Farnworth v Henry Walker Contracting Pty Ltd
[2003] WASCA 126
•17 JUNE 2003
FARNWORTH -v- HENRY WALKER CONTRACTING PTY LTD [2003] WASCA 126
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 126 | |
| THE FULL COURT (WA) | |||
| Case No: | SJA:1015/2002 | 16 MAY 2003 | |
| Coram: | MURRAY J PARKER J MCKECHNIE J | 17/06/03 | |
| 20 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Decision of single Judge set aside Conviction affirmed Penalty imposed | ||
| B | |||
| PDF Version |
| Parties: | JAMES FARNWORTH HENRY WALKER CONTRACTING PTY LTD |
Catchwords: | Criminal law and procedure Regulatory offence Breach of duty of employer at mine to make arrangements for safe maintenance of plant Proof of offence Competence of appeal by mines inspector |
Legislation: | Mines Safety and Inspection Act 1994 (WA), s 4(1), s 9(1) |
Case References: | Director of Public Prosecutions (ACT) v Eastman (2002) 131 A Crim R 688 Gibson v Brooking [1983] WAR 70 Henry Walker Contracting Pty Ltd v Farnworth [2000] WASCA 253 Henry Walker Contracting Pty Ltd v Farnworth [2002] WASCA 167 Macleod v Australian Securities and Investments Commission [2002] HCA 37; (2002) 191 ALR 543 Wearne v Roberts [2001] WASCA 279 Adelaide Timber Co Pty Ltd v Shepherd (Worksafe Western Australia) [2001] WASCA 110 AttorneyGeneral of The Gambia v N'jie [1961] 2 All ER 504 Australian Char Pty Ltd (1995) 79 A Crim R 427 Azzopardi v The Queen (2001) 205 CLR 50 Bond v The Queen (2000) 201 CLR 213 Bunnings Forest Products Pty Ltd v Shepherd, unreported; FCt SCt of WA; Library No 980235; 5 May 1998 Byrnes v The Queen (1999) CLR 1 Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 Coco v The Queen (1994) 179 CLR 427 Collins v State Rail Authority of New South Wales (1986) 5 NSWLR 209 Commissioner of Police v Tanos (1958) 98 CLR 383 Connector Drilling Pty Ltd v Equigold NL [2003] WASCA 78 Cullen v State Rail Authority of New South Wales (1989) 31 IR 207 Daniels Corporation International v ACCC (2002) 192 ALR 561 Davern v Messel (1984) 155 CLR 21 Dempster v National Companies & Securities Commission (1993) 9 WAR 215 Ealing Corporation v Jones [1959] 1 All ER 286 Entwells Pty Ltd v National and General Insurance Co Ltd (1991) 5 ACSR 424 Environmental Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 Farnworth v Henry Walker Contracting Pty Ltd [1999] WASCA 234 Ferrari v Neenan [2000] WASCA 191 Geraldton Fishermen's Cooperative Limited v Munro [1963] WAR 129 Greenwood v Leary [1919] VLR 114 Hamersley Iron Pty Ltd v Robertson, unreported; SCt of WA; Library No 980573; 2 October 1998 Henry Walker Eltin Contracting Pty Ltd v Briggs [2002] WASCA 53 In re Cannings Ltd v Middlesex County Council [1907] 1 KB 51 Interstruct Pty Ltd v Wakelam (1990) 3 WAR 100 Jackson v Dyball (1993) 74 A Crim R 10 Kehoe v Dacol Motors Pty Ltd; Ex parte Dacol Motors Pty Ltd [1972] QD R 59 Kirkby v A & M Hanson Pty Ltd (1994) 55 IR 40 Lloyd & Edwards v The Queen (1991) 4 WAR 95 Malvaso v The Queen (1989) 168 CLR 227 Marr v Australian Telecom Corporation (1991) 105 ALR 647 Morrison v Atlas Group Pty Ltd, unreported; SCt of WA; Library No 960698; 12 December 1996 Morrison v Hulme Wool Scouring Company (1938) Pty Ltd, unreported; SCt of WA; Library No 930457; 6 August 1993 Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482 New South Wales v Lepore; Samin v Queensland; Rich v Queensland (2003) 195 ALR 410; (2003) 77 ALJR 558; (2003) 24(3) Leg Rep 2; (2003) A Tort Rep 81684; [2003] HCA 4 Pearce v The Queen (1998) 194 CLR 610 R v Carroll [2002] HCA 55; (2002) 194 ALR 1 R v Hicks (1855) 4 El & Bl 633; (1855) 24 LJMC 94; (1855) 119 ER 232 R v Hughes (2000) 202 CLR 535 Refrigerated Express Lines (A/asia) Ltd v Australian Meat & Livestock Corporation (1980) 29 ALR 333 Royal Automobile Club of Australia v Sydney City Council (1992) 27 NSWLR 282 Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121 Scott v Harry [1951] 53 WALR 1 Smith, Ferguson, Forti, Grimshaw & Coburn v The Queen (1994) 69 ALJR 24 Tesco Supermarkets Ltd v Nattrass [1972] AC 153 Thompson v Mastertouch TV Service Pty Ltd (No 3) (1978) 38 FLR 397 Wasley v Green, unreported; SCt of WA; Library No 940380; 28 July 1994 Webster v McIntosh (1980) 32 ALJR 24; 32 ALR 603 Widgee Shire Council v Bonney (1907) 4 CLR 977 Workcover Authority of NSW v Waugh (1995) 59 IR 89 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : FARNWORTH -v- HENRY WALKER CONTRACTING PTY LTD [2003] WASCA 126 CORAM : MURRAY J
- PARKER J
MCKECHNIE J
- Appellant (Respondent)
AND
HENRY WALKER CONTRACTING PTY LTD
Respondent (Appellant)
Catchwords:
Criminal law and procedure - Regulatory offence - Breach of duty of employer at mine to make arrangements for safe maintenance of plant - Proof of offence - Competence of appeal by mines inspector
Legislation:
Mines Safety and Inspection Act 1994 (WA), s 4(1), s 9(1)
Result:
Appeal allowed
(Page 2)
Decision of single Judge set aside
Conviction affirmed
Penalty imposed
Category: B
Representation:
Counsel:
Appellant (Respondent) : Ms C A Thatcher
Respondent (Appellant) : Mr P G Clifford & Mr B A Miller
Solicitors:
Appellant (Respondent) : State Crown Solicitor
Respondent (Appellant) : Hollingdales
Case(s) referred to in judgment(s):
Director of Public Prosecutions (ACT) v Eastman (2002) 131 A Crim R 688
Gibson v Brooking [1983] WAR 70
Henry Walker Contracting Pty Ltd v Farnworth [2000] WASCA 253
Henry Walker Contracting Pty Ltd v Farnworth [2002] WASCA 167
Macleod v Australian Securities and Investments Commission [2002] HCA 37; (2002) 191 ALR 543
Wearne v Roberts [2001] WASCA 279
Case(s) also cited:
Adelaide Timber Co Pty Ltd v Shepherd (Worksafe Western Australia) [2001] WASCA 110
AttorneyGeneral of The Gambia v N'jie [1961] 2 All ER 504
Australian Char Pty Ltd (1995) 79 A Crim R 427
Azzopardi v The Queen (2001) 205 CLR 50
Bond v The Queen (2000) 201 CLR 213
Bunnings Forest Products Pty Ltd v Shepherd, unreported; FCt SCt of WA; Library No 980235; 5 May 1998
(Page 3)
Byrnes v The Queen (1999) CLR 1
Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249
Coco v The Queen (1994) 179 CLR 427
Collins v State Rail Authority of New South Wales (1986) 5 NSWLR 209
Commissioner of Police v Tanos (1958) 98 CLR 383
Connector Drilling Pty Ltd v Equigold NL [2003] WASCA 78
Cullen v State Rail Authority of New South Wales (1989) 31 IR 207
Daniels Corporation International v ACCC (2002) 192 ALR 561
Davern v Messel (1984) 155 CLR 21
Dempster v National Companies & Securities Commission (1993) 9 WAR 215
Ealing Corporation v Jones [1959] 1 All ER 286
Entwells Pty Ltd v National and General Insurance Co Ltd (1991) 5 ACSR 424
Environmental Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477
Farnworth v Henry Walker Contracting Pty Ltd [1999] WASCA 234
Ferrari v Neenan [2000] WASCA 191
Geraldton Fishermen's Cooperative Limited v Munro [1963] WAR 129
Greenwood v Leary [1919] VLR 114
Hamersley Iron Pty Ltd v Robertson, unreported; SCt of WA; Library No 980573; 2 October 1998
Henry Walker Eltin Contracting Pty Ltd v Briggs [2002] WASCA 53
In re Cannings Ltd v Middlesex County Council [1907] 1 KB 51
Interstruct Pty Ltd v Wakelam (1990) 3 WAR 100
Jackson v Dyball (1993) 74 A Crim R 10
Kehoe v Dacol Motors Pty Ltd; Ex parte Dacol Motors Pty Ltd [1972] QD R 59
Kirkby v A & M Hanson Pty Ltd (1994) 55 IR 40
Lloyd & Edwards v The Queen (1991) 4 WAR 95
Malvaso v The Queen (1989) 168 CLR 227
Marr v Australian Telecom Corporation (1991) 105 ALR 647
Morrison v Atlas Group Pty Ltd, unreported; SCt of WA; Library No 960698; 12 December 1996
Morrison v Hulme Wool Scouring Company (1938) Pty Ltd, unreported; SCt of WA; Library No 930457; 6 August 1993
Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482
New South Wales v Lepore; Samin v Queensland; Rich v Queensland (2003) 195 ALR 410; (2003) 77 ALJR 558; (2003) 24(3) Leg Rep 2; (2003) A Tort Rep 81684; [2003] HCA 4
Pearce v The Queen (1998) 194 CLR 610
R v Carroll [2002] HCA 55; (2002) 194 ALR 1
R v Hicks (1855) 4 El & Bl 633; (1855) 24 LJMC 94; (1855) 119 ER 232
R v Hughes (2000) 202 CLR 535
(Page 4)
Refrigerated Express Lines (A/asia) Ltd v Australian Meat & Livestock Corporation (1980) 29 ALR 333
Royal Automobile Club of Australia v Sydney City Council (1992) 27 NSWLR 282
Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121
Scott v Harry [1951] 53 WALR 1
Smith, Ferguson, Forti, Grimshaw & Coburn v The Queen (1994) 69 ALJR 24
Tesco Supermarkets Ltd v Nattrass [1972] AC 153
Thompson v Mastertouch TV Service Pty Ltd (No 3) (1978) 38 FLR 397
Wasley v Green, unreported; SCt of WA; Library No 940380; 28 July 1994
Webster v McIntosh (1980) 32 ALJR 24; 32 ALR 603
Widgee Shire Council v Bonney (1907) 4 CLR 977
Workcover Authority of NSW v Waugh (1995) 59 IR 89
(Page 5)
1 MURRAY J: I am grateful in this matter to have had access in draft to the reasons for decision now published by McKechnie J. I agree with them and I am thus relieved of the need to do more than state shortly my views.
2 As can be seen from the review of the history of this prosecution which McKechnie J has undertaken, this appeal is brought by an inspector of mines who was the complainant in the prosecution before the Court of Petty Sessions. He appeals to this Court by leave from a decision of White AuJ who allowed an appeal from the Court of Petty Sessions, quashed the respondent's conviction and dismissed the complaint.
3 Nonetheless the respondent, by its notice of contention, disputes the competence of the appeal, relying upon the view that the material provisions of the Mines Safety and Inspection Act 1994 (WA), which have been discussed by McKechnie J, constitute a code of the powers of an inspector under the Act in respect of the institution and prosecution of complaints of offences against the Act. In that event the respondent contends, the powers of appeal in the Justices Act 1902 (WA) have no application. The reasoning of the High Court in Macleod v Australian Securities and Investments Commission (2002) 191 ALR 543 is said to apply. McKechnie J has analysed the decision. I respectfully agree with his analysis. In my opinion also Macleod has no application to this case.
4 Put shortly, my view is that this appeal is competent. The power of the inspector to lay the complaint and prosecute it before the Court of Petty Sessions was secured by the Mines Safety and Inspection Act,s 21(1)(m) and s 96(1). To my mind, there is no indication that those powers were intended to be a complete code of power in this regard. There is nothing to suggest that in some way, by a process which I confess that I do not understand, the conferral of those powers impliedly repeals, in respect of the capacity to take appellate proceedings under the Justices Act, the relevant provisions of that Act.
5 On the contrary, it seems to me that those provisions applied in terms to the inspector when the appellant originally sought and obtained leave to appeal against the decision of a Magistrate to dismiss the complaint. That appeal, which was heard by Wheeler J, was competently brought from the decision of the Court of Petty Sessions to dismiss the complaint because, as the complainant, the appellant was aggrieved by the decision to dismiss the complaint: Gibson v Brooking [1983] WAR 70. The power to make the application for leave was that conferred by the Justices Act, s 185(2).
(Page 6)
6 In this case, the matter having proceeded by way of appeal to the Full Court and thence back to the Court of Petty Sessions and having on the second occasion resulted in the conviction of the respondent, the respondent's appeal by leave to White AuJ was empowered by the same provisions. The appeal by leave to this Court on the part of the complainant from the decision of White AuJ is simply made pursuant to the power conferred upon a party to an appeal by the Justices Act, s 206A(2).
7 As to the merits of the appeal I have little to add to the reasons of McKechnie J. The appellant's complaint is of an offence constituted by s 9(7) of the Mines Safety and Inspection Act which makes it an offence to contravene s 9(1). The subsection imposes a duty on an employer which, so far as material, is in the following terms:
"An employer must, so far as is practicable, provide and maintain at a mine a working environment in which that employer's employees are not exposed to hazards and, in particular, but without limiting the generality of that general obligation, an employer must …
(e) make arrangements for ensuring, so far as is practicable that –
(i) the use, cleaning, maintenance, transportation, and disposal of plant; and
(ii) the use, handling, processing, storage, transportation, and disposal of substances,
at the mine is carried out in such a manner that that employer's employees are not exposed to hazards."
"… reasonably practicable having regard, where the context permits, to –
(a) the severity of any potential injury or harm to health that may be involved and the degree of risk of such injury or harm occurring; and
(b) the state of knowledge about –
(Page 7)
- (i) the injury or harm to health referred to in paragraph (a); and
(ii) the risk of that injury or harm to health occurring; and
(iii) means of removing or mitigating the potential injury or harm to health; and
- (c) the availability, suitability, and cost of the means referred to in paragraph (b)(iii)."
9 The terms of the complaint are set out by McKechnie J. They were supported by particulars. The trial before the Court of Petty Sessions proceeded on the basis of a statement of agreed facts supplemented by oral evidence. As to the elements of the offence charged there was no doubt that the respondent was an employer, within the meaning of the Act, who had employees. There was no doubt that the Yandi II works were a mine and a workplace which provided the working environment for the employees; nor was there any doubt that in the course of their work they were exposed to a hazard, the risk of physical injury. It was accepted that when they were in fact injured the workers were working to clear ore from the conveyor belt specified in the complaint. That was a task which was concerned with the maintenance of the conveyor belt as an item of "plant", a term defined in s 4(1) to include:
"… machinery, equipment, appliance, implement, or tool and any component or fitting of or accessory to an such article."
10 The question, put simply, at issue between the parties was whether the offence was committed because the respondent had failed to discharge the duty imposed by s 9(1) by failing to make arrangements to ensure that, so far as was practicable, the maintenance of the conveyor belt was carried out in such a manner that the employees were not exposed to the risk of physical injury. The particular failure relied upon by the appellant was, as specified in the particulars provided:
"… the provision and use of a means of ensuring that the belt did not slip while the employees were on it. A practicable means was the securing of the belt with clamps." (My emphasis)
11 The belt was not clamped while the ore was being removed. That is why it moved and that is why the employees were injured. Clamps
(Page 8)
- were available at the place where the work was to be performed and where they could be used. The respondent's defence was that it had taken all reasonably practicable means to ensure that the clamps were used to secure the belt so that it might be maintained safely. The respondent's witnesses gave evidence that not only did it provide the clamps, it instructed its employees to ensure that they were used. For some reason not known to the management of the respondent, the clamps were not used.
12 In my opinion, that line of defence rather missed the point of the complaint as particularised. It boiled down to a basic proposition. The complainant's case was that the duty was breached and the offence committed because the respondent failed to make arrangements to ensure, so far as practicable, that clamps were used. As the Full Court recognised in Henry Walker Contracting Pty Ltd v Farnworth [2000] WASCA 253, the particular failure relied upon was not a failure to instruct or put procedures in place for the use of clamps. It was a failure to use the clamps.
13 As to that, the evidence was all one way. The clamps were not used, although available. It was known that they would secure the belt and prevent it moving. That they were not used when it was obviously reasonably practicable to do so of itself demonstrated the failure of the respondent as the employer to make reasonably practicable arrangements to ensure that the maintenance of the broken belt could be carried out without hazard to the respondent's employees.
14 I respectfully agree with McKechnie J that the respondent's appeal against conviction to White AuJ should have been dismissed and I too would allow this appeal and would order that the decision of, and orders by, White AuJ be set aside. I agree also that the saga of this prosecution ought now to be brought to an end. Pursuant to the Justices Act, s 206A(4) and s 199(1) I would take the course advocated by McKechnie J. The conviction having been restored, I would call for submissions in respect of sentence and I would have the Full Court impose the appropriate penalty and make such other final orders as may be required.
15 PARKER J: I have had the advantage of reading the reasons of Murray and McKechnie JJ.
16 I find myself entirely in agreement with the views expressed by Murray J.
(Page 9)
17 With respect to the application to this case of MacLeod v Australian Securities and Investment Commission [2002] HCA 37; (2002) 191 ALR 543, on which the respondent relies, I would wish only to add the following observations.
18 A critical issue in that case was whether the Commission could call in aid the provisions of s 185 of the Justices Act 1902 (WA) to enable it to institute by leave and prosecute an appeal against the dismissal of its complaint in the Court of Petty Sessions, and s 206A to enable it to appeal by leave to the Full Court from the decision given on the first appeal. It was the view of the High Court that the effect of the Australian Securities Commission Act 1989 (Cth) was that the Commission should have and exercise only the powers vested by the parliament of the Commonwealth. These powers did not include a power to appeal against the dismissal of a complaint. While s 79 of the Judiciary Act 1903 (Cth) contemplated the application to courts exercising Federal jurisdiction of State laws such as the Justices Act, that was subject to the words "except as otherwise provided by the Constitution or the laws of the Commonwealth". The effect of the Australian Securities Commission Act noted earlier was to "otherwise provide", so that the provisions of the Justices Act could not empower the Commission to appeal.
19 The present case appears to me to be critically different. The Mines Safety and Inspection Act 1994 (WA) is an Act of the parliament of this State. So is the Justices Act. There is no equivalent to s 79 of the Judiciary Act which has any operation. Hence, the issue becomes whether the parliament intended the provisions of the Mines Safety and Inspection Act to be an exclusive and exhaustive code, or whether that Act might be read together with other relevant Acts of the parliament. Neither the general subject matter, nor the particular context, provides reason to take the view that the Act was intended to exclude the operation of the relevant provisions of the Justices Act to the institution and conduct of appeals from decisions given in respect of prosecutions under the Act. Indeed the indications appear entirely to the contrary.
20 In my view, the Mines Safety and Inspection Act is properly read as enacted against the background of general procedural enactments such as the Justices Act, and with the intention that the provisions of the Justices Act be available to inspectors as well as the more particular provisions in the Act. The appeals by leave to the single Judge, and the present appeal by leave to the Full Court appear to me to be competent.
(Page 10)
- MCKECHNIE J:
The notice of contention
21 The respondent's notice of contention is that the appeal is incompetent and ought to be struck out as the appellant has no power to institute and conduct the appeal.
History of proceedings
22 The appellant, averring that he was an inspector of mines under the Mines Safety and Inspection Act 1994 (WA), swore a complaint that:
"On 19 January 1997 at Yandi II Mine, Henry Walker Contracting Pty Ltd, being an employer, failed, so far was is practicable, to provide and maintain at a mine a working environment in which its employees were not exposed to hazards in that it failed to make arrangements for ensuring so far as was practicable that the maintenance of plant, namely conveyor CV202, was carried out in such a manner that its employees were not exposed to hazards; contrary to Sections 9(1)(e) and 9(7) of the Mines Safety and Inspection Act 1994."
23 In due course, the appellant prosecuted the complaint through counsel and gave evidence at the hearing. The prosecution commenced on 17 November 1998 and continued the next day until it was adjourned until 5 July 1999. On 6 July 1999 the Magistrate upheld a submission of no case to answer and dismissed the complaint. The appellant sought and obtained leave to appeal against that decision.
24 On 5 November 1999, Wheeler J allowed the appeal, set aside the decision and ordered that the matter be remitted to the Court of Petty Sessions to be reheard before a different Magistrate: [1999] WASCA 234.
25 The respondent appealed against that decision and on 12 September 2000 the Full Court ([2000] WASCA 253) allowed the appeal against the decision of Wheeler J in part, setting aside so much of the order that required the matter to be remitted for a complete rehearing. The hearing of the complaint was therefore resumed on 7 December 2001. On 17 January 2002 the Magistrate convicted the respondent.
26 The respondent sought and obtained leave to appeal against that decision on 12 February 2002.
(Page 11)
27 By a decision published on 24 July 2002 (Henry Walker Contracting Pty Ltd v Farnworth [2002] WASCA 167), White AUJ allowed the appeal, set aside the conviction and in lieu dismissed the complaint.
28 On 19 September 2002 the Full Court granted the appellant leave to appeal against the decision of White AUJ.
29 Put shortly, the contention of the respondent is that the statutory powers of the complainant are prescribed by s 21 of the Mines Safety and Inspection Act and there is no power to initiate or conduct appeals.
30 This contention relies on construction of the Mines Safety and Inspection Act 1994 and the Justices Act. It also relies upon the decision of the High Court in Macleod v Australian Securities and Investments Commission [2002] HCA 37; (2002) 191 ALR 543.
31 Before dealing with that case, I will consider the relevant legislative provisions.
The Mines Safety and Inspection Act 1994
32 The objects of the Act include by s 3:
(a) to promote, and secure the safety and health of persons engaged in mining operations; and
(b) …
(c) to protect employees against the risks associated with mines, mining operations, work systems at mines, and plant and hazardous substances at mines by eliminating those risks, or imposing effective controls in order to minimize them; and
…"
33 Part 3 is entitled "Administration of Act". Division 1 deals with "Inspectors of mines". Section 18 provides that district and special inspectors are to be appointed under and subject to the Public Sector Management Act 1994. Division 2 is entitled "Inspections". Section 21 sets out comprehensive "Powers of inspectors". Those powers relevantly include:
(Page 12)
- "(1) …
(m) initiate and conduct prosecutions of persons for offences under this Act;
…
(o) exercise such other powers as are conferred on an inspector by the regulations or as may be necessary for the performance of the inspector's functions under this Act and for carrying this Act into effect."
"Where a written law confers upon a person power to do or enforce the doing of any act or thing, all such powers shall also be deemed to be conferred on the person as are reasonably necessary to enable him to do or to enforce the doing of the act or thing."
35 Part 9 is entitled "Offences, penalties and legal proceedings". Section 96 provides:
"(1) Every proceeding for an offence under this Act may be instituted and conducted by an inspector or by some member of the Public Service authorized in writing for the purpose by the Minister.
(2) An inspector or officer is not to be personally responsible for any costs incurred by or awarded against the inspector or officer in connection with any proceeding for an offence under this Act."
36 Having regard to scheme of the Mines Safety and Inspection Act and its objects, I am content to proceed on the basis that Parliament's intention was to vest the power to bring prosecutions under the Act, solely in an inspector or person authorised by the Minister.
The Justices Act
37 In s 4 "decision" is defined in pars (a) and (c) as meaning a conviction and the dismissal of a complaint.
(Page 13)
38 Part 8 is entitled "Appeals". Section 184(1) reads:
"(1) Subject to any other Act -
(a) an appeal lies to the Court, by leave as provided in this Part, from a decision of justices; …"
"(1) An application for leave to appeal may be made to a Judge in chambers or in Court.
(2) The application may be made by -
- (a) any person who is aggrieved by the decision; or
(b) the Attorney General,
or by each of them, and shall be made ex parte unless the Judge orders that the application be served on any person.
- …"
41 Section 206A "Appeal to Full Court" reads:
"(1) Subject to any other Act, an appeal lies to the Full Court, by leave as provided in this section, from a decision under section 199, 205 or 206C of the Court constituted by one Judge.
(2) An application for leave to appeal may be made by -
(a) a party to an appeal; or
(b) the Attorney General."
(Page 14)
42 Pursuant to that section the Full Court granted the appellant leave to appeal on 19 September 2002. The appellant was "a party to an appeal" being a party to the proceedings before White AUJ. The appellant's standing under the Justices Act to take part in appellate proceedings is because the complainant is a person aggrieved or a party to an appeal or both.
The decision in McLeod v Australian Securities and Investments Commission
43 The respondent principally relies upon this case while acknowledging that it is not exactly analogous.
44 The issue in McLeod v ASIC was the power of the Australian Securities and Investments Commission ("ASIC") to appeal to the Full Court from the decision of a Judge who ordered that an appeal by Macleod be allowed and the complaints dismissed. ASIC (then styled the ASC) had brought the prosecution in the Court of Petty Sessions. The majority of the Court (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ) at [21] posed the question: what was the source of the competence of the ASC to take advantage of the standing conferred by s 206A(2) of the Justices Act:
"What was the source of the competence of the ASC to take advantage of the standing conferred by s 206A(2) of the Justices Act? On one view, s 206A(2) fixed upon a party to the proceeding heard by the Commissioner and rendered that party competent to institute the Full Court appeal, without any further inquiry being open as to the capacity of that party to act in this way. That construction of the sub-section may for present purposes be assumed. But that assumption then calls into play s 79 of the Judiciary Act. Was s 206A(2) for this purpose picked up by s 79 as a surrogate federal law? "
45 They noted at [23] the submission by the ASC that its competence was provided both by s 206A(2) of the Justices Act and by the Australian Securities Commission Act 1989 (Cth) itself:
"The ASC submits, in effect, that its competence with respect to the Full Court appeal by it was provided both by the State law to which reference has been made, s 206A(2) of the Justices Act, and by the ASC Act itself. Neither conclusion will follow if federal law, the ASC Act, denied that competence. However, the ASC submits that, on its proper construction, the ASC Act
(Page 15)
- authorised rather than denied what was done by the ASC; that also would mean that no law of the Commonwealth 'otherwise provided' and that s 79 of the Judiciary Act did operate to 'pick up' s 206A(2) of the Justices Act."
46 The Court noted neither conclusion will follow if a federal law the Australian Securities Commission Act denied that competence.
47 Section 49(2) of the Australian Securities Commission Act provided:
"The Commission may cause a prosecution of the person for the offence to be begun and carried on."
48 Section 11(4) of the ASC Act provided:
"The [ASC] has power to do whatever is necessary for or in connection with, or reasonably incidental to, the performance of its functions."
49 At [38] the majority held:
"In any event, it must at least be doubtful whether s 11(4) would have been of assistance to the ASC in the circumstances of these cases and the present case. The sub-section stipulated that the activity in question be 'necessary for or in connection with' the performance of its functions or 'reasonably incidental' thereto. Litigation subsequent to the conclusion of a prosecution is not necessary for the reaching of that conclusion; nor is it apparent that that subsequent litigation is a reasonable incident to that prosecution."
50 This may be regarded as obiter dicta because the majority decision did not turn on this point. Indeed, ASIC conceded that the power to appeal was not an incidental power.
51 Against the view that subsequent litigation is not reasonably incident to the prosecution may be weighed the decisions on the meaning of the expression "persons aggrieved" set out in Wearne v Roberts and Director of Public Prosecutions (ACT) v Eastman. The power given to an inspector under s 21(m) is to conduct prosecutions of persons for offences. It is necessary or, alternatively, reasonably incidental, for the performance of that function to invest an inspector with the power to ensure that such a prosecution be conducted according to law and with the absence of appellable error of law or fact. When there is provided a
(Page 16)
- mechanism to correct errors of law or fact by way of appeal, it is not a significant step to conclude that the exercise of the power to institute an appeal is a necessary incident of the power to take the original proceedings. So also a power to take further proceeding by leave pursuant to the Justices Act to correct errors in the first appeal may be regarded as a necessary incident of the power to conduct prosecutions.
52 The majority in Macleod concluded that the appeal by ASIC was not a further step in the conduct of the prosecution which had culminated in the conviction on the second count and the finding of not guilty in respect of the first count: [43].
53 However their Honours did not find it necessary to determine whether the provisions of the Justices Act might have assisted ASIC in view of their conclusion that ASIC lacked power to take an appeal ([44] - [45].
"44 A law of the Commonwealth, such as s 49(2) of the ASC Act, is to be construed as requiring the officers or body in question to have and to exercise only such powers as the Parliament of the Commonwealth thereby has chosen to vest in them: Bond v The Queen (2000) 201 CLR 213 at 219-220 [15]. Where the law of a State purports to grant some wider power or authority to such an officer or body, then the law of the Commonwealth will be one by which it is 'otherwise provided' for the purposes of s 79 of the Judiciary Act. The result is that federal law did not empower the ASC to institute and conduct the appeal to the Full Court, nor did s 79 'pick up' any provision of State law otherwise expressed in terms sufficiently broad to endow the ASC with the capacity to take those steps.
45 It is unnecessary to determine whether the provisions of the Justices Act which had the consequence of bringing the ASC before the Commissioner to oppose Mr Macleod's appeal against his conviction were not 'picked up' by s 79 of the Judiciary Act. Nor is it necessary to consider other submissions by the intervening Attorneys-General respecting the legislative power of the Commonwealth under pars (i), (xx) and (xxxix) of s 51 of the Constitution and other questions, to which some reference was made in R v Hughes (2000)
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- 202 CLR 535 at 554-558 [37]-[46], 580-584 [110]-[122]."
54 Kirby J delivered a separate judgment. It was conceded by ASIC that the incidental functions provisions did not apply:
"66 … It was accepted by the respondent in this Court that the provision in question had no application to elaborate the performance of its functions (See the joint reasons at [37]-[38]). Accordingly, the question whether the provision would have been of any utility to expand the authority and applicable power of the respondent to 'cause a prosecution … to be begun and carried on' (ASC Act, s 49(2)) into one to institute and carry on appeals, can be put to one side. The suggested legislative elaboration is unavailable. The respondent is therefore forced back to the authority and power conferred on it by the relevant federal law, expressed in terms of carrying on a 'prosecution'."
55 At [77] Kirby J held:
"… Seeking to appeal from the orders of Commissioner Martin was not the carrying on of a prosecution within s 49(2) of the ASC Act. The attempt to propound the contrary runs into the principle that appeals in criminal matters, like prosecutions, although they are within the jurisdiction of a superior court when lawfully brought, must be clearly authorised by law. Because there was no clear authority for the respondent to appeal to the Full Court, its appeal was incompetent."
Contrast with the present case
56 The decision in Macleod v Australian Securities and Investments Commission does not resolve the present issue. Indeed, the Court expressly declined to deal with the present circumstances. When Parliament enacted the Mines Safety and Inspection Act 1994 it did so against a background of complete legislative power, unconstrained by a limited grant of power of the type encountered by federal authorities. It also did so against the background of the provisions of the Justices Act. I can accept that the Mines Safety and Inspection Act 1994 was intended to enumerate the powers of inspectors. I can accept also that prosecutions under that Act may only be carried on by inspectors or those authorised by
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- the Minister. However, I cannot read the provisions as a complete code of the powers of an inspector when there is another Act of the Western Australian Parliament which also contains a grant of power. In my opinion, the Justices Act is such an Act. It is not necessary, and indeed would lead to an absurd result, to construe the Mines Safety and Inspection Act 1994 to allow inspectors to take prosecutions in the Court of Petty Sessions but deny them the opportunity to appeal against decisions reached in that Court.
57 An inspector, as complainant, is clearly a person aggrieved. The grant of power in the Justices Act s 185 enables the inspector to seek leave to appeal and thereafter prosecute it to completion. So also the Justices Act s 206A(2) gives a grant of power to an inspector to seek leave to appeal to the Full Court and, if leave is granted, prosecute that appeal.
The merits of the appeal
58 White AUJ at [21] in [2002] WASCA 167, delivered 24 June 2002, noted that the gravamen of the charge was that it alleged failure to make arrangements for the provision and use of clamps to prevent the belt from moving during the clearing away of the ore on the belt. The appellant contended that the evidence established that the appellant had in fact made adequate arrangements for the provision and use of such clamps. At [46] to [48] the Judge noted:
"46 … It is not in dispute that the use of those clamps in accordance with the instructions would have prevented the accident. It is, I think, implicit in his Worship's findings that there was in place a system or arrangement which, had it been observed, would have prevented the accident. In saying that, I refer to the finding that:
"Taking into account all matters, the belt was not clamped as required. For some unknown reason the clamps were not used." (Stress added.)
47 The phrase 'as required' can only mean, I think, 'as required by the worksafe instruction'.
48 In view of the learned Magistrate's finding that the reason for the failure to secure the belt with clamps was unknown, I am of the opinion that the prosecution failed
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- to establish the guilt of the appellant beyond a reasonable doubt."
59 The case proceeded on the basis of particulars and the prosecution was confined to those particulars. Particular 5 was as follows:
"The arrangements which the complainant alleges the defendant failed to make were the provision and use of a means of ensuring that the belt did not slip while the employees were on it. A practicable means was the securing of the belt with clamps."
60 The case proceeded upon a statement of agreed facts, although those facts were supplemented by oral evidence. One of the facts was that while the ore was being removed the belt was not clamped.
61 The Full Court in Henry Walker Contracting Pty Ltd v Farnworth [2000] WASCA 253 acknowledged this aspect of the prosecution case. Ipp J at [5], Heenan J at [11] and Miller J at [33]. These findings were binding on White AUJ. With respect, the Judge's opinion that, in view of the finding by the Magistrate that the reason of the failure to secure the belt with clamps was unknown, the prosecution had therefore failed to establish the guilt of the appellant, is illogical. The prima facie case as established by the Full Court included the fact of the failure to use clamps.
62 The Magistrate made errors of fact which were not supported by the evidence. This is conceded by the appellant.
63 The statement of agreed facts established that at about 6.30 am on 19 January 1997 a number of employees of the respondent were engaged in the task of removing ore from the CV 202 conveyor belt. While the ore was being removed the belt was not clamped. At about 6.40 am, the belt began to move downwards as a result of which two workers suffered injuries.
64 The unchallenged evidence of the appellant was that if the belt was not clamped prior to performing work on it the belt would move. He observed a set of clamps just in front of the drive motor.
65 The evidence of Mr Bastian on behalf of the respondent was that the respondent had safe work procedures which included a requirement to clamp conveyor belts at required locations before commencing work. The respondent employed over 1,000 people.
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66 I observe that Mr Bastian had no direct knowledge of the incident. Because of the Magistrate's errors the Justices Act s 199(3) becomes relevant.
67 The Full Court found there was a prima facie case. Mr Bastian's evidence did not offer any ground of exculpation. In particular, it failed to explain why the clamps were not used, despite a procedure requiring their use.
68 The respondent acted on the day through its employees, especially its supervisors.
Conclusion
69 On the complaint as particularised, having regard to the unchallenged evidence, and the reasons of the Full Court, the only conclusion is that the complaint is proved beyond reasonable doubt. I would allow the appeal, set aside the order of White AUJ dismissing the complaint, and in lieu make an order convicting the respondent.
70 Instead of remitting the matter for a third time, I propose that this Court proceeds to hear submissions and impose a penalty.
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