Baiada Poultry Pty Ltd v The Queen - [2011] VSCA 23

SUPREME COURT OF VICTORIA

COURT OF APPEAL

BAIADA POULTRY PTY LTD	S APCR 2009 0653
	Applicant
v
THE QUEEN	Respondent

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JUDGES	NETTLE, NEAVE JJA and KYROU AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	1 February 2011
DATE OF JUDGMENT	18 February 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 23
JUDGMENT APPEALED FROM	R v Baiada Poultry Pty Ltd (Unreported, County Court of Victoria, Judge Campbell, 29 May 2009)

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CRIMINAL LAW – Conviction – Occupational Health and Safety – Failure to provide safe systems of work for employees – Independent contractors – Control – Basis of control – Whether applicant company had ‘control’ to direct independent contractor – Practicability – Whether judge failed to give jury sufficient directions regarding control had by applicant – Whether applicant entitled to rely on expertise of contractors – Appeal disallowed – Occupational Health and Safety Act 2004, ss 21(1) and 23(1)

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Appearances:	Counsel	Solicitors
For the Applicant	Mr P G Priest QC with Mr M J Croucher	Norton Rose
For the Respondent	Mr D A Trapnell SC	Mr C Hyland, Solicitor for Public Prosecutions

NETTLE JA:

On 29 May 2009, the applicant (‘Baiada’) was convicted in the County Court at Melbourne of one count of breaching s 21(1) of the Occupational Health and Safety Act 2004 (‘the Act’) by failing to provide plant and systems of work for employees that were safe and without risks to health.[1] Following a plea in mitigation of penalty, it was sentenced to a fine of $100,000. It now seeks leave to appeal against conviction on grounds that the verdict was unsafe and unsatisfactory and that the judge erred in his directions to the jury.
[1]Baiada was acquitted by direction of a second count of failing to ensure that persons other than employees were not exposed to risks to health and safety, contrary to s 23 of the Act.

The facts

According to the evidence at trial, Baiada carried on a business of processing broiler chickens at a plant in Laverton North. It had purchased that business from Eatmore Poultry (‘Eatmore’) in or about June 2004 and, as part of the acquisition, Baiada effectively took over Eatmore’s contractual arrangements with a number of independent contract growers. Andrea and John Houben were Baiada contract growers. They conducted a poultry growing farm in Bungower Road, Moorooduc which they had purchased from an Eatmore grower. When the Houbens purchased the farm, they took over the vendor’s grower contract with Eatmore and thereafter continued to raise chickens for Eatmore and later Baiada.

Under the contractual arrangements thus constituted between Baiada and the Houbens, Baiada supplied the Houbens with chickens, chicken feed and technical assistance, and in turn the Houbens raised each lot of chickens for Baiada until they were about 32 days old. It was then Baiada’s responsibility to round up the chickens and transport them to its plant in Laverton North for processing

Rather than use its own employees for the task, Baiada engaged independent contractors known as ‘chicken catchers’ to…

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: [2011] VSCA 23
Decision Date: 18 February 2011

CaseChat Overview and Summary

Baiada Poultry Pty Ltd, an applicant, sought to appeal against their conviction under the Occupational Health and Safety Act 2004. The company was convicted for failing to provide safe systems of work for their employees, a matter that arose from the tragic death of an employee. The appeal was lodged with the court, which examined whether the company had sufficient control over the independent contractor, and if the judge provided adequate directions to the jury regarding the control exercised by the company. The court was also tasked with determining whether the company could rely on the expertise of the contractors as a defence.

The primary legal issues that the court needed to address were whether Baiada Poultry Pty Ltd had control over the independent contractor to direct them in a way that would ensure the safety of the employees, and if the judge failed to provide the jury with sufficient directions regarding this matter. Additionally, the court had to consider whether the company was entitled to rely on the expertise of the contractors in their defence. The court examined the evidence presented to determine if the company had exercised the necessary control and if the judge's directions to the jury were adequate.

The court found that the applicant company did have the control to direct the independent contractor, and that the judge did not fail to give the jury sufficient directions. Furthermore, the court held that the company was not entitled to rely on the expertise of the contractors. The court found that the applicant company had a duty to ensure safe systems of work, and this duty extended to ensuring that the independent contractors followed the necessary safety procedures. The court held that the company's appeal was disallowed, and the conviction stood.

In light of the findings, the court upheld the conviction of Baiada Poultry Pty Ltd for failing to provide safe systems of work for employees, as per the Occupational Health and Safety Act 2004, sections 21(1) and 23(1). The appeal was disallowed, and the conviction remained in place.

Orders