Kirk v Industrial Relations Commission of New South Wales - [2008] NSWCA 156

No judgment structure available for this case.

Reported Decision: 173 IR 465

Appeal Outcome: Special leave granted by the High Court 1 May 2009 (S348/2008)

New South Wales

Court of Appeal

CITATION: Kirk v Industrial Relations Commission of New South Wales [2008] NSWCA 156

HEARING DATE(S): 26 May 2008

JUDGMENT DATE:
3 July 2008

JUDGMENT OF: Spigelman CJ at 1; Hodgson JA at 61; Handley AJA at 63

DECISION: The summons should be dismissed with costs.

CATCHWORDS: ADMINISTRATIVE LAW – Judicial review of the Industrial Relations Commission of New South Wales – jurisdictional error – Craig v South Australia (1995) 184 CLR 163 - CRIMINAL LAW – Inquiry after conviction – application must be made to Supreme Court – jurisdiction to be exercised by Chief Justice or authorised person – s 78 and s79 Crimes (Appeal and Review) Act 2001

LEGISLATION CITED: Crimes (Appeal and Review) Act 2001
Industrial Relations Act 1996
Occupational Health and Safety Act 1983

CASES CITED: Craig v South Australia (1995) 184 CLR 163
CTM v The Queen [2008] HCA 25
Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2006] NSWIRComm 355; (2006) 158 IR 281
Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales [2006] NSWCA 172; (2006) 66 NSWLR 151
Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales [2007] NSWIRComm 86; (2007) 164 IR 146
R v Badger (1856) 6 EL & BL 138; 119 ER 816
WorkCover Authority of New South Wales v Kirk Group Holdings Pty Ltd [2005] NSWIRComm 207; (2004) 135 IR 166
Work Cover Authority of New South Wales v Kirk Group Holdings Pty Ltd 2005] NSWIRComm 1; (2005) 137 IR 462

PARTIES: Graeme Joseph Kirk (First Claimant)
Kirk Group Holdings Pty Ltd (Second Claimant)
Industrial Relations Commission of New South Wales (First Respondent)
WorkCover Authority of New South Wales (Inspector Childs) (Second Respondent)

FILE NUMBER(S): CA 40412/07

COUNSEL: G J Hatcher SC; Dr C S Ward (Claimants)
J V Agius SC; P M Skinner (Second Respondent)

SOLICITORS: David Lardner Lawyers (Claimants)
Work Cover Authority of New South Wales (Second Respondent)

LOWER COURT JURISDICTION: Industrial Relations Commission of New South Wales

LOWER COURT JUDICIAL OFFICER: Wright J President; Boland J; Backman J

LOWER COURT DATE OF DECISION: 8 May 2007

LOWER COURT MEDIUM NEUTRAL CITATION: Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales [2007] NSWIRComm 86

CA 40412/07

SPIGELMAN CJ
HODGSON JA
HANDLEY AJA
Thursday 3 July 2008

Kirk v Industrial Relations Commission of New South Wales

The claimants invoke the supervisory jurisdiction of the Court to review a decision of the Industrial Relations Commission of New South Wales. In the alternative, the claimants seek an order pursuant to the Crimes (Appeal and Review) Act 2001 for an inquiry into the conviction of the claimants at first instance.

HELD:
Inquiry into conviction
(Per Spigelman CJ; Hodgson JA and Handley AJA agreeing)

1 An application for an inquiry into conviction cannot be instituted by way of summons in the Court of Appeal. Section 79 of the Crimes (Appeal and Review) Act 2001 empowers the Supreme Court to direct an inquiry. The jurisdiction is to be exercised by the Chief Justice or by an authorised person. [8] [61] [63]

2 The Court has no jurisdiction to make the order sought. [9] [61] [63]

Judicial review
( Per Spigelman CJ; Hodgson JA and Handley AJA agreeing )

Industrial Relations Act

Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales

Craig v South Australia

Capacity to comply
( Per Spigelman CJ; Hodgson JA and Handley AJA agreeing )

5 The Industrial Relations Commission has not adopted an interpretation of the Occupational Health and Safety Act 1983 that renders the statutory duties imposed by the Act impossible of compliance. No jurisdictional error of law is made out either in the general jurisprudence of the Industrial Relations Commission of New South Wales, or in its application to this case. [37] [40] [61] [63]

6 The test of reasonable foreseeability should not be introduced into ss 15(1) and 16(1) of the Occupational Health and Safety Act 1983.

7 The defence of honest and reasonable mistake has no relevance to this case. [42]-[43] [61] [63]

8 The claimants have not established any jurisdictional error in the interpretation of s 15(2)(d) and s 15(3) of the Occupational Health and Safety Act 1983. [47] [61] [63]

9 The Court has no jurisdiction to review findings of fact challenged by the claimants. [38]-[39] [44] [46] [61] [63]

Corporate Responsibility – the trial judge
( Per Spigelman CJ; Hodgson JA and Handley AJA agreeing )

10 The claimants challenge the finding of the primary judge that the failures of Mr Kirk were therefore the failures of the company. No relevant jurisdictional error is shown. [55] [61] [63]

11 The Court has no jurisdiction to review findings of fact challenged by the claimants. [55] [61] [63]

12 The submission that there was a jurisdictional error by reason of denial of procedural fairness need not be considered, and was in any case a challenge as to factual findings. [56] [61] [63]

Corporate Responsibility – the Full Bench of the Industrial Relations Commission
( Per Spigelman CJ; Handley AJA agreeing )

13 The claimants challenge the failure of the Full Bench to address the question whether the primary judge erred in his finding on corporate responsibility. No relevant jurisdictional error is shown. [59] [61]

( Per Hodgson JA )

14 It is arguable that the Full Bench of the Industrial Relations Commission failed to address this question. However, this was not a jurisdictional error. [62]

Orders
( Per Spigelman CJ, Hodgson JA and Handley AJA agreeing)

CA 40412/07

SPIGELMAN CJ
HODGSON JA
HANDLEY AJA

Thursday 3 July 2008

Kirk v Industrial Relations Commission of New South Wales

Judgment

1 SPIGELMAN CJ: On 30 June 2006 this Court dismissed a summons filed by the claimants, in part on the basis that the claimants had not exercised their right to appeal to the Full Bench of the Industrial Court pursuant to the provisions of the Industrial Relations Act 1996. The members of this Court also sat as the Court of Criminal Appeal and dismissed an application to that Court. (Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales [2006] NSWCA 172; (2006) 66 NSWLR 151.)

2 Subsequently the claimants sought leave to extend time to appeal to the Full Bench of the Industrial Court. On 15 November 2006 leave to appeal was refused in some respects and granted in one respect. (Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2006] NSWIRComm 355; (2006) 158 IR 281.) On 8 May 2007 the appeal was dismissed. (Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales [2007] NSWIRComm 86; (2007) 164 IR 146.)

3 The claimants again invoke the supervisory jurisdiction of this Court, seeking orders to quash the first instance decision of the Industrial Relations Commission and/or the two decisions of the Full Bench. No submissions were addressed to the first decision of the Full Bench ie the refusal to extend time to appeal. The substantive issue before this Court is judicial review of the first instance decision in the Industrial Relations Commission, the internal appellate process having been exhausted.

4 In the alternative, the claimants seek an order pursuant to the Crimes (Appeal and Review) Act 2001 for an inquiry into the conviction of the claimants at first instance.

5 This alternative submission can be dealt with briefly.

6 In their summons filed in this Court the claimants seek:

Crimes Act

7 The relevant provisions of the Crimes Act have been repealed and substantively re-enacted as s 78 and s 79 of the Crimes (Appeal and Review) Act 2001. The claimants have sought to amend their summons accordingly.

8 An application under these provisions cannot to be instituted by way of summons in the Court of Appeal. Section 78 of the Act requires an application to the Supreme Court. After consideration of an application under s 78 the Supreme Court is empowered to “direct” an inquiry under s 79. Section 75 of the Act states that the jurisdiction of the Supreme Court is to be exercised by the Chief Justice or by an authorised person.

9 The provisions of the Act clearly envisage an administrative, not a curial process. The relevant power is a power to direct. The power can only be exercised by the Chief Justice personally or by his or her appointee. This Court has no jurisdiction to make the order sought.

Background Facts

10 Each of the claimants was convicted of an offence under each of s 15 and s 16 of the Occupational Health and Safety Act 1983 (“the OH&S Act”) by a decision of Walton J of the Industrial Commission of New South Wales. (WorkCover Authority of New South Wales v Kirk Group Holdings Pty Ltd [2004] NSWIRComm 207; (2004) 135 IR 166.) His Honour subsequently imposed fines upon each claimant with respect to each charge. (WorkCover Authority of New South Wales v Kirk Group Holdings Pty Ltd [2005] NSWIRComm 1; (2005) 137 IR 462.) There has never been an appeal from sentence and this Court is not asked to review the sentence, or to appoint an inquiry into sentence.

11 The offences which each claimant was found to have committed constituted a contravention, respectively, of s 15(1) and s 16(1) of the OH&S Act which provide:

“15(1) Every employer shall ensure the health, safety and welfare at work of all the employer’s employees.”

“16(1) Every employer shall ensure that persons not in the employer’s employment are not exposed to risks to their health or safety arising from the conduct of the employer’s undertaking while they are at the employer’s place of work.”

12 On the relevant day charged, Mr Palmer, the farm manager employed by the corporate claimant who is the owner of the property, died in circumstances set out in this Court’s earlier judgment. The contravention of s 15 found to have occurred by the company claimant related to Mr Palmer and one other employee. The contravention of s 16 by the company claimant related to certain independent contractors who were on the property to construct fencing.

13 The individual claimant was found liable as a director pursuant to s 50 of the OH&S Act which provides:

“50(1) Where a corporation contravenes, whether by act or omission, any provision of this Act or the regulations, each director of the corporation, and each person concerned in the management of the corporation, shall be deemed to have contravened the same provision …”

14 Each claimant was entitled to rely, and did unsuccessfully rely, on the express defence under the OH&S Act.

15 In the case of the director, s 50(1) quoted above, goes on to say:

“ … unless he or she satisfies the court that:

…

(b) he or she was not in position to influence the conduct of the corporation in relation to its contravention of the provision, or

(c) he or she, being in such a position, used all due diligence to prevent the contravention by the corporation.”

16 In the case of the corporate claimant s 53 of the Act provided:

“53 It shall be a defence to any proceedings against a person for an offence against this Act or the regulations for the person to prove that:

(a) it was not reasonably practicable for the person to comply with the provisions of this Act or the regulations the breach of which constitute the offence, or

(b) 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.”

17 Walton J’s findings of primary fact that established the basis for a finding of ‘failure to ensure’ are wide ranging:

“[105] In my view, the evidence demonstrates, beyond reasonable doubt, that Mr Kirk (and therefore the Company, except in the case of (k)):

(a) had not seen or read the Owner's Manual prior to Mr Palmer's accident;

(b) did not supervise the daily activities of employees or contractors working on the Farm;

(c) did not conduct a risk assessment, or request any other person to conduct a risk assessment, regarding the use of the ATV on the Farm;

(d) did not take any steps to limit or restrict access to the ATV to only those employees and contractors who were suitably qualified and trained to ride the ATV;

(e) did not ensure that employees or contractors read and understood the Owner’s Manual;

(f) gave no instructions to any employee or contractor, including Mr Palmer, that conditions for use of the ATV specified in the Owner's Manual must be adhered to;

(g) gave no instructions to Mr Palmer to instruct employees and contractors only to use the ATV in accordance with the Owner’s Manual;

(h) gave no particular instructions to any employee or contractor as to how the Owner’s Manual would be applied at the Farm;

(i) gave no instructions to any employee or contractor that the ATV was not to be used off-road or on sloping terrain (either generally or of a particular gradient);

(j) relied on Mr Palmer to give instruction and training without equipping him with the knowledge or tools to undertake those duties, and without supervising or monitoring his performance of those duties;

(k) approached the creation of a safe system of work differently between two businesses he operated; and

(l) had no system in place to assess and determine whether or not employees of, or contractors to, the Company were trained in the use of the ATV, or were using the ATV in a manner which was safe and without risk to health.”

18 His Honour’s findings of risk and breach were:

“[151] What, then, was the relevant risk to safety in the present matter? 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.

[152] 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; to provide suitable training in relation to the use of the ATV; 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 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 defendants' favour. Nor, as I will discuss, does it excuse liability.

[153] My findings at paragraph [105], in part based on Mr Kirk's unequivocal evidence that:

(a) the Company did not have a system in place to determine whether or not Mr Palmer was using the ATV in a safe manner;

(b) the Company had never undertaken a risk assessment associated with the use of the ATV on the farm;

(c) the Company had never asked Mr Palmer to conduct a risk assessment in relation to the use of the ATV on the Farm;

(d) the Company had never determined whether Mr Palmer had the necessary skills or training to manage occupational health and safety on the Farm, but nevertheless gave him the responsibility to develop a safe system of work for the operation of the ATV on the Farm; and

(e) Mr Kirk did not take any steps in relation to health and safety on the Farm pertaining to the ATV following his own accident near a dam in which the ATV overturned;

WorkCover v Fletcher Constructions

19 Walton J addressed this issue as follows:

“[160] … First I will deal with the defendants' submission that there can be no offence in the present case because Mr Palmer’s behaviour leading to the accident was so aberrant and non-sensical that it was not capable of being foreseen and, as such, could not be within the contemplation of s 15.

O'Sullivan

Jurisdictional Error Submissions

20 A number of matters agitated before this Court on the first occasion are not now pursued. These proceedings have, save in certain specific respects on the part of the opponents, proceeded on the basis of the judgment of this Court in the first proceedings.

21 Both parties accept the analysis of this Court to the effect that, following the amendments to the privative clause in s 179 of the Industrial Relations Act 1996 discussed in the earlier judgment, this Court is empowered to exercise its supervisory jurisdiction on the basis of jurisdictional error after the Full Court of the Industrial Court had dealt with any appeal to it. (See Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (2006) 66 NSWLR 151 esp at [31], [36], [52] and [83].)

22 The claimants’ submissions rely on the authoritative statement in the joint judgment of the High Court as to the circumstances in which supervisory jurisdiction can be exercised with respect to a court in Craig v South Australia (1995) 184 CLR 163, which this Court had set out in the first proceedings. (See Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (2006) 66 NSWLR 151 at [37]-[38].)

23 The relevant test, invoked by the claimants, is whether the Industrial Court:

· “misapprehends or disregards the nature or limits of its functions or powers” (Craig supra at 177).

· “misconstrues [the] statute … and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case” (Craig supra at 177-178). This being an example of a court falling into jurisdictional error “by doing something which it lacks authority to do” (Craig at 177).

24 The claimants identified three jurisdictional errors by the Industrial Court in written submissions:

mens rea

[43] Secondly, it has applied the defence afforded by the legislature in s 53 of the OH&S Act in such a restrictive way that it presents no real defence at all.

[44] Finally, the Court has so confused the notion of a non delegable corporate duty with the question of who within the corporation may fulfil that non delegable duty as to inflict criminal responsibility without regard to corporate compliance.

[45] In each of these errors, the Court has so misunderstood its task as to fail to perform the duty reposed in it.”

25 In support of the first proposition the written submissions stated, in part:

Drake Personnel Ltd v Workcover Authority (NSW)

[52] In short the Industrial Court has found that there is an absolute duty on the employer created by section 15 of the OH&S Act to prevent any risk to the Health Safety or Welfare at work of its employees. The creation of a risk free environment is of course impossible in many areas of industry …

…

[55] … If no coherent consistent restriction is placed on the apparently wide ranging scope of the statutory provision it covers all manner of circumstances over which the employer can have no control. No such restriction has been attempted by the Industrial Court.”

26 The claimants submit that s 15(2) suggests a legislative intention to restrict the duty under s 15(1) – specifically the restriction in s 15(2)(d) – to a “place of work under the employer’s control”. The claimants also invoke the reference in s 15(3) to any plant or substance not being “regarded as properly used”, in support of the same proposition:

27 Those subsections state:

“15(2) Without prejudice to the generality of subsection (1), an employer contravenes that subsection if the employer fails

…

(d) as regards any place of work under the employer’s control:

(i) to maintain it in a condition that is safe and without risks to health …

15(3) For the purposes of this section, any plant or substance is not to be regarded as properly used by a person where it is used without regard to any relevant information or advice relating to its use which has been made available by the person’s employer.”

28 The claimants further submit:

“[58] Alternatively, the rigor of the statute may be alleviated by focusing attention on whether the risk arises through some positive act or omission of the employer. Again the Industrial Court or its predecessor has resisted any such restriction … The employer has been held responsible for risks created through strikes and through the actions of inherently unstable criminals.

[59] The absolute statutory duty created by the Act as interpreted by the Industrial Court is incapable of compliance. Such an interpretation offends the rule of law.”

29 The claimants noted that there is a reference to “reasonable practicability” as a qualification in the statement of the duty itself in the interstate equivalents of s 15(1) and s 16(1) of the OH&S Act. In New South Wales alone the reference arises by way of a defence in s 53(a).

30 In this regard the claimants submit:

Barry Edward McDonald (t/as B.E. McDonald Transport) v Girkaid Pty Ltd & 4 Ors)

31 The claimants conclude:

Sankey v Whitlam

‘The distinction between no jurisdiction and jurisdiction to entertain proceedings for an offence unknown to the law is not sufficiently formidable to warrant intervention in one case but not in the other.’

Occupational Health and Safety Act

Craig v South Australia

32 In oral submissions, counsel for the claimants asserted that the Industrial Commission:

“ … has … imposed a duty which is incapable of being met. It has read the statute as imposing upon an employer an obligation to ensure a risk-free environment, which the court in its own jurisprudence acknowledges cannot exist.”

33 As to the defence in s 53, the claimants made the following submission:

“[67] … the Court below was unmoved by the practicability of a small farm operation with two part time employees conducting risk assessments and putting in place written procedures in respect presumably to every implement which could be used on the farm. This notwithstanding the familiarity of those at risk with farming operations … Such an approach to the defense, in the respectful submission of the claimant, presents in such a way that the statutory defense is not available at all. If the legislature provided a defense, presumably it was meant to have some utility. The fact that there are less than a handful of cases in the last 10 years where regard has been had to the defense may well point towards the perceived lack of utility of the defense on the interpretation adopted in the Court below.”

Capacity to Comply

34 The central thrust of the claimant’s submissions, repeated in a number of ways in oral submissions, was that the obligations under the OH&S Act must be capable of being complied with. To similar effect, the claimants submit that the Commission’s approach deprives the defence in s 53 of any significance. It may be accepted that this was not Parliament’s intention. However, the jurisprudence of the Industrial Court is not based on the denial of this proposition.

35 Walton J set out the relevant jurisprudence in the Industrial Relations Commission (now retitled, relevantly, the “Industrial Court”) which expressly excludes liability for “risks that are impossible to anticipate, unduly remote or speculative”. (See his judgment on liability WorkCover Authority of New South Wales v Kirk Group Holdings Pty Ltd [2004] NSWIRComm 207; (2004) 135 IR 166 at [130], [136].) His Honour indicated that he was inclined to take a different view and that he would assess such matters in terms of causation (see at [134]-[135]) but concluded that nothing turned on this in the proceedings (at [137]). Nevertheless, the prevailing jurisprudence in the Commission is as stated.

36 Similarly, Walton J identified (at [146]) authority that states that it would not be reasonably practicable to take precautions against a danger which could not have been known or, generally, which could not be reasonably foreseen.

37 The significance of these lines of authority is that it cannot be said that the Commission has, generally or in this case, adopted a position where it enforces obligations impossible of compliance or that no defendant can establish impracticability. In this regard I can detect no jurisdictional error. To apply the terminology of Craig supra at [23] above, the Commission has not misconceived its function, etc. Indeed, if there is an error of law, it is at most an error of interpretation within jurisdiction.

38 However, in substance, the claimants’ submissions, in my opinion, involve an assertion that the Commission, in practice, stretches the concept of risk to such an extent that the exception for “unduly remote or speculative” risks and the defence are deprived of practical content. Similarly, that the concept of what is “reasonably practicable” is extended beyond reasonable grounds. These errors, if any, are based on factual findings. This Court does not have jurisdiction to review an error of that character.

39 Another way in which the claimants expressed this submission was that the Commission proceeds with respect to both a finding of contravention and the application of the defences so that, with the benefit of hindsight, it is always possible to think of something that might have avoided a risk that has materialised. This is also fact finding with respect to both the contravention and the s 53 defence. In my opinion, the thrust of the claimants’ case is to seek judicial review of fact finding. That is not permissible in this Court.

40 The only submission made to the effect that such errors of law, which this Court has no jurisdiction to correct, constitute jurisdictional errors, entitling this Court to intervene, was that “the law ‘was’ not being applied in accordance with the statute”. This does not identify a jurisdictional error. (See Craig supra at 177-178, set out above at [23].) Indeed, counsel for the claimants did not attempt to explain why these alleged errors constituted a misapprehension of the Commission’s functions or powers, etc.

Other Submissions

41 The claimants submit that any risk to safety had to be foreseeable. I reject the submission that a test of reasonable foreseeability should be introduced into each statutory obligation. Section 15(1) and s 16(1) are strict liability offences in the sense that a mental element is not part of the offence, whether expressed in terms of intention or negligence. I do not find any assistance in the cases relied upon by the claimants concerning actions in negligence by an employee against an employer.

42 The claimants also referred to the defence of honest and reasonable mistake of fact, which, if applicable could give rise to a jurisdictional issue. (See Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (2006) 66 NSWLR 151 at [43] referring to R v Badger (1856) 6 EL & BL 138; 119 ER 816.) The significance of this “defence” or ground of exculpation, has recently been reaffirmed. (CTM v The Queen [2008] HCA 25 at [5]-[8], [35].) This “defence” was not relied upon before Walton J. Reference was made in the submissions before his Honour to the “defence”, but the claimants did not and, on my reading of the decision in the Industrial Relations Commission and on appeal to the Full Bench, could not suggest that the “defence” had anything to do with this case.

43 No fact was ever identified in the Industrial Court or in this Court which could serve to relevantly excuse any, let alone each, of the breaches established. Nor was the Court referred to any evidence about such a fact or of an honest and reasonable belief in it. The most the claimants could point to was that Mr Kirk could not believe that Mr Palmer acted as he did. However, as the extracts from Walton J’s judgment set out at [17]-[19] above indicate, the actual accident did not exhaust the range of failures constituting the contravention. The “defence” of honest and reasonable mistake has nothing to do with this case.

44 The claimants’ submissions concentrated to a substantial degree on the circumstances of the particular accident that occurred. They drew attention to the skill and experience of some of the persons on the farm, including the deceased, and to the extraordinarily foolhardy nature of the actual conduct. I do not find it necessary to consider this factual detail.

45 For present purposes it is sufficient to note that although the particular accident triggered the investigation, the charge and conviction were not confined by it. I have set out above at [19] Walton J’s findings in this respect. The claimants were convicted of creating a risk, not of causing an accident. The identification of the scope and nature of the risks went beyond the actual occurrence.

46 The claimants’ submissions, variously expressed, that the accident that occurred was unforeseeable or that all relevant persons could relevantly be relied upon, because they knew how to drive the vehicles or were not permitted to do so, are misconceived. In any event, they do not establish anything in the nature of a jurisdictional error within the Craig formulation. Indeed, in my opinion, these submissions confirm that the claimants are seeking to appeal from findings of fact. This Court has no such jurisdiction.

47 With respect to the claimants’ reliance on s 15(2)(d) and s 15(3), set out above, there was no attempt to articulate why this alleged error in interpreting the statute was jurisdictional in the Craig sense. In any event, s 15(2) expressly states that it does not limit the generality of s 15(1). It is not clear what are the full implications of the identification by s 15(3) of when “plant is not to be regarded as properly used”. However, the words “properly used” appear in s 15(2)(f)(ii) and it appears to me that that is probably the limit of their application. It has no relevance for this case.

Corporate Responsibility

48 The issue upon which the Full Bench gave leave to appeal, and dismissed the appeal, was (Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales [2007] NSWIRComm 86; (2007) 164 IR 146 at [5]):

“The Court [ie Walton J] 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.”

49 With respect to this issue, the claimants’ written submissions in this Court state:

“[68] In relation to corporate responsibility, it is clear on the face of the judgment of the Full Court in the proceedings below that there has been a misunderstanding of the concept of corporate responsibility and non delegable duty. The approach may best be expressed by reference to the English case cited by the Court below [50]. The simple point taken by the claimant in the proceedings below was that there was no finding that the company had failed to fulfill its duty. Given that Mr Palmer had been directed by the Company to fulfill the company’s duty, any finding as to the failure of the company to fulfill that duty had to have regard to what Mr Palmer did, not to what Mr Kirk did. This has nothing to do with the ‘corporate mind’. It is a complete acceptance of the non delegable nature of the duty. The question is to what one’s attention must be directed in determining whether the duty has been fulfilled. For instance, if one was to ask whether the Company had filed a taxation return, one would not readily conclude that no return had been filed simply because Mr Kirk had not personally filed such a document. It remains the Company’s responsibility to file the return, but if the accountant files it in accordance with his instructions then the company has fulfilled its statutory duty.”

50 In oral submissions, the claimants contended that the company did in fact satisfy the duty through someone other than Mr Kirk, ie Mr Palmer. This was, in substance, a challenge to the finding by Walton J at [105] of his judgment set out at [17] above, that certain failures were occasioned by Mr Kirk “and therefore [by] the company”. The submission is that the company was not in breach if it did take the steps by some person. A finding that Mr Kirk did not take the steps does not establish that no one did so.

51 The claimants submit that Walton J did not address the issue of whether Mr Palmer did any of the matters found to have been required (T 19.15-26). The Full Bench, they further submit, failed to address the correct issue on the appeal by misunderstanding the claimants’ submission to it.

52 The claimants submit in the oral hearing before this Court:

“If Mr Palmer didn’t do them then we have no defence. What our complaint is, the court never attended on whether Mr Palmer did them or not. There’s no finding that Mr Palmer didn’t do any of this. There’s a finding that Mr Kirk didn’t do it. There’s a finding that Mr Kirk took no steps to ensure that Mr Palmer didn’t do it or did do it. But there’s no finding that Mr Palmer didn’t do it. There was evidence that Mr Palmer did do it. There was evidence that he discriminated in the use that employees have or that people had in their access to the ATV. But with some people he told them that they weren’t to leave the marked tracks. With others he didn’t. Mr McLeod the independent fencing contractor, he has been riding on his evidence motor bikes since primary school and he’s 55. He’s driven ATVs. He was allowed to take the vehicle off road.”

53 The most pertinent findings of Walton J in this regard were:

“[153] … Mr Kirk gave evidence that the Company had placed Mr Palmer "in charge" of the health and safety of employees and contractors on the Farm. It may well be that Mr Kirk was not in good health and that he placed enormous trust in his friend and employee, Mr Palmer. However, the duties imposed by ss 15 and 16 of the Act fall squarely on the Company. By purporting to delegate all responsibility for health and safety to Mr Palmer, the Company has neglected those duties. However, the Company's failure does not end there. Having delegated total responsibility, the Company took no steps to ensure that Mr Palmer had the necessary skills to conduct a risk assessment, to provide or arrange training, to instruct others in the safe use of the ATV or to supervise the use of the ATV. Further, the Company took no steps to ensure that Mr Palmer carried out his duties, particularly with respect to health and safety. Consequently, it had no effective control over use of the ATV prohibited or warned against by the Owner's Manual.

[154] The provision of the safety information contained in the Owner's Manual was fundamental to ensuring the health and safety of employees and contractors. The Company's duties under the Act required it to not only make the Owner's Manual available to all persons who used the ATV on the Farm, but also to actively promulgate the information in the Owner's Manual to ensure that it had been read, understood and applied. In my view, the Owner's Manual presented a clear and practicable means of conveying important safety information about the operation of the ATV. The Company failed entirely to take advantage of that means; indeed, Mr Kirk did not know of the existence of the Owner's Manual prior to Mr Palmer's accident. The Company took no steps to disseminate the information in the Owner's Manual to those who used the ATV on the Farm: it is plain on the evidence that no employee or contractor, other than Mr Palmer, had been given a copy of the Owner's Manual and Mr Palmer received it by dint of taking possession of the ATV, not due to any independent instruction by the Company to ensure that he read it and abided by its safety precepts.”

“[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 done. 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 he 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).”

Genner Constructions

54 His Honour concluded:

“[162] Secondly, the defendant's submission that ‘the evidence suggests that all foreseeable risks associated with the use of the ATV were the subject of appropriate risk management’ cannot be sustained in the light of these conclusions and my findings at [105], particularly (c) and (l): that Mr Kirk, and therefore the Company, did not conduct a risk assessment or request any other person to conduct a risk assessment regarding the use of the ATV on the Farm, and had no system in place to assess and determine whether or not employees or contractors of the Company were trained in the use of the ATV, or were using the ATV in a manner which was safe and without risk to health. To speak even more plainly, and noting that the question of reasonable foreseeability does not arise in the assessment of liability, there was clearly a foreseeable risk (spelt out in the Owner's Manual) that the ATV would overturn when driven off-road or when used to tow things and yet nothing was done to ameliorate these risks.”

55 No attempt was made to identify how the oversight or finding by Walton J could constitute relevant jurisdictional error. It is all plainly fact finding, which this Court has no jurisdiction to review.

56 Towards the end of oral submissions the claimants made reference to procedural fairness, in the context of challenging some of the findings of fact, particularly the finding that the company failed to ensure that Mr Palmer had the requisite skill to ensure safety. This was not articulated as a separate basis for jurisdictional error on the part of a court, as distinct from a tribunal. Even assuming that such is capable of constituting jurisdictional error on the part of a court, which it is not necessary to consider, it is sufficient to note that this finding was merely one of many identified failings and does not constitute a basis for intervention.

57 With respect to the decision of the Full Bench, the claimants submit that the Full Bench failed to deal with the submission which was based on the absence of any finding that Mr Palmer failed to take the relevant steps. The Court focussed only on whether Mr Kirk was the controlling mind of the company and concluded, incorrectly the claimants submit, that it was unnecessary to deal with their submission.

58 Indeed, the Full Bench said:

“[65] Walton J made certain findings, especially at [105] and [153], regarding the appellants’ failures to ensure the safety of employees and non-employees. Those findings were not challenged on the appeal except to the extent that it was contended his Honour failed to determine that the corporate appellant had in fact fulfilled its duty through Mr Palmer who, rather than Mr Kirk, had been chosen by the corporate appellant to fulfil the duty and that there were no findings that Mr Palmer, as the controlling mind of the company in respect of the farm operations, committed any breach of the Act.

[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.”

59 The claimants assert that the failure of the Full Bench to consider the submission was jurisdictional error. I can see no relevant jurisdictional error in accordance with the formulation in Craig set out at [23]. Indeed, no attempt was made to identify how the failure to deal with a specific submission constituted a misconception of its functions, etc.

Conclusion

60 The summons should be dismissed with costs.

61 HODGSON JA: I agree with the orders proposed by Spigelman CJ and with his reasons.

62 It is arguable that the Full Bench did not address the question whether Walton J erred in failing to consider whether or not it was proved beyond reasonable doubt that the corporate claimant did not, by its employee Mr Palmer, take steps which materially reduced the relevant risks; but I agree with Spigelman CJ that this was not a jurisdictional error.

63 HANDLEY AJA: I agree with Spigelman CJ.

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Citations

Kirk v Industrial Relations Commission of New South Wales [2008] NSWCA 156

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Cited Sections

Reported Decision:	173 IR 465
Appeal Outcome:	Special leave granted by the High Court 1 May 2009 (S348/2008)

CITATION:	Kirk v Industrial Relations Commission of New South Wales [2008] NSWCA 156
HEARING DATE(S):	26 May 2008
JUDGMENT DATE:	3 July 2008
JUDGMENT OF:	Spigelman CJ at 1; Hodgson JA at 61; Handley AJA at 63
DECISION:	The summons should be dismissed with costs.
CATCHWORDS:	ADMINISTRATIVE LAW – Judicial review of the Industrial Relations Commission of New South Wales – jurisdictional error – Craig v South Australia (1995) 184 CLR 163 - CRIMINAL LAW – Inquiry after conviction – application must be made to Supreme Court – jurisdiction to be exercised by Chief Justice or authorised person – s 78 and s79 Crimes (Appeal and Review) Act 2001
LEGISLATION CITED:	Crimes (Appeal and Review) Act 2001 Industrial Relations Act 1996 Occupational Health and Safety Act 1983
CASES CITED:	Craig v South Australia (1995) 184 CLR 163 CTM v The Queen [2008] HCA 25 Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2006] NSWIRComm 355; (2006) 158 IR 281 Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales [2006] NSWCA 172; (2006) 66 NSWLR 151 Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales [2007] NSWIRComm 86; (2007) 164 IR 146 R v Badger (1856) 6 EL & BL 138; 119 ER 816 WorkCover Authority of New South Wales v Kirk Group Holdings Pty Ltd [2005] NSWIRComm 207; (2004) 135 IR 166 Work Cover Authority of New South Wales v Kirk Group Holdings Pty Ltd 2005] NSWIRComm 1; (2005) 137 IR 462
PARTIES:	Graeme Joseph Kirk (First Claimant) Kirk Group Holdings Pty Ltd (Second Claimant) Industrial Relations Commission of New South Wales (First Respondent) WorkCover Authority of New South Wales (Inspector Childs) (Second Respondent)
FILE NUMBER(S):	CA 40412/07
COUNSEL:	G J Hatcher SC; Dr C S Ward (Claimants) J V Agius SC; P M Skinner (Second Respondent)
SOLICITORS:	David Lardner Lawyers (Claimants) Work Cover Authority of New South Wales (Second Respondent)
LOWER COURT JURISDICTION:	Industrial Relations Commission of New South Wales
LOWER COURT JUDICIAL OFFICER:	Wright J President; Boland J; Backman J
LOWER COURT DATE OF DECISION:	8 May 2007
LOWER COURT MEDIUM NEUTRAL CITATION:	Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales [2007] NSWIRComm 86