Markos v Quin Investments Pty Ltd

[2011] SASCFC 98

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court: Permission to Appeal in Private)

MARKOS v QUIN INVESTMENTS PTY LTD & ANOR

[2011] SASCFC 98

Judgment of The Full Court

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

26 August 2011

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

INDUSTRIAL LAW - INDUSTRIAL SAFETY, HEALTH AND WELFARE - SOUTH AUSTRALIA - OCCUPATIONAL HEALTH AND SAFETY LEGISLATION - DUTIES AND OFFENCES - PENALTY

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - INTERFERENCE WITH JUDGE'S FINDINGS OF FACT - FUNCTIONS OF APPELLATE COURT

Application for permission to appeal against a decision by the Full Court of the Industrial Court - permission required by s 191(1)(b) of the Fair Work Act 1994 (SA) - three employees of the first respondent were killed and two injured in an explosion at the first respondent's explosives manufacturing facility - the first respondent was convicted of an offence against s 9(1) of the Occupational Health Safety and Welfare Act 1986 (SA) (the Act) - as a responsible officer, the second respondent was convicted pursuant to s 61(3) of the Act - the Full Court of the Industrial Court dismissed the appeals against conviction - whether the application for permission to appeal raises an issue of principle - whether there is a public interest in the findings in this matter.

Held: 

(Doyle CJ and Peek J):  if permission were granted it would result in a re-examination of factual issues, which were already considered at an appellate level - there is public interest in sound findings of fact being made when the issue is workplace safety - overall, not in the interests of justice to grant permission to appeal.

(David J):  questions of public interest outweigh other considerations - in the interests of justice to grant permission to appeal.

Application for permission to appeal refused. 

Fair Work Act 1994 (SA) s 191(1)(b); Supreme Court Civil Rules 2006 (SA) r 290(1)(b); Occupational Health Safety and Welfare Act 1986 (SA) s 19(1), s 61(3), referred to.

MARKOS v QUIN INVESTMENTS PTY LTD & ANOR
[2011] SASCFC 98

Full Court:   Doyle CJ, David and Peek JJ

1. DOYLE CJ:          This is an application by Mr Markos for permission to appeal to the Full Court. The application relates to a decision by the Full Court of the Industrial Court. Permission to appeal is required by s 191(1)(b) of the Fair Work Act 1994 (SA) (the Act).

2. The application is supported by a summary of argument as required by r 290(1)(b) of the Supreme Court Civil Rules 2006 (SA).  The application has been considered by the Court comprising Doyle CJ, David J and Peek J.  The Court did not direct the respondents to file a summary of argument.

3. On 9 May 2006, an explosion occurred at the first respondent’s explosives manufacturing facility.  The explosion killed three employees and injured two others.

4. The first respondent was convicted of an offence against s 19(1) of the Occupational Health Safety and Welfare Act 1986 (SA).  The allegation against it was that it failed to ensure as far as was reasonably practicable that its employees were, whilst at work, safe from injury and risks to health.  According to the applicant, it was alleged that the first respondent failed properly to maintain a critical item of plant, and permitted that item of plant to be used in the manufacture of explosives while in a state of disrepair.  As the responsible officer, the second respondent was convicted pursuant to s 61(3) of the last mentioned Act of failing to take reasonable steps to ensure compliance by the first respondent with its obligations under that Act.

5. As a matter relevant to penalty, the Magistrate found that the contraventions of the Act were, respectively, the cause of the death of three employees and the injury to two others.

6. On an appeal to the Full Court of the Industrial Court, that Court dismissed the appeals against conviction.

7. But the Court set aside the finding by the Magistrate as to the cause of the explosion.  It found that other possible causes had not been disproved, and found that the Magistrate erred in finding that the explosion was caused in the manner in which he did so find.

8. The Full Court said that the evidence before the Magistrate “… did not allow for a finding that it had been established beyond reasonable doubt that the lack of maintenance and state of disrepair of the ribbon blender [the item of plant in question] caused the explosion”.  As each of the respondents was sentenced on the basis that lack of maintenance was the cause of the explosion, this finding by the Full Court meant that the sentence imposed had to be set aside, and the appropriate sentence had to be reconsidered.

9. If granted permission to appeal the applicant will contend that the Full Court made significant errors of fact.  The applicant will also contend that the Full Court erred, as a matter of law, in its approach to its role as an appellate court.  The applicant summarises his contentions as follows:

   5In overturning that finding, the Full Industrial Court made obvious and significant errors.  The Full Industrial Court failed to properly discharge its function as an appellate court on a rehearing, disregarded the learned Magistrate’s assessments of the expert witnesses, substituted its own finding without identifying necessary error, misunderstood the expert evidence, asserted that evidence was absent when it was not, failed to have regard to the totality of the evidence and made findings based on matters not in the appeal ground and not advanced by the parties on appeal.

10. Several salient points emerge from the applicant’s summary of argument.  First, this was a very serious industrial accident.  The fact that three employees were killed, and two others injured, speaks for itself.  Secondly, the Magistrate heard extensive evidence over a period of several months.  Over 100 exhibits were tendered.  The Magistrate provided lengthy and detailed reasons, as did the Full Court.

11. If permission to appeal is granted then, as is apparent from the summary of argument, the Court will be invited to revisit the facts in great detail, to review the findings of fact by the Full Court, and to reverse its decision reversing the Magistrate on findings of fact. 

12. In short, the grant of permission to appeal is going to result in the hearing of an appeal which agitates questions that are essentially factual, and will involve a close scrutiny of a large amount of evidence.

13. Although the applicant asserts that his application raises an issue of principle as to the approach to be taken by a court of appeal in relation to findings of fact, the summary of argument indicates that those submissions are but another way of putting the submission that the Full Court erred.

14. The applicant asserts that there is a public interest in the findings in this matter, bearing in mind the seriousness of the explosion and bearing in mind its consequences.  That is correct, but it can also be said that there is always a public interest in sound findings of fact being made when the issue is workplace safety.

15. The applicant points to the fact that in this matter the Industrial Court is exercising a criminal jurisdiction.  That also is correct, but does not add any particular weight to the applicant’s case.

16. On the other hand, it can be said that in providing that an appeal lies to the Supreme Court in a case like this only if permission to appeal is granted, Parliament obviously intended that this Court should determine when it is appropriate to grant permission to bring an appeal.  It has been the practice of this Court not to grant permission to appeal, when the grant of permission would result in no more than a re-examination of facts, already considered once at the appellate level.  That is not a hard and fast rule, because at the end of the day the issue for the Full Court must always be whether it is in the interests of justice to grant permission to appeal.  But while it is not a hard and fast rule, it is a sound guiding principle.

17. Were it not for the seriousness of the explosion, and the serious consequences that ensued, there would no prospect of the Court granting permission to appeal, when the effect of that grant is to lead to yet another re‑examination of a wholly factual issue.  The factors just identified are significant, and require consideration.  However, in the end, the Court considers that permission to appeal should be refused because those factors do not outweigh the factors that point towards a refusal of permission.

18. DAVID J:              I have read the reasons of the Chief Justice refusing permission to appeal. 

19. I acknowledge that if permission were granted then the appeal itself would be dealing substantially with the question of whether the Full Court has made significant errors of fact or not.  Normally this would be fatal to such an application.  However, I am of the view that in this case, because of the seriousness of the explosion, its consequences and the effects of the findings on workplace safety, questions of public interest outweigh other considerations.

20. I would grant permission to appeal.

21. PEEK J:                I agree with the Chief Justice and his reasons.