Cowie v Shark Lake Food Group Pty Ltd
[2019] WASC 43
•21 FEBRUARY 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: COWIE -v- SHARK LAKE FOOD GROUP PTY LTD [2019] WASC 43
CORAM: TOTTLE J
HEARD: 8 FEBRUARY 2019
DELIVERED : 21 FEBRUARY 2019
FILE NO/S: SJA 1110 of 2018
BETWEEN: STUART DAVID COWIE
Appellant
AND
SHARK LAKE FOOD GROUP PTY LTD
Respondent
ON APPEAL FROM:
For File No: SJA 1110 of 2018
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE S DE MAIO
File Number : ES 438 OF 2017
Catchwords:
Criminal law - Appeal from magistrate - Appeal against acquittal - Whether error of law - Leave to appeal allowed
Criminal law - Criminal liability and capacity - Corporate criminal liability - Vicarious criminal responsibility - Scope of employment - Responsibility for acts done within the course of employment - Effect of specific instructions - Whether specific instructions limit the scope of employment
Environmental law - Statutes - Reg 3(1) of the Environmental Protection (Unauthorised Discharges) Regulations 2004 - Unlawful discharge into the environment - Whether offence giving rise to vicarious liability
Legislation:
Criminal Appeals Act 2004 (WA)
Environmental Protection (Unauthorised Discharges) Regulations 2004 (WA), reg 3(1), reg 5, sch 1
Result:
Application for leave to appeal granted
Appeal allowed
Category: B
Representation:
Counsel:
| Appellant | : | Mr J F Bennett |
| Respondent | : | Mr K P Bates |
Solicitors:
| Appellant | : | State Solicitor's Office |
| Respondent | : | Ken Bates Barrister and Solicitor |
Case(s) referred to in decision(s):
Austral Tree & Stump Services Pty Ltd v Gould [2008] SASC 230
Black Range Tin v Shoobert [1973] WAR 131
Bugge v Brown (1919) 26 CLR 110
Farlodge Pty Ltd v Bradley (Unreported, WASC, Library No 930006, 12 January 1993)
Ffrench v Sestili [2007] SASC 241; (2007) 98 SASR 28
Gould v Austral Tree & Stump Services Pty Ltd [2008] SASC 124; (2008) 101 SASR 1
New South Wales v Lepore [2003] HCA 4; (2003) 212 CLR 511
Orchard Holdings Pty Ltd v Paxhill Pty Ltd as Trustee for Paxhill Trust trading as Property People [2012] WASC 271
Prince Alfred College Inc v ADC [2016] HCA 37; (2016) 258 CLR 134
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Strahan v Brennan [2014] WASC 190
Tiger Nominees Pty Ltd v State Pollution Control Commission (1992) 25 NSWLR 715
TOTTLE J:
Introduction
On 1 August 2018, following a trial in the Magistrates Court, the respondent was acquitted of one charge of allowing hydrocarbons to be discharged into the environment in the course of or in connection with a business or commercial activity, contrary to reg 3(1) of the Environmental Protection (Unauthorised Discharges) Regulations 2004 (WA) (the Regulations). The appellant seeks leave to appeal against the acquittal.
The trial concluded on 24 May 2018. The learned magistrate reserved her decision and delivered oral reasons on 1 August 2018.
The facts
The essential facts were not in dispute and are as follows. In 2015 the respondent operated a commercial abattoir and rendering facility on land at Myrup, Western Australia. The day to day maintenance of the abattoir and its site was managed by Mr Theunis Dreyer. In that capacity Mr Dreyer supervised three other employees, one of whom was Mr Trent Dellahide, who was employed as a general machine operator, maintenance worker and yard hand.
In July 2015, in preparation for an impending inspection of the abattoir site by officers of what was then the Western Australian Department of Environment Regulation (the Department), Mr Dreyer gave instructions for the abattoir site to be cleaned up. Mr Dellahide was one of the employees to whom Mr Dreyer gave the instructions. Both Mr Dreyer and Mr Dellahide were called as witnesses by the appellant. There was a conflict between their evidence as to what instructions were given by Mr Dreyer to Mr Dellahide. This is an issue to which I will return below.
One of the steps taken by Mr Dreyer to clean up the site was to arrange for a contractor to dig a pit on the site.
Relevantly, Mr Dellahide's participation in the clean-up included gathering up five or six old oil drums and some large plastic containers, known as intermediate bulk containers, containing waste liquid from around the site. Mr Dellahide tried to empty the drums of any remaining oil in them. He was able to open and drain most of the contents of some of the drums but he was unable to open and drain them all. Mr Dellahide drained the intermediate bulk containers. Mr Dellahide then placed the oil drums and the empty intermediate bulk containers in the pit that had been dug by the contractor. Having done so, Mr Dellahide noticed that oil had leaked from the oil drums into the earth and there was an 'oil slick' in the pit. Mr Dellahide covered the oil drums and intermediate bulk containers with debris from Tuart trees that had been felled on the site. It was not in dispute, and the learned magistrate found, that the oil drums contained oil, a hydrocarbon, that had been discharged into the environment. The learned magistrate could not be satisfied that the intermediate bulk containers contained hydrocarbons.
Mr Dellahide took photographs of the oil drums and intermediate bulk containers in the pit. In April 2016, after Mr Dellahide's employment with the respondent came to an end, he posted the photographs on social media and they came to the attention of the Department.
The pit was excavated and the debris from the Tuart trees was located at about 0.5 m below the surface. At approximately 2.5 m below the surface the oil drums and crushed intermediate bulk containers were located. Oily water and oil stained soil were found to be present.
I return now to the conflict in the evidence about the instructions given by Mr Dreyer to Mr Dellahide. Mr Dellahide's evidence was that he was expressly instructed by Mr Dreyer to bury the oil drums in the pit and that he was not familiar with any 'usual process' for disposing of oil or oil drums. Mr Dreyer's evidence was that:
(a)he did not give an instruction to Mr Dellahide to bury the oil drums and the intermediate bulk containers in the pit;
(b)the pit was dug for the purpose of burying debris from the felled Tuart trees;
(c)Mr Dellahide was asked to empty the drums into what was known as the sump pit as part of a process of transferring the oil for storage in a tank and Mr Dreyer's expectation was that once the drums had been drained they would be compacted and put into a recycling bin; and
(d)this was how Mr Dellahide normally disposed of oil drums.
The learned magistrate was unable to find that Mr Dreyer gave an instruction to Mr Dellahide to put the oil drums and intermediate bulk containers in the pit.[1] She did, however, find that there was a process for disposing of oil drums in the manner described by Mr Dreyer and that it was not feasible that 'Mr Dellahide would not know the process for the disposal of those items'.[2]
[1] Reasons ts 13.
[2] Reasons ts 12.
Relevant provisions of the Regulations
Regulation 3(1) reads as follows:
A person who, in the course of or in connection with a business or a commercial activity, causes or allows a material listed in Schedule 1 to be discharged into the environment commits an offence.
Penalty: $5000.
Schedule 1 of the Regulations specifies the materials that must not be discharged into the environment. These include petrol, diesel or other hydrocarbons.
Regulation 5 provides that it is a defence to an allegation of breach of reg 3(1) to show that the discharge was authorised, or that it occurred as a result of an emergency, accident or malfunction caused otherwise than by negligence of the person, or that it occurred for the purpose of preventing danger to human life or health or irreversible damage to a significant part of the environment.
The appellant's case at trial
At the trial it was accepted by the respondent that the oil in the pit constituted hydrocarbons and that oil was discharged into the environment in connection with a commercial activity. The critical issue that had to be established by the appellant, beyond reasonable doubt, was whether the respondent allowed the hydrocarbons to be discharged into the environment.
The appellant's case was formulated as follows:
(a)Mr Dreyer was the embodiment of the directing mind and will of the respondent and either:
(i)he instructed Mr Dellahide to place the oil drums in the pit and thus the respondent was to be regarded as having allowed the discharge of hydrocarbons into the environment; or
(ii)he was aware that Mr Dellahide had placed the oil drums in the pit but turned a blind eye to what had been done and thereby allowed the hydrocarbons to be discharged into the environment.
(b)Alternatively, the respondent was vicariously criminally responsible for Mr Dellahide's conduct of placing the oil drums in the pit and thereby allowed the discharge of hydrocarbons.
All that is challenged in this appeal is the learned magistrate's conclusion that the respondent was not vicariously responsible for Mr Dellahide's conduct. Before turning to the learned magistrate's reasons and the grounds of appeal it is convenient to refer to the legal principles applicable to vicarious criminal responsibility.
Vicarious criminal responsibility - the applicable principles
In Tiger Nominees Pty Ltd v State Pollution Control Commission[3] Gleeson CJ, (with whose reasons Mahoney JA and Campbell J agreed), explained:[4]
[3] Tiger Nominees Pty Ltd v State Pollution Control Commission (1992) 25 NSWLR 715.
[4] Tiger Nominees Pty Ltd v State Pollution Control Commission, 718F - 719A.
As a rule the common law refused to impose criminal responsibility on a person, as a principal, for the misdeeds of others: R v Huggins; Halsbury's Laws of England 4th ed, vol 11 par 51. The development and extension of principles imposing vicarious liability in the nineteenth and twentieth centuries reflect, to some extent, difficulties encountered in law enforcement. Principles were abstracted from developments in the law of tort, and this was done most readily when the offences could be characterised as regulatory in substance although criminal in form. Such offences were sometimes characterised as 'public welfare offences'. Laws relating to fair trading, consumer protection, and safeguarding the environment provide examples.
Questions of statutory construction commonly require consideration in this context. The ultimate issue in the present case is whether or not the legislature has, expressly or by necessary implication, created a criminal offence for which one can be found vicariously responsible. (citations omitted)
And:[5]
Vicarious responsibility, it has been observed, is usually imposed for much the same policy reasons as strict or absolute liability are imposed. Whilst the issues are not the same, the circumstance that an offence is one of strict liability is of some relevance to a consideration of whether vicarious responsibility is intended.
In Mousell Brothers Ltd v London and North-Western Railway Co (applied by the High Court of Australia in R v Australasian Films Ltd), Atkin J stated:
' ... I think that the authorities cited by my Lord make it plain that while prima facie a principal is not to be made criminally responsible for the acts of his servants, yet the Legislature may prohibit an act or enforce a duty in such words as to make the prohibition or the duty absolute; in which case the principal is liable if the act is in fact done by his servants. To ascertain whether a particular Act of Parliament has that effect or not regard must be had to the object of the statute, the words used, the nature of the duty laid down, the person upon whom it is imposed, the person by whom it would in ordinary circumstances be performed, and the person upon whom the penalty is imposed.'
In this passage nothing, in my view, turns upon any distinction between 'absolute' liability and 'strict' liability. (citations omitted)
I interpolate that, in this case, the learned magistrate held that the offence created by reg 3(1) is an offence of strict or absolute liability for which the respondent could be held to be vicariously responsible.[6] There was no challenge to this aspect of the reasoning.
[5] Tiger Nominees Pty Ltd v State Pollution Control Commission, 720A.
[6] Reasons ts 5 and 11 - 13 (1 August 2018).
In Tiger Nominees Gleeson CJ accepted that the essential principle governing the scope of an employer's vicarious responsibility for the acts of an employee was as agreed between the parties, his Honour stated:[7]
[I]f it be accepted that this is an area in which potential vicarious criminal responsibility exists, the proper approach to the determination of whether such responsibility attaches is the same as it would be in the law of tort. The relevant distinction, it was agreed, is between a mode, albeit improper, of doing that which the employee is employed to do and conduct which is outside the scope of the employee's employment: cf Canadian Pacific Railway Co v Lockhart and Deatons Pty Ltd v Flew. This was common ground, and I am content to deal with the case upon that basis. Once it is accepted that, in some circumstances, the act of an employee may expose an employer who is not personally at fault to a penalty as well as to a liability for damages it seems to be consistent with principle to add the same over-riding qualification, that is to say that the employee must be acting in the course of his employment. (citations omitted)
[7] Tiger Nominees Pty Ltd v State Pollution Control Commission, 720G-721B.
In New South Wales v Lepore[8] the members of the High Court expressed divergent views as to the approach to be taken to vicarious liability in tort. In his judgment, Gleeson CJ stated the principle for establishing vicarious liability in tort as follows:[9]
An employer is vicariously liable for a tort committed by an employee in the course of his or her employment. The limiting or controlling concept, course of employment, is sometimes referred to as scope of employment. Its aspects are functional, as well as geographical and temporal. Not everything that an employee does at work, or during working hours, is sufficiently connected with the duties and responsibilities of the employee to be regarded as within the scope of the employment. And the fact that wrongdoing occurs away from the workplace, or outside normal working hours, is not conclusive against liability.
[8] New South Wales v Lepore [2003] HCA 4; (2003) 212 CLR 511.
[9] New South Wales v Lepore,[40] (Gleeson CJ).
Gleeson CJ went on to state that:[10]
It is clear that if the wrongful act of an employee has been authorised by the employer, the employer will be liable. The difficulty relates to unauthorised acts. The best known formulation of the test to be applied is that in Salmond, Law of Torts in the first edition in 1907, and in later editions: an employer is liable even for unauthorised acts if they are so connected with authorised acts that they may be regarded as modes -although improper modes - of doing them, but the employer is not responsible if the unauthorised and wrongful act is not so connected with the authorised act as to be a mode of doing it, but is an independent act.
As Lord Wilberforce explained in Kooragang Investments Pty Ltd v Richardson & Wrench Ltd, to hold an employer liable for negligent acts of an employee is usually uncontroversial; negligence involves performing an allotted task carelessly rather than carefully. Intentional and criminal wrongdoing, engaged in solely for the benefit of the employee, presents a more difficult problem. Even so, employers may be vicariously liable for such wrongdoing, even in cases where the wrongdoing constitutes a flagrant breach of the employment obligations.
…
… It is the nature of that which the employee is employed to do on behalf of the employer that determines whether the wrongdoing is within the scope of the employment.
An act of negligence may be easy to characterise as an unauthorised mode of performing an unauthorised act. An act of intentional, criminal wrongdoing, solely for the benefit of the employee, may be easy to characterise as an independent act; but it is not necessarily so, and there are many examples of cases where such conduct has been found to be in the course of employment. (emphasis supplied, citations omitted)
[10] New South Wales v Lepore,[42] - [43], [46] - [47] (Gleeson CJ).
As is apparent from the judgments in New South Wales v Lepore, and as was observed by the plurality in Prince Alfred College Inc v ADC,[11] the identification of a general principle for vicarious liability has eluded the common law for a long time. That said, there is nothing in the judgments of the High Court in Prince Alfred College Inc v ADC that suggests that the principle stated by Gleeson CJ in New South Wales v Lepore is incorrect.
[11] Prince Alfred College Inc v ADC [2016] HCA 37; (2016) 258 CLR 134 (French CJ, Kiefel, Bell, Keane & Nettle JJ) [38], [44] and [46].
In Orchard Holdings Pty Ltd v Paxhill Pty Ltd as Trustee for Paxhill Trust trading as Property People,[12] Allanson J applied the principle as expressed by Gleeson CJ in New South Wales v Lepore stating:[13]
Determining when an employer is vicariously liable for intentionally wrongful acts of an employee requires a comparison between the employee's conduct and the type of conduct the employee was engaged to perform. The court must consider whether there was a sufficient connection or a close connection between the wrongful conduct and the employee's duties, and whether it is open to conclude that the wrongful conduct was in the course of employment, although an improper mode of carrying it out.
[12] Orchard Holdings Pty Ltd v Paxhill Pty Ltd as Trustee for Paxhill Trust trading as Property People [2012] WASC 271.
[13] Orchard Holdings Pty Ltd v Paxhill Pty Ltd [299] - [230].
As was made clear by Gleeson CJ in New South Wales v Lepore an employer may be held vicariously criminally responsible for the acts of its employee even if that employee acts contrary to explicit instructions.
Bugge v Brown[14] concerned the vicarious liability of an employer for the negligence of an employee. The employee had disobeyed an instruction to cook his lunch in a certain house and instead lit a cooking fire elsewhere. The fire became uncontrollable, subsequently damaging the plaintiff's crops and property. Isaacs J drew a distinction between the prohibitions which limit the sphere of employment and those that merely regulate the employee's conduct within that sphere. His Honour enumerated what he described as the 'well established postulates' applicable to such cases, including:[15]
A prohibition, either as to manner or as to time, or place or even as to the very act itself will not necessarily limit the sphere of employment as to exclude the act complained of, if the prohibition is violated.
An instruction or a prohibition may, of course, limit the sphere of employment. But to have that effect it must be such that its violation makes the servant's conduct complained of so distinctly remote and disconnected from his employment as to put him qua that conduct virtually in the position of a stranger. This is the ultimately decisive consideration in this case. (citations omitted)
In his judgment, after making reference to a number of authorities, Higgins J stated:[16]
It seems clear from these and other cases that the phrases 'in the course of the employment', 'in the course of the service', 'within the scope (or sphere) of his authority' etc, do not mean 'in the exercise of his authority' in the same sense as in the case of contracts made by agents. The precise terms of the authority are not the criterion of liability: the function, the operation, the class of act to be done by the employee, is the criterion - whatever be the instructions as to the time, the place or the manner of doing the act.
[14] Bugge v Brown (1919) 26 CLR 110.
[15] Bugge v Brown, 118 ‑ 119.
[16] Bugge v Brown, 132.
The decision in Bugge was applied by the Full Court of this court in Black Range Tin v Shoobert.[17] Black Range Tin's employee, Dawson, was a truck driver who was expressly forbidden from allowing anyone else to drive the truck and was expressly forbidden from taking unauthorised passengers. Dawson allowed a third-party, not known to his employer, to drive the truck. The truck overturned, injuring Mr Shoobert. The court held that the prohibition against allowing anybody else to drive was a prohibition which dealt only with a driver's conduct within the sphere of his employment and was not a prohibition which limited the sphere of employment. Accordingly, Dawson permitting the third party to drive did not take him outside of his employment. Hale J gave the leading judgment, with which Jackson CJ and Wickham J agreed, and his Honour observed:[18]
The first question is whether Dawson's breach of that prohibition took him out of the course of his employment with the result that the appellant is not liable for what happened thereafter. It has long been recognised that 'there are prohibitions which limit the sphere of employment and prohibitions which only deal with conduct within the sphere of employment' and I would respectfully adopt the dictum of Diplock LJ in Ilkiw v Samuels (1963) 2 All ER 879 at 889 where his Lordship said: 'In cases such as this, where there is an express prohibition the decision into which of these two classes the prohibition falls seems to me to involve first determining what would have been the sphere, scope, course (all these nouns are used) of the servant's employment if the prohibition had not been imposed. As each of the nouns implies, the matter must be looked at broadly, not dissecting the servant's task into its component activities - such as driving, loading, sheeting and the like - but by asking: What was the job on which he was engaged for his employer? and answering that question as a jury would.'
[17] Black Range Tin v Shoobert [1973] WAR 131.
[18] Black Range Tin v Shoobert, 134 ‑ 135.
In Ffrench v Sestili[19] Debelle J (Sulan & Layton JJ agreeing) referred to the decision in New South Wales v Lepore and stated:[20]
The second proposition is that the fact that the conduct in which the employee has engaged was contrary to instructions given by the employer may not be sufficient to deny vicarious liability: Gleeson CJ (at [43]) and Kirby J (at [311]). Gleeson CJ expressed the position in these terms (at [43]): [E]mployers may be vicariously liable for such wrongdoing, even in cases where the wrongdoing constitutes a flagrant breach of the employment obligations.
…
It is necessary to distinguish between those prohibitions which limit the sphere of employment and those which merely regulate the employee's conduct within that sphere: Plumb v Cobdon Flour Mills Co Ltd. Diplock LJ expressed the question in Ilkiw v Samuels as being what task was the employee engaged to do. (citations omitted)
[19] Ffrench v Sestili [2007] SASC 241; (2007) 98 SASR 28.
[20] Ffrench v Sestili,[38].
These authorities are equally applicable in cases such as this where the question concerns attribution of criminal responsibility to an employer company. Gould v Austral Tree & Stump Services Pty Ltd[21] was a case concerning the unlawful clearing of native vegetation, contrary to s 26 of the Native Vegetation Act 1991 (SA). The employees were not charged. The employer was prosecuted on the basis that it was vicariously criminally responsible for the acts of its employees. Vanstone J stated that:[22]
Indeed, even express disobedience to instructions does not necessarily amount to going outside the course of employment for purposes such as these. The critical issue is whether what is done by the employee is done for the master's, as opposed to the employee's, purposes.
[21] Gould v Austral Tree & Stump Services Pty Ltd [2008] SASC 124; (2008) 101 SASR 1. Leave to appeal refused Austral Tree & Stump Services Pty Ltd v Gould [2008] SASC 230 (Duggan, Nyland & David JJ).
[22] Gould v Austral, [18].
Before leaving the authorities I refer to to the decision of Murray J in Farlodge Pty Ltd v Bradley,[23] as the decision was referred to by the magistrate and Murray J's observations that the employee in that case was not acting contrary to 'explicit instructions' might be read to suggest that an employee who acts contrary to explicit instructions will be acting outside of the scope of the employment relationship.The essential facts of Farlodge were that Rough, the driver of a tanker truck used to transport liquid waste, without the knowledge or approval of his employer, Farlodge, discharged waste at an unauthorised location and thereby contravened applicable statutory provisions and committed an offence. Both Rough and Farlodge were prosecuted. It was argued that Farlodge was vicariously liable for the willed act of Rough. Murray J referred to Gleeson CJ's reasoning in Tiger Nominees and stated the applicable principle as follows:
The employee would be held to be acting within the scope of the employment and the ostensible authority with which he or she was clothed by that employment, even if acting improperly, provided it remained possible to say that the employee was at the relevant time performing a function which the employee was employed and authorised by the employer to carry out. And so it may become a question of degree and be necessary to consider how great was the departure by the employee from accepted and permitted modes of carrying out his or her work.
His Honour then stated his conclusion as follows:
There is clear evidence to entitle the learned Magistrate to conclude that on the occasion in question Rough was acting as an employee of Farlodge. He was a relief driver and when so acting was to perform that function of Farlodge's business by which waste material was collected, transported to a disposal site and disposed of. Upon the basis that there was evidence that Rough had been instructed to abide by the terms of the law, it remained the case that he was not on the occasion in question specifically acting contrary to explicit instructions. He was simply performing his task by an unauthorised means, in that the discharge was not at an authorised depot. It was in the interests of Farlodge that that was done and it was a means of carrying out his duties. (emphasis supplied)
[23] Farlodge Pty Ltd v Bradley (Unreported, WASC, Library No 930006, 12 January 1993).
When read in the context of the other authorities to which I have referred, I do not think it implicit in Murray J's reference to the fact that the employee in Farlodge was not acting contrary to explicit instructions, that had he been acting contrary to explicit instructions, this would have been sufficient to take the employee's acts outside the scope of his employment.
The magistrate's reasons
It is only necessary to set out the learned magistrate's conclusions on the alleged vicarious criminal responsibility of the respondent.
The relevant part of her Honour's reasoning is as follows:
I move on to the second scenario … that Mr Dreyer gave a general instruction about tidying up and expected Mr Dellahide would do so according to those practices and procedures.
Now that encompasses both version 2 and version 3 that I discussed with counsel for the prosecution in his closing, but they are really part of the same considerations when looking at vicarious liability, which is the principle that looms large in scenario 2. And in respect of that, I've read the authorities relevant to that principle, specifically Prince Alfred College, Farlodge and Tiger Nominees case, and the issue becomes a question of degree: how great was Dellahide's departure from the norm, or the expected process?
If Mr Dellahide's conduct is found to be outside the scope of his employment, then the company ought not be vicariously liable for it. The evidence I've already discussed earlier is relevant to this scenario 2, so I'm not going to go through it again. In addition, the Farlodge case informs me that an employee is required to be familiar with the regulations for disposal of waste, but that's relevant because of the particular circumstances of that case in Farlodge. Here, though, I can apply the same general principle, that is, Dellahide should have been familiar with the process and procedure of disposing of the [intermediate bulk containers] and the drums.
He is certainly familiar with the (indistinct) and the pond system which deals with the conversion of material contained in those items in the appropriate way. The graveyard and the bins for disposal of the metal are clearly present on site. He cannot have failed to have appreciated that they were present and he cannot have failed to appreciate their relevance and use.
Mr McLernon and Mr Dreyer have clearly put a process in place from 2014. Mr McLernon is regularly monitoring the site as a whole and Mr Dreyer seems to have been following his recommendations and, again, I refer to the McLernon emails and invoices. It's not feasible that Mr Dellahide would not know the process for the disposal of those items. He denies he told Chris Edwards that he was putting the drums in the hole because he couldn't be bothered following the correct process.
…
I've already referred to the (indistinct) discrepancy with what Mr Dellahide says were his instructions in his statement, which is in accordance with his general statements made in evidence that he was told to clean up, except when he's giving evidence at the trial, he has added, and is adamant, that he was told specifically to put the drums in the hole. The state of the prosecution's case leads me to the same uncertain state I was in in relation to the first scenario.
The difficulty arises principally because the two main witnesses, Mr Dellahide and Mr Dreyer, gave evidence which completely contradicts the other, and the other evidence that's presented before me, as I've outlined, does not allow me to form any conclusion beyond reasonable doubt as to which version is true. Both witnesses have serious problems with their reliability and credit.
I ought to have opened with indicating that I'm following general principles throughout, and the first and most important that it is the prosecution's duty to satisfy the court beyond reasonable doubt that all of the elements of the charges are made out. The burden never shifts to defence. Where I'm asked to draw inferences, I can only draw inferences logically that arise from proven facts and my difficulty is in finding proven facts where they are based on the evidence of these two witnesses.
The supporting evidence that has been exhibited both assists and detracts from the reliability and credit of each of those two. I cannot, and do not, progress beyond suspicion - sorry - I cannot progress beyond suspicion in relation to both scenarios put to me by the prosecution and, of course, there I cannot go - I cannot go into speculation. So here too, in relation to scenario 2, the prosecution has failed to discharge its burden of proof.
As a consequence, the prosecution has failed to prove beyond a reasonable doubt that the accused company, either through Mr Dreyer's direct instruction, or by his permitting or allowing the act, or that the company is vicariously liable for Dellahide's action in burying the drums contrary to procedure, that the company is guilty of the charge that has been proffered against it.
The grounds of appeal
The appeal notice contained three grounds of appeal. The second ground is dependent on the first ground. The third ground is pleaded in the alternative to the first two grounds.
The grounds (omitting particulars) were as follows:
1.The learned Magistrate erred in law by finding that she could not determine an essential issue relevant to whether the Respondent was vicariously liable for Mr Trent Dellahide's (Dellahide) actions, being whether Dellahide was acting within the scope of his employment at the time he disposed of the oil drums into the hole, on the basis of what her Honour said were contradictions between the evidence of Dellahide and Mr Theuns Dreyer (Dreyer).
The circumstances were such that if the learned Magistrate had properly considered and determined the issue then she would necessarily have concluded, on the basis of the unchallenged evidence and those parts of the evidence that were consistent between all witnesses, that Dellahide was acting within scope of his employment in disposing of the oil drums into the hole.
2.Further to ground 1, and dependent upon that ground being upheld, the learned Magistrate erred in law in failing to find that the Respondent was vicariously liable for Dellahide's disposing of the oil drums into the hole, given that Dellahide was acting within the scope of his employment when he did so.
3. In the alternative to grounds 1 and 2, the learned Magistrate erred in law by acquitting the Respondent because her Honour held that she could not find which of the two alternative versions of events had occurred, in circumstances where on either version the Respondent was guilty of the offence charged.
Leave to appeal
This is an appeal under pt 2 of the Criminal Appeals Act 2004 (WA) meaning that leave to appeal is required for each ground of appeal.[24]
[24] Criminal Appeals Act 2004 (WA) s 9(1).
Leave must not be granted unless the court is satisfied that the ground has a reasonable prospect of success.[25] This means that each ground must have a real, rational and logical prospect of succeeding.[26]
[25] Criminal Appeals Act 2004 (WA) s 9(2).
[26] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
Disposition
It is accepted by the respondent that Mr Dellahide has, in the course of, or in connection with, a business or commercial activity allowed hydrocarbons to be discharged into the environment.[27] Thus the sole question on appeal is whether the respondent was vicariously responsible for the actions of Mr Dellahide.
[27] Respondent's Submissions [43] and [56].
I accept that the learned magistrate's reasons should not be scrutinised with an eye keenly attuned to the identification of error[28] but, with respect, I have concluded that her Honour misdirected herself as to the applicable legal test for the determination of vicarious liability.
[28] Strahan v Brennan [2014] WASC 190 [90].
The origin of error appears to lie in the adoption of some of the words of Murray J in Farlodge found in the quotation from his Honour's judgment that appears earlier in these reasons. His Honour stated:
And so it may become a question of degree and be necessary to consider how great was the departure by the employee from accepted and permitted modes of carrying out his or her work. (emphasis supplied)
The learned magistrate paraphrased this observation when she said:
[T]he issue becomes a question of degree: how great was Dellahide's departure from the norm, or the expected process?
Immediately thereafter her Honour said:
If Mr Dellahide's conduct is found to be outside the scope of his employment, then the company ought not be vicariously liable for it.
It is correct to say that if Mr Dellahide's conduct was found to be outside the scope of his employment then the respondent is not vicariously liable for it. It is apparent, however, from both the learned magistrate's discussion of whether Mr Dellahide knew that there were recycling bins on site for the disposal of metal and her conclusion that he 'cannot have failed to have appreciated that they were present and he cannot have failed to appreciate their relevance and use', and from her Honour's observation that 'it is not feasible that Mr Dellahide would not know the process for disposal of those items', that her Honour determined whether Mr Dellahide was acting within the scope of his employment by reference to whether he knew of, and followed, the process for the disposal of the oil drums that constituted the 'norm or expected process'.
For the purposes of analysis it can be accepted that Mr Dellahide departed completely from the 'norm or expected process'. A complete departure from the 'norm or expected process' for completing a task does not compel the conclusion that an employee has acted outside the scope of his employment. A court is required to consider whether the employee has merely used an improper or unauthorised mode, which invariably will be something other than the norm or expected mode, of doing that which he is employed to do.
As the authorities make clear, the focus must be on the nature of that which the employee is employed to do, and whether even if the employee is acting in contravention of express instructions, the task being undertaken still falls within the nature of the tasks (or as Higgins J put it in Bugge 'the class of act to be done') that the employee is employed to undertake.
Put another way, the question is - did the requirement that oil drums be disposed of in the recycling bin limit the scope of Mr Dellahide's employment or did it only deal with how he should perform a task that fell within his scope of employment?
The question to which the magistrate directed herself - how great was Mr Dellahide's departure from the norm, or the expected process - could only be relevant to determining the scope of Mr Dellahide's employment if her Honour concluded that the express or implied instructions given to Mr Dellahide were instructions limiting the scope of the employment, and not merely instructions which limited the conduct of Mr Dellahide within the scope of his employment. In the context of a consideration of that issue it is significant that the learned magistrate found that Mr Dellahide ought to have been aware of, and familiar with, the respondent's process for disposing of the oil drums. It is difficult to see on what basis her Honour could conclude that Mr Dellahide ought to have been familiar with the process for disposing of oil drums and, at the same time, conclude that disposing of oil drums was not within the scope of his employment. This apparent inconsistency points to the existence of error in her Honour's approach. Her Honour focussed on whether Mr Dellahide departed from the norm or expected process for disposing of oil drums not on whether the nature of the act - the disposal of oil drums as opposed to the mode of disposal - was so far removed from the nature of the acts Mr Dellahide was employed to perform that it fell outside of the scope of his employment.
It follows from the above that determining what instructions, if any, were given by Mr Dreyer to Mr Dellahide in relation the disposal of the oil drums does not determine whether Mr Dellahide was acting within the scope of his employment. That the learned magistrate considered that she was unable to make a finding on vicarious liability because she was unable to determine what instructions were given supports the view that her Honour did not apply the correct test.
I am satisfied that the learned magistrate misdirected herself as to the correct test for determining the respondent's vicarious criminal responsibility and that grounds 1 and 2 are made out. It is therefore unnecessary to consider ground 3.
It follows that leave should be granted to appeal on grounds 1 and 2 and that the appeal should be allowed.
Both counsel agreed that if I were to grant leave to appeal and allow the appeal the appropriate disposition would be to remit the matter to the magistrate for reconsideration and determination in accordance with the law as set out in these reasons. I agree that is the appropriate course and I will make orders to that effect.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AS
Research Associate/Orderly to the Honourable Justice Tottle21 FEBRUARY 2019