Carmichael v Commonwealth of Australia - [2022] VSC 364

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2020 04624

BRIAN CARMICHAEL	Appellant
v
THE COMMONWEALTH OF AUSTRALIA (acting through its responsible agency, the Department of Defence)	Respondent

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JUDGE:	Incerti J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 February 2022
DATE OF JUDGMENT:	24 June 2022
CASE MAY BE CITED AS:	Carmichael v Commonwealth of Australia
MEDIUM NEUTRAL CITATION:	[2022] VSC 364

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APPEAL – Appeal from Magistrates’ Court under Criminal Procedure Act 2009 (Vic) s 272 – Work Health and Safety Act 2011 (Cth) ss 3, 17, 18, 19, 32 – Prosecution of Commonwealth of Australia (acting through its responsible agency, the Department of Defence) under Work Health and Safety Act 2011 (Cth) s 32 – Army training exercise – Electric shock and burn injuries to trainees following assembly of communication mast near high voltage power lines – Alleged failure to ensure health and safety – Alleged failure to provide and maintain safe systems of work – Charges dismissed by magistrate – Whether magistrate applied wrong legal test – Whether magistrate’s factual findings open on the evidence – Whether appellant required to prove that existing system of work was not ‘reasonably practicable’ – Whether appellant required to prove that respondent failed to use ‘due diligence’ in ensuring compliance with existing system of work – Grasso Consulting Engineers Pty Ltd v SafeWork NSW; Grasso v SafeWork NSW [2021] NSWCCA 288 considered – Cleanaway Operations Pty Ltd v Philip Hanel (Commonwealth: Comcare) [2022] SASC 52 considered – Appeal upheld but matter not remitted for retrial.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr G Hill SC and Ms K Argiropoulos of counsel	Commonwealth Director of Public Prosecutions
For the Respondent	Ms F McLeod SC and Ms L Barrett of counsel	Moray & Agnew Lawyers

Introduction........................................................................................................................................ 1

Background......................................................................................................................................... 2

Charge 1.......................................................................................................................................... 2

The WHS Act...................................................................................................................................... 3

The notice of appeal.......................................................................................................................... 5

The magistrate’s reasons................................................................................................................... 8

Outcome of appeal............................................................................................................................. 9

Correct application of the WHS Act........................................................................................... 9
The magistrate’s key findings................................................................................................... 14

Ground 1............................................................................................................................................ 19

Appellant’s submissions............................................................................................................ 19
Respondent’s submissions......................................................................................................... 21
Consideration.............................................................................................................................. 23

Ground 2............................................................................................................................................ 30

Appellant’s submissions............................................................................................................ 30
Respondent’s submissions......................................................................................................... 33
Consideration.............................................................................................................................. 33

Ground 3............................................................................................................................................ 35

Appellant’s submissions............................................................................................................ 36
Respondent’s submissions......................................................................................................... 36
Consideration.............................................................................................................................. 37

Grounds 4 and 5............................................................................................................................... 38

HER HONOUR:

Introduction

This is an appeal on a question of law under s 272 of the Criminal Procedure Act 2009 (Vic) (‘CPA’) from orders made by the Magistrates’ Court on 19 November 2020 dismissing two charges under s 32 of the Work Health and Safety Act 2011 (Cth) (‘WHS Act’).

The charges stem from an incident during a night time training exercise at the Puckapunyal Training Area in regional Victoria on 4 July 2016. As part of a training course conducted by the Royal Australian Corps of Signals (a component of the Australian Army), a group of trainees was tasked with assembling a temporary radio mast known as a ‘Clark mast’. The Clark mast consists of a telescopic mast…

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: [2022] VSC 364
Decision Date: 24 June 2022

CaseChat Overview and Summary

In the matter of Carmichael v Commonwealth of Australia, the appellant challenged the dismissal of charges against the Commonwealth of Australia, acting through its agency, the Department of Defence, under the Work Health and Safety Act 2011 (Cth). The case arose from an incident during an army training exercise where several trainees sustained electric shock and burn injuries following the assembly of a communication mast near high voltage power lines. The appellant was prosecuted under s 32 of the Work Health and Safety Act, which pertains to the failure to ensure health and safety and the failure to provide and maintain safe systems of work. The magistrate dismissed the charges, leading to the appellant's appeal to the court.

The central legal issues for the court to determine were whether the magistrate applied the correct legal test in dismissing the charges, and whether the magistrate's factual findings were open to challenge based on the evidence presented. The appellant argued that the magistrate had applied an incorrect legal test, requiring the appellant to prove that the existing system of work was not reasonably practicable, and that the respondent failed to exercise due diligence in ensuring compliance with the existing system of work. The court considered relevant precedents, including Grasso Consulting Engineers Pty Ltd v SafeWork NSW and Cleanaway Operations Pty Ltd v Philip Hanel (Commonwealth: Comcare), to guide its analysis.

The court found that the magistrate did indeed apply the wrong legal test in dismissing the charges. The court held that the correct approach required the prosecution to demonstrate that the system of work in place was not reasonably practicable or that the respondent failed to exercise due diligence in ensuring compliance. As the magistrate had not applied the correct legal test, the court concluded that the factual findings were open to challenge based on the evidence. Consequently, the appeal was upheld, but the matter was not remitted for retrial, given the circumstances of the case. The court's decision underscores the importance of applying the correct legal test in prosecutions under the Work Health and Safety Act, ensuring that both factual and legal standards are met in such proceedings.

Orders