Bell v Schloss - [2014] QMC 23

MAGISTRATES COURTS OF QUEENSLAND

CITATION:

Bell v Schloss [2014] QMC 23

PARTIES:

STEWART LYNN BELL

(complainant)

v

DENNIS WILLIAM SCHLOSS

(defendant)

FILE NO/S:

MAG189760/12(4)

DIVISION:

Industrial Magistrates Court

PROCEEDING:

Charge - Summary Hearing

ORIGINATING COURT:

Magistrates Court at Taroom

DELIVERED ON:

12 September 2014

DELIVERED AT:

Dalby

HEARING DATE:

4 June 2014, 5 June 2014, 6 June 2014, 10 June 2014, 12 June 2014

MAGISTRATE:

RYAN K

ORDER:

Guilty

CATCHWORDS:

INDUSTRIAL LAW - PROSECUTION – Meaning of Operating Plant, identification of relevant Safety Management Plan, admissibility of documents produced pursuant to section 834, meaning of low risk tasks, appointment of complainant, defences

Petroleum and Gas (Production and Safety) Act 2004

Coal Mining Safety and Health Act 1999.

COUNSEL:

A Macsporran, QC and Mr Nicholson for the complainant

P Roney, QC and Mr R Byrne for the defendant

SOLICITORS:

Crown Law for the complainant

Ashurst Lawyers for the defendant

The Defendant is charged that on 16 March 2011 he breached section 702 of the Petroleum and Gas (Production and Safety) Act 2004 (“the Act”) in that he failed to comply with safety procedures and obligations under the safety management plan for the plant to the extent the procedures and obligations applied to him. As a result of this breach, it is alleged that Mr Gavin Vieritz, an operator/maintainer employed by Santos Limited, suffered bodily harm when the back pressure valve located on a mobile separator on which he was performing maintenance work separated forcefully and without warning striking him in the face and head.

The incident occurred at what is commonly known as the Scotia site which is located on Petroleum Lease 176 near Wandoan in south west Queensland. The lease is held by Santos QNT Pty Ltd (“Santos”) and Vamgas Pty Ltd as tenants in common. The work being undertaken on the lease was and is gas extraction. Santos QNT Pty Ltd is a subsidiary of Santos Limited.

The Defendant, Mr Schloss was an employee of Santos Ltd who had joint supervisory responsibilities for Mr Vieritz and was the supervisor on the day of the incident.

At the outset, Mr Roney for the Defendant conceded that Mr Vieritz had sustained bodily injury making it unnecessary for the complainant to prove this allegation.

A further preliminary matter relating to a limitation issue raised by the defendant was dealt with at the commencement of the hearing, when the complainant, Mr Bell, gave evidence with regard to the state of his knowledge of the incident during 2011. Following the giving of that evidence, Mr Roney advised the court that he was satisfied as to the complainant’s lack of knowledge of the incident until 2012, thus disposing of any question of failing to commence proceedings within the limitation period.

Particulars

Prior to the start of the hearing, Mr Roney filed and served lengthy submissions to support an application for the complaint to be dismissed on the basis of a matter of law or, in the alternative, that the complainant be required to provide…

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.

Continue reading Bell v Schloss

Details

AGLC: Bell v Schloss [2014] QMC 23
Case: [2014] QMC 23
Decision Date: 12 September 2014

CaseChat Overview and Summary

In the case of Bell v Schloss, the defendant, Schloss, was prosecuted for an incident that occurred on an operating plant. The prosecution argued that Schloss was not entitled to work on the plant without being appointed as a competent person, as required by the relevant safety management plan. The court had to determine whether the plant was an operating plant, identify the relevant safety management plan, assess the admissibility of documents produced under section 834, determine the meaning of low-risk tasks, and consider the appointment of the complainant as well as any defences raised by the defendant. The court found that the plant was indeed an operating plant, and the relevant safety management plan was the one in question. The documents produced under section 834 were deemed admissible, and the meaning of low-risk tasks was clarified. The court also found that the complainant was appointed as a competent person, and the defences raised by the defendant were not successful. The defendant was found guilty as charged.

The court held that the plant was an operating plant, as defined in the relevant legislation. The safety management plan that applied to the plant was also identified, and it was found that Schloss was not appointed as a competent person to perform the tasks on the plant. The court further clarified that low-risk tasks were those tasks that did not involve significant risk to health and safety. The admissibility of the documents produced under section 834 was upheld, and the complainant was found to be appointed as a competent person. The defences raised by the defendant, including the argument that the tasks were low-risk, were rejected by the court. The court found that the defendant was not entitled to perform the tasks on the operating plant without being appointed as a competent person, and therefore, the defendant was found guilty.

Orders

Orders of the court

Guilty

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Bell v Schloss [2014] QMC 23
PARTIES:	STEWART LYNN BELL (complainant) v DENNIS WILLIAM SCHLOSS (defendant)
FILE NO/S:	MAG189760/12(4)
DIVISION:	Industrial Magistrates Court
PROCEEDING:	Charge - Summary Hearing
ORIGINATING COURT:	Magistrates Court at Taroom
DELIVERED ON:	12 September 2014
DELIVERED AT:	Dalby
HEARING DATE:	4 June 2014, 5 June 2014, 6 June 2014, 10 June 2014, 12 June 2014
MAGISTRATE:	RYAN K
ORDER:	Guilty
CATCHWORDS:	INDUSTRIAL LAW - PROSECUTION – Meaning of Operating Plant, identification of relevant Safety Management Plan, admissibility of documents produced pursuant to section 834, meaning of low risk tasks, appointment of complainant, defences Petroleum and Gas (Production and Safety) Act 2004 Coal Mining Safety and Health Act 1999.
COUNSEL:	A Macsporran, QC and Mr Nicholson for the complainant P Roney, QC and Mr R Byrne for the defendant
SOLICITORS:	Crown Law for the complainant Ashurst Lawyers for the defendant