Glenister v Wayne Horne Earthmoving Pty Ltd - [2018] VSC 390

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

---

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

---

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.

---

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Glenister v Wayne Horne Earthmoving Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] VSC 390
Decision Date: 18 July 2018

CaseChat Overview and Summary

In the matter of Glenister v Wayne Horne Earthmoving Pty Ltd, the plaintiff sought judicial review of the decision of the Magistrates' Court, which had dismissed charges against the defendant for breaches of the Occupational Health and Safety Act 2004. The plaintiff, who was a worker injured in an incident at the defendant's workplace, did not pursue an appeal against the dismissal of the charges within the statutory period. Instead, the plaintiff filed an application for judicial review under the Supreme Court (General Civil Procedure) Rules 2015, seeking to overturn the Magistrates' Court's decision on the basis of perceived errors in the handling of the charges. The legal issues before the court centred on whether the plaintiff had provided a satisfactory explanation for the failure to appeal the dismissal of the charges within the stipulated timeframe, and whether the court should exercise its discretion to grant relief in the form of certiorari.

The court found that the plaintiff had not provided a satisfactory explanation for the delay in seeking judicial review. The plaintiff's arguments centred on the assertion that the Magistrates' Court had misapplied the Occupational Health and Safety Act 2004, but the court determined that this did not constitute a sufficient reason to warrant the exercise of its discretionary powers under the Criminal Procedure Act 2009. The court emphasised that the statutory right of appeal was designed to provide a timely and effective means of addressing perceived errors in the handling of charges, and that the plaintiff's failure to exercise this right within the prescribed period was a significant factor in the decision-making process. As a result, the court declined to grant the relief sought by the plaintiff.

Consequently, the application for judicial review was dismissed. The court held that, in the absence of a satisfactory explanation for the delay, the plaintiff had not demonstrated that the exercise of the court's discretion was warranted. The court's decision was based on the principle that the timely exercise of statutory rights is essential to the proper functioning of the legal system, and that the failure to do so may result in the forfeiture of the right to seek subsequent remedies. The plaintiff's application for judicial review was therefore refused on discretionary grounds.

Orders