Carnall v Gibbons - [2016] ACTIC 1

INDUSTRIAL COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	CARNALL v GIBBONS
Citation:	[2016] ACTIC 1
Hearing Dates:	16, 18 and 28 November 2016
DecisionDate:	30 November 2016
Before:	Industrial Magistrate Walker
Catchwords:	INDUSTRIAL LAW–safety duty – particulars – person conducting a business or undertaking – officer – worker - characterisation CORPORATIONSLAW– officer
Legislation Cited:	Corporations Act 2001 (Cth) s 9 Work Health & Safety Act 2011 (ACT) ss 5, 7, 33, 233, 247, 252
Cases Cited:	Attorney General of New South Wales v Tho Services Ltd (in liquidation) (ACN 000263678) [2016] NSW CCA 221 Burridge v Chief Magistrate of the Australian Capital Territory [2016] ACTSC 332 Hance v Commissioner of Taxation [2008] FCAFC 196 John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42 Karimbla Construction Services P/L v President of the Industrial Court of Qld & Ors[2014] QSC 56 Puzey v Commissioner of Taxation[2003] FCAFC 197; (2003) 131 FCR 244 Safe Work New South Wales Wollongong Glass Pty Ltd [2016] NSWDC Spriggs v Commissioner of Taxation; Riddell v Commissioner of Taxation [2009] HCA 22 (18 June 2009) Sun Newspapers Ltd v Federal Commissioner of Taxation [1938] HCA 73; (1938) CLR 337
Parties:	R Carnall (Informant) J Gibbons (Defendant)
Representation:	Counsel Mr Buckingham (Prosecution) Mr Ronald (Defendant)
Solicitors Director of Public Prosecutions (Prosecution) Colquhoun Murphy Lawyers (Defendant)
File Number:	CC 40067 of 2014

INDUSTRIAL MAGISTRATE WALKER

This matter is a prosecution pursuant to the Work Health and Safety Act 2011 (ACT) (the Act).

Charge CC 40067 of 2016 alleges:

Between 27 February 2014 and 12 March 2014, JAY GIBBONS committed the following offence in the Australian Capital Territory:

JAY GIBBONS contravened section 33 of the Work Health and Safety Act 2011; the person had a health and safety duty (category 3), they failed to comply with that duty.

Location of offence: 9 Blackburn Street, Pearce ACT 2607.

The charge as laid is defective. It fails to specify in what capacity the defendant had the duty it is alleged he breached.

Particulars were filed in conjunction with the information. The particulars assert that the defendant was “at all material times a person conducting a business or undertaking”. They then purport to delineate the safety duty, to whom it was owed and the manner in which that duty was alleged to have been contravened.

At the commencement of proceedings, the prosecutor indicated the following:

“the Crown proposes to lead its case in two ways, in some sense alternative ways, that the defendant Mr Gibbons was either a person controlling a business or undertaking or a worker operating under the auspices of the defendant company”.

The prosecutor went on to clarify that it was not alleging a concurrent duty, which is prohibited pursuant to s 233 of the Act, but rather that it put its case in the alternative, it being a matter for the court to determine as a fact whether Mr Gibbons was a person conducting a business or…

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: [2016] ACTIC 1
Decision Date: 30 November 2016

CaseChat Overview and Summary

The Industrial Court of the Australian Capital Territory heard the matter of Carnall v Gibbons, a prosecution under the Work Health and Safety Act 2011 (ACT). The charge against Jay Gibbons involved the contravention of section 33 of the Act, specifically a failure to comply with a health and safety duty. The prosecution alleged that between 27 February 2014 and 12 March 2014, Gibbons breached his duty while working on a property at 9 Blackburn Street, Pearce ACT 2607. The key issue for the court was to determine whether Gibbons was a person conducting a business or undertaking (PCBU) or merely a worker when he allegedly breached the safety duty.

Industrial Magistrate Walker meticulously reviewed the evidence and the legal framework governing the characterisation of duty holders under the Act. The court considered whether the prosecution had successfully demonstrated that Gibbons was a PCBU, as the characterisation would delineate the duty owed and the corresponding penalties. The particulars provided by the prosecution, asserting that Gibbons was a PCBU, were critical in this determination. Despite the defence's objections regarding the sufficiency of the charge and the proposed alternative characterisation of Gibbons as either a PCBU or a worker, the court allowed the particulars to supplement the information. The court concluded that the combination of the charge and particulars sufficiently outlined the elements of the offence, permitting the case to proceed.

The court delved into the evidence to ascertain Gibbons' role in the renovation work. Although Gibbons was the primary contact for the homeowners, the contract for the work was with Allhomes Renovations Pty Ltd. The court examined various documents, including emails, quotes, and the contract, to understand Gibbons' relationship with the company. While the evidence suggested that Gibbons acted on behalf of Allhomes Renovations, it did not conclusively establish whether he was an employee, partner, sub-contractor, or had another arrangement with the company. Given the lack of definitive evidence, the court found it impossible to conclude beyond reasonable doubt that Gibbons was a PCBU at the time of the alleged offence. Consequently, the prosecution failed to prove a critical element of the offence, leading to the dismissal of the charge.

Orders