MacCarron v Coles Supermarkets Australia Pty Ltd

[2001] WASCA 61

MACCARRON -v- COLES SUPERMARKETS AUSTRALIA PTY LTD T/AS COLES SUPERMARKETS & ORS [2001] WASCA 61

Reported Decision:	(2001) 23 WAR 355
Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASCA 61
Court:	THE FULL COURT (WA)	Published:	07/03/2001
Case No:	SJA:1058/1998	Heard:	18 NOVEMBER 1999
Coram:	KENNEDY J WALLWORK J MURRAY J	Delivered:	7/03/01
No of pages:	53	Judgment Part:	1 of 1
Result:	Appeal dismissed
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Parties:	CIARAN MACCARRON COLES SUPERMARKETS AUSTRALIA PTY LTD T/AS COLES SUPERMARKETS K MART AUSTRALIA LTD T/AS K MART ROSALIE DORISE BRITZA T/AS ROSALIE'S TROLLEYS KARRATHA
Catchwords:	Statutes Validating Acts Retrospectivity Application of retrospective Act to proceedings the subject of an appeal by way of rehearing Magistrates Procedure Complaint Whether sufficient proof that proceedings instituted by a person authorised by Commissioner for Occupational Health, Safety and Welfare De facto officer Term of office expired Office vacant Officer continuing to act Whether delegation of authority by officer when so acting valid Industrial safety, health and welfare Prosecution for failure to provide a working environment in which employee not exposed to hazards No case to answer
Legislation:	Justices Act 1902, s 184, s 196(1) Occupational Safety and Health Act 1984, s 9, s 10(a), s 18(4), s 19(1), s 19(4), s 42(1), s 52(1 Occupational Safety and Health (Validation) Act 1998, s 4 Public Sector Management Act 1994
Case References:	Adams v Adams [1971] P 188 Anderson v State (1946) 195 SW 2d 368 Baker v Australian Asbestos Insulations Pty Ltd (1985) 3 NSWLR 280 Balmain Association Inc v Planning Administrator (1991) 25 NSWLR 615 Bawn Pty Ltd v Metropolitan Meat Industry Board (1970) 72 SR (NSW) 466 Cantwell v City of Southfield Mich App 290 NW 2d 151 (1980) Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 Doney v The Queen (1990) 171 CLR 207 Equal Employment Opportunity Commission v Sears Roebuck & Co 505F Supp 241 (1980) G J Coles & Co Ltd v Retail Trade Industrial Tribunal (1987) 7 NSWLR 503 Grooms v La Vale Zoning Board 340 AD 2d 385 (1975) Henderson v Read [1993] 1 VR 537 Hewitt v Lewis [1986] 1 WLR 444 Hughes v Hughes (1971) 2 SASR 368 Izer v State 26A 282 (1893) Maxwell v Murphy (1957) 96 CLR 261 Mills v Meeking (1990) 169 CLR 214 Moltoni v Shepherd [1999] WASCA 73 Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482 Newell v The King (1936) 55 CLR 707 Palos Verdes Estates Pty Ltd v Carbon (1992) 6 WAR 223 Price v Humphreys [1958] 2 QB 353 R v Bates [1911] 1 KB 964 R v Bilick (1984) 36 SASR 321 R v Cawthorne; ex parte Public Service Association of South Australia Inc (1977) 17 SASR 321 R v Turner [1910] 1 KB 346 Rabczynski v Morrison [1988] WAR 71 Re Aldridge (1893) 15 NZLR 361 Re Governor, Goulburn Correctional Centre; ex parte Eastman (1999) 73 ALJR 1324 Reed v President and Commissioners of Town of North East 172 A 2d 536 (1961) Ridout v State 30SW (2d) 255 (1930) Rodway v The Queen (1990) 169 CLR 515 Schulz v Virgin [1966] SASR 94 State of Kansas v Miller  Kan, 565P 2d 228 (1977) State v Carroll (1871) 9 Am Rep 409 State v Carroll [1871] 9 Am Rep 409 Thompson v The Queen (1989) 169 CLR 1 Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73 Adams (Deputy Commissioner of Taxation (Vic)) v Chas S Watson Pty Ltd (1938) 60 CLR 545 Re Armstrong and Stewart (1878) 4 VLR (L) 101 Attorney-General v Vernazza [1960] AC 965 Ball v United States (1891) 140 US 118; 35 L Ed 377 Boheto Pty Ltd v Sunbird Plaza Pty Ltd [1984] 2 Qd R 9 Colonial Sugar Refining Co Ltd v Irving [1905] AC 369 Commonwealth v SCI Operations Pty Ltd (1998) 192 CLR 285 Commonwealth v Verwayen (1990) 170 CLR 394 Ellis v Bourke (1889) 15 VLR 163 Ertech Pty Ltd v Reid, unreported; SCt of WA (White J); Library No 9174; 6 December 1991 Eyre v Wynn-MacKenzie [1896] 1 Ch 135 Re Gardiner [1938] SASR 6 Interstruct Pty Ltd v Wakelam (1990) 3 WAR 100 Luff v Oakley (1986) 82 FLR 91 Manning v Weeks (1890) 139 US 504 May v O'Sullivan (1955) 92 CLR 654 Morrison v Competitive Foods Ltd, unreported; SCt of WA (Murray J); Library No 9118; 25 October 1991 Moursellas v Pharmaceutical Council of Western Australia (1992) 10 WAR 240 Myers v Claudianos (1990) 100 FLR 362 Official Trustee in Bankruptcy v Byrne (1989) 94 FLR 465 O'Neil v The Attorney General of Canada (1896) 26 SCR 122 Pearce v The Queen (1998) 194 CLR 610 R v Briggs (1987) 24 A Crim R 98 R v Morris (1997) 98 A Crim R 408 R v St Clement's (1840) 12 Ad & E 177; 113 ER 778 Rajneesh Foundation v Shire of Manjimup (1985) 3 SR (WA) 18 Ryder v United States (1995) 132 L Ed 2d 136 Scadding v Lorant (1851) 3 HL Cas 418; 10 ER 164 State Energy Commission of Western Australia v White, unreported; SCt of WA (White AJ); Library No 8846; 2 May 1991 Ex parte Ward (1899) 173 US 452 Waterhouse v Pas (1998) 103 A Crim R 511 Waterloo Bridge Co v Cull (1858) 1 El & El 213; 120 ER 888 Waugh v Kippen (1986) 160 CLR 156 Western Australian Land Authority v Simto Pty Ltd, unreported; FCt SCt of WA; Library No 980560; 25 September 1998 Zainal bin Hashim v Government of Malaysia [1980] AC 734 Zanetti v Hill (1962) 108 CLR 433

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : MACCARRON -v- COLES SUPERMARKETS AUSTRALIA PTY LTD T/AS COLES SUPERMARKETS & ORS [2001] WASCA 61 CORAM : KENNEDY J

WALLWORK J
MURRAY J

HEARD : 18 NOVEMBER 1999 DELIVERED : 7 MARCH 2001 FILE NO/S : SJA 1058 of 1998 BETWEEN : CIARAN MACCARRON

Appellant (Complainant)

AND

COLES SUPERMARKETS AUSTRALIA PTY LTD T/AS COLES SUPERMARKETS
First Respondent (First Defendant)

K MART AUSTRALIA LTD T/AS K MART
Second Respondent (Second Defendant)

ROSALIE DORISE BRITZA T/AS ROSALIE'S TROLLEYS KARRATHA
Third Respondent (Third Defendant)

Catchwords:

Statutes - Validating Acts - Retrospectivity - Application of retrospective Act to proceedings the subject of an appeal by way of rehearing

(Page 2)


Magistrates - Procedure - Complaint - Whether sufficient proof that proceedings instituted by a person authorised by Commissioner for Occupational Health, Safety and Welfare

De facto officer - Term of office expired - Office vacant - Officer continuing to act - Whether delegation of authority by officer when so acting valid

Industrial safety, health and welfare - Prosecution for failure to provide a working environment in which employee not exposed to hazards - No case to answer

Legislation:

Justices Act 1902, s 184, s 196(1)

Occupational Safety and Health Act 1984, s 9, s 10(a), s 18(4), s 19(1), s 19(4), s 42(1), s 52(1
Occupational Safety and Health (Validation) Act 1998, s 4
Public Sector Management Act 1994

Result:

Appeal dismissed

Representation:

Counsel:

Appellant (Complainant) : Mr G T W Tannin &
Mr J A Thomson
First Respondent (First Defendant) : Mr P C S Van Hattem
Second Respondent (Second Defendant) : Mr P C S Van Hattem
Third Respondent (Third Defendant) : No appearance

Solicitors:

Appellant (Complainant) : State Crown Solicitor
First Respondent (First Defendant) : Freehill Hollingdale & Page
Second Respondent (Second Defendant) : Freehill Hollingdale & Page
Third Respondent (Third Defendant) : No appearance

(Page 3)

Case(s) referred to in judgment(s):

Adams v Adams [1971] P 188
Anderson v State (1946) 195 SW 2d 368
Baker v Australian Asbestos Insulations Pty Ltd (1985) 3 NSWLR 280
Balmain Association Inc v Planning Administrator (1991) 25 NSWLR 615
Bawn Pty Ltd v Metropolitan Meat Industry Board (1970) 72 SR (NSW) 466
Cantwell v City of Southfield Mich App (1980) 290 NW 2d 151
Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249
Cox v Salt (1994) 12 WAR 12
Doney v The Queen (1990) 171 CLR 207
Equal Employment Opportunity Commission v Sears Roebuck & Co (1980) 504 F Supp 241
G J Coles & Co Ltd v Retail Trade Industrial Tribunal (1987) 7 NSWLR 503
Grooms v La Vale Zoning Board (1975) 340 AD 2d 385
Henderson v Read [1993] 1 VR 537
Hewitt v Lewis [1986] 1 WLR 444
Hughes v Hughes (1971) 2 SASR 268
Izer v State (1893) 26 A 282
Maxwell v Murphy (1957) 96 CLR 261
Mills v Meeking (1990) 169 CLR 214
Moltoni v Shepherd [1999] WASCA 73
Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482
Newell v The King (1936) 55 CLR 707
Palos Verdes Estates Pty Ltd v Carbon (1992) 6 WAR 223
Price v Humphreys [1958] 2 QB 353
R v Bates [1911] 1 KB 964
R v Bilick (1984) 36 SASR 321
R v Cawthorne; ex parte Public Service Association of South Australia Inc (1977) 17 SASR 321
R v Turner [1910] 1 KB 346
Rabczynski v Morrison [1988] WAR 71
Re Aldridge (1893) 15 NZLR 361
Re Governor, Goulburn Correctional Centre; ex parte Eastman (1999) 73 ALJR 1324
Reed v President and Commissioners of Town of North East (1961) 172 A 2d 536
Ridout v State (1930) 30 SW 2d 255
Rodway v The Queen (1990) 169 CLR 515
Schulz v Virgin [1966] SASR 94
State of Kansas v Miller (1977) Kan 565 P 2d 228
State v Carroll (1871) 9 Am Rep 409


(Page 4)

Thompson v The Queen (1989) 169 CLR 1
Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73

Case(s) also cited:

Adams (Deputy Commissioner of Taxation (Vic)) v Chas S Watson Pty Ltd (1938) 60 CLR 545
Re Armstrong and Stewart (1878) 4 VLR (L) 101
Attorney-General v Vernazza [1960] AC 965
Ball v United States (1891) 140 US 118; 35 L Ed 377
Boheto Pty Ltd v Sunbird Plaza Pty Ltd [1984] 2 Qd R 9
Colonial Sugar Refining Co Ltd v Irving [1905] AC 369
Commonwealth v SCI Operations Pty Ltd (1998) 192 CLR 285
Commonwealth v Verwayen (1990) 170 CLR 394
Ellis v Bourke (1889) 15 VLR 163
Ertech Pty Ltd v Reid, unreported; SCt of WA (White J); Library No 9174; 6 December 1991
Eyre v Wynn-MacKenzie [1896] 1 Ch 135
Re Gardiner [1938] SASR 6
Interstruct Pty Ltd v Wakelam (1990) 3 WAR 100
Luff v Oakley (1986) 82 FLR 91
Manning v Weeks (1890) 139 US 504
May v O'Sullivan (1955) 92 CLR 654
Morrison v Competitive Foods Ltd, unreported; SCt of WA (Murray J); Library No 9118; 25 October 1991
Moursellas v Pharmaceutical Council of Western Australia (1992) 10 WAR 240
Myers v Claudianos (1990) 100 FLR 362
Official Trustee in Bankruptcy v Byrne (1989) 94 FLR 465
O'Neil v The Attorney General of Canada (1896) 26 SCR 122
Pearce v The Queen (1998) 194 CLR 610
R v Briggs (1987) 24 A Crim R 98
R v Morris (1997) 98 A Crim R 408
R v St Clement's (1840) 12 Ad & E 177; 113 ER 778
Rajneesh Foundation v Shire of Manjimup (1985) 3 SR (WA) 18
Ryder v United States (1995) 132 L Ed 2d 136
Scadding v Lorant (1851) 3 HL Cas 418; 10 ER 164
State Energy Commission of Western Australia v White, unreported; SCt of WA (White AJ); Library No 8846; 2 May 1991
Ex parte Ward (1899) 173 US 452
Waterhouse v Pas (1998) 103 A Crim R 511


(Page 5)

Waterloo Bridge Co v Cull (1858) 1 El & El 213; 120 ER 888
Waugh v Kippen (1986) 160 CLR 156
Western Australian Land Authority v Simto Pty Ltd, unreported; FCt SCt of WA; Library No 980560; 25 September 1998
Zainal bin Hashim v Government of Malaysia [1980] AC 734
Zanetti v Hill (1962) 108 CLR 433

(Page 6)

1 KENNEDY J: The background to this matter has been set out in the reasons of the other members of this Court, and I do not propose unnecessarily to repeat what they have already written.

2 Nearly nine months after the learned Magistrate dismissed the three complaints the subject of this appeal, the State Parliament passed the Occupational Safety and Health (Validation) Act 1998. This Act had clearly been designed to avoid the possible repercussions from Mr W N Bartholomaeus not having been reappointed to the office of "Commissioner", a term defined in s 4(1) of the Act. The result of the failure to reappoint Mr Bartholomaeus was that the office, which he had formerly held, had become vacant: s 10(a) of the Occupational Safety and Health Act 1984.

3 Subsections (2) and (3) of s 4 of the Occupational Safety and Health (Validation) Act provided as follows:

"(2) No act, matter or thing done before 8 October 1996 -

(a) by or in respect of William Neil Bartholomaeus; or

(b) under the direction, authority or control or purported direction, authority or control of, or pursuant to a delegation or purported delegation made by, William Neil Bartholomaeus,


in his capacity or purported capacity as Commissioner is, or ever has been, invalid by reason that there was a defect in his appointment as Commissioner, or that he had not been appointed at all.

(3) Each act, matter or thing referred to in subsection (2) is, and always has been, as valid, and effective and authorized by the principal Act as it would have been if William Neil Bartholomaeus had been duly appointed as Commissioner at the time the act, matter or thing was done, the direction, authority or control exercised or the delegation made."

4 It is abundantly clear that the intention of the Parliament was to make this legislation retrospective. The question is, however, whether there was any limitation upon its retrospectivity.
(Page 7)

5 In Newell v The King (1936) 55 CLR 707, the High Court was concerned with a provision in the Jury Act 1936 (Tas), which provided that, on the trial of any criminal issue, except upon a capital charge, the decision of the majority of jurors might be taken as the verdict of the jury after two hours' deliberations. The Act was not expressed to be retrospective. As Latham CJ observed, at 712: "When I come to the words of the section, it appears that they may apply either to all trials that may hereafter begin or to all trials whether or not yet completed or not yet commenced". His Honour proceeded to apply the rules of strict construction of Acts relating to trial by jury, and concluded that the amendment had no application to a trial which had already begun. Dixon J, at 712 - 713, said:

"When the prisoner was arraigned and pleaded not guilty, then under sub-sec 6 of sec 351 of the Criminal Code (Tas) his trial began. Issues were joined between himself and the Crown. Under sec 361 his plea amounted to a demand that he be tried by a jury, and he became entitled to be tried accordingly.

The right which his plea so asserted had this conspicuous feature, namely, that although he was placed in jeopardy, he was placed in jeopardy of the unanimous verdict of twelve men. This was the position he occupied when the Jury Act 1936 altered the law and made the concurrence of ten sufficient for a conviction or acquittal. When it says that this should be so 'on the trial of any criminal issue,' should these general words be understood as applying to a trial already begun of issues already joined? In my opinion they should not. They should be taken to mean on the trial of any criminal issue joined after the commencement of the Act. They should not be construed as depriving a prisoner standing in peril at the time of their enactment of so important a thing as his protection from conviction except by a unanimous verdict."

6 In the later case of Maxwell v Murphy (1957) 96 CLR 261, Dixon CJ said, at 267:

"The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or

(Page 8)

otherwise affect rights or liabilities which the law had defined by reference to the past events."

His Honour went on, at 268, to refer to the legal maxim nova constitutio futuris formam imponere debet, non praeteritis - a new law ought to regulate what is to follow, not the past. The statute in that case, which extended a limitation period, did not expressly provide for its retrospectivity and, the former limitation period having expired, it was held that the amendment did not operate to revive the plaintiff's right to maintain an action. See also Mills v Meeking (1990) 169 CLR 214, per Mason CJ and Toohey J at 223, and Rodway v The Queen (1990) 169 CLR 515, at 518.

7 In Hewitt v Lewis [1986] 1 WLR 444, Fox LJ, with whose judgment Sir Roualeyn Cumming-Bruce agreed, was concerned with the Rent (Amendment) Act 1985 (UK), which provided by s 1(1) that a landlord could claim possession of a dwelling-house if he "had, at any time before the letting, occupied it as his residence". Section 1(4) provided that this amendment applied "to tenancies granted … before, as well as after, the commencement of this Act".

8 As in the present case, there was no doubt that a retrospective effect was intended to be given to the amending Act. In the County Court, prior to the enactment of the amending legislation, however, the appellant had failed in his action for recovery of possession of his property, because he was not personally residing in that property immediately before the letting. He appealed against this decision and his appeal was heard after the amending legislation had come into force. At 447, Fox LJ said that he did not consider that the fact that the hearing at first instance took place before the passing of the statute determined the matter, pointing out that the appeal was by way of rehearing, citing RSC, Ord 59, r3. He continued:

"I do not think that the decision at first instance gave to the defendant anything in the nature of a vested right. And the appeal (as I have said) is a rehearing. In Attorney General v Vernazza [1960] AC 965, 978, Lord Denning said that it was:

'clear that in the ordinary way the Court of Appeal cannot take into account a statute which has been passed in the interval since the case was decided at first instance, because the rights of litigants are generally to be determined according to the law in force at the date of the earlier proceedings …. But it is different when the statute is

(Page 9)

retrospective either because it contains clear words to that effect, or because it deals with matters of procedure only, for then Parliament has shown an intention that the Act should operate on pending proceedings, and the Court of Appeal are entitled to give effect to this retrospective intent as well as a court of first instance.' "

9 His Lordship recognised that a statute may be intended to have some retrospective effect without necessarily being intended to affect pending actions. But he said that, in his view, the only realistic interpretation of the Act before him was that Parliament had intended it to have the latter effect. See also Bawn Pty Ltd v Metropolitan Meat Industry Board (1970) 72 SR (NSW) 466, per Mason JA, at 486 - 489.

10 The present appeal was brought pursuant to s 184 of the Justices Act 1902, which provides that, subject to any other Act, an appeal lies to the Supreme Court, by leave, as provided in Pt VIII of the Act from a decision of justices (a term which is defined to include a Magistrate). The court is directed by s 196(1) to determine an appeal on the material that was before the justices and on such further evidence, either oral or by affidavit, as the court thinks fit to receive. The Act goes no further in identifying the nature of the appeal. By O 65A r 9 of the Rules of the Supreme Court, however, which governs appeals under the Justices Act, subject to the Supreme Court Act 1935 and to O 65A, the provisions of O 63 and O 65 are directed to apply with the necessary modifications to appeals under O 65A. By r 2(1) of O 63, it is provided that all appeals to the Full Court from the judgment or order of a Judge or a Master, in court, shall be by way of rehearing. It would appear that the power to make this rule is to be found in s 167(1)(a) of the Supreme Court Act. By virtue of that rule, the present appeal is by way of rehearing. See also Victorian Stevedoring and General Contracting Co Pty Ltd v Dignan (1931) 46 CLR 73, per Dixon J, at 106 - 110.

11 In Baker v Australian Asbestos Insulations Pty Ltd (1985) 3 NSWLR 280, at 289 - 290, Kirby P usefully summarised the rule relating to the retrospectivity of legislation. He said:

"(1) A statute changing the law will not generally be construed so as to apply to facts that have already occurred or alter rights and liabilities already accrued unless the intention to do so appears 'with reasonable certainty' : Maxwell v Murphy (1957) 96 CLR 261, Dixon CJ at 267.

(Page 10)

(2) Although the above presumption is rebuttable (see Worrall v Commercial Banking Co of Sydney Ltd (1917) 24 CLR 28 at 32) it is less readily rebutted where the result would be to deprive a person of accrued rights. Particularly is this so when those rights are themselves conferred under the compensation legislation which is designed to be beneficial and to afford valuable privileges and benefits to workers and, in the case of their death, their dependants.

(3) The deprivation of rights that have accrued may, in some circumstances, be justifiable by reference to considerations of aggregate justice, as for example where, although some rights are taken away, others are afforded : cf Isaacs J in George Hudson Ltd v Australian Timber Workers' Union (1923) 32 CLR 413 at 434. In determining the operation of transitional provisions, if they are obscure or uncertain in their application, regard may, as always, be had to the mischief to which the legislation is addressed. However, if the language of the legislation is plain, the duty of the court is to give effect to it.

(4) It is not readily to be inferred that the Parliament would enact otiose provisions. Attention must therefore be paid to the precise language of the whole of the legislation, where it is affected by amendments and transitional provisions, in the attempt to derive from it a construction which will permit the consistent operation of all provisions of the legislation."

12 It is well recognised, therefore, that no statute should be construed so as to have a retrospective operation unless its language is such as plainly to require that construction, and there is the further subordinate rule that a statute is not to be construed so as to have a greater retrospective operation than its language renders necessary, so that there should be as little interference as possible with vested rights. See also the cases cited in 44(1) Halsbury's Laws of England, 4th edn Reissue par 1288 n2.

13 In view of the width of the language in s 4(3) of the validating Act, declaring that each act, matter or thing referred to in subsection (2) is, and always has been, as valid, and effective and authorised by the principal Act as it would have been if Mr Bartholomaeus had been duly appointed

(Page 11)

as Commissioner at the time the act, matter or thing was done, the direction, authority or control exercised or the delegation made, in my opinion, the language of the legislation is plain and, as Kirby P stated in Baker's case, "the duty of the court is to give effect to it". On this basis, any delegation purportedly made by Mr Bartholomaeus under s 18(4) of the Occupational Safety and Health Act of his power to authorise a person to institute proceedings for an offence cannot be held to be invalid in this case. In this case, the proceedings have not been concluded by the exhaustion of the appeal process.

14 In Henderson v Read [1993] 1 VR 537, Nathan J arrived at a conclusion which differs from that which I have reached. He was concerned with Victorian legislation which purported, amongst other things, retrospectively to validate certificates recording the result of blood alcohol tests back to the date of the principal Act. The legislation was enacted at a time when the appellant's prosecution for driving with a blood alcohol level greater than the level permitted had commenced and the Magistrate was considering a no case submission. Nathan J considered that Newell v The King (supra) dictated the conclusion that the appellant in the case before him had a right, which personally inured to him, to have his no-case submission dispatched upon the basis of the law applicable at the time it was put. However, in Newell v The King, there was no express provision for retrospectivity as there was in the Victorian legislation or in the legislation with which we are presently concerned. In my opinion, the legislation in this State requires a different answer.

15 Having regard to the view which I have expressed regarding the retrospectivity of the legislation, it is not necessary to embark upon a detailed consideration of the doctrine relating to de facto officers; but it may be appropriate to make some observations on whether Mr Bartholomaeus's act of delegation in the present case fell within that doctrine.

16 In his well known paper, De Facto Officers, republished in Jesting Pilate (1965), Sir Owen Dixon, at 229, having observed that the fashions of thought which seemed then to have set in did not favour strict logic and high technique as qualities of the legal system, wrote:

"In the operation given to the legal conception of a void act, or a nullity, we have an example of this resolute logic which, in our time when many governmental and other powers are rigidly defined by or under the law, has produced effects well nigh prodigious. The purpose of conferring even the humblest power

(Page 12)

or authority is that rights and duties of some kind may be called into existence. To treat what purports to be done in the exercise of a power as if it had never taken place, as the theory of invalidity demands, is to affix to acts done and things brought into being upon the assumption that the power has been well exercised, legal qualities and legal consequences which are sometimes as oppressive as they are unexpected."

At 229 - 230, Sir Owen continued:

"From an early time, however, one clear qualification to the application of the general rule has existed, a qualification which should be conspicuous, but which for some reason has fallen strangely out of notice among us. It relates to the invalidity of the title of a person apparently filling a public office. It is no new thing to find that a man who is in point of fact performing duties and exercising authorities of a public nature has in point of law no title to do so. His want of title may be due to some defect in his original appointment, or it may arise subsequently by disqualification, effluxion of time or some other cause, or he may be a mere usurper or intruder. Indeed the reasons why it may appear that one who has assumed the exercise of public functions has nothing but a void foundation for performing them are almost infinite in their variety. An inexorable application of the general principle that a nullity produces no legal consequences would mean that, since such a man was no more than a private citizen, his public acts must be considered ineffectual …. Such consequences were intercepted by an independent principle which can be traced as far back as the Lancastrian period at least. Under that principle the acts of an officer de facto done in the apparently regular execution of his office have equal force and effect with those of an officer de jure when they concern the rights and duties of the subject."

Sir Owen referred to the outstanding questions as to the limits of this principle and the conditions controlling its operation, and he indicated that it may be taken to be a necessary condition that the officer de facto must have a colourable authority, although what will fulfil this condition, he suggested, was not clear.

17 At 236, in relation to the requirement of colourable title or authority, Sir Owen wrote:

(Page 13)

"The exact nature of this requirement has not been worked out by English authority. Probably it will be found to be satisfied by the existence of any set of circumstances which reasonably justifies a general assumption by those dealing with or coming under the supposed authority of the de facto officer that he is a lawful officer.

In the United States, the matter has received much consideration. As a result, the view appears to be accepted that sufficient colour exists, not only when the assumption of, or continuance in, office is referable to a title supposedly good though actually defective, but also when there is such a general or official acquiescence in the de facto incumbent's execution of the office that, in the circumstances of the case, a public reputation or assumption of the lawfulness of his authority arises. [State v Carroll (1871) 38 Conn 449; 9 Am Rep 409, at 427. Petersilea v Stone (1876) 119 Mass 465.]"

18 As Aronson and Dyer state in their work, Judicial Review of Administrative Action (1996) at footnote 75 on p 348, the doctrine is driven by a fear of the sheer chaos which could flow from the ruling that everything done by an official is invalid, and it seems to be confined to circumstances where the public had reasonably assumed the validity of the official's appointment.

19 In G J Coles & Co Ltd v Retail Trade Industrial Tribunal (1987) 7 NSWLR 503, at 525 et seq, McHugh JA considered the application of the de facto officers doctrine, referring to the judgment of Richmond J in Re Aldridge (1893) 15 NZLR 361 and that of Butler CJ in State v Carroll (1871) 9 Am Rep 409. In the latter case, at 423, the Chief Justice said:

"The de facto doctrine was introduced into the law as a matter of policy and necessity, to protect the interests of the public and individuals, where those interests were involved in the official acts of persons exercising the duties of an office, without being lawful officers. It was seen, as was said in Knowles v Luce, that the public could not reasonably be compelled to inquire into the title of an officer, nor be compelled to show a title, and these became settled principles in the law. But to protect those who dealt with such officers when apparent incumbents of offices under such apparent circumstances of reputation or color as would lead men to suppose they were legal officers, the law validated their acts as to the public and third persons, on the

(Page 14)

ground that, as to them, although not officers de jure, they were officers in fact, whose acts public policy required should be considered valid. It was not because of any quality or character conferred upon the officer, or attached to him by reason of any defective election or appointment, but a name or character given to his acts by the law for the purpose of validating them."

This judgment was approved by Richmond J in Aldridge's case (supra), at 376 - 377, and by Sir Jocelyn Simon P in Adams v Adams [1971] P 188, at 213 - 214.

20 The New South Wales Court of Appeal was concerned in this case with a failure to convene a meeting of the Retail Trade Industrial Tribunal in accordance with the procedures laid down in the relevant Act, in that the required assessors did not attend or participate in the sitting of the Tribunal, and an award was made by the chairman alone. The other two members of the Court, Kirby P and Hope JA, were not prepared to apply the doctrine because they were not convinced that it applied to the proceedings in question. They expressed the view that the common law doctrine could not avail the parties if it "flies in the face" of the particular legislation under review. See also the observations of Kirby J in Re Governor, Goulburn Correctional Centre; ex parte Eastman (1999) 73 ALJR 1324, at [155]-[157].

21 McHugh JA, however, expressed the view that, although the doctrine had not been invoked, and the court had not heard counsel in the matter, it did appear, prima facie, that the de facto officer rule would prevent the invalidation of the award, even though the Tribunal was improperly constituted. Of course, a significant proportion of cases applying the de facto officer doctrine concern breaches of legislation.

22 In the earlier case of R v Cawthorne; ex parte Public Service Association of South Australia Inc (1977) 17 SASR 321, the South Australian Supreme Court (In Banco) was concerned with the invalid appointment of a temporary Industrial Registrar for the reason that there was already a duly appointed Industrial Registrar in occupation of his office. There followed a further appointment, which was also invalid. It was held that, although the officer's acts done under the authority of his first invalid appointment could not be regarded as valid as being those of a de facto public officer done in the apparently regular execution of his office, having regard to the fact that the validity of that appointment had been challenged before he had given any decision, his acts done in the execution of his office under the second invalid appointment had equal force and effect with those of an officer de jure and were valid.

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23 Bray CJ, at 333, indicated that where there is a known election or appointment, colour of authority is fulfilled if the public does not know of the defect. Sangster J, at 344, suggested that if "reputation" is a necessary ingredient in being the de facto holder of a public office, he would read "reputation" as meaning "no more than the generally accepted belief as to the person being the holder of the office in question, held by those coming before him, or being concerned with him in that office". Bray CJ agreed with Sangster J that, if it were necessary to establish reputation, the respondent in that case had possessed a sufficient reputation of authority.

24 In Balmain Association Inc v Planning Administrator (1991) 25 NSWLR 615, at 639, the New South Wales Court of Appeal (Kirby P, Priestley JA and Handley JA) said:

"Such authority as exists indicates that this Court, in upholding the rule of law, will be cautious in applying any doctrine protective of the acts of invalidly appointed public officers. The inclination of the Court to confine any such doctrine within narrow limits sufficiently appears from what was said by the majority in G J Coles & Co Ltd v Retail Trade Industrial Tribunal (1986) 7 NSWLR 503 at 519 ff.

The de facto officers doctrine affords no protection to the officer when his or her right to the office in question is challenged by quo warranto proceedings or proceedings of that nature. Moreover, in our view the doctrine is essentially one for the protection of members of the public who deal with, or who are affected by, the official acts of de facto officers: see R v Lisle (1738) Andrews 163 at 166; 95 ER 345 at 346.

The de facto officers principle may well be the counterpart in public law of the indoor management rule in company law. Both appear to be manifestations of the fundamental principle that acts are presumed to have been done rightly and regularly unless the contrary appears: see Morris v Kanssen [1946] AC 459 at 475. While outsiders who deal in good faith with de facto directors can invoke the indoor management rule, it is well-established that de facto directors themselves cannot rely upon their own unauthorised acts on behalf of the company to hold the company bound to some transaction for their own benefit: see Morris v Kanssen (at 474-476)."

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At 640, the Court reiterated that, after legal proceedings have been commenced which challenge the validity of an officer's appointment, persons with knowledge of the proceedings can no longer rely upon the colourable or apparent authority of that officer. In the case before us, however, there was no challenge to the validity of the acts of Mr Bartholomaeus until after the present proceedings had been instituted.

25 In all the circumstances, I am of the opinion that this is a case in which the de facto officer doctrine could have been applied had the retrospective legislation not been applicable. Although s 10(a) of the Occupational Safety and Health Act 1984 provides that the office of Commissioner becomes vacant if his term of office expires, it is to be noted that, by s 9(2), Mr Bartholomaeus was eligible for reappointment and his recognition as a de facto officer does not appear to me, having regard to the purpose of the doctrine, to fly in the face of the legislation.

26 I turn now to the issue relating to the proof of the complainant's authority to institute proceedings against the respondents for the alleged offences.

27 In R v Turner [1910] 1 KB 346, in which Channell J, giving the judgment of the Court of Criminal Appeal, considered what was required to prove the granting of a consent to institute proceedings and, in particular, how the consent ought to be proved, said at 357 - 358:

"The Court is of opinion that it is necessary to have some evidence by which the document produced and purporting to be signed by the Director of Public Prosecutions should be proved. There is no statute which authorizes a Court of justice to take notice of the signature of the Director of Public Prosecutions. His signature must therefore be proved, but it is not necessary that that proof should be by the evidence of a person who is able to say that he has seen the Public Prosecutor (or the Assistant Public Prosecutor) write, and that the signature to the document was in his handwriting.

In our opinion, without laying down a general rule as to what would be necessary in every possible case, it would be sufficient if some person who has been in correspondence with the Director of Public Prosecutions gives evidence to the effect that he received the document in the ordinary course of correspondence and believes it to be signed by the Director of Public Prosecutions."

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28 In Schulz v Virgin [1966] SASR 94, Walters AJ was concerned with the necessity for proof of the authorisation of proceedings which had been brought under the Health Act 1935 (SA), s 160 of which was to the effect that, except where otherwise provided, no proceedings should be instituted under the Act except by, or on behalf, or with the authority of, the central Board of Health or the local Board of Health for the particular district. Walters AJ held that it was necessary for the complainant to prove that he was authorised to institute the proceedings. He made no reference, however, to the standard of proof which was required. He applied Price v Humphreys [1958] 2 QB 353, a decision of the Divisional Court in which the prosecution concerned was required to be instituted with the consent of the Minister or of any other officer as required by the Act. The procedure in the United Kingdom at that time was for the justices, or whoever issued the summons, to see that the summons was not issued unless the consent or the authority was produced and that, prima facie, the position was that the summons had been properly issued. There was no need for the prosecution to take any further steps unless objection was taken. If objection were to be taken, then the prosecution had to be in a position to prove it - see at 358. Under the South Australian Act, the authority could be either general or particular and could be proved by the production of the authority in writing under the hand of the chairman or the secretary of the Board, or by the production of a copy of the resolution under the hand of the chairman or secretary. Furthermore, every document required to be made or authenticated by any Board unless otherwise provided, was to be sufficiently authenticated if appearing to be signed by any member or officer of the Board.

29 In Rabczynski v Morrison [1988] WAR 71, Pidgeon J was concerned with s 26(3) of the Wildlife Conservation Act 1950, which provided that all proceedings in respect of offences should be taken by and in the name of the Executive Director or by and in the name of any person authorised in that behalf by the Executive Director. In his oral testimony in that case, the complainant referred to the fact that he was so authorised. His Honour accepted that the person could testify as to his own status but, he said, the court is required to receive all relevant evidence, and further evidence showed that what was being relied upon as the express authority was the fact that a duty statement issued to the complainant listed as one of his duties the bringing of prosecutions. His Honour continued, at 75:

"As the matter was brought into question by the defendant, I consider the onus was on the complainant to establish the

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authority beyond reasonable doubt: Schultz v Virgin [1966] SASR 94."

30 In Palos Verdes Estates Pty Ltd v Carbon (1992) 6 WAR 223, the Full Court was concerned with the Environmental Protection Act 1986, which required the consent of the Minister for the bringing of a prosecution under the Act. One of the prosecution witnesses in the case, an officer employed by the Environmental Protection Authority, was asked in cross-examination whether the Minister had given his consent to the prosecution. His answer was in the affirmative. In re-examination, he said that he had seen the complaint and that the signature on it was that of Mr Carbon, the Chief Executive Officer. At 227, Malcolm CJ said:

"The Minister's consent was essential to the validity of the proceedings. Without it the proceedings would have been a nullity and the prosecution must have failed: see R v Angel [1968] 1 WLR 669; R v Bates [1911] 1 KB 964. If the defendant does not object that consent has not been proved, the consent will be presumed in accordance with the maxim omnia praesumuntur rite esse acta: see R v Metz (1916) 11 Cr App R 164. In R v Waller [1910] 1 KB 364 it was held that it was the duty of the clerk of assize at which the indictment was filed to satisfy himself before it was presented that all necessary steps preliminary to indictment, including the obtaining of any necessary consent to prosecute. Unless objection was taken it would be presumed that the clerk had discharged his duty. The Court of Criminal Appeal held that it was not necessary that the Crown prove the consent as part of its case unless objection was taken."

31Malcolm CJ continued, at 228:

"It is implicit in the judgment in [(1910) 1 KB 346]that if it becomes necessary to prove the fact of consent to a prosecution, that fact must be properly proved. This was so held by the Full Court in South Australia in James v Treloar [1922] SASR 536 which was followed in Schultz v Virgin [1966] SASR 94. The latter decision was followed by Pidgeon J in Rabczynski v Morrison [1988] WAR 71 at 75. Generally, the necessary consent is given either by signature of a form of consent as in Berwyn v Donohoe [(1915) 21 CLR 1] and Turner, or by endorsement of consent on the complaint or information itself as in Holland v Jones (1917) 23 CLR 149."

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32 A number of authorities were cited to us, but in none of them have I been able to find any reference to the standard of proof in relation to the authorising of proceedings being required to be beyond reasonable doubt.

33 In my opinion, the decision in Thompson v The Queen (1989) 169 CLR 1, at 12 - 13, is determinative of the standard of proof applicable to the authorising of proceedings. The issue in that case was the jurisdiction of the Supreme Court of the Australian Capital Territory. At 12 - 13, Mason CJ and Dawson J said:

"The fundamental principle of our criminal law is that the accused's guilt must be established beyond reasonable doubt. The law requires that standard of proof of the commission of the criminal offence in order to eliminate or minimize the chance that an innocent person might be found guilty with all the grave consequences that such an erroneous condemnation would have for the accused, for our system of justice and for the community generally: Brown v The King [(1913) 17 CLR 570 at 584-585]. The fundamental principle is not offended if the facts essential to the existence of jurisdiction in the court to enter judgment are required to be established according to the civil standard of proof. That is a discrete question which may be left to a jury upon the lesser standard of proof without diverting them from the standard which they are otherwise required to apply in determining guilt or innocence. Cf Ahern v The Queen (1988) 165 CLR 87 at 103-105. The policy or purpose which underlies the fundamental principle is sufficiently served and the protection of the accused adequately assured if the criminal standard of proof is applied to all the facts relied upon to make out the elements of the offence."

34 In R v Bates [1911] 1 KB 964, at 965, Lord Alverstone CJ, delivering the decision of the Court of Criminal Appeal in a case in which the objection had been taken at the trial that consent had not in fact been obtained, held that the failure to obtain the consent of the Attorney General deprived the court of any jurisdiction to try the prisoner on the indictment. The granting of consent to the institution of proceedings clearly is not, in my view, an element of the offence, and accordingly, in my opinion, the standard of proof is proof on the balance of probabilities.

35 At the commencement of the hearing, counsel for the complainant tendered written authorities authorising the complainant to institute proceedings against each respondent under s 19(1) and s 19(7) of the

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Occupational Safety and Health Act. The authorities purport to have been signed by Mr Neil H Scott, as Director, Inspection Services. No point was taken by the respondents at that time with regard to the authority of the complainant to institute the proceedings. The complainant himself gave evidence that the WorkSafe Commissioner, Mr Bartholomaeus, had, by an instrument in writing, delegated his powers to authorise a person to commence proceedings under the Act. He produced an instrument of delegation, dated 29 May 1995, delegating to the Director of Inspection Services, Department of Occupational Health, Safety and Welfare, the functions of the Commissioner prescribed in s 52(1) of the Act, that is to say, authorising the institution of proceedings for offences against the Act. He also produced a document purporting to bear the signature of Mr Bartholomaeus, which the complainant had certified in writing that he had witnessed.

36 After the tendering of these documents, counsel for the first and second respondents requested the production of a certificate under s 42(2) of the Act regarding the appointment of Mr Scott as an Inspector. On the following day, a certificate of the appointment of Mr Scott as the Director, Inspection Services at WorkSafe, and further certifying that he had been appointed continuously in that capacity since 1995, was tendered. It was signed by Mr Bartholomaeus as Commissioner, and as the employing authority of WorkSafe Western Australia. A photocopy of Mr Scott's appointment as an Inspector under s 42(2) of the Act was also tendered without objection. The Commissioner is only entitled to delegate functions to an officer of the department - s 18(4) of the Occupational Safety and Health Act. An inspector is required to be an "officer" - s 42(1) of the Act.

37 The complainant gave evidence that he had worked for the department under its various names since 1988. He had met Mr Bartholomaeus upon his appointment. To his knowledge, Mr Bartholomaeus had been the Commissioner in all the time he had been there and had performed the functions of the Commissioner. He was aware that Mr Bartholomaeus had spoken publicly on matters affecting occupational health and safety, and those statements had from time to time been recorded in the Press. He was not aware of any hiatus in Mr Bartholomaeus's appointment. He assumed that when Mr Bartholomaeus spoke, he spoke as Commissioner, and the public would assume that as well. To his knowledge, there had never been any questioning of Mr Bartholomaeus's appointment by members of the public or by any other person as far as he was aware.

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38 No doubt this evidence of the complainant was addressed to primarily establishing the applicability of the de facto officer doctrine. An affidavit of Mr Bartholomaeus, tendered through the complainant, was also clearly directed to the applicability of the doctrine. There was by now an awareness that the office of Commissioner, which had formerly been held by Mr Bartholomaeus, had been vacant at the time he purported to delegate his powers under s 52(1) of the Act pursuant to s 18(4) of the Act. He deposed that, on 4 November 1987, he had been appointed Commissioner of Occupational Health, Safety and Welfare by the Governor, pursuant to s 9 of the Occupational Health, Safety and Welfare Act 1984 and that he had been employed in that capacity since that time. On 11 September 1995, his title had been changed to WorkSafe Western Australia Commissioner by an amending Act passed in that year. From 4 November 1987 until 10 September 1995, he had exercised all of the statutory powers and functions, and all of the relevant responsibilities, of Commissioner of Occupational Health, Safety and Welfare and, during this period, he had regularly consulted as Commissioner with the responsible Minister on matters relevant to the Act. He deposed that, to the best of his knowledge and belief, during the period from 4 November 1987 until 10 September 1995, he had been accepted as Commissioner of Occupational Health, Safety and Welfare by members of the public and, from time to time he had made public statements in that capacity on matters relevant to the Act. Since 11 September 1995, he had exercised all of the statutory powers and functions and had borne all of the relevant responsibilities of WorkSafe Western Australia Commissioner. Since that date, he had regularly consulted with the responsible Minister on matters relevant to the Act. To the best of his knowledge and belief, since 11 September 1995, he had been accepted as WorkSafe Western Australia Commissioner by members of the public and, from time to time, he had made public statements in that capacity on matters relevant to the Act. To the best of his knowledge and belief, no member of the public would have been aware of any want of power or defect in his appointment as Commissioner, and no inquiry had ever been made by any person questioning his capacity to act as Commissioner. It follows from my conclusions regarding the retrospective validation of the acts of Mr Bartholomaeus subsequent to the expiration of his former appointment and the failure to re-appoint him to his former office by the time that he was purporting to delegate his power to institute proceedings for offences, there was sufficient evidence before the Magistrate to establish, on the balance of probabilities, that the complainant was duly authorised to institute the proceedings in this matter.
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39 I come now to the merits of the case, and in particular as to whether there was a case to answer. I agree with Wallwork J and Murray J that there was no case to answer with respect to the charges brought against the first and second respondents.

40 The appropriate test to be applied on a submission of no case to answer was clearly stated by Deane, Dawson, Toohey, Gaudron and McHugh JJ in Doney v The Queen (1990) 171 CLR 207, at 214 - 215:

"It follows that, if there is evidence (even if tenuous or inherently weak or vague) which can be taken into account by the jury in its deliberations and that evidence is capable of supporting a verdict of guilty, the matter must be left to the jury for its decision. Or, to put the matter in more usual terms, a verdict of not guilty may be directed only if there is a defect in the evidence such that, taken at its highest, it will not sustain a verdict of guilty."

See also R v Bilick (1984) 36 SASR 321, at 335, and Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482, at 489 - 491. The standard of proof is proof beyond reasonable doubt so that the evidence, taken at its highest, must be capable of sustaining a verdict of guilty by proof beyond reasonable doubt.

41 The complaint against the first and second respondents was that each of them, on or about 23 July 1996, at Karratha City Shopping Centre, Karratha, being an employer, failed, so far as was practicable, to provide and maintain a working environment in which one of its employees, namely, Andrew Cox, was not exposed to hazards and that by that failure it had caused the death of that employee, contrary to s 19(1) and s 19(7) of the Occupational Safety and Health Act 1984. Particulars of the charge were provided as follows:

1. So far as was practicable the employer should have:

(A) provided and maintained a system of work such that a device other than elastic straps was used in the collection of shopping trolleys;

(B) provided sufficient instruction to ensure Andrew Cox was aware he was not to use elastic straps in the collection of shopping trolleys;

(C) provided sufficient supervision to ensure Andrew Cox did not use an elastic strap in the collection of shopping trolleys.

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2. The hazard to which Andrew Cox was exposed was the risk of being struck by an elastic strap.

42 For the purposes of s 19 of the Act, s 19(4) provides:

"where, in the course of a trade or business carried on by him, a person (in this section called "the principal") engages another person (in this section called "the contractor") to carry out work for the principal -

(a) the principal is deemed, in relation to matters over which he has control or, but for an agreement between him and the contractor to the contrary, would have had control, to be the employer of -


(i) the contractor; and

(ii) any person employed or engaged by the contractor to carry out or to assist in carrying out the work;

and


(b) the persons mentioned in paragraph (a)(i) and (ii) are deemed, in relation to those matters, to be employees of the principal."

43 A contract existed between the first and second respondents on the one hand, and the third respondent on the other hand, for the collection of trolleys owned by the first and second respondents. The area from which their respective trolleys were to be collected included not only the shopping centre complex but also streets outside the complex to a radius of three kilometres. The terms are set out in a written agreement which had been entered into between the second respondent and the third respondent at a time before the first respondent had commenced to operate in the complex. It is not in dispute that when the first respondent did commence to operate in the complex, the agreement was extended to the first respondent and the collection of its trolleys.

44 Section 19(4) is somewhat obscurely worded. No doubt the first and second respondents were principals within the meaning of the section. Under the terms of their contract, the first and second respondents, however, had no control over the method of collection of their trolleys except to the extent that the third respondent was required to ensure that only 10 trolleys are to be transported through the mall by one person. I have difficulty in accepting that this was a case in which there was an

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agreement between the parties "to the contrary" such that the first and second respondents would otherwise have had control. However, putting that matter to one side, having regard to the fact that, at the time of the tragic accident, Andrew Cox ("Andrew") was not performing any work for the third respondent under her contract with the first and second respondents, it is clear that the first and second respondents had no control with respect to the carrying out of work for Woolworths. The trolleys which were being moved at the time of the accident were clearly identified as belonging to Woolworths and they were being collected from outside Woolworths Liquor Store. There is nothing in the evidence which is capable of establishing that the first and second respondents had any relevant control, and there is nothing to support the view that, but for the agreement between the first and second respondents, they would have had control over the relevant matters. In my opinion, the first and second respondents had no case to answer, and the appeal against the dismissal of the complaints against them must be dismissed.

45 It is, however, necessary to consider the case against the third respondent which, in my view, is significantly stronger.

46 Evidence was given by Mr A P Nouws as to what had occurred just prior to the accident. He saw two children collecting shopping trolleys. They were coming towards him. He observed that they were playing and having fun with the trolleys. Opposite where he was standing there were two trolleys off the pavement and in the garden. The younger boy, who was clearly Daniel Woolford ("Daniel"), who was not employed by the third respondent, asked Andrew if he wanted both, but he replied he did not, and one trolley only was collected and placed in front of the other trolleys. Mr Nouws thought there were six, seven or maybe eight trolleys linked up. An elastic strap had been hooked onto the front of the line of trolleys and pulled back and fastened to the last trolley. When Andrew started pushing the line of trolleys, Daniel had jumped onto the front trolley. Andrew was having a lot of difficulty in managing the line of trolleys. The first trolley separated from the line, and he then noticed a yellow strap lying on the ground. It appears that the hook attaching the strap to the trolley had straightened out, allowing the elastic strap to snap back in the direction of Andrew. Andrew was seen to turn around in distress.

47 In a record of interview with the complainant after the accident, the third respondent denied ever having given an elastic strap to any of the boys working for her. The evidence of Mr W Britza, the husband of the third respondent, was that, having been approached by Andrew for a job

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as a trolley boy, he gave him what he described as an extensive talk on what was expected of him. This included the clothing he was to wear and his use of sun protection, and he then instructed him on the method to be used in the collection of trolleys and the maximum number that he should push. He also indicated that ropes were available if Andrew wanted them. He said that he went with Andrew through the requirement that there should be no riding on trolleys and no horseplay. He said that Andrew appeared to understand these conditions and to accept them. He warned Andrew of some particular areas in the shopping complex where the ground sloped, and he told him especially only to push two or three trolleys up the slope at a time and to stack them. No instruction was given on such matters as to how the trolleys should be tied together and pushed.

48 Mr Britza saw Andrew on his first day of work and went through the "business" again. He once more advised him as to how he should push the trolleys and identified the areas where he needed to be careful. At the time he was talking to Andrew, Andrew had trolleys with him, but he did not have an occy strap to hold the trolleys together, nor did he have a rope. He did not specifically warn Andrew against the use of occy straps. He claimed that ropes were kept at the service desk in K Mart. Mr Britza said that the operations of the third respondent were never checked by WorkSafe during the period of 3-1/2 years for which she held the contract.

49 The only evidence as to the source from which Andrew had obtained the occy strap came from Daniel, whose hearsay evidence, admitted without objection, was that Andrew had taken the occy straps from his father's shed. Daniel's evidence was that the two of them had been taking the Woolworths trolleys back to Woolworths when the accident occurred. Andrew had been knocking the trolleys into Daniel's heels. His evidence was that, on more than two occasions, the leading trolley hit him on the heel and "it would fling back by the occy strap". On one occasion, after he had been hit on the heel, he got onto the last trolley, but when it was dragged backwards he jumped off.

50 Simon McChesnie was another who had been employed as a trolley boy to collect trolleys at the shopping centre during the relevant period. He had not known Andrew, but he said he had been told by Mr Britza that he could use a rope or an occy strap to keep the trolleys together. Asked how he would obtain either of them, his reply was that Mr Britza had said that he would "probably get them for us". He claimed he was never supplied with any rope and he had not been told that there was rope available from the third respondent. Nor did he see any of the other boys collecting trolleys at the time using rope or an occy strap. He himself had

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never used such a strap. Under cross-examination, he said he was "pretty sure" that Mr Britza had mentioned occy straps.

51 Mark Madunic was another boy who had worked on collecting trolleys. He had never used an occy strap and he could not recollect seeing other trolley boys using them. When he was first employed, Mr Britza had told him that he would supply him with ropes but he did not know where they were kept and, in any event, he did not have any trouble controlling the trolleys without them. Michael Siragusano was also called as a witness. He too had worked for the third respondent. He had been instructed not to push any more than 10 trolleys at a time, not to ride around on them, to wear enclosed shoes and not to talk to anyone whilst working. If he needed a rope he was told that one would be supplied for him. He was told that they would be available from the K-Mart service desk.

52 The third respondent, in her interview with the appellant, was aware of one other boy having used an occy strap. She had not attempted to stop him from using it because she had not realised until the accident that they were so dangerous.

53 There was evidence that, in August 1995, WorkSafe Western Australia had produced and circulated quite widely a publication known as Safety Line, dealing with safe shopping trolley collection. It included recommendations that shopping trolley collection have safe work provisions, that the operators properly train and supervise shopping trolley collectors and that trolleys be fixed together during movement to prevent trolleys running loose.

54 In the present case, the third respondent's work practices might be held to have been deficient. The evidence was that parts of the area over which the trolleys had to be moved sloped. There might be held to be a risk that trolleys would break loose unless tied together. There were, however, no instructions given to the boys to use ropes to tie the trolleys together, it being left up to them to obtain ropes if they wished to do so. A practical system of work might have involved the compulsory use of ropes. Andrew had obtained for himself an occy strap to secure the trolleys. His use of the occy strap caused his death. Whether there was a work environment in which Andrew was exposed to the risk of being struck by an occy strap and whether the failure to maintain a safe work environment caused Andrew's death is for the Magistrate to determine.

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55 In my opinion, in terms of the test laid down in Doney v The Queen (supra), the evidence is capable of supporting a verdict of guilty and I would therefore allow the appeal against the third respondent and remit the complaint to the Court of Petty Session at Broome for further hearing and determination.

56 WALLWORK J: The appellant appeals against the dismissal by a Magistrate of three complaints which he had made in the Court of Petty Sessions against each of the three respondents separately. The complaints alleged that each of the respondents had, whilst "being an employer, failed, so far as practical, to provide and maintain a working environment, in which one of its employees, namely Andrew Cox, was not exposed to hazards", and by that failure caused the death of" Andrew Cox, contrary to s 19(1) and s 19(7) of the Occupational Safety and Health Act 1984 (the Act).

57 On 23 July 1999 Andrew Cox who was then 13 years of age, was struck by an elastic strap which had been used to keep a number of shopping trolleys together, whilst he was returning the trolleys to a Woolworths store in a shopping centre at Karratha. Tragically, Andrew died of his injuries.

58 The first two respondents had retail outlets in the shopping centre. The third respondent was the employer of the deceased boy and had been responsible for the collection of the shopping trolleys pursuant to contracts with the first two respondents.

59 It was not established by the evidence at the hearing why it was that the deceased had been taking the trolleys to Woolworths at the time he was injured. Presumably the third respondent had some arrangement with Woolworths similar to those it had with the first two respondents. It was not disputed that the third respondent was the employer of the deceased at the time he was injured. The learned Magistrate, amongst other things, found that the first two respondents were not the employers of the deceased at the time when he was injured.

60 His Worship found that a written authority which had been signed by Mr Bartholomaeus, the Commissioner for Occupational Health Safety and Welfare on 29 May 1995, in which he had purported to delegate to the Director of Inspection Services, Department of Occupational Heath Safety & Welfare, the functions of the Commissioner prescribed in s 52(1) of the Act, was not valid, as Mr Bartholomaeus' term of office had expired

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before that time pursuant to s 10(a) of the Act. His Worship found that it followed from that fact that the prosecutions had not been authorised pursuant to s 52 of the Act. He found that the three respondents had no case to answer and dismissed the charges against each of them.

61 As stated above, the complainant now appeals against the dismissal of the three charges. The third respondent did not appear and was not represented before us.

62 The situation was that on 23 August 1989 Mr Bartholomaeus was appointed Commissioner for a term expiring on 9 July 1994. The relevant delegation of authority was signed by him after that, on 29 May 1995. On 26 September 1995, Mr Bartholomaeus was appointed Commissioner for a term ending on 31 January 1996. When that term finished on 31 January 1996, there followed another appointment for a term ending on 30 June 1996. There was a further appointment on 3 July 1996 for a term ending on 30 September 1996. On 8 October 1996 an appointment was made which is due to end on 23 September 2001.

63 In his affidavit sworn 12 March 1998, Mr Bartholomaeus deposed that he was first appointed Commissioner on 4 November 1987 and has been employed in that capacity since that time. He deposed that from 4 November 1987 until 10 September 1995 he had exercised all of the statutory powers and functions and borne all of the relevant responsibilities of Commissioner of Occupational Health Safety and Welfare. He deposed that to the best of his knowledge and belief, during that period he had been accepted as the Commissioner by members of the public. He deposed that after 11 September 1995 he had exercised all the statutory powers and functions and borne all of the relevant responsibilities of WorkSafe Western Australia Commissioner. He deposed that after 11 September 1995 he was accepted by members of the public as Commissioner.

64 Pursuant to s 52 of the Act, proceedings for an offence against the Act may be instituted by any person authorised in that behalf by the Commissioner. Pursuant to the instrument of delegation dated 29 May 1995, Mr Bartholomaeus had delegated to the Director of Inspection Services, Department of Occupational Health Safety and Welfare, Mr Scott, the functions of the Commissioner prescribed in s 52(1) of the Act. On 11 July 1997 Mr Scott had authorised Mr MacCarron to prosecute the respondents. On 11 July 1997 the appellant swore the relevant complaints.

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65 It was submitted for the respondents at the hearing of this appeal, that the affidavit of Mr Bartholomaeus was not sufficient evidence that Mr Bartholomaeus had been performing all of the functions of Commissioner. However the affidavit was produced in evidence at the hearing and was not objected to. It was, however, submitted by the respondents that it had not been put into evidence by consent. Counsel submitted that the affidavit had not been objected to because otherwise it would have been necessary for Mr Bartholomaeus to travel from Perth to Karratha to give evidence. Reliance was placed on Palos Verdes Estates Pty Ltd v Carbon (1992) 6 WAR 223 where the learned Chief Justice said at 228:

"It is implicit in the judgment in Turner [1910] 1KB 346 that if it becomes necessary to prove the fact of consent to a prosecution, that fact must be properly proved."

66 His Honour also said:

"Generally the necessary consent is given either by signature of a form of consent as in Berwin v Donohoe (1915) 21 CLR 1 and Turner, or by endorsement of consent on the complaint or information itself as in Holland v Jones (1917) 23 CLR 149."

67 Another point made by the respondents was, if the instrument of delegation which had been produced came within s 59(1)(d) of the Interpretation Act 1984 (WA), there needed to be evidence before the court that Mr Scott was, at the time he had purported to authorise the prosecutions, the Director of Inspection Services, Department of Occupational Health, Safety and Welfare and an officer of that Department.

68 It was submitted that because s 3(1) of the Act defined the Department as meaning the Department of the Public Service of the State principally assisting the Minister in the administration of the Act, it was necessary for there to be evidence identifying the relevant department and establishing that Mr Scott was an officer of that department; that there were provisions of the Public Service Management Act 1944 which related to the appointment and employment of people as officers of departments and the designations of departments by the Government - s 35. It was said that there had been simply no evidence of any designation of a department under s 35. The instrument of delegation spoke of "Department of Occupational Health, Safety and Welfare". It was said that there was nothing in the amendment to the Act in 1995

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which amendment is the Occupational Safety and Health Legislation Amendment Act 1995, in relation to the office of Director of Inspection Services, Department of Occupational Health, Safety and Welfare. It was submitted that that was the office to which the purported delegation had been made but the question was, who was Mr Scott?

69 It was submitted for the respondents that at its highest there had been a document dated 12 March 1998 signed by Mr Bartholomaeus which certified that Mr Neil H Scott was the Director, Inspection Services at WorkSafe, Western Australia and that he had been continuously employed in that capacity since 1985. There was a further certificate which certified that Mr Scott had been appointed as an inspector under s 42 of the Occupational Safety and Health Act 1984 and that he was authorised to exercise all the powers of an inspector conferred by the Act. That certificate showed that Mr Scott had been appointed on 10 October 1995 which was before the authorities to prosecute were signed by Mr Scott on 11 July 1997.

70 It was submitted that there was no evidence linking Mr Scott in his capacity at WorkSafe with the Director of Inspection Services, Department of Occupational Health, Safety and Welfare. It was said that the Palos decision made it very plain that when it is a matter which has been raised, it must be proved by the complainant. Counsel for the respondents could not nominate any decided case in which the standard of proof in this regard has been specified.

71 It was submitted that the proof of the consent to the prosecutions goes to the validity of the complaints. It is a matter which is normally presumed unless it is put in issue. If it is put in issue it must be properly proved by the prosecutor.

72 It was further argued that there was no evidence to prove that at the time he had purported to authorise Mr MacCarron to institute the proceedings, Mr Scott was capable of exercising the purportedly delegated power. It was contended that he was not so capable; that at its highest the evidence was that Mr Scott was employed as "the Director Inspection Services at WorkSafe, Western Australia" and not at the "Department of Occupational Health, Safety and Welfare", and that there was no deeming provision in that regard - see Occupational Safety and Health Legislation Amendment Act 1995, s 50(1).

73 The certificate dated 10 October 1995 certified that Mr Scott had been appointed an inspector under s 42 of the Occupational Safety and

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Health Act 1984 and that he was authorised to exercise all the powers of an inspector conferred by the Act. There was a letter in evidence dated 12 March 1998 from Mr Bartholomaeus certifying that Mr Scott was the Director, Inspection Services at WorkSafe, Western Australia and had been employed continuously in that capacity since 1985. There was the delegation to him dated 29 May 1995 which delegated to the Director, Inspection Services, Department of Occupational Health, Safety and Welfare, the functions of the Commissioner prescribed in s 52(1) of the Act.

74 Concerning the contention that the evidence was that Mr Scott was employed as Director, Inspection Services at WorkSafe and not the Department of Occupational Health, Safety and Welfare, in my view it is obvious from the amending legislation in 1995 that the amending Act in 1995 carried on the functions formerly performed under the Occupational Safety and Welfare Act 1984.

75 In my view, as there was evidence that Mr Bartholomaeus was acting in the capacity of Commissioner and had delegated his authority to Mr Scott, and of Mr Scott's authorising the complainant to prosecute, and as there was no evidence which raised any doubt as to those matters, those facts should be taken as proven.

The effect of Mr Bartholomaeus not being formally appointed

76 The appellant accepts that on 29 May 1995, when he signed the instrument of delegation, Mr Bartholomaeus was not formally appointed as the Commissioner for Occupational Health, Safety and Welfare. However the appellant contends that although Mr Bartholomaeus was not formally appointed to the office at the time he signed the instrument of delegation on 29 May 1995, that instrument was valid because at the time Mr Bartholomaeus was acting de facto in the public office of WorkSafe WA Commissioner, which office was the successor to that of Commissioner for Occupational Health, Safety and Welfare.

77 The amended ground of appeal advancing this contention is ground (a)(ii), which states in effect that at the time of executing the relevant instrument, Mr Bartholomaeus was acting as the Commissioner and for that reason was able to validly execute the instrument, due to the doctrine by which acts of a de facto public officer which are done in an apparently regular execution of his office, have equal force and effect to those of an officerformally appointed.

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78 It was submitted for the appellant, that the evidence was that Mr Bartholomaeus had acted as, and had a public reputation as, the Commissioner. That evidence appeared from his affidavit sworn on 12 March 1998 in which he deposes, amongst other things, that on 4 November 1987 he had been appointed the Commissioner of Occupational Health, Safety and Welfare by the Governor pursuant to s 9 of the Occupational Health, Safety and Welfare Act 1984 and that he had been employed in that capacity continually since that time. Mr Bartholomaeus also deposed that on 11 September 1995 his title was changed to WorkSafe Western Australian Commissioner by the Occupational Safety and Health Legislation Amendment Act 1995. He deposed that from 4 November 1987 until 10 September 1995 he had exercised all the powers of the office and that to the best of his knowledge and belief he had been accepted by members of the public as the Commissioner of Occupational Health, Safety and Welfare. He deposed that since 11 September 1995 he had exercised all the statutory powers and functions and had borne all the relevant responsibilities of WorkSafe Western Australian Commissioner. Also, that during the whole period of his office he had regularly consulted with the responsible Minister on matters relevant to the Act.

79 There is no doubt, as found by the learned Magistrate, that there was a period when Mr Bartholomaeus' formal appointment as a Commissioner did not exist. It was during that time and on 29 May 1995 when he delegated his responsibility to Mr Scott.

80 It has been decided that the rule concerning de facto officers operates where, through mistake, an office holder holds over after his term of office has expired. An authority for that proposition is contained in the words of McHugh JA in G J Coles & Co Ltd v Retail Trade Industrial Tribunal (1987) 7 NSWLR 503 at 525 where his Honour said:

"It matters not that his appointment to the office was defective or has expired or in some cases even that he is a usurper."

81 It was submitted for the appellant that in the United States it is well accepted that the de facto officer's doctrine applies to holding over. The authorities cited were Cantwell v City of Southfield Mich App (1980) 290 NW 2d 151 at 153; Grooms v La Vale Zoning Board (1975) 340 AD 2d 385 at 391; Reed v President and Commissioners of Town of North East (1961) 172 A 2d 536 at 541-542; State of Kansas v Miller (1977) Kan 565 P 2d 228 at 234-5; Ridout v State (1930) 30 SW 2d 255 at 257-259; Izer v State (1893) 26 A 282 at 283-284.
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82 It was submitted that the relevant doctrine has been applied in the United States in circumstances precisely analogous to the present case in order to validate the authorisation of a prosecution - Anderson v State (1946) 195 SW 2d 368 at 370-371; Equal Employment Opportunity Commission v Sears Roebuck & Co (1980) 504 F Supp 241 at 259-262 United States District Court Nd Illinios ED.

83 Returning to the decided case of G J Coles Ltd v Retail Trade Industrial Tribunalsupra,at 525 McHugh JA said:

"The acts of a de facto public officer done in apparent execution of his office cannot be challenged on the ground that he has no title to the office. It matters not that his appointment to the office was defective, or has expired, or in some cases even that he is a usurper."

84 At 526 his Honour said:

"The rule concerning de facto officers can be traced back to Abbot of Fountaine's case in 1431 (YB9HVI33). Many instances of its application can be found in the English reports … In the United States the rule has been frequently invoked in the State and Federal Courts. A very detailed examination of the English and American authorities can be found in State v Carrol (1871) 9 Am Rep 409. The rule appears to have been implied in Victoria. … More importantly in Ellis v Bourke [1889] 15 VLR 163, the Full Court of Victoria, when hearing a special case arising out of the conviction of a licensee and the forfeiture of his licence, refused to admit evidence that the licensing court was not properly constituted."

85 His Honour went on to say:

"The decision in Ellis v Bourke makes it plain that the de facto officer rule applies to the acts of a multi-membered court as well as to the acts with individual, judicial or public officers. In principle, there seems to be no reason why the rules should not apply to protect the acts of a public tribunal improperly constituted."

86 McHugh JA referred to the words of Butler CJ in State v Carroll (1871) 9 Am Rep 409 where the Chief Justice said:

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"But to protect those who dealt with such officers when apparent incumbents of offices were under such apparent circumstances of reputation or colour as would lead men to suppose they were legal officers, the law validated their acts as to the public and third persons, on the ground that, as to them, although not officers de jure, they were officers in fact, whose acts public policy required should be considered valid."

87 McHugh JA said:

"Whatever is the true account of the origin of the de facto officer rule, its rationale in modern times is the protection which it affords the public. If an award of an industrial tribunal were held void, great inconvenience would usually be occasioned to a section of the public. To hold that the award is void simply because of a defect in the composition of the tribunal is a course to be avoided if it is possible to do so. Such a case seems to call, in the public interest, for the application of the de facto officer rule."

88 The respondents argued that the de facto office rule did not apply in this case because that doctrine could not apply where an office had been formally "vacated" as it had in this case by virtue of s 10 of the Act. The respondents relied on the decision of Hughes v Hughes (1971) 2 SASR 268. I cannot see anything in that decision which would justify the proposition advanced by the respondents.

89 What had happened in this case was that Mr Bartholomaeus' appointment had expired but he had continued to act in the position. In my view he comes within the words of Zelling J at 376 in Hughes (supra), where his Honour when speaking of Masters said:

"They did not have a known or in fact any de jure appointment at all but were acting under circumstances of reputation or acquiescence (it must be remembered that both sides invoked their jurisdiction at various times and submitted to it during the course of this particular action) as were calculated to induce people in the position of these parties and their legal advisers without inquiry to submit to or invoke their actions supposing the Masters to be the officers they assumed to be …".

132 Section 19(1) imposes various statutory duties upon employers. Relative to these prosecutions the section provides:

"(1) An employer shall, so far as is practicable, provide and maintain a working environment in which his employees are not exposed to hazards and in particular, but without limiting the generality of the foregoing, an employer shall -

(a) provide and maintain work places, plant, and systems of work such that, so far as is practicable, his employees are not exposed to hazards;

…"

Hence the identical form of the complaint, the material terms of which have been set out by Wallwork J, in respect of each of these prosecutions.

133 The word "practicable" is defined in s 3(1) as follows;

"'practicable' means reasonably practicable having regard, where the context permits, to -

(a) the severity of any potential injury or harm to health that may be involved, and the degree of risk of it occurring;

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(b) the state of knowledge about -

(i) the injury or harm to health referred to in paragraph (a);

(ii) the risk of that injury or harm to health occurring; and

(iii) means of removing or mitigating the risk or mitigating the potential injury or harm to health;

and


(c) the availability, suitability, and cost of the means referred to in paragraph (b)(iii);"

134 The word "employer" is also defined in that section, relative to this case as a person by whom an employee is employed under a contract of employment, but also of relevance to this case is the extended definition which emerges from s 19(4) which provides that:

"For the purposes of this section, where, in the course of a trade or business carried on by him, a person (in this section called 'the principal') engages another person (in this section called 'the contractor') to carry out work for the principal -

(a) the principal is deemed, in relation to matters over which he has control or, but for an agreement between him and the contractor to the contrary, would have had control, to be the employer of -


(i) the contractor; and

(ii) any person employed or engaged by the contractor to carry out or to assist in carrying out the work;

and


(b) the persons mentioned in paragraph (a)(i) and (ii) are deemed, in relation to those matters, to be employees of the principal."

135 The learned Magistrate, in ruling upon the submission that the respondents had no case to answer in respect of the respective complaints, was required to deal with substantive submissions that the first and second

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respondents, to whom for convenience I shall refer as Coles and K Mart, were not employers of the young person who was killed, because he was not employed by them under a contract of employment (as to which there was no suggestion to the contrary) and they were not employers under the extended definition derived from s 19(4) in any manner relevant to these cases in relation to the use and the breaking of the elasticised strap which caused the injury from which the employee died, because that was not a mode of working or part of a system of work over which Coles or K Mart had control or would have had control, but for an agreement to the contrary between each of them and the third respondent, to whom I shall refer as Rosalie's Trolleys.

136 Further, it was submitted that in relation to each defendant, there was no evidence capable of establishing that, treating them as employers of the deceased employee, they contravened the section by failing in their duty to provide a working environment, a system of work, such that so far as was practicable the deceased was not exposed to the hazard of injury and death occurring as it did in this case. It was put that there was no evidence as to the degree of risk of the accident occurring, or as to whether any defendant, or indeed anybody, knew anything about the risk of that injury or that there was a need to remove or mitigate that risk, sufficient to establish the breach of duty relied upon by the appellant.

137 His Worship held that there was a case for each defendant to answer upon those issues.

138 However, there was also an issue as to the technical validity of the prosecution in each case. Under s 52(1), proceedings for an offence against the Act "may be instituted by any person authorised in that behalf by the Commissioner". The complaint in each case recited that the appellant was such a person, although each complaint was said on its face to have been authorised by the Commissioner of Occupational Health, Safety and Welfare, despite the fact that each complaint was made on 17 July 1997. In each case, however, it was proved that on 11 July 1997 a Mr Scott had authorised the appellant to prosecute the respondents for the offence in question, acting in his capacity as the Director of Inspection Services. It was also proved that Mr Scott was an inspector appointed under s 42 of the Act, but that really took the matter no further.

139 It was established that by an instrument dated 29 May 1995, signed by a Mr Bartholomaeus, who described himself as the Commissioner for Occupational Health, Safety and Welfare, that officer had delegated to the Director of Inspection Services, Department of Occupational Health,

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Safety and Welfare, "the functions of the Commissioner prescribed in s 52(1) of the Act." It was established that Mr Scott had been that officer since 1985 and therefore the validity of the authority to prosecute depended upon the efficacy of the delegation of the power to authorise the institution of proceedings.

140 The difficulty was, as Wallwork J has explained, that the Commissioner had been appointed for a term expiring on 9 July 1994. Following the expiration of that term, the officer in question continued to act as the Commissioner and it was established that he continued to be recognised as the person acting in that capacity, but in fact, he was not again formally appointed as Commissioner until 26 September 1995, following which a number of consecutive appointments were made, providing continuity of appointment ultimately for a period expiring on 23 September 2001.

141 Under s 18(4):

"The Commissioner may, either generally or as provided by the instrument of delegation, by writing signed by him, delegate to any officer of the department any of his functions under this Act other than this power of delegation, and a function performed in accordance with a delegation under this subsection is deemed to be performed by the Commissioner."

There is no doubt, in my opinion, as was held by the Court below, that if there was a valid instrument of delegation in favour of Mr Scott, then the appellant was authorised to prosecute and it was appropriate when he made the complaints that he should describe them as having been made in accordance with the authority of the Commissioner. However, the learned Magistrate found that when the instrument of delegation was signed by the person purporting to be the Commissioner on 29 May 1995, he did not legally occupy that office, although he purported to do so. That being the case, his Worship considered that the complaints were made without the necessary statutory power and authority, and upon that ground he dismissed all three.

142 It is accepted that on the no case to answer submission, the learned Magistrate was required to ask whether the evidence of the prosecution taken at its highest was capable of establishing the guilt of the defendants beyond reasonable doubt: Morrison v Kiwi Electrix Pty Ltd (1998) 19 WAR 482, 489. Apart from the issues raised which are of a substantive kind concerned with the capacity to prove the complaints, the respondents

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could not lawfully be convicted if the complaints were made without the authority required by the law.

143 The appeal proceeded upon grounds which were amended by leave granted at the hearing. It is necessary also to bear in mind the contents of a notice of contention given pursuant to O 63 r 9 of the Rules of the Supreme Court on behalf of Coles and K Mart. The first ground of appeal, as so amended, relies on the asserted retrospective operation of the Occupational Safety and Health (Validation) Act 1998 (WA) which came into operation on 12 January 1999, well after the learned Magistrate dismissed these complaints on 15 April 1998 and well after Walsh J had granted leave to appeal against the dismissal of those complaints on 15 June 1998.

144 Wallwork J has set out s 4(2) and (3) of the Validation Act which deals with the acts of the person purporting to occupy the office of Commissioner, or performed at his direction or pursuant to a power purported to be delegated by him. If attention is focused upon the instrument of delegation dated 29 May 1995, the question is whether s 4(2) necessarily operates with retrospective effect to validate that act of delegation. I think it does so. That was an act done before 8 October 1996 by Mr Bartholomaeus in his purported capacity, on the face of the instrument, as Commissioner. Section 4(2) provides that that act is not, nor ever has been, invalid by reason that Mr Bartholomaeus at the time had not been appointed as Commissioner, it being the case that by s 10(a) of the principal Act:

"The office of Commissioner … becomes vacant if -

(a) his term of office expires;

…"

145 By s 4(3) of the Validation Act the negative statement made in s 4(2) is converted into the positive assertion relative to this case that the act of Mr Batholomaeus delegating his power under s 52(1) of the principal Act to authorise a person to institute proceedings for an offence against the Act "is, and always has been," as valid and effective and authorised by the principal Act as it would have been if Mr Bartholomaeus had been duly appointed as Commissioner when he did the act of delegating his power with which we are concerned.

146 In my opinion the provisions discussed above clearly operate retrospectively and effectively to make valid and effective the act of

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delegation made to Mr Scott, as the Director of Inspection Services of the department, of the Commissioner's power to authorise the institution of proceedings for offences against the Act. So much is consistent with the view taken of the effect of the Validating Act in Moltoni v Shepherd [1999] WASCA 73; 23 June 1999 by Kennedy J, with whom Ipp and Wallwork JJ agreed, at par [22] and par [23]. But the respondents argue that Moltoni should be distinguished because the complaints in that case had not been finally determined before the Validation Act came into operation. It is argued that it cannot have been the intention of the Validation Act that the effect of its operation should be to revive complaints finally dismissed in accordance with the law as it then was - a form of statutory double jeopardy. However, in my opinion, that argument may not be accepted. It requires the otherwise clear language of retrospectivity in the Validating Act to be read down and I cannot discern the justification or capacity to do so. I respectfully agree with what Kennedy J has written with respect to this issue.

147 The result seems to me to be that there was a valid delegation of the Commissioner's power under s 52(1) of the Act to the officer described as the Director of Inspection Services, Department of Occupational Health, Safety and Welfare and there was, in my opinion, contrary to the first paragraph of the notice of contention, evidence that Mr Scott was that officer and that he was an officer of the department to whom, under s 18(4), the delegation could lawfully be made. There was evidence that Mr Scott, acting in that capacity, authorised the appellant to institute the proceedings pursuant to s 52(1). Retrospectively therefore, upon this ground, the learned Magistrate's decision that the complaints were not validly made, was wrong as a matter of law. The expression of those views puts very shortly my opinion upon both this ground of the appeal and the matters raised in the first paragraph of the respondents' notice of contention so far as they were pursued in argument.

148 That makes it strictly unnecessary that I should address the remaining grounds of appeal which are concerned with the validity of the complaints, but as the issues raised by those grounds were fully argued, I think it is appropriate that I should at least shortly express my conclusions.

149 The first such point is that the learned Magistrate erred because he should have held that the instrument of delegation was valid and effective as it purported to be made by the Commissioner in circumstances which would give rise to the doctrine by which acts of a de facto public officer done in apparently regular execution of the office are to be taken to be as

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valid and effectual as acts performed by an officer who is, as a matter of law, properly appointed. There is no doubt that the doctrine is part of our law. It has long been recognised as a matter of public policy for the protection it affords to those who deal with those who purport to hold public office, in reliance upon the validity of their appointment and their lawful capacity to exercise the powers apparently vested in them. A useful and complete discussion of the rule is to be found in the judgment of McHugh JA (as his Honour then was) in G J Coles & Co Ltd v Retail Trade Industrial Tribunal (1987) 7 NSWLR 503.

150 In my respectful opinion the conclusion of Kennedy and Wallwork JJ that the doctrine would apply in this case to validate the purported act of delegation by the Commissioner is correct. Mr Bartholomaeus was apparently the Commissioner, recognised as such, apparently acting within his authority to delegate the authorisation of prosecutions and it mattered not that in truth his appointment had expired.

151 The other ground relied upon in the alternative by the appellant is that the learned Magistrate should have concluded that in executing the instrument of delegation, Mr Bartholomaeus was acting in or performing the functions of Commissioner and by reason of the Interpretation Act1984 (WA), s 49, he was able to exercise the powers of the Commissioner. Section 49 is in the following terms:

"Where a written law confers a power or imposes a duty on the holder of a public office as such, the power may be exercised and the duty shall be performed by the person for the time being lawfully holding, acting in, or performing the functions of the office."

In my opinion this ground is without merit. The short answer to it is that the word "lawfully" qualifies the passage "holding, acting in, or performing the functions of the office." Patently, that was not Mr Bartholomaeus' situation when he executed the instrument of delegation.

152 In my view nothing in the judgment of Kennedy J in Moltoni at par [29] is to the contrary. The simple purpose of s 49 is to make it clear that where a power is conferred or a duty is imposed on the holder of a public office so described, any person who holds that office lawfully, or who lawfully acts in the office or lawfully performs the functions of the office may exercise the power, or may be obliged to perform the duty.
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153 In my opinion therefore, for the reasons given concerning the Validation Act and the defacto officer's doctrine, the learned Magistrate erred in dismissing the complaints upon the ground that they were not validly made. However, that conclusion does not result in a decision that his Worship's dismissal of the complaints must be set aside. It is necessary first to address the issues raised in the second, third and fourth paragraphs of the respondents' notice of contention.

154 The first issue thus raised affects Coles and K Mart. The contention is that the learned Magistrate erred in declining to hold that these respondents were not, even upon the basis of the extended definition in s 19(4), employers of the deceased and therefore were not subject to the duties imposed by s 19(1) of the Act. I respectfully agree with the views expressed by Wallwork J on this point and it seems to me that the learned Magistrate erred by not upholding the submission that Coles and K Mart had no case to answer upon this ground.

155 On the evidence they were certainly not employers of the deceased under the standard definition of an employer contained in s 3(1). The appellant relied upon the extended definition in s 19(4). As to that, there was certainly evidence that Coles and K Mart, as principals, had engaged Rosalie's Trolleys, for whom the deceased actually worked, under a contract to carry out the work of collecting their trolleys found within a 3 km radius of the shopping centre and returning them to their stores. But the question whether in that event Coles and K Mart were capable of being deemed to be employers of the deceased depended upon the aspect of control.

156 The proper approach, in my view, was to consider what was alleged to be the contravention of the duty imposed by s 19(1) which would constitute the offence, because it caused the death of the employee. The hazard identified in the particulars attached to each complaint, to which it was alleged the deceased was exposed, was "the risk of being struck by an elastic strap." The manner by which the duty imposed by s 19(1)(a) was said to have been breached was that, so far as was practicable, the employer should have provided and maintained a system of work which did not involve the use of elastic straps in the collection of shopping trolleys, instructed the deceased not to use such straps and provided sufficient supervision to ensure that he did not do so.

157 For the purposes of s 19(4) therefore, the question was whether in relation to the use of the strap and the hazard which it allegedly constituted, either or both of Coles and K Mart controlled that system of

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work or would have controlled it had it not been the case that the terms of the agreement between them and Rosalie's Trolleys deprived Coles and K Mart of that control. In my opinion there was no evidence that the control of that system of work rested anywhere other than with Rosalie's Trolleys, and there was certainly no evidence of an agreement between either or both of Coles and K Mart and Rosalie's Trolleys which was of the kind described by s 19(4). On that basis, in my opinion, the appeal against the dismissal of the complaints against Coles and K Mart must be dismissed.

158 That leaves finally the fourth point made in the notice of contention filed on behalf of Coles and K Mart that there was no evidence capable of establishing that it was reasonably practicable, having regard to the definition of the word "practicable" contained in s 3(1) of the Act, to provide and maintain a working environment, a system of work, such that the deceased employee was not exposed to the identified hazard that he would be struck by an elastic strap. In view of the conclusion to which I have come in respect of the question of employment, it is only necessary to address this question, which was fully argued, in so far as it may affect the position of Rosalie's Trolleys which did not appear and was not represented before us.

159 As I understand the evidence for the appellant, taken at its highest, it was capable of establishing that when the deceased employee was engaged shortly before his tragic accident, he was told generally what his duties would be. He was to collect the trolleys, pushing no more than 10 together at any one time, and if up a ramp or incline, no more than about 3, so that they might be returned to the store from whence they came. If he wished to secure a number of trolleys together he could do so by means of a rope which would be provided. He was not told to use, or indeed not to use, an elastic strap for that purpose.

160 On the day in question, probably the second occasion only upon which the youngster had worked as a trolley boy, he had somewhere between five and ten trolleys in a line and apparently secured together by the elastic strap attached with a hook to the first trolley and a similar hook to the last in the line. The deceased was observed to add another trolley to the line, removing and re-attaching the hook. The strap appeared to be quite stretched. He came as he resumed his journey to a slight downward incline, which no doubt increased the tension. In a manner which does not appear to have been clearly established, during a period when the deceased was experiencing some difficulty in controlling the line of trolleys, the strap came off a trolley at a point where it had been secured

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by the hook. Being under tension it snapped back, struck the employee on the oesophagus and as a result, caused his death, despite the attempt made at the time to treat his injury and restore his breathing.

161 In that context, for the respondents it is argued that there was no evidence to establish the breach of duty because there was no evidence of the degree of risk of any injury potentially occurring and there was no evidence of the state of knowledge about that risk. In answer, the appellant simply argues that as a matter of common sense, it would be reasonably foreseeable that a trolley boy using an elastic strap might be injured if the strap was strained too tightly and came off the trolley. So much may be accepted if that proposition encapsulates the test of reasonable practicability posed by the statutory definition.

162 The accident occurred on 23 July 1996. No evidence was led that as at that date there was any occupational code or practice which dealt with the danger which might be posed by the use of elastic straps in the way relevant to the injury and death in this case. Indeed, a departmental publication dated August 1995 which dealt specifically with recommended practices in relation to the collection of shopping trolleys made no reference to any such difficulty and recommended procedures to guard against quite different hazards. The evidence of those persons who were associated with the operation of Rosalie's Trolleys was effectively that they had no knowledge of any danger associated with the use of elastic straps. Mr Britza gave evidence at the trial and a record of interview given by Mrs Britza was tendered. It was for the prosecution to prove facts capable of establishing the issue of reasonable practicability: Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249.

163 The question of practicability, in my opinion, had to be related back to the identified hazard that in some undefined way the employee might be struck by an elastic strap in such a way as to cause the kind of injury and the death which in fact ensued. Certainly it was reasonably practicable to take simple steps to obviate the risk if it was known, or reasonably foreseeable. Another means of securing the trolleys was in fact available at the time and other similar perfectly safe means might be readily imagined. The severity of the potential injury or harm of the kind which in fact occurred was, of course, very great, but the degree of risk of it occurring at the time was entirely unknown. There was no evidence of any prior similar incident or anything of the kind and so there was no evidence of the state of knowledge generally held about the risk and its magnitude. At the time the accident happened, it was, I think, on the evidence before the learned Magistrate, an entirely surprising event.

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164 For that reason also then, in my opinion, although the proposition did not appeal to his Worship, the dismissal of the three complaints was correct, having regard to the accepted test upon the consideration of a no case submission, and in my view, the appeal against the dismissal of each of these complaints should be dismissed.