Ghost Gully Produce Pty Ltd v Guilfoyle

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DISTRICT COURT OF QUEENSLAND

CITATION:

Ghost Gully Produce Pty Ltd v Guilfoyle [2022] QDC 75

PARTIES:

In DC 29/2021
GHOST GULLY PRODUCE PTY LTD
ACN 104 732 890

(appellant)

v
AARON JOHN GUILFOYLE

(respondent)

In DC 38/2021
AARON JOHN GUILFOYLE
(appellant)
v
GHOST GULLY PRODUCE PTY LTD
ACN 104 732 890
(respondent)

FILE NO/S:

DC 29/2021
DC 38/2021

PROCEEDING:

Appeals pursuant to s 222 Justices Act 1886

ORIGINATING COURT:

Magistrates Court at Toowoomba

DELIVERED ON:

31 March 2022

DELIVERED AT:

Brisbane

HEARING DATE:

14 February 2022

JUDGE:

Judge AJ Rafter SC

ORDERS:

In DC 29/2021:

1.   Appeal dismissed.

2.   The appellant is to pay the respondent’s costs fixed at $1800.

In DC 38/2021:

1.   Appeal allowed.

2.   Set aside the fine of $80,000 and instead order that the respondent be fined $100,000.

3.   Confirm the order that the conviction not be recorded.

4.   Direct that the Registrar give particulars of the fine to the State Penalties Enforcement Registry for registration pursuant to s 34(2A) State Penalties Enforcement Act 1999.

CATCHWORDS:

CRIMINAL LAW (QLD) – APPEALS – rehearing on the evidence before the Magistrates Court pursuant to s 222 Justices Act 1886 (Qld) – where the company was conducting a produce and farming business – where a worker, employed by a contractor, was performing scaffolding work on the roof of a shed – where powerlines were adjacent to the roof of the shed – where the worker suffered electric shock and serious burns injuries – where the company was charged with an offence under s 40C Electrical Safety Act 2002 (Qld) – where the magistrate was satisfied that each element of the offence was established – where the company was found guilty of the offence – where the magistrate imposed a fine of $80,000 and ordered that a conviction not be recorded

CRIMINAL LAW (QLD) – APPEAL AGAINST CONVICTION – where the company has appealed against the finding of guilt – whether the magistrate erred in law in finding the company held the relevant electrical safety duty – whether, if such duty was held, the magistrate erred in finding that the company had breached its duty – whether the magistrate made findings that were not open

CRIMINAL LAW (QLD) – APPEAL AGAINST SENTENCE – where the Work Health and Safety Prosecutor has appealed against the sentence – whether the magistrate erred in failing to conclude that the offending by the company was more serious than that of the employer of the injured worker – whether the sentence imposed was manifestly inadequate

Electrical Safety Act 2002 (Qld) ss 4, 5, 10, 27, 27B, 28, 30, 40A, 40C, 122C, sch 2
Electrical Safety Regulation 2013 (Qld) s 68
Justices Act 1886 (Qld) ss 148A, 222, 223
Penalties and Sentences Act 1992 (Qld) ss 5, 9, 13, 48
State Penalties Enforcement Act (Qld) s 54
Work Health and Safety Act 2011 (Qld) s 32

Attorney-General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96
Baiada Poultry Pty Ltd v…

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Details
Case
[2022] QDC 75
Decision Date

CaseChat Overview and Summary

Ghost Gully Produce Pty Ltd was conducting a produce and farming business when a worker employed by a contractor suffered serious injuries from an electric shock while performing scaffolding work on the roof of a shed adjacent to uninsulated powerlines. The company was charged under the Electrical Safety Act 2002 (Qld) with a breach of its duty to ensure electrical safety. The Magistrates Court found the company guilty and imposed a fine of $80,000, with a conviction not being recorded. Both the company and the Work Health and Safety Prosecutor appealed the decision. The company argued that the magistrate erred in finding it held an electrical safety duty and breached that duty, while the Prosecutor argued that the penalty was manifestly inadequate.

The court examined whether the company owed an electrical safety duty and if it had breached that duty. It was determined that the company, as a business conducting activities involving work near exposed electrical parts, did indeed hold such a duty under the Electrical Safety Act. The court found no error in the magistrate's conclusion that the company had breached this duty. Regarding the sentence, the court found that the magistrate had erred in concluding that the culpability of the company was similar to the employer of the injured worker, and that the penalty imposed was manifestly inadequate. The appeal against conviction was dismissed, and the appeal against sentence was allowed. The fine was increased to $100,000, with the conviction remaining unrecorded. The company was ordered to pay costs of $1800.

Orders

Orders of the court

In DC 29/2021:

1. Appeal dismissed.

2. The appellant is to pay the respondent’s costs fixed at $1800.

In DC 38/2021:

1. Appeal allowed.

2. Set aside the fine of $80,000 and instead order that the respondent be fined $100,000.

3. Confirm the order that the conviction not be recorded.

4. Direct that the Registrar give particulars of the fine to the State Penalties Enforcement Registry for registration pursuant to s 34(2A) State Penalties Enforcement Act 1999.

Background

Background to the litigation

As explained by Holmes CJ in Commissioner of Police v Antoniolli,[5] “An appellate court proceeding on an appeal by way of rehearing is obliged to give the judgment it considers should have been given in the first instance, allowing for the limitations of proceeding on the record, including its disadvantage in assessing the credibility of witnesses whom it has not seen give evidence. However, “incontrovertible facts or uncontested testimony” may show the conclusions drawn at first instance to be erroneous, even though based on credibility findings.”[5][2021] QCA 237 at [2] (footnote references omitted).Factual background At the trial Ghost Gully Produce made a number of factual admissions:[6][6]Justices Act s 148A(2); (exhibit 2).(a)That on and around 13 July 2018, it was conducting a produce and farming business from premises at 2 Rangeview Drive, Gatton;(b)On 13 July 2018, Matthew Madden, was performing work for the business on the roof of a shed at the premises;(c)Powerlines, controlled by Energex were adjacent to the roof of the shed;(d)An annexure to the admissions depicted the true measurements of distances between various marked points of the shed and the powerlines;(e)The powerlines were uninsulated, 11,000-volt lines;(f)Whilst performing work on the shed, Mr Madden was holding a steel pole measuring approximately 6.5 metres in length;(g)The pole Mr Madden was holding came into contact with or very close to the powerlines;(h)As a result of the pole contacting or coming very close to the powerlines, Mr Madden suffered an electric shock; and(i)The electric shock caused Mr Madden to suffer serious burn injuries. In September 2017, Ghost Gully Produce received a notice from Energex titled “Important Safety Advice”[7] which stated they had visited the property to inspect a potential safety issue. The notice stated that Energex had become aware that a structure on the property was under/adjacent to overhead powerlines and may be in breach of the applicable statutory clearance distances. The notice stated that Energex had a program that ensured statutory clearances are maintained between overhead powerlines and buildings or other structures. Energex advised that they may put in place precautionary measures in order to manage the immediate risk. The notice requested that:·Ghost Gully Produce not access the structure or carry out any work on it; and·prevent anybody else accessing the structure.[7]Exhibit 7. The notice stated that the mandatory exclusion zone for unauthorised persons is 3 metres from electric lines. A diagram illustrated that the powerline was 2.4 metres above the shed. Energex placed temporary marker flags on the overhead lines.[8][8]Transcript of proceedings 15 February 2021 p 18 ll 10-15. The prosecution called Matthew Madden, the injured worker employed by Oz Roof Rail Pty Ltd (Oz Roof Rail); Graham Nyman, principal electrical safety officer at the Office of Industrial Relations; and Christina Wicks, principal inspector Workplace Health and Safety Queensland.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Ghost Gully Produce also argued that the magistrate erred by finding that it was bound by the conduct of its employee. The magistrate made no such finding. The magistrate found, consistently with Mr Madden’s evidence that no warning had been given to him by the employee of Ghost Gully Produce who was present on the day.[41][41]Trial reasons at [56].Conclusion In the circumstances, the appeal against conviction by Ghost Gully Produce should be dismissed. The appeal against sentence by Ghost Gully Produce was not pressed and should also be dismissed. Costs In the event that the appeal by Ghost Gully Produce was dismissed, the Work Health and Safety prosecutor sought costs in accordance with the Justices Regulation 2014 in the amount of $1800. Ghost Gully Produce made no submissions to the contrary. Accordingly, Ghost Gully Produce should pay costs fixed in the amount of $1800.Appeal against sentence by the Work Health and Safety Prosecutor The magistrate imposed a fine of $80,000 and ordered that a conviction not be recorded. The WHSP has appealed against the penalty on the grounds that:(a)The magistrate erred in concluding that the culpability of Ghost Gully Produce was similar to that of Oz Roof Rail Pty Ltd;(b)The magistrate failed to have sufficient regard to the discount afforded to Oz Roof Rail Pty Ltd by virtue of its guilty plea and other cooperation; and(c)The magistrate erred in finding that the decision Williamson v VH & MG Imports Pty Ltd [2017] QDC 56 established a limit on the fine that could be imposed in Ghost Gully Produce’s case. The maximum penalty for a contravention of s 40C Electrical Safety Act, a category 2 offence committed by a body corporate is 15,000 penalty units ($1.5 million).[42][42]The value of a penalty unit for the Electrical Safety Act is $100; Penalties and Sentences Act s 5(1)(d). Ghost Gully Produce has no previous convictions. In his reasons for sentence, the magistrate said:“Here, there was a real risk that persons accessing the roof, particularly a person trying to raise up a long metal pole, would be at risk of the pole coming into contact with the nearby unshielded high voltage power lines. The consequences if that occurred could easily have been fatal, either by the electrocution alone, or by it causing the person to fall from the roof. There were steps available to lessen, minimise or remove the risk. These though relied on the risk being identified and acted upon – for example by arranging with Energex to de-energise the line before the work was carried out.”[43][43]Reasons for sentence 30 September 2021 at [16]. The magistrate took into account Ghost Gully Produce’s lack of previous convictions[44] and that formal admissions were made which reduced the length of the trial.[45] The magistrate also took into account that there had been a degree of cooperation with the investigators, although Ghost Gully Produce had given some incorrect answers in response to a notice of requirement to give information and provide documents issued by the Office of Industrial Relations.[46] Ghost Gully Produce had been asked to provide copies of all communication or documents received from Energex in relation to the overhead electric lines.[47] It was also asked whether any such communications and/or documents had been provided to the solar company Tindo Operations Co Pty Ltd, the electrician Jacob Mohr or Oz Roof Rail Pty Ltd.[48] Ghost Gully Produce answered “N/A” to each of those questions.[49][44]Reasons for sentence at [20].[45]Reasons for sentence at [21].[46]Reasons for sentence at [22].[47]Exhibit 9B at para 3.[48]Exhibit 9B at para 4.[49]Exhibit 10.

Ratio Decidendi

Legal Principle Established

Ghost Gully Produce submitted that it was not clear why the electrician did not insist on the cherry picker that had been brought on site being utilised.[30] It was submitted that the Ghost Gully Produce employee who pointed out the ladder did not speak with any authority on its behalf.[31]Consideration[30]Outline of Submissions for Ghost Gully Produce filed 9 December 2021 at para 41.[31]Outline of Submissions for Ghost Gully Produce filed 9 December 2021 at para 42.Electrical safety duty Ghost Gully Produce contends that as a mere “consumer” of electricity it cannot be subject to any duty imposed by s 30(1) Electrical Safety Act. The submission cannot be accepted. The duty imposed by s 30(1) is upon a person conducting a business to ensure that the business is conducted in a way that is electrically safe. Where the business includes the performance of work, whether or not electrical work, which involves contact with or being near to exposed parts, the duty involves ensuring that the persons performing the work are electrically safe.[32][32]Electrical Safety Act2002 s 30(1)(2)(c). Ms Samuelsen agreed that the electricity produced by the solar panels was used in connection with the business.[33] The shed was part of Ghost Gully Produce’s premises and was used in connection with its business. The fact that Mr Madden was engaged in installing edge protection to enable the solar panels to be repaired did not mean that he was not engaged in the work of the business.[33]Transcript of proceedings 9 August 2021 p 5 ll 5-10. The powerlines were uninsulated 11,000 volt lines. Accordingly, they were an “exposed part”.[34] Mr Madden was working on the shed which was within three metres of the uninsulated powerlines and was therefore working near exposed parts. [34]Electrical Safety Act2002 schedule 2, definition of “exposed part”. The fact that other persons also held duties under s 30(1) is irrelevant because s 27B provides that more than one person can have the same duty. The argument for Ghost Gully Produce that it cannot have a duty under s 30(1) because its core business did not involve electrical work cannot be accepted. The argument overlooks the fact that s 30(2)(b) provides for a duty where a person’s business or undertaking includes the performance of electrical work. The duty outlined in s 30(2)(c) applies where a person’s business or undertaking includes the performance of work, whether or not it is electrical work. The fact that s 68 Electrical Safety Regulation 2013 imposes a duty in relation to overhead or underground electrical lines does not mean that Ghost Gully Produce did not have a duty under s 30(1). The offence created by s 40C contains additional elements including that the failure exposes an individual to a risk of death or serious injury or illness. The magistrate was correct to conclude that the business of Ghost Gully Produce involved Mr Madden working near exposed parts. It therefore had a duty to ensure that persons performing the work were electrically safe.Breach of duty