Kirk & Anor v Industrial Relations Commission of NSW & Anor
[2009] HCATrans 238
•30 September 2009
[2009] HCATrans 238
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S106 of 2009
B e t w e e n -
GRAEME JOSEPH KIRK
First Appellant
KIRK GROUP HOLDINGS PTY LTD
Second Appellant
and
INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES
First Respondent
WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR CHILDS)
Second Respondent
Office of the Registry
Sydney No S347 of 2008
No S348 of 2008
B e t w e e n -
KIRK GROUP HOLDINGS PTY LTD
First Applicant
GRAEME JOSEPH KIRK
Second Applicant
and
WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR CHILDS)
Respondent
FRENCH CJ
GUMMOW J
HAYNE J
HEYDON J
CRENNAN J
KIEFEL J
BELL J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON WEDNESDAY, 30 SEPTEMBER 2009, AT 10.19 AM
(Continued from 29/9/2009)
Copyright in the High Court of Australia
__________________
FRENCH CJ: Yes, Mr Hatcher.
MR HATCHER: Thank you, your Honour. Yesterday I was handed a line by your Honour Justice Heydon. When one is handed a line from the Bench one is always anxious to ascertain whether it is a lifeline or is attached to an anchor. Our client has been disposed to accept it as a lifeline and, accordingly, we seek leave to amend the application for special leave to appeal in matter 348 of 2008.
GUMMOW J: What page is that, Mr Hatcher?
HEYDON J: The draft notice of appeal is page 1251.
MR HATCHER: I have handed up a form of amended application for special leave and an amended draft notice of appeal in that matter.
FRENCH CJ: Thank you.
HEYDON J: Ground 2(c) is the new one?
MR HATCHER: Yes, your Honour. If it please the Court, we say that there is power for this Court to grant that relief in those proceedings by reason of the judgment of this Court in Crampton. Can I make it clear that we do not submit that what took place before the Industrial Court was done otherwise than with our client’s consent. That consent matters not for the reasons your Honour Justice Heydon observed yesterday, but we do make it clear that our client did actively participate in what took place.
FRENCH CJ: Is the amendment opposed?
MR SEXTON: It is not, your Honour.
FRENCH CJ: Yes, you have leave to amend accordingly.
MR HATCHER: Thank you, your Honour. We also seek leave to amend in matter 106, and the Court should also have an amended notice of appeal in 106. It does not seek to alter the relief because certiorari was sought in those proceedings, but it inserts a new ground. That is a ground that was not before the Court of Appeal, in the proceedings before the Court of Appeal. We press this with some real hesitation. It cannot be said, at least on the brief reading we have had of Crampton, that Crampton is authority for the power of this Court to deal on appeal with a matter that had not been before the Court below.
HEYDON J: What is the reference to Crampton?
MR HATCHER: I am sorry, your Honour. It is (2000) 206 CLR 161. It picked up Giannarelli v The Queen (1989) 168 CLR 69. Essentially, as we appreciate the Court’s reasoning on appeal, this Court can exercise the powers of the court below and because an appeal is in the court below as by way of rehearing that court had power to entertain any additional ground. I am not sure that it can be said that that reasoning applies with equal force to the proceedings which were before the Court of Appeal in its original jurisdiction seeking relief by way of certiorari. That is why we press that application with some hesitation and I am alerting the Court to our concerns.
FRENCH CJ: Mr Solicitor.
MR SEXTON: It is not opposed, your Honour.
FRENCH CJ: Yes. The amendment is allowed.
MR HATCHER: May it please the Court. We of course observe – and this is perhaps the reason for my cryptic reference to anchors at the outset, that it would be cold comfort to our client to go back and be retried on the law as it is presently applied by the Industrial Court. There could be no real satisfaction that it would result in any different outcome.
Can I then turn to the matters that were raised with me by your Honour Justice Gummow yesterday as to the position in relation to misdemeanours or summary offences at Federation and, your Honours, I submitted yesterday the historical materials filed by the Attorney for Victoria. They do traverse the subject. Unfortunately last evening there was a shortage of library space in the sense that the footnotes could not be followed through, so it not always clear where the learned author’s authority comes for some of the propositions he advances, but nonetheless, the first tab in the historical materials provided is an extract of the work by Mr J.M. Bennett, A History of the Supreme Court of New South Wales published by the Law Book Company in 1974. If the Court has that work, at page 182 the learned author says:
Until the passing of the Criminal Appeal Act of 1907, 7 Edw. VII c.23, the extraordinary state of criminal law in England was that: “there was no possibility of questioning the ruling of the judge on a point of law except with his leave; and, except by motion for a new trial (which was only granted in the case of misdemeanours), there was practically no way of questioning the verdict of the jury on the facts. All that could be done ‑ ‑ ‑
GUMMOW J: They are talking about jury trials, you see. That is my point.
MR HATCHER: Yes. But on misdemeanours or summary offences there was an appeal ‑ ‑ ‑
GUMMOW J: Exactly, so what is the use of this?
MR HATCHER: The author continues in the next paragraph:
When the general principles of the Act were adopted in New South Wales in 1912, it was fairly said that: “for years the state of the law in New South Wales with regard to the right given to criminals to get revision of sentence or to get inquiries, was far in advance of the state of things in England. For many years in this country a prisoner had a right, where any points of law were reserved on his behalf at the trial, . . . to appeal to the Full Court”. There was also available a remedy under section 383 of the Criminal Law Amendment Act, 1883, which provided a rudimentary form of criminal review. Those, and related provisions affecting reserved questions of law, writs of error and new trials, were consolidated in sections 470 to 475 of the Crimes Act, 1900.
The Crimes Act 1900 provided, firstly, at 468 it should be observed that the effect of reversing a judgment for a felony was dealt with, 470 allowed questions to be reserved, effectively appealed by a stated case, 471 dealt with writs of error and 474 made provision for new trials.
CRENNAN J: What about the position with something like a defective indictment or defective charges? Say the charges were bad for duplicity, could a writ of prohibition be sought in that context before the trial got underway?
MR HATCHER: Your Honour, my understanding is, yes. What we have been looking for and we thought we had found was a case where the Factories, Shops and Industries Act had been considered. We have found some cases early after Federation where Factories, Shops and Industries Act cases came before this Court and, of course, they are the closest equivalent to what we are dealing with, but we have not found one at the turn. One of the cases we did find at the turn concerned a Warden’s Court. and that was the case of King v Hay (1899) 15 WN 306. It should be said that this is on a summons to recover possession of a mining tenement. Justice Stephen says at page 307:
I am of opinion that this mandamus ought to go. It is quite clear that the applicant has not been allowed to go into the defence that he wishes to raise, and a mandamus must issue to compel the Warden to entertain that defence, but not to receive any particular piece of evidence. It has been objected that there is another remedy open to the applicant. There is, however, no other tribunal which can determine the matter at the stage in which the case now is. The time for appeal has not yet come; and the fact that the appeal should be a rehearing does not affect the matter if the applicant has been deprived of having his defence heard at all.
So it appears that the prerogative relief was available notwithstanding the existence of an appeal. Certainly that appears to have been the assumption upon which the constitutional debates went forward. In the Victorian materials again, at tab 5 there are some extracts of the constitutional debates. At page 332 Mr Dobson says in the second column:
In Tasmania we have no appeal in certain mining cases, and there may be other colonies which have no appeal in other cases. I think the appeal should be given in all cases where the state gives an appeal itself. You do not want to interfere with the local law, and confer an appeal from our Supreme Court where we do not grant such an appeal now. I would ask Mr Barton and Mr O’Connor whether it is meant under this clause that an appeal will lie in any criminal case? The word “sentences” is used. That may mean a sentence of condemnation in an admiralty suit, but does it also mean an ordinary sentence in a criminal case?
He proceeds further down the page after mentioning the sums of money involved in Privy Council cases –
but I do not know that we should give the Federal Parliament the right to say that you shall not have an appeal in an admiralty case, and you shall have an appeal in a criminal case. I think the Constitution should decide these matters.
Mr O’Connor replies –
The words in clause 74 are as wide as possible. They cover every possible species of decision, civil or criminal.
Mr Isaacs makes the observation –
I think they are the same as in the Privy Council orders.
The Privy Council orders, of course, extended to all sentences.
If I could then travel to page 1886 in the extract. Mr Barton, speaking in the right‑hand column, talks of appeals to the Privy Council:
and appeals can only be taken from the High Court or from the court of a state when the cases come within certain limits, and if in addition to that the Parliament is given the right to take away appeals, then the right might be limited not only on the side of the Privy Council, but also on the side of the High Court. The state court would really be the final court of appeal. What I object to is the retention of words which would enable Parliament so to cut down the jurisdiction of the High Court in appeal cases as to leave, in some cases, a person who has a right practically without any remedy by way of appeal.
The attention was ensuring all cases could get to the High Court. Mr Isaacs continued towards the bottom of the page:
I would point out, also, that if the state Legislature chooses to say that a decision of the Supreme Court of the state shall be final and conclusive, and without appeal, in any particular state matter, yet under the terms of this clause the provisions of that state legislation would be nugatory in that respect, and they would have a right of appeal under the Constitution. Surely we do not intend to do that. But let us carry the matter a little further.
He notes over the page that someone who appeals to the Supreme Court from a police court in an assault matter would under this clause:
carry the case to the Federal High Court, notwithstanding any negative provision in the state legislation.
Then Mr Glynn joins the debate in the right‑hand column. At about point 4:
We ought to arm the Federal High Court with absolute authority, but we ought to leave the power in the state, in the case of state laws, of saying that in certain cases appeals should not be allowed. You are proposing to emasculate the power of the High Court instead of taking away the right of appeal by a state Act of Parliament, and that is the wrong way to proceed.
Then at 1888 Mr Glynn, after referring to the law of English judicature:
If you want to take away the right of appeal, you do not pass an Act saying the Supreme Court is not to hear the appeals; you say, in these cases, no appeal is to lie. The general rule of law is that, unless the appeal is granted by an Act of Parliament, no appeal lies. There will be no interference with the complete jurisdiction of the Federal Court. That is what ought to be done.
Mr. HIGGINS. -- Do you want to leave the limitation of appeals to the Judges?
Mr. GLYNN. -- No ; I want to continue the existing law, when the right of appeal will depend upon the law in the state, and not on the courts. If we abolish the appeal to the Privy Council, we should retain the same right to the state of going to the High Court as it has to go to the Privy Council, and we should apply the same rules as the Privy Council applies to small matters. I think the Privy Council has power to say that, although an appeal may be granted, it will not hear it.
Mr Wise from New South Wales at 1889 made the comment at about point 6, left column :
Each state has, therefore, power to prevent trivial appeals by providing that the decisions of a court of first instance shall be final. If the case is of sufficient importance to go to the Supreme Court of the state, it should go to the High Court of Australasia just as it can go to the Privy Council.
Mr. ISAACS. -- But there are County Court cases in which there is no appeal to the Supreme Court.
Mr. WISE. -- If a case is of sufficient importance to go to the Supreme Court it ought to be of sufficient importance to be appealable to the High Court. A County Court case can go to the Privy Council by special leave.
If I could then travel to 1891:
Mr. O’CONNOR. – No; this clause gives Parliament the right to determine the method of appeals. If you give it the right to make exceptions, you give it the right to except certain cases. Mr. Isaacs referred to appeals in criminal cases. There might be strong reason as a matter of general policy why there should not be appeals in criminal cases, involving, as they necessarily would great delay between the time of the passing of sentence and the carrying of it out. For that reason, I think appeals to the Privy Council in criminal cases are only allowed under very exceptional circumstances, but the case will be altogether different when you have a Court of Appeal sitting in Australia, the sittings of which can probably be made available for a criminal case in a very few weeks.
Mr. ISAACS.– If a man is tried in a Supreme Court he has an inalienable right of appeal to the Federal Court. At the General Sessions he may be given a much heavier sentence, but he has no appeal to the Federal Court.
There is an exchange between Mr O’Connor and Mr Isaacs –
Mr. O’CONNOR.– No; a man subject to a sentence of any kind is entitled now to appeal to the Supreme Court of the state.
An HONORABLE MEMBER. – No, not under this section.
Mr. O’CONNOR. – I am taking it step by step, and I am taking the law as it is now. A man is entitled to an appeal to the Supreme Court in all the states.
Dr Quick questions that.
Mr. O’CONNOR. – That may be; but I am speaking with regard to most of the colonies. It is true that there is a right of appeal generally in criminal cases.
. . .
Mr. O’CONNOR. – Whether there is or not, there ought to be. There can be no question that if you allow a right of appeal in cases of property, there ought to be a full right of appeal in all cases where a man’s liberty, and perhaps his life, is involved. I am pointing out that there is a great deal of difference in restricting that right of appeal in a case where you have to appeal to the Privy Council, in which case the decision may not be given for some months, and where you can appeal to a Supreme Court in a few weeks. I think that the right of appeal in all criminal cases ought to be reserved to the High Court, which we have put here in place of the Privy Council.
In our respectful submission, clearly, when what was sought to be achieved was a protection of the rights of appellants as they existed at the time of Federation to approach the Privy Council, it was understood to be a right of appeal in criminal cases.
HAYNE J: An appeal was a statutory remedy, was it not?
MR HATCHER: It was, your Honour.
HAYNE J: The control of so‑called inferior jurisdictions was exercised principally through the grant of the writs, was it not?
MR HATCHER: It was, your Honour.
HAYNE J: And certiorari developed with at least some analogy, perhaps strong analogies, with the development of the writ of error, I think.
MR HATCHER: Yes.
HAYNE J: A very abbreviated description of the history. No doubt many will be quick to tell me incomplete. I set out in Re McBain; Ex parte Australian Catholic Bishops 209 CLR 372, particularly from pages 463 and following, by pointing, amongst other things, to the position in England before the Judicature Acts as recorded in Darlow v Shuttleworth [1902] 1 KB 721 at page 726, that the jurisdiction of King’s Bench to entertain proceedings in error from inferior courts was part of the original or inherent jurisdiction of the court to examine and correct all errors in inferior courts. It was that jurisdiction that was invoked by writ of error.
Can we approach the submissions you make, whether about appeal or availability of the supervisory jurisdiction of the Supreme Court of New South Wales for this body of limited powers, the Industrial Court, without some understanding of that history because if we cannot, we need to know what you say we should draw from that history.
MR HATCHER: Your Honour, in our principal submission, it can be approached without regard to that history, if our submissions at their simplest be accepted, that is, by the procedure of interposing the Industrial Court into the Criminal Appeal Act in substitution for the Court of Criminal Appeal it is the Supreme Court for the purposes of appeal. That needs no exposition of writs of error and so forth.
HAYNE J: The appeal to judicial indolence is always attractive, Mr Hatcher, but assume that that path were not sufficient. Where do we then go?
MR HATCHER: Were that path not sufficient then if our submissions as to the effect of a court exercising federal jurisdiction being a court which exercises federal jurisdiction similarly do not raise those issues. If we need to take the next step and say what appeal was available at the time of Federation ‑ ‑ ‑
HAYNE J: No, not what appeal, what supervision generally, whether by way of appeal or otherwise.
MR HATCHER: Yes. At that point in the analysis we certainly do need to go back to the writs that were available and those matters do need to be addressed. As to the question of the relief that is available, that is when one considers the prerogative relief available in the Supreme Court, in our submission, it is not necessary to understand the history because the history has been amended so dramatically by the statute. Section 179 is a pervasive provision. This Court, in Darling Harbour Casino and a number of other matters, has upheld the power of a State to allow privative relief generally and said that it has wide constitutional powers so to do.
GUMMOW J: That is not a fair statement of what was decided in Darling Casino.
MR HATCHER: I have put it in a very shorthand fashion, your Honour, that is so, but ‑ ‑ ‑
HAYNE J: Privative provisions have marked the development and application of certiorari since the memory of man runneth not to the contrary.
MR HATCHER: Yes.
HAYNE J: We have to grapple with it having regard to what has previously been decided.
MR HATCHER: Your Honour, one of the difficulties we face, it should be conceded, is when one looks at section 69 of the Supreme Court Act whilst ‑ ‑ ‑
GUMMOW J: Section 69 specifically refers to what was there before, does it not? The draftsmen of the Supreme Court Act were very conscious that they were writing on a blackboard that was first set up in the 1820s.
MR HATCHER: I think that is so, your Honour, but it is subsections ‑ ‑ ‑
GUMMOW J: Section 69(1)(c). They are saying “We’ve got what we had before and we’re going to have a little bit more”.
MR HATCHER: Section 69(5), your Honour - subsections (3) and (4), they are the provisions which extend the record for the purposes of certiorari:
Subsections (3) and (4) do not affect the operation of any legislative provision to the extent to which the provision is, according to common law principles and disregarding those subsections, effective to prevent the Court from exercising its powers to quash or otherwise review a decision.
GUMMOW J: So?
MR HATCHER: We have a pervasive provision in section 179 that seeks to prevent certiorari for error of law. It is a question of whether it can do ‑ ‑ ‑
GUMMOW J: The question then is of the impact of the Constitution on all these arrangements.
MR HATCHER: Exactly, your Honour.
HAYNE J: And whether, for example, it is possible to identify, as a defining characteristic of the Supreme Courts of the States, a capacity to supervise inferior jurisdiction, that is, is a defining characteristic of the Supreme Court of each of the States that it has the superintendence of inferior jurisdiction? So expressed that is a very large proposition. It may require much greater refinement. Do you say that that proposition is right? If it is right, is it sufficiently stated as I have put it? Does it require refinement?
MR HATCHER: It was certainly thought to be so, your Honour, at the time of Federation and in one of the very early cases in the 1820s - and we will give a reference to it - the Supreme Court went on board the one prison hulk in Sydney, and without any proceedings before it, ordered the release of two prisoners on the basis that the conditions in which they were kept were such that there could not properly be a conviction which would place them there. They relied upon the general and inherent power of the Supreme Court of the State to supervise the criminal proceedings in the State. That is referred to in the historical materials, but we will give a reference to it. The writ of error, as your Honours observed, goes back many hundreds of years, and the writ of certiorari was there to protect the King’s prerogative to protect the subject from ‑ ‑ ‑
HAYNE J: They were the particular forms of remedy in aid of the general proposition that the King’s Bench or Queen’s Bench had the general superintendence of inferior jurisdictions.
MR HATCHER: Yes, your Honour, and for the reasons that we put yesterday in reliance on Kable, the necessity of the States to retain the Supreme Court as a suitable receptacle of federal judicial power and because of their place in the hierarchy of courts within Australia they need to retain that inherent character. They need to retain superintendence.
GUMMOW J: Look at paragraph 260 in Catholic Bishops at page 464, going over to 465. There is an extract from a statement by Professor Wade which indicates that even in England there was a constitutional dimension involved in certiorari concerned with the proper operation of the machinery of justice and the prevention of abuse of power. The question is to what degree and how is that married up with the position given this Court under section 73 of the Constitution?
MR HATCHER: In our respectful submission, your Honour, it is perhaps more than just the position given this Court under section 73. It is the position given the Supreme Courts under section 73, and the capacity of the States ‑ ‑ ‑
GUMMOW J: Exactly. We are talking about the necessary attributes of this expression “Supreme Court of the State” in section 73 of the Constitution.
HAYNE J: Where, at Federation, at least some of those Courts were established with a jurisdiction defined by reference to the powers and jurisdiction of the Court of Queen’s Bench.
MR HATCHER: We have put the submission that the Industrial Court is the Supreme Court for the purposes of the Constitution. If we be wrong as to that, that is, if it can be seen that parts of the appellate jurisdiction can be removed from the Supreme Court, then one must turn to what remains and whether that is the Supreme Court. As your Honour says, what is the characteristic of the Supreme Court that cannot be removed? The history of the superintendence by the Supreme Court of the inferior courts in the States must be an integral part of that analysis.
So in our respectful submission, if it can be the position that a significant part of the criminal law, the criminal law applying to industrial accidents can be removed from the jurisdiction of the Supreme Court and not offend the Constitution, then it must be the position that superintendence of those proceedings remains in the Supreme Court. A provision such as 179 that purports to apply to and restrict the Supreme Court from superintending those proceedings, subject to ultimate review in this Court, must fail.
FRENCH CJ: What is the scope of that superintendence? Are we speaking in terms of the supervisory powers and jurisdiction that existed at Federation?
MR HATCHER: Yes, your Honour.
FRENCH CJ: Defined by reference to that which was inherited from the Court of Queen’s Bench and Royal Court of Justice.
MR HATCHER: Yes, and with the statutory extensions that were there in place. It would seem otiose to then return to Craig as the jurisdictional significance of Craig, if that proposition be right, is at the margins. Can I deal finally with one thing that fell from your Honour the Chief Justice yesterday when your Honour raised with me whether there was a need for any conditioning of the duty to ensure, given the presence of the reasonably practicable defence and I said to your Honour that it rather depends on the circumstances in which it arises. As your Honour Justice Kiefel said yesterday, these proceedings always go forward, or ought go forward, from some alleged act or omission that gives rise to a prosecution.
If one looks at the situation on the farm and one sees the farm manager call up the farmhand and say, “Bring the truck down to the back paddock. Get the box out of the shed and bring it immediately” and the farmhand has an accident on the way and it appears he has an accident because he does not know how to drive the truck, he does not have a licence, he has never been asked to drive a truck, he has just jumped in the truck and driven down there. Now, WorkCover might in this circumstance bring a prosecution and say that the employer’s failing was not having an employee do an advanced driving course using a four‑wheel‑drive vehicle. The court might say, “No, that’s not an offence because it is not necessary that an employer take that step to ensure the safety, but a lesser step may have been, and an appropriate step may have been, that you satisfy yourself that the employee can drive the vehicle and you did not take that step”.
The employer might then say, “That is so and we did not take that step but in the circumstances it was not reasonably practicable. There had been a severe accident at the bottom. We needed the first aid kit down there immediately. I called the only person I could contact to bring the first aid kit down”. So there can be two steps in the process, your Honour. It comes down to the way the act or omission is described. If it is described in the generous way that I put it – that is if the allegation is that you must do something that goes well beyond the step necessary, then the court has to say, “Well, what was the step necessary to ensure that the risk did not arise, to secure the health, safety and welfare at work of that employee in that circumstance?” It applies a reasonable test to find what that step was, all that the employer reasonably ought to have done to secure the safety. If he has failed in that test he may have a defence – that it was not reasonably practicable to take that step in the circumstances of that case.
That, your Honour, is why we say the two‑stage process is particularly necessary when one separates the duty from the defence but also when the defendant bears the onus on the defence he ought not be put to that defence unless the court is satisfied that there was a breach of the duty or contravention of the duty. The duty cannot be contravened by simple assertion. There must be some close attention to what was necessary to secure the duty. May it please the Court.
FRENCH CJ: Yes, thank you, Mr Hatcher. Yes, Mr Solicitor.
MR SEXTON: Your Honours, Mr Agius will deal with the issues on our side except for the question of section 73 which, if it is convenient to the Court, I will deal with at the conclusion of his arguments.
FRENCH CJ: Yes, thank you. Yes, Mr Agius.
MR AGIUS: Thank you, your Honour. Your Honours, there are a number of matters before the Court. I just might begin by setting out how we see the issues and how we propose to deal with them and then to deal with them seriatim. It is alleged that there was jurisdictional error in the Full Bench in not dealing with a submission concerning the alleged error by the trial judge in that he did not consider whether the corporation by Mr Palmer take steps which reduce the risk to health and safety. It is also alleged that in the Industrial Court such is the jurisprudence that the obligations imposed by sections 15 and 16 are incapable of compliance.
Your Honours, if I might deal with those in reverse order to begin with. Our submissions, which I will move to shortly, are that the construction afforded sections 15 and 16 does not render it incapable of compliance and that those sections need to be read with section 53 and there is therefore no question of offending the rule of law. There is no question of creating obligations which are impossible to comply with. Beyond that, it will be our submission that the trial judge in this case never dealt with it on the basis of any duty or risk which, on any view, could be found to be impossible to meet.
Our secondary submission in that regard is that if the Industrial Court has misapplied sections 15 and 16 in the way suggested, those misapplications do not amount to errors of jurisdiction. If they are errors, they are errors within jurisdiction. It is clearly within the jurisdiction of the Industrial Court to determine ‑ ‑ ‑
GUMMOW J: But are they errors of law on the face of the record?
MR AGIUS: Well, your Honour, that depends upon what the face of the record is.
GUMMOW J: Exactly.
MR AGIUS: If the face of the record does not include the reasons for decision, they are not errors of law on the face of the record.
GUMMOW J: Why not? Why do you assume that the face of the record does not include the reasons for decision?
MR AGIUS: Your Honour, I have not got the authority, but there is authority and learning to that effect. We will dig it up during the ‑ ‑ ‑
GUMMOW J: Why do you assume that that authority is presently binding on us?
MR AGIUS: Well, it may not binding ‑ ‑ ‑
GUMMOW J: We spent a day and a half not getting to the heart of this litigation. Anyhow, go on.
MR AGIUS: Well, your Honour, the Court of Appeal found that the construction of sections 15 and 16 were not such that they created impossible duties. They also found that the attack that was made on sections 15 and 16 did not in any way raise jurisdictional error within the boundaries of Craig ‑ ‑ ‑
GUMMOW J: I know they found that. The question is whether they are right.
MR AGIUS: Yes, of course. That is why we are here ‑ ‑ ‑
GUMMOW J: And whether jurisdictional error covers the relevant legal universe.
MR AGIUS: Yes, your Honour, and we propose in due course to take the Court to Craig and to demonstrate that the interpretation of sections 15 and 16 is very much a matter for the Industrial Court and that those decisions are within jurisdiction.
HEYDON J: It is not solely a matter for the Industrial Court.
MR AGIUS: No, depending upon the nature of the misinterpretation if there is a misinterpretation alleged.
CRENNAN J: What if the charges were defective, bad for duplicity? It could not be said then that that matter was solely a matter for the Industrial Court, could it?
MR AGIUS: Well, that might be a matter that goes to jurisdiction, your Honour, because the charges would determine the nature of the jurisdiction that the court was operating under at the time. There is no claim of that in this case. Finally, in relation to ‑ ‑ ‑
KIEFEL J: What if the misunderstanding as to what is required by section 15 is expressed in the charges so that it is not just the court’s case law that has led to this, but the prosecutor has presented charges which do not correctly set out an offence?
MR AGIUS: If the charge does not reflect an offence, then there is a problem with jurisdiction clearly.
KIEFEL J: There is no jurisdiction, yes.
MR AGIUS: But that is not alleged against us either in these proceedings.
KIEFEL J: But it arises from the discussion about the proper operation of section 15, does it not?
MR AGIUS: That has not been alleged either, your Honour. It has not been alleged that the misinterpretation of section 15 ‑ ‑ ‑
KIEFEL J: I think you may take it that whatever arises from the discussion about section 15 affects all of the proceedings before the Industrial Court necessarily. You cannot just put the charges to one side.
MR AGIUS: No, we are not putting them to one side, your Honour, but it has not been said, until your Honour raised it, that any misapprehension of the law on the part of the Industrial Court has infected the charges and that that is a source of lack of jurisdiction in these proceedings.
GUMMOW J: There is a doctrine of constructive failure to exercise jurisdiction in many decisions in this Court. Where the relevant tribunal simply does not understand the statute that is meant to apply, it gets very wrong. It has not therefore embarked upon its task.
MR AGIUS: Yes, but only if that misunderstanding leads the court into an area where it exercises jurisdiction and does not otherwise have it, but the doctrine, as we understand it ‑ ‑ ‑
GUMMOW J: No, the doctrine is it has not embarked on its task because it did not understand it. It has to do it again.
MR AGIUS: Your Honour, what is alleged against us in these proceedings is that the interpretation of the offence is such that it is impossible to comply with.
HAYNE J: No, what is alleged against you is ground 3 at page 1207. Namely:
The Court of Appeal erred in holding that the construction afforded to section 15 of the Occupational Health and Safety Act (NSW) 1983 by the Industrial Court of New South Wales in these proceedings was not affected by jurisdictional error.
Now, yes, one matter of expressing that ground has been this notion of impossibility of compliance. It also had references to the rule of law too.
MR AGIUS: But the rule of law is brought in aid because it is said that the way in which the section is being interpreted renders it impossible with compliance therefore it is in breach of the rule of law, that therefore there is jurisdictional error. That is the structure of the argument. That is what is being put against us. It is our submission that there is (a) no error in the way in which the sections have been interpreted and (b) that there is therefore no difficulty in meeting the rule of law because the offences are capable of compliance – the sections are capable of compliance.
Frankly, your Honours, we accept the concession that was made yesterday by my learned friend concerning the consequence of reading these two provisions, that is, sections 15 and 16, together with the defences. Indeed, that was our submission in our written submissions, that once you read the offences together with the statutory defence, it is plain that they are not impossible of compliance. That concession appears at page 34 of yesterday’s transcript in response to the question from the Chief Justice.
KIEFEL J: But they may yet be capable of compliance and you might be right on that point but, nevertheless, the construction afforded by the Industrial Court may not be correct in as far as it puts a gloss on the section by reference to abstract notions of risk, provides a guarantee and has no reference point to any particular act or omission on the part of an employer. Those are the sorts of things we were discussing yesterday. If a construction of that nature is correct and the Industrial Court has not properly applied it and that same error in the approach to section 15 is found within the charges, it would follow that the Industrial Court has not corrected – has taken upon the task of dealing with matters which were not properly laid before it.
MR AGIUS: I would not disagree with that, your Honour.
KIEFEL J: What would you say then is the consequence if the Industrial Court has misunderstood what section 15 requires for an offence to have been committed and the charges laid before it are based upon a similar misconception? What is the result?
MR AGIUS: Your Honour, if the charges describe an offence which is not known to law then that is a matter that goes to jurisdiction. If the court, however, has interpreted the section in a way which is wrong, that does not necessarily go to jurisdiction.
KIEFEL J: No, but inability to interpret the section correctly has prevented it from appreciating that the charges are put forward on a wrong basis. That puts the court not necessarily within jurisdiction. It is not just an interpretation point then, is it?
MR AGIUS: That depends upon what the error is and the charges. If the court has jurisdiction to hear the charge, if the charge is a proper charge and a court determines that a test is test A as opposed to test B, in most cases that will be an error within jurisdiction. That will not be an error of jurisdiction. That is within the authority of the court to determine. If the court determined in this case that “ensure” did not mean “guarantee”, that meant something less than that, that is within the jurisdiction of the court to determine. If this Court determines that that was illegal, you could correct that on a full appeal but it could not be corrected as an error of jurisdiction.
FRENCH CJ: I do not understand this. If a court is required to apply criterion X to determine whether there is a liability for a criminal penalty and instead of applying criterion X it erroneously applies criterion Y – in other words, doing something contrary to what the Parliament has mandated – how can that be other than a failure to do the task, carry out the task, which the Parliament has imposed upon it?
MR AGIUS: That depends upon what X and Y are, your Honour. If X and Y relate to the meaning of a particular word then that is an error within jurisdiction. If X and Y ‑ ‑ ‑
FRENCH CJ: So the court can decide what the law is, in effect.
MR AGIUS: That is what courts do all the time. They can be ‑ ‑ ‑
GUMMOW J: That hazard would seem set right here.
MR AGIUS: Yes. They can be corrected on appeal, but that does not necessarily found an error of jurisdiction. We get that straight from Craig. The courts are permitted to determine the law. That was the departure point in Craig from Anisminic.
FRENCH CJ: They are permitted to get it wrong. That is what you are saying.
MR AGIUS: But they can get it wrong and it can be corrected on appeal, but not every error of interpretation by a court is an error going to jurisdiction and if that is to be the case that will be brand new law.
BELL J: I think, Mr Agius, you accepted that if a charge was duplicitous, it may be that that would be amenable to correction if proceedings were brought in the Supreme Court.
MR AGIUS: Yes, your Honour.
BELL J: If one looks at possible interpretations of the offence created by section 15, bearing in mind that if subsection (1) is given a literal interpretation, it would produce possibly absurd results. One way might be to understand it by reference to the non‑exhaustive list of instances of how the offence may be committed that is set out in subsection (2). If one looks to the particulars on page 3 of the charge brought against the company, one sees on the preceding page the averment that the offence involved the failure to “ensure the health, safety and welfare at work”, that is, within the terms of subsection (1), particulars set out instances of omissions that are covered in various of the subparagraphs of subsection (2).
I suppose on one view it might be that there is an offence of failing to provide and maintain a system of work that is safe which would be particularised as involving a given omission or series of omissions and the failure to provide information would be a separate offence. You have a series of particulars that go to the assertion of a failure to ensure health, safety and welfare at work.
MR AGIUS: Your Honour, it is our submission that those particulars do not render the offence duplicitous. They are no more than particulars.
BELL J: Yes.
MR AGIUS: The offence is a failure to ensure health, safety and welfare at work. The way in which that failure to ensure health, safety and welfare at work could be proved would be by proving any one of those things, or more than one of them.
BELL J: But it is sufficient to prove one to establish the offence.
MR AGIUS: Yes, but that does not make the offence duplicitous, because the offence is the section 15(1) offence and section 15(2) uses the words:
Without prejudice to the generality of subsection (1), an employer contravenes that subsection –
So the offence creating the section is 15(1). Section 15(2) are just various ways in which it can be done.
BELL J: Yes, I understand that, it is ‑ ‑ ‑
MR AGIUS: That is not duplicitous in the way in which I conceded that there could be error of jurisdiction if an offence was found to be duplicitous. It is not just duplicitous in that same sense.
BELL J: It is really that one way of endeavouring to give meaning to 15(1) without it having a reach that would include the absurd would be to confine it in some respects by reference to the acts or omissions that are contemplated in subsection (2).
MR AGIUS: That is the practice in that court. I have never seen an offence which simply alleges “did fail to ensure health and safety at work”. The offences are always particularised.
KIEFEL J: Well, you say “particularised” might be something of an overstatement. What it does is refer to what are still very generally described as the areas in which an employer’s obligation may be found, examples of which are given in subsection (2), and then to tack on to it a general reference to the all‑terrain vehicle. That is all that is done.
MR AGIUS: We do not deny that. They are very general particulars.
KIEFEL J: They are very general particulars and further particulars should have been asked of them if anyone was going to run a defence to this because what they do not say is what it is that the employer should have done that the employer did not do so that someone could say, “In that particular regard I claim that it was not reasonably practicable for me to do it”. Now, if that is how the legislation works these statements of charges do not come anywhere near it and it is because the defence cannot work against something so generally described that perhaps the appellants here have been led to say it is impossible of compliance.
Now, it is not perhaps a rule of law question but it is very much a question of just what it is that amounts to a contravention of this legislation which requires expression as an offence if the shift of the onus of proof which the legislation puts upon the employer is to have any meaningful operation.
MR AGIUS: Your Honour, we would not disagree with that but these are broad particulars. In addition to these particulars, at the time that the ‑ ‑ ‑
KIEFEL J: These are charges.
MR AGIUS: There is an application for order which includes a charge, and that charge then refers to particulars. But at the time that the application for order is made it is supported by an affidavit which sets out in great detail what it is that the prosecution will attempt to prove in this particular case. This document is not the only document that forms part of the process, that informs a defendant of what sort of case the defendant has to meet.
HAYNE J: Be it so that there are other amplifying documents, one cannot charge the offence of murder without identifying the date, at or about, the place and the victim. It may be accepted that 15(1) creates an offence but the offending conduct that must be charged, I would have thought, is that an employer, at date, at place, did or did not do something. To barely recite the offence‑creating provision is not to lay a charge. Now, here, the so‑called particulars condescend to no detail at all of what it is that was done that should not have been done or what was not done that should have been done with sufficient specificity for a defendant to answer. Is this not reflective of what is said to be the false construction of section 15?
MR AGIUS: No, your Honour. In our respectful submission, the charge is adequately stated when it says that the employer on a certain date at a particular place at work failed to ensure the health, safety and welfare at work of its employees, in particular, a particular person contrary to section 15. That is a sufficient statement of the charge to satisfy the law in relation to, for example, the example your Honour gave me about murder. But there are further particulars provided. There is an affidavit provided which spells out the whole of the prosecution case and spells out what was done and what was not done. Unfortunately, it is not in these books.
There is the opportunity for a defendant to obtain further particulars right up until the time that the case opens or, indeed, later. I cannot recall whether or not in this case these defendants sought further and better particulars, but that does not affect the legality of the charge. It cannot possibly affect the legality of the charge. It never has been the case that inadequate particulars affects the legality of the charge. The elements of the charge are spelt out and those elements are a failure to ensure health, safety and welfare of its employees at work.
CRENNAN J: A charge does have to have a level of specificity which allows the person charged, once convicted, to know the precise basis of the conviction; Johnson v Miller.
MR AGIUS: Yes, and they get enough information in that regard in the statement of the charge. The offences is defined by section 15(1) and this restates the offence. It restates the elements of the offence in the same way that the restatement of an offence of assaulting and causing actual bodily harm states an offence.
KIEFEL J: Section 15(1) is the statement of the employer’s obligations in very general terms. When you have a statute that states obligations in such wide and general terms, when you are looking for a contravention of it, it must be spelled out, I would have thought, in some detail.
MR AGIUS: Yes, but not in the statement of the charge. It is spelled out in detail not just in these very broad particulars, but in the affidavit in support of the application for order. It must carry some way that no complaint has been made about this in this matter. There is no suggestion here, anywhere in these papers, in any of the various courts that this appellant has been to that it was not able to determine the nature of the charge against it, the nature of the particulars that were being alleged against it or that it was not able to mount a defence because it did not know what it had to defend. They have had plenty of opportunity to raise that argument and that has not been raised. So that must mean at least one thing, that it has not been a problem.
BELL J: Its assertion that it was charged with an offence that is impossible to comply with really takes up the same point, does it not, in a different way? It is one thing to say one cannot comply with an obligation to absolutely ensure health, safety and welfare of all employees for the reasons that Justice Basten pointed to in his judgment and it is another thing to say that one can comply with an offence, including one of strict liability, expressed with a degree of specificity that enables you to know what it is you did or failed to do that breached the criminal law.
MR AGIUS: Your Honour, it may make it easy to defend, but that does not go to the legality of the charge itself. That problem can be addressed by further and better particulars. There is no impossibility in ensuring the health, safety and welfare of Mr Palmer on that day, of defending that – I am sorry, I withdraw that. It is not impossible to ensure Mr Palmer’s health, safety and welfare on that day, once one knows what it is about his health, safety and welfare on that day that was not ensured.
What we do know and what the defendant knew on this day was that Mr Palmer was killed whilst riding in an ATV Polaris vehicle. The defendant knows that from the charge and knows as well a great deal more than that from the affidavit in support of the application. They know that it is not being alleged that they failed to ensure that he did not catch a cold or that they failed to ensure that he did not have a heart attack or they failed to ensure that he did not roll his ankle. They know what is being alleged against them in a sufficient way for them to determine what their defence of reasonable practicality is if they want to run one. To the extent that they do not know, this is not a case where they have asked for and been refused particulars, in which case the appropriate remedy would have been a stay of the prosecution.
FRENCH CJ: A prosecutor is bound by the particulars that it offers. It is not bound by the evidence in an affidavit that it lodges in support of the application, is it? It does not have any formal utility from that point of view.
MR AGIUS: No, and a prosecutor is not bound by particulars in that sense.
FRENCH CJ: I am sorry.
MR AGIUS: In the general law, a prosecutor is not bound by particulars in that sense. There are particulars which can be ‑ ‑ ‑
FRENCH CJ: There is an awful lot of law about particulars in summary jurisdiction. A lot of it came out of South Australia many years ago.
MR AGIUS: There are particulars which can change, though – the date, for example ‑ ‑ ‑
FRENCH CJ: You can seek leave to amend.
MR AGIUS: Yes, but it does not make the charge bad.
FRENCH CJ: No. Just talking in terms of the utility of particulars as distinct from an affidavit, you suggest that the affidavit somehow fulfils the role of defining the compass of the offence which is being charged.
MR AGIUS: That is the practice in that jurisdiction.
FRENCH CJ: It may be the practice, but evidence can change. It can be accepted or rejected. The defendant has a right to know the boundaries of the charge, the matters to be raised against him in a prosecution and the particulars serve that function.
MR AGIUS: We do not deny that, your Honour, but in that jurisdiction that is provided not just by the particulars of the charge, which are often broad, but provided by the affidavit in support of the application, which are very detailed, and also by the brief itself which is served. In relation to these broad particulars, they do inform the defendant that amongst the allegations made to support the charge are allegations that there was a failure to maintain a system of work that was safe and without risk to health in relation to the operation of the ATV. This is on a day when Mr Palmer died because the ATV rolled over on top of him and asphyxiated him by crushing his chest.
So they are on notice that whatever their systems of work were at that time they were insufficient to ensure his health and safety in relation to his operation of that vehicle. They know from these particulars that it is alleged that they had failed to provide information, instruction and training and supervision in relation to the operation of the ATV by Mr Palmer on that day. It is alleged against them that such was the level of the information, instruction, training and supervision that he had that it was inadequate to ensure his health and safety.
They know that it is alleged against them that on that day they failed to make available adequate information about the use of that vehicle and about any conditions necessary in relation to that use to render that vehicle safe. There is a fair degree of knowledge of the way in which is alleged that they failed to ensure health and safety. It is not simply a bare restatement of subsection (2), although it is clear that subsection (2) was in part used as a guide or a framework for the founding of these particulars. They know what subparagraph (iv) reads, “ensure that the [vehicle] was only operated by persons with appropriate training”, and they know that there was an allegation of inadequate identity, assessment and control of risks and hazards in relation to the operation of the ATV on that day.
They are all fairly broad but, nevertheless, they inform a defendant that if its defence is going to be, “Well, it was impracticable of me to provide a safe system of work for Mr Palmer”, then they are on notice of the ambit of that defence. If their defence is it was impracticable to provide any appropriate training for Mr Palmer, then they can determine that. If their defence is, “Well, we did provide appropriate training”, they can determine that. In our respectful submission, that does not render the offence as pleaded bad, nor does it leave, in our respectful submission, a defendant who receives this application for order in any doubt about the nature of the failings in relation to health, safety and welfare at work. Certainly it would not leave them in the position of saying, “Well, what has been alleged here is impossible to defend myself against”.
Your Honours, I was in the process of just outlining our response to the aspect of the appeal that fixes upon failure of jurisdiction of the Full Bench in that it is alleged that the Full Bench failed to deal with the submission that was made. We have a number of responses to that which I will develop, but the first is that the Full Bench did, in fact, deal with the ground of appeal that was before it and the submissions that were made but dealt with it in a particular way and that way, in the reasoning of the Full Bench, did not require it to determine whether Mr Palmer himself had satisfied the duty. That is a function, in our respectful submission, in the way in which the ground was pleaded and the way in which the ground was argued, and we will take your Honours to that.
It is our submission that that was a sufficient dealing with the submission in the circumstances. If we are wrong about that, we would also want to take the Court to findings that the trial judge had in any event made, which make clear that both the company and Mr Palmer had been in breach of the company’s obligations under the Occupational Health and Safety Act and that the findings are not limited to the findings said to be breaches by Mr Kirk. There are findings which relate to failures that go directly to Mr Palmer and our final submission in that regard in response to that ground of appeal will be that even if it be the case that the Full Bench ought to have dealt with that one submission but it determined it did not need to deal with, that was not an error which led - which was jurisdictional.
Returning to the beginning, your Honours, it is our submission that if you read sections 15 and 16 together with section 53 you see the creation of absolute offences, but absolute, not in the usual way in which that expression is used, but subject to statutory defences. Not absolute in the sense of an offence which might provide that a machine be guarded, where there is no statutory defence, or absolute in the sense that a statute or a regulation might provide that a ladder be safe. Here, there are statutory defences and those statutory defences encompass defences such as, which would normally go to foreseeability, which would normally go to the reasonable approach, so most of the areas that one sees in the legislations and provisions of other States are here reflected as a defence, not as an element of the prosecution, not as an element of the offence, but as defences which are available with the onus being fairly and squarely on the defendant.
HEYDON J: Is Proudman v Dayman an available defence?
MR AGIUS: I am sorry, your Honour?
HEYDON J: Are the principles in Proudman v Dayman applicable to this legislation?
MR AGIUS: No, your Honour.
HEYDON J: Why not?
MR AGIUS: Because of the absolute nature of the offence, and ‑ ‑ ‑
HEYDON J: That is a sort of circular answer.
MR AGIUS: And because the subject matter that the offence deals with.
HEYDON J: Is there any authority on that?
MR AGIUS: No, your Honour, that issue has not been decided. The Court of Appeal was asked to rule on it, but determined that on the way in which the case was run, no Proudman v Dayman defence had in fact been raised, but it would be our submission, if we needed to support that proposition, that these are strict liability offences and because of their absolute nature and given the subject matter with which they deal, it would be contrary to the whole intention of the offence, and the obligation to ensure health and safety to permit a Proudman v Dayman defence, as opposed to a defence under section 53.
BELL J: This in a context of saying that the nature of the offences are regulatory and concerned with matters of safety.
MR AGIUS: Yes, your Honour. Your Honour, there has been what I might call a general attack upon the jurisprudence of the Industrial Court in relation to the way in which it deals with these offences. In those circumstances I think it is appropriate to take the Court to what is the fundamental case that established the nature of that jurisprudence and upon which other judges, including this judge, rely when determining liability.
FRENCH CJ: When you talk about jurisprudence – and you have already expressed some scepticism about the use of that term – you are really talking about approaches to or principles of affecting their construction or, indeed, the construction ‑ ‑ ‑
MR AGIUS:
Yes, the construction of sections 15 and 16.
FRENCH CJ: ‑ ‑ ‑ decisions about what sections 15 and 16 actually mean.
MR AGIUS: And how section 53 interacts. Your Honour, that is a decision of Justice Watson of what was then the Industrial Commission of New South Wales, Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467. This was the first decision by a superior court concerning the construction of section 15 and section 53 of the Act.
GUMMOW J: It was not a court then, was it?
MR AGIUS: It was not a Court.
GUMMOW J: At this stage. It was the Industrial Commission of New South Wales.
MR AGIUS: Yes. But by a judge of that commission at that time.
GUMMOW J: Well, a person given that title.
MR AGIUS: The legislation did not provide for the separate jurisdiction of judges in dealing with criminal matters. The submission by the defendant in that case was that section 15 did not create an absolute offence but that it:
was a restatement of the common law obligation of an employer to take reasonable precautions for the safety of employees.
The countervailing submission by the prosecutor was that section 15 should:
be viewed as a part of a statute which was remedial or beneficial and which was to be interpreted liberally so as to maximise the scope of the Act –
and reliance was placed upon a statement by Justice Isaacs in Rice v Henley and also by Lord Shaw in Butler v Fife Coal. The argument was put that section 15:
was absolute and the section was not to be read down so as to equate the common law obligation . . . The appellant [in that case] really was seeking to import into the section what was expressly contained in s 53.
GUMMOW J: That is where guarantee enters the picture, “to involve guaranteeing or warranting or the making certain”.
MR AGIUS: Yes. His Honour dealt with it in his conclusions at 469 and following. We adopt much of what his Honour said by way of submission should this Court determine that section 15 should be reinterpreted:
Had the legislature intended to restate the common law obligations devolving on an employer to take reasonable care for the safety of his employees, it would have been open for it to have adopted wording such as that which appears in regulations under the South Australian Industrial Safety, Health and Welfare Act 1972 ‑
Then his Honour quotes from Sweet v Parsley in relation to beneficial legislation and the way in which it ought to be interpreted, and then about point 4 on page 470:
In their context and purpose, there would appear to be no reason to make any implication that the words “to ensure” are to be construed in any way other than their ordinary meaning of guaranteeing, securing or making certain.
That context includes s 53. That section does not simply reverse any onus which might otherwise fall on the prosecution under s 15(1). Rather s 53 affirmatively expresses and delimits the defences not otherwise open under s 15(1).
HEYDON J: I see that Mr Justice Watson refers to Proudman v Dayman as though it is a relevant authority.
MR AGIUS: Yes. He does refer to Proudman v Dayman, but in support of the propositions that we see from Lord Diplock in Sweet v Parsley.
KIEFEL J: Perhaps you could assist my understanding of what is said there. How do you understand Justice Watson to say the defence operates in relation to section 15?
MR AGIUS: That section 53 is to be taken with section 15, and that section 53 limits the defences that are available to a defendant, but places the onus upon the defendant to prove the matters therein.
KIEFEL J: How does it work if section 15 is to be a guarantee?
MR AGIUS: It is to be a guarantee unless a defendant can prove that it was not reasonably practicable to guarantee the health and safety in the particular way in which it is alleged he did not do so.
KIEFEL J: Which you say it is not necessary to be – we will not go back to that about the particulars, but you were saying that a defence is still possible if the obligation is to be a full guarantee.
MR AGIUS: Yes. By statute it is, but that is the effect of the operation of the statute and that is the way in which Justice Walton applied the defence in this case. There are two limbs to section 53, that it was not reasonably practicable for the person to comply with the provision of the Act or the regulations, the breach of which constituted the offence – so in effect the defendant makes out an exemption from compliance because of a lack of reasonable practicability – or that the commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision. So the obligation always remains on employers, but they can, in a given case where it alleged that they are in breach, seek exemption on the grounds of reasonable practicability.
Now, it has been held that reasonable practicability includes things like foreseeability. So if the matter could not be foreseen then that is an element of reasonable practicability. It has been held that the nature of the risk needs to be put into the melting pot in determining what was reasonably practicable and what was not. It has been determined that what could be done to avoid the risk and the expense of that needs to be put into the melting pot. If what could be done is relatively easily done then, of course, that would tell against the defendant, but if what needs to be done could be very expensive, if the risk was remote, if this was a once in a million chance, then all of those matters go into the melting pot on the question of what was reasonably practicable in the circumstances of this particular defendant.
What the Parliament was aiming for with sections 15 and 16 of this 1983 Act was for the Parliament to take responsibility for fixing the duty on employers, not for other employers to settle that. It was not to be a question of what reasonable employers might do in the circumstances. The Parliament was taking responsibility and saying, in 1983, “We will fix the obligation and that will be an absolute obligation, but you can get exemptions if you can prove the matters set out in section 53”.
GUMMOW J: Has there been any reference in the cases to the Hansard for the 1983 Bill?
MR AGIUS: Yes, your Honour, I will come to that. Your Honour, these provisions in sections 15 and 16 have been re-enacted in the 2000 legislation in almost precisely the same terms – indeed, relevantly, in precisely the same terms – and the defence has been re-enacted in the 2000 Act as well, and again, relevantly, in precisely the same terms. This was at a time when the 1983 Act had been running for about 17 years and the jurisprudence of the Industrial Court was well and truly known. So Parliament has seen fit to, in effect, re-enact the same provisions against that knowledge. In our respectful submission, that is a significant matter.
BELL J: Support for that proposition, I suppose, may be drawn to some degree from the provisions of section 22 which make clear that there are no correlative rights in terms of an action available for a breach of statutory duty in relation to the duty posed by sections 15 and 16.
MR AGIUS: That is right, your Honour. These duties are confined to enforcing health and safety. They do not give rise to a statutory count. One can also have regard to section 19 of the Act, that is the 1983 Act, which again has been reproduced, relevantly, in the same terms in the new Act which is in slightly different terms and indicates the Parliament has turned its mind to this question of reasonableness or reasonable care. When dealing with the responsibilities of an employee, as opposed to an employer, the provision was that:
Every employee while at work:
(a)shall take reasonable care for the health and safety of persons who are at his or her place of work –
But, interestingly, in 19(b) there is no element to of reasonableness where the obligation is to “co‑operate with the employer” where the employer is seeking to have a requirement complied with. So that is a reinforcement of the absolute nature of the employer’s obligation, that an employee has to take reasonable care for the health and safety of others but if that employee is required to co‑operate, then that is an absolute obligation subject to the level of co‑operation being that which is necessary to enable the requirement to be complied with. Again, in our respectful submission, section 19 and its terms reinforces the interpretation for which we contend.
Justice Gummow has asked about statements from Parliament. We have included in our written submissions one paragraph from the Minister’s speech in introducing the 2000 legislation. That is on page 5, paragraph 16. There is one paragraph of the speech by the Minister for Industrial Relations:
It is an important part of this legislation –
He is speaking of the old legislation which was reproduced in the new legislation –
pursuant to section 15 of the 1983 Act, that the obligation to provide a safe workplace is absolute. However, it is qualified by the defence available to employers under section 53 of the Act – now clause 28 of the bill – that it may not be reasonably practicable to do so. That is the balance contained in the innovatory 1983 model based on the English Robens model of occupational health and safety that was enacted – I think courageously and correctly – by the Government in 1983.
In Haynes v CI&D Manufacturing Pty Ltd (1995) 60 IR 149 – that is a decision which is not on our list but we provided copies of it this morning – the Full Bench of the Industrial Court dealt with sections 15 and 16 and the concept of risk at page 157 at about point 2 on the page:
Sections 15 and 16 of the OHS Act are both concerned with failures to ensure the health and safety of persons at workplaces in terms inter alia of “risks” thereto; thus, the sections, even absent any actual accident causing death or bodily injury, nevertheless comprehend the commission of an offence where the relevant “detriment to safety” (as spoken of in Dawson and McMartin) is but a risk, or, in other words, where the circumstances are such that an employer’s act or omission has created a situation of potential danger to the health and safety of persons at his workplace.
Their Honours go on to speak of the long title of the Act, the objects of the Act:
it seems to us, by construing the general duties or obligations cast on employers . . . (which contains ss 15 and 16) as both preventive and remedial in nature, that is, both before and after the occurrence of an actual accident. The importance of this aspect of the OHS Act to the nature and scope of the offences it creates may be demonstrated by reference to the Minister’s Second Reading Speech in introducing the Bill for the OHS Act into Parliament . . . In that respect, the then Minister for Industrial Relations –
Then there is a quote, and I will draw attention to the first five or six lines of the first paragraph and then the first full paragraph over the page:
These principles may be summarized as the promotion and maintenance of the highest degree of physical, mental and social well-being of workers in all occupations; the protection of workers in their employment from all risks resulting from factors adverse to health; the placing and maintaining of the worker in an occupational environment adapted to physiological and psychological needs; and the protection of other persons who come into contact with the working environment and of persons using lifts, amusement devices, public stands and other specified devices.
Skipping a paragraph:
Though applying to employers, these general duties clauses impose a duty also on employees for safe working practices. Employers and the self-employed are required to ensure that those persons not in their employment are not exposed to risks arising from the conduct of the operation while they are at the place of work . . . The bill will place the responsibility on employees –
I think that should read “employers” –
to ensure that they operate in such a way as not to endanger their employees . . .
Their Honours, in the last paragraph on that page, refer to the stated purpose of the Act and quote various portions of that speech. They conclude:
The general duties created by the OHS Act, such as in ss 15 and 16, are clearly directed, we think, at obviating “risks” to safety at the workplace; it would therefore be wrong in considering whether an alleged breach of those general duties had been made out in any particular case to reason from the actual occurrence of an accident, even though causing death or injury, as the necessary detriment to safety and as to which a causal connection was to be shown. The accident itself may well, and probably does, manifest the existence of a detriment to safety and will, no doubt, be some measure of the degree of severity of the detriment; but, it seems to us, it is to the essential ingredients of the offence charged which one must attend by assessing the objective facts causing the detriment to safety and the causal connection therewith of the employer.
HAYNE J: It may be beside the point, but this was an appeal against an acquittal, was it not?
MR AGIUS: Yes, your Honour.
HAYNE J: Can you point quickly to the statutory provision that permitted an appeal against the acquittal?
MR AGIUS: I believe it was then 197A of the Industrial Relations Act.
HAYNE J: Thank you.
BELL J: Mr Agius, just while we are dealing with the nature of the offences and the provision that the Act makes, section 47, which provides that the offences are to be dealt with summarily either before a local court or the Industrial Court, goes on to refer to the maximum penalties that may be imposed. Reference is made to the possibility of a maximum penalty of two years imprisonment in relation to an offence dealt with in a local court. By and large, it seems the maximum penalties for offences under this Act are fines, consistent with the thrust of your submission that these are to be understood as regulatory or welfare offences concerned with safety and to be interpreted consistently with the principles applicable to such offences. I do note that section 51A makes provision with respect to the conviction of a person who has previously been convicted of certain of the offences under the Act. Does it make provision for a sentence of imprisonment in those circumstances?
MR AGIUS: No, your Honour. Section 51A increases the fines for second offences.
BELL J: Yes. The reference to the two years imprisonment that we find also in section 47 and in section 51A, does that speak to any penalty imposed in relation to any offence?
MR AGIUS: I was just trying to find the offences to which those provisions relate but those provisions, that is the provisions which carry gaol as a possible penalty, do not include occupational health and safety offences, to my recollection.
HAYNE J: Section 51A(1)(a) does not engage it? Two years for a breach of section 15 if it is a subsequent offence?
MR AGIUS: I apologise, your Honour. Since 2000 I am a little out of touch with this Act.
BELL J: On the face of it, it would seem to make the conviction in relation to the repeat offence susceptible to imprisonment for two years.
MR AGIUS: Your Honour, can I take that under advisement?
BELL J: It simply does seem to have some significance to your central proposition. It would be startling indeed if the Parliament created an offence of absolute liability, subject admittedly, to the statutory defence that was amenable to punishment by imprisonment.
MR AGIUS: Your Honour, it does seem that that two years imprisonment is available in respect of a second offence for breaches of sections 15 and 16.
GUMMOW J: It seems to have been inserted in 1987.
MR AGIUS: Your Honour, whilst I am in an apologetic mood, can I correct something I said to Justice Hayne about the statutory basis for the appeal against the acquittal. The provision I provided, 197A, is the current provision under the Industrial Relations Act in relation to appeals against acquittals. At the time of Haynes, the case from which I read, the appeals were pursuant to subsection (2)(d) of section 297 of the Industrial Relations Act. That is set out at page 153 of the report at about point 7 on the page.
HAYNE J: Thank you.
MR AGIUS: Of course, that Act has since been repealed and replaced by the 1996 Act. If I could just go back to that point that Justice Bell raised.
GUMMOW J: The section you referred to at page 153 did not speak specifically of appeals against acquittals, did it?
MR AGIUS: I am afraid I do not have that Act, your Honour.
HAYNE J: It struck me it sat oddly with the otherwise general equation between the Full Bench and the Court of Criminal Appeal, but perhaps it is beside the point. If, with the opportunity to consider it, you wanted to put something further in, perhaps that might be done.
MR AGIUS: Can I consider that over lunch, your Honour.
HAYNE J: Of course.
MR AGIUS: If I could return to that point raised by Justice Bell, of course it is within the power of a State Parliament to create an absolute offence which carries two years imprisonment.
GUMMOW J: Mr Hills never used those words, did he, in the Hansard? He never talked about absolute offences, I do not think.
HEYDON J: He did not talk about absolute offences or strict ones or anything that bears on the construction of section 15.
GUMMOW J: He did talk about obviating risks, but that does not seem to be the same as guaranteeing something.
MR AGIUS: He does speak of the highest degree of physical, mental and social well being and their protection from all risks.
BELL J: To return, Mr Agius, to the proposition that you just put, accepting that the Parliament may create an absolute offence susceptible of a statutory defence or, for that matter, not susceptible even of a statutory defence, in terms of the approach to the interpretation of this particular Act it has been recognised in dealing with regulatory criminal offences that concern matters of public safety that conventional approaches to the construction of the provision and the content of the mental element and any defences that might be available may be approached on a different basis in relation to offences that Lord Scarman described as being not truly criminal in Gammon v Attorney‑General of Hong Kong [1985] 1 AC 1.
The matter I am raising with you is that it would be odd to employ those canons of interpretation in relation to offences plainly designed to promote safety but which carried the possibility of imprisonment for a term of two years. That is getting into the area of what might be described as conventionally criminal in terms of the punishment.
MR AGIUS: Your Honour, this Court has dealt with that kind of difficulty, although not in the context of the two‑year imprisonment, in Waugh v Kippen where there was discovered a tension in the principles of interpretation when dealing with, on the one hand, beneficial legislation and on the other hand penal legislation. The problem comes to a head where the same piece of legislation contains both beneficial matters, breach of which is punishable.
We have this morning provided an excerpt from the fifth edition of Pearce on Statutory Interpretation in Australia, Chapter 9, which I understand has been distributed. At paragraph [9.2] the learned authors speak of liberal interpretation of remedial or beneficial provisions and hark back to Justice Isaacs’ statement which we see over the page. There is a list of examples which include Waugh v Kippen from this Court. At the bottom of page 230 he deals with difficulties where the Act is both beneficial and penal and again quoting Justice Isaacs:
The commanding principle in the construction of a statute passed to remedy the evils and to protect against the dangers which confront or threaten persons or classes of His Majesty’s subjects is that, consistently with the actual language employed, the Act shall be interpreted in the sense favourable to making the remedy effective and the protection secure.
This Court dealt with the matter in Waugh v Kippen and determined – I have not put that case on our list, but this is an accurate summary – that it was necessary to look at the dominant purpose of the legislation and applied the liberal interpretation to the provision from another State in Waugh v Kippen. We would say the same would apply in the present case, that the dominant purpose of this legislation beyond doubt is the beneficial purpose and indeed experience has shown that very few – in fact, I cannot think of one example of the infliction of a gaol term upon a defendant in the industrial courts.
The Parliament has obviously been sensitive to this because when they inserted industrial manslaughter provisions into the occupational health and safety legislation they also introduced a right of appeal to the Court of Criminal Appeal.
HEYDON J: Does the proviso aspect of the Court of Criminal Appeal’s legislation apply in such litigation?
MR AGIUS: I am not sure, your Honour. I will look at that over lunch. There has yet to be a prosecution under those provisions. In my view, given the way in which they overlap with the manslaughter provisions of the Crimes Act, I doubt that there ever will be. But that is not an answer to your Honour’s question.
GUMMOW J: I do not think there was any risk of imprisonment involved in the legislation considered in Mathews v Foggitt Jones 37 CLR 455. It is all about suspect sausages, and there was a fine.
MR AGIUS: Was that the case about whether a sausage could qualify as a part of a carcass?
GUMMOW J: Yes.
BELL J: Waugh v Kippen appears to have related to a provision of the Factories and Shops Act, which provided that a male employee over a certain age should not be permitted to lift or carry objects of a certain weight. I do not know that that was punishable by imprisonment.
MR AGIUS: Your Honour, in each of the cases that my learned friend referred to – and Sheen v Fields is an example, where the Court has looked at something other than an absolute liability, each of those cases came from, or involved legislation other than the New South Wales legislation. None of them involved a provision which referred to the obligation “shall ensure”, and indeed Sheen v Fields is, in our respectful submission, an interesting case in that respect because his Honour the Chief Justice took a different view about the provision “shall ensure”, or “ensure” which appeared in the standard, but which was not advanced by the regulations. Sheen v Fields, as we have it, is 58 ALJR 93. At page 96, in the first column, about point 2, having determined that:
cl. 21 of r. 1 did not require eye protection to be afforded -
because of the view that was taken about the words “likelihood of injury” the judgment continues:
The evidence indicates that the respondent did not instruct the appellant, or its employees generally, that they should wear goggles when there was a likelihood of injury, and did not make checks to ensure that goggles were worn when necessary. In that respect, the respondent would appear to have failed to observe cl. 1.4 of the Standards, which requires that an employer should take all steps necessary to ensure the co-operation of employees in the protection of their eyes by, inter alia, following a planned campaign for educating employees about eye hazards -
So the words that we point to in that quote are that the same actions that were held not to have offended against the provision which provided that where there is a “likelihood of injury” to the eyes of an employee protection shall be provided because of the meaning attributed by the court to “likelihood”, that same action appeared to qualify as a breach of a standard which said or which required:
that an employer should take all steps necessary to ensure the co‑operation of employees -
So it is apparent, in our respectful submission, that the Chief Justice then drew a distinction between a provision which spoke of an obligation depending upon the likelihood of injury and a standard which required somebody to ensure something. In one case there was a breach but in relation to the obligation to ensure his Honour held that that same activity amounted to, or would appear to have amounted to, a failure to observe the standard.
That is one example of the importance of looking at the particular statute, in our respectful submission. When New South Wales came to pass a 1983 legislation, there was already in place legislation in South Australia in 1972, Tasmania in 1977, Victoria in 1981 and the United Kingdom in 1974 and New South Wales did not follow the model of any one of those pieces of legislation. It brought in legislation which provided a requirement of “shall ensure” and it created – it put any suggestion of practicability which might include, as we have said, foreseeability, et cetera, in a defence, with the onus on the defendant.
So all of those models were available. The Robens Report was available, the Williams Report was available, but the Parliament adopted the particular form of words and, in our respectful submission, this harks back to what Justice Watson said in Carrington Slipways. It follows, in our respectful submission, that no occasion arises, given the clear language of the provisions, in the Occupational Health and Safety Act to introduce any common law refinements into that legislation.
We have set out in our written submission some quotes and some references to cases from the book by Glass, McHugh and Douglas relating to employers’ liability at paragraphs 24 through to 26 and I will not read them but we rely upon those statements, longstanding authority as to the way in which statutory provisions such as this ought to be read and the fact that ordinarily they would not import the concept of foreseeability, practicability and reasonableness, and our respectful submission is that given the clear language and the expression “shall ensure” it would be quite wrong to import those common law concepts.
Now, in terms of this particular case, if one goes to the judgment of Justice Walton at appeal book 2, page 829, paragraphs 151 and 152 deal with what his Honour found to be the relevant risks to safety in this matter and, in our respectful submission, these are very important paragraphs because they identify the particular risks that his Honour found were created, were not negatived and which led to liability being found. In our respectful submission, when one sees them, it is patent that it was not impossible in any way to guard against these risks. His Honour finds that:
In my view, there was a clear risk, evident from Mr Kirk’s own experience and from the express warnings in the Owner’s Manual, that the ATV could overturn (or otherwise unbalance) in various circumstances: clearly a situation of potential danger to the health and safety of people at the Company’s workplace. In this case, it is only necessary to consider two limited classes of such circumstances. First, off‑road driving at the Farm, which, by its very nature, increased the likelihood of many of the precursors to overturning mentioned in the Owner’s Manual: excessively steep hills (avoided on one steep hill by a hairpin road specifically built for safety), hidden rocks, bumps or holes, or excessively rough, slippery or loose surfaces. Secondly, towing from the ATV’s rack. The existence of these risks required the exercise of a managerial mind to establish a safe system for a vehicle which, by its description and nature, may involve some off‑road use or towing. The Act charged the defendants to eliminate these risks to health and safety; the prosecutor has charged that (through failures of systems, information, instruction, training, supervision and risk assessment) they failed to do so.
The Company’s obligation under the Act to establish a system to eliminate the risk of the ATV overturning when driven off‑road or when used for towing required it to assess the risks associated with the use of the ATV on the Farm, particularly having regard to the uneven terrain; to restrict access to the ATV to those employees and contractors who were sufficiently qualified and experienced to ride it; to instruct employees and contractors in relation to the safe use of the ATV; to provide information to employees and contractors regarding the safe operation of the ATV, for instance in the form of the Owner’s Manual; to warn employees and contractors at least about the potential for the ATV to overturn . . . and to supervise the use of the ATV on the Farm. Only two aspects of the evidence contradict (to a limited extent) the bald statement that none of these things were done. Although I have found that the ATV was generally accessible, it is true that Mr Thorn’s access –
that was the second employee –
was restricted (although this restriction was not explained, and there was no evidence to suggest that it was a decision made on the basis of safety); I have also found that Mr De Save read the Owner’s Manual (out of curiosity, having happened upon it); and I am prepared to accept that Mr Palmer read it. Again, in view of my finding that no employee or contractor was given any instruction to comply with it, and no attempt was made to regulate its use at the Farm, this evidence does not amount to much in the defendant’s favour.
HAYNE J: How does that sentence sit with what appears at page 833, line 41 or 42, the fact that Mr Palmer gave such an instruction to two contractors, such an instruction being, as I read it at least, do not use this vehicle off road?
MR AGIUS: I do not see in 152 – and I may have missed it – a reference to a failure to instruct employees not to use it off road.
HAYNE J:
in view of my finding that no employee or contractor was given any instruction to comply with it ‑
What, the manual? Is that what his Honour is saying?
MR AGIUS: Yes. It is a different matter, your Honour.
HAYNE J: I see.
MR AGIUS: So they are the risks ‑ ‑ ‑
HAYNE J: There are lots of things that are listed here as things that should have been done. There is a finding, is there not, that two contractors were told, do not use this off road. What is it that the employer should have done to provide a safe system of work?
MR AGIUS: In the very least, your Honour, the employer should have made available to all of the employees and the contractors access to the operation manual, in the very least. I think it is important to go to the operations manual.
HEYDON J: Can I just interrupt. Mr Palmer was a very experienced person in agricultural life and presumably these other people were also not neophytes, they were accustomed to the conventional activities on farms.
MR AGIUS: Yes.
HEYDON J: Are there not some things so obvious that you do not have to tell people and a failure to tell them is still compatible with, speaking loosely, a safe system of work?
MR AGIUS: Your Honour, those things might apply in relation to, in some circumstances, the use of a motor vehicle, but when you introduce a new piece of equipment onto a farm, be it a vehicle that describes itself as an ATV or an auger or a plough, then the obligations are that you ensure health and safety in relation to the use of that object. In the very least, that, in this case, meant that you had to do something – something – to address the risk of the vehicle overturning. That is the risk that his Honour found that was the risk to health and safety in this case.
What were the measures that could have addressed the risk of the vehicle overturning? His Honour finds that one measure was the provision of the manual to the contractors and to the employees. When one goes to the manual, it is redolent of statements about the risks of this vehicle overturning and how to avoid it overturning, the special ways in which it can be driven, the fact that some of these risks are hidden. His Honour’s finding basically was, in the very least, that these people should have had access to the manual and they should have had some instruction beyond simply being told how to turn it on in riding this machine on this property. His Honour had seen the property. This property was very, very steep. It had very, very steep hills. It was not just this one hill that ‑ ‑ ‑
HEYDON J: The employees had all seen the property.
MR AGIUS: Yes, but they had not ridden the ATV before, and the ATV is introduced onto the farm and there are particular risks associated with the ATV. The instruction manual itself says words to the effect that the ATV is not a motorbike. Their experience had been in riding motorbikes, not riding vehicles of this kind. There are a number of particular features about this vehicle that made it dangerous on this property. They are findings of fact that his Honour made, having heard all of the evidence.
HEYDON J: Just before you take us to the manual that you said you were going to, the material which is in paragraph 105 of Justice Walton’s judgment, which is pages 796 and 797, does that all relate to 151 and 152? Are all those facts relevant to the conclusions in 151 and 152?
MR AGIUS: I just did not hear that, your Honour, I am sorry.
HEYDON J: Are the findings of fact made by Justice Walton on the criminal standard of proof, which are listed in paragraph 105, all relevant to his other conclusions in paragraphs 151 and 152?
MR AGIUS: With the exception of (k), I would submit yes.
HEYDON J: So (b) is relevant to a breach of section 15, is it? You say section 15 imposes a duty to supervise the daily activities of all employees and contractors.
MR AGIUS: Not in those bald terms, your Honour, no.
HEYDON J: So you do not support (b) as relevant then?
MR AGIUS: It is still relevant to 151 because against the background of ‑ ‑ ‑
HEYDON J: Well, it is ridiculous, is it not? It is totally alien to ordinary life. It is expecting the managing directors – as Mr Hatcher made the point, managing directors of large companies which operate all over Australia and all over the world apparently have to supervise the daily activities of the employees.
MR AGIUS: Your Honour, I may have not put myself very clearly. The relevance of (b) to what is in 151 and 152 is that what happened and what is described in 151 and 152 happened in circumstances where the daily activities of contractors working on the farm was not being observed. If they were being observed, then the fact that they were riding this ATV in a particular way or that they had subjected them to some of these risks might be regarded in a different light, but it is not relevant in the sense that (b) itself amounts to a breach of the Act, no. We would not submit, and we did not submit, that there was an obligation on Mr Kirk to supervise the daily activities of all of the employees and contractors working on the farm.
HEYDON J: In that case, I do not see the point of saying it.
MR AGIUS: The only relevance of it, as we see it, is that it establishes that the context in which 151 and 152, those risks and those events, occurred. It is no more relevant than ‑ ‑ ‑
GUMMOW J: It perhaps lends some colour with the idea that Mr Kirk damned himself out of his own mouth. He damned himself out of his own mouth in the circumstances we were discussing yesterday afternoon.
MR AGIUS: Your Honour, that is a matter which we will take up later, but there were three records of interview from Mr Kirk which were all admissible, and they contained a large number of admissions. Firstly, Mr Kirk was a competent witness in the prosecution of the company as its director, and in fact he gave evidence willingly and, indeed, he gave evidence in the Crown case in circumstances which suited his case. That proposition that he be called in the Crown case was one which emanated from the defence and ‑ ‑ ‑
HEYDON J: Perhaps we should deal with this later, yes.
MR AGIUS: I will come back to that, and there are issues about the effect of that, and the way in which it was dealt with, but he was not called against his will. It was done to ‑ ‑ ‑
HEYDON J: That is irrelevant.
MR AGIUS: Of course, your Honour. It is irrelevant, but I am simply explaining the circumstances.
HEYDON J: In that case, you should not say it.
MR AGIUS: We do say that his evidence was relevant and admissible in the prosecution of the company and even if he was incompetent as he was to give evidence in his own prosecution, being a witness called by the prosecution, even if he was not competent to give evidence in that matter he was still competent to give evidence in the prosecution of the company.
So there are, to the extent to which he was convicted out of his own mouth, we would say the company was in part convicted out of his mouth but there was nothing illegal or improper in relation to that, but I will deal with that in more detail a little later today.
KIEFEL J: Just while you are there, his Honour focuses rather upon the owner’s manual not being available to anyone apart from Mr Palmer.
MR AGIUS: And Mr de Save who came across it and read it.
KIEFEL J: Correct. So that one might infer that his Honour has found it to be a relevant omission that other persons, not employees but persons on the property were not subject of sufficient instruction about the dangers of the ATV. Putting that aside, what is the act or omission his Honour found about Mr Palmer and the use of the ATV given that he found that Mr Palmer had read the manual?
MR AGIUS: Well, there are specific findings that his Honour made in relation to Mr Palmer at various paragraphs which have not yet been referred to in the evidence. I wanted to take the Court to those.
KIEFEL J: Can you summarise them for the moment?
MR AGIUS: Not without going to them, your Honour. One finding was that Mr Palmer had not been instructed that he must comply with the manual.
KIEFEL J: Is there anything a little bit more illuminating than that?
FRENCH CJ: Maybe you can look at that over lunch, Mr Agius.
MR AGIUS: Yes, your Honour. I will do that when we return.
FRENCH CJ: We will adjourn till 2.15.
AT 12.45 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.15 PM:
FRENCH CJ: Yes, Mr Agius.
MR AGIUS: In answer to Justice Heydon, the proviso is not available in relation to appeals pursuant to section 5AG of the Criminal Appeal Act and that would be the appeal that is available after an appeal to the Full Bench of the Industrial Relations Court.
HEYDON J: You said, I think, the appeal after the appeal to the Full Bench. Did you mean the appeal to the Full Bench?
MR AGIUS: No, there are two appeals in relation to what I have termed the industrial manslaughter provisions. The first is an appeal to the Full Bench of the Industrial Court and then from that there is an appeal to the Court of Criminal Appeal.
HEYDON J: I see.
MR AGIUS: When introducing the industrial manslaughter provisions, the Parliament has added an extra layer of appeal beyond the Full Bench of the Industrial Court and 5AG provides that before one can get to the Court of Criminal Appeal, one has to appeal to the Full Bench and there is no proviso.
HEYDON J: What about appeals to the Full Bench, is there any proviso there?
MR AGIUS: No.
HEYDON J: Yes, thank you.
MR AGIUS: I was asked earlier in the day about duplicity and I neglected to draw to the Court’s attention section 49A of the 1983 Act and we would rely upon it in the alternative if it is found that the charges are duplicitous for laying more than one contravention of section 15 or section 16, as the case may be.
Just before the luncheon adjournment, Justice Kiefel asked me as to whether there were any findings in relation to Mr Palmer. I took that inquiry, your Honour, to be an inquiry as to whether there were any findings that Mr Palmer had failed to, in effect, satisfy a duty that was otherwise the duty of the corporation.
KIEFEL J: Are you saying Mr Kirk, you mean?
MR AGIUS: No, Mr Palmer. We have findings against Mr Kirk, but I thought your Honour had asked me whether there were any findings that Mr Palmer had acted ‑ ‑ ‑
KIEFEL J: No, I was asking on what basis the corporation and Mr Kirk were found guilty of an offence insofar as it concerned Mr Palmer’s lack of instruction. I pointed out that the finding about Mr Palmer was that he had read – or taken by his Honour to have read the owner’s manual in relation to the use of the ATV and my inquiry of you was, given that, what were the findings against the corporation and Mr Kirk so far as concerned the risk of safety or whatever to Mr Palmer?
MR AGIUS: Your Honour, I will take the Court to those. They can be found at paragraphs 62, 63, 70, 79, 80 and 92.
KIEFEL J: Are you in a position to summarise them now?
MR AGIUS: Yes, I will, your Honour. At 62 there was a finding that there was no system in place in relation to the use of the ATV regarding towing, that “no instruction was given to anybody in that respect.”
KIEFEL J: Was there nothing in the owner’s manual about that?
MR AGIUS: Yes, there is something in the owner’s manual about that.
FRENCH CJ: That appears at paragraph 53, I think, does it not?
MR AGIUS: Yes.
KIEFEL J: This is talking about some system apart from instruction.
MR AGIUS: That is right, apart from what was in the manual.
KIEFEL J: I suppose at some point that system is identified, what that involves.
MR AGIUS: There was no system.
KIEFEL J: But what could it have been if it was not instruction?
MR AGIUS: There was no system in relation to towing behind the ATV at all, that is the absence of any system relating towing, and the specific risk to safety was that no instruction had been given to anybody in relation to towing. There was evidence that the ‑ ‑ ‑
KIEFEL J: I am sorry, I do not want to take an undue length of time over this. Mr Palmer had read the instruction manual which had the reference to towing, so what does this finding say about what should have been done that was not done in relation to towing, so far as it concerned Mr Palmer who already had the instruction from the manual?
MR AGIUS: In relation to the breach concerning Mr Palmer it does not take the matter any further.
KIEFEL J: Is there anything else in the findings of his Honour which identify what should have been done concerning Mr Palmer that was not?
MR AGIUS: Paragraph 80:
instructions provided to Mr Palmer by Mr Grech –
he is the person who sold the ATV –
was limited to demonstrating the basic skills required to operate the ATV, and was insufficient to ensure that Mr Palmer was able to use the ATV safely and without risk, particularly on rough, uneven or sloping terrain, or when carrying or towing objects.
Paragraph 86:
I find that none of the Company’s employees or contractors engaged by the Company were instructed or trained in relation to the use of the ATV, beyond a demonstration of the basic functions of the vehicle. The fact that the Owner’s Manual may have been available was not enough to provide such instruction or training, particularly in circumstances where the only people known to have seen the Owner’s Manual were Mr Palmer and Mr De Save. Whilst the Owner’s Manual contained important safety information, it was not accompanied by even a basic instruction that it must be interpreted having regard to the particular terrain at the Farm where the ATV was to be used.
There is a repetition of the last finding in slightly different words at 89 and then at 90 and 91 his Honour set out some of the warnings that were included in the owner’s manual - this will save me having to take the Court to the manual itself - and having set out those warnings, the first one being:
An ATV handles differently from other vehicles including motorcycles and cars. A collision or rollover can occur quickly, even during routine maneuvers such as turning and driving on hills or over obstacles if you fail to take proper precautions.
His Honour said this at 92:
I am satisfied that the Owner’s Manual does contain specific information about the hazards associated with the operation of the ATV, and in particular the risk of the ATV overturning. It states “Never operate an ATV without proper instruction. Take a training course. Beginners should receive training from a certified instructor”. But no one of those warnings can, of course, be explicit as to the particular hazards at the Farm or act as an instruction to employees without more. This requires further steps which were not taken.
HAYNE J: So what exactly is it that the employer should have done, but did not do?
MR AGIUS: Provided training and provided instruction which related the owner’s manual to the particular circumstances of the farm. So relate the owner’s manual to the conditions which the ATV would be used in at the farm.
KIEFEL J: Which is to say that there are some fairly severe slopes and you should not use the vehicle on those slopes, and they are the kind of slopes referred to in the owner’s manual.
MR AGIUS: Yes, that would be one of the matters. There is also material about turning on slopes, about driving on slopes, about which way you should lean when you are on a slope, and there are some warnings about the behaviour of the vehicle on slopes in general.
KIEFEL J: Because the owner’s manual itself makes all the obvious points about particular types of terrain where you should use particular care.
MR AGIUS: It does, it makes specific mention, which we can see in paragraph 91, and it speaks about excessive speeds and excessively steep hills and excessively rough, slippery or loose terrain and going down hills, but what ‑ ‑ ‑
HAYNE J: Mr Palmer has read all this, what more does the employer do? It is not enough to simply utter the words “conduct proper training” or something, what more do they do when Mr Palmer has read them and presumably understood them?
MR AGIUS: In relation to training, there were training courses available and no access was made to those training courses. The evidence was that those training courses are given in situ, that is, in this case, would have been given on the farm and therefore would have been training in relation to driving the ATV on the farm itself. One of the things that made this ATV dangerous in terms of riding it was the conditions in which it would be driven on the farm. This was not a farm which was flat planes or tablelands, this was a farm that was built up and down hills. There was one or two paddocks at the front that were flat, and 600 acres, or something like that, of very steep, hilly, ground with very deep gorges and deep valleys. His Honour made that clearer later on starting at 156:
The Company’s obligations were not circumscribed by dissemination and promulgation of the Owner’s Manual. The Company was required to assess the risks associated with the ATV in the actual conditions applying at the Farm and the manner in which it was used on the Farm. It was required, in my view, not only to give instructions as to the application of the Owner’s Manual at the Farm but to ensure that those instructions were consistent with the topographical and other conditions of the Farm and with the experience and capabilities of those employees who may drive the ATV. This was not doe. Even the basic step, which may have been taken, to instruct employees to stay on roads (notwithstanding the labelling of this vehicle as an “All Terrain Vehicle” and references in the Owner’s Manual to off‑road use) was not taken by the Company. The fact that Mr Palmer gave such an instruction to two contractors is not evidence that he had the view that such an approach was generally applicable or that the enforced it as a general rule. In any event, the Company gave no such instruction to Mr Palmer or any other employee or contractor. Employees and contractors used it off‑road. Nor were instructions given as to driving the ATV on slopes (of whatever gradient).
At the end of paragraph 157:
I have found that there was no system in place in relation to towing with the ATV and there was no evidence of the presence of the warning decal on the ATV. Mr Kirk gave evidence that he considered that it would be unacceptable to tow anything behind the ATV, but no instruction was given to anybody on the subject.
The provision of training was a simple step available to the Company to protect the health and safety of persons in the workplace. The Owner’s Manual specifically stated that “[t]he risk of an accident is greatly increased if the operator does not know how to operate the ATV properly in different situations and on different types of terrain” and prescribed a certified training course combined with regular practice to avoid this hazard. However, I have found, as a matter of fact, that none of the Company’s employees or contractors were instructed or trained in relation to the use of the ATV beyond an initial demonstration of the basic functions of the vehicle. This was despite evidence of an organisation which offered training courses to ATV operators at the time the Company purchased the ATV, and at the time of Mr Palmer’s accident. Importantly, the majority of that available ATV training was conducted at clients’ sites, thereby addressing the specific risks likely to be faced by users of an ATV at the place of use. Although the extent and standard of training required by the Act will vary depending upon the nature of the work performed and the associated risks, there is no way that the perfunctory introduction to the ATV provided to employees and contractors (including Mr Palmer) could be said to have fully equipped them to safely perform work (including towing) with the ATV ‑
That completes the list of findings which would involve Mr Palmer.
FRENCH CJ: Just in relation to the finding that Mr Palmer read the manual, I notice at paragraph 89 on page 788 his Honour said:
there is no evidence as to whether Mr Palmer read the Owner’s Manual or was in any way familiar with its contents.
Then at paragraph 152 he said:
I am prepared to accept that Mr Palmer read it.
What is the nature of the finding on which his Honour proceeded there? Was it an assumption in favour of the defendant or was it an actual finding?
MR AGIUS: There was evidence in one of Mr Kirk’s records of interview in which he said he saw Mr Palmer with the manual and that the manual was kept in the shed. The way in which we understand what appears to be two inconsistent statements by his Honour is that there was no direct evidence that he read the manual but I am prepared to accept that he did.
FRENCH CJ: He is really taking it as a matter of inference.
MR AGIUS: Yes.
FRENCH CJ: All right.
MR AGIUS: Aside from those findings, there was also the finding that “Mr de Save received no training as to how to operate the ATV”. That is at paragraph 81. Many of the findings I have just taken the Court to are not only findings of breaches in relation to Mr Palmer but they are also findings of breaches, in effect, by Mr Palmer. Those findings are the best evidence that his Honour did consider whether or not Mr Palmer had satisfied the obligations of the company with respect to employees, including Mr Kirk and Mr de Save, and with respect to the contractors. If the contractors were not given any training, and the evidence was that Mr Kirk had not arranged any training, and a statement is made that no training was provided to the contractors, that is evidence in the context in which those particular findings were made that nobody provided that training to the contractors.
There are included amongst the passages that I have indicated that those passages which are findings in respect of a lack of precaution taken on behalf of the employees or the contractors which findings militate against any suggestion that the trial judge never made any findings that would indicate that Mr Palmer did not comply with the company’s obligations, even though he had not been instructed to or even though, at paragraph 105, his Honour had said that Mr Kirk had, as the company, committed various breaches of the Act. He had also made findings that Mr Palmer had made breaches of the Act.
My friend’s submissions really concentrate on paragraph 105 and the reference to Mr Kirk and therefore the company, but paragraphs 105 and 153 do not list the only failings in this case and many of those failings are, as well, failings of Mr Palmer. They can be found in the sections that I have enunciated. There is also paragraph 70, which was a finding that all employees and contractors, with the exception of Mr Thorn, had used the ATV from time to time and that they “had unrestricted access to the ATV”.
HAYNE J: That point, the date of the offence alleged, might become important. I would have thought the date of the offence might become important. The date fastened on as the date of the offence is the date of the incident concerning Mr Palmer.
MR AGIUS: Yes, and the importance of that is – and I thank your Honour for that point because I need to deal with it – the importance of that is that there was a risk on that day that if the contractors had unrestricted access to the ATV and if everybody except Mr Thorn had that unrestricted access, there was a risk that on that day any one of them could have used the ATV.
HAYNE J: It is not immediately apparent from reading any of the material put forward as the charge that that is the way in which the case was being put, Mr Agius, but we have been over that ground about the degree to which these charges were particularised.
MR AGIUS: I understand that, your Honour, but the charge in relation to the contractors makes the point that on that day they had not had training, et cetera, and that was all in the context of the vehicle being on the farm on that day.
HAYNE J: You have delayed too long on this, but I am not conscious of reading an allegation that they had not had training. They were exposed to risk, and I had read that, perhaps wrongly, as exposed to risk because Mr Palmer was operating it without what was said to be adequate training.
MR AGIUS: They are exposed to risks to their health and safety.
FRENCH CJ: What, because if they had gone on it on that day, they might not have known enough not to tow from the rack and not to go down a steep hill? That is really what it is about, is it not?
MR AGIUS: Because they had not had particular training in relation to the use of that ATV.
FRENCH CJ: Yes, but that is the kind of risk that you are talking about?
MR AGIUS: That is the kind of risk, yes.
FRENCH CJ: So far as they are concerned, it could have been any day, it did not have to be that particular day.
MR AGIUS: It could have been any date from the day in which the ATV arrived on the farm up to and inclusive of the 28th. The specification of the date is not relevant other than that that was the date that this accident happened.
CRENNAN J: In the context of that argument, what do we make of the evidence of people like Mr McLeod which was to the effect that as a matter of common sense he would not have use the ATV in the way that Mr Palmer did on that day?
MR AGIUS: Your Honour, the difficulty with that approach is that it concentrates on the accident and this legislation is designed to deal with risks to health and safety. It is not the risk that Mr de Save would have driven down that particular track either on that day or on any other day. It is the risk that, as his Honour found, that this vehicle – which is the relevant risk, the risk of the vehicle overturning – that there was a risk that the vehicle could overturn when being driven and that that risk could have been addressed by the administration of appropriate training. That is why I took the Court earlier to that portion of his Honour’s judgment which deals with risk. That is the risks that the defendant was found guilty of not having addressed.
GUMMOW J: The word “risk” or “risks” appears in paragraphs (a), (b), (d), (e) and (f) of section 15(2). Paragraph (c) uses the word “ensure”, but the word “risk” does not appear in 15(1).
MR AGIUS: Is your Honour speaking of section 15?
GUMMOW J: Yes.
MR AGIUS: The point of section 15 is that it creates a general duty and a general obligation and, of course, it will not deal with a risk of overturning, but it deals with a failure to ensure health and safety and, for example, 2(c) is a failure –
to provide such information, instruction, training and supervision as may be necessary to ensure the health and safety at work –
So the absence of training in relation to what his Honour has found by inference was a dangerous piece of equipment if used on that farm is significant and the absence of training is what his Honour has found was one of the errors in this case, one of the failures, and the risk to health and safety was the risk to health that could be occasioned or the risk to safety that would be occasioned if the vehicle overturned. His Honour has found that there was a risk of the vehicle overturning if used on that property and his Honour has found that that risk could have been addressed by the provision of training.
HAYNE J: But the proposition you advance, Mr Agius, is that you cannot let anybody onto a farm property to work without giving them training in every piece of dangerous equipment there is. Take, for example, the chainsaw, very few more dangerous pieces of equipment than a chainsaw. You have got a chainsaw in the shed, you cannot have anyone on the property who has not got the chainsaw certificate.
MR AGIUS: No; that is not right, your Honour.
HAYNE J: That is the proposition that is implicit in what you are putting.
MR AGIUS: No. That is the proposition which, if I may say so, is a reductio ad absurdum proposition that my learned friend put in the course of argument, although he did not use a chainsaw – he used a motor vehicle. The point is that if you have somebody on the property – if you own a property and somebody comes to visit you – they are contractors – and you permit them to use a chainsaw without any knowledge at all as to whether or not they are capable of using a chainsaw; without any knowledge at all as to whether or not they know that chainsaws kick back or kick down or can slice your leg off; or without any knowledge at all that they are going to wear protective equipment, then you as an employer have an obligation to address that risk.
In the circumstances of a particular case that risk may be addressed by having the chainsaw in a shed and it being absolutely remote that that person is ever going to visit the shed or use the chainsaw. But that is a completely different case from the case we have here. We have a dangerous piece of equipment in a shed that everybody has access to and that everybody except Mr Thorn has driven. Yet not one of those people has had training in the use of it. That is quite a different case to the chainsaw case.
FRENCH CJ: Ultimately, anchoring this back into the issues in the appeal, they are looking to the question of the construction in section 15 and also ancillary to that I think the extent to which the court considered whether Mr Palmer had discharged the obligations of the company. They are the two things that you have been addressing, as I understand it.
MR AGIUS: Yes. I believe I have addressed both of those issues now. I have addressed the issue in relation to the construction of sections 15 and 16 and the way in which the court has approached it and the way in which the court did approach it in this case. I have also now gone to those particular findings of fact which indicate that there were breaches of sections 15 and 16, in effect, by Mr Palmer on behalf of the company to the extent to which it is said that Mr Palmer was the person responsible for occupational health and safety on that property.
FRENCH CJ: Now, I think you foreshadowed then moving onto the Evidence Act points.
MR AGIUS: There are just two other points before I get to the Evidence Act points. Your Honour Justice Hayne inquired as to the statutory right of appeal which was activated in Haynes v CI & D Manufacturing. At that time that right of appeal could be found in the Industrial Relations Act 1991 at section 297. We have made some copies of that Act, which is now out of print. I might hand that up. In short, it was a general right of appeal, your Honour, available to the prosecutor and to the defendant. There was no specific right of appeal in relation to prosecutors as there now is.
FRENCH CJ: Just give the papers to the associate.
MR AGIUS: I now come to address the issue about the Full Bench not dealing with the submission that it was through the auspices of Mr Palmer that the company satisfied its obligations under the Act. In this respect it is necessary, in our respectful submission, to follow the grounds of appeal and the argument to see what was actually put to the Full Bench and what it was that the Full Bench was being asked to deal with, and to see the extent to which there has been a real failure to address that argument.
The ground of appeal was formulated by the Court of Appeal in the course of argument and judgment, and that can be found at appeal book 2 at page 865, where in the course of his judgment the Chief Justice set out four errors that he described in particular form, and it is the third ground on page 865 - (iii):
The Court dealt inappropriately with issues of corporate responsibility by failing to determine that the company had in fact fulfilled its duty through Mr Palmer who, rather than Mr Kirk, had been chosen by the company to fulfil the duty.
At 995 in the first proceedings before the Full Bench where leave was granted, those four paragraphs are set out and they come straight from the judgment of the Chief Justice, and between 998 and 1000 the court deals with that grant of leave. Can I, by way of comment, direct the Court’s attention to 999, paragraph [148] of Justice Basten’s judgment, and this is how his Honour Justice Basten thought the ground had been developed:
It was further and separately submitted that the Industrial Court had failed to deal properly with the responsibility of individuals whose knowledge and acts could be those of the corporate employer. Although the Company was controlled by Mr Kirk, Mr Kirk had no relevant experience in farming and Mr Palmer had been employed as the manager, having the relevant expertise . . . Accordingly, it was argued that if the employer were to take steps to protect its employees, the person responsible for carrying out that function on behalf of the employer was Mr Palmer and not Mr Kirk. Thus, it was argued that if Mr Palmer drove the ATV in an inherently dangerous manner, he being the person responsible for establishing safe systems of work, the employer could not be held criminally responsible if he (Mr Palmer) failed to take proper care for his own safety.
That is an entirely different enunciation of the problem, but it is the same problem that was identified by the Chief Justice. Nevertheless, the Full Bench granted leave to appeal in the terms of (iii) on page 995. At page 1007 – and this is where the problem starts, in our respectful submission – a notice of appeal is filed which does not repeat ground (iii) at all, but rephrases it:
(i)His Honour dealt inappropriately with issues of corporate responsibility by failing to determine that the company had in fact fulfilled its duty through Mr Palmer who, rather than Mr Kirk, had been chosen by the company to fulfil the duty ‑ ‑ ‑
HEYDON J: That is word for word (iii) on page 995, except that it says “his Honour” not “the Court”.
MR AGIUS: I am sorry. I am a little advanced of myself. That is the recitation of the ground. I apologise, it was my error.
FRENCH CJ: I think you are drawing a contrast between the way Justice Basten characterises the ground.
MR AGIUS: Yes, there is a contrast between Justice Basten and the Chief Justices’ understanding of the ground. When the ground was formulated, written submissions were put on in support of that ground. They can be found at page 1012. Paragraph 1 of the written submissions ends with this sentence:
That question may properly be put as follows: did Walton VP err in finding that failures of Mr Palmer were necessarily failures of Mr Kirk so as to constitute a failure by the Company.
Now, that is not the ground in respect of which leave was granted. When one goes through the rest of those written submissions, nowhere in them is there any submission that the duty of the company and its obligations under the Occupational Health and Safety Act had been met by Mr Palmer rather than Mr Kirk and that his Honour was in error in attributing the breaches to Mr Kirk. In fact, the whole of the argument seems to be about who was the company, who was the alter ego of the company, and this is made plain at paragraphs 19 and 20 of the written submissions, particularly at 20, on page 1018:
In the present case, the evidence clearly demonstrated that Mr Palmer was the ego, or in the alternative the alter ego, of the Company. Walton VP’s findings of fact are to that effect. The evidence was to the effect that Mr Kirk had not assumed any responsibility for the limited operations of the Company, although he retained overall financial control. In those circumstances, the true characterisation is that the Company had appointed Mr Palmer as its alter ego. The assumption implicit in paragraph 105 of Walton VP’s reasons that Mr Kirk was the ego or alter ego of the Company is with respect in error and is entirely contradicted by His Honour’s other findings of fact, discussed above.
Even if it were possible to find that Mr Kirk retained some overall managerial responsibility, in light of the factual findings the only way in which the Company, through Mr Kirk, could have complied with its obligations was by the appointment of an appropriately qualified person: in other words, Mr Palmer.
The argument in written submissions and in reply is that the company was entitled to appoint somebody – an expert if you like – to manage occupational health and safety on the farm, and that because Mr Kirk was inexperienced, the company was entitled to do that, but there is no argument in those written submissions that the obligations of the company had in fact been carried out by Mr Palmer and that there were no findings in the judgment that Mr Palmer had failed in any of those obligations. That is the point that is now taken, that that submission was never addressed.
That submission is not to be found in those written submissions. It is not to be found in the reply, which follows the written submissions of the respondent. The reply is at 1036 and following. Then if we go to the argument, which commences at 1041, it is not to be found there except for one or two lines, but those one or two lines are in a different context. The argument, as was understood by the Full Bench, can be seen in an exchange between Justice Boland, as he then was – now the President of the Industrial Court – and counsel for the appellant, on page 1046, line 15:
BOLAND J: As I understand your case, it is that Mr Kirk was not the controlling mind or will of the corporate appellate, insofar as the farm activities were concerned, including the responsibility for occupational health and safety.
WARD: That’s right.
BOLAND J: And that had been – the controlling mind insofar as the farm and occupational health and safety was concerned, it had been delegated by Mr Kirk to Mr Palmer, am I right?
WARD: Yes.
BOLAND J: Just explain this to me. How can there have been an effective delegation, when Mr Kirk, on the evidence, made no assessment of Mr Palmer’s capacity to take responsibility for occupational health and safety?
That is the ground that is being argued, whether or not the company’s obligations could be delegated, and that is the ground that is addressed in this argument, and there are responses, and then just before the bottom of the page and then Justice Boland goes to some of the evidence in the case:
Did you make any assessment in order to determine that he –
that is Palmer –
had the necessary skills and training to manage occupational health and safety on the farm? A. No.
The point being discussed in argument then is how there can be an effective delegation of responsibility when you – as the company, or you as Mr Kirk – do not satisfy yourself that the person to whom you are delegating the responsibility had sufficient or necessary skills and training to manage that?
FRENCH CJ: This is your answer to the proposition advanced yesterday in respect of paragraph 63 of the Full Bench judgment at 1112 where it was said that that approach came out of the respondent’s submissions at 1028. You say the respondent was just responding to what was being put by the appellant.
MR AGIUS: Yes. I will not take up time doing it now, but as you go through this transcript of argument there is no submission at all about the absence of any finding by Walton J that Mr Palmer had fulfilled, or had not fulfilled as the case may be, the obligations of the company. The closest it comes to it, but in an entirely different context, is at 1065. At line 6 in the course of a submission counsel says:
Your Honour will recall that I opened with the distinction between the charges relating to Mr Palmer and the subcontractors. There is a distinction perhaps to be drawn between the supervision of Mr Palmer personally by the company but nevertheless the company’s entitlement to rely on Mr Palmer to supervise those below him.
The closest that his Honour comes to finding that Mr Palmer himself failed in his duties is at paragraph 156. That is the closest it comes.
That is the only suggestion anywhere in the submissions that there was some problem about the findings as to whether or not Mr Palmer had in fact fulfilled the obligations of the company. The problem is that that submission is made in the context of what was expected of Mr Palmer as delegate of the company. It does not come in the context of the complaint as it is now framed. When the Full Bench came to deal with the matter in judgment – one can take up the judgment from about paragraph 53 on page 1106.
In paragraph 53 their Honours go through the nature of the duty and the extent to which it can be delegated. They are here dealing with the concept of delegation of the duty as opposed to relying upon somebody to fulfil the duty whilst the responsibility for your duty remains with you. They set out those principles which are, in our respectful submission, not open to challenge and they continue the argument and the restatement of the law at paragraph 56:
To accept the proposition that an employer may divest itself of any responsibility for occupational health and safety by the simple expedient of saying to a manager for instance, “You are wholly responsible for occupational health and safety at this place of work”, such place of work being that of the employer, would be inconsistent with “making the remedy effective and the protection secure” under the statute.
They then go on to deal with the controlling mind of the appellant because his Honour Justice Walton found that the controlling mind of the appellant was Mr Kirk. I will come to those findings in a moment.
So they deal with the fact of delegation, or purported delegation in paragraph 57. They deal with some of Mr Kirk’s evidence to demonstrate the point that there had not, in fact, been a delegation because Mr Kirk says, in the course of his evidence, that, bearing in mind he was an employee of the company, that he had been riding the ATV near the dam, he had slipped and it pinned him to the dam, that is, it turned over, the very risk that had been identified by Justice Walton, that this had happened before Palmer had died:
Q.And as a result of that incident, and following it, before he died, did you do anything about occupational health and safety in relation to the ATV on the farm?
A.No, because it was his personal transport, so I believe he was the only one using it. I don’t think I rode it after that.
That is his reason for not doing anything, not because he could not or because he devolved that responsibility to Mr Palmer. Then the next question:
Q.That incident didn’t cause you to do anything about occupational health and safety on the farm in relation to the ATV?
A.Well, it wasn’t a farm, it wasn’t a livelihood – if it was a workplace, I probably would have done something, but it’s my personal home.
Which again speaks against, as a matter of fact, a delegation to Mr Palmer. Then their Honours deal with that and their finding in paragraph 59 is, as a finding of law, at the bottom of paragraph 59:
It was not open to the appellants in the circumstances to delegate the corporate appellant’s duty to ensure safety and, therefore, the corporate appellant could not fulfil its duty by purporting to transfer corporate responsibility to Mr Palmer.
They deal with the fact then that there was no effective delegation and they find that:
Walton J correctly identified Mr Kirk as the controlling mind of the corporate appellant and at [105] and [153] was correct in his findings regarding the culpability and liability of both the corporate appellant and Mr Kirk.
They do that following the argument as it had been put to them. At paragraph 63 they come back to the question that was posed to counsel by Justice Boland in the course of argument and make a finding:
We do not consider that Mr Kirk took proper and sufficient steps to satisfy himself Mr Palmer had the skill, experience or knowledge to manage occupational health and safety on the farm and simply assumed that to be the case. In that circumstance, there could have been no effective delegation by Mr Kirk, or the corporate appellant, to Mr Palmer to manage safety at the farm.
Now, having made that finding, if we go back to the ground of appeal, we will see that the way in which the court chose to deal with this ground was to address the issues of corporate responsibility because the ground was “his Honour dealt inappropriately with issues of corporate responsibility”. So their Honours have addressed the ground in terms of corporate responsibility and they have found that, as a matter of corporate responsibility, there could have been no delegation of the duty to Mr Palmer in the circumstances.
It is apparent after that that their Honours then did not go on to look at those paragraphs of Justice Walton’s judgment, which I have taken this Court to, concerning failings by Mr Palmer, but on the approach that was adopted by the Court, that was not necessary because they saw this argument in terms of an argument about corporate responsibility and delegation. That is why the Court says in paragraph 66:
We have found there was no error on the part of Walton J in finding that Mr Kirk and not Mr Palmer was the directing mind of the corporate appellant. Accordingly, it is unnecessary to consider the appellants’ contention that Mr Palmer committed no breach.
The argument that was agitated in the Court of Appeal and is being agitated here is not the argument that was agitated before the Full Bench. The Full Bench dealt with the ground of appeal that had been filed, they dealt with the submissions that had been made and they did all of that in terms of corporate responsibility and, in our respectful submission, that is a sufficient dealing with the submission. It may not be the dealing with the submission that my friends would have liked, it may not be what they intended, but it is entirely within the pleadings, that is, within the ground appeal, and it is entirely within the argument as it was framed before the Full Bench.
It is too late to complain about the result in the Court of Appeal and, in our respectful submission, it is too late to complain in this Court that the Court of Appeal did not somehow divine that the appellant had something else in mind when they argued this point. My learned junior reminds me that I should take the Court to paragraph 29 of this judgment on 1095 where their Honours set out what they understood to be the contentions. The relevant portion is the last sentence but we need to read it all:
As we earlier indicated, the appellants’ main contention was that Mr Kirk was not the directing mind of the corporate appellant in so far as managing the farm operation was concerned. Rather, that was Mr Palmer’s role and it included responsibility for occupational health and safety. That being so, it was submitted, the findings of Walton J, particularly at [105] and [153], that the acts or omissions of Mr Kirk were those of the corporate appellant, were wrong. Further, as there was no finding that Mr Palmer had, by act or omission, contravened the Act it followed, it was submitted, that the corporate appellant had committed no contravention and, ipso facto, Mr Kirk could not be deemed to have contravened the Act under the provisions of s 50(1).
So the premise was that Mr Palmer was the directing mind of the corporation and that there had been an effective delegation to Mr Palmer. That was the premise for the argument which went to the significance of the absence of any finding that Mr Palmer had, by act or omission, contravened the Act. But if the premise was not made out, then, in our respectful submission, the Full Bench was entitled to say, “Well, there never was an effective delegation, therefore it is not for us to look at what Mr Palmer did or did not do. We accept the finding of Justice Walton that there had been no delegation”. That is the way in which the Full Bench dealt with the matter. Now, at this point it would be convenient to go back to what was said by Justice Walton.
FRENCH CJ: Why is it necessary to do that in the light of this particular ground?
MR AGIUS: I simply wanted to make one point in terms of Justice Walton’s findings which never seems to have been challenged because there has been concentration on 105 and 153, but I do not want to take up ‑ ‑ ‑
FRENCH CJ: You were basically concerned about whether the Full Bench has properly addressed the point put to it. I understand you have made your argument about that, unless this is going to add something to that.
MR AGIUS: Only this, that Mr Justice Walton made a finding of fact. This is at page 765, paragraph 22:
Mr Kirk was effectively the mind and actor, and controlled the relevant actions of the Company at the Farm.
He controlled the relevant actions of the company at the farm. That is a finding that has not been referred to. It was not drawn to the attention of the Full Bench.
FRENCH CJ: This is reflected in the Full Bench’s finding that he correctly held that Mr Kirk was the controlling mind of the company. Does it say anything more than that?
MR AGIUS: The next sentence:
The defendants did not make any contrary submissions.
So, in our respectful submission, there was no failure, that is, no failure to deal with the submission in the way in which was being claimed. Our alternative submission is that if there was such a failure, it was not an error of jurisdiction but it was an error within jurisdiction. On that point we simply want to draw the Court’s attention to what this Court said in Craig at the bottom of page 179 and 180, and we refer to this in response to our friend’s argument that if there is limited rights of appeal from the Full Bench, then those principles that apply to non‑legal tribunals ought to be applied to the Full Bench and, in our respectful submission, that submission is misguided. When the High Court dealt with this in Craig, at the bottom of page 179 in contrasting the two positions, their Honours said this:
In contrast, the ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine. The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction. Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which may, if an appeal is available and is pursued, be corrected by an appellate court and, depending on the circumstances, found an order setting aside the order or decision of the inferior court. Such a mistake on the part of an inferior court entrusted with authority to identify, formulate and determine such issues and questions will not, however, ordinarily constitute jurisdictional error.
The point is that in the course of that statement their Honours said “if an appeal is available and is pursued”. In other words, it was not mandatory in order to found this principle that there be an appeal available and that the appeal be pursued. So the fact that there is no appeal from the decision of the Full Bench does not mean that the principles as identified in Craig in this portion of the judgment do not apply to this type of court. The principle was that the court has jurisdiction to determine issues of law. That is the guiding principle, that is the threshold, that is the gateway. The principle does not depend upon a gateway which involves an available right of appeal. If one goes to Craig, that is what one finds.
We also make the point that before the Court of Appeal, as is evident from the judgment, there was almost no attempt to relate these arguments to the decision of this Court in Craig. I will not take your Honours back to that. That completes our arguments in relation to the appeal.
GUMMOW J: While you are looking at Craig, at page 182 at about point 7 there is a quotation from what Justice Wilson said in Hockey, “[o]rdinarily . . . the record will comprise no more than”. He is talking about tribunals.
MR AGIUS: Yes, your Honour.
GUMMOW J: Is there an obligation on the Industrial Relations Court here, in New South Wales, in court session, to give reasons when it is exercising its criminal jurisdiction?
MR AGIUS: There must be, your Honour.
GUMMOW J: I would have thought so. The reasons surely have to be part of the record in that situation, do they not? This is a requirement that comes out of the statute that they give reasons. You would be pretty bold to say they did not have to give any reasons when someone can go to prison for two years.
MR AGIUS: Your Honour, I am not suggesting that.
GUMMOW J: That circumstance indicates the force of the word “ordinarily” as to what the record constitutes. The record here has to have the reasons, surely.
MR AGIUS: Well, your Honour, I am not in a position to dispute that.
GUMMOW J: Yes, all right.
MR AGIUS: Your Honours, in relation to the first application for leave to appeal, we have made written submissions in relation to that. It is our submission that in relation to this first application for leave to appeal, which was leave to appeal out of time, that the court applied the appropriate test. The court referred to this Court’s decision in Gallo, and it did that at paragraph 47. It set out the appropriate test, and it determined two matters which, in our respectful submission, are simply beyond refute. One is that the appellants had made a calculated and informed choice to go to the Court of Appeal rather than to go to the Full Bench, and that at all times the appellants had the ability to go to both if it wished. They made a deliberate choice not to go to the Full Bench until they received the result that was inevitable in the Court of Appeal. Secondly, their Honours found at paragraph 50, that there were little prospects of success.
Now, prospects of success must be a relevant matter on the question of a grant of this kind of leave and, in our respectful submission, those two findings are sufficient to support the Full Bench’s decision that leave to argue grounds (i) and (ii) on page 995, was properly refused. If we are wrong about that then, in relation to the merits, we would argue, and I will not repeat them, that the established approach to the interpretation of sections 15 and 16 is, in any event, not in error, and that in applying the defence Justice Walton did not himself fall into error.
It is our submission, therefore, that on that basis, even if this Court were to find that there was jurisdiction to grant leave to appeal, leave ought to be refused for the same reason that the Full Bench itself refused leave to argue those grounds of appeal, that is that there was little prospect of success.
In relation to the second application for leave to appeal, it raises arguments that we have already addressed in relation to the appeal itself, and we will not repeat those. There are two further matters, one of which is, in our respectful submission, relevant on the question of the grant of leave if the Court finds that there is jurisdiction to entertain an appeal, and that is (a) that the Parliament of New South Wales re‑enacted these same provisions, in effect, in the year 2000 and they are in force in 2001, and that the jurisdiction and the jurisprudence in relation to how it is that sections 15 and 16, and since 2001, section 8, have been applied consistently and in the same way now for 25 years and, in our respectful submission, it would not be appropriate to grant leave to appeal to overturn that line of jurisprudence given that it appears to be have been accepted by the Parliament and has, without appeal to this Court for 25 years, operated in what appears to be a perfectly practical way.
But secondly, last Friday, the Federal Minister for Industrial Relations published a draft of the Safe Work Act (2009) which is available for 6 weeks for public comment. This Act is in draft form and it represents harmonised legislation which has been, as a matter of principle, agreed at COAG meetings by the heads of all of the States and there is, in effect, an agreement for the States and the Commonwealth to pass this Act into law, and that will, by 2011, replace the current Occupational Health and Safety Act, and it has within it different principles and different obligations, significantly different in that the New South Wales model of absolute liability ensuring health and safety has not been accepted and the Act speaks of an obligation which is limited by an obligation to ensure, so far as is reasonably practicable, and that has been put into the Safe Work Act and we have copies of that merely ‑ ‑ ‑
FRENCH CJ: How is this to inform our deliberations? This is an executive agreement subject to submission to the various Parliaments. We are asked to assume that this is going to become the law and that therefore the question of the general public interest in entering upon debates about the construction of section 15 is engaged in some way.
MR AGIUS: Your Honour, it may not be persuasive, but I thought it inappropriate not to draw it to the Court’s attention, given the fact that the legislation in New South Wales is unique in the Commonwealth, and is, by agreement by all the Ministers, as we understand it, expected to disappear within about 18 months.
Your Honour, subject to arguments which are yet to be made concerning the jurisdiction of this Court to grant special leave they are our submissions on all of the matters that were raised but for the issue of the application of section 17 of the Evidence Act. With respect, I take Justice Heydon’s point that how it came about that Mr Kirk came to give evidence in the prosecution case is not relevant to the application of the law ‑ ‑ ‑
GUMMOW J: But is not the starting point, and I realise this is somewhat awkward since you were the counsel involved, but is not the starting point section 163(2) of the Industrial Relations Act, which says:
the rules of evidence . . . apply to the Commission in Court Session.
If there has been a disobedience to 163(2), that is an error of law, and it seems to appear at paragraph 17 on page 763 on the face of the record and paragraph 56 at 778, last sentence. The question would then seem to arise, having regard to provisions of the Evidence Act, whether there is an error of law in compliance with the Industrial Relations Act, whether it does not appear on the face of the record. There would be a subsidiary question as to what flows from that but that would seem to be a starting point.
MR AGIUS: It cannot appear on the face of any record of the Full Bench of the Industrial Court because the matter has never been agitated before the Full Bench, and it cannot appear on the record of the Court of Appeal because the matter has never been agitated in the Court of Appeal, so there may be a jurisdictional difficulty in this Court dealing with the matter.
HEYDON J: I must say I am surprised at the attitude of the Attorney‑General for New South Wales taking this stand.
MR AGIUS: Your Honour, I am not taking the stand ‑ ‑ ‑
HEYDON J: In the 19th century, very able lawyers for 70 or 80 years debated earnestly and passionately whether the accused should be permitted to give evidence or compelled to give evidence for the prosecution. To say “Well, it is not on the face of the Court of Appeal’s record” as though that mattered, and it is not on the face of the Full Bench. It is not your fault, it is no one’s fault, it is obviously just an oversight, but it is a fundamental defect in the proceeding before Mr Justice Walton, a complete denial of justice.
MR AGIUS: We do not dispute that, your Honour. I was simply responding to a jurisdictional issue that was raised by Justice Gummow. Our position in relation to this mishap is that we will not contest the suggestion that this an error that is fatal in relation to the convictions of Mr Kirk himself, but we do not ‑ ‑ ‑
HEYDON J: You concede that some order may be made by this Court, along those lines?
MR AGIUS: As counsel, I am troubled about the jurisdiction to make such an order. I have no problem with the matter in principle and I have no difficulty with that and I have put that as a submission, but I ‑ ‑ ‑
HEYDON J: If Mr Kirk was serving an 18 month jail sentence, is there not some mechanism available?
MR AGIUS: Yes, and I have suggested that mechanism ‑ ‑ ‑
HEYDON J: What is that?
MR AGIUS: ‑ ‑ ‑ and it has an encumbrance associated with it, but we suggest it. If this Court has jurisdiction we would not object to the order. If the Court does not have jurisdiction, then the way in which to deal with it is for my learned friend to go to the Full Bench to seek an extension of time in which to appeal, which we would join in, and which we would not oppose.
HEYDON J: Your learned friend, though, is sort of broken and aged by trips to the Full Bench which end in getting a bloodied nose.
MR AGIUS: Your Honour, he would be supported in this matter. Your Honour invited a mechanism ‑ ‑ ‑
HEYDON J: You make that undertaking to the Court?
MR AGIUS: Yes, your Honour. There is no difficulty about that, but if this Court finds itself without jurisdiction that WorkCover, from whom I take instructions ‑ ‑ ‑
HEYDON J: No. Your appearance was announced yesterday for WorkCover and for the Attorney‑General for the State of New South Wales.
MR AGIUS: Yes, but I would like to speak to my leader in relation to this, but I believe that there will be no difficulty in finding a procedural way of dealing with the convictions of Mr Kirk. My only concern is a legal technical one, and that is whether or not this Court has jurisdiction. If this Court has jurisdiction, I am not speaking against the making of such an order.
GUMMOW J: The record in the Full Bench would surely include by the doctrine of incorporation the reasons of the primary judge, surely.
MR AGIUS: The problem is, your Honour, that the record of the Full Bench is not here. It is our submission that there is no special leave application that properly lies from the Full Bench and that the record that is here in relation to the appeal comes from the Court of Appeal. I do not want to be approbating and reprobating about this, but unless the Court grants special leave to appeal, and if this was an appeal from the Full Bench, then the Court would have power, but, it is our submission and it has been our submission, even before this point was made, and it is yet to be developed, that there is no right to appeal from the Full Bench to this Court.
HEYDON J: So your position is if that particular point of view prevailed with the Court, you would support Mr Hatcher in an application to the Full Bench for this section 17(2) difficulty?
MR AGIUS: Yes, your Honour. In relation to the convictions of Mr Kirk. Not in relation to the convictions of the company.
HEYDON J: Just on that though, can we take a scalpel to the trial and say that little bit was all right but the rest of it is rather unhealthy? Surely the whole thing is tainted, is it not? It is just a totally impermissible proceeding to have the managing director who is charged with a crime, to have him and the company convicted because he was called by the prosecution by oversight.
MR AGIUS: Your Honour, Mr Kirk was a competent witness in the prosecution of his corporation and ‑ ‑ ‑
HEYDON J: This is, as the late Justice Hely, used to say, angels on pinhead stuff.
MR AGIUS: Your Honour, if we are speaking about what the law is, then our submission is that he was a competent witness in the prosecution of his corporation ‑ ‑ ‑
BELL J: But not on the joint trial of charges in respect of which he was a defendant charged with a criminal offence, surely?
MR AGIUS: It is not a joint trial in the sense that they were jointly charged. These are two trials which are being heard together, and the evidence in one was the evidence in the other, and this is ‑ ‑ ‑
FRENCH CJ: A conviction of the corporation leads to a deemed contravention on his part.
MR AGIUS: Yes, but he was always available as a witness in the prosecution of the company, and this is why, no doubt, we were asked to call him in our case, because until this Evidence Act because law in New South Wales, he was a competent witness, even as a defendant in these proceedings pursuant to section 407 of the Crimes Act. The change that came about was brought out by the Evidence Act. Section 407 provided that he was competent, even as an accused person, to give evidence in a case in a summary trial, not in a trial on indictment.
HEYDON J: The law changed nine years before the trial in these proceedings.
MR AGIUS: The law changed in 1995 with the passing of the Evidence Act, or some time shortly after that date. I confess that when I was asked to consent to this I was not aware that Mr Kirk could no longer consent to being called as a witness, but we ‑ ‑ ‑
HEYDON J: It is obviously a slip, is it not? There is no criticism.
MR AGIUS: It is irrelevant on the issue of law, but on the question of the propriety of proceeding against the company and trying to maintain the conviction of the company on the basis to the extent to which it relied upon Mr Kirk’s oral evidence, this is not a jury case. We say that it is possible to support the convictions of the company on the basis of Mr Kirk’s evidence, because in the ordinary course of events he would have been called in any event in the prosecution of the company and that prosecution would have proceeded first. From the point of view of Mr ‑ ‑ ‑
HEYDON J: It says “a defendant is not competent to give evidence”. This is a trial of two defendants or a number of defendants. None of them ‑ ‑ ‑
MR AGUIS: That would be not competent to give evidence in his trial, because he may be a defendant in other trials and still be competent to give evidence. The error here was that he gave evidence in the prosecution against himself, which prosecution was being heard at the same time as the prosecution of his company, and the evidence in one was taken to be the evidence in the other.
BELL J: Let it be accepted that it would have been open to the prosecution to proceed by bringing proceedings against the company and calling Mr Kirk in those proceedings and then perhaps at some later stage deciding to proceed with the section 50 charge against him personally. That is not what happened. He was giving evidence on the one occasion. In those circumstances, had you been aware of the provisions of section 17 of the Evidence Act, do you suggest that it was open to you to nonetheless call him and in some way insulate his evidence in relation to one charge but not the other.
MR AGIUS: No, there would have been – in our submission, that would have been possible, but also it would not have been necessary.
BELL J: For my own part, I have difficulty seeing at a single trial where a person is a defendant in relation to a criminal charge it is possible for them to be called by the prosecution consistently with section 17.
MR AGIUS: Well, our response to that is – and I can only put this – that there were in fact two trials proceeding simultaneously with the evidence in one being evidence in the other and that he was giving evidence in both matters at the same time. Therefore one needs to look separately at his capacity to give evidence in each trial. Our submission is that he had capacity to give evidence in relation to the trial of his company and would ordinarily have been called to give that evidence and he suffered no procedural disadvantage because being called in the prosecution case procedurally he was at least protected from cross-examination, which is probably why I was asked to consent in the first place.
HAYNE J: As to the procedural difficulty that you seem to contemplate existing in this Court granting relief, 1118 is the proceeding in the Court of Appeal in which, amongst other relief, relief in the nature of certiorari was sought in respect of both the first instance and Full Bench decisions of the Industrial Court. Is that right?
MR AGIUS: Yes, your Honour.
HAYNE J: That proceeding was dismissed. See the order at 1202. Is that right?
MR AGIUS: Your Honour has the advantage ‑ ‑ ‑
HAYNE J: Well, you have an appeal book, I hope, Mr Agius. I hope the State of New South Wales can run to an appeal book for you.
MR AGIUS: Yes, I do, your Honour. I am indebted for the page reference.
HAYNE J: Page 1202, and 1204 leave is granted in respect of that order. Now, there may need to be some amendment of the notice of appeal, but is there not an extant proceeding in this Court in which relief of the kind contemplated in the question put to you by the Bench could be granted?
MR AGIUS: Well, your Honour, I do not want to be heard on the issue - your Honour, we do not want to contest the issue as to whether or not this Court has jurisdiction to make the order. I have not put a submission that it does not. All I have done is raise a doubt. On the advice that I have, I believe now that this Court can make such an order, but we do not want to be heard to argue that it cannot.
FRENCH CJ: This is probably, in any event, overlapping a little with some of the territory that Mr Sexton is going to address us on, I think, is it not?
MR AGIUS: Only if the Court finds that it does not have jurisdiction in relation to the appeal and seeks to deal with it by granting special leave in relation to one of the other matters, and then Mr Sexton’s arguments would cover it. But I think there is strong argument that this Court can deal with it in the appeal, but I have said all I can about that and I do not want to be heard against the proposition. We learnt of these applications this morning shortly before 10 o’clock. I have not researched it and I do not want to tell this Court that it has jurisdiction to do something unless I have had an opportunity to check it. I am advised that there is jurisdiction and I have said that we do not want to contest the issue of jurisdiction in relation to Mr Kirk personally. I think in relation to the company I have put everything that I can. They would be our submissions.
FRENCH CJ: Thank you, Mr Agius. Yes, Mr Solicitor.
MR SEXTON: If the Court pleases, I was going to deal with the questions arising under section 73 of the Constitution. Your Honours, there are four avenues of appeal available under section 73(ii) and the first of those, which is from “any other federal court”, is obviously not relevant to these proceedings. The fourth of those categories, “any other court of any State from which at the establishment of the Commonwealth an appeal lies to the Queen in Council”, is, we would also say, not relevant to these proceedings.
In my learned friend, Mr Hatcher’s, written submissions, there seemed to be some reliance on this particular head, not I think in the oral submissions. Although the Court in Parkin v James accepted that this category was not theoretically confined to the local Court of Appeal of South Australia, the Industrial Court did not, of course, exist at the establishment of the Commonwealth, it was established by statute in 1996, and none of its predecessors, not even the earliest version, existed as at the establishment of the Commonwealth.
Your Honours, the second category and the third that I am considering is that of any “court exercising federal jurisdiction”. It seems to us in this case that the Industrial Court, neither at first instance nor in the cases of the Full Bench, was exercising federal jurisdiction, although in their written submissions my learned friends seemed to put an argument that it was. I do not think again that figured in the oral argument.
If, of course, it was exercising federal jurisdiction then so far as we were concerned there would be no problem, obviously, that an appeal would lie in this Court. In the course of his oral argument my learned friend, Mr Hatcher, put an argument that the term “exercising federal jurisdiction” in effect means capable of exercising federal jurisdiction. It is true, of course, that the Industrial Court is generally invested with federal jurisdiction but, in our submission, that is not the meaning of this phrase in section 73(ii).
Where this Court has heard appeals in relation to this category of decisions, federal jurisdiction has been directly engaged. I will not take your Honours to the cases, but we have set them out in paragraph 79 of our written submissions. If the term were held to mean any court capable of exercising federal jurisdiction then appeals would lie, for example, from all the local courts of the States. It seems to us to be an unlikely result. In addition, the first category, “any other federal court” would not have been necessary to be specified, and the third category, the Supreme Court, although, of course, that is invested with federal jurisdiction as a result of the Judiciary Act, but one might have assumed that in 1901 that that would happen in due course. So that seems to us to be an unlikely construction.
That leaves the final category but the third category in section 73(ii), which is “the Supreme Court of any State”. My learned friend, Mr Hatcher, put his argument, it seemed to us, in three ways in relation to this particular category, and I will come to those in turn, but can I say first what we say about this particular category. Your Honours will recall it has been quoted already from Parkin v James that this term was construed as meaning the courts which at the time of the establishment of the Commonwealth were known by that name, and at paragraph 69 of our written submissions we have quoted a passage from the judgment of Justices Gummow, Hayne and Callinan in Forge (2006) 228 CLR 45 at 74 where it says:
It is plain, then, as was recognised in Kable . . . that Ch III not only assumes, it requires, that there will always be a court in each State which answers the constitutional description ‘the Supreme Court of [a] State’. Chapter III also assumes, but it may not require, that there will, from time to time, be courts other than the Supreme Courts of the States, in which federal jurisdiction may be invested.
It does not follow, in our submission, that because the Supreme Court of New South Wales had jurisdiction relating to occupational health and safety offences prior to 1987 that the body now exercising that jurisdiction, the Industrial Court, falls within the term “the Supreme Court of any State”.
It is true that the judges of the Industrial Court have an equivalent status to judges of the Supreme Court and are given the same protection from removal under the Constitution Act 1902 (NSW) but, in our submission, the Industrial Court is a separate body established under the Industrial Relations Act 1996 (NSW). As Justice McHugh noted in Fardon (2004) 223 CLR 575 at paragraph 40:
The content of a State’s legal system and the structure, organisation and jurisdiction of its courts are matters for each State.
It cannot be right, in our submission, that an appeal must lie from every State court to the Supreme Court of that State. We would say that is reflected in some of the decisions concerning privative clauses that can in some circumstances limit the appellate jurisdiction of a State Supreme Court. We have referred in our written submissions to Fish v Solution 6 Holdings 225 CLR 180 and Darling Casino v New South Wales Casino Control Authority 191 CLR 602, a 1997 decision.
FRENCH CJ: Does the passage in Forge which you quote at paragraph 69, which speaks of the constitutional description of the Supreme Court of a State, require that there be a court bearing that name – in other words, that the State Parliament cannot change the name of the Supreme Court to something else?
MR SEXTON: As long as it remains the sole superior court or the most superior Court in the State I am not sure that the name ‑ ‑ ‑
HEYDON J: If the Northern Territory became a State and its Supreme Court changed its name to the “Final Court of Appeal” it would still be within the constitutional description.
MR SEXTON: I think that is right, your Honour, yes.
FRENCH CJ: So a court of final resort within the State structure. Professor Lane suggests that, I think, just in commentary, but without reference to any authority in that old text of his.
MR SEXTON: The court of, in a sense, final resort in the various systems, or those that have it in that form. Of course it tends to be part of what is still called the Supreme Court. But if there were an entirely separate body, how that would quite work in section 73(ii) ‑ ‑ ‑
FRENCH CJ: I am just wondering about a scenario where you have two courts, both within their areas of jurisdiction, courts of final resort. Do they both answer the constitutional description of a Supreme Court?
MR SEXTON: It may be that section 73(ii) assumes a single body that sits at the apex of the State structure, but that does not mean, in our submission, that it has to have an all‑embracing jurisdiction, that there can be aspects of civil and criminal law that are conducted by other bodies. It is a question of degree as to how radical a change to, for example, an existing State Supreme Court when that would take it out of the description in section 73(ii). Your Honour’s original question is, does it need to be called Supreme Court of New South Wales? Perhaps not. Your Honours, can I just come now to the three arguments that ‑ ‑ ‑
HAYNE J: Just before you part from that, the question about characteristics of the Supreme Court that may perhaps fall for consideration in this matter is whether one of the defining characteristics of the State Supreme Courts is the characteristic identified in Catholic Bishops by reference to what was said to be part of the original or inherent jurisdiction of the Court of King’s Bench, namely, the jurisdiction to entertain proceedings in error from inferior courts to examine and correct all errors in inferior courts. That is from Darlow v Shuttleworth [1902] 1 KB 721. The question would be whether that is a defining characteristic of the Supreme Courts as that term is used within the Constitution.
MR SEXTON: In a general sense it was and probably remains true that that is a characteristic. It does not mean, in our submission, that in every individual case that that remedy might be available. It raises the question, I will come to it ‑ ‑ ‑
GUMMOW J: In many cases it will not be necessary because there is an appeal provided by statute.
MR SEXTON: Yes.
HAYNE J: Just so.
GUMMOW J: But here there is not.
MR SEXTON: That is right, your Honour, and I will come to section 179, which does of course ‑ ‑ ‑
HAYNE J: But it informs what has always underpinned the approach to privative clauses, that the general clause is insufficient to deprive the courts of the power to award to certiorari for certain kinds of error.
MR SEXTON: Yes.
HAYNE J: Otherwise there is not that maintenance of fidelity to the law superintended by the court having that function of superintendence.
MR SEXTON: Arguably, of course, your Honour, section 179 is narrower than, for example, the Hickman concept. It does allow a challenge on jurisdictional grounds.
HAYNE J: But again, that has informed the approach to certiorari that, although you have a finality clause in the statute – and Justice Gummow drew my attention over the adjournment to the fourth edition of De Smith, the 1980 edition of De Smith’s Judicial review of administrative action, particularly at, amongst other pages, 365, 366. But the thread that is running through is, the finality clause does not work in respect of what those authors refer to as patent errors of law or jurisdictional defects, and why does it not run for those? Because of this inherent jurisdiction of the Court of King’s Bench to superintend what these inferior bodies are doing.
MR SEXTON: That is available here, your Honours, I say in relation certainly to questions ‑ ‑ ‑
GUMMOW J: If I could just interrupt for a minute, stopping there, I think that in the Australian context, that attribute of the Supreme Courts may be part of the Constitution of the States, something you have to think about, which is preserved by section 106. The Constitution of the States is not just the Parliament, surely, nor the Executive.
HAYNE J: That is most evident in those colonial courts becoming State courts where their jurisdiction was defined by reference to the powers and jurisdiction of the Courts of the Queen’s Bench.
MR SEXTON: I think that, in a sense, is perhaps worth more detail, as your Honours have put it, but there is a sense in which that is one of the arguments that is put against us. As I say, I think there are three. I will start with the one that seems to us to be most straightforward, but I will come to that one as well, your Honours. My learned friend’s first argument, I think, relates to section 196 of the Industrial Relations Act, which is the provision that applies the Criminal Appeal Act to appeals from the Industrial Court to the Full Bench in the criminal area, and then it says that:
For the purposes of subsection (2), a reference (however expressed) in the Criminal Appeal Act 1912:
(a)to the Court of Criminal Appeal – is taken to be a reference to a Full Bench of the Commission in Court Session –
My learned friend says that that makes the Industrial Court the Supreme Court for the purposes of section 73(ii). It does not seem to us that it has that effect, that it is simply a provision that by incorporation by referencing effect makes the Criminal Appeal Act applicable to proceedings of this kind in the Full Bench and that it does not in the contrast, for example, to the provision that was considered in Stewart v The King which was that the Court of Criminal Appeal was the Supreme Court. So it seems to us that that does not follow.
I think my learned friend’s second argument, he put it in terms of Kable, but it is perhaps more generally an argument arising out of Chapter III of the Constitution. I took him to say that no area of the Supreme Court’s criminal jurisdiction could ever be made part of a separate court structure with its own appellate regime, which is in effect what has happened here in terms of offences under the Occupational Health and Safety Act.
If one were to assume for a moment that that was right, one question is, what would follow from that? Because an appeal is a statutory right, does that mean that this Court would have to, in a sense, declare that such a right existed under the State legislation or – and I think my learned friend raised this as a possibility – would the 1987 legislation, which in effect removed this from the Supreme Court and/or the 2000 legislation, be considered invalid by reason of an inconsistency with or a contravention of Chapter III of the Constitution?
In one sense that ground or that argument as well raises the question that Justice Hayne raised a few minutes ago, which is whether a particular court in a State can be taken out of the general supervision by way of appeal of the Supreme Court. One can think of examples, perhaps, where a very substantial part of the jurisdiction of the Supreme Court was given to a court or a tribunal and where that question would be more, perhaps, sharply raised, but in this case there is a rather distinct, discrete regulatory or protective type of jurisdiction which has been given to the Industrial Court and it is still possible, of course, notwithstanding section 179, to have some supervision exercised over its operations by the Court of Appeal in New South Wales. In our submission, that is a structure that does not contravene Chapter III of the Constitution.
I should say perhaps just on that, almost that subject which Justice Gummow raised at one point, section 69 of the Supreme Court Act 1970 (NSW), in our submission section 179 of the Industrial Relations Act as a later and more specific provision would, I think, in any event have operated, notwithstanding section 69 which gives the Supreme Court, of course, jurisdiction in relation ‑ ‑ ‑
GUMMOW J: Yes, but the question then becomes in the constitutional setting whether the implied repeal, I suppose you would say, of 69 by ‑ ‑ ‑
MR SEXTON: In section 69(5), in effect, which says that the operation of the rest of the provision is ineffective to prevent the – I will just read it, I think:
Subsections (3) and (4) do not affect the operation of any legislative provision to the extent to which the provision is . . . effective to prevent the Court from exercising its powers to quash or otherwise review a decision.
GUMMOW J: Subsections (3) and (4) are talking about the face of the record, are they not?
MR SEXTON: Yes, but in any event ‑ ‑ ‑
HEYDON J: What you are saying is that 179 is effective to prevent section 69 operating except where there is a want of jurisdiction? It has to be an error of law not within jurisdiction. The error of law attacked must be not one merely within jurisdiction.
MR SEXTON: Yes.
GUMMOW J: Then the question then is whether that interrelation is constitutionally valid.
MR SEXTON: Yes, that is so, your Honour. Just on that same subject, if your Honours – perhaps I will just give your Honours a reference to it, but at volume 2 of the appeal books at page 870, which is the first decision of the Court of Appeal, at paragraph 36, the Chief Justice considers this interaction between section 179 and section 69 and Justice Basten at paragraph 83, page 887 agrees with what he has to say, which is a little cryptic, but he seems to be saying that, in effect, section 69 is subject in that sense to section 179.
GUMMOW J: I am not sure I understand paragraph 36.
MR SEXTON: I said it was cryptic, your Honour.
GUMMOW J: How do you decipher it?
MR SEXTON: We say that what he is saying is that section 69(5) is, in a sense, preserving the operation of section 179.
HAYNE J: Can I say, Mr Solicitor, I had read it as giving emphasis to the words last appearing in the sentence:
authorises this Court to review jurisdictional errors of law and to do so by reference to the reasons for judgment –
and that I had read his Honour as saying that the combined effect of the provisions is that the writs will go for jurisdictional error, you may discern jurisdictional error from the reasons, but the writs will not otherwise go. Is that how you are saying it should be read or do you proffer some other reading of it?
MR SEXTON: Well, section 179 talks about jurisdictional error so that it allows review in that case, but seemingly not otherwise. Your Honours, the third argument which is, in a sense, closely connected perhaps to the second one is that – I think my learned friend was saying that, in a sense, as at 1900 or at the time, that there was a – I think my learned friend was putting it as a right of appeal in relation to summary convictions to the Supreme Court so that the reference to the Supreme Court in section 73(ii) therefore would include the jurisdiction that has been exercised under the occupational health and safety legislation in this case because that kind of case provided an appeal in 1900. It also in a sense raises again the question of not just the appeal but a review by means of the writ, particularly of certiorari. So that really requires a brief look at the position as in 1900.
Our learned friends from the Commonwealth have prepared a volume of documentation which I think is available to your Honours. Most of what I am going to say, which is not in as detailed form as the Commonwealth materials – I think all the references can be found in there. If not, we will certainly provide them.
FRENCH CJ: Mr Solicitor, can you give us an estimate of how much longer you will be?
MR SEXTON: I probably might be another 10 minutes or so, your Honour. I was just about to start that point. I am happy to do that in the morning if you wish.
FRENCH CJ: All right. Thank you. We will adjourn this matter until 10 o’clock tomorrow morning. The Court will otherwise adjourn until 9.15 am for pronouncement of orders.
AT 4.15 PM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 1 OCTOBER 2009
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