Orr v Hunter Quarries Pty Ltd (No. 5) - [2021] NSWDC 171

District Court

New South Wales

Amendment notes

Medium Neutral Citation: Orr v Hunter Quarries Pty Ltd (No. 5) [2021] NSWDC 171
Hearing dates: 27 April 2021
Date of orders: 13 May 2021
Decision date: 13 May 2021
Jurisdiction: Criminal
Before: Russell SC DCJ
Decision:
(1) I direct that the prosecutor engross the amended Stated Case in the appropriate form for submission to the Court of Criminal Appeal.
(2) I direct the prosecutor to provide the amended Stated Case to my Associate by 4.00pm on 20 May 2021.

Catchwords:
CRIMINAL LAW – PROCEDURE – whether there is power to withdraw questions from a Stated Case – whether there is power to add questions to a Stated Case – whether questions in a Stated Case are questions of law

Legislation Cited:
Criminal Appeal Act 1912 (NSW), s 5AE
Interpretation Act 1987 (NSW), s 43
Occupational Health and Safety Act 2000 (NSW)
Work Health and Safety Act 2011 (NSW), ss 17, 18, 19, 32

Cases Cited:
Environment Protection Authority v Grafil Pty Ltd [2019] NSWCCA 174
Morrison v Chevalley [2010] NSWIRComm 116
Nash v Glennies Creek Coal Management Pty Ltd (No. 5) [2013] NSWIRComm 99
Orr v Cobar Management Pty Ltd [2020] NSWCCA 220
Orr v Hunter Quarries Pty Ltd (No. 2) [2020] NSWDC 307
Orr v Hunter Quarries Pty Ltd [2019] NSWDC 634

Category: Procedural rulings
Parties: Stephen James Orr (Prosecutor)
Hunter Quarries Pty Ltd (Defendant)
Representation:
Counsel:
K Nomchong SC with C Magee (Prosecutor)
J Glissan QC (Defendant)
Solicitors:
McCulloch Robertson Lawyers (Prosecutor)
Lancaster Law (Defendant)

File Number(s): 2016/266431

Judgment

Introduction

This judgment concerns an application made by the prosecutor for the court to withdraw certain questions already put forward by way of Stated Case to the Court of Criminal Appeal and place further questions before that court.
On 9 September 2014 Mr Ryan Messenger died at a hard rock quarry at Karuah operated by the defendant Hunter Quarries Pty Ltd (“Hunter Quarries”). He was operating an excavator on an uneven slope and died from crush injuries when the excavator rolled over.
The prosecutor charged Hunter Quarries with an offence under s 19(1) and s 32 of the Work Health and Safety Act 2011 (NSW) (“WHS Act”).
After a 41 day hearing judgment was delivered on 8 November 2019 – Orr v Hunter Quarries Pty Ltd [2019] NSWDC 634 (“Primary Judgment”). The orders made on that date were:

The prosecution has not proved all of the elements of the offence beyond reasonable doubt.

Final orders will not be entered until the prosecution has had an opportunity to consider an application pursuant to s 5AE of the Criminal Appeal Act 1912 (NSW).

The matter will be listed on a date for entry of final orders or argument on the proposed questions of law to be stated to the Court of Criminal Appeal.

The prosecutor made application for a case to be stated to the Court of Criminal Appeal under s 5AE of the Criminal Appeal Act. That application…

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.

Keep reading for free

Create a free CaseChat account to read Orr v Hunter Quarries Pty Ltd (No. 5) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2021] NSWDC 171
Decision Date: 13 May 2021

CaseChat Overview and Summary

The parties involved in this case were Orr, the respondent, and Hunter Quarries Pty Ltd, the appellant. The nature of the dispute was the authority of the Supreme Court to withdraw questions from a Stated Case, add questions to a Stated Case, and whether questions in a Stated Case are questions of law. The court in which this case was heard was the Court of Criminal Appeal.

The legal issues that the court was required to decide were whether there is power to withdraw questions from a Stated Case, whether there is power to add questions to a Stated Case, and whether questions in a Stated Case are questions of law. The court needed to determine whether the prosecutor had the authority to amend a Stated Case by withdrawing questions and adding new questions, and whether these questions were questions of law or fact.

The court found that there is power to withdraw questions from a Stated Case and add questions to a Stated Case. The court also found that questions in a Stated Case are questions of law. The court based its decision on the fact that the Stated Case is a procedural mechanism for ensuring that the Court of Criminal Appeal is properly informed of the questions of law which it is proposed to raise on appeal, and that the court has the power to control its own procedures. The court found that the prosecutor had the authority to amend the Stated Case by withdrawing questions and adding new questions, and that these questions were questions of law.

The final orders of the court were that the prosecutor engross the amended Stated Case in the appropriate form for submission to the Court of Criminal Appeal, and that the prosecutor provide the amended Stated Case to the court's Associate by 4.00pm on 20 May 2021.

Orders

Orders of the court

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

(2) I direct the prosecutor to provide the amended Stated Case to my Associate by 4.00pm on 20 May 2021.

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. 5) [2021] NSWDC 171
Hearing dates:	27 April 2021
Date of orders:	13 May 2021
Decision date:	13 May 2021
Jurisdiction:	Criminal
Before:	Russell SC DCJ
Decision:	(1) I direct that the prosecutor engross the amended Stated Case in the appropriate form for submission to the Court of Criminal Appeal. (2) I direct the prosecutor to provide the amended Stated Case to my Associate by 4.00pm on 20 May 2021.
Catchwords:	CRIMINAL LAW – PROCEDURE – whether there is power to withdraw questions from a Stated Case – whether there is power to add questions to a Stated Case – whether questions in a Stated Case are questions of law
Legislation Cited:	Criminal Appeal Act 1912 (NSW), s 5AE Interpretation Act 1987 (NSW), s 43 Occupational Health and Safety Act 2000 (NSW) Work Health and Safety Act 2011 (NSW), ss 17, 18, 19, 32
Cases Cited:	Environment Protection Authority v Grafil Pty Ltd [2019] NSWCCA 174 Morrison v Chevalley [2010] NSWIRComm 116 Nash v Glennies Creek Coal Management Pty Ltd (No. 5) [2013] NSWIRComm 99 Orr v Cobar Management Pty Ltd [2020] NSWCCA 220 Orr v Hunter Quarries Pty Ltd (No. 2) [2020] NSWDC 307 Orr v Hunter Quarries Pty Ltd [2019] NSWDC 634
Category:	Procedural rulings
Parties:	Stephen James Orr (Prosecutor) Hunter Quarries Pty Ltd (Defendant)
Representation:	Counsel: K Nomchong SC with C Magee (Prosecutor) J Glissan QC (Defendant) Solicitors: McCulloch Robertson Lawyers (Prosecutor) Lancaster Law (Defendant)
File Number(s):	2016/266431