so ‑ ‑ ‑

MR PRIEST:   Well, I am comforted by that.  It shows his Alzheimer’s is not at such an advanced stage as mine.  As to the question of control, this remains, in our submission, a very important question.  The focus here ‑ ‑ ‑

HAYNE J:   Why would the question of control come up?

MR PRIEST:   The focus here, your Honour, should have been on control over matters affecting health and safety.  When one reads what was said by the court in total and, in particular, the reasoning of Justice Nettle, in our submission, it was redolent of the notion that control over the workplace rather than control over the particular matters affecting health and safety was sufficient.  By way of example ‑ ‑ ‑

BELL J:   These are your grounds 1 and 2?

MR PRIEST:   Yes, I am sorry, I have turned to grounds 1 and 2.  Central to the prosecution’s case on the question of control were the heads of agreement, which are to be found at application book 77 in the judgment of the court below going over to 78.  At the top of 78, clause 1(c) is to be found:

this agreement applies to the processing plant at Pipe Road Laverton North or as directed by Baiada.

HAYNE J:   I see the time, Mr Priest.  Perhaps if you can state in short form what it is that you want to say on this subject.

MR PRIEST:   Yes.  By no torturing of the language in that agreement could it be said that Baiada had control or had the right to control those matters affecting health and safety at the Houben farm, that being forklift management and control.  Otherwise we rely on ‑ ‑ ‑

BELL J:   It is 10(b), is it not?

MR PRIEST:   Yes.  Otherwise we rely on what we have written.  If the Court pleases.

HAYNE J:   Thank you.  Yes, Mr Trapnell.

MR TRAPNELL:   If it please the Court.  To deal with ground 3, and whilst it is true that the majority used the word “discretion”, it is submitted that that was in fact a misdescription of what the process was that the court, or those two members of the court, went about.  In my submission, when you look at the way they went about their task of applying the proviso, and clearly they were very much aware of the decision of this Court in Weiss, they did in fact apply the correct process and they were not appearing to be exercising a discretion. They looked at the whole record and they asked the right question and they determined on the basis of all of the record that the applicant had not lost a fair chance of an acquittal. 

BELL J:   You do have the difficulty of the first two sentences in paragraph 59 in terms of the reasoning, do you not, in circumstances in which it is common ground that the defect in the trial was effectively taking away from the jury one of the two defences on which reliance was placed?

MR TRAPNELL:   Well, it is true that – well, I do not necessarily or in fact I do not agree that that defence was taken away from the jury.  The jury was left with an inadequate direction about that and that is not uncommon for there to be misdirections and for a court of criminal appeal to give itself the correct direction and then applying that direction to the facts and the law to make its own conclusion about whether the applicant has lost a fair chance of an acquittal. 

BELL J:   Justice Nettle, with whom, as I would understand it, the majority agreed on this, at application book 86, first line of paragraph 51said:

The inadequacy of the judge’s direction denied Baiada the benefit of the jury’s consideration of one of its two principal defences.

I think you are right, Mr Crown.  That is not to take the defence away but, nonetheless, for practical purposes, that might be thought to come close.

MR TRAPNELL:   Well, that might well be but, nonetheless, it is not a situation where, for example, self‑defence has not been left to the jury or an alternative verdict has not been left to the jury.  It is a case of misdirection.  It is a case where a court of appeal in a case like this where credit issues were not part of the case below, where they did have the whole of the record, much of which was documentary, much of which was not in dispute, that they were in as good a position as any – and I know that is not the test, but, nonetheless, they were in a good position to review the whole of the record, apply the correct direction or give themselves, in effect, the correct direction and then to come to the conclusion that they did regarding the application of the proviso.

HAYNE J:   Now, is that the process which in fact the majority followed?

MR TRAPNELL:   In my submission, it is. 

HAYNE J:   How does one account for what happens in the early part of paragraph 59?

MR TRAPNELL:   Well, they say that is not irrelevant, but they, nonetheless, do in paragraphs 63 and 64 consider the whole of the record, consider the matters that are set out in section 20(2) of the Act, which are the matters which the judge did read to the jury.  He read the whole of all those matters in the Act which set out how reasonable practicability is to be approached under the Occupational Health and Safety Act and they have, applying the correct direction and looking at those matters which they are required to under the Act, formed a view that that defence was not made out. 

BELL J:   I suppose, Mr Trapnell, one thing, reading 59 and 60 together, that one might take is this.  In 59 the majority do have regard to the fact that there was a verdict of guilty returned.  In 60 they say that in the circumstances of this case they:

do not consider that it would have been open to the jury on the whole of the evidence to acquit the applicant – 

I suppose that is another way of saying that putting out of their consideration the fact that a guilty verdict was returned, they have concluded on the whole of the evidence that ‑ ‑ ‑

MR TRAPNELL:   Yes, they have formed their own view about that, quite separate from the fact that there has been a verdict of guilty in this case.

BELL J:   One, nonetheless, comes back to a consideration that in a case involving trial by jury when the misdirection is to effectively deny one of the two defences that has been run at trial whether that is an error of the character that does attract the application of the proviso.

MR TRAPNELL:   Well, it has not been held to be so thus far and I accept that it is an ill‑defined category, residual category, if you like.  It is where there is a denial of procedural fairness in a sense of perhaps a reversal of the onus of proof such as a Palmer type situation where an accused is cross‑examined in a way that brings up the Palmer type issues or a judge falls asleep as in Cesan, where a judge falls asleep during the course of the trial or is not able to properly control the proceedings or where a jury in Katsuno has not been properly brought together for the purposes of being empanelled.  Those have been the sorts of major irregularities which have denied an applicant the right to a fair trial. 

In my submission, the whole basis of adding to that a misdirection situation such as this largely expands the categories of fundamental irregularities, if you like, which will deny the applicability of the proviso in all cases and very much narrow the scope that is left for a court to do what Weiss said it has to do and that is look at the whole record, give itself the correct directions of law and on those directions of law, consider whether the applicant may have lost a fair chance of acquittal.  So, in my submission, this case does not fall into the fundamental irregularity type of case.

HAYNE J:   But what do you say to the applicant’s proposition that it does tender for consideration, if you like, an amplification of what the Court said in Weiss at paragraph 44 where the Court said:

No single universally applicable description of what constitutes “no substantial miscarriage of justice” can be given. 

But then gave the proposition in negative form. 

It cannot be said that no substantial miscarriage of justice has actually occurred unless the appellate court is persuaded . . . beyond reasonable doubt – 

What the applicant wants to say here, I think, includes, is not limited to, even if the appellate court was persuaded beyond reasonable doubt, this may be a case in which a substantial miscarriage has occurred.  Does that question arise in the circumstances of this case, because if it does, is that a case for leave?

MR TRAPNELL:   Well, in my submission, if it does arise, it arises in a case which is not a suitable vehicle because the main defence put in this case all the way through was the control defence.  Now, I hear what my learned friend says that there was this fallback position, if you like.  Bear in mind there was a no case submission made on that basis, that there was simply insufficient evidence to go to a jury on the question of control, and that was unsuccessful.  Now, as the court points out, the question of the reasonable practicability arose during defence counsel’s closing address, so that is after the prosecutor has addressed and that is noted by the two judges that formed the majority ‑ ‑ ‑

BELL J:   Justices Neave and Kyrou.

MR TRAPNELL:   Yes.  That is at paragraph 55 of their judgment at appeal book page 88.

BELL J:   Yes.

MR TRAPNELL:   Justice Nettle, whilst he is not as specific as that, at paragraph 47, appeal book page 85:

Although the issue of reasonable practicability did not arise until late in the trial, in the end it turned out to be one of fundamental importance to Baiada’s defence.

Now, that is his view, but certainly at 55 the majority say that the question, in the last two sentences on page 88 of paragraph 55:

the question of reasonable practicability was raised by defence counsel during his closing address.

I assume that to mean raised for the first time.  That is consistent with the fact that up until that stage there was always intended to be a no case submission which was thought to be going to be successful and the fact that the two judges in the majority note the fact that one of the reasons why credit was not an issue in this case and they could look at the whole of the record without having that limitation upon them, was that there was very little cross‑examination of any of the Crown witness.  That is at paragraph 58 at page 88:

Defence counsel cross-examined briefly only nine out of the 18 Crown witnesses and did not call nay defence witnesses. 

Now, the whole of this trial until the stage of closing addresses, which is after an unsuccessful no case submission, was on the control point, not on the reasonable practicability.  So, therefore, it is not a matter which was of high significance in the running of the trial admittedly.

BELL J:   I think, Mr Trapnell, that explains Justice Nettle’s observation in the first sentence of paragraph 47.  That is your submission a few moments ago that the trial had been run on the basis of an overly confident expectation that a no case submission would succeed on the control point.  Now, when it failed, I think that is the point that Justice Nettle is making in that first sentence, which brings us back to the ‑ ‑ ‑

MR TRAPNELL:   But a case that would be a suitable vehicle to determine this issue would be one where right from the word go – two defences have had a large significance in the trial and there is misdirection in respect of one of those really significant defences that has been significant all the way through.  This is one where really it has come in at the end as a side wind and there has not been an appropriate direction but, nonetheless, some direction, and the Court of Appeal is in every way in as good a position to assess the efficacy of that defence in light of specific statutory provisions. 

So it is not just a defence in the air.  It is one that is limited or restricted by a specific statutory provision which sets out what has to be

considered and the court turned its mind to those specific considerations looking at the whole of the record.  Now, in my submission, to then expand that process into saying, well, where one of two defences albeit one that has come in very late is not properly left to the jury, that is a fundamental irregularity.  In my submission, this case is not the appropriate case to decide that point.

HAYNE J:   Yes.

MR TRAPNELL:   Now, if I can just say on the control point, this, in my submission, certainly is not a suitable vehicle for those two grounds of appeal.  That entirely depends upon the interpretation of the heads of agreement which, as Justice Nettle correctly points out in his judgment and it is agreed in by the two judges in the majority, is a question of fact for the jury.  It was clearly, in my submission, open to the jury and it was so found in this case that it was open to them to interpret clause 10 of the heads of agreement as giving control or power of control to Baiada Poultry over the loading and unloading operations at the Houben farm. 

That being the case, the distinction, if there is any distinction, between actual control under Reilly v Devcon Australia Pty Ltd and the test propounded in R v Associated Octel Co Ltd as applied in R v ACR Roofing was of no consequence in the circumstances of the present case because the contractual right to control loading and unloading operations at the Houben’s farm whether exercised or not would satisfy both tests.  So, for that reason, so far as grounds 1 and 2 are concerned, this is not an appropriate vehicle to distinguish between those two tests, if indeed there is any significant distinction between them.  Now, unless there is anything else I can assist the Court with.

HAYNE J:   Thank you, Mr Trapnell.  Yes, Mr Priest.

MR PRIEST:   It is curious that I was flagellated for cross‑examining only nine out of 18 witnesses.  Anybody with any forensic experience would be able to say that you only cross‑examine when you need to and only ask those questions that you need to, and the witnesses who were cross‑examined were cross‑examined to set up the two principal defences, that is, that there was an absence of control and, by the by, your expert chicken catchers know what you are doing with a forklift and rely on practicability. 

Now, with respect, it is not the defence fault if the prosecutor did not see it coming.  He should have been able to read the statute and seen that practicability was something that he had to negative and, with respect, we cannot help that the judge did not see it either.  It was always there.  It was a defence that was taken away, in any event, by the judge as the Court of Appeal, with respect, found.  Now, it can hardly be said that there is anything other than a substantial miscarriage of justice in those circumstances.  Your Honour Justice Hayne referred to paragraph 44 of the Weiss Case.  I wanted to remind the Court, and may I do so respectfully, of what was said in the succeeding paragraph, paragraph 45.  If the Court pleases.

HAYNE J:   Before you sit down, Mr Priest, what do you say on the control issues to the fact that you lost three/nil in the Court of Appeal?

MR PRIEST:   Well, let us hope we can win five or seven/nil in another venue, your Honour.

HAYNE J:   Why should we think that you have a reasonable prospect of succeeding in those grounds, Mr Priest?

MR PRIEST:   Well, it is plain, in our submission, if one reads the whole of the judgment, particularly of Justice Nettle, that his thinking as to the question of control was affected, perhaps animated to some extent, by the dichotomy of views between what was said in Reilly v Devcon by the West Australian Court of Appeal and by the Victorian Court of Appeal in ACR Roofing, in particular, following Associated Octel.  He gave the principal judgment, your Honours, in ACR Roofing on this question of control. 

There is a distinct difference, in our submission, between the two approaches.  The approach in Reilly v Devcon is one that finds its mandate in the statute itself and the interpretation of section 21(3) of the Occupational Health and Safety Act where it is made plain that it must be control over matters which affect health and safety rather than control over the workplace itself.  If one reads what Justice Nettle said in context, his Honour seems to, in effect, say, although he does not articulate it as directly as this, that Baiada had the right to control the workplace and the operations of the workplace, therefore that was sufficient.

BELL J:   It went a little further than that, did it not, on a view when you look at 10(b):

DMP must at all times follow and adhere to all procedures, rules and regulations of Baiada ‑ ‑ ‑

MR PRIEST:   Yes, and when one goes on further and reads that clause, the only possible part of it which might suggest a right to control at the farm is OH&S.

BELL J:   Well, yes, its operating procedures, and it had an operating procedure.

MR PRIEST:   It had an operating procedure with respect to the plant at Laverton.  The question was whether or not that could be geographically translated to the Houben Farm.

BELL J:   Well, his Honour Justice Nettle at application book 79, paragraph 24 concluded that issue against you.

MR PRIEST:   Yes, he did, and we would say wrongly as a matter of interpretation.

BELL J:   Well, you say that, but what is the basis?

MR PRIEST:   Well, one must read a little further, of course, and the second sentence of paragraph 25:

The question was whether Baiada had contractual power to give safety directions in relation to the loading activities at Houben Farm.  In my view, the jury was right to find that it did.

BELL J:   In paragraph 24 he has explained:

In my view, it is plain that the Heads of Agreement did apply to Houben Farm.

Now, you might have to be doing pretty well, Mr Priest, to get out of that some clear error of the factual basis for that conclusion.

MR PRIEST:   Well, if the Court pleases, as I say, we rely on what we have written and what we have more recently said.  If the Court pleases.

HAYNE J:   Yes.  We will adjourn for a time to consider the course we will take.

AT 1.29 PM SHORT ADJOURNMENT

UPON RESUMING AT 1.31 PM:

HAYNE J:   There will be a grant of special leave in this matter limited to the issues tendered by ground 3 of the proposed notice of appeal.  As to the matters which it is sought to agitate by reference to grounds 1 and 2, we are of the opinion that there is no reason to doubt the correctness of the conclusions reached by the Court of Appeal in that regard.  As to the matters raised as to ground 3, we would have thought that it would be more than half a day but less than a day.  Would counsel agree with that estimate?

MR PRIEST:   Yes, your Honour, with respect.

HAYNE J:   May we again draw to the attention of counsel, in case they were not here at the time of earlier grants of leave, the need to attend carefully to the timetable for submission of papers and recognise that applications for extension of time are not likely to be granted.  I say nothing as to their likelihood, but counsel will be expected, and those instructing them will be expected, to maintain the timetable that the Rules require.

MR PRIEST:   If the Court pleases.  All I can say about that is Mr Croucher is going to be very busy, your Honour.

HAYNE J:   I am indebted to you for that information, Mr Priest.  Adjourn the Court to Tuesday, 6 September 2011 at 10.15 am in Canberra.

AT 1.32 PM THE MATTER WAS CONCLUDED