Diemould Tooling Services Pty Ltd v Oaten - [2008] SASC 197

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
DIEMOULD TOOLING SERVICES PTY LTD v OATEN; SANTOS LIMITED v MARKOS
[2008] SASC 197
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Gray and The Honourable Justice White)
17 July 2008
INDUSTRIAL LAW - SOUTH AUSTRALIA - APPEALS AND REFERENCES - CASES STATED TO SUPREME COURT
APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - RIGHT OF APPEAL - WHEN APPEAL LIES - OTHER CASES
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - PARTICULAR WORDS AND PHRASES - SPECIFIC INTERPRETATIONS
Whether the complaint against Diemould Tooling Services Pty Ltd and the information against Santos Limited breach the rule against duplicity - proper interpretation of s 19 and s 22(2) of the Occupational Health Safety and Welfare Act 1986 (SA) - whether prosecutor must elect to proceed on one count only or whether prosecutor can amend complaint and information - whether this would amount to laying new charges after expiry of time.
Held: appeals dismissed. No defect in complaint or information.
Occupational Health Safety and Welfare Act 1986 (SA) s 19, s 22, s 58, s 59, s 60, s 60A, s 63A; Companies Act 1958 (Vic); Magistrates Court Act 1991 (SA) s 43; Fair Work Act 1994 (SA) s 191; Summary Procedure Act 1921 (SA) s 22A, s 51; Acts Interpretation Act 1915 (SA) s 30; Acts Interpretation Act 1904 (Cth) s 3; Licensing Act 1932-1935 (SA) s 209(1), referred to.
Dinko Tuna Farmers v Markos (2007) 98 SASR 96; Romeyko v Sanuels (1972) 2 SASR 529; Montgomery v Stewart (1967) 116 CLR 220; Island Maritime Limited v Filopowski (2006) 226 CLR 328; Walsh v Tattersall (1996) 188 CLR 77; Chugg v Pacific Dunlop Limited (1990) 170 CLR 249; Chugg v Pacific Dunlop Limited [1998] VR 411; BHAS v Stevenson (1991) 68 SAIR 759; Pearce v The Queen (1998) 194 CLR 610; Johnson v Miller (1937) 59 CLR 467; Byrne v McLeod (1934) 52 CLR 1, applied.
Broken Hill Associated Smelters Pty Ltd v Stevenson (1991) 42 IR 130; Boral Gas (NSW) Pty Ltd v Magill (1995) 37 NSWLR 150; Australian Char Pty Ltd (1995) 79 A Crim R 427; Meiklejohn (1998) 100 A Crim R 521; Oaten v Diemould Tooling Services Pty Ltd; Markos v Santos Ltd [2007] SAIRC 44; S v The Queen (1989) 168 CLR 266, discussed.

DIEMOULD TOOLING SERVICES PTY LTD v OATEN; SANTOS LIMITED v MARKOS
[2008] SASC 197
Full Court: Doyle CJ, Gray and White JJ

DOYLE CJ: I have had the benefit of reading the reasons of Gray J. His reasons set out the statutory provisions and other matters that provide the background to these appeals. I will not repeat that material, except where necessary to do so as part of my own reasons.
The primary issue argued on appeal is whether the complaint against Diemould Tooling Services Pty Ltd (“Diemould”) and the information against Santos Limited (“Santos”)…

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: [2008] SASC 197
Decision Date: 17 July 2008

CaseChat Overview and Summary

In the case of Diemould Tooling Services Pty Ltd v Oaten, the parties involved were Diemould Tooling Services Pty Ltd and Santos Limited, with the dispute concerning whether the complaint and information against Diemould breached the rule against duplicity and the proper interpretation of sections 19 and 22(2) of the Occupational Health Safety and Welfare Act 1986 (SA). The matter was heard and determined in the Supreme Court of South Australia.

The primary legal issue before the court was the interpretation of sections 19 and 22(2) of the Occupational Health Safety and Welfare Act 1986 (SA) to determine whether the complaint and information against Diemould constituted a breach of the rule against duplicity. A secondary issue involved whether the prosecutor must elect to proceed on one count only or if they could amend the complaint and information, and whether such an amendment would amount to laying new charges after the expiry of the time limit.

The court found that the sections in question created only one offence, making it unnecessary to address the hypothetical questions of election and amendment. The court declined to answer the referred questions regarding these issues, as they required knowledge of the precise terms of any proposed amendment before considering the detailed submissions advanced. The court concluded that both appeals should be dismissed.

The final orders of the court were to dismiss both appeals, in agreement with the reasons provided by the Chief Justice. The reasoning and outcome underscore the importance of clear statutory interpretation and the procedural constraints on amendments to complaints and information in criminal proceedings.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Having regard to my earlier conclusions that the sections in question relevantly create only the one offence, it is not appropriate to address and resolve what have become the hypothetical questions of election and amendment. For those issues to properly be addressed, the Court would need to know the precise terms of any proposed amendment before considering the detailed submissions advanced. Accordingly I would decline to answer the questions referred in regard to these issues. Conclusion Both appeals should be dismissed. WHITE J: I agree with the orders proposed by the Chief Justice and with his reasons.

Ratio Decidendi

Legal Principle Established

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