Linfox Resources Pty Ltd v The Queen

[2010] VSCA 319

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCR 2010 0278

LINFOX RESOURCES PTY LTD

First Applicant

v

THE QUEEN

Respondent

DOWNER EDI MINING PTY LTD

v

THE QUEEN

THIESS PTY LTD

v

THE QUEEN

S APCR 2010 0279

Second Applicant

Respondent

S APCR 2010 0280

Third Applicant

Respondent

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JUDGE:	MAXWELL P, WEINBERG and MANDIE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 October 2010
DATE OF JUDGMENT:	29 November 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 319
JUDGMENT APPEALED FROM:	DPP v Downer EDI Mining Pty Ltd & Ors (Ruling No 2; Ruling No 3) (Unreported, County Court of Victoria, Judge Murphy, 24 August 2010)

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CRIMINAL LAW – Appeal – Interlocutory appeal – Occupational health and safety – Duty to ensure workplace was safe – Mining joint venture – Three corporate members operating under joint venture name – Safety duty imposed on ‘employer’ and on persons having ‘management or control of workplace’ – Presentment and Crown opening attributed duty and breach to joint venture as such – Absence of legal personality – Absence of evidence to prove individual companies were employers or had management or control – Whether inference of employment or control reasonably open – Whether safety duties imposed on ‘unincorporated association’ – No case to answer – Appeal allowed – Charges dismissed – Occupational Health and Safety Act2004 (Vic) ss 21, 23, 26, 145; Criminal Procedure Act 2009 (Vic) s 296.

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APPEARANCES:	Counsel	Solicitors
For the First Applicant	Ms C Button	Sparke Helmore Lawyers
For the Second Applicant For the Third Applicant For the Crown	Mr B Walters SC Mr G Livermore Dr G Lyon SC with Mr K Armstrong	Sparke Helmore Lawyers Sparke Helmore Lawyers Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P
WEINBERG JA
MANDIE JA:

Introduction

1. The three applicant companies (respectively, ‘Linfox’, ‘Downer’ and ‘Thiess’) are members of a joint venture which they called the ‘Roche Thiess Linfox Joint Venture’.[1]  The joint venture is registered in that name for GST purposes, under an Australian Business Number.  In the documents in evidence, the joint venture is always referred to as ‘RTL’, and for consistency we will adopt the same abbreviation.

   [1]Roche Mining Pty Ltd changed its name to Downer EDI Mining Pty Ltd in 2007.

1. In 2002, Yallourn Energy Pty Ltd,[2] the holder of mining rights for a coal mine in Yallourn, entered into an arrangement with RTL to develop the mine.  Under the ‘Alliance Agreement’, Yallourn Energy agreed to give RTL possession of the mine site and RTL agreed to carry out contract mining.  On 31 October 2006, Richard Gauci died as a result of injuries received when he was crushed by a belt clamp on a conveyor at the Yallourn mine.  Mr Gauci was an employee of a maintenance subcontractor engaged by RTL (‘Silcar’).

   [2]In 2005, the company changed its name to TRUenergy Pty Ltd.

1. Charges have been laid against the applicants under ss 21, 23 and 26 of the Occupational Health and…