Glenister v Wayne Horne Earthmoving Pty Ltd
[2018] VSC 390
•18 July 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT BALLARAT
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2017 03390
| MARK GLENISTER (VICTORIAN WORKCOVER AUTHORITY) | Plaintiff |
| v | |
| WAYNE HORNE EARTHMOVING PTY LTD (ACN 006 910 283) | First Defendant |
| MAGISTRATES' COURT OF VICTORIA | Second Defendant |
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JUDGE: | McDONALD J |
WHERE HELD: | Ballarat |
DATE OF HEARING: | 7 May 2018 |
DATE OF JUDGMENT: | 18 July 2018 |
CASE MAY BE CITED AS: | Glenister v Wayne Horne Earthmoving Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2018] VSC 390 |
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JUDICIAL REVIEW – Plaintiff did not exercise statutory right of appeal from Magistrate’s dismissal of charges alleging breach of Occupational Health and Safety Act 2004 – Application for judicial review – No satisfactory explanation for failure to exercise right of appeal – Relief in the nature of certiorari refused on discretionary grounds – Criminal Procedure Act 2009 s 272 – Occupational Health and Safety Act 2004 ss 2, 4, 21, 23 – Occupation Health and Safety Regulations 2007 regs 1.1.1, 1.1.7, 5.1.3, 5.1.5, 5.1.9, 5.1.11 – Supreme Court (General Civil Procedure) Rules 2015 O 56.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr C Carr with Ms F Todd | Victorian WorkCover Authority |
| For the First Defendant | Mr A Young QC with Mr D Oldfield | Mulcahy & Co |
| For the Second Defendant | No appearance |
HIS HONOUR:
On 26 June 2017, the Magistrates’ Court of Victoria at Ballarat dismissed two charges of contravention of the Occupational Health and Safety Act 2004 (‘the Act’) brought by the Victorian WorkCover Authority (‘VWA’) against Wayne Horne Earthmoving Pty Ltd (‘WHE’). The first charge alleged that, in breach of s 40(4) of the Act, WHE carried out work at a workplace which the Occupational Health and Safety Regulations 2007 (‘the Regulations’) required to be carried out by a licensed person. This charge was abandoned during the course of the hearing on 26 June 2017. The second charge alleged a breach of ss 21(1) and 21(2)(a) of the Act of failing to provide a safe working environment by failing to provide a safe system of work. This charge was pressed by the VWA, but was dismissed by the Magistrate.
The VWA had a statutory right of appeal against the Magistrate’s dismissal of the second charge pursuant to s 272 of the Criminal Procedure Act 2009 (‘CPA’). The time for filing the appeal expired on 24 July 2017. The VWA did not exercise its right of appeal. Rather, on 23 August 2017, it filed an Originating Motion for judicial review pursuant to O 56 of the Supreme Court (General Civil Procedure) Rules 2015. The VWA claims relief in the nature of certiorari quashing the Magistrate’s decision to dismiss the second charge. It seeks an order remitting the second charge to be heard in the Magistrates’ Court according to law.
I have concluded that the Magistrate erred in determining that the charge alleging a breach of s 21 was misconceived. In particular, his Honour erred in reasoning that a breach of reg 5.1.9 based on WHE’s failure to prepare and implement a Safe Work Method Statement (‘SWMS’) could not constitute a breach of s 21, but should have been the subject of a separate charge (presumably a breach of reg 5.1.11). This was an error on the face of the record. However, it was an error within jurisdiction. The Magistrate did not misconceive the functions or powers he was exercising. The application for relief in the nature of certiorari falls to be determined in accordance with the judgment of the Court of Appeal in Kuek v Victoria Legal Aid.[1] The VWA, without satisfactory explanation, failed to exercise its statutory right of appeal under s 272 of the CPA. The grounds in support of its application for judicial review are identical to the grounds which could have been advanced by way of appeal. In those circumstances relief in the nature of certiorari should be refused on discretionary grounds.
[1](2001) 3 VR 289 (‘Kuek’).
Background
The charges brought against WHE arose out of demolition works undertaken by it in October 2015. WHE was contracted to undertake works at a site located at 2 Bennett Street, Canadian, a suburb of Ballarat. The demolition works undertaken included demolition of a large shed in the middle of the site, approximately 10 x 30 metres, which was constructed of wood and tin (‘the shed’).[2]
[2]Magistrates’ Court Transcript of Proceedings (26 June 2017) 28.19–28.25.
A VWA inspector, David Rogers, attended the site on 30 October 2015. He found plastic wrapped sheet material lying on the ground, consistent with asbestos containing material. Samples of the material inside the wrapping were taken. Testing disclosed that the material was asbestos. The asbestos inside the plastic wrapping had been found by WHE employees in the middle of the shed, leaning against a wall.[3] In addition, there were a ‘couple of loose sheets on the ground’, inside the room at the back of the shed.[4] An employee of WHE, Gavin McShane, wrapped the asbestos in black plastic and removed it from the shed. At the time he did so, he was wearing full protective equipment.[5] He was directed to leave the wrapped asbestos until it could be removed by an asbestos specialist.[6]
[3]Ibid 31.19–31.24.
[4]Ibid 31.2–31.8.
[5]Ibid 33.26–34.1.
[6] Ibid 34.16–34.19.
The particulars of the second charge were as follows:
Charge 2: Fail to provide or maintain safe systems of work – Asbestos Dust Inhalation
On or about 28 October 2015 at Canadian in the State of Victoria pursuant to section 21(1) and section 21(4) of the Occupational Health and Safety Act 2004 (the Act) you were guilty of an offence in that as an employer you failed, so far as was reasonably practicable, to provide for your employees a working environment that was safe and without risks to health when in contravention of section 21(2)(a) you failed to provide a system of work that was so far as was reasonably practicable, safe and without risks to health.
Particulars
1.Wayne Horne Earthmoving Pty Ltd (ACN 006 910 283) (the Accused) is and was at all material times a body corporate.
2.At all material times the Accused was an employer within the meaning of section 5 of the Act by reason of employing, inter alia, Gavin McShane and Joshua Jeffries.
3.The site at 2 Bennett Street, Canadian in the State of Victoria was a workplace within the meaning of section 5 of the Act.
4.At all material times the Accused had management and control of the workplace.
5.On 28 October 2015 employees were performing high risk construction work as defined in Regulation 5.1.3 of the Occupational Health and Safety Regulations 2007 (the Regulations) as the construction work being performed involved, inter alia, demolition.
6.Regulation 5.1.9 states that an employer must not perform high risk construction work if there is a risk to the health or safety of any person arising from the work unless a safe work method statement is prepared for the work before the work commences.
7.At the foot of each of Regulation 5.1.9 is an ‘Act compliance note’ followed by a reference to section 21 of the Act.
8.Regulation 1.1.7 states that a regulation containing an ‘Act compliance’ note sets out the ways in which the Accused’s duty under a section of the Act is to be performed.
9.On 28 October 2015 the Accused failed to comply with Regulation 5.1.9 as it did not have a safe work method statement for demolition work at the workplace.
10.The risk to health and safety of employees at the workplace arising from the high risk construction work was the inhalation of airborne asbestos fibres.
11.By reason of the matters in particulars [9] and [10] the Accused thereby failed to provide for its employees systems of work that were so far as reasonably practicable safe and without risks to health.
12.On 28 October 2015 it was reasonably practicable for the Accused to reduce the risk to health and safety by:
a.Not performing demolition work when there was a risk to health and safety of any person arising from the work unless a safe work method statement was prepared for the work before the work commenced; and
b.Ensuring that the work was performed in accordance with the safe work method statement.
c.The measures the Safe Work Method Statement should have described are:
i.Assess whether the demolition work involves the disturbance of asbestos;
iiAssessing whether a licensed removalist needs to be engaged to remove any such material.
Relevant statutory provisions
Occupational Health and Safety Act 2004:
2. Objects
(1) The objects of this Act are—
(a)to secure the health, safety and welfare of employees and other persons at work; and
(b)to eliminate, at the source, risks to the health, safety or welfare of employees and other persons at work; and
(c)to ensure that the health and safety of members of the public is not placed at risk by the conduct of undertakings by employers and self-employed persons; and
(d)to provide for the involvement of employees, employers, and organisations representing those persons, in the formulation and implementation of health, safety and welfare standards—
having regard to the principles of health and safety protection set out in section 4.
(2)It is the intention of the Parliament that in the administration of this Act regard should be had to the principles of health and safety protection set out in section 4.
…
4. The principles of health and safety protection
(1)The importance of health and safety requires that employees, other persons at work and members of the public be given the highest level of protection against risks to their health and safety that is reasonably practicable in the circumstances.
(2)Persons who control or manage matters that give rise or may give rise to risks to health or safety are responsible for eliminating or reducing those risks so far as is reasonably practicable.
(3)Employers and self-employed persons should be proactive, and take all reasonably practicable measures, to ensure health and safety at workplaces and in the conduct of undertakings.
(4)Employers and employees should exchange information and ideas about risks to health and safety and measures that can be taken to eliminate or reduce those risks.
(5)Employees are entitled, and should be encouraged, to be represented in relation to health and safety issues.
…
21. Duties of employers to employees
(1)An employer must, so far as is reasonably practicable, provide and maintain for employees of the employer a working environment that is safe and without risks to health.
Penalty: 1800 penalty units for a natural person;
9000 penalty units for a body corporate.
(2)Without limiting subsection (1), an employer contravenes that sub-section if the employer fails to do any of the following—
(a)provide or maintain plant or systems of work that are, so far as is reasonably practicable, safe and without risks to health;
(b)make arrangements for ensuring, so far as is reasonably practicable, safety and the absence of risks to health in connection with the use, handling, storage or transport of plant or substances;
(c)maintain, so far as is reasonably practicable, each workplace under the employer's management and control in a condition that is safe and without risks to health;
(d)provide, so far as is reasonably practicable, adequate facilities for the welfare of employees at any workplace under the management and control of the employer;
(e)provide such information, instruction, training or supervision to employees of the employer as is necessary to enable those persons to perform their work in a way that is safe and without risks to health.
…
23. Duties of employers to other persons
(1)An employer must ensure, so far as is reasonably practicable, that persons other than employees of the employer are not exposed to risks to their health or safety arising from the conduct of the undertaking of the employer.
Penalty: 1800 penalty units for a natural person;
9000 penalty units for a body corporate.
…
Occupational Health and Safety Regulations 2007:
1.1.1 Objectives
The objectives of these Regulations are—
(a)to further the objects of the Occupational Health and Safety Act 2004 by—
(i)providing for health and safety in relation to workplaces and hazards, activities and things at workplaces; and
(ii)providing for the safe operation of major hazard facilities and mines in order to reduce the likelihood of a serious incident occurring; and
(iii)providing for the registration of certain people engaged in construction work at workplaces; and
(iv)providing for the licensing of certain people engaged in high risk work at workplaces; and
(v)providing procedures for the resolution of health and safety issues at workplaces; and
(vi)specifying the information to be included in entry permits issued under Part 8 of the Act; and
(vii)providing for other matters that are required or permitted by the Act or that are necessary to give effect to the Act; and
…
1.1.7 Act compliance notes
If a note at the foot of a provision of these Regulations states "Act compliance" followed by a reference to a section number, the regulation provision sets out the way in which a person's duty or obligation under that section of the Act is to be performed in relation to the matters and to the extent set out in the regulation provision.
Note
A failure to comply with a duty or obligation under a section of the Act referred to in an "Act compliance" note is an offence to which a penalty applies.
…
5.1.3 What is high risk construction work?
In this Part high risk construction work means construction work—
(a) where there is a risk of a person falling more than 2 metres;
(b) on telecommunications towers;
(c) involving demolition;
(d) involving the removal or likely disturbance of asbestos;
(e) involving structural alterations that require temporary support to prevent collapse;
(f) involving a confined space;
(g)involving a trench or shaft if the excavated depth is more than 1.5 metres;
(h) involving a tunnel;
(i) involving the use of explosives;
(j) on or near pressurised gas distribution mains or piping;
(k) on or near chemical, fuel or refrigerant lines;
(l) on or near energised electrical installations or services;
(m)in an area that may have a contaminated or flammable atmosphere;
(n) involving tilt-up or precast concrete;
(o)on or adjacent to roadways or railways used by road or rail traffic;
(p)at workplaces where there is any movement of powered mobile plant;
(q) in an area where there are artificial extremes of temperature;
(r) in, over or adjacent to water or other liquids where there is a risk of drowning;
(s) involving diving.
…
5.1.5 What is a safe work method statement?
In this Part a safe work method statement means a document that—
(a) identifies work that is high risk construction work; and
(b)states the hazards and risks to health or safety of that work; and
(c) sufficiently describes measures to control those risks; and
(d)describes the manner in which the risk control measures are to be implemented.
…
5.1.9 Safe work method statement required for high risk construction work
(1)An employer must not perform high risk construction work if there is a risk to the health or safety of any person arising from the work, unless—
(a)a safe work method statement is prepared for the work before the work commences; and
(b) the work is performed in accordance with the statement.
(2)If there is non-compliance with a safe work method statement prepared under subregulation (1) in relation to particular work, the employer must—
(a) stop that work immediately or as soon as it is safe to do so; and
(b)not resume the work until the statement is complied with or reviewed and, if necessary, revised in accordance with regulation 5.1.10.
Note
Act compliance—sections 21 and 23 (see regulation 1.1.7).
(3)For high risk construction work involving the removal or likely disturbance of asbestos, if there is a risk to the health or safety of any person arising from the work—
(a)preparation of an asbestos control plan in accordance with regulation 4.3.69 is taken to be preparation of a safe work method statement; and
(b)compliance with the asbestos control plan is taken to be compliance with a safe work method statement in relation to the risk to health or safety of exposure to airborne asbestos fibres.
…
5.1.11 Copy of safe work method statement to be retained
An employer must retain a copy of a safe work method statement for the duration of the high risk construction work.
Penalty: 60 penalty units for a natural person;
300 penalty units for a body corporate.
The Magistrate’s reasons
At the conclusion of evidence, the prosecutor submitted:
(i) the work which was occurring at the site satisfied the definition of ‘high risk construction work’ in reg 5.1.3 as it involved demolition and removal or likely disturbance of asbestos;
(ii) a SWMS was required by reg 5.1.9;
(iii) it was not necessary for the prosecution to establish that a risk to health and safety was caused by the failure to provide a SWMS;
(iv) by reason of the compliance note at the end of reg 5.1.9, read in conjunction with reg 1.1.7, a failure to comply with reg 5.1.9 constituted a breach of s 21 of the Act.
His Honour expressed his reasons very succinctly:
Yes. I can’t find that charge proven for the reasons I have already explained. The first charge is [not] made out, and I appreciate the prosecution accepting that charge has not been satisfied beyond reasonable doubt. And having heard the submissions of both in relation to the second charge, I’m not satisfied that I can also find that charge to be proven, and that charge will also be dismissed.[7]
[7]Ibid 96.2–96.9.
No issue is raised in the current proceeding as to the adequacy of the Magistrate’s reasons for dismissing the second charge. In addition to the passage set out above, it is apparent from a number of exchanges between his Honour and the prosecutor that the primary reason for the dismissal of the second charge was his Honour’s conclusion that a charge alleging breach of s 21 by reason of WHE’s failure to have prepared a SWMS, was misconceived. The Magistrate stated that there was ‘a specific offence’ for an employer failing to have a SWMS, and he considered that WHE should have been charged with that offence.[8] Although his Honour did not refer specifically to it, it would appear that he was referring to the offence created by reg 5.1.11, which mandates that an employer must retain a copy of a SWMS for the duration of high risk construction work.
[8]Ibid 93.28–93.31, 94.2–94.12.
Mr Carr, who appeared with Ms Todd for the plaintiff, submitted that the exchanges between the Magistrate and the prosecutor made it clear that he dismissed charge 2 because he found that:
(a)the plaintiff had not established how compliance with the obligation to create a SWMS pursuant to reg 5.1.9 would have reduced or eliminated the risk to health and safety so far as reasonably practicable, in proof of the alleged breach of s 21(1) of the Act;[9]
(b)there was a ‘specific offence for that’ that was not charged;[10] and
(c)there was a requirement that the plaintiff call evidence to prove that the provision of a SWMS would have ‘made any difference’.[11]
[9]Ibid 92.8–92.30.
[10]Ibid 93.8, 94.3.
[11]Ibid 92.30, 95.11–95.13.
Mr Carr submitted that the Magistrate’s reasons for decision disclosed error of law on the face of the record. He submitted that the Magistrate erred in concluding that WHE’s failure to prepare a SWMS should have been subject to a specific charge, rather than a charge alleging a breach of s 21. I accept this submission.
In Deal v Kodakkathanath,[12] the High Court considered the operation of reg 3.1.2 of the Regulations. The Court stated that reg 3.1.2 is ‘directed to eliminating, reducing and controlling the risk of a musculoskeletal disorder associated with a hazardous manual handling task, so far as is reasonably practicable.’[13] The plurality stated:
Whether the risk of musculoskeletal disorder was “associated with” that manual handling task depends on the way in which reg 3.1.2 should be construed. Since reg 3.1.2 is remedial legislation passed for the protection of employees, it should be construed so as to afford to employees the protection which Parliament intended. To that end, the width of the objects identified in s 2 of the Act, the breadth of the principles adumbrated in s 4 of the Act and the extent of the aims identified in reg 1.1.1 of the Regulations are indicative of a legislative purpose to afford relatively broad ranging protection to employees against the risks of hazardous manual handling tasks.[14]
The plurality concluded that the legislative purpose of reg 3.1.2 ‘is to be derived from the text, context and purpose of the legislation’.[15]
[12](2016) 258 CLR 281 (‘Deal’).
[13]Ibid 287 [10].
[14]Ibid 295 [36] (citations omitted).
[15]Ibid 295 [37].
In a separate but concurring judgment, Gageler J stated:
The context therefore makes plain that the purpose of regs 3.1.1, 3.1.2 and 3.1.3 is to prescribe how an employer must perform the main duty imposed by s 21 in relation to the particular matter of the risk of a musculoskeletal disorder causally related to hazardous manual handling. A construction of each regulation which would promote that purpose is to be preferred to a construction which would not.
How the regulations set out to achieve that purpose is by obliging the employer to undertake a structured sequence of actions. Those actions are indicated by the headings which form part of the regulations: “[h]azard identification”, “[c]ontrol of risk” and “[r]eview of risk control measures”.[16]
[16]Ibid 305 [68]–[69] (citations omitted).
The High Court’s approach to the construction of reg 3.1.2 and s 21 applies equally to the construction of reg 5.1.9 and s 21. Regulation 5.1.9 prescribes the mode of compliance of an employer with the duty imposed under s 21 in relation to the performance of high risk construction work where there is a risk to the health and safety of any person arising from the work. Regulation 5.1.9 requires a SWMS to be prepared for the work before the work commences. Further, the work is to be performed in accordance with the SWMS. If there is a risk to health and safety arising from the work, an employer who fails to comply with either of these requirements will breach the duty imposed by s 21 to provide and maintain, so far as reasonably practicable, a working environment that is safe and without risk to health. It is not necessary for the prosecution to establish in proof of the alleged breach of s 21 how the failure to prepare and implement a SWMS would have reduced or eliminated the risk to health and safety so far as reasonably practicable.
Mr Young QC, who appeared with Mr Oldfield for WHE, submitted that non-compliance with reg 5.1.9 does not automatically constitute a breach of the duty imposed upon an employer by s 21. He submitted that where there has been non-compliance with reg 5.1.9, a Magistrate could nevertheless conclude that an employer had, so far as is reasonably practicable, provided and maintained a working environment that is safe and without risk to health.[17] In support of this submission, Mr Young relied upon the following passage from the judgment of French CJ in Plaintiff M47/2012 v Director-General of Security:[18]
Generally speaking an Act, which does not provide for its own modification by operation of regulations made under it, is not to be construed by reference to those regulations. That would be a case of the tail wagging the dog.[19]
[17]Supreme Court Transcript of Proceedings (7 May 2018) 82.8–82.21.
[18](2012) 251 CLR 1.
[19]Ibid 42 [56] (citations omitted).
This statement of principle has no application in the present proceeding. There is no inconsistency between reg 5.1.9 and s 21. Nor is it a case of the general duty imposed by s 21 being construed by reference to reg 5.1.9. Sections 158(1)(a) and (b) of the Act empower the Governor in Council to make regulations with respect to:
(a)the way in which the duties imposed by the Act are performed; and
(b)regulating specified activities (such as demolition works) to eliminate or reduce the risk to health or safety.
In Deal, Gageler J summarised the interaction between regs 1.1.7 and 3.1.1, 3.1.2 and 3.1.3, and ss 20, 21 and 158 of the Act as follows:
The regulations in question in this appeal, regs 3.1.1, 3.1.2 and 3.1.3, were made under s 158(1)(a) of the Act, which provides for the making of regulations for or with respect to the way in which duties imposed by the Act are to be carried out. That link to s 158(1)(a) is made clear by a note in each which states “Act compliance” followed by a reference to s 21. The significance of that note is spelt out in reg 1.1.7: the note indicates that each regulation sets out the “way” in which an employer’s main duty under s 21 is to be performed in relation to the “matters” and to the “extent” set out in the regulation.
The context of ss 20, 21 and 158(1)(a) and reg 1.1.7 explains the focus of regs 3.1.1, 3.1.2 and 3.1.3: on a particular category of workplace activity, and on exposure to a particular category of workplace risk. The activity and the risk together define the matters in relation to which those regulations prescribe the manner in which an employer’s main duty under s 21 is to be performed.[20]
[20]Deal (2016) 258 CLR 281, 304 [64]–[65].
This reasoning applies equally to reg 5.1.9 and s 21. Regulation 5.1.9 prescribes the manner in which an employer’s duty under s 21 is to be performed. A finding by a Court of non-compliance with reg 5.1.9 mandates a finding of non-compliance with the duty imposed on an employer by s 21. There is no scope for a Court, having found that there has been non-compliance with reg 5.1.9, to inquire further as to whether compliance would have made any difference to the employer’s discharge of the duty imposed upon it by s 21.[21]
[21]Cf Govic v Boral Australian Gypsum Ltd (2015) 47 VR 430, 468–471 [153]–[164].
It follows that the Magistrate’s reasons disclose error of law on the face of the record. The charge alleging breach of s 21 by reason of non-compliance with reg 5.1.9 was not misconceived. Irrespective of whether there was available a specific charge under reg 5.1.11 arising from WHE’s failure to prepare and implement a SWMS, a finding of non-compliance with reg 5.1.9 constitutes a finding of breach of s 21.
Is the plaintiff entitled to an order quashing the order of the Magistrate?
Mr Young submitted that the Court should deny the plaintiff relief on discretionary grounds. He submitted that:
(i) The plaintiff had a statutory right of appeal under s 272 of the CPA which it failed to exercise;
(ii) No sound reason had been advanced for the failure to exercise the statutory right of appeal; and
(iii) The grounds upon which the plaintiff relies and the relief which it seeks by way of judicial review are identical to the grounds of an appeal and the relief which was available under s 272 of the CPA.
Mr Young submitted that the reasoning of the Court of Appeal in Kuek is directly applicable to the present case. In particular, Mr Young relied upon the following passage in the judgment of Phillips JA:
It is important that in relying in the originating motion upon alleged errors of law on the face of the record, the appellant was seeking on his application under O 56 to raise matters that could have been agitated on appeal under s 109 had his appeals been in time. A claim for jurisdictional error, if properly established, might be in different case, but I am not now dealing with that. In relation to alleged errors of law, the appellant was not seeking recourse to O 56 because of some alleged defect or insufficiency in the appeal permitted under s 109. As pointed out by the trial judge, the appellant was seeking merely to circumvent one of the limitations quite plainly imposed on an appeal by s 109 and it cannot be that a would-be appellant, who fails to act in timely fashion under s 109, can recast his or her appeal as an application for judicial review under O 56 where the time limit is not 30 days but 60. Ashley J said in Stefanovski v Murphy at first instance:
I have serious doubt whether the O 56 procedure is available where a final order has been made by a Magistrates’ Court and where the matters sought to be raised by the Originating Motion could be agitated on appeal under s 92.
His Honour was speaking of an appeal under s 92, but like considerations obtain in respect of an appeal under s 109. In my opinion, this court should now affirm that, unless there are indeed exceptional circumstances, a litigant may not raise for determination under O 56 — or at all events may not raise with any real chance of success — a matter or thing which is proper for determination on an appeal where that very litigant has a right of appeal under s 109. In other words, if the proper course is an appeal under s 109, albeit an appeal which is subject to the limitations imposed by that section, the litigant cannot choose at his or her option to turn to O 56 as an alternative. As has been said, judicial review should not be seen as a means of appealing from the decision of a magistrate: M v M, Stefanovski v Murphy; see also Craig.[22]
[22]Kuek (2001) 3 VR 289, 293 [16] (citations omitted).
Mr Carr did not point to any authority which, in terms, has held that this passage from Kuek is no longer good law in the State of Victoria. Nevertheless, he submitted that it would be incorrect to approach the exercise of discretion on the basis that the plaintiff was required to establish exceptional circumstances before being granted relief. He submitted that Kuek is authority for the proposition that the availability of a right of appeal is a strong discretionary basis for refusing relief, but that the onus remains on the defendant to satisfy the Court to exercise the discretion to refuse relief.[23] Mr Carr submitted that the Court should look at the way in which Kuek has been distinguished in subsequent authorities and follow the approach adopted in those authorities.[24] One of the authorities which Mr Carr relied upon is the Court of Appeal judgment in Garde-Wilson v Legal Services Board.[25] Dodds-Streeton JA stated:
There is a discretion to refuse relief by way of judicial review. The opponent bears the onus of persuading the court to exercise the discretion against the applicant for relief. There are some established grounds which might justify the exercise of the discretion to deny the relief. In particular, as his Honour recognised, the existence of an adequate alternative remedy is such a factor. The existence of an adequate alternative remedy is not, however, necessarily determinative. Circumstances might nevertheless indicate that judicial review should proceed.
One such factor is the involvement of an important legal question, which can only be determined finally by the court. Another factor is that the original decision was, or may have been, attended by a breach of natural justice. In such circumstances, an applicant for judicial review may be entitled to a fair decision below, together with the full panoply of appellate recourse which would ordinarily apply. To deny judicial review to a plaintiff who did not obtain natural justice in relation to the original decision may be to deprive her of at least one level of appeal. Although the alternative tribunal may accord the plaintiff natural justice and afford in all other respects an adequate alternative remedy, a significant appellate option could be lost.[26]
[23]Supreme Court Transcript of Proceedings (7 May 2018) 11.18–11.30.
[24]Ibid 91.1−91.7.
[25](2008) 19 VR 398 (‘Garde-Wilson’).
[26]Ibid 415 [99]−[100].
Mr Carr submitted that the questions of construction in respect of the Act and Regulations which arise in the current proceeding involve very important legal questions. He submitted that this weighs strongly in favour of the Court determining the application for judicial review.
Unlike the present proceeding, the relief sought by way of judicial review in Garde-Wilson was not identical to that available by way of review before VCAT. Ms Garde-Wilson contended that the Legal Services Board’s refusal to renew her practising certificate involved a denial of natural justice. Although Ms Garde-Wilson had a right of review in VCAT, those proceedings were by way of de novo hearing. As such, any challenge based on a denial of natural justice would be of no utility. This underscores Dodds-Streeton JA’s reference to ‘an important legal question, which can only be determined finally by the court.’[27] This observation reflected the fact that the question of whether Ms Garde-Wilson had been denied natural justice could only be determined by way of a judicial review proceeding in the Supreme Court of Victoria.
[27]Ibid 415 [100].
Nettle JA observed that:
[T]he existence … of a statutory right of appeal or review before a tribunal with jurisdiction to determine all questions of fact and law within the remit of the original decision maker is a powerful discretionary consideration against the grant of prerogative relief.[28]
As against this, his Honour stated ‘[t]here are cases, however, and in my view this is one of them, where the court should not tolerate serious departures from the rules of natural justice.’[29]
[28]Ibid 400 [8].
[29]Ibid 401 [10].
Dodds-Streeton JA distinguished Kuek on the following basis:
Kuek thus turned on the concurrence of substantially identical remedies by way of judicial review and pursuant to specific legislation, in circumstances where the legislation prescribed conditions which had not been satisfied. Kuek did not address the question raised in Leary. It poses no impediment to the persuasive recognition in Leary that a complete rehearing de novo by an appellate or review tribunal standing in the shoes of an original decision-maker may not, in every case, constitute an answer to a denial of natural justice by the original decision-maker.[30]
[30]Ibid 417 [111].
The basis upon which Dodds-Streeton JA distinguished Kuek has no application in the current proceeding. To the contrary, as conceded by Mr Carr, the relief sought by the plaintiff by way of judicial review is identical to that which could have been sought under s 272 of the CPA.[31]
[31]Supreme Court Transcript of Proceedings (7 May 2018) 92.20−92.23.
Mr Carr also relied upon the judgment of Beach J (as his Honour then was) in Nettleton v Vero Insurance Ltd.[32] Nettleton involved a judicial review proceeding in the Supreme Court seeking to quash an order of the County Court staying the proceeding. Beach J held that the County Court misconstrued ss 54 and 57(2) of the Domestic Building Contracts Act 1995. His Honour held this was a jurisdictional error because it resulted in the failure by the Court to exercise jurisdiction to hear and determine Ms Nettleton’s claim for damages, or alternatively, her claim for an indemnity under the relevant insurance policy.[33] Further, his Honour distinguished Kuek on the basis that Ms Nettleton did not have a right of appeal. As the decision of the County Court staying the proceeding was interlocutory, any challenge by way of appeal was contingent upon leave being granted pursuant to s 74 of the County Court Act 1958.[34] Section 272 of the CPA conferred an unqualified right of appeal upon the plaintiff. The present case is therefore distinguishable from Nettleton.
[32](2008) 30 VAR 351 (‘Nettleton’).
[33]Ibid 360 [19].
[34]Ibid 361 [22].
Mr Carr also relied upon the judgment of Nettle J (as his Honour then was) in Director of Public Prosecutions (Vic) v Verigos.[35] A Magistrate had dealt summarily with a charge of aggravated burglary. The DPP sought an order in the nature of certiorari to quash the order of the Magistrates’ Court. The defendant contended that relief should be declined on discretionary grounds because the plaintiff could have exercised a right of appeal under s 92 of the Magistrates’ Court Act 1989.[36] Nettle J rejected this submission.[37] First, he was not satisfied that the DPP did have a right of appeal under s 92.[38] Second, unlike Kuek, the plaintiff had not brought a proceeding by way of application for prerogative relief in order to escape a time limit for appeal.[39] Third, the application was solely concerned with a question of fundamental jurisdictional error.[40] His Honour observed:
In the third place, this application is concerned with and only with a question of fundamental jurisdictional error. In that respect it stands in contrast to the sorts of case that more frequently arise, in which one or even several questions of jurisdictional error are bundled with other alleged errors of law properly the subject of appeal. Although of course I cannot know, it may be that this is the very sort of case that Phillips JA suggested in Kuek would be appropriate for the exercise of discretion in favour of relief by way of judicial review (even if the same result could have been achieved by way of appeal).[41]
[35](2004) 145 A Crim R 82 (‘Verigos’).
[36]Ibid 93 [37].
[37]Ibid 93 [38].
[38]Ibid.
[39]Ibid 93 [39].
[40]Ibid 94 [40].
[41]Ibid (citations omitted).
Nettle J concluded that the Magistrate did not have jurisdiction to deal summarily with the charge of aggravated burglary that was before him.[42] He declined to refuse relief in the exercise of discretion.[43] He made an order in the nature of certiorari to quash the orders which were the subject of the application.[44]
[42]Ibid 94 [41].
[43]Ibid.
[44]Ibid.
In Verigos the Magistrate purported to exercise summary jurisdiction which the Court did not have. In that respect, Verigos is distinguishable from the present proceeding. The jurisdiction which the Magistrate exercised involved the hearing and determination of a charge alleging a breach of s 21 of the Act. The Magistrate plainly had jurisdiction to do so. Nevertheless, Nettle J’s judgment in Verigos and Beach J’s judgment in Nettleton are authority for the proposition that the existence of a statutory right of appeal will not be a bar to the Court granting prerogative relief in circumstances where the decision subject to review involves a fundamental jurisdictional error. That is, a Court exercising a jurisdiction which it does not have, or, refusing to exercise jurisdiction which it does have. It is therefore necessary to consider whether the reasons for decision of the Magistrate disclose not only error of law, but also fundamental jurisdictional error.
Mr Carr submitted that the Magistrate fell into jurisdictional error by misconstruing s 21 and reg 5.1.9. He submitted that the High Court judgment in Kirk v Industrial Court (NSW)[45] supported a finding of jurisdictional error. He relied upon the following passage in the judgment of the plurality:
The first of the errors in question in this case – the errors of construction of s 15 of the OH&S Act – can be identified as a jurisdictional error of the third kind identified in Craig. That is, it can be identified as the Industrial Court misapprehending the limits of its functions and powers. Misconstruction of s 15 of the OH&S Act led the Industrial Court to make orders convicting and sentencing Mr Kirk and the Kirk company where it had no power to do so. It had no power to do that because no particular act or omission, or set of acts or omissions, was identified at any point in the proceedings, up to and including the passing of sentence, as constituting the offences of which Mr Kirk and the Kirk company were convicted and for which they were sentenced. And the failure to identify the particular act or omission, or set of acts or omissions, alleged to constitute the contravening conduct followed from the misconstruction of s 15. By misconstruing s 15 of the OH&S Act, the Industrial Court convicted Mr Kirk and the Kirk company of offences when what was alleged and what was established did not identify offending conduct.[46]
[45](2010) 239 CLR 531 (‘Kirk’).
[46]Ibid 574 [74] (emphasis in original).
Mr Carr placed particular weight upon the reference in the passage set out above to a jurisdictional error arising out of the errors of construction of s 15 of the Act. He submitted that in the present proceeding errors of the same character were made by the Magistrate when construing the interaction between reg 5.1.9 and s 21. Mr Young, however, submitted that Kirk involved a fundamental jurisdictional error of the type which arose in Verigos and Nettleton. I accept this submission. Mr Young pointed to the following passage in the judgment of the plurality:
The explanation just offered also demonstrates that the error made by the Industrial Court was not only an error about the limits of its functions or powers. It was an error which led to it making orders convicting Mr Kirk and the Kirk company where it had no power to do so. The Industrial Court had no power to do that because an offence against the OH&S Act had not been proved. It follows that the Industrial Court made orders beyond its powers to make.[47]
[47]Ibid 575 [75].
In the present proceeding the Magistrate misconstrued s 21 and reg 5.1.9. However, the Magistrate did not, as a consequence, purport to exercise jurisdiction which the Court did not have or refuse to exercise jurisdiction which the Court did have.[48] The Magistrate’s error did not involve fundamental jurisdictional error. This conclusion is reinforced by the consideration that the Magistrate’s order dismissing the charge alleging a breach of s 21 may be correct, albeit for reasons not directly considered by the Magistrate.
[48]See Craig v South Australia (1995) 184 CLR 163, 179–180.
The Magistrate erred by reason of his failure to accept the prosecution’s submission that non-compliance with reg 5.1.9 constitutes a breach of s 21. However, it is questionable whether the evidence before the Magistrate sustained a finding of breach of reg 5.1.9. The fact that WHE did not prepare and implement a SWMS did not, of itself, constitute a breach of reg 5.1.9. A condition precedent to a breach of reg 5.1.9 is a finding of ‘a risk to the health or safety of any person arising from the work’. The prosecution alleged that the relevant risk was inhalation of airborne asbestos fibres.
The evidence before the Magistrate raises a question as to whether there was a risk of inhalation of airborne asbestos fibres arising from the demolition of the shed. The sheets of asbestos which were in the shed were removed prior to its demolition. The sheets were not attached to any part of the shed. They were removed by employees of WHE wearing full protective equipment and were then wrapped in plastic sheeting. The relevant risk under reg 5.1.9 is one ‘arising from’ the demolition work. As all the asbestos had been removed prior to the demolition of the shed it is unlikely that there was a risk of inhalation of airborne asbestos fibres arising from the demolition.
Had the Magistrate been addressed by the parties on the specific question of whether there was a risk of exposure to airborne asbestos fibres arising from the demolition of the shed, it is quite possible that he would have concluded that there was no risk of exposure. This conclusion would have translated into a finding that there was no contravention of reg 5.1.9.
It is unnecessary to express a concluded view as to whether the evidence before the Magistrate supported a finding that there was a risk of inhalation of asbestos fibres arising from the demolition of the shed. The fact that there is a live issue as to whether the evidence supported such a finding reinforces the fact that any error made by the Magistrate was not a fundamental jurisdictional error of the type identified by Nettle J in Verigos or Beach J in Nettleton.
Certiorari is a discretionary remedy. It is necessary to consider the reasons advanced by the VWA for its failure to appeal pursuant to s 272 of the CPA within the prescribed 28 day period. When the plaintiff’s application was heard on 7 May 2018 there was no evidence before the Court explaining the failure of the VWA to appeal under s 272 of the CPA. The plaintiff was granted leave to file an affidavit explaining the reasons for the failure to do so. An affidavit sworn by Patrick James McQuillen was filed on 9 May 2018. Mr McQuillen is an Australian legal practitioner employed by the VWA. He was the instructing solicitor in the original proceeding heard on 26 June 2017. Mr McQuillen deposed as follows:
…
On 28 June 2017 I caused to be sent to the Ballarat Magistrates’ Court a request for a copy of the audio recording of the said proceedings, together with a cheque for $55.00.
On 3 July 2017, I received instructions to brief senior counsel for the purpose of providing advice as to the merits of any appeal against the learned Magistrate’s decision.
On 10 July 2017, the Authority received the audio recording disc from the Ballarat Magistrates’ Court and on that day I caused the disc to be sent to Legal Transcripts Pty Ltd to be transcribed.
On 14 July 2017 the transcript was emailed to WorkSafe and a copy then forwarded by email to counsel on the same day.
On 11 August 2017 I received senior counsel’s written advice. The advice was that there were merits to an appeal. Senior counsel’s advice contained no reference to an appeal pursuant to section 272 of the Criminal Procedure Act 2009.
I subsequently conferred with senior counsel on 21 August, when senior counsel was further briefed to draw the necessary documents to commence these proceedings.
On 23 August 2017 the originating motion was filed with this Honourable Court in accordance with the advice and grounds of appeal provided by senior counsel.
Senior counsel who was briefed in this matter has since been appointed a Judge of the County Court of Victoria, and accordingly I am unable to seek any further information about the basis of the advice provided.
If the initial reply by the first defendant had raised the issue that the appropriate avenue of appeal in this matter was by way of an appeal pursuant to section 272 of the Criminal Procedure Act 2009, I would have immediately sought senior counsel’s advice and, if so advised, sought immediate instructions to issue an application for leave to appeal out of time.
The upshot of Mr McQuillen’s affidavit is to attribute responsibility for the failure to initiate an appeal proceeding under s 272 of the CPA to senior counsel briefed in the matter. The 28 day appeal period expired on 24 July 2017. The transcript of the Magistrates’ Court proceeding was forwarded to senior counsel on 14 July 2017. However, counsel’s written advice was not received until 11 August 2017. That advice contained no reference to an appeal under s 272 of the CPA.
If a litigant fails to lodge an appeal within a prescribed appeal period solely due to an oversight by their legal advisor it may be unfair to visit any adverse consequences arising therefrom upon the litigant.[49] However, the VWA was not merely a party to this proceeding. Rather, pursuant to s 130 of the Act, it has the power to commence proceedings for an offence against the Act. As a prosecuting authority, the VWA must be taken to have knowledge of the statutory framework governing both the prosecution of alleged offences under the Act, together with any appeals from an unsuccessful prosecution.[50] In this regard, s 272 of the CPA was of critical importance. If the VWA failed to refer to the 28 day appeal period under s 272 of the CPA when briefing counsel, this was a serious oversight. I do not consider Mr McQuillen’s affidavit provides a satisfactory explanation for the VWA’s failure to initiate an appeal under s 272 of the CPA by 24 July 2017.[51]
[49]Popal v Accounts Control Management Services Pty Ltd [2010] VSC 412 [35].
[50]WorkCover Authority (NSW) v Parkes Council (1996) 70 IR 298, 304−305.
[51]Cf Australian Competition and Consumer Commission v Link Solutions Pty Ltd (No 2) [2010] FCA 1463 [14]–[16].
Mr McQuillen deposes that if the initial reply by WHE had raised s 272 of the CPA he would have immediately sought senior counsel’s advice and, if so advised, sought immediate instructions to issue an application for leave to appeal out of time. First, there was no onus upon WHE to draw the VWA’s attention to the operation of s 272 of the CPA. Second, if an application for leave to appeal had been brought by the VWA it would have been subject to the requirement under s 272(8)(a) of the CPA for the VWA to establish that the failure to commence an appeal within 28 days was due to exceptional circumstances. I do not consider that the failure of a prosecuting authority to turn its mind to the operation of a statutory appeal time limit satisfies the test of exceptional circumstances in s 272(8)(a) of the CPA.[52]
[52]See R v Ioannou (2007) 17 VR 563, 568 [17]; Tsimiklis v Sellers [2003] FCA 1257 [23]–[26]; Coulston v State Coroner of Victoria [2018] VSC 103 [34]–[39].
Conclusion
The Magistrate erred in concluding that the charge alleging breach of s 21 was misconceived. In particular, his Honour erred in reasoning that a breach of reg 5.1.9 based upon a failure to prepare and implement a SWMS could not constitute a breach of s 21, but should have been the subject of a specific charge (presumably a breach of reg 5.1.11). However, the error did not involve a fundamental jurisdictional error whereby the Magistrate purported to exercise jurisdiction which he did not have, or alternatively, failed to exercise a jurisdiction which he did have. The Magistrate’s error does not constitute fundamental jurisdictional error of the type identified by Nettle J in Verigos or Beach J in Nettleton, justifying a departure from the clear statement of principle in Kuek. In circumstances where the plaintiff had a statutory right of appeal under s 272 of the CPA which it failed to exercise, relief in the nature of certiorari should be refused on discretionary grounds. This conclusion is reinforced by the fact that the relief sought by the plaintiff in the present proceeding is identical to that which it could have sought in an appeal brought under s 272 of the CPA. Further, the plaintiff advanced no satisfactory explanation for its failure to commence an appeal within the prescribed 28 day period.
The plaintiff’s application for relief in the nature of certiorari is dismissed. I shall provide the parties with an opportunity to make submissions on the question of costs.
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