Hillman v T & R (Murray Bridge) Pty Ltd

[2011] SASCFC 17

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Permission to Appeal in Private)

HILLMAN v T & R (MURRAY BRIDGE) PTY LTD

[2011] SASCFC 17

Judgment of The Full Court

(The Honourable Chief Justice Doyle, The Honourable Justice White and The Honourable Justice Peek)

23 March 2011

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - BY LEAVE OF COURT - GENERALLY

Application for permission to appeal considered in private - effect of particulars supporting a complaint - whether meaning of particulars arguable - whether arguable that Full Court of the Industrial Relations Court erred in refusing to allow an amendment to the particulars - no issue of principle - not an appropriate case for a grant of permission - application for permission to appeal refused.

Fair Work Act 1994 (SA) s 191(1)(b); Occupational Health, Safety and Welfare Act 1986 (SA) s 19(1); Supreme Court Civil Rules 2006 r 290 and r 290(6), referred to.

HILLMAN v T & R (MURRAY BRIDGE) PTY LTD
[2011] SASCFC 17

Full Court:  Doyle CJ, White and Peek JJ

1. THE COURT:      This is an application for permission to appeal to the Full Court of the Supreme Court against a decision by the Full Court of the Industrial Relations Court. The application for permission to appeal is made under s 191(1)(b) of the Fair Work Act 1994 (SA).

2. The application has been considered by the Court comprising Doyle CJ, White and Peek JJ.  The application has been considered pursuant to r 290 of the Supreme Court Civil Rules 2006.  The application was considered without hearing from the respondent, pursuant to r 290(6).

3. The application raises the effect of particulars supporting a complaint alleging an offence.

4. The respondent was charged with an offence against s 19(1) of the Occupational Health, Safety and Welfare Act 1986 (SA). Section 19(1) provides as follows:

   19—Duties of employers

   (1)An employer must, in respect of each employee employed or engaged by the employer, ensure so far as is reasonably practicable that the employee is, while at work, safe from injury and risks to health and, in particular—

   (a)     must provide and maintain so far as is reasonably practicable—

   (i)a safe working environment;

   (ii)safe systems of work;

   (iii)plant and substances in a safe condition; and

   (b)     must provide adequate facilities of a prescribed kind for the welfare of employees at any workplace that is under the control and management of the employer; and

   (c)     must provide such information, instruction, training and supervision as are reasonably necessary to ensure that each employee is safe from injury and risks to health.

   The charge was as follows:

   1.On 14 May 2007, at Murray Bridge in the State of South Australia, the defendant, being an employer, failed to ensure so far as was reasonably practicable, that its employee, namely Steven John Bailey, was safe from injury and risk to health.

   Contrary to section 19(1) of the Occupational Health, Safety and Welfare Act 1986.

   This is a summary offence.

   Particulars of the offence were given.  They alleged that the respondent operated a meat processing facility, that Mr Bailey was employed by the respondent there, that he was injured while operating a “hock cutter”, and then alleged the material particular:

   1.4The defendant failed to maintain, so far as was reasonably practicable, plant in a safe condition, in that it failed to adequately guard the plant so as to prevent the employee from making unintentional contact with the shearing blades of the cutter.

   As can be seen, the complaint was based on a failure to provide plant that was as safe as was reasonably practicable.

5. The evidence satisfied the Industrial Magistrate that the elements of the offence were proved.  Evidence was given that fixing a guard to the hock cutter would minimise the risk of an operator cutting himself, although a guard would not eliminate that risk.  The Magistrate was alert to the effect of para 1.4 of the Particulars.  The Magistrate said:

   [34]The defendant contended that the evidence advanced does not establish beyond reasonable doubt that the guard would prevent an operator from making unintentional contact with the shearing blades of the cutter.  The complainant in its closing address effectively conceded that the guard does not prevent an employee making unintentional contact with the shearing blades of the cutter.  All it does is minimise the risk and that is not the case alleged against the defendant.

   The Magistrate went on to find:

   [37]The findings I make are that the complainant established that the guard minimised the risk of injury.  The complainant has not established that the addition of the guard prevents an operator from making unintentional contact with the shearing blades of the cutter.

   Accordingly, the Magistrate found the respondent not guilty.

6. On appeal to a single judge, the Judge reached a different conclusion as to the meaning of para 1.4.  The Judge said:

   [25]Read as a whole I think that a fair reading of particular 1.4 is that the Crown was alleging that the defendant failed to sufficiently guard the plant so as to stop or hinder the employee from making unintentional contact with the shearing blades of the cutter.

   Having regard to the conduct of the case, the Judge was satisfied that there was no injustice in so concluding.  The Judge ordered that a conviction be recorded.  The Full Court of the Industrial Relations Court reversed the Judge’s decision.  The Full Court agreed with the Magistrate.  The Court held:

   [34]In this instance there was a variance between the material averment that the reasonably practicable measure was the operation of a guard to prevent unintentional contact between the operator’s off-hand and the shearing blades of the cutter and the finding that the guard minimises the risk but does not prevent an employee making unintentional contact with the shearing blades.

   [35]The Industrial Magistrate correctly found that the charge, as framed, has not been proved beyond reasonable doubt.

   The Full Court rejected a submission that the Industrial Magistrate should have invited or permitted the applicant to amend para 1.4 of the particulars.  The Full Court declined to permit that amendment itself.  It said:

   [43]Whether the pith and substance is altered may be a matter of degree.  However in our judgment there is a fundamental difference between the assertion that the company should have taken the reasonably practicable measure of adequate guarding to prevent the risk of injury and the assertion that the company should have taken the reasonably practicable measure of adequate guarding to minimise the risk of injury.  An amendment of this kind involves the redefinition of the charge; it goes to the quality of the act which constitutes the alleged offence.

   Footnote omitted

   The Full Court was not confident that it had the power to make the amendment.  But in any event, if it had the power it would not have done so.  It noted that the Industrial Magistrate had raised the matter with counsel for the applicant before deciding the case, and held at [59] that it would be unfair to the respondent, when the matter was before the Full Court, to allow the amendment of the particulars.

7. We refuse permission to appeal.

8. We agree that the meaning of para 1.4 of the particulars is arguable, although we are inclined to agree with the Magistrate and with the Full Court. We accept that the applicant established matters capable of supporting the finding of a breach of s 19(1), but on the approach taken by the Magistrate and the Full Court the applicant did not make out the case pleaded.

9. Ordinarily we would have expected an amendment to be applied for before the Magistrate and to be allowed.  But the prosecutor chose to leave the complaint as it stood, even though the significance of the wording of para 1.4 of the particulars was raised before the Industrial Magistrate.  There is some force in what the Full Court of the Industrial Relations Court said on this topic.

10. There have now been three hearings in the Industrial Court.  A grant of permission to appeal would lead to yet another and fourth consideration of the meaning of para 1.4 of the Particulars, and a reconsideration of the exercise of the power to amend.

11. Permission to appeal is not granted merely because the appeal raises an arguable point.  It is relevant to bear in mind that the case raises no issue of principle.  It raises at best the application to particular circumstances of well understood principles.  The prosecutor elected to present the case with the particulars as they stood.  That is of some significance.  When we take into account the nature of the issues raised and the fact that there have already been three hearings, our conclusion is that this is not an appropriate case for a grant of permission to appeal.