Dinko Tuna Farmers Pty Ltd v Markos

[2007] HCATrans 690

[2007] HCATrans 690

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A24 of 2007

B e t w e e n -

DINKO TUNA FARMERS PTY LTD

Applicant

and

IAN MARKOS

Respondent

GLEESON CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 16 NOVEMBER 2007, AT 11.19 AM

Copyright in the High Court of Australia

MR R.J. WHITINGTON, QC:   May it please the Court, I appear with my learned friend, MR T.P. MARTIN, for the applicant.  (instructed by Minter Ellison).

MR C.J. KOURAKIS, QC (Solicitor‑General for the State of South Australia):   May it please the Court, I appear with my learned friend, MR K.W. SOETRATMA.  (instructed by Crown Solicitor for the State of South Australia)

GLEESON CJ:   Yes, Mr Whitington.

MR WHITINGTON:   May it please the Court, this application seeks to have this Court settle the proper interpretation of the common but vexed expression an employer must “so far as is reasonably practicable” in industrial health and safety legislation.  Generally, that prescription requires an employer to take precautions directed at eliminating or minimising the risks to the health and safety of workers in the workplace.

The Court has the relevant provision reproduced in the judgment of his Honour Justice Gray at paragraph 16 in the application book at page 152 and, truncating it, relevantly that section provides that:

An employer must . . . ensure so far as is reasonably practicable that the employee is, while at work, safe from injury and risks to health –

The expression “so far as is reasonably practicable” has a fairly lengthy history and is employed in a similar context in the legislation of New South Wales, Tasmania, Victoria and Western Australia.  The Tasmanian provision is virtually identical to the South Australian provision.  The Victorian and Western Australian provisions are each in substantially the same terms and equivalent to the South Australian provision, although they speak of providing and maintaining a safe workplace rather than ensuring a safe workplace as is prescribed in South Australia. 

In New South Wales the primary obligation, like that in the South Australian provision, is couched in terms of ensuring the health, safety and welfare of workers.  However, the provision does not include as an element of the primary obligation the qualification insofar as is reasonably practicable.  Instead it is a defence to show that it was not reasonably practicable to comply with the prescription.  In the Australian Capital Territory and Commonwealth equivalent legislation the counterpart provisions use the expression “reasonably practicable” but in the context of a qualification to the steps to be taken rather than as an element of obligation to ensure or provide or maintain. 

The Northern Territory provision is the counterpart of the Victorian and Western Australian provisions except that it lacks the qualification “reasonably” in the expression “provide and maintain so far as is practicable”.  After that survey of the legislation around the country I need briefly to recount something of the history of the proceedings below to indicate how unsettled the interpretation of section 19 has become, certainly in this State. 

The applicant was charged on complaint with breaching the section and was found guilty of the charge by reference to three of the four particularised counts or allegations.  It was common ground in the proceedings below that the complainant was required to prove all elements of the statutory offence beyond reasonable doubt.  The critical issue joined between the parties at different stages of the proceedings was as to the elements of the offence.  The defendant asserted, and the complainant, at times contingently, denied that the complainant was required to prove that what was reasonably practicable in the circumstances must be judged in light of the response of a reasonable employer in the position of the defendant.  The applicant says that this includes an assessment of the response of such a reasonable employer to the foreseeable risk.

The industrial magistrate at trial proceeded to a verdict of guilty apparently by a finding that there was a foreseeable risk of an accident and that there were steps available to the defendant to implement, the absence of which put the employee’s safety and health at risk.  It appears that the learned industrial magistrate relied upon a dictum of Justice Prior, in speaking for the Full Court of the Supreme Court of South Australia in a decision Softwood Holdings v Stevenson, reported in 1996, in which he suggested that the relevant elements of the offence included simply the fact of employment, the exposure to a foreseeable risk of injury and the availability of measures which the defendant may practically have taken but which did not take which would have eliminated or ameliorated the risk.

In the present case, on the appeal to a judge of the Industrial Court, the judge allowed the appeal, set aside the conviction and dismissed the complaint but he did not on the basis that section 19 substantially replicated the common law test of breach of an employer’s duty of care and therefore it was required to be proved beyond reasonable doubt that the employer had failed to do what a reasonable, prudent employer would have done in the circumstances.  He held that the complainant had not proved the complaint on that basis.

There was then an appeal to the Full Industrial Court.  The senior judge would have dismissed the appeal.  He held, first of all, that section 19 did not impose a duty on the employer higher than the common law.  Secondly, he held that the judge below had been right to hold that there had been no breach of that duty.  The senior judge further held that even on the higher test proposed by the complainant, the charge had not been proved beyond reasonable doubt.

The majority of the Full Industrial Court, Judges Hannon and Farrell, allowed the complainant’s appeal and reinstated the conviction and it appears they did so on the following basis.  They appeared to hold that the magistrate had applied the common law test when plainly he had not.  They appeared to hold that the application of the Wyong v Shirt test dictated a guilty verdict, although nowhere did they actually or correctly apply the objective test of the response of the hypothetical reasonable employer.  They held further that the law, as to the correct interpretation of section 19 was unsettled, and it was unclear whether section 19 simply restated the common law test.

GLEESON CJ:   Whether it does or it does not, the obligation of anybody who is administering the Act is to apply section 19, is it not?

MR WHITINGTON:   Correct.  Yes it is but that is the fundamental question, your Honour.  The question is, how does a court properly apply section 19?  There are decisions in Victoria, for instance, that say that the counterpart provision involves the application of the test of a reasonable employer.  You see, this Court made the point in Fahy’s Case, through various judgments, that it is all very well to speak of the Shirt calculus and to speak of weighing or balancing the factors, as the Court has done in this particular case, but obviously those circumstances will not be commensurate and it is not satisfactory, in our respectful submission, to say that the balancing is to be done by mere value judgment. 

That was of course the approach taken by Justice Gaudron in dissent in Slivak v Lurgi but we say that, if the matter proceeds simply by way of recourse to the trier of facts value judgment, then that opens the way for arbitrary idiosyncratic decision‑making and some objective standard must be introduced by which to weigh the factors on each side of the risk equation.

GLEESON CJ:   Was all this because, as a practical matter, the defence was relying upon the circumstance, or upon evidence, that other people in this industry did not take the precautions that were alleged should have been taken?

MR WHITINGTON:   There was evidence to that effect but, critically, the submission was that no reasonable employer would have taken the stipulated precautions or, alternatively, that a reasonable employer in the position of the defendant would not have taken the requisite precautions.  The defendant contended throughout that that was the relevant prism, if you like, through which the considerations were to be viewed or the means by which the considerations on each side of the scales were to be weighed.

GUMMOW J:   This is all very interesting, but we have to get down to the specifics, I suppose.  What do you say about paragraphs 21 and 22 of the submissions by the Solicitor‑General on pages 199 and 200?

MR WHITINGTON:   With great respect, we dispute that and for this reason.  First of all, the Full Court has never addressed that question.  Secondly, the Full Industrial Court did not address that question at all properly.

GUMMOW J:   This has been through four stages in the courts in South Australia, has it?

MR WHITINGTON:   It has, your Honour, yes, and it has been dealt with differently at each stage.  That is part of the confusion which needs settling.  The judge at first instance in the Industrial Court applied the correct approach, we say.  He concluded that on that basis it could not be said beyond reasonable doubt that the prosecution had made out the complaint.

GLEESON CJ:   That is an issue of the application of the appreciation of the way the statutory words apply to the facts of the case.

MR WHITINGTON:   Yes, but it was in the context where the senior judge interpreted the statutory words as incorporating the common law test which included a further element not applied, for instance, by the magistrate, that is, how would a reasonable employer in the position of the in the position of the defendant respond to the risk?  We say that test has never properly been applied in this case except by the judge on the first appeal in the Industrial Court and he found on that basis that the charge was not proved beyond reasonable doubt.  Our learned friends want to say that in this case, even applying the common law test, then the defendant would be found guilty beyond reasonable doubt.

GLEESON CJ:   Mr Whitington, I am having this difficulty at the moment.  I understand that the kind of issue that this statutory provision raises in many cases is very similar to the kind of issue that arises in cases concerning the common law duty of care, but apart from noting that similarity and noting the fact that guidance might be obtained from the way judges have dealt with the common law issue, how has the common law have anything to do with the statute?

MR WHITINGTON:   Can I address that point by asking the Court to go to our book of authorities, if it is available, and go to the recent decision of this Court in New South Wales v Fahy (2007) 81 ALJR 1021. It should be case two in the Court’s bundle. We would wish to turn to the reasons of Justice Gummow with Justice Hayne at paragraph [58] at page 1034. In that case their Honours referred back to what this Court had said in Vairy v Wyong Shire Council and then they said this after the passage quoted:

It is only if the examination of breach focuses upon “what a reasonable man would do by way of response to the risk” –

The Court will remember that that is the precondition or element in the well‑known passage of Justice Mason in Wyong Shire v Shirt –

that it is sensible to consider “the magnitude of the risk and the degree of the probability of its occurrence, along with the expense, difficulty and inconvenience of taking alleviating action and any other conflicting responsibilities which the defendant may have”.

In our respectful submission, that is a proposition of logic as much as a proposition of law.  The factors identified there are essentially the Wyong Shire v Shirt factors.  They are the very factors identified at all levels in this case as being relevant to ‑ ‑ ‑

GUMMOW J:   What we said in Fahy has to be understood, starting at paragraph 18, is it not? Fahy was an action in tort, was it not?

MR WHITINGTON:   It was.  It was the case of the two police officers, but the point we make is this, that what your Honours there said, as I have put, is a proposition of logic as much as of law.  It makes the point that unless there is some means or mechanism for valuing and weighing circumstances which are not inherently commensurate, then it is meaningless to attempt to apply the test in section 19.  Section 19 invokes and evokes, according to the authorities, the very same considerations to be weighed in the balance, but it does not by itself indicate how they are to be weighed.  Unless some objective criterion is posted for the weighing, such as the standard of a reasonable employer in the circumstances of the defendant, then the matter is completely indeterminate and decision‑making is potentially completely arbitrary and this is, of course, a criminal offence.  It becomes virtually impossible for an employer to know how to cut their cloth, to know how to conduct their business and their workplace because they are subject to a completely indeterminate standard of liability.

That has been appreciated, we would submit, in a number of cases.  For instance, in a Victorian decision that we refer to – R v Australian Char Pty Ltd – the Court of Appeal appeared to approve a direction of the trial judge in a prosecution under the counterpart Victorian provision in which he directed the jury that they should test the defendant’s conduct by reference to the standard of a reasonable employer in the circumstances of

the defendant.  There are other indications in the cases that it is appropriate to apply a common law test.  For instance, in South Australia itself we have the reasons of Justice Prior that I have mentioned in Softwood Holdings in which his Honour says it is simply a matter of identifying reasonably available measures.

On the other hand, in a decision of Chief Justice Doyle speaking to the Full Court in Slivak v Lurgi, a judgment which was upheld by this Court, his Honour said he could not see any difference between section 19 and the common law test.  In the earlier decision of this Court in Chugg v Pacific Dunlop the majority appear to suggest that the statutory provision may simply repeat in legislative form the substance of the common law obligation.  If I might mention Australian Char again, in that case the Court of Appeal cited with approval a dictum of Justice Fullagar at first instance in Chugg in which he equated the statutory duties of the common law duty.

The authorities are unsettled but, if anything, there is a trend towards the proposition that the common law duty and the statutory duty are to be equated.  We say that that is necessarily so as a matter of logic otherwise the application of section 19 is completely open ended and indeterminate.  At least in this State it is clear from the history of this proceeding below that the courts are in a complete and utter state of confusion and uncertainty.  If I could bring the Court back for a moment to the reasons of Justice Gray, the essential reasoning of his Honour appears at page 161 of the application book in paragraphs 38 through to 40.  That is his reasoning as to the content of section 19.  It appears that his Honour was largely guided by the reasons of her Honour Justice Gaudron in Slivak v Lurgi, but in that decision her Honour was in dissent.

It is our respectful submission that in that unsettled state of the authority and bearing in mind the implications of the decision of the Full Court below, this is a matter which needs to be settled by this Court.  In addressing the question of what “reasonably practicable measures” means in this context, this Court will be settling the matter not only for South Australia but for most Australian jurisdictions.  Those are our submissions, if the Court pleases.

GLEESON CJ:   Thank you, Mr Whitington.  We do not need to hear you, Mr Solicitor. 

The unanimous decision of the Full Court of the Supreme Court of South Australia in this matter does not appear to us to have turned upon any debatable point of construction of the South Australian statute but rather upon an appreciation of the application of the language of the statute to the facts and circumstances of the case.  We are not persuaded that such appreciation arguably involved any legal error.  The case does not raise an issue suitable to a grant of special leave to appeal and the application is dismissed.  Does any question of costs arise?

MR KOURAKIS:   Yes, costs are sought.

GLEESON CJ:   Do you resist that, Mr Whitington?

MR WHITINGTON:   No, your Honour.

GLEESON CJ:   The application is dismissed with costs.

AT 11.41 AM THE MATTER WAS CONCLUDED