Gould v Austral Tree & Stump Services Pty Ltd

[2008] SASC 124

SUPREME COURT OF SOUTH AUSTRALIA

(Magistrates Appeals: Criminal)

GOULD v AUSTRAL TREE & STUMP SERVICES PTY LTD & ANOR

[2008] SASC 124

Judgment of The Honourable Justice Vanstone

7 May 2008

MAGISTRATES - APPEALS FROM AND CONTROL OVER MAGISTRATES - SOUTH AUSTRALIA

CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST ACQUITTAL

CRIMINAL LAW - GENERAL MATTERS - CRIMINAL LIABILITY AND CAPACITY - DEFENCE MATTERS - IGNORANCE AND MISTAKE OF FACT - HONEST AND REASONABLE BELIEF

EMPLOYMENT LAW - RIGHTS AND LIABILITIES AS BETWEEN EMPLOYER AND THIRD PERSONS - LIABILITIES OF EMPLOYER - FOR TORTS OF EMPLOYEE - FOR WHAT ACTS LIABLE - COURSE OF EMPLOYMENT AND SCOPE OF AUTHORITY

First respondent a corporation in business of tree felling - native vegetation unlawfully cleared by employees of first respondent while acting under a client's direction - corporation acquitted by Magistrate of clearing native vegetation on basis employees not acting "in course of employment".

Held:  Magistrate's finding set aside and convictions entered.

Native Vegetation Act 1991 s 26, s 38, s 39, s 40, referred to.
Bugge v Brown (1919) 26 CLR 110; Fraser v Dryden's Carrying Co [1941] VLR 103; Ilkiw v Samuels [1963] 1 WLR 991; Limpus v London General Omnibus Co (1862) 1 H & C 526; Rose v Plenty & Anor [1976] 1 WLR 141, considered.

GOULD v AUSTRAL TREE & STUMP SERVICES PTY LTD & ANOR
[2008] SASC 124

Magistrates Appeal
Criminal

1. VANSTONE J: Native vegetation situated on land within the township of Clare was unlawfully cleared. An owner of the land, together with Mr Steinert, a member of the governing body of the owner, pleaded guilty to clearing native vegetation contrary to s 26 Native Vegetation Act 1991 (“the Act”).

2. The clearing work was done by three employees of the first respondent, Austral Tree & Stump Services Pty Ltd (“Austral”) a body corporate engaged by Steinert.  The employees were not charged.  Austral and its director, the second respondent, were charged but acquitted by a magistrate.  The prosecution appeals against those acquittals, asserting that they occurred by reason of an error of law.

   Background

3. The magistrate heard evidence from a number of witnesses called on both sides.  They included Colin Steinert (“Steinert”) and Raimund Macaitis (“Macaitis”), the operations manager of the first respondent.  The magistrate found that all witnesses were honest and reliable.  The essential facts of the matter were not disputed, although there were some minor inconsistencies between evidence of conversations attested to by Steinert and Macaitis.  In the event nothing turns on those.

4. The first respondent, Austral, is in the business of lopping and removing trees.  It is based in Adelaide.  In early September 2004 Steinert contacted Macaitis to arrange for removal of vegetation including pine trees, vines and olive trees on property which Steinert, and others, were in the process of developing.  Council approval had been obtained for building works on parts of the relevant land.  Steinert’s evidence was that he believed (wrongly) that implicit in that approval was permission to remove native vegetation.  Steinert and Macaitis were known to each other both socially and through work which Austral had previously performed for Steinert.

5. Macaitis said in the telephone call that Steinert detailed the type of work he required to be done, giving a description of the trees and indicating the type of equipment he expected would be required. The vegetation mentioned was pines, olives and vines. It is common ground that no approval under the Act was required for that vegetation. Macaitis said that he asked whether there were any “significant trees” among those to be felled (requiring separate approval) and was told that there were not. He said he asked whether Steinert had the “necessary approvals” and was assured that he did. In another passage of evidence he explained that he there referred to any approvals which might have been required from public authorities or utilities.

6. While the work originally specified was expected to take more than a day, necessitating that the workers stay overnight, in a second conversation later in the day, Steinert advised that the pines would now be removed by an excavation contractor and the balance of the work would be completed in a day.

7. Because of the confidence which Macaitis had in Steinert’s advice about the nature and scope of the job, he did not find it necessary to inspect the location and it was agreed that Steinert would direct the crew at the site.

8. On the appointed day a team of three attended the property and met Steinert.  The men took instruction from him as to what to do.  The work was quickly completed.  Steinert said that as the bulk of the day remained, he took the men to another area and directed them to cut down the eucalypts, the subject of the charges.  Steinert could not recall if the men asked him if he had approval to remove the eucalypts.  He said that had he been asked that question, he would have replied in the affirmative.  Later in the day Steinert telephoned Macaitis and told him that the job had been completed to his satisfaction and the team were on their way home.

9. As can be seen, the fact that native vegetation was cleared contrary to s 26 of the Act was not in dispute. The prosecution relied on s 38 and s 39 of the Act to link the actions of the team of three to the body corporate, Austral, and thence to its director, Mr Craig Hosking, the second respondent. Those sections are as follows:

   38—Vicarious liability

   For the purposes of this Act, an act or omission of an employee or agent will be taken to be the act or omission of the employer or principal unless it is proved that the act or omission did not occur in the course of the employment or agency.

   39—Offences by bodies corporate

   Where a body corporate is guilty of an offence against this Act, each member of the governing body, and the manager, of the body corporate are guilty of an offence and liable to the same penalty as is prescribed for the principal offence.

10. The Act provides a defence to an offence against the Act, in these terms:

    40—General defence

    It is a defence to a charge of an offence against this Act if the defendant proves that the alleged offence was not committed intentionally and did not result from any failure on the part of the defendant to take reasonable care to avoid the commission of the offence.

    The magistrate’s findings

11. The learned magistrate found that the offence was one of strict responsibility and that both the defence of honest and reasonable mistake and the s 40 defence were, theoretically, available.

12. The magistrate went on to find that neither of those defences availed the first respondent.  Her Honour did not explain the way in which it was sought to apply the “honest and reasonable mistake of fact” defence.  I would think that were there any relevant mistake, it would have to be one made by the team of three as they cleared the native vegetation:  to the effect that relevant approvals were in place.  Those men did not give evidence.

13. However, judging on the reasons of the learned magistrate, it might be that the mistake she was encouraged to consider was one made by Austral in advance of the attendance at the property, to the effect that relevant approvals were in place.  At that stage, of course, it was not envisaged that the team would cut any native vegetation and in my view any such expectation could not qualify as a mistake for the purposes of the common law defence.  In any event, her Honour found that it was unreasonable for the first respondent to rely on an assurance from Steinert that relevant approvals were in place.  Her Honour held, correctly in my view:

    The business of this company is tree and stump removal.  It behoves the company to ensure that it is aware of its legal requirements and that it complies with those requirements.  The prosecutor led evidence, which established a simple telephone enquiry would have alerted the company to the potential problem.

14. The same judgement as to the obligations on the corporation and the unreasonableness of failing to ensure that clearing the native vegetation was lawful would dispose of the s 40 defence. Again, in my mind the conduct which would be the focus of this defence would be the physical act of clearing, performed by the team. Even if the team turned its mind to the fact that it was being asked to clear native vegetation and accepted Steinert’s assertion that the relevant approval was in place, that would not amount to taking reasonable care to avoid the commission of the offence. Macaitis took a risk in allowing Steinert to direct the team to the extent of introducing work not previously mentioned. The work should not have been done without appropriate and sufficient enquiries being made to establish that it was authorised.

15. In view of the magistrate’s rejection of both defences I need not deal with the interesting question of whether the Parliament, by providing the s 40 defence, has excluded, by implication, the honest and reasonable mistake defence. Particularly as there appears to be some overlap between the two defences, I would think there is a respectable argument that only the s 40 defence was available. But I did not hear argument on this issue and it does not strictly arise on the appeal before me and so it is best left for another day.

16. During final submissions, the magistrate raised with counsel the question whether the additional work allocated to the team on site by Steinert – to clear native vegetation – and the performance by the team of that work, without reference back to Macaitis, might have meant that the team was working outside the terms of its employment so as to avoid the operation of the vicarious liability provision, s 38. Ultimately her Honour held that since the respondent corporation had contracted to remove pine trees, olive trees and vines, and because, once on site the team operated under the control of and at the direction of Steinert, the unlawful work fell “outside the terms of their employment”. Thus it was held that the prosecution was robbed of the assistance of s 38 of the Act and thence of s 39 as well, with the result that its case failed.

    Analysis

17. Because the issue on which the prosecution case foundered was not raised until final submissions, there was no particular focus on it during the course of the evidence.  However, it was clear from Macaitis’ evidence that he instructed the team as to what equipment it would take to the job and when it would go.  It was proved that at the end of the day’s work, Steinert reported back to Macaitis that the work was satisfactorily completed and the team was on its way back to Adelaide.  An invoice for the work was rendered and paid.  There is every reason to assume that the members of the team were paid for their day’s work in the usual manner, whatever that was.

18. In my opinion, the magistrate fell into error.  There was nothing in the evidence to suggest that the members of the team were acting other than in accordance with the terms of their employment with Austral and for its purposes.  In working at Steinert’s direction they were doing precisely what Macaitis had instructed them to do.  Indeed, even express disobedience to instructions does not necessarily amount to going outside the course of employment for purposes such as these.  The critical issue is whether what is done by the employee is done for the master’s, as opposed to the employee’s, purposes:  Limpus v London General Omnibus Co (1862) 1 H & C 526;  Ilkiw v Samuels [1963] 1 WLR 991, CA; Rose v Plenty & Anor [1976] 1 WLR 141; Bugge v Brown (1919) 26 CLR 110; Fraser v Dryden’s Carrying Co [1941] VLR 103.

19. There was no suggestion of a new contractual arrangement being struck with Steinert, supplanting the team’s employment relationship with Austral.  On the contrary, throughout the day, the team used the first respondent’s truck and equipment;  it reported back to Macaitis and just as Steinert paid the first respondent for the job, so the team must have looked to the first respondent for payment.  I think the learned magistrate was swayed by her understandable sympathy for the respondents if they were to be convicted in respect of work which they did not anticipate would occur.  No doubt that is a matter relevant to penalty.  If that seems harsh, it is to be remembered that Macaitis did not attend the site to supervise the work;  he relied on Steinert to instruct the team on site.  He apparently gave no instructions to the men as to reference back to him should the brief deviate from olives and vines, and, as was his custom, he relied on the client to obtain any relevant approvals, without making any check to see that what he was told was accurate.

20. The scheme of the legislation is such that a corporation in the first respondent’s position fails to check that its work is lawful at its peril. Section 26 catches all those who are complicit in an act of clearing involving native vegetation without authorisation. The wide scope and strict application of the provision is doubtless calculated to minimise instances of ignorant, as well as calculated, breaches, or a combination of the two.

    Conclusion

21. I consider that the learned magistrate erred in finding that the respondents’ workers were acting outside the course of their employment when they cleared the native vegetation and in acquitting the respondents on that basis.  The charge against both respondents was proved.  The appeal should be allowed for the purpose of quashing the dismissal of the charge and substituting convictions.

22. I make the following orders:

    1.     that the appeal be allowed;

    2.that the dismissal of the charges against each respondent be set aside;

    3.that instead, each respondent to be convicted of the relevant charge.

23. I shall hear submissions as to penalty.