Kent v Crandith Pty Ltd
[2010] TASSC 40
•10 September 2010
[2010] TASSC 40
COURT: SUPREME COURT OF TASMANIA
CITATION: Kent v Crandith Pty Ltd [2010] TASSC 40
PARTIES: KENT, Robert Bruce
v
CRANDITH PTY LTD
FILE NO/S: BDR 369/2010
DELIVERED ON: 10 September 2010
DELIVERED AT: Hobart
HEARING DATE: 2 September 2010
JUDGMENT OF: Blow J
CATCHWORDS:
Magistrates – Jurisdiction and procedure generally – Procedure – Orders and convictions – Orders for costs – Costs against prosecutor, informant or complainant – Costs against the Crown, police or public officials – Unsuccessful workplace safety prosecution – Weak prosecution case.
Costs in Criminal Cases Act 1976 (Tas), s4(2).
Makela v Bass [2009] TASSC 120, discussed.
Aust Dig Magistrates [168]
REPRESENTATION:
Counsel:
Applicant: J Ransom
Respondent: R C Glover
Solicitors:
Applicant: Director of Public Prosecutions
Respondent: Rod Glover Legal
Judgment Number: [2010] TASSC 40
Number of paragraphs: 41
Serial No 40/2010
File No BDR 369/2010
ROBERT BRUCE KENT v CRANDITH PTY LTD
REASONS FOR JUDGMENT BLOW J
10 September 2010
This is a motion for the review of a costs order made by a magistrate pursuant to the Costs in Criminal Cases Act 1976, s4. The applicant unsuccessfully prosecuted the respondent on a charge of failing to maintain a safe system of work contrary to the Workplace Health and Safety Act 1995, s9(1)(a)(ii).
The prosecution concerned an incident when an employee of the respondent, Mr Young, lost four fingers from one hand. The respondent, Crandith, was engaged by a company named Greenham Tasmania Pty Ltd as a cleaning contractor. Greenham operated an abattoir at Smithton. The respondent employed Mr Young as its cleaning supervisor at that abattoir. His duties included cleaning work as well as the supervision of other cleaners. On the day in question he was showing a prospective employee what her work as a cleaner would involve if she were employed. When demonstrating the cleaning of a machine called a hock cutter, the machine began to operate, and severed his fingers.
Charges were laid against both Greenham and Crandith by means of separate complaints. The charges against both defendants were heard together, with the consent of all parties. The learned magistrate concluded that the machine had been turned off; that it commenced to operate as the result of an unforeseeable malfunction; and that the charge had not been proved beyond reasonable doubt. He dismissed both complaints.
The respondent successfully applied for an order that the applicant pay its costs. The learned magistrate published written reasons for making the costs order. The applicant contends that those reasons reveal a number of errors on his part.
In those reasons, the learned magistrate reviewed the evidence against Crandith, its weaknesses, and his findings. He concluded that he was satisfied that Crandith had demonstrated a positive reason why he should make an order for costs. Immediately before announcing that conclusion, he said the following:
"Whilst I acknowledge there may have been an arguable case in respect of Greenham Tasmania Pty Ltd the action against Crandith Pty Ltd was patently weak, and it was unreasonable to join the Applicant [ie Crandith] in the proceedings. This view is further supported by the decision of the Prosecutor at the commencement of the proceedings electing to not proceed with two of the counts on the complaint; an acknowledgement at the last moment by the Prosecution that those counts had no chance of success. In this regard I note the decision of Justice Tennent in Makela v Bass [2009] TASSC 120 when considering an appeal against a magistrate's decision refusing costs:
'The prosecution service was clearly entitled to take the view that the claims of the parties should be tested in court. However, on the other hand, realistically, had the service evaluated what was presented to them, absent any evidence of collusion between the applicants and Hamilton, the only conclusion which could have been reached was that the cases against the applicants were unlikely to be able to be proven beyond reasonable doubt. The fact that the prosecution service proceeded, notwithstanding that situation, should have, in my view, been a positive reason to trigger the exercise of the learned magistrate's discretion in favour of the applicants.'
Although in this case the Counsel for the Defendant did not submit there was no case to answer, I do not see the principle as being inapplicable when the matter has proceeded to a decision being made by the Court after hearing all of the evidence."
The notice to review asserts that the learned magistrate erred in four respects. Strangely, the grounds of review are numbered 1(a)(i) to 1(a)(iv) inclusive. They read as follows:
"1The learned Magistrate erred in fact and/or in law in ordering the applicant to pay the respondent's costs and in particular:
a Erred in ruling that positive reasons to exercise his discretion to award costs in favour of the respondent included:
i that the 'action against' the respondent was 'patently weak'';
ii that it was 'unreasonable to join the applicant in the proceedings';
iii that by reason of the prosecutor, at the commencement of the proceedings electing to not proceed with two of the counts on the complaint, it was 'an acknowledgement at the last moment by the Prosecution that those counts had no chance of success';
iv that the cited decision of Makela v Bass [2009] TASSC 120 established a principle applicable and relevant to the circumstances of the respondent's application for costs."
The power to make an order for costs under the Costs in Criminal Cases Act, s4, is discretionary. The principles applicable to appeals from discretionary orders, as discussed by the High Court in House v R (1936) 55 CLR 499 must be applied in reviewing the learned magistrate's order. The relevant principles were stated by Dixon, Evatt and McTiernan JJ in that case, at 504 – 505, as follows:
"The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance."
Ground 1(a)(i) — Weak case
As I have said, the respondent was charged under the Workplace Health and Safety Act, s9(1)(a)(ii). That provision reads as follows:
"(1) An employer must, in respect of each employee employed 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, must –
(a)provide and maintain so far as is reasonably practicable –
(i)…; and
(ii)safe systems of work …".
The applicant bore the burden of proving beyond reasonable doubt that the respondent failed to ensure, so far as was reasonably practicable, that Mr Young was, while at work, safe from injury and risks to health, in that it failed, so far as was reasonably practicable, to provide and maintain safe systems of work. The prosecution case was that the respondent had failed to provide Mr Young with a safe system of work in relation to the cleaning of the hock cutter. The hock cutter was an electrically powered, hydraulically operated machine that was used for cutting the feet off slaughtered cattle. It had powerful scissors, whose blades needed cleaning at the end of a working day. When in use, it was activated by an operator pressing and holding down a trigger button which caused the blades to close. It could be switched off at a control panel. The control panel was at some distance from the operator's position, but there was a clear line of sight between that position and the panel. When it was switched on, a green light was displayed on the control panel. When it was switched off, no light was displayed. It was switched on by pressing a green button on the control panel. It was switched off by pressing a red button on the control panel.
The prosecution case was confined by particulars of the charge that were set out in the complaint. Those particulars read as follows:
"aThe defendant failed to ensure that Greenham Pty Ltd, the employer of Kevin Amos Young, had a system of control in place for correct shut down, isolation and hand-over of plant, machinery and equipment to the defendant's employees for the purpose of cleaning the said plant, machinery and equipment;
bThe defendant failed to ensure that Greenham Tasmania Pty Ltd had a documented procedure in place to check and verify to the defendant that the plant, machinery and equipment had been correctly shut down and was safe before cleaning commenced; and
cThe defendant failed to ensure that Greenham Tasmania Pty Ltd had an effective system of electrical isolation fitted to plant and equipment on the slaughter floor of the said workplace."
In a short opening speech, the prosecutor explained to the learned magistrate that the prosecution case was that the only precautions in place against the accidental operation of the hock cutter during cleaning were that the operator was instructed to switch off the machine, and the cleaner was instructed to check that it was switched off by looking at the control panel to see that the light was not on. He made it clear that the case was based on no other system being in place to protect a cleaner from the accidental operation of the machine.
The prosecutor called five witnesses. The first was an inspector from Workplace Standards Tasmania, Mr Johnson. He gave evidence describing the hock cutter, the trigger button, the control panel, and so forth. He asserted that Greenham had modified the hock cutter so that it had one trigger button instead of two. He produced a manual for a hock cutter that would operate only when two trigger buttons were simultaneously pressed and held down. That evidence was discredited. It later emerged that the manufacturer made one-button machines as well as two-button machines, and that Greenham had been using a manual for a very similar two-button machine. Even if Mr Johnson had been right about a modification having taken place, any such modification would probably have been insignificant, since there was no suggestion that anybody touched the trigger button at the time Mr Young lost his fingers.
Mr Young was the next witness. He gave evidence of the need to clean dried blood from the blades and surrounding surfaces of the hock cutter. He gave evidence of a system whereby, before cleaning the hock cutter, he had to check that it was switched off by looking at the control panel to see that there was no light on and, if the light was on, switching the machine off. He said that he had never been shown how the hock cutter operated, and had never seen it operating. He said he had never been shown a switch on the hock cutter that operated it. In relation to the day he was injured, he said that the control panel lights were off; that he had his hand on a part of the machine; that he felt an electric shock; and that, as he went to pull his hand out, he realised that his fingers were falling down. He said the electric shock felt like an electric fence.
Mr Young was cross-examined about his training. At the hearing of the motion to review, counsel for the applicant submitted that answers that he gave, suggesting inadequate training, made the prosecution case strong. However the particulars in the complaint did not contain any allegation as to inadequate training. This was a case about precautions against accidental operation of the machine, and there was no dispute as to the system that was in place. The operator was to switch the machine off at the control panel at the end of the day. The cleaner was to check the control panel to ensure that the machine was switched off and, if necessary, switch it off personally. No other precaution was in place.
The third witness was Greenham's maintenance supervisor, Mr Billing. He gave evidence that he did not know of any system being in place for disconnecting the hock cutter and shutting off the power when it was not being used. He said that there were three points at which the power supply to the hock cutter could be disconnected. It could be turned off at the control panel by pressing the green button. It could be switched off at an isolation switch at a power pack outside the back door. It could be switched off and unplugged at a power point above the hock cutter, but that was in a wet environment. He said that the usual process was for an employee known as the hide puller to switch the machine off at the control panel, but not at any other place.
The final two prosecution witnesses were employees of the respondent — a manager named Mader, and its chief executive officer, Mr Smith. They both gave evidence to the effect that the system of work was simply that the cleaner was to look at the control panel and ensure that the hock cutter was switched off.
There was evidence from Mr Young and Mr Billing as to maintenance work having been done on the hock cutter shortly before Mr Young's injury. The evidence established that a faulty switch was replaced. It was the switch that I have referred to as the trigger button. The problem had been that the old switch could sometimes be pressed and held down without the machine commencing to operate. There was evidence that the newly installed switch functioned properly, and that the machine was switched off at the control panel at the end of the day. The evidence as to the maintenance work was therefore inconsequential.
Crandith did not call any witnesses. Greenham called one, a Mr Chatwin, whom it employed as an electrician at the abattoir. He gave evidence that he checked the hock cutter in the early morning on the day Mr Young was injured, and that it was operating satisfactorily. He gave evidence of the replacement of the trigger switch. He gave evidence confirming what Mr Billing had said about the three places where the power supply to the hock cutter could be switched off or disconnected. He gave evidence that he had inspected the hock cutter and the machine after Mr Young was injured; that the green light was working properly; that the machine was working properly; and that he could not find anything wrong with the electrical installations. He said that he could not rule out a hydraulic malfunction because he was not a hydraulics expert.
The striking thing about this case is that the investigation of Mr Young's accident seems not to have been thorough enough for anyone to have determined what went wrong. If there was a malfunction of the machine's hydraulic system, that would not explain Mr Young experiencing an electric shock. If his evidence about an electric shock is correct, then the problem was not that the machine was switched on when it should have been switched off. The blades of the cutter would not have been live if that had been the problem. There was no suggestion that anyone investigated any possible explanations for Mr Young receiving an electric shock. Consequently, there was no evidence as to what reasonably practicable safety precautions, if any, could have been taken to obviate the risk of the machine operating as a result of an electric current passing through it from an irregular source when it was switched off.
The learned magistrate accepted Mr Chatwin's evidence as to the green light on the control panel being in working order, and as to there being no electrical malfunction affecting the hock cutter or the electrical connections to it. If his evidence had not been given and accepted, the learned magistrate could well have concluded that, despite the green light not being illuminated, the power supply to the machine must have been connected, with the result that it began to operate when touched, even though the trigger button was not pressed and held down.
I think it is clear from the learned magistrate's comments about the case being "patently weak", and about unreasonableness, that he took the view that, prior to the start of the hearing, it should have been apparent to the applicant that the prospects of proving guilt were so weak that the case should have been abandoned. In substance, ground 1(a)(i) amounts to an assertion that he was mistaken as to that. If one examines the strengths of the prosecution case, it is clear that there were a couple of additional steps that Crandith could have taken to ensure that the power supply to the hock cutter was off. Cleaners could have been instructed to ensure that it was switched off at the isolation switch, as well as the control panel. A system could have been instituted requiring Greenham's employees to check at the end of the day that the power supply was off, and to document the checks that they had made. However, in the light of the evidence of Mr Young experiencing an electric shock, it does not follow that he would not have been injured if such precautions had been taken. Of course it would still have been open to the learned magistrate to find the charge proven on the basis of inadequate precautions having been taken, even if those precautions would not have prevented Mr Young's injury.
The learned magistrate concluded that the procedures in place were adequate. He took into account the fact that, even if the green light failed to operate when the power was switched on, there would need to be a second failure "at the button" for the machine to operate as if the trigger button were fully depressed and held in.
In my view the learned magistrate did not make any mistake as to the facts, and it was reasonably open to him to conclude that the prosecution case was so weak that it was not reasonable to proceed with it. Ground 1(a)(i) must fail.
Ground 1(a)(ii) — Unreasonable joinder
The applicant contends that, when the learned magistrate said "it was unreasonable to join the Applicant in the proceedings", he erred in law in that Crandith, whom he referred to as "the Applicant", was the sole defendant to the relevant complaint, and not joined with any other defendant.
As I have said, there were separate complaints against Crandith and Greenham, and those complaints were heard together. Both complaints were laid under the Justices Act 1959. There is nothing in that Act that permits two complaints against separate defendants to be heard together. However such a course is often taken. The hearing of separate complaints against separate defendants together is "an irregularity only which the defendants may waive": Munday v Gill (1930) 44 CLR 38 per Dixon J at 90.
The learned magistrate seems to have been well aware of the situation. In the second paragraph of his written reasons for the dismissal of the two complaints, he said:
"The defendants were not jointly charged however, as the charges arise from a single incident, and with the consent of all parties, the charges have been heard together."
The learned magistrate may well have been using loose language when he used the verb "join". Earlier in the same sentence, he used the word "action" when the right word would have been "case". I am not persuaded that he made a mistake about there being two separate complaints. But even if he did make such a mistake, it would have been inconsequential. It could not have made any difference to the strength of the reasons for making a costs order that Crandith was charged on a separate complaint from Greenham, and that they were not jointly charged on one complaint. This ground must fail.
Ground 1(a)(iii) — Abandoned charges
The complaint against Crandith contained three charges — one under each subparagraph of the Workplace Health and Safety Act, s9(1)(a). The prosecutor, an experienced barrister, told the learned magistrate at the beginning of the hearing that it was "not appropriate" for the complaint to contain three charges effectively alleging "breaches of the same section of the Act", and that he was therefore offering no evidence in relation to counts 1 and 3 — the charges under s9(1)(a)(i) and (iii).
The learned magistrate referred to the abandonment of those two charges in his published reasons for ordering the payment of costs, in the second sentence of the passage that I have quoted at par[5] above. He said that the decision not to proceed with those two charges was "an acknowledgement at the last moment by the Prosecution that those counts had no chance of success".
I think he was wrong to say that. On my reading of the prosecutor's comments about those charges, he was telling the learned magistrate that he was not proceeding with them because they were duplicitous.
The learned magistrate also said that his view that the "action" against Crandith was patently weak, and that it was unreasonable to "join" Crandith was supported by the decision of the prosecutor not to proceed with two of the charges. In my view that was illogical. Count 1 alleged a failure to maintain a safe working environment, apparently on the basis that a single machine was unsafe, and therefore the working environment was unsafe. Count 2 alleged a failure to maintain a safe system of work. Count 3 alleged a failure to maintain plant in a safe condition. There was a basis for regarding the three charges as being duplicitous.
In my view, the decision not to proceed with counts 1 and 3 was completely irrelevant to the strengths and weaknesses of the case on count 2, and thus to the discretion to order costs in respect of count 2. By taking into account that decision in the way that he did, the learned magistrate gave weight to an irrelevant consideration. This ground must succeed.
Ground 1(a)(iv) — Makela v Bass [2009] TASSC 120
The applicant contends that the learned magistrate erroneously held that Makela v Bass established a principle applicable and relevant to Crandith's application for costs.
In that case, two defendants had been charged with assaulting a man on King Island. On the complainant's version of events, each had committed an unlawful assault. Six months before the hearing, the defendants' solicitors sent to the Tasmania Police prosecution service statements from both defendants and an eye-witness. The three statements were consistent with one another. They gave a very different version of events, according to which one defendant had used force by way of lawful self-defence, and the second defendant had used force by way of lawfully defending the first defendant. Tennent J held that the magistrate in that case had erred by failing to take into account a number of relevant considerations. One of the relevant considerations was that the prosecution service decided to proceed when it was unlikely that the charge would be found proven beyond reasonable doubt.
By virtue of the Costs in Criminal Cases Act, s4(3), an acquittal is not of itself a sufficient reason for a defendant to be granted costs. There needs to be some positive reason for granting costs, or some circumstance or consideration which activates the discretion to grant costs: R v Freshney [1977] Tas SR 126 at 128. The fact the proceedings were properly brought and continued is not, by itself, a sufficient reason to refuse costs: s4(4). Tennent J held in Makela v Bass at par[25] that the decision to proceed when it was unlikely that the charges could be proven beyond reasonable doubt was "a positive reason to trigger" the discretion to order costs. I agree with that proposition. Although the facts in Makela v Bass were very different from the facts of this case, it was reasonably open to the learned magistrate to conclude that this also was a case where, from the outset, the charge was unlikely to be able to be proven beyond reasonable doubt. He did not suggest that costs should always be ordered in such a situation. In my view he made no error in applying what Tennent J said in Makela v Bass to the facts of the case before him. Ground 1(a)(iv) must fail.
Disposition of the motion to review
Counsel for Crandith submitted that, in the event of my concluding that the learned magistrate had erred in any respect, I should dismiss the motion to review pursuant to the Justices Act, s110(2)(ab). That provision empowers a judge to dismiss a motion to review when he or she "considers that no substantial miscarriage of justice has occurred even though the cause or matter raised by the motion might be decided in favour of the applicant". It would no doubt be appropriate to apply that provision in the sort of situation contemplated by the High Court in Weiss v R (2005) 224 CLR 300 where, notwithstanding error on the part of a magistrate, the reviewing judge is satisfied beyond reasonable doubt of guilt, and there has been no significant denial of procedural fairness or similar miscarriage of justice. However this is a motion for the review of an exercise of a statutory discretion. I do not think it can be said that there has been no substantial miscarriage of justice when one of the considerations that the learned magistrate treated as weighing in favour of a costs order was an entirely irrelevant one — the fact that no evidence was offered in relation to two other charges at the start of the hearing. In my view the only appropriate course is for the application for costs to be re-determined.
I have the power to re-determine the costs application under the Justices Act, s110(2)(g). Counsel for both parties submitted that I should exercise that power, rather than remitting the costs application to another magistrate, if I concluded that the application needed to be re-determined. In my view that is the more appropriate course, in order to avoid further costs, further delays, and duplication of work.
Like the learned magistrate, I consider that the prosecution case was very weak. Whilst cheap and simple additional precautions could have been taken to ensure that the hock cutter was switched off during cleaning, any such precautions would have been precautions against two simultaneous faults — a failure of the green light to illuminate at the same time as a fault causing the trigger switch mechanism to operate when the trigger switch was not depressed and held. Like the learned magistrate, I see no reasonable need for any such additional precautions. I infer that the investigation into Mr Young's accident fell short of establishing what had gone wrong, and that therefore there was no evidence available to the prosecution of any reasonably practicable precaution that should have been taken to make his system of work safer. In those circumstances, I think it was likely from the outset that any magistrate would not be satisfied beyond reasonable doubt that Crandith was guilty of the offence charged. It is unfortunate that the authorities did not more thoroughly investigate such a serious accident. The principles relevant to applications for costs by successful defendants are set out in the Costs in Criminal Cases Act, s4, and in R v Freshney (above) at 128. In all the circumstances, I think that this was an appropriate case for an order for costs.
The learned magistrate ordered the payment of costs "At a rate of 65% of Schedule 1 of the Costs of the Supreme Court [sic] as may be agreed between the parties and failing agreement as assessed by the Registrar of this Court [ie the Magistrates Court]." It has not been suggested that the figure of 65 per cent was inappropriate. Obviously the learned magistrate was referring to the scale of costs in Pt1 of Sch1 to the Supreme Court Rules 2000. That scale does not provide for counsel's fees, as distinct from solicitors' remuneration. Having regard to the wording of the learned magistrate's order, it seems clear that he intended the appropriate registrar to assess counsel's fees in such sum as was thought reasonable.
In my view the learned magistrate's order should stand, subject to one point that was not mentioned at the hearing of the motion to review. When a magistrate makes an order for costs, and does not wish to assess the costs personally, he or she may delegate the assessment to the appropriate clerk of petty sessions: Justices Act, s77(3). That provision applies to orders under the Costs in Criminal Cases Act: Justices Act, s77(8). There is no provision authorising the delegation of the assessment task to a registrar appointed under the Magistrates Court Act 1987, s16A.
For these reasons, the only order that I make in respect of the motion to review is as follows:
"That the order for costs made on 14 May 2010 be amended by deleting the words 'the Registrar of this Court' and substituting 'the Clerk of Petty Sessions at Burnie'."
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