Lyco Industries Pty Limited v Inspector Ruth Buggy

[2007] HCATrans 310

Replacement Transcript

[2007] HCATrans 310

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S26 of 2007

B e t w e e n -

LYCO INDUSTRIES PTY LIMITED

Applicant

and

INSPECTOR RUTH BUGGY

Respondent

Application for special leave to appeal

GLEESON CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 JUNE 2007, AT 10.45 AM

Copyright in the High Court of Australia

MR J.P. PHILLIPS, SC:   May it please your Honours, I appear for the applicant.  (instructed by McCulloch & Buggy)

MR J.V. AGIUS, SC:   May it please the Court, I appear with my learned friend, MR R. REITANO, for the respondent.  (instructed by Workcover Authority)

GLEESON CJ:   Yes, Mr Phillips.

MR PHILLIPS:   Your Honour, there is a point in this matter which is common to the matters which follow in matters 6 and 7.  There is a constitutional issue regarding whether the Industrial Court is the Supreme Court for the purposes ‑ ‑ ‑

GLEESON CJ:   Yes, well, the first question is whether that issue arises.

MR PHILLIPS:   Yes, and we are content to rely upon our oral submissions on that point.  We also rely upon the submissions – obviously we stand or fall based on what is going to take place in the other matters, so we will just confine our submissions to the territorial point.  The territorial point is a discrete point to the extent that this was a supply of plant.  The applicant was prosecuted under the Occupational Health & Safety Act (NSW) for the supply of that plant.  Relevantly, that supply, we say, took place in the state of Victoria.

GLEESON CJ:   Could you state summarily the facts relevant to that issue?

MR PHILLIPS:    Yes.  The plant was manufactured in Ballarat, handed over to a common carrier, another common carrier, then it was taken to Hexham in New South Wales.  The charge against us is that the place of the offence occurred at Hexham.  We say at no stage ‑ ‑ ‑

GLEESON CJ:   Hang on.  It was delivered to a carrier in Victoria?

MR PHILLIPS:    It was handed to a carrier in Ballarat.

GLEESON CJ:   What was the carrier supposed to do with it?

MR PHILLIPS:    The carrier was to take it to New South Wales.

GLEESON CJ:   Yes.  On whose behalf?

MR PHILLIPS:    We relied upon the Sale of Goods Act (NSW) or indeed the Goods Act (Vic).The provision in relation to that is section 39 in the Victorian Act and that deems when sale of a good takes place and is handed to a carrier, that “is prima facie deemed to be a delivery of the goods to the buyer” at that place.

GLEESON CJ:   Yes, but what were the facts relating to the arrangement?

MR PHILLIPS:    There was the sale of the plant, which is a hydraulically powered pile driver.

GLEESON CJ:   Who paid the carrier?

MR PHILLIPS:    That was paid for in the purchase price , so that ultimately the purchaser paid for the carrier.

GLEESON CJ:   You mean by that that the vendor was obliged to deliver the goods to the purchaser?

MR PHILLIPS:    Yes.

GLEESON CJ:   In New South Wales?

MR PHILLIPS:   We say ultimately that was part of the purchase price, but we say that by reference to determining where the supply took place ‑ ‑ ‑

GLEESON CJ:   When you say it was part of the purchase price, do you mean the purchaser did not pay for it separately?

MR PHILLIPS:   No, there was one fee.  If one looked at the invoice it was all part and parcel of the same amount of money.  The reason we say the supply took place in Victoria, we rely on the ‑ ‑ ‑

GLEESON CJ:   I am just trying to work out who paid the carrier.

MR PHILLIPS:   Ultimately the purchaser paid the carrier.

GLEESON CJ:   I do not mean ultimately.  I meant who paid the carrier?  I know that the purchase price included an amount to represent the cost of carriage, but who paid the carrier?

MR PHILLIPS:   The applicant paid the carrier.

GLEESON CJ:   Your client?

MR PHILLIPS:   Yes, your Honour.  While we say that the delivery took place and the supply therefore took place in New South Wales is we rely upon the Goods Act (Vic) or the comparable provision in New South Wales and its provisions which are found at page 12 of the application book where it reads that it “is prima facie deemed to be a delivery of the goods to the buyer”. That is the simply point upon which our case before the Industrial Court rested, your Honour.

GLEESON CJ:   Did the contract of sale require the vendor to arrange for the delivery of the goods to New South Wales?

MR PHILLIPS:   Yes, your Honour.

GLEESON CJ:   The question then for the court was whether that was a supply of goods in New South Wales?

MR PHILLIPS:   Indeed.  We relied upon the statutory provision.  Often times there are a lot of cases involved – I think one of them is Lipohar – which goes to that point where one can rely upon the common law or statutory construction in order to work out where precisely an offence occurred.  We say at no relevant time did we come into New South Wales during the period in which it was said the supply took place.  The other point which was determined by the court below was the construction of section 3A of the Crimes Act.  Section 3A of the Crimes Act is conveniently set out at page 55 of the application book. 

In relation to that we say that if the supply had taken place in the State of Victoria then the supply was a once and only and complete act and if it had taken place based on our reliance upon the Goods Act, then one does not come in to have regard to section 3A of the Crimes Act because all elements of the offence were complete when the supply took place when given to the carrier in Victoria.  The Industrial Court relied upon the purpose of the statute and, in relying upon the purpose of the statute, set out that it would be an easy way to evade the provisions if merely one delivered the plant or substance by someone else in New South Wales.  That is referred to at page 17 of the application book, in particular, at paragraph 39. 

We say one does not get to section 3A of the Act on the basis that the supply was complete.  What the trial judge seemed to have regard to is what we say would have taken place if one looked at the subsequent provision of the Crimes Act being section 10C which did not apply at the time of this supply.  Section 10C applied about a year later in July of 2000.  Section 10C is referred to at page 88 of the application book.  It is in my friend’s submissions.  The relevant part there would be section 10C(2)(b) which says:

(b)the offence is committed wholly outside the State, but the offence has an effect in the State. 

If that provision applied at the time, we would be caught by that provision because clearly the supply of such plant ultimately did have an effect in the State of New South Wales.  We say that is, in effect, how the Industrial Court, both the trial judge and the full bench, dealt with the matter and we say that, in effect, they pre-empted a change in the Act.  We would submit why special leave ought be given in this case is that section 3A would continue to apply and any common law provision which applied before that to any plant supplied before July 2000. 

The reason for that is because of section 107 of the current Occupational Health and Safety Act (NSW) which permits the prosecutor an additional period of six months to launch prosecutions against a supplier of plant once it comes to its attention that that supply of the relevant plant has taken place.  So it could well be that there is a plant supplied as long ago as 20 years ago, an accident might happen in New South Wales and the prosecutor looks at the plant, determines that the plant was an unsafe plant in accordance with the provision of the Act and then could launch a prosecution in that regard. 

So that even though these events happened during the period in which section 3A of the Crimes Act applied, it would also mean that any plant supplied before that time could still be subject to prosecutions launched by the Workcover Authority or anybody else who has authority to launch such proceedings under the Act.

GUMMOW J:   The text of section 18 is at page 5?

MR PHILLIPS:   Yes, your Honour.

GUMMOW J:   So the idea was that a person who “supplies any plant or substance for use by persons at work” is that right?

MR PHILLIPS:   Yes.

GUMMOW J:   And on the face of it that is silent as to where the supply takes place or where the use is to be?

MR PHILLIPS:   Yes.  We would submit that once it was handed over to the carrier that the supply was complete.

GUMMOW J:   Just looking at the statutory offence, but do you not then go to 3A?  In other words, you have to read 3A and 18 together, do you not?

MR PHILLIPS:   Yes.

GUMMOW J:   The idea is that all the elements necessary to constitute the offence existed in the abstract, as it were.

MR PHILLIPS:   Yes.

GUMMOW J:   And then you ask yourself, was there a territorial nexus with at least one element of the offence?  Then you get to subsection (3), do you not, it is to be presumed and then there is an obligation to rebut it?

MR PHILLIPS:   Yes.

GUMMOW J:   Why was there no territorial nexus or, to put it more accurately, why would the presumption be rebutted?

MR PHILLIPS:   We say that if the offence is complete once the supply takes place, then at that particular moment all elements of the offence are made out and consequently there would be no nexus with the State of New South Wales.

GUMMOW J:   It was for use by persons that work in New South Wales, was it not?

MR PHILLIPS:   Yes, your Honour.  That is all I wish to say, your Honours.  Thank you.

GLEESON CJ:   Yes, thank you.  Yes, Mr Agius.

MR AGIUS: Your Honours, it is our submission that this application has so little prospect of success that special leave ought to be refused. We say that because in order to succeed the applicant really must establish three things. One, that supply in section 18 of the Occupational Health and Safety Act (NSW) means no more than delivery in the Sale of Goods Act (Vic). In our respectful submission, that is inconsistent ‑ ‑ ‑

GUMMOW J:   Supply for a purpose.  It is a composite idea.

MR AGIUS:   Yes, supply for a purpose, which we ‑ ‑ ‑

GUMMOW J:   Namely for use.

MR AGIUS:   Yes.  We say that is the element of the offence.  It is not simply supply.  It is supply for use by persons at work, this being the Occupational Health and Safety Act dealing with the safety of persons at work.  The element is supply for use at work.  It is a broader concept, in our submission, than simple delivery under the Sale of Goods Act.  The Sale of Goods Act only speaks of a prima facie position in any event and it seeks to

regulate conduct as between parties who are subject to a contract. It is an entirely different context to the use of a different word “supply” in section 18 of the Occupational Health and Safety Act, which is a much broader proposition than supply pursuant to a sale under a Sales of Goods Act. 

That much is clear if one has reference to the whole of section 18 and, in particular, section 18(2)(d) which speaks of supply by way of “sale, transfer, lease or hire and whether as principal or agent”. The full bench relied upon that extended definition of supply to distinguish this from a situation which was purely one of delivery under the Sale of Goods Act.  I mean, fundamentally, can the definition of delivery and the law pertaining to it which is designed to regulate the conduct between two individuals in a commercial sense, can it override what appears to be contextual meaning of the word as it appears in a statute, like the Occupational Health and Safety Act, which is protected legislation?

GLEESON CJ:   Yes, thank you, Mr Agius.  Yes, Mr Phillips.

MR PHILLIPS:   Your Honour, we would just say that part of the statute which describes for use at work is descriptive of the plant and if the supply is complete at one point in time, that would be the end of the matter in terms of section 3A of the Act.  May it please your Honours.

GLEESON CJ:   We think that there are insufficient prospects of success on the issues on which the respondent succeeded at first instance and again on appeal to warrant a grant to the applicant of special leave to appeal in this matter, and the application is dismissed with costs.

AT 10.53 AM THE MATTER WAS CONCLUDED