Carnall v Gibbons
[2016] ACTIC 1
•30 November 2016
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 |
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 undertaking (“PCBU”) or a worker.
The defence submitted that, despite the prosecution submission to the contrary, this was an impermissible approach pursuant to s 233 of the Act. Alternatively the defence submitted that this intended approach amounted to an application to amend the charge which was impermissible in the sense that in actuality it purported to create a new charge beyond the two year limitation period. Finally, the defence submitted that to allow such an amendment was, in any event, simply unjust. Counsel for the defendant, Mr Ronald, stated “... It is my submission that the matter ought only go forward on the basis of the particulars, even the information might be inadequate but we’re not complaining about that...”
In determining how the matter was to proceed I noted that in my view, absent the particulars, I was satisfied that the information laid did not disclose the elements of the offence which must include the characterisation of the person pursuant to the Act. That characterisation delineates the duty arising, for example whether the person is acting in the capacity of a worker, person conducting a business other undertaking or otherwise. This is necessarily so because both the duty and the penalty are determined by the characterisation of the person.
The particularisation provided that the defendant was a person conducting the business or undertaking.
I noted that without those particulars the defence would have no ability to meet the charge before the court and that it was the reading of the charge together with the particulars filed which satisfied me that it was possible to proceed to a hearing of the matter.
There is of course much authority on the role of particulars in relation to criminal offences for example John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42 and more recently in this jurisdiction, the decision of Mossop AJ in Burridge v Chief Magistrate of the Australian Capital Territory [2016] ACTSC 332. In the context of the national scheme, the issue was considered by Jackson J in Karimbla Construction Services P/L v President of the Industrial Court of Qld & Ors[2014] QSC 56. It is a matter of some complexity. The proper approach in any particular matter depends to some extent on the particular legislation which creates the offence, in combination with the requirements and the common law.
In this case, in part in reliance of the concession made by the defendant, I determined that, whilst less than ideal, it was appropriate to proceed on the basis that the particulars perfected the information.
I note, however, that the regulator should have regard to the proper formulation of charges pursuant to the Act and that there are numerous authorities available to assist that process not least those provided by the defence in this matter in the decisions of Safe Work New South Wales Wollongong Glass Pty Ltd [2016] NSWDC 58 at paragraphs 10 to 13 and Attorney General of New South Wales v Tho Services Ltd (in liquidation) (ACN 000263678) [2016] NSW CCA 221 at paragraph 55.
Co-accused
There is a co-accused in this matter, Allhomes Renovations Pty Ltd (“the company”). The matters were to be heard together but on the morning of the hearing, the director of the company, Ms Evanilda Cummins attended court and indicated that the company was in liquidation. An adjournment was allowed for the prosecutor to ascertain whether leave was required of the Supreme Court to prosecute that matter. In order to avoid prejudice to the defendant Mr Gibbons, I determined to proceed with the hearing in respect to him. Prior to delivery of this decision, that matter was mentioned again. The liquidator indicated that he will not appear in the proceedings. The Director of Public Prosecutions has chosen to reserve his position as to whether or not to proceed in that matter.
On occasion during the pre-hearing mentions, Mr Shaun Cummins sought to appear on behalf of Allhomes Renovations Pty Ltd. An ASIC search discloses that Ms Cummins is sole director of that company and Mr Cummins a member.
The issue
It is apparent from the way in which this matter was conducted and from closing submissions that if Mr Gibbons is found to be a person conducting a business or undertaking, then the Court will readily find that a duty in relation to the safe removal of asbestos was owed to workers and occupants of the site and that that duty was breached. Determination of this matter revolves around an assessment of whether the prosecution has established beyond reasonable doubt that Mr Gibbons was in fact a person conducting a business or undertaking.
The evidence
The following circumstances of this matter are not in dispute.
In 2011, David Cross and Lyndall Milburn (“the owners”) bought Ms Milburn’s family home at 9 Blackburn Street, Pearce, a suburb in the Australian Capital Territory, from her parents. At the time of doing so, they knew that it was what in the Australian Capital Territory is known as a “Mr Fluffy home”. I am indebted to Wikipedia for the following summary of that which was assumed for the purpose of these proceedings:
Mr Fluffy refers to a widespread asbestos contamination incident that occurred in the suburbs of Canberra, the capital city of Australia. Two companies, referred to collectively as Mr Fluffy (a nickname coined in the 1990s for Asbestosfluf Insulations, and its successor J&H Insulation, the former run by Canberra businessman Dirk Jansen, the latter owned by a relative of his), imported and installed fibrous, loose-fill amphibole asbestos (in most cases brown amosite, though instances of blue crocidolite have been recorded) as an insulation by blowing the product into roof spaces of homes during the 1960s and 1970s.
The owners understood that property had been remediated under a Federal government scheme in the late 1980s however also were aware that there was a small risk of the continued presence of the offending material within the home.
In 2013, the owners noticed material extruding from a broken cornice and were concerned that it may be asbestos. As a result they arranged to have the material analysed by a business known as Robson Environmental, an employee of which prepared a report dated 23 October 2013 in which the material was identified as amosite asbestos. Remedial work was recommended for this area but the report advised that further residual amosite asbestos was likely to be present throughout the internal and external wall cavities and potentially subfloor areas and advised:
“...the removal of any internal or external walls or any window or door frames must be undertaken under friable asbestos removal conditions as loose amosite installation is likely to be disturbed by such works. Any removal or remediation works undertaken on friable ACM must be undertaken by an ACT licenced class A asbestos remover as per the Code of Practice for the Safe Removal of Asbestos (2nd Edition) [NOHSC: 2002 (2005)]. Air monitoring is mandatory during the removal/remediation of friable asbestos. An independent Class A asbestos assessor must also be employed to undertake a clearance inspection, which involves a visual inspection of the asbestos work area followed by atmospheric monitoring once it has been established that the removal/remediation work has been completed satisfactorily. A clearance certificate and copy of the air monitoring certificate should be issued to provide assurance that the area is safe for normal reoccupation”.
The owners planned renovation work on the property and were given a recommendation by their selected kitchen renovator, Granite Transformations, to have some of the related building work undertaken by Mr Jay Gibbons.
Coincidentally, the then ACT Work Safety Commissioner, Mr Mark McCabe, wrote to residents of Mr Fluffy homes on 18 February 2014. A further letter is the same terms was subsequently reissued to “the owner”. The letter referred to the risk of the presence of loose fill asbestos in their home and required that owners advise tradespeople engaged to do work on the home that it was part of the Loose Asbestos Insulation Removal Program operating between 1988 and 1993 and that it is likely that asbestos fibres would be present, as well as providing tradespeople with a copy of any asbestos assessment report. The letter also indicated that only a licensed asbestos removalist should be engaged to undertake the removal of asbestos.
The owners made Mr Gibbons aware of the asbestos concern regarding work to be done on their property.
That work was undertaken from 27 February 2014 to March 2014. On 11 March 2014, Ms Milburn expressed some concern to her partner as to the lack of precautions being taken in respect to the work. As a result, Mr Cross contacted the ACT government through Canberra Connect and was passed on to Work Safe ACT, the Territory’s work, health and safety regulator.
Subsequently a Work Safe inspector, Mr Brad Murrell, attended the site. He observed what appeared to be exposed asbestos in various locations including the site of new windows and a packed trailer. He issued two prohibition notices restricting access to and work on the property and called in Robson Environmental to assess and ultimately remediate the site.
The role of Mr Gibbons
The dispute between the parties is as to the role of Mr Gibbons in work being carried out at the site.
The prosecution seeks to rely upon the owners’ dealings with Mr Gibbons and associated documentation to establish that Mr Gibbons was a person conducting a business or undertaking. Mr Gibbons chose not to give evidence and called no witnesses in his case.
I now consider that evidence.
The owners first contacted Mr Gibbons by telephone.
Between 30 January 2014 and 10 February 2014, the owners and Mr Gibbons communicated by email. The emails included an Allhomes Renovations hotmail email address, a telephone number, 0403509406, and Mr Gibbons own name.
Mr Gibbons visited the home in January or February 2014. He gave the owners a business card for Allhomes Renovations Pty Ltd listing Jay Gibbons and Shaun Cummins on the card. Each had a mobile telephone number. Mr Gibbons’ was 04xxxxxxxx, as in the emails.
Ms Millburn gave evidence that she told Mr Gibbons when he attended the home that the house had loose fill asbestos, gave him a copy of the 1990 remediation report and discussed the proposed works in detail. He assured the owners that he was qualified to deal with the issue.
Mr Gibbons provided an unsigned quote; the revised version only is in evidence. It is headed “revised estimate”. It is dated 19 February 2014 and numbered 0918a.
The following information appears on the quote:
·heading Allhomes Renovations;
·phone number 04xxxxxxxx (Mr Gibbons’ number as per the quote);
·email address, [email protected];
·ABN: 53 160 515 257;
·ACT B/L (ACT building licence number) 20121491;
·bank details: BSB 641-800; ACC: 2xxxxxxxx.
The ABN is registered to Allhomes Renovations Pty Ltd. According to an ABN Lookup search, Jay Juan or Jay J Gibbons is registered with ABN 65 357 480 565 as an individual/sole trader from 15 February 2010. That ABN does not appear on any of the correspondence or contractual documents between Mr Gibbons and the owners.
The builders licence number is the same as that which appears in the subsequent contract linked to Allhomes Renovations Pty Ltd.
The bank details are not the same as the WESTPAC, Allhomes Renovations Pty Ltd invoice account details. There is no evidence as to whom the bank account details provided in the quote are linked. It could be another bank account held by Allhomes Renovations Pty Ltd, a bank account held by Mr Gibbons or indeed an account held by another.
An undated contract was entered into between the owners and the builder. The builder is described in that contract as “Allhomes Renovations” on the commencement page and initialled by JG, as builder, throughout. At Appendix A on page 25 of the contract, the builder is referred to as “Allhomes Renovations Pty Ltd.” The address of the builder is given as “41 Mundawari Cres Ngunawal (sic). The email address, ABN, ACT Builders Licence number and mobile phone number provided are the same as on the quote. The only item specific to Mr Gibbons is the mobile telephone number.
The work commenced and had progressed significantly by March 2014.
The owners became concerned about the apparent lack of safety measures. The measures identified by Robson’s and even by Mr Gibbons in discussion pre-contract were notably absent. There were no physical barriers in place, no air monitoring and negligible PPE in use.
Mr Cross contacted the WorkSafe ACT on 11 March 2014. That same day inspectors attended the scene and, being concerned as to what they observed, immediately called in specialist assistance from Robson Environmental to assess and remediate the site.
On 19 May 2014, Ms Clare Brooks, Inspector, issued a Section 155 Notice requiring information in relation to a possible contravention of the Act to Allhomes Renovations Pty Ltd, ACN 160 515 257, at 41 Mundawari Circuit, Ngunnawal ACT. This is the same address that appears on the building contract. It is the address for Allhomes Renovations Pty Ltd for its WESTPAC bank account 032-733 14-1173. It is the address linked to the registered operator of the trailer found with loose fill asbestos in it at the site, namely, Allhomes Renovations Pty Ltd. It is the registered office and principal place of business of Allhomes Renovations Pty Ltd according to an ASIC business name search. It is the address on the building contract.
The evidence points to Mr Jay Gibbons as the person the owners primarily dealt with but not the person with whom they contracted. Whilst not conclusive, the preponderance of the evidence points to the contract being with Allhomes Renovations Pty Ltd.
It is not clear what relationship Mr Gibbons had with Allhomes Renovations Pty Ltd. He appears to have been authorised to act as agent to bind the company in a contract. He had “equal billing” with Mr Cummins on an Allhomes Renovations Pty Ltd business card.
Ms Millburn was asked about her understanding of Mr Gibbons’ relationship with Allhomes Renovations Pty Ltd. She said that she understood that she was dealing with a company, Allhomes Renovations and that Mr Gibbons worked for that company. He was the one doing the work, the correspondence was all on Allhomes letterhead, email correspondence went to an Allhomes email address. When things “started going wrong”, Mr Gibbons brought Mr Cummins in to meet the owners. She said that contact was with Mr Cummins toward the end of the process when it was not satisfactorily getting finished off. She believed Allhomes was the company being paid and with which she followed up.
Mr Cross gave evidence that he thought Mr Cummins was Mr Gibbons’ boss as he was introduced as the owner of Allhomes. He was satisfied that Mr Gibbons was dealing with them on behalf of Allhomes Renovations and he understood that they had contracted with Allhomes. However, he had formed the view that workers on site were employees of Mr Gibbons but conceded that he had no basis for forming that view.
Was the defendant a person carrying out an undertaking or business?
Whilst the only real issue in contention in this matter is whether the defendant was a person carrying on a business or undertaking, I have been directed to no authority on this point. I have been unable to discern any relevant authority in my own research. It is instructive to compare the duty holder definitions in the Act.
A person carrying on a business or undertaking is defined, relevantly, in Section 5:
(1) For the purposes of this Act, a person conducts a business or undertaking —
(a) whether the person conducts the business or undertaking alone or with others; and
(b) whether or not the business or undertaking is conducted for profit or gain.
(2) A business or undertaking conducted by a person includes a business or undertaking conducted by a partnership or an unincorporated association.
(3) If a business or undertaking is conducted by a partnership (other than an incorporated partnership), a reference in this Act to a person conducting the business or undertaking is to be read as a reference to each partner in the partnership.
(4) A person does not conduct a business or undertaking to the extent that the person is engaged solely as a worker in, or as an officer of, that business or undertaking.
In s 247(1) of the Act, an officer is relevantly defined as:
A person who makes, or participates in making, decisions that affect the whole, or a substantial part, of a business or undertaking of the Territory is taken to be an officer of the Territory for the purposes of this Act.
In s 252 of the Act, an officer of public authority is defined as:
A person who makes, or participates in making, decisions that affect the whole, or substantial part, of the business or undertaking of a public authority is taken to be a an officer of the public authority for the purposes of this Act.
The Act Dictionary defines officer to mean:
(a) an officer within the meaning of the Corporations Act, section 9, other than a partner or partnership; or
(b) an officer of the Territory within the meaning of section 247; or
(c) an officer of a public authority within the meaning of section 252.
A worker is relevantly defined in s 7 of the Act:
(1) A person is a worker if the person carries out work in any capacity for a person conducting a business or undertaking, including work as—
(a) an employee; or
(b) a contractor or subcontractor; or
(c) an employee of a contractor or subcontractor; or(d) an employee of a labour hire company who has been assigned to work in the person's business or undertaking; or
(e) an outworker; or
(f) an apprentice or trainee; or
(g) a student gaining work experience; or
(h) a volunteer; or(i) a person of a prescribed class.
(3) The person conducting the business or undertaking is also a worker if the person is an individual who carries out work in that business or undertaking.
Having regard to these definitions, whilst a PCBU may be a worker, being a worker does not render one a PCBU. Considering the range of duty holders, it appears that there is a scale of duty holders with workers at the bottom of that scale, officers above them and the PCBU as the primary duty holder. The scaling appears to relate to the level of control the duty holder has within the business or undertaking.
To be a PCBU, the person, whether individual or corporate, must be “conducting” the business or undertaking. I am satisfied that whoever was conducting it, a business was being conducted in effecting renovations at the site for profit.
In the absence of authority in the work, health and safety field, one might consider the notion of conducting a business in other contexts. The issue arises most commonly in the taxation field.
In Spriggs v Commissioner of Taxation; Riddell v Commissioner of Taxation [2009] HCA 22 (18 June 2009) in a unanimous judgment, French CJ, Gummow, Heydon, Crennan, Kiefel and Bell JJ noted at paragraph 59:
The existence of a business is a matter of fact and degree. It will depend on a number of indicia, which must be considered in combination and as a whole. No one factor is necessarily determinative. Relevant factors include, but are not limited to, the existence of a profit-making purpose, the scale of activities, the commercial character of the transactions, and whether the activities are systematic and organised, often described as whether the activities are carried out in a business-like manner.
In Hance v Commissioner of Taxation[2008] FCAFC 196 Finn, Dowsett and Edmonds JJ, in considering whether an almond investment scheme was a business, referred to some authorities.
At paragraph 73, citing Puzey v Commissioner of Taxation[2003] FCAFC 197; (2003) 131 FCR 244 at [46]- [48], Hill and Carr JJ observed:
48. In deciding whether or not a business is carried on, courts have pointed to what have been called in the United Kingdom the "badges of trade", indicia which, while no one of them will be determinative of whether a business is carried on, collectively will demonstrate a business. These include the profit motive (although a non-profit company may still carry on a business), acting in a business-like way (although many businesses may be found which operate in a non business-like way), the keeping of books of account and records (although the fact that there are none will not necessitate the conclusion that a business is not carried on) and repetition (although a fixed term project may still be a business).
Their Honours continued at paragraph 74:
In approaching the question it is also important to keep in mind the observations of Dixon J in Sun Newspapers Ltd v Federal Commissioner of Taxation [1938] HCA 73; (1938) CLR 337 at 359-60 where his Honour said:
The business structure or entity or organization may assume any of an almost infinite variety of shapes and it may be difficult to comprehend under one description all the forms in which it may be manifested. In a trade or pursuit where little or no plant is required, it may be represented by no more than the intangible elements constituting what is commonly called good will, that is, widespread or general reputation, habitual patronage by clients or customers and an organized method of serving their needs. At the other extreme it may consist in a great aggregate of buildings, machinery and plant all assembled and systematized as the material means by which an organized body of men produce and distribute commodities or perform services.
As in the authorities referred to, and in the case in point, the defining feature of carrying on a business was one of the person either engaging in activities, or delegating responsibility for such activities, in a commercial context for a profit. A significant distinction for a worker as defined in s5 is that their activity is to some extent at the direction of another. In terms of an employee worker, their activity is for a salary, wage or commission rather than profit.
Whilst Mr Gibbons was contacted personally by the owners, he at all times represented himself to them as part of a business called Allhomes Renovations. Whether that is the same entity as Allhomes Renovations Pty Ltd is not a fact that can be decided on the evidence. Whether he was employed by the company, was partnered with it, was a sub-contractor or some other arrangement also cannot be determined on the evidence before me.
It is simply impossible on the facts before me to conclude beyond reasonable doubt which category Mr Gibbons falls in to.
As such the prosecution has failed to prove an element of the offence, namely that the defendant was a person conducting a business or undertaking and the prosecution must fail.
The charge is dismissed.
L.A. Walker
Industrial Magistrate30 November 2016
| I certify that the preceding sixty-three [63] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Industrial Magistrate Walker. Associate: Christina Karolis Date: 30 November 2016 |
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