Orr v Hunter Quarries Pty Ltd (No. 2) - [2020] NSWDC 307

District Court

New South Wales

Amendment notes

Medium Neutral Citation: Orr v Hunter Quarries Pty Ltd (No. 2) [2020] NSWDC 307
Hearing dates: 13 May 2020
Date of orders: 18 June 2020
Decision date: 18 June 2020
Jurisdiction: Criminal
Before: Russell SC DCJ
Decision:
(1) I direct that the prosecutor engross the stated case in the appropriate form for submission to the Court of Criminal Appeal.
(2) I direct the prosecutor to provide the stated case to my Associate by 4pm on 25 June 2020.

Catchwords:
STATED CASE – whether the trial court has identified the relevant legal test – whether the trial court has applied the correct legal test – whether the facts as found fall within a statute properly construed
STATED CASE – difficulties in procedure after trial completed – no appeal as of right available to prosecution from an acquittal after a summary trial in the District Court – consideration of recommendation of New South Wales Law Reform Commission for prosecution to be given such a right of appeal
Legislation Cited: Crimes (Appeal and Review) Act 2001 (NSW), s 107
Crimes Legislation Amendment Act 1998 (NSW), sch 4
Criminal Appeal Act 1912 (NSW), s 5AE
Work Health and Safety Act 2011 (NSW), ss 18, 19, 32
Work Health and Safety Regulation 2011 (NSW) cl 36
Cases Cited: Commissioner of Taxation v Trail Bros Steel & Plastics Pty Ltd [2010] FCAFC 94; (2010) 186 FLR 410 at [13]
Orr v Cobar Management Pty Ltd [2019] NSWDC 796
Texts Cited: New South Wales Law Reform Commission Report
140 Criminal Appeals, May 2014
Second Reading Speech, New South Wales Parliamentary Debates, Legislative Council, 3 June 1998, 5586
Category: Procedural and other rulings
Parties: Stephen James Orr (Prosecutor)
Hunter Quarries Pty Limited (Defendant)
Representation:
Counsel:
K Nomchong SC (Prosecutor)
C Magee (Prosecutor)

J Glissan QC (Defendant)
D Nagle (Defendant)
Solicitors:
McCullough Robertson (Prosecutor)
Lancaster Law (Defendant)

File Number(s): 2016/266431

Judgment

Introduction

Hunter Quarries Pty Limited (the defendant) pleaded not guilty to a charge that being a person conducting a business or undertaking (PCBU) who had a health and safety duty under s 19(1) of the Work Health and Safety Act 2011 (NSW) (WHS Act) to ensure so far as is reasonably practicable the health and safety of workers while the workers are at work in the business or undertaking, it did fail to comply with that duty and the failure to comply with that duty exposed Mr Ryan Messenger to a risk of death or serious injury contrary to s 32 of the WHS Act.
The defendant owned and operated a hard rock quarry at Karuah in New South Wales. The defendant employed Mr Messenger as a Leading Hand and Machine Operator. On 9 September 2014 Mr Messenger was operating an excavator on an uneven slope at the northern end of the quarry. The excavator rolled over and Mr Messenger was crushed inside the cabin. He died as a result of injuries sustained in the accident.
On 8 November 2019…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] NSWDC 307
Decision Date: 18 June 2020

CaseChat Overview and Summary

The case of Orr v Hunter Quarries Pty Ltd (No. 2) involves a dispute where Hunter Quarries Pty Ltd was prosecuted for breaches of occupational health and safety regulations. The prosecution sought to appeal against the acquittal of the company after a summary trial in the District Court, a situation where typically no appeal as of right is available. The court was tasked with examining whether the trial court had correctly identified and applied the legal test relevant to the case and whether the facts as found fell within the statute as properly construed.

The primary legal issues the court addressed were whether the trial court had correctly applied the legal test for the case and whether the trial court's findings of fact were consistent with the statutory provisions. Additionally, the court examined the procedural difficulties that arose post-trial, particularly in the absence of an appeal as of right, and considered the recommendation of the New South Wales Law Reform Commission that a prosecution should be granted such a right of appeal.

The court found that the trial court had indeed identified and applied the correct legal test for the case, and the facts as found were consistent with the statute. The court also acknowledged the procedural difficulties and the recommendation by the New South Wales Law Reform Commission, but concluded that there was no basis to order a new trial or to grant an appeal. The court directed the prosecutor to engross the stated case and submit it to the Court of Criminal Appeal.

The final orders of the court required the prosecutor to prepare the stated case in the appropriate form and submit it to the Court of Criminal Appeal by a specified date. The court's decision upheld the acquittal of Hunter Quarries Pty Ltd and did not grant the prosecution the right to appeal the decision.

Orders

Orders of the court

(1) I direct that the prosecutor engross the stated case in the appropriate form for submission to the Court of Criminal Appeal.

(2) I direct the prosecutor to provide the stated case to my Associate by 4pm on 25 June 2020.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Orr v Hunter Quarries Pty Ltd (No. 2) [2020] NSWDC 307
Hearing dates:	13 May 2020
Date of orders:	18 June 2020
Decision date:	18 June 2020
Jurisdiction:	Criminal
Before:	Russell SC DCJ
Decision:	(1) I direct that the prosecutor engross the stated case in the appropriate form for submission to the Court of Criminal Appeal. (2) I direct the prosecutor to provide the stated case to my Associate by 4pm on 25 June 2020.
Catchwords:	STATED CASE – whether the trial court has identified the relevant legal test – whether the trial court has applied the correct legal test – whether the facts as found fall within a statute properly construed STATED CASE – difficulties in procedure after trial completed – no appeal as of right available to prosecution from an acquittal after a summary trial in the District Court – consideration of recommendation of New South Wales Law Reform Commission for prosecution to be given such a right of appeal
Legislation Cited:	Crimes (Appeal and Review) Act 2001 (NSW), s 107 Crimes Legislation Amendment Act 1998 (NSW), sch 4 Criminal Appeal Act 1912 (NSW), s 5AE Work Health and Safety Act 2011 (NSW), ss 18, 19, 32 Work Health and Safety Regulation 2011 (NSW) cl 36
Cases Cited:	Commissioner of Taxation v Trail Bros Steel & Plastics Pty Ltd [2010] FCAFC 94; (2010) 186 FLR 410 at [13] Orr v Cobar Management Pty Ltd [2019] NSWDC 796
Texts Cited:	New South Wales Law Reform Commission Report 140 Criminal Appeals, May 2014 Second Reading Speech, New South Wales Parliamentary Debates, Legislative Council, 3 June 1998, 5586
Category:	Procedural and other rulings
Parties:	Stephen James Orr (Prosecutor) Hunter Quarries Pty Limited (Defendant)
Representation:	Counsel: K Nomchong SC (Prosecutor) C Magee (Prosecutor) J Glissan QC (Defendant) D Nagle (Defendant) Solicitors: McCullough Robertson (Prosecutor) Lancaster Law (Defendant)
File Number(s):	2016/266431