INDUSTRIAL COURT OF QUEENSLAND
CITATION:
Du Preez v Pearce [2016] ICQ 023
PARTIES:
KATHERINE EVELYN du PREEZ (COMMISSIONER FOR MINE SAFETY AND HEALTH)
(appellant)
v
SEAN PEARCE(respondent)
FILE NO/S:
C/2016/13
PROCEEDING:
Appeal
DELIVERED ON:
20 October 2016
HEARING DATE:
19 August 2016
MEMBER:
Martin J, President
ORDER/S:
1. The appeal is dismissed.
2. The parties are to confer with a view to reaching agreement, within 21 days, as to the quantum of costs to be awarded. If agreement is not reached, these directions apply:
(a) The respondent is to file and serve a brief outline of submissions on the quantum of costs by no later than 17 November 2016.
(b) The appellant is to file and serve a brief outline of submissions on the quantum of costs by no later than 24 November 2016.
(c) The respondent may file and serve a reply by no later than 1 December 2016.
CATCHWORDS:
INDUSTRIAL LAW – APPEALS – APPEAL TO INDUSTRIAL COURT – OTHER MATTERS – where the respondent was charged with an offence against s 702 of the Petroleum Gas (Production and Safety) Act 2004 (Qld) (the Act) – where the respondent was a mechanic on a drill rig – where another worker on the rig fell and injured himself after entering a hydraulic unit – where the respondent had conducted modifications to that unit – where the charge alleged that the respondent was required, but failed, to conduct a ‘Job Safety Analysis’ under the relevant safety management plan as the task of modifying the unit was ‘non-routine’ – where the complaint was dismissed by the Industrial Magistrate – whether the Industrial Magistrate erred in dismissing the complaint – whether the rig was ‘operating plant’ for the purposes of the Act – whether the task undertaken by the respondent was ‘routine’ – whether there was a causal connection between the other worker’s injury and the respondent’s task
EVIDENCE – ADMISSIBILITY – OPINION EVIDENCE – EXPERT OPINION – QUALIFICATIONS OF WITNESS – where the appellant sought to call expert opinion evidence from a witness on the basis that he was an expert in risk assessment – where the Industrial Magistrate ruled the evidence inadmissible because those qualifications were irrelevant to the question of whether the task was ‘non-routine’ – whether the Industrial Magistrate erred
INDUSTRIAL LAW – APPEALS – APPEAL TO INDUSTRIAL COURT – OTHER MATTERS – where the appellant was restricted in asking certain questions of witnesses – where the appellant submitted that the Industrial Magistrate intervened in the cross-examination of the respondent by interjecting and answering questions for the witness – where the Industrial Magistrate required both parties to file closing submissions on the same date, thus depriving the appellant of the opportunity to submit last – whether the Industrial Magistrate failed to afford the appellant procedural fairness
INDUSTRIAL LAW – APPEALS – APPEAL TO INDUSTRIAL COURT – OTHER MATTERS – where the Industrial Magistrate awarded costs against the appellant – where the Industrial Magistrate awarded an amount higher…
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Details
- AGLC
- Du Preez v Pearce [2016] ICQ 23
- Case
- [2016] ICQ 23
- Decision Date
CaseChat Overview and Summary
The case of Du Preez v Pearce involved an appeal against a decision by the Industrial Magistrate to dismiss a complaint brought under the Petroleum Gas (Production and Safety) Act 2004 (Qld). The respondent, Sean Pearce, was a mechanic employed on a drill rig who was charged with an offence for failing to conduct a Job Safety Analysis (JSA) for a non-routine task involving modifications to a hydraulic unit. This failure allegedly led to an injury of another worker, Leyton Craig, who fell and sustained multiple injuries after entering the doghouse of the rig. The primary issues before the court were whether the Industrial Magistrate correctly dismissed the complaint, if the task was non-routine, and if there was a causal connection between the respondent's actions and the injury.
The court examined whether the Industrial Magistrate erred in several respects, including the dismissal of the complaint, the admissibility of expert evidence, procedural fairness during the trial, and the award of costs. In addressing the question of whether the task was non-routine, the court found that the Industrial Magistrate's interpretation of the relevant safety management plan was correct, and the task did not necessitate a JSA. The court also ruled that the Industrial Magistrate did not err in excluding expert opinion evidence as the qualifications of the expert were not relevant to the specific issue of whether the task was non-routine. Regarding procedural fairness, the court found no evidence of the Industrial Magistrate improperly intervening in the cross-examination or unfairly scheduling the closing submissions. Finally, the court concluded that the Industrial Magistrate appropriately exercised discretion to award higher costs due to the special importance of the case, considering the erroneous interpretation of the Act that led to the complaint.
The court's decision affirmed the dismissal of the complaint against the respondent, Sean Pearce. It upheld the Industrial Magistrate's findings on the non-routine nature of the task, the exclusion of expert evidence, and the procedural fairness during the trial. The award of higher costs was justified due to the special importance of the case, leading to an erroneous prosecution. Consequently, the appeal was dismissed, and the original decision of the Industrial Magistrate was affirmed.
The court examined whether the Industrial Magistrate erred in several respects, including the dismissal of the complaint, the admissibility of expert evidence, procedural fairness during the trial, and the award of costs. In addressing the question of whether the task was non-routine, the court found that the Industrial Magistrate's interpretation of the relevant safety management plan was correct, and the task did not necessitate a JSA. The court also ruled that the Industrial Magistrate did not err in excluding expert opinion evidence as the qualifications of the expert were not relevant to the specific issue of whether the task was non-routine. Regarding procedural fairness, the court found no evidence of the Industrial Magistrate improperly intervening in the cross-examination or unfairly scheduling the closing submissions. Finally, the court concluded that the Industrial Magistrate appropriately exercised discretion to award higher costs due to the special importance of the case, considering the erroneous interpretation of the Act that led to the complaint.
The court's decision affirmed the dismissal of the complaint against the respondent, Sean Pearce. It upheld the Industrial Magistrate's findings on the non-routine nature of the task, the exclusion of expert evidence, and the procedural fairness during the trial. The award of higher costs was justified due to the special importance of the case, leading to an erroneous prosecution. Consequently, the appeal was dismissed, and the original decision of the Industrial Magistrate was affirmed.
Orders
Orders of the court
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Background
Background to the litigation
In considering this matter the Industrial Magistrate referred to the decision of Farr DCJ in Whitby v Stockair Pty Ltd & Anor[14] which, in turn, referred to the New Zealand decision of Interclean Industrial Services Ltd v Auckland Regional Council.[15] In that case, Randerson J referred to the relevant New Zealand legislation and said:“[31] By virtue of s 4 of the 1967 Act, the Court may, subject to any regulations made under the 1967 Act, order a defendant convicted of an offence “to pay such sum as it thinks just and reasonable towards the costs of the prosecution.'' By reg 3 of the Costs in Criminal Cases Regulations, the heads of costs and the maximum scales of costs which may be ordered to be paid under the 1967 Act are those set out in the Schedule to the regulations. However, there is power under s 13(3) of the 1967 Act to make an order for the payment of costs in excess of scale if the Court is “satisfied that, having regard to the special difficulty, complexity, or importance of the case, the payment of greater costs is desirable.''[32] As observed by Tipping J in T v Collector of Customs (High Court, Christchurch, AP 167/94, 28 February 1995) at p 2:“The use of the word `special' when applied to the concepts of difficulty, complexity and importance means that it is not enough simply to say that the case was difficult, complex or important. The necessary difficulty, complexity or importance must be such that it can be said to be significantly greater than is ordinarily encountered. Similarly the focus on the case itself means that it is not enough for the applicant to be able to say that by dint of its features the case had special importance to him. The fact that the scale is miserable, indeed insultingly so, naturally leads a Judge to strain to find sufficient cause to exceed the scale. Any such tendency must be resisted, albeit with little enthusiasm.”[33] It was submitted for the appellant that the case must be one of special difficulty, complexity, and importance, judged by reference to cases of the same type. In other words, it was submitted that the question was whether the present case was one of special difficulty, complexity, or importance when compared with other prosecutions for breach of s 338 of the RMA. To the contrary, Mrs Hollings submitted for the respondent that the proper comparison is between a prosecution for an offence under s 338 and prosecutions generally.[34] In my view, each case must be considered on its own facts. I do not accept the appellant's submission that it is necessary for the prosecutor to demonstrate that the case is one of special difficulty, complexity or importance when compared with other prosecutions of the same type. The question is whether, having regard to the general run of criminal cases, the particular case is one of special difficulty, complexity or importance. Just as murder trials are not necessarily complex or difficult, summary cases are not always straightforward and may give rise to unusual complexity. Prosecutions under s 338 may often be of some difficulty or complexity but it will not always be so.” (emphasis added)[14] [2015] QDC 79.[15] [2000] 3 NZLR 489.
Evidence
Evidence Before The Court
A similar conclusion was reached in R v Clark[3] where the issue was whether or not opinion evidence of a police officer about the speed of a vehicle could be relied upon where no objection was taken. Maxwell P (with whom Charles and Nettle JJA agreed on this point) said:[3] (2005) 13 VR 75.“[18] I now turn to consider the significance of the failure of the defence to object to the admissibility of the evidence. In my view, the failure to object has the consequence that the opinion evidence of Sergeant Bellion could properly be treated as evidence of the likely speed of the applicant’s vehicle at impact. By not objecting, the applicant waived the right which he undoubtedly had to object to the receipt of that evidence.[19] In arriving at that conclusion, I have been much assisted by the detailed consideration of these issues by Phillips CJ and Eames J (as his Honour then was) in R v Radford. As noted by their Honours in that case, there are many instances in the context of civil litigation where the courts have held that hearsay evidence, once admitted without objection, may be treated as evidence of the facts asserted within its parameters. As Gibbs J said in Hughes v National Trustees Executors and Agency Co of Australasia Ltd: There are no doubt some cases in which inadmissible evidence, having been admitted, may be treated as evidence for all purposes; for example, where one party by his conduct of the trial has led the other to believe that evidence, although hearsay, may be treated as evidence of the facts stated, and the other in reliance on that belief has refrained from adducing proper evidence, the former party is precluded from objecting to the use of the evidence to prove the facts stated.[20] In Radford, the court held that it would be appropriate to apply in criminal cases the principle espoused in the civil cases. That is, hearsay evidence, once admitted in a criminal trial without objection, may be treated as evidence of the facts asserted. I see no reason not to apply that principle in the present case.[21] There was, as I have said, ample opportunity to object. That being so, the failure to object constituted a waiver of the right to object, in my view.[22] The question of whether the doctrine of waiver applies in criminal cases was considered by the court in Radford. Phillips CJ and Eames J referred to an article by Mr Weinberg (written when his Honour was a senior lecturer in law at the University of Melbourne), entitled ‘The Consequences of Failure to Object to Inadmissible Evidence in Criminal Cases’. The learned author identified two conflicting lines of authority, respectively comprising cases which did, and cases which did not, support the applicability of ‘waiver theory’ in criminal appeals.[23] Victorian decisions up to that point (1978) were described in the article as having:… embarked down the path of waiver without fully considering the consequences …[24] In R v Matthews and Ford, - 13 the court said that ‘mode or form’ evidence was subject to waiver, while other rules of evidence were not. In R v Gay, it was said that where there had been a ‘deliberate choice not to object’ (for tactical reasons other than preserving an appeal point), this constituted waiver.[25] In his article, Mr Weinberg argued that the proper solution would be to deal with such issues not as a matter of waiver but by the use of the proviso in s 568(1) of the Crimes Act, under which the Court of Appeal:… may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.[26] In the learned author’s opinion:The proviso ought to be used to uphold a conviction only where there is ample admissible evidence (apart from the inadmissible evidence received without objection) to sustain that conviction. In cases where the only evidence against the accused is the inadmissible evidence to which no objection was taken, the conviction should be quashed (subject to one slight modification discussed below).[27] With respect, I think that the doctrine of waiver is properly applicable in a case such as this. My conclusion is strengthened by the very significant changes in criminal trial procedure which have taken place since that article was written. Given that the defence has both the opportunity and, to some extent at least, the obligation to identify in advance any disputes over admissibility, I think it can properly be said that there has been waiver when (as here) the point is not raised before trial or in the course of the evidence, and there is no cogent explanation for the failure.” (emphasis added, citations omitted)
Decision
Reasons for decision
In the particulars which accompanied the Complaint the following matters were alleged:“3.The rig is an operating plant because it is a facility used to explore for or produce petroleum, within the meaning of section 670 (2) (a) of the Petroleum and Gas (Production and Safety) Act 2004 (‘the Act’). The rig includes the drill rig and the surrounding land (known as the “drill pad”) and all equipment located on that land and associated with or required by the drill rig to drill the petroleum well (‘the site’).…5.SEAN PEARCE was employed by Saxon as the mechanic for the rig. One of his duties was to perform hydraulic repairs and modifications to the rig.6.SEAN PEARCE was subject to obligations under the Safety Management Plans for the operating plant.…8.Saxon had implemented two safety management plans. The first … was titled … ‘SEMP’.9.Section 2.4.5 of the SEMP stated that Job Safety Analysis (JSA) ‘will be conducted for more complex or non-routine jobs on the rig’.…13.On or before 19 April 2013, SEAN PEARCE was assigned to modify the hydraulic unit. This involved SEAN PEARCE completing work on a hydraulic modification to the hydraulic system which incorporated the installation of a hydraulic arm to open a ventilation hatch in the Hydraulic Power Unit (‘HPU’) (‘the Hatch Modification’).13A.On 19 April 2013, prior to the raising of the doghouse, SEAN PEARCE, in completing the Hatch Modification, plumbed in the t-piece to Rig 165’s hydraulics, for the Hatch Modification (‘the Task’).14.SEAN PEARCE did not conduct a JSA for the task before commencing the task.15.No testing of the modified hydraulic system was conducted by SEAN PEARCE before the doghouse was raised. SEAN PEARCE permitted the raising of the doghouse before any testing of the modified hydraulic system was conducted.16.The doghouse was raised into position. After the doghouse was raised, a leak was detected in the HPU.17.In order to shut down the HPU only, it was necessary for a worker to enter the doghouse of the rig.18.Leyton Craig entered the raised doghouse of the rig to disable the HPU.19.On leaving the doghouse, Leyton Craig fell to the ground causing him to suffer three broken vertebrae, five broken ribs and a cut to the head.20.The task was a ‘more complex or non-routine job on the rig’.21.Section 2.4.5, Appendix C and Appendix D of the SEMP required SEAN PEARCE to conduct a JSA for the task.22.SEAN PEARCE failed to conduct a JSA for the task before commencing the task.…24.Prior to commencing the task, SEAN PEARCE ought to have complied with the safety procedures and other obligations under the Safety Management Plan by conducting a JSA for the task.25.If SEAN PEARCE had, before commencing the task, conducted a JSA for the task, then:(i) each step of the task, their potential hazards and hazard control measures would be identified; and(ii) the hydraulic system would have been isolated until the modifications to the system had been completed and tested;The absence of these measures was a substantial or significant cause of the injuries to Leyton Craig.”The Industrial Magistrate’s Decision
Ratio Decidendi
Legal Principle Established
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