Kilby v Harrison; Saxon Energy Services Australia Pty Ltd v Harrison
[2019] ICQ 21
•11 December 2019
INDUSTRIAL COURT OF QUEENSLAND
CITATION: | Kilby v Harrison; Saxon Energy Services Australia Pty Ltd v Harrison [2019] ICQ 021 |
PARTIES: | Jacob John Robert Kilby v Paul Kevin Harrison |
CASE NO: PARTIES CASE NO: | C/2018/12 Saxon Energy Services Australia Pty Ltd ACN 137 534 993 v Paul Kevin Harrison C/2018/13 |
PROCEEDING: | Appeal against conviction of Industrial Magistrate |
DELIVERED ON: | 11 December 2019 |
HEARING DATE: | 28 November 2018 |
MEMBER: HEARD AT: | O'Connor VP Brisbane |
ORDERS: | 1. The appeals are allowed; 2. I will hear the parties as to the form of orders to be made. |
| CATCHWORDS: | INDUSTRIAL LAW – APPEAL AGAINST CONVICTION – appeal against convictions under the Petroleum and Gas (Production and Safety) Act 2004 – general principles – right of appeal – nature of right – appeals by way of rehearing – scope and effect of rehearing – whether demonstration of error is a precondition to the Industrial Court's appellate powers STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – PARTICULAR WORDS AND PHRASES – meaning of "recklessly" – whether the learned Industrial Magistrate misconstrued the word "recklessly"– whether "recklessness" requires a "conscious disregard of risk" at the time of the offence – whether the guilt of the Appellants was proven beyond reasonable doubt PROCEDURE – COSTS – APPEALS AS TO COSTS – JURISDICTION TO ENTERTAIN – where prosecution sought orders for costs under s 158A Justices Act 1886 (Qld) - whether Magistrate had jurisdiction to award costs – whether "costs of representation" under s 319 of the Industrial Relations Act 1999 |
LEGISLATION:
| Crimes Act 1900 (Nsw) s 35 Petroleum and Gas (Production and Safety) Act 2004 (Qld) s 704, s 840 Workplace Health and Safety Act 1995 (Qld) Allesch v Maunz (2000) 203 CLR 172 |
APPEARANCES: | A J Glynn QC with A Scott instructed by Norton Rose Fulbright Australia for the Appellants J R Hunter QC with P Morreau instructed by Gilshenan & Luton Legal Practice for the Respondent |
Reasons for Decision
Introduction
On 23 June 2013 drill rig 185 was operating in the Surat Basin approximately 66 kilometres east of Injune. The drill rig was an "operating plant" for the purposes of the Petroleum and Gas (Production and Safety) Act 2004 ("P and G Act"). Mr Jacob Kilby was the driller on the drill rig and was employed by Saxon Energy. Mr Gareth Dodunski, a Floorhand and his co-worker, Mr Daniel Mullings were undertaking tasks on the drill floor. Mr Dodunski was within the crush zone of the Iron Roughneck ST-80. At approximately 3.15 pm, Mr Kilby activated the ST-80. Mr Dodunski was caught by the machine and suffered a fatal crush injury. It was the act of engaging the ST-80 that was the focus of proceedings before the Industrial Magistrate. At the time of the act, Mr Kilby was a "person at an operating plant".
The Appellants were charged and convicted of the offence of "recklessly" doing an act that might adversely affect the safety of anyone at an operating plant, under s 704 of the P and G Act. Section 704 provides as follows:
704 Wilful or reckless acts or omissions that affect safety
A person at an operating plant must not wilfully or recklessly do an act or make an omission that might adversely affect the safety of anyone at the plant.
Maximum penalty—500 penalty units.
Saxon's liability for Mr Kilby's act arose by application of s 840(3) of the P and G Act which attributes the "state of mind" of a corporation's officers, employees and agents to the corporation and attributes the "conduct" of those persons' to the corporation.
The Appellants now appeal those convictions to this Court.
The Complaints
Extracted below are both the original complaints and summons filed in the Magistrates Courts of Taroom on 23 June 2014:
THE COMPLAINT OF PAUL KEVIN HARRISON of 61 Mary Street, Brisbane in the State of Queensland, a public officer within the meaning of section 142A of the Justices Act1886 and the Acting Commissioner for Mine Safety and Health within the meaning of section 73BA of the Coal Mining Safety and Health Act 1999, made this 20th day of June 2014 before the undersigned, a Justice of the Peace for, the said State, who says that on the twenty-third day of June 2013 at an operating plant located approximately 66 kilometres east of Injune in the Dalby Magistrates Court District in the State of Queensland, JACOB JOHN ROBERT KILBY, a person at an operating plant, wilfully or recklessly did an act, namely activated the Iron Roughneck ST-80, that might adversely affect the safety of Gareth Leo DODUNSKI, a person at the plant, in contravention of section 704 of the Petroleum and Gas (Production and Safety) Act 2004,
AND the said act caused the death of Gareth Leo DODUNSKI.
Particulars
That at the place and date above mentioned:
1. Drill rig #185 was situated at a well with the identification number FV-13-14-9 (68430) located approximately 66 kilometres east of Injune in the State of Queensland,
2. Drill rig #l85 was "operating plant" within the meaning of that term in section 670(2)(a) of the Petroleum and Gas (Production and Safety) Act 2004 ("the Act"), in that it was a facility used to produce petroleum,
3. Drill rig #185 was a facility used to produce petroleum because:
a.it was a facility, in that it was something that makes possible the easier performance of an action;
b.it was used to produce, namely it was used to drill a well to facilitate the recovery of petroleum to ground level from a natural underground reservoir in which it had been contained or from which it was to be extracted; and
c.it was used to produce petroleum within the meaning of that term in section l0(l)(a) of the Act, namely it was used to recover to ground level as described in subsection b, a substance consisting of hydrocarbons that occur naturally in the earth’s crust,
4. On 23 June 2013, drill rig #185 was operating within the meaning of that term in section 672 of the Act, in that it was drilling a petroleum well,
5. Jacob John Robert KILBY (‘KILBY’) was employed by Saxon Energy Services Australia Pty Ltd ACN 137 534 993 (‘SAXON’) in the position of Driller, and was acting as a Driller at drill rig #185.
6. KILBY was a person at the operating plant,
7. Gareth Leo DODUNSKI (‘DODUNSKI’) was a Floorhand employed by SAXON and was acting as a Floorhand at drill rig #185,
8. At approximately 3.20 pm, KILBY and DODUNSKI were undertaking tasks at drill rig #185 which included the disassembly of the drill string used by drill rig #185,
9. DODUNSKI and Daniel Luke MULLINGS were engaged in attaching a dog collar to the drill string as part of the process of disassembling the drill string,
10. DODUNSKI was located between the drill string and the Iron Rougneck ST-80,
11. KILBY then activated the Iron Roughneck ST – 80 at drill rig #185,
12. By activating the Iron Roughneck ST – 80, KILBY wilfully or recklessly did an act that might adversely affect the safety of DODUNSKI at the plant, particulars of which are:
a.KILBY did an act, namely activating the Iron Roughneck ST – 80;
b.Activating the Iron Roughneck ST – 80 might adversely affect the safety of DODUNSKI because DODUNSKI was working on the drill rig floor in close proximity to the forward moving path of the Iron Roughneck ST – 80 and contact with the moving Iron Roughneck ST – 80 was likely to cause injury or death;
c.KILBY acted either wilfully or recklessly in that:
i.he activated the Iron Roughneck ST – 80 knowing that it would travel towards where DODUNSKI had been engaged in a task; and
ii.he activated the Iron Roughneck ST – 80 without seeking or obtaining visual confirmation that DODUNSKI was not in the forward moving path along which the Iron Roughneck ST – 80 would travel;
13. By wilfully or recklessly activating the Iron Roughneck ST – 80, KILBY contravened section 704 of the Act,
14. The said contravention by KILBY caused the death of DODUNSKI,
contrary to the Acts in such case made and provided."(emphasis original)
THE COMPLAINT OF PAUL KEVIN HARRISON of 61 Mary Street, Brisbane in the State of Queensland, a public officer within the meaning of section 142A of the Justices Act 1886 and the Acting Commissioner for Mine Safety and Health within the meaning of section 73BA of the Coal Mining Safety and Health Act 1999, made this 20th day of June 2014 before the undersigned, a Justice of the Peace for the said State, who says that on the twenty-third day of June 2013 at an operating plant located approximately 66 kilometres east of Injune in the Dalby Magistrates Court District in the State of Queensland, SAXON ENERGY SERVICES AUSTRALIA PTY LTD ACN 137 534 993, a person at an operating plant, wilfully or recklessly did an act, namely activated the Iron Roughneck ST-80, that might adversely affect the safety of Gareth Leo DODUNSKI, a person at the plant, in contravention of section 704 of the Petroleum and Gas (Production and Safety) Act 2004,
AND the said act caused the death of Gareth Leo DODUNSKI.
Particulars
That at the place and date above mentioned:
1. Drill rig #185 was situated at a well with the identification number FV-13-14-9 (68430) located approximately 66 kilometres east of Injune in the State of Queensland,
2. Drill rig #185 was ‘operating plant’ within the meaning of that term in section 670(2)(a) of the Petroleum and Gas (Production and Safety) Act 2004 (‘the Act’), in that it was a facility used to produce petroleum,
3. Drill rig #185 was a facility used to produce petroleum because:
a. it was a facility, in that it was something that makes possible the easier performance of an action;
b. it was used to produce, namely it was used to drill a well to facilitate the recovery of petroleum to ground level from a natural underground reservoir in which it had been contained or from which it was to be extracted; and
c. it was used to produce petroleum within the meaning of that term in section 10(1)(a) of the Act, namely it was used to recover to ground level as described in subsection b, a substance consisting of hydrocarbons that occur naturally in the earth’s crust,
4. On 23 June 2013, drill rig #185 was operating within the meaning of that term in section 672 of the Act, in that it was drilling a petroleum well,
5. Jacob Robert John KILBY (‘KILBY’) was employed by Saxon Energy Services Australia Pty Ltd ACN 137 534 993 (‘SAXON) in the position of Driller, and was acting as a Driller at drill rig #185,
6. KILBY was a person at the operating plant,
7. KILBY was a representative of SAXON at the operating plant within the meaning of that term in section 840 of the Act, in that he was an employee of SAXON,
8. SAXON, through its representative KILBY, was a person at the operating plant,
9. Gareth Leo DODUNSKl (‘DODUNSKI’) was a Floorhand employed by SAXON and was acting as a Floorhand at drill rig #185,
10. At approximately 3.20 pm, KILBY and DODUNSKI were undertaking tasks at drill rig #185 which included the disassembly of the drill string used by drill rig #185,
11. DODUNSKI and Daniel Luke MULLINGS were engaged in attaching a dog collar to the drill string as part of the process of disassembling the drill string,
12. DODUNSKI was located between the drill string and the Iron Rougneck ST-80,
13. KILBY then activated the Iron Roughneck ST – 80 at drill rig #185,
14. By activating the Iron Roughneck ST – 80, KILBY wilfully or recklessly did an act that might adversely affect the safety of DODUNSKI at the plant, particulars of which are:
a.KILBY did an act, namely activating the Iron Roughneck ST – 80;
b.Activating the Iron Roughneck ST – 80 might adversely affect the safety of DODUNSKI because DODUNSKI was working on the drill rig floor in close proximity to the forward moving path of the Iron Roughneck ST – 80 and contact with the moving Iron Roughneck ST – 80 was likely to cause injury or death;
c.KILBY acted either wilfully or recklessly in that:
i.he activated the Iron Roughneck ST – 80 knowing that it would travel towards where DODUNSKI had been engaged in a task; and
ii.he activated the Iron Roughneck ST – 80 without seeking or obtaining visual confirmation that DODUNSKI was not in the forward moving path along which the Iron Roughneck ST – 80 would travel;
15. By wilfully or recklessly activating the Iron Roughneck ST – 80, KILBY contravened section 704 of the Act,
16. KILBY’s conduct in activating the Iron Roughneck ST – 80 was engaged in for SAXON by KILBY within the scope of KILBY’s actual or apparent authority as an employee of SAXON,
17. Consequently, KILBY’s conduct in so activating the Iron Roughneck ST – 80 is taken to have been engaged in also by SAXON pursuant to section 840 (3) of the Act.,
18. SAXON thus contravened section 704 of the Act by wilfully or recklessly activating the Iron Roughneck ST – 80,
19. The said contravention by SAXON caused the death of DODUNSKI, contrary to the Acts in such case made and provided."(emphasis original)
The Appeals
The Appellants seek to appeal on the following grounds:
1. The prosecution did not prove the charge against the Appellant beyond reasonable doubt (and the Learned Industrial Magistrate erred in not so holding);
2. The Learned Industrial Magistrate made the following errors of fact:
(a)that a particular item of equipment, the ST-80 was a danger to any person in its "vicinity";
(b)there was a short lapse of time between the conversation between Mr Kilby's conversation with Mr Marshall and Mr Kilby activating the ST-80; and
(c)attaching no weight to the expert evidence of Associate Professor Dux, who had been called by the Defendants on the following bases:
(i)Associate Professor Dux described the interruption by Mr Marshall as occurring at a critical point in the sequence of tasks that Mr Kilby was required to undertake; whereas
(ii)Mr Kilby did not commence the task of commencing to operate the ST-80 until after the conversation with Mr Marshall was complete; and
(d)the opinions of Associate Professor Dux because they were based on assumptions of fact which were not sworn or proven.
3. The Learned Industrial Magistrate misconstrued the word "recklessly", as it is used in s 704 of the P and G Act by finding that Mr Kilby activated a particular item of equipment (the ST-80) "recklessly":
i.by activating it with a cognisance, apprehension or awareness of the risks associated with operating the ST-80, in combination with a failure to take steps to ameliorate those risks;
ii.as opposed to, or contrasted with, foresight of, or indifference to, the consequence that activating the ST-80, at the time relevant to the charge, "might adversely affect the safety of someone at the plant".
4. The Learned Industrial Magistrate erred by wrongly concluding that for the prosecution to prove that an act or omission was done or made "recklessly" within the meaning of s704 of the P and G Act it was unnecessary for the prosecution to prove that the act or omission was done or made in "conscious disregard" of the risk that safety of persons might be adversely affected by doing or making of the act or omission;
5. The Learned Industrial Magistrate's finding that Mr Kilby activated the Iron Roughneck "recklessly" was in error.
There is a further ground that relates only to the Appellant Saxon, namely Ground 6 in the Saxon application to appeal. That ground relates to the element of the offence which requires proof that the person accused of the offence did an act or made an omission, as defined, whilst "at an operating plant" at the time of the offence. Saxon contends that element cannot be satisfied in respect of Saxon because it is a corporation with no physical existence. It is submitted that the defendant corporation cannot be "at an operating plant". Saxon therefore contends that the Learned Industrial Magistrate erred in concluding that Saxon was capable of being convicted of the offence.
On 10 October 2019, leave was granted by consent for the Appellants notice of appeal to be amended to include the following further ground of appeal with respect to costs:
The Learned Industrial Magistrate ordered costs of legal representation to the prosecution when there was no power to make the order.
Application of Industrial Relations Act 1999
For the purposes of this appeal the Industrial Relations Act 1999 (IR Act 1999) applies.
The Industrial Relations Act 2016 (IR Act 2016) commenced on 1 March 2016 repealing the IR Act 1999. Section 1023 provides for the continued application of the IR Act 1999 to proceedings that were commenced before March 2016. Section 1023 of the IR Act 2016 provides:
1023 Existing proceedings
(1) This section applies if—
(a)before the commencement, a person started a proceeding under the repealed Act; and
(b)immediately before the commencement, the proceeding had not ended.
(2) The repealed Act continues to apply to the proceeding, and the proceeding must be heard and decided, as if the Industrial Relations Act 2016 had not commenced.
The Saxon and Kilby prosecutions were commenced by complaints filed on 23 June 2014. Accordingly, the IR Act 1999 applies to proceedings before the Industrial Magistrates Court and before this Court.
Nature of the Appeal
An appeal is a creature of statute. The nature of the appeal right conferred in any particular case therefore depends on construction of the statute concerned.[1]
[1] Fox v Percy (2003) 214 CLR 118, [20].
Section 341 of the IR Act 1999 appears in Chapter 9, Division 2 which provides for appeals from the Industrial Magistrate to the Industrial Court. The section relevantly reads:
341 Appeal from commission, magistrate or registrar
…
(2)A person may appeal to the court if dissatisfied with a decision of a magistrate in relation to a matter for which the magistrate has jurisdiction.
(3) The Court may –
(a) dismiss the appeal; or(b)allow the appeal, set aside the decision and substitute another decision; or
(c) allow the appeal and amend the decision; or
(d)allow the appeal, suspend the operation of the decision and remit the … cause … to the commission, an Industrial Magistrate or the registrar to act according to law.
The Appellants contend that the powers of the Court in an appeal under s 341(2) against a decision of an Industrial Magistrate are to be exercised regardless of error.
Section 348(1) of the Act provides that an appeal is by way of re-hearing on the record. Section 348 provides:
348 Nature of appeal
(1) An appeal to an industrial tribunal is by way of re-hearing on the record.
(2) However, the industrial tribunal may hear evidence afresh, or hear additional evidence, if the industrial tribunal considers it appropriate to effectively dispose of the appeal.
The Appellants submit that the Court's power to "hear evidence afresh" suggest that its Appellant powers are to be exercised regardless of error by the Court below. A distinction is drawn between an appeal under s341(2) and the jurisdiction of the Court under s561 of the Workers' Compensation and Rehabilitation Act 2003.
The nature of an appeal by way of rehearing was described by the High Court of Australia in Allesch v Maunz in the following way:
For present purposes, the critical difference between an appeal by way of rehearing and a hearing de novo is that, in the former case, the powers of the appellate court are exercisable only where the Appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error, whereas, in the latter case, those powers may be exercised regardless of error.[2][2] (2000) 203 CLR 172, [23].
In dealing with a similar issue in Fox v Percy, Gleeson CJ, Gummow and Kirby JJ said:
…The ‘rehearing’ does not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits. No such fresh evidence was admitted in the present appeal.
…On the one hand, the appellate court is obliged to ‘give the judgment which in its opinion ought to have been given in the first instance’. On the other, it must, of necessity, observe the ‘natural limitations’ that exist in a case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the ‘feeling’ of a case which an appellate court, reading the transcript, cannot always fully share…[3]
[3] (2003) 214 CLR 118, [22]-[23].
In Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission the majority of the court concluded:
It is common and often convenient to describe an appeal to a court or tribunal whose function is simply to determine whether the decision in question was right or wrong on the evidence and the law as it stood when that decision was given as an appeal in the strict sense. An appeal to this Court under s 73 of the Constitution is an appeal of that kind. In the case of an appeal in the strict sense, an appellate court or tribunal cannot receive further evidence and its powers are limited to setting aside the decision under appeal and, if it be appropriate, to substituting the decision that should have been made at first instance.If an appellate tribunal can receive further evidence and its powers are not restricted to making the decision that should have been made at first instance, the appeal is usually and conveniently described as an appeal by way of rehearing. Although further evidence may be admitted on an appeal of that kind, the appeal is usually conducted by reference to the evidence given at first instance and is to be contrasted with an appeal by way of hearing de novo. In the case of a hearing de novo, the matter is heard afresh and a decision is given on the evidence presented at that hearing.
Ordinarily, if there has been no further evidence admitted and if there has been no relevant change in the law, a court or tribunal entertaining an appeal by way of rehearing can exercise its appellate powers only if satisfied that there was error on the part of the primary decision-maker. That is because statutory provisions conferring appellate powers, even in the case of an appeal by way of rehearing, are construed on the basis that, unless there is something to indicate otherwise, the power is to be exercised for the correction of error. However, the conferral of a right of appeal by way of a hearing de novo is construed as a proceeding in which the appellate body is required to exercise its powers whether or not there was error at first instance. [4]
[4] (2000) 203 CLR 194, 203 [12]-[14].
While the appeal is by way of rehearing it is not an opportunity for a reworking of the trial to deal with the impediments thrown up by the Industrial Magistrates findings. As was said in Coulton v Holcombe:
… To say that an appeal is by way of rehearing does not mean that the issues and the evidence to be considered are at large. It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. …[5][5] Coulton v Holcombe (1986) 162 CLR 1, 7.
In Teelow v Commissioner of Police[6] the Court of Appeal was called upon to determine an appeal on sentence under section 223 of the Justices Act 1886. Section 223 provides as follows:
[6] [2009] 2 Qd R 489.
223 Appeal generally a rehearing on the evidence
(1)An appeal under section 222 is by way of rehearing on the evidence ("original evidence") given in the proceeding before the justices.
(2)However, the District Court may give leave to adduce fresh, additional or substituted evidence ("new evidence") if the court is satisfied there are special grounds for giving leave.
(3)If the court gives leave under subsection (2), the appeal is—
(a) by way of rehearing on the original evidence; and
(b) on the new evidence adduced.
Muir JA considered the principles to be applied on an appeal by way of rehearing under section 223 as follows:
A characteristic of an appeal "by way of rehearing" is that the appellate court, subject to its powers to admit fresh evidence, rehears the matter on the record of the court from which the appeal comes. In Scrivener v Director of Public Prosecutions, McPherson JA, referring to an appeal "by way of rehearing" under r 765(1) of the Uniform Civil Procedure Rules 1999, observed:"It is well settled that a provision that characterises an appeal to this Court as a 'rehearing' ordinarily refers to a rehearing on the record, and not to what is sometimes called a rehearing de novo: see Powell v Streatham Manor Nursing Home [1935] AC 243, 263. On such a rehearing the appellate court has power to draw inferences from primary facts, including facts found and facts not disputed, which is as complete as that of the primary judge: see Warren v Coombes (1979) 142 CLR 531, 537-541. On the other hand, an appeal under that form of procedure does not involve a rehearing of witnesses … Further evidence may be received on appeal, but only on special grounds: see r 766(1)(c) …”
It is a normal attribute of an appeal by way of rehearing that "the powers of the appellate court are exercisable only where the Appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error … At least that is so unless, in the case of an appeal by way of rehearing, there is some statutory provision which indicates that the powers may be exercised whether or not there was error at first instance."On an appeal by way of rehearing an appellate court can substitute its own decision based on the facts and the law as they stand at the date of the decision of the appeal.[7][7] [2009] 2 Qd R 489 [3]-[4].
More recently in an ex tempore judgment in Forrest v Commissioner of Police, Sofronoff P expressed the view that error need not be proved. His Honour said:
It has been said many times that such an appeal by way of rehearing requires an appellate Court to decide the case for itself. Although the reasoning of the Court from which such an appeal has been brought is relevant to be considered by an appellate tribunal, and it is sometimes said that it should be given appropriate weight and even great weight in particular cases particularly where credit is an issue, it is not the function of a court hearing such an appeal merely to consider whether or not the tribunal at first instance has made an error of fact or law. Nor is there an onus upon an Appellant to demonstrate the existence of an error of fact or law, although such a demonstration will go a long way towards winning an appeal.[8]
[8] [2017] QCA 132 4-5.
However, in Storry v Commissioner of Police, Sofronoff P and McMurdo JA agreed with Bond J that for an appeal to succeed the Appellant must establish some legal, factual or discretionary error. Bond J wrote:
The learned District Court judge then recorded, correctly, that on the appeal he was required to conduct a real review of the trial, and the learned magistrate’s reasons, and make his own determination of relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the learned magistrate’s view, but that, nevertheless, in order to succeed on such an appeal, the Appellant must establish some legal, factual or discretionary error.[9][9] [2018] QCA 291, [14].
In my view, on an appeal by way of rehearing, it is necessary for this Court to consider the evidence and make up its own mind, particularly in relation to matters involving the drawing of inferences from primary facts.[10] In the proceeding before me, the onus is on the Appellants to show that there was some error in the decision under appeal.[11]
[10] Fox v Percy (2003) 214 CLR 118 at [22] – [25]; Rowe v Kemper [2009] 1 Qd R 247 at [3] – [5]; Commissioner of Police v Al Shakarji [2013] QCA 319 at [7]; Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679 at [43], [57]; McDonald v Queensland Police Service [2017] QCA 255 at [47].
[11] Allesch v Maunz (2000) 203 CLR 172 at [23]; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [16]; Walker v Davlyn Homes Pty Ltd [2003] QCA 565 at [9]; Shambayati v Commissioner of Police [2013] QCA 57 at [23]; White v Commissioner of Police [2014] QCA 121 at [8]; McDonald v Queensland Police Service [2017] QCA 255 at [47].
The Facts
The facts have been conveniently outlined in the submissions of the Appellants. Save for several amendments proposed by the Respondent (which I have incorporated) I adopt the Appellants outline as follows.
On 23 June 2013, the Rig 185 crew were tripping out. In the crew were Mr Kilby (the driller), Mr Dixon (the Derrickhand), Mr Jenner (who was in the loader at the bottom of the V-Door at ground level) and the floor crew comprising Mr Daniel Mullings and Mr Gareth Dodunski ("the crew").
A meeting was held at 12:38pm. Thereafter, the crew commenced the process of tripping out. There were "pre-job safety meetings" at 1:45pm and 2:45pm, where the processes of "running in hole" and "pulling out of hole" were discussed respectively, for the specific depths reached at that point of the drilling process. Mr Kilby told police that the incident was at about 3:30pm, after the crew had just had a "smoko". By the time of the incident, they had been undertaking that task for three hours. The drill collar was not reached until just before the incident.
"Tripping out" or "Pulling out of Hole" or "POOH" are the various terms used to describe the process of pulling the drill string out of the drill hole. The drill string consists of numerous lengths of drill pipe, below which are the drill collars and the bottom hole assembly. The lengths of pipe in the drill string are screwed together. As the drill string is pulled out, each length of pipe is unscrewed and lowered down onto the catwalk. The process has substantial involvement of machines. The drill string is pulled out of the hole by the "top drive", which is operated by the driller. Elevators latch onto the drill string up at the top drive.
The function of the ST-80 during this process is to break the connections between each length of pipe. The driller activates the ST-80 and causes it to extend to well centre by pressing the "auto break" button on the HMI screen in the doghouse ("the relevant button on the HMI screen"). Once activated, it takes the ST-80 6.8 seconds to extend from its home position to well centre. After the ST-80 has disconnected from the drill string the length of drill pipe held by the top drive, the elevators then kick the disconnected length of pipe out towards the skate. The skate then lowers the length of pipe out through the V-Door down onto the catwalk. The skate was operated by the Derrickman who sat to the right of the Driller in the doghouse and whose job it was to operate the machines that took the pipe off down onto the catwalk.
The ST-80 and the top drive are both operated by the driller using controls in a room called the doghouse. The driller sits on a chair facing the rig floor through a glass window. Mr Kilby was the driller on the day in question. To the driller's right is the derrickman, who operates the skate. On the day in question, that person was Jared Dixon.
An intermediate step that was required before the ST-80 extended to well centre was to "set slips". The setting of slips is necessary because without them the drill string would fall back down once it is disconnected from the length of pipe held by the top drive. Once installed, "slips" take the weight of the drill string and stop it falling back down the hole.
There are two types of "slips". The first is manual slips. They are the chain like device wrapped around the drill string.
The other type of slips are mechanical, or automatic, slips. For the automatic slips to be used, they must be attached to a hydraulic connection to the rig floor. Once connected, they may be set by the driller by the functioning of a joystick in the doghouse. Installing automatic slips is quite time consuming and is not used when pulling out the length of drill string that was being pulled out by the Rig 185 crew on 23 June 2013.
Manual slips are installed by workers on the rig floor. This is a quick "in and out, operation". On the day in question, the workers on the rig floor were the deceased, Gareth Dodunski, and Daniel Mullings.
Once the slips are installed, the driller would operate the top drive to take the weight off the drill string so that it was taken by the slips.
The process of tripping out involves a series of steps that are repeated numerous times: The top drive pulls up the drill string until a join in the drill pipe is reached. The slips are then installed. On the day in question, manual slips were used, so they were installed manually by the workers on the rig floor. The driller would then operate the top drive to take the weight off the drill string so that it was taken by the slips. The driller then presses the relevant button on the HMI screen and the ST-80 extends to well centre in 6.8 seconds. The ST-80 breaks the connection between the drill string and the length of drill pipe held by the top drive. The disconnected length of pipe would then be lowered onto the catwalk.
The process would be repeated numerous times until the drill collar was reached. At that point, there would be a change in the process. When that stage is reached it is necessary to use the "dog collar" as well as the slips. That is necessary because the shape of the drill collar is different to that of the drill pipe.
The risk which the ST-80 posed to workers
The evidence was that the risk which the ST-80 posed to workers was a risk of a crush injury which arose when they positioned themselves between the drill string and the ST-80.
There was an established practice understood by all workers that when workers were required to work between the ST-80 and the drill string:
(a) workers on the rig floor were not to work in the area between the drill string and the ST-80 without pressing the emergency stop button (E-stop); and
(b) the ST-80 would not be activated without the driller first having obtained visual confirmation from the floor crew;
However, the evidence at trial was that it was a common occurrence for the practice not to be observed. People were complacent. Mr Dixon recalled Mr Kilby having to remind floor crews about it.
Mr Kilby's account of the incident
The prosecution put into evidence a number of statements by Mr Kilby giving his account of the incident which were undisputed. Those statements were summarised by the Learned Industrial Magistrate as follows.
Evidence of Sergeant Mitchell who attended at the scene on the day of the incident: He gave evidence that he obtained an unsworn statement from Mr Kilby on the day of the incident, which was contemporaneously written into his police notebook and signed by Mr Kilby. The contents of the notebook were not challenged in cross examination. In evidence Sergeant Mitchell observed that "everyone I spoke to was emotionally distressed". Mr Kilby relevant told the officer:
I commenced work at 12 midday at the rig site. My role is the driller. I am responsible for the drill and crew. I work the controls of the drill as per the program set by Santos. At about half past three just after smoko we were pulling out the string and just got the drill collar. I set slips and Gareth and Dan went in to fit the dog collar, they went in on their own accord. I was speaking with Aaron who was trying to find the day lease hand. I then feel like I have fucked up and gone into auto pilot and hit the button for the ST-80 to come out and break the connection. As soon as I hit it, I saw the boys there. I was trying to stop it, but you can't stop it once you have started it. The boys should have hit the emergency stop as soon as they went in which would not allow the ST-80 to be operated…
I then gave this statement to police at 18. 45
Evidence of Mr Ian Bartels, a senior inspector of the Queensland Petroleum and Gas Inspectorate. Mr Bartels gave evidence that he, together with his colleague, Mr John Barron, interviewed Mr Kilby the day after the incident at 3.09pm. During that unsworn interview Mr Kilby stated:
I was rung from the rig manager’s office looking for the day lease hand so I tried calling him on the intercom and hoped that he would have heard it and gone to the office. Continued doing what we’re doing. We just… finished pulling the heavy weights which don’t require a dog collar, just break them out straight away. Then got to the first drill collar, I’ve set slips, in this time Aaron, the superintendent, has come up to enquire as to where the day lease was. I briefly stopped doing what I was doing, said I’d called him on the intercom, don’t know where he is. Gone back to the job and gone straight into break out without realising that the boys had already gone in there to put the dog collar on. And as soon as I’ve realised I’ve trying [sic] to hit stop but there is no stop button… should have been hitting retract which is on the other side of the screen. And in this time I’m trying to shout but they can’t hear me ‘cause I’m in the doghouse and that is when the ST-80 collected Gareth and killed him…
… depending what you do, you press break or make and it will do the same thing, it will come out to hole centre. And then you go position confirm, saying that you are where you want to be. But once you hit make or break, that’s it, it comes out…
… in this case I hit break because… the intention was to break the joint.
… if you are quick enough you can hit retract, which in that moment in time I wasn’t thinking retract, I was thinking off and there’s an off button right next to break and I’m hitting it with no effect. And… our policy is we’re supposed to have the emergency stop on whenever the boy are in there and Gareth was the best at doing that… And this one time he didn’t put it on.
… I just finished talking to Aaron and I’ve gone straight to what my next step is which is to break out the joint and then as soon as I’ve touched it I’ve realised the boys have… gone in there without looking at me for confirmation…
When asked during the interview by Mr Bartels what the normal process would be Mr Kilby stated "Well once they’re finished… inside there then it’s all clear for me to do it so they pull the button off and then I’m able to activate it." Mr Bartels then asked Mr Kilby "Okay so you never push the button first waiting for him to pull it off?" to which Mr Kilby responded "No. Well it, they push it from out there, I’m inside the doghouse.”
When asked during the interview by Mr Bartels whether there was any visual indication on his screen as to whether the E-stop had been pushed Mr Kilby stated "Yeah there’s a, it will come up say, well it’d be like in red at the top, it’s like a little thing saying E stop."
When asked during the interview by Mr Bartels whether it was normal for Mr Dodunski to stay between the ST-80 and the drill string (i.e. in the crush zone) as opposed to standing to the side Mr Kilby stated "No that’s fairly normal for him to be where he was."
Evidence of Mr McMillan West, a crew leasehand at the time: Mr West spoke with Mr Kilby on the evening of the incident. Mr Kilby told him "I wasn’t looking at what I was doing. I was talking to someone inside the dog house and activated the [ST-80] without looking what was in front of it. I then turned back around and saw what was about to happen to Gary and stood up and just started screaming at the glass.” Mr West’s evidence was not challenged under cross examination.
Evidence of Mr Ashley Jenner, a motor hand on the rig at the time: Mr Jenner gave evidence that he spoke with Mr Kilby the day after the incident and that Mr Kilby told him that he was distracted by Aaron Marshall and was devastated. Mr Jenner’s evidence was not challenged under cross examination.[12]
[12] Harrison v Kilby & Anor [2018] QMC 6 [31]-[37] (italicised and bolded in original).
Mr Mullings' account of the incident
Mr Mullings gave the following undisputed account of the events up to the point of the incident as follows:
Well, we’d obviously just set slips. Gareth went and grabbed the dog collar. We both went over to the drill string and knelt down and started to – to tie it up. I was on the outside of the drill string, between the drill string and the catwalk. Gareth was in between the drill string and the ST-80. I was holding the two green handles you can see in the picture there, kneeling down. We were both kneeling down, obviously, looking at what we were doing. I looked up just – and noticed the ST-80 was – was coming. As soon as I realised, I grabbed Gareth’s right arm and tried to pull him out of the way. But it had already caught his left arm and head and it pulled him in. I stood up pretty much straight away and, you know, a bit frantic, looked over into the dog house at Jake and Jarod. They were both trying to stop the ST-80 and try get it out…Once it had reached its well centre, obviously, they were able to retract it. When they retracted it, Gareth obviously fell down. He fell down onto the slips. I grabbed and just tried to pull him out of the way.[13]
[13] T1 73-74.
Mr Dixon's account of the incident
Mr Dixon gave the following undisputed account:
(a) at the time of the incident, he was inside the doghouse with Mr Kilby and Mr Marshall who were having a conversation;
(b) he could not recall what was said in that conversation or the duration of it;
(c) he could not say whether Mr Kilby physically turned to speak to Mr Marshall;
(d) he did not see the slips set or the dog collar put on because his focus was on things away from the drill floor. At the time of the incident, the second-to-last heavyweight drill pipe connection had been broken and was being removed. The last heavyweight drill pipe was being pulled out, which was then to be followed by the cross-over and drill collar. This was when the slips were set and the dog collar was about to be put on. However, Mr Dixon didn't see the dog collar being put on because his attention was directed elsewhere.
(e) he heard Mr Kilby swear and then turned to see the ST-80 two or three feet away from Mr Dodunksi, who had his back to the machine;
(f) he could hear Mr Kilby yelling out but could not recall whether Mr Kilby was using the intercom machine.
Factual Issues at Trial
When workers went into the path of the ST-80
It was argued before the Learned Industrial Magistrate that the evidence left open the reasonable possibility that, when Mr Kilby activated the ST-80, it was not in his contemplation that, in doing so, he might adversely affect the safety of someone at the plant. This was principally based on:
(a) Mr Kilby's own (undisputed) description of his state of mind after the conversation with Mr Marshall (i.e. that he had been distracted and gone into "autopilot" and did not realise Mr Dodunksi was in the path of the ST-80 until after it had been activated); and
(b) the undisputed evidence of his panicked reaction upon realising where Mr Dodunksi was.
In addition to the above bases, it was also submitted that the evidence left open the reasonable possibility that on the day in question until shortly before the incident no worker in the crew went into the area between the drill string and the ST-80 or activated the E-stop. It was argued that: in the three hours prior to the incident the crew had been carrying out the repetitive process in which Mr Kilby pulled the drill string out with the top drive until a join was reached; Mr Dodunksi and Mr Mullings would install the slips (without going in the area between the drill string and the ST-80 or activating the E-stop); Mr Kilby would press the relevant button on the HMI screen, the ST-80 would come out of its home position and break the joint; and Mr Dixon would use the skate to lower the disconnected length of pipe onto the catwalk and the process would be repeated.
It was submitted that after the conversation with Mr Marshall, Mr Kilby was (momentarily) distracted and went "into autopilot" and straight to the "next step" which he had been performing in the three hours previously, i.e. pressing the auto break button on the HMI screen after slips were set, forgetting that the "next step" after the drill collar was reached and the slips were set was for Mr Dodunski and Mr Mullings to install the dog collar when at least one of them would position themselves in the path of the ST-80.
Relevant to the above argument was the question when workers might position themselves in the forward moving path of the ST-80. That involved the question whether a worker could be in that position when setting manual slips or installing the dog collar:
(a) Mr Mullings gave evidence that it was necessary for a worker to position themselves between the drill string and the ST-80 in order to install the drill collar, but not when installing slips.
Mr Mullings' evidence in chief also included:
i.that they had been using the E-stop for installing the slips, in the three hours prior to the incident; and
ii.that the E-stop would be activated when they "had to" enter the derrick, "which was most of the time, depending on the activity".
(b) Mr Dixon gave evidence that commonly the dog collar would be installed by two workers, with one facing the ST-80 and the other one the other side of the drill string with their back to the ST-80. He did not agree that manual slips could be set without going into the exclusion zone.
Mr Dixon's evidence in chief also included:
i.that two men put in the manual slips and there is no particular orientation as to where they should sit, as it depends on where the drill pipe is sitting. Accordingly, it was "sometimes" necessary for workers to go between the drill string and the ST-80 to install the slips.
ii.Mr Dixon gave evidence that "you'd have to engage the E-stop all the time, so I'm saying yes, because you'd have to push the E-stop to stop it from extending and extracting" [sic retracting]
iii.Mr Dixon accepted that sometimes it was possible to avoid going into the exclusion zone to set the manual slips, however that was not his general experience, and even then, the E-stop would still be used.
(c) Mr Paul Beswick, the rig manager, said that workers need not position themselves between the drill string and the ST-80 to install the dog collar.
Mr Beswick's evidence also included:
i.that it was not necessary for workers to position themselves between the drill string and the ST-80 to install the slips;
ii.in respect of installing the dog collar, even though it was not necessary in his view, he had seen people installing the dog collars from between the drill string and the ST-80; and
iii.the task of installing the dog collar would require the pressing of the E-Stop (and thus entering the exclusion zone to do so) in any event.
(d) Mr Ashley Jenner gave evidence that it was unnecessary to stand between the drill string and the ST-80 when installing slips.
Mr Jenner's evidence also included:
i.that the E-stop would need to be pressed (and therefore the exclusion zone entered) for setting the slips and installing the dog collar.
The only witnesses who gave evidence about whether any worker had positioned themselves in the forward moving path of the ST-80, from the time the crew commenced the process of tripping out until the incident, were Mr Mullings and Mr Dixon.
Elements of the Offence
Before venturing into a consideration of the relevant case law regarding the construction of the word "reckless" it is necessary to first consider the elements of the offence. The elements of s704 of the P and G Act are as follows:
(a) a person;
(b) at an operating plant;
(c) did an act or made an omission;
(d) that act or omission might adversely affect the safety of someone at that plant;
(e) the person did that act or made that omission either:
(i)wilfully; or
(ii)recklessly.
It is not in contention that at the time of the act, namely the activation of the ST-80, Mr Kilby was a "person at the operating plant" and therefore had direct liability for that act under s704 of the P and G Act.
The offence contains both a physical and a mental element. The physical element is that the act or omission might adversely affect the safety of someone at that plant. The mental element is the act or omission was done or made either wilfully or recklessly.
Whether Mr Kilby did the act with the state of mind necessary to establish the mental element of the offence is the key issue for determination in both the Kilby and Saxon appeals.
Construction of the word "recklessly"
A central finding by the Learned Industrial Magistrate was a rejection of the defence's contention that recklessness requires "not only an awareness of the possibility of risk but the further mental element of 'consciously disregarding' those risks". The Learned Magistrate reasons were as follows:
The offence Mr Kilby confronts involves the mental element of doing an act recklessly, but it does not involve an element of intentionally risking harm being done to another. The relevant intended ‘act’ under s. 704 of the PGPS Act is the operation of the ST-80, not an act intended to harm such as murder or grievous bodily harm. I note that the defence argues that cases, such as Towle v R which involved offences of culpable driving causing death and negligently causing injury, run contrary to this construction of the word ‘recklessly’ under the PGPS Act. At first blush this argument has some appeal because, like s. 704 of the PGPS Act, the offences in that matter did not involve an intention to harm or risk harm. However the offences in Towle:
1. are ones of gross criminal negligence involving an objective test of foreseeability of harm;
2.are ones where the ‘conscious disregard’ of a known risk was considered by the court to be an aggravating factor, rather than an element of the offence;
3. was decided before the High Court’s decision in Aubrey v R.
The defence further argued that to remove the element of ‘conscious disregard’ from the offence under s. 704 of the PGPS ACT would, in effect, render the defendant culpable for a negligent act, rather than a reckless one. I don’t agree with that submission. The test for negligence is an objective one based on the foreseeable and probable consequences of the actions of a reasonable person. Whereas for recklessness, it is a subjective one based on the possible consequences in the mind of the defendant at the time the act is done.
Accordingly, I find that to do an act recklessly under s. 704 of the PGPS Act means to do an act, whilst at that time being cognisant of the risks associated with that act, but without the need to consciously decide to risk harm being done. For these reasons I find that it is not necessary for the prosecution to prove that the defendant consciously disregarded the risks, merely that he apprehended that there were risks at the time that he activated the ST-80.
The court can have regard to the circumstances, probabilities and evidence of what the defendant did and said at the time to determine, beyond reasonable doubt, whether he must have thought of the risk. As noted by Lord Bingham in R v G.
Similarly with recklessness: it is not to be supposed that the tribunal of fact will accept a defendant’s assertion that he never thought of a certain risk when all the circumstances and probabilities and evidence of what he did and said at the time show that he did or must have done.[14]
[14] Harrison v Kilby & Anor [2018] QMC 6, [60]-[64] (citations omitted).
The Appellant submits that there are two fundamental flaws in the Learned Industrial Magistrate's formulation of a reckless state of mind for the purposes of the offence.
First, the cognisance, apprehension or awareness involved in her Honour's formulation of a reckless state of mind for the purposes of s704 of the P and G Act is a "cognisance" in the sense of having knowledge of the risks, as distinct from having the possibility of adversely affecting someone's safety specifically in contemplation at the time of activating the ST-80. It is a cognisance, apprehension or awareness of the risks associated with operating the ST-80 and not foresight of the particular consequence prescribed by the statute.
Secondly, her Honour's conclusion that cognisance, apprehension or awareness of "the risks associated with operating the ST-80" will constitute recklessness if it is accompanied by a failure to ameliorate those risks, which is the type of formulation that is appropriate to negligence cases and not recklessness.
The Appellants submit that notwithstanding that Mr Kilby was aware of the risk of a crush injury in relation to the ST-80 it does not constitute the state of mind required to establish recklessness for the purposes of s 704 of the P and G Act.
The Respondent accepts that the culpable state of mind must exist at the time of the act is undertaken.
On the Appellants argument, what is required is foresight, at the (very) time of activating the ST-80, that doing so might adversely affect someone's safety. The Appellants submit that a person who is not thinking that there might be someone in the ST-80's path, when the ST-80 is activated, cannot therefore be (at that moment) thinking that activating the ST-80 might adversely affect the safety of that person.
The Appellant contends that a person who has a positive belief that no one is in the path of the ST-80 cannot be said to be reckless in those circumstances because they positively believe that no one is in danger of being injured by the ST-80. It was argued by the Appellant that on the Learned Industrial Magistrate's formulation, a person will have acted recklessly if they, despite their belief that no one is in the path of the ST-80, activate the ST-80 and do not take any steps to ameliorate the risk associated with operating the ST-80.
The Appellant submits that it is the "lack of care for the consequences" which constitutes the mental element of recklessness and may involve:
· Awareness, or foresight, of the possible consequences and proceeding regardless (foresight recklessness) or
· A lack of awareness of the possible consequences, with the additional element of not caring, i.e. indifference to what those consequences are (indifference recklessness)
It is said that the common element in each of the above formulations is that each constitute a manifestation of a lack of care for the consequences of the relevant act or omission.
The Appellant submits that it is clear that Mr Kilby did care about the consequences which is evidenced by his panicked and horrified reaction immediately upon realising Mr Dodunski was in the path of the ST-80. They argue that this is not a case of indifference recklessness and that the issue argued before her Honour was whether Mr Kilby's act was accompanied by foresight recklessness.
Recklessness is not defined in the P and G Act nor is it an element of any Criminal Code offence. It is therefore necessary to look to the jurisprudence in other jurisdictions, albeit drawn from different factual and statutory contexts, for assistance in ascertaining the meaning to be given to "recklessness" in s 704 of the P and G Act.
The Appellants submit that within the criminal context, it is a fundamental feature of "recklessness" that it must involve a subjective foresight on the part of the accused.
In Dreezer v Duvnjak, it was said:
The Australian authorities take approaches which have an underlying common feature, namely that recklessness is doing an act whilst contemplating the chance of it having the relevant consequence or quality with indifference to that consequence or quality. The differences in judicial approach have been as to the nature of the chance, it having been described as a probability, a substantial risk and possibility. [15]
[15] (1996) 6 Tas R 294-300.
Aubrey v The Queen[16] determined that the degree of foresight that is necessary to establish recklessness is foresight of the possibility of harm rather than the probability of harm. In Aubrey, the Appellant engaged in unprotected sexual intercourse with the complainant between January and July 2004 in circumstances where the Appellant had been diagnosed as, and therefore knew that he was, HIV positive. The High Court had to consider a charge of "maliciously" causing the complainant to contract a grievous bodily disease under the Crimes Act 1900 (New South Wales). Maliciously was defined to include acts "done recklessly or wantonly". The Court holding that the definition was designed to embrace the notion of recklessness recognised in R v Welch of "foreseeing the possibility of consequences and proceeding nonetheless".
[16] (2017) 260 CLR 305.
In Banditt v The Queen[17] the High Court was concerned with the meaning of "reckless" in s 61R of the Crimes Act, which provides that a person who had sexual intercourse with another person without the consent of the other person and who was reckless as to whether the other person consented was to be taken to have known that the other person did not consent. Gummow, Hayne and Heydon JJ stated that there was a need to accommodate the term " reckless " as it appeared in this provision to the requisite mental element, that is, knowledge of absence of consent. Their Honours considered that the following comments of Professor Sir John Smith with respect to the 1976 UK legislation, which was introduced following the decision of the House of Lords in R v Morgan [1975] were on point in construing s 61R:
If D is aware that there is any possibility that P is not consenting and proceeds to have intercourse, he does so recklessly.[18]
[17] 224 CLR 262, [33].
[18] UKHL 3; [1976] AC 182.
[169]After considering Kelly, the Full Bench in Fitzgerald concluded:
Although the provision considered by the Court referred to representation "in any proceeding”, which expression would generally be taken to refer to any application to a court in its civil jurisdiction for its intervention or action, the Court did not apparently regard it as operating more widely than the provision applying to a "hearing or determination"considered by Higgins J in Waterside Workers Federation v. Commonwealth Steamship Owners' Association, and considered its operation only in the context of an actual appearance before the tribunal by a lawyer. That may be explicable by the fact that in that era, the adduction of evidence and the making of submissions was done almost entirely in court and there was minimum scope for "representation"outside the courtroom setting.[75][75] Ibid [41].
[170]I accept that the "costs of representation" encompasses those activities usually associated with litigation as expressed in Rule 15 of the Bar Association of Queensland's Barristers' Conduct Rules and is not limited to just courtroom advocacy.
[171]However, the expression "costs of representation" as used in s319(3) of the IR Act does not, in my view, extend to disbursements.
[172]It is submitted that in light of s319(2)(c)(iii), the costs ordered by the Learned Industrial Magistrate ought to be set aside and substituted with a new costs order. I agree.
It is ordered that:
1. The appeals are allowed;
2. I will hear the parties as to the form of orders to be made.
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