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

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”).
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
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.
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…

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.

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Details

Case: [2008] SASC 124
Decision Date: 7 May 2008

CaseChat Overview and Summary

The case of Gould v Austral Tree & Stump Services Pty Ltd concerns the clearing of native vegetation by employees of Austral Tree & Stump Services Pty Ltd, a company engaged by Steinert to remove vegetation from his property. The employees cleared not only the vegetation specified but also native vegetation, which was unlawful. Austral and its director were acquitted by a magistrate, who found that the employees were not acting "in the course of employment" when they cleared the native vegetation. The prosecution appealed against the acquittals, asserting that they occurred by reason of an error of law.

The central legal issue was whether the employees were acting within the scope of their employment when they cleared the native vegetation. The court had to determine whether the employees' actions were part of their employment duties or if they acted outside the scope of their employment. This determination was crucial because, under the legislation, a corporation could be held liable for the actions of its employees if those actions were carried out in the course of employment.

The court found that the magistrate erred in concluding that the employees were acting outside the course of their employment when they cleared the native vegetation. The employees were directed by Steinert, who was aware of the nature and scope of the job. The court held that the employees' actions fell within the course of their employment as they were carrying out instructions given by their employer. The legislation's strict application meant that the company was liable for the actions of its employees if those actions were part of their employment duties. Therefore, the court quashed the dismissal of the charges and substituted convictions against both respondents.

The court made the following orders: the appeal was allowed, the dismissal of the charges against each respondent was set aside, and each respondent was convicted of the relevant charge. The court noted that it would hear submissions regarding the penalty.

Orders

Orders of the court

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Background

Background to the litigation

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 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. 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. 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. 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. 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. 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.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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 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. 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. I shall hear submissions as to penalty.

Ratio Decidendi

Legal Principle Established

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