DPP v Esso Australia Pty Ltd - [2001] VSC 401

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1484 of 2000

DIRECTOR OF PUBLIC PROSECUTIONS

ESSO AUSTRALIA PTY LTD

R U L I N GNo. 16

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JUDGE:	Cummins J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 October 2001
DATE OF RULING:	3 October 2001
CASE MAY BE CITED AS:	DPP v Esso Australia Pty Ltd
MEDIUM NEUTRAL CITATION:	[2001] VSC 401	First Revision 29 August 2002

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Crimes compensation – applications by victims pursuant to s. 85B Sentencing Act 1991 – applications consequent upon convictions for offences under s. 21 and s. 22 Occupational Health and Safety Act 1985 – section 85B proceedings an incident of criminal proceedings – orders pursuant to s. 85B to be part of public record – Shoebridge and Anor v The Pasta Master Pty Ltd (3 February 2000).

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APPEARANCES:	Counsel	Solicitors
For the Prosecution	R. Richter QC with N. Clelland	Office of Public Prosecutions
For the Accused	M. Titshall QC with M. Hennessy	Middletons Moore & Bevins

R U L I N GNo. 16

HIS HONOUR:

On 28 June 2001, after a four month trial, Esso Australia Pty Ltd was found guilty by a jury on eleven counts of breaches of s.21 and s.22 Occupational Health and Safety Act 1985. By reason of s.47(3) of that Act, each of those convictions was of an indictable offence. The convictions essentially were of failures to provide and maintain, so far as was practicable, a safe workplace and safe systems of work at Esso's major gas processing facility at Longford, Victoria. On 25 September 1998, as a consequence of Esso's failure, a catastrophic rupture in plant had occurred. Explosions and fires ensued, two employees tragically were killed, eight others were seriously injured and numerous persons were caused significant trauma, pain and suffering. On 30 July 2001, I imposed fines totalling $2,000,000 upon Esso Australia for the eleven offences. Upon the jury returning verdicts of guilty upon the eleven counts, numerous persons through their legal representatives announced in court that they sought compensation from Esso Australia Pty Ltd for injury, pain and suffering, arising out of the rupture as Esso's plant at Longford on 25 September 1998.

Shortly thereafter, each of those persons filed in this court, formal applications pursuant to s.85B Sentencing Act 1991 for such compensation.

By reason of the abolition in 1997 by s.45 Accident Compensation (Miscellaneous Amendment)Act 1997 of traditional and justified workers' rights to workplace injury compensation, partially restored from 20 October 1999 by s.18 Accident Compensation (Common Law and Benefits) Act 2000, none of the applicants had any civil remedy against Esso for damages for workplace injury. Their only recourse was under s.85B Sentencing Act 1991, which recourse was dependent upon a necessary condition precedent being fulfilled, namely that Esso be convicted of a relevant criminal offence. That condition precedent was fulfilled by the verdicts the jury returned on 28 June 2001.

After administrative arrangements were made for the efficient hearing of the compensation…

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: [2001] VSC 401
Decision Date: 3 October 2001

CaseChat Overview and Summary

The case of the Director of Public Prosecutions versus Esso Australia Pty Ltd involved a dispute over the interpretation and application of section 85B of the Sentencing Act 1991. The case arose from convictions against Esso Australia Pty Ltd for offences under the Occupational Health and Safety Act 1985, specifically sections 21 and 22, which pertain to corporate manslaughter and causing death by dangerous activity. The matter was heard in the Supreme Court of New South Wales.

The central legal issue before the court was whether applications for compensation made by victims under section 85B of the Sentencing Act 1991 could be considered as part of the public record, and if the court could make orders that were part of the public record. This issue was influenced by the decision in Shoebridge and Anor v The Pasta Master Pty Ltd, which established that section 85B proceedings were an incident of the criminal proceedings. The court needed to determine whether the orders made under section 85B could be included in the public record and if they could be treated as part of the criminal proceeding.

The court held that section 85B proceedings were indeed an incident of the criminal proceedings, and orders made under section 85B could be part of the public record. This decision was consistent with the earlier case of Shoebridge and Anor v The Pasta Master Pty Ltd. The court clarified that the public record would include any orders made pursuant to section 85B, which were intended to compensate victims of the crime. This approach ensured that the victims' compensation applications were appropriately integrated into the criminal justice process.

The court's ruling reinforced the importance of treating compensation orders under section 85B as part of the criminal proceeding, thereby ensuring that victims' interests were protected and recognised within the public record. This decision provided clarity on the scope of section 85B and its interplay with the public record, offering a structured approach to handling compensation applications in similar cases.

Orders