House v Forestry Tasmania

[1995] HCATrans 336

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Hobart   No H2 of 1995

B e t w e e n -

GEOFFREY DAVID HOUSE

Applicant

and

FORESTRY TASMANIA and HER MAJESTY’S ATTORNEY-GENERAL FOR THE STATE OF TASMANIA

Respondents

Application for special leave to appeal

BRENNAN CJ
GAUDRON J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

FROM HOBART BY VIDEO LINK TO CANBERRA

ON THURSDAY, 23 NOVEMBER 1995, AT 9.56 AM

Copyright in the High Court of Australia

MR W.T. McMILLAN:   Your Honours, I appear for the applicant.  (instructed by McLean Phillips & Bartlett)

MR A.G. MELICK:   Your Honours, I appear with my learned friend, MR J.R. McDONALD, for the respondents.  (instructed by Gunson Pickard & Hann)

MR McMILLAN:   Your Honours, if I could take you to page 48 of the application book where his Honour the Chief Justice deals with the issues giving rise to the first point of complaint of the applicant.  It is to be recalled that what we had here was a factual base where the applicant was required, in the course of the pruning operation of the third level, to stand at various stages towards the top of the ladder and eventually on the top itself of a ladder which was not an inclined device but was vertically held against the pine tree he was pruning.  He was some 4.17 metres when he was on the top rung from the ground.

BRENNAN CJ:   Now, Mr McMillan, we are aware of the facts.  You are aware, I take it, that the Court does not grant special leave simply to review findings of fact. 

MR McMILLAN:   Yes, I am aware of that, your Honour.

BRENNAN CJ:   Or to determine whether or not there was a misapplication of established principle.

MR McMILLAN:   Yes.  I was merely providing the matrix that the applicant attacks the way in which the Full Court approached this first issue of responding to the risk and I was coming to the evidence that the Court had before it, namely from a Mr Viner, an engineer called by the respondents, and the evidence of a Mr Gilbert, called by the applicant, and the purport of that evidence is set out at page 48 in the judgment of the Chief Justice.  Briefly, it indicated that there was the possibility of the use of a choker which could go round the operator and the tree itself and the court analyses that evidences toward the foot of page 48, and the court upheld the approach of the trial judge at about line 45:

The learned trial judge concluded that for reasons he gave, including the fact that Mr Gilbert’s evidence was primarily in situations which were different.....he should place greater reliance upon Mr Viner’s opinion.

Now, the applicant says that the Full Court has not applied those principles in such well-known authorities as Wyong v Shirt.  There has not been that proper balancing and evaluation of the evidence which the principles set out in the judgment that Justice Mason requires. 

BRENNAN CJ:   Then what is the special leave point?

MR McMILLAN:   The special leave point, your Honour, is that the Full Court has failed to apply those principles.  It is as simple as that.

BRENNAN CJ:   That is not a special leave point.  That is just a question of evaluation of the facts.

MR McMILLAN:   Well, your Honour, a similar instance was recently before the Court in the decision of Miletic which came before the Court and a decision given in August this year.  That is reported in Australian Law Journal Reports and the Court there was able to find that the Full Court had not properly assessed the evidence which was before it, namely from a Mr Simpson, who was an expert witness, who was able to give evidence that related to the putting of oil on the castors and the Court at page 677, left hand column from point F onwards, indicated that the Full Court - and I am reading it properly at line G:

Should have undertaken that exercise -

of -

balancing “the magnitude of the risk.....the probability of its occurrence.....the expense, difficulty and inconvenience of taking alleviating action.

And the Court, that is the High Court, was able to come to the view that there had not been a proper exercise of that balancing operation and what the applicant complains of here - - -

GAUDRON J:   The difference here, is it not, is that one was talking in the realm of hypothetical methods, whereas in Miletic one had a distinct method available?

MR McMILLAN:   Well, there are various gradings, with respect, your Honour, to hypothetical possibilities and it is my submission that what the Court had was a very simple device of a choker belt which, by its own weight, could restrain a tree feller if the occasion arose that he lost balance.  It is not a far-fetched example and that is why the applicant says there has been a failure on the part of the Full Court. 

If I could take the Court to the second issue and that concerns a failure to warn.  What we had here was a situation where there had been, and it was accepted by the applicant, that he had been given a warning as to why he should cut larger branches and particularly, branches that were overhead first of all some six to eight inches out from the trunk and in an underneath cut first and then cut over that.

Now, that was a warning given by a Mr Henderson of the course which the applicant undertook in November of the previous year, some 11 months before this particular incident.  Now, in the meantime, the applicant had won a position with the Forestry Commission and had initially been given some training in the Forestry Commission’s approach by a Mr Williams.  Now, the trial judge accepted that Mr Williams did not, at all, iterate the warning - the reasons behind the warning in so far as safety was concerned.  Henderson had.  Williams, the trial judge accepted, had directed his concerns about the quality of the tree and the value of what would be left for the Forestry Commission.  So, here was a man who was cutting up to 80 trees a day, had done so for some six months or so, and had not been given the benefit, or a continuing benefit, of a warning.                 The applicant says that there has been a failure on the part of the court to properly direct its mind to the principles espoused in such authorities as Raimondo and McLean v Tedman. 

Now, the final point, your Honours, deals with regulation 201 and the Chief Justice was supported in his judgment on that regulation by Justice Crawford who gave a separate but supporting judgment.  In the judgement of the Chief Justice at application book 55 is set out the provisions of the Industrial Safety, Health and Welfare Act 1977 and I must say to the Court that that Act has since been repealed by the Workplace Health and Safety Act 1995. It has within it in section 9 ‑ ‑ ‑

GUMMOW J:   What is the name of that statute again?

MR McMILLAN:   The Workplace Health and Safety Act 1995. Now, that Act is in force but the regulations which were the subject of the judgment, namely, regulation 201, contained in the general regulations are still in force and they have been continued in force. There have been no substituted regulations made under the new Act.

GUMMOW J:   But the new Act has provision for substituted regulations I suppose.

MR McMILLAN:   That is so, your Honour.  The Chief Justice reviewed the authorities but came to the same conclusion as his Honour the trial judge that it was the application of the proportionality test which struck down the regulation and he says that at application book 58 approximately line 42.  His Honour went on to refer to what was said by Justice Dixon in Williams’ Case, but it is the submission of the applicant that the passage cited by the Chief Justice does not assist in that Williams’ Case.  At page 155 is the quoted provision towards the foot of the page in which Justice Dixon is quoting from a prior decision of the Melbourne Corporation v Barry and the judgment of Justice Higgins, but as Justice Dixon went on to say:

the doctrine “that a power to regulate implies the continued existence.....does not altogether exclude the prohibition of particular acts or things which may be contained within the subject matter.

His Honour did not go on to give that gloss on the quoted reference.  Mr Justice Crawford relied entirely on the proportionality test at AB 65, point 45.  Now, this test, the proportionality test, as being the controlling test, it is submitted, should not be the test in so far as regulation powers are concerned, rather, the court which is seized with determining whether a regulation is within power should have regard to the tests adumbrated in such decisions as Williams itself and Shanahan v Scott. 

As your Honour Justice Gummow outlined in the decision of the Full Court of the Federal Court in Minister for Resources v Dover Fisheries that proportionality principle - and I am reading from page 577, about two‑thirds of the way down - has a place in federal constitutional law.         Your Honour had traced its import through United Kingdom decisions into Australia, particularly in the field of administrative law, and what the applicant is submitting is that in this instance there should have been a reference only to the tests in those two authorities I have already taken the Court to.

GUMMOW J:   But would that have produced a different result?

MR McMILLAN:   Yes, of course, that would be my submission, that when one looks at regulation 201 in the whole scheme of the protection of the safety of workers, that applying those earlier principles, that regulation 201 can stand.  Those are my submissions.

BRENNAN CJ:   I take it that the construction that you place upon regulation 201 is a construction which imposes what is virtually an absolute obligation on the employer?

MR McMILLAN:   That would be so, yes, your Honour.

BRENNAN CJ:   Yes, thank you, Mr McMillan.  We need not trouble you, Mr Melick.

The issues involved in the finding that there was no negligence in the present case raise no question of principle which would warrant a grant of special leave.  If regulation 201 of the Industrial Safety, Health and Welfare (Administrative and General) Regulations 1979 were construed as having the meaning and effect attributed to it in the applicant’s submission, a proposition which it is unnecessary to consider, the Full Court’s opinion that it would not be supported by the power conferred by section 49 of the Industrial Safety, Health and Welfare Act 1977 (Tasmania) is not attended with sufficient doubt to warrant a grant of special leave.  For those reasons special leave is refused.

MR MELICK:   Your Honour, I would seek an order for costs, if it please the Court.

BRENNAN CJ:   Do you have anything to say about that, Mr McMillan?

MR McMILLAN:   I have no submissions to make.

BRENNAN CJ:   Yes, special leave will be refused with costs. 

AT 10.13 AM THE MATTER WAS CONCLUDED