Markos v Commerical & General Projects Pty Ltd

[2010] SASCFC 43

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Application)

MARKOS v COMMERICAL & GENERAL PROJECTS PTY LTD

[2010] SASCFC 43

Judgment of The Full Court

(The Honourable Chief Justice Doyle, The Honourable Justice White and The Honourable Justice Peek)

25 October 2010

APPEAL AND NEW TRIAL - APPEAL - PRACTICE AND PROCEDURE - SOUTH AUSTRALIA - WHEN APPEAL LIES - BY LEAVE OF COURT - GENERALLY

INDUSTRIAL LAW - SOUTH AUSTRALIA - OFFENCES - APPEALS

Application for permission to appeal in private – whether Full Bench of Industrial Relations Court erred in dismissing the appeal against the acquittal of the respondent – key documents not proved in evidence – difficult to reverse the findings made on the limited facts – application refused.

Occupational Health, Safety and Welfare Act 1986 (SA) s 22(2)(a); Fair Work Act 1994 (SA) s 191(1)(b), referred to.

WORDS AND PHRASES CONSIDERED/DEFINED

"management and control of the employer"

MARKOS v COMMERICAL & GENERAL PROJECTS PTY LTD
[2010] SASCFC 43

Full Court:  Doyle CJ, White and Peek JJ

1. THE COURT:      Mr Markos filed a complaint in the Magistrates Court. The complaint charges Commercial & General Projects Pty Ltd (C & G) with an offence against s 22(2)(a) of the Occupational Health, Safety and Welfare Act 1986 (SA).

2. The charge is that at a building site C & G, being an employer, failed to ensure so far as was reasonably practicable that Ms Kay, not an employee employed or engaged by C & G, was safe from injury and risk to health while she was at a workplace (the building site) that was under the management and control of C & G.

3. The complaint was heard before an Industrial Magistrate who found C & G not guilty.  Mr Markos appealed to a Judge of the Industrial Court, who dismissed the appeal.  Mr Markos then appealed to the Full Court of the Industrial Court, which dismissed the appeal.

4. Mr Markos now applies under s 191(1)(b) of the Fair Work Act 1994 (SA) for permission to appeal to the Full Court of the Supreme Court.

5. The Full Court of the Industrial Court summarised the case as follows:

   2The essential facts are that a developer, South Shores, owned a site at Lady Bay, south of Adelaide.  It commenced a project on that site involving the construction of 92 beach houses enclosing a lagoon and two swimming pools.  It engaged the respondent to build the houses.  With some small variations the respondent worked the building site Monday to Friday.  On Sunday 12 February 2006, South Shores had a representative, Ms Kate Hill, at the development site to promote the project in the hope of interesting prospective buyers.  As was usual, none of the respondent’s personnel were there.  One of the prospective buyers, Margaret Kay, while seeing what South Shores had on offer, climbed a ladder in one of the partially completed beach houses to check the view from a proposed upper room.  While descending that ladder she fell injuring herself.

   Footnotes omitted

6. It summarised C & G’s argument as follows:

   10However, the appellant strenuously rejected the proposition that there had to be the party’s physical presence for there to be actual control.  This contention by the appellant appears to be sound, at least in a limited sense.  If a driver abandons the steering wheel of a vehicle and physically absents himself, it can hardly be said in ordinary parlance that he did not have “the control” of the vehicle.  However, that situation was not the case advanced by the respondent in answer to the charge here.  The respondent’s case was that the developer exercised control in respect to the premises in the given circumstances in a way completely compromising the respondent’s capacity to control.  Indeed when the prospective purchasers were invited to examine the buildings by the developer’s agent on the Sunday in question, any actuality of control by the respondent was overridden.  The respondent thereby ceased to have any actual control.  To continue the earlier simile the developer had taken back the steering wheel.

   [The reference to the appellant is to Mr Markos and the reference to the respondent is to C & G.]

   Footnotes omitted

7. At each stage in the Industrial Court the argument focussed on the question of whether C & G had the management and control of the workplace at the relevant time.  At each stage that question was answered in the negative, and that was the basis upon which C & G was found not guilty, and on which each of the two following appeals was dismissed.

8. A striking feature of the case is that the contract between South Shores, the owner and developer, and C & G, was not proved in evidence.  That was a significant omission.  It leaves unclear the contractual entitlement of South Shores, as the owner and developer, to enter the site of a weekend with a view to showing potential purchasers over the site.  The significance of this is that the activity in question occurred at a time when C & G’s employees were not present at the site, and no building activity was taking place on the site.

9. The Full Court summarised its conclusions as follows:

   21… In our opinion the Industrial Magistrate and the learned Judge correctly concluded the charge was not proved beyond reasonable doubt.  It had not been proved that on the day and at the time of the accident, the site was under the “management and control” of the respondent.  Indeed on the facts taken together with the correct construction of the provision, it was clearly not in the management or the control of the respondent.  A central piece of evidence relied on by the appellant was the Project Management Plan.  On its face that was no more than a request on the respondent’s part as to how South Shores should access the site.  In the event it was clearly not complied with apparently as it had no compelling status.

   22Some time was spent by counsel on the absence of the contract or contracts that existed between South Shores and the respondent.  It is perhaps pointless to remark on absent evidence given the appellant carried the onus of proof, although one might well have expected the contract to have dealt with possession and control of the site, by whom and when.  But we can only speculate.  The prosecution must stand or fall on what was put before the Court.  As said, the material the prosecution put in support of its case was insufficient to prove the charge.

   Footnotes omitted

10. In our opinion it might be arguable that in the Industrial Court the meaning given to the expression “management and control of the employer” was a little too narrow.  It may be that that expression has a wider reach than was acknowledged.

11. But in our opinion, without the ability to refer to the contract between C & G and South Shores, and any other contractual documents, an unsatisfactory element of speculation comes into play.  Absent documents of contractual force as between C & G and South Shores, it becomes difficult for this Court to reverse findings made on the limited facts before the Industrial Court.

12. It is also a significant factor that at three different levels findings have been made that the respondent did not have the management and control of the site at the time.  A grant of permission to appeal would lead to the fourth argument of this issue, substantially on the facts, because of the absence of the contractual documents.

13. In those circumstances, this is not a suitable or appropriate case in which to revisit the finding that C & G did not have the management and control of the site at the time in question.

14. There is a further issue.  It is the status of admissions made by an employee of C & G.  Even if his admissions were able to bind C & G, nothing changes, because they do not more than provide further evidence bearing on the issue of management and control, the effect of which evidence is subject to the same limitations as the other evidence in the case.

15. For these reasons the Court concludes that this is not an appropriate case to grant permission to appeal.