Henry Walker Contracting Pty Ltd v Farnworth - [2000] WASCA 253

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: HENRY WALKER CONTRACTING PTY LTD -v- FARNWORTH [2000] WASCA 253

CORAM: IPP J
HEENAN J
MILLER J

HEARD: 7-8 AUGUST 2000

DELIVERED : 12 SEPTEMBER 2000

FILE NO/S: SJA 1136 of 1999

BETWEEN: HENRY WALKER CONTRACTING PTY LTD
Appellant
AND
JAMES FARNWORTH
Respondent

Catchwords:

Criminal law - Practice and procedure - Complaint in Petty Sessions - Particulars - Entitlement to amend - Whether creation of a different offence - Meaning of making "arrangements" in relation to plant within meaning of s 9(1)(e) of Mines Safety and Inspection Act 1994 - Whether evidence established prima facie case

Legislation:

Mines Safety and Inspection Act 1994, s 9(1)

Result:

Appeal allowed in part
Matter remitted to Court of Petty Sessions, Karratha for re-hearing

Representation:

Counsel:

Appellant: Mr P G Clifford & Mr B A Millar
Respondent: Ms C J Thatcher

Solicitors:

Appellant: Hollingdales
Respondent: State Crown Solicitor

Case(s) referred to in judgment(s):

Bunnings Forest Products Pty Ltd v Shepherd, unreported; FCt SCt of WA; Library No 980235; 5 May 1998
Chaudhary v Ducret (1986) 67 ALR 463
Kirkby v A & M I Hanson Pty Ltd (1994) 55 IR 40
Leighton Contractors Pty Ltd v Ridge, unreported, SCt of WA; Library No 980650; 23 October 1998
Meiklejohn v Central Norseman Gold Corporation Ltd (1998) 19 WAR 298
Meikleljohn v Central Norseman Gold Corporation Ltd, unreported; SCt of WA; Library No 960656; 20 November 1996
Morrison v Kiwi Electrix Pty Ltd & Anor (1998) 19 WAR 482
R v Bilick (1984) 36 SASR 321
R v Wakeley [1920] 1 KB 688

Case(s) also cited:

Byrne v Baker [1964] VR 443
Collins v State Rail Authority of NSW (1986) 5 NSWLR 209
Cullen v State Rail Authority (NSW) (1989) 31 IR 207
Danny Mok (1987) 27 A Crim R 438
Fred Wakefield Pty Ltd v Dowd (1979) 20 SASR 328
Freundt v Hayes (1992) 59 A Crim R 430
Gerakiteys v R (1984) 51 ALR 417
Gorman & Anor v Fitzpatrick & Anor (1985) 4 NSWLR 286
Interstruct Pty Ltd v Wakelam (1990) 3 WAR 100
John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508
Johnson v Miller (1937) 59 CLR 467
Jones v Dunkel (1959-60) 101 CLR 298
Morrison v Winton, unreported; SCt of WA; Library No 960698; 12 December 1996
R v Chin (1985) 157 CLR 671
R v Landy & Ors (1981) 1 All ER 1172
R v Partridge (1930) 30 SR (NSW) 410
R v Phil Maria (1957) St R Qd 512
R v Wakeley [1920] 1 KB 688
Rippingale v The Queen [1999] WASCA 257
Robbins v Horton (1980) 3 NTR 1
S v The Queen (1989) 168 CLR 266
Saffron (No 1) v The Queen (1988) 17 NSWLR 395
Shaw v The Queen (1952) 85 CLR 365
Stanton v Abernathy (1990) 19 NSWLR 656
State Rail Authority of NSW v Dawson (1990) 37 IR 110
Tesco Supermarkets Ltd v Nattrass…

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 Henry Walker Contracting Pty Ltd v Farnworth 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: [2000] WASCA 253
Decision Date: 12 SEPTEMBER 2000

CaseChat Overview and Summary

In the case of Henry Walker Contracting Pty Ltd v Farnworth, the dispute involved the interpretation of the Mines Safety and Inspection Act 1994, specifically in relation to whether an arrangement had been made concerning plant within the meaning of section 9(1)(e). The case was heard in the Supreme Court of Western Australia, where the appellant, Henry Walker Contracting Pty Ltd, contested the particulars of a complaint filed against it in the Court of Petty Sessions.

The legal issues before the court included whether the appellant was entitled to amend the complaint, whether such an amendment would create a different offence, and if the evidence presented established a prima facie case against the appellant. The central question was whether the complaint and particulars, which had been refused amendment, adequately formulated a case for the appellant to answer. Counsel for the appellant argued that the case should not be remitted at all, citing a previous decision where an amendment was denied due to manifest injustice caused by the delay in proceedings.

The court examined the rationale behind refusing the amendment in the earlier case, Meikleljohn v Central Norseman Gold Corporation Ltd, where Scott J and subsequently the Full Court, had considered the refusal justified due to the significant lapse of time. However, the current court found these considerations inapplicable to the present case, as there was no prejudice to the appellant from the amendment refusal. It was held that the appellant was still in a position to answer the original charge and that the case should be remitted to the same magistrate for re-hearing according to law. Consequently, the appeal was allowed in part, with the case to be remitted for re-hearing without a complete re‑hearing.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

HEENAN J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: HEENAN J

The question which now arises is whether the case should be sent back to a different Magistrate for re‑hearing, or whether it should be remitted to the learned Magistrate who heard the matter in Karratha with a direction that it be heard according to law. Counsel for the appellant argues that the matter should not be remitted at all, pointing to the fact that in Meikleljohn v Central Norseman Gold Corporation Ltd, unreported; SCt of WA; Library No 960656; 20 November 1996, there was a refusal to allow an amendment which sought more than six months after the alleged offence to substitute a different charge. Scott J considered that an amendment at that stage of the proceedings would cause a manifest injustice to the respondent who would be forced to return to the matter some two years after the event alleged with the necessity of having to find the appropriate evidence at such a late stage. To avoid such injustice his Honour dismissed the appeal, notwithstanding that the appellant had succeeded on the main argument in the case. In the Full Court (Meiklejohn v Central Norseman Gold Corporation Ltd (1998) 19 WAR 298, Anderson J, (with whom Walsh and Owen JJ agreed) considered that Scott J was amply justified in refusing to allow the amendment in view of the lapse of time that occurred. It seems to me, however, that this is a different question from that which faces this Court. There is no question here of any amendment to the complaint creating any prejudice to the appellant. To the contrary, amendment to the particulars has been refused and, in my view, ought not now be resurrected. There was, however, on any view of it, a case for the appellant to answer at trial. That was the case which was originally formulated in the complaint and particulars. It was that case which the appellant went to the Court of Petty Sessions at Karratha to answer. Notwithstanding the lapse of time caused by the appellate proceedings, it seems to me that the appellant is still in as good a position as ever to answer the charge which it has at all times faced. For this reason it is my view that the matter should be remitted to the learned Magistrate in the Court of Petty Sessions Karratha for re‑hearing according to law, with a direction that there is a case for the appellant to answer. The appeal from her Honour should therefore be allowed in part in that I am of the view that the matter should not be remitted for a complete re‑hearing.