Pacific Dunlop Limited v Chugg; Chugg v Pacific Dunlop Limited; Dairy Farmers Co-operative Limited v Azar

[1990] HCATrans 93

•~~

~

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M52 of 1989

B e t w e e n -

PACIFIC DUNLOP LIMITED

Appellant

and

PETER RICHARD CHUGG

Respondent

Office of the Registry

Melbourne No M53 of 1989

B e t w e e n -

PETER RICHARD CHUGG

Appellant

and

PACIFIC DUNLOP LIMITED

Chugg(2)	58
BRENNAN J DEANE J DAWSON J TOOHEY J GAUDRON J

Respondent

Office of the Registry

Sydney No S116 of 1989

B e t w e e n -

DAIRY FARMERS CO-OPERATIVE LIMITED

Applicant

and

GEORGE AZAR

Respondent

C2T 1/1/FK 8/5/90

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 8 MAY 1990, AT 10.02 AM

(Continued from 7/5/90)

Copyright in the High Court of Australia

BRENNAN J:  Yes, Mr Dwyer.

MR DWYER: If the Court please, I desired at the outset to take

up two matters arising out of what was said yesterday.

The first of them was the matter which Your Honour

Justice Deane raised, concerning whether the onus would

be the same in civil and in criminal proceedings, and

Your Honour took me to a particular sentence in the

judgment of President Kirby. When I said to Your Honour

that I thought that His Honour had said that they were
to be treated in the same way, in fact, on looking at

the case again, I think I had in mind what

Mr Justice McHugh said about that matter.

In paragraph 6 of the written submisssions there

are listed the references in the cases to passages which
say that the onus of proof is to be the same in a
prosecution for an offence under the statute and in a
civil action, and I will not take the Court in detail to
those passages, but I would draw the Court's attention to
the fact that it is on both sides of the division of the

House of Lords in NIMMO, that is, Lord Reid says it at page 115 and Lord Pearson says it at page 134. It is affirmed by Lord Ackner in HUNT's case at page 383 and

it is affirmed by Mr Justice McHugh in KINGSHOTT's case

at page 727, and we rely on those passages as authority

for the proposition that the onus must be the same in a prosecution for an offence under the statute and in

a civil action.

C2Tl/2/FK	59	8/5/90
Chugg(2)
MR DWYER (continuing):	Precisely that

proposition could only apply here under a

regulation offence which contained the qualifier
"so far as reasonably practicable"; but we say that
the onus of proof as to that qualifier should be

the same whether it is for breach of a regulation,

whether it is for breach of statutory duty based

on a regulatioti or whether it is for a prosecution

under a breach of a section of the Act.

The second matter that I desire to take up is

a matter that was put to me by Your Honour

Justice Dawson in which it was suggested that our

argument meant that we were identifying the exception

before we were identifying the obligation.	Now,
what we desire to say as to that is this;	in truth,
until the exception has been identified, the

obligation has not been fully identified or, putting

that another way, it is only when all the features

that bear on the full identification of the

obligation have been identified that it can be

said that the obligation has been identified and

those features include any exceptions or any

qualifications on the obligation.

The other element that we thought might have

been contained in what Your Honour said was a temporal
matter and time sequences may be of some significance
in considering how this legislation is to work but
we do not say that one must define or identify

matters of practicability before one identifies
matters of safety. On the contrary, we say that

one must identify matters of safety first and that

until that has been done matters of practicability

cannot arise. They may not arise at all, that is,

in many cases there will simply be no issue at all
about practicability.	The danger may be so obvious

and the means of avoiding it so obvious and so simple

that no question of practicability could ever arise,

but if a question of practicability does arise, then

that is dealt with after matters of safety are

identified, but we say that it is only at the end

of the process when all matters have been considered

that one will have a full statement of the
obligation.

Perhaps as a way of exemplifying exactly how we say that is to be put I would refer to what we

have set out from the minister's second reading speech

on this legislation which is contained at page 29

of the written submission where the minister says:

C2T2/l /HS	60	8/5/90
Chugg(2)

The Bill sets out duties of employers and of self-employed persons;

manufacturers and designers of

equipment and so on. It also provides

for duties of employees.

An employer must provide and maintain

a working environment that is safe and

without risk to health. This duty

extends to all things under the employer's

control in the workplace. It applies to

the selection and maintenance of plant

and machinery; the environmental

conditions in which work is carried out and

the manner in which work is organised and

performed.

This duty is limited by what is practicable,

which means account must be taken of the

seriousness of the hazard and the

availability of methods for removing or

minimising it.

We say that the way in which the minister has set out the operation of the legislation there is the way in

which the legislation should be approached and that is

that one considers first the question of safety and

then whether the limit as from practicability applies.

Now, the third matter arising from yesterday

that we desire to go to is this; we understood the

suggestion being made that there were problems and

difficulties about an approach whereby the onus of

practicability rested on the defendant and the latter
part of the afternoon yesterday was concerned with

that matter.

(Continued on page 62)

C2T2/2/HS	8/5/90
Chugg(2)
MR DWYER (continuing):	We thought it might be of assistance

to the Court if we drew attention to the fact

that there are, of course, jurisdictions where the

onus is expressly placed on the defendant. New

South Wales is one, although the New South Wales

legislation departs in form from the Victorian

legislation. But the English legislation is, in

fact, very close if not identical in wording

when one looks at the specification of the duty,

or the specification of the obligation, but then
there is a separate provision expressly casting

the onus of proof in relation to practicability

on the defendant and it was thought that that is

illuminating for the Court in this way. The

problems, or difficulties, if they exist must be

the same whether the onus is cast expressly on
the defendant or whether it is cast on the defendant

as a matter of implication from the construction
of the legislation. And so what happens when it

is cast expressly we thought might be illuminating.

We have had copied for the Court from Halsbury

statntes, sections of the English Health and Safety

at Work Act, 1974 and section 2 of that legislation

is in very similar, if not identical, terms to

section 21. Section 2 sets out:

(1) It shall be the duty of every employer

to ensure, so far as is reasonably

practicable, the health, safety and welfare

at work of all his employees.

The word "reasonably" is inserted before "practicable" and there are other minor differences in the wording, but the substance is the same as section 21(1),

substantially, and then in subsection (2) it is

cast in a similar way to section 21(2):

Without prejudice to the generality of an

employer's duty under the preceding

subsection, the matters to which that duty

extends include in particular-

and then there are a number of subsections which are

similar to the subections in section 21(2). Perhaps

it is not necessary to go, for the moment, beyond

(a) :

the provision and maintenance of plant and

systems of work that are, so far as is

reasonably practicable, safe and without

risks to health.

So we have a very similar statutory regime established

under that section. And then there are similar

sections set out in section 3 and section 4 which we

C2T3/1/JL	62	8/5/90
Chugg(2)

have copied, and then section 40 is copied. The:

Onus of proving limits of what is practicable etc

In any proceedings for an offence under any

of the relevant statutory provisions - - -

BRENNAN J:  Do you need to read this7 Mr Dwyer, what is the

purpose of reading this to us I do not understand

what effect - - -

MR DWYER: Well, it is to show the statutory background which

explains how the cases which have dealt with

this legislation have then operated because those

cases will illustrate how under a regime where the

onus is cast on the defendant that the system

works.

BRENNAN J: This is 1974, HUNT's case is 1968,is it not?

NIMMO's case is 1968?

MR DWYER:	No, NIMMO's case was under the previous legislation,
the English Factories Act, but there are other cases - AUSTIN-ROVER, for example, to which I referred the Court yesterday is dealing with this legislation
and there are other cases to which the Court has
been referred in the cases,SWAN HUNTER SHIPBUILDERS
LTD and another is, under this legislation, and -

BRENNAN J: Well, you do not have a section 40 in your Act do you?

MR DWYER:  No, we do not.

BRENNAN J: Well, then how is it that when you have got something

that could cast the onus expressly with respect to that which is_ identified as a specific element you

can pray in aid cases on the construction of that

statute with reference to a statute that does not

contain the same provision?

MR DWYER: Well, the way in which it is put is this: it was

suggested that there are difficulties, practical

difficulties, in conducting prosecutions if the

onus is cast on the defendant; difficulties

in terms of what particulars have to be supplied; difficulties in terms of how far a prosecutor has to go.

(Continued on page 64)

C2T3/2/JL	63	8/5/90
Chugg(2)

MR DWYER (continuing):  Now, the noint is, that those

difficulties are exactly"the same under a regime

such as this where the onus is expressly cast.

BRENNAN J:	Quite so, and the legislature has cast it.
MR DWYER:	Yes, but that means that - - -
BRENNAN J:	Well, how does that illuminate our problem?
MR DWYER:	If one wants to answer the question, how would

the legislation work in Victoria if it is construed
in the way for which the appellant contends, the

answer is to look at these English cases because

they explain to you how it works when the onus

is cast on the defendant. That is the purpose

of the reference to them and it is to deal

particularly with the matters that were being raised

by Justice Gaudron.

GAUDRON J:  The problem was not relating to onus that I

raised, Mr Dwyer. It was raised in relation tc what

really you suggest is the actus reus of the offence.

If you make the actus reus mere failure to provide

a safe place, one consequence follows. If you make

it the actus reus, the failure to do something particular then difference consequences follow.

MR DWYER: 

Yes, Your Honour.

GAUDRON J: 

And, in so far as your argument proceeds to base the onus requirement on your assertion as to what

really is the actus reus of the offence, or the

actus reus that needs to be followed, then I have

difficulty with it.

MR DWYER: 

Under the regime in England where there is the

express casting of the onus on the defendant, what
the cases say is that the prosecutor has to show the

lack of safety and once he has done that, the onus

then shifts to the defendant to prove that it was not

practicable to make it safe and we say that the

matter should be dealt with in exactly the same way

under the Victorian legislation, the only difference
being that the onus, we say, should be cast as a matter

of implication where it has not been expressly cast

on the defendant.  I took the Court yesterday to some

passages - - -

GAUDRON J: 

You might also notice, of course, that the onus

as cast by the English Act is somewhat different from

the onus - well, the matter of, we will call it defence -

what you prove under section 40 is somewhat

different from what may be involved on your argument.

C2T4/l/JH	64	8/5/90
Chugg(2)

MR DWYER:  It is submitted that in substance it is the sa,ne,

that is, if one takes, for example, the duty in

relation to the provision and maintenance of plant

and systems of work that is contained in our

section 21(2)(a) or in the English section 2(2)(a),

the wording is to all intents and purposes

identical and we say that the matter can be dealt

with in exactly the same way, that is, that just as

under the English regime, if a prosecutor proves

that the employer has failed to provide and naintain

plant that is safe, that is as far as he has to go

and if the employer wants to say that it was not

practicable to satisfy that requirement, then the

onus is on him to do it. The wording of the two

sections being identical, the submission is that the

practical consequences would be identical.

Just to make it quite plain how they do it under the English legislation, in AUSTIN•ROVER V

HER MAJESTY'S INSPECTOR OF FACTORIES in the decision

in which all members of the House of Lords joined,

except Lord Goff, at page 534 Lord Jauncey says - and it is Lord Jauncey despite the heading at the top of the page in the Weekly Law Reports which

wrongly indicates that it is Lord Goff - but it is

Lord Jauncey who says,·just after line E:

(Continued on page 66)

C2T54/2/JH	65	8/5/90
Chugg(2)

MR DWYER (continuing):

My Lords, I shall summarise the approach as I see it to a successful prosecution

under section 4.

Which is a similar section -

The prosecutor IIIl.lSt first prove that the premises are unsafe an,

constitute risks to health. If he so proves

he must then go on to prove what persons

have at that time any degree of control of

those premises.

That is to satisfy the requirements of the section.

Thereafter he must prove that it would be

reasonable for one or more of the persons
having a degree of control to take measures

which would ensure safety.

That is because of a particular requirement in

the section.

If he proves these three matters the onus

shifts to the accused to prove that it was

not reasonably practicable to take the

measures in question.

Now, our submission is . that by the implication of

the onus of proof as to practicability on to the

defendant, that is exactly how it should work

under -

DAWSON J:	Why	is it necessary to prove that it was reasonable to take measures - - -?
MR DWYER:	The element of reasonableness that is there referred to depends on the exact wording of the section,
Your Honour.  The section i~ set out in the headnote;
it is also contained in the extract from Halsbury,,
but it is convenient to look at the headnote. The
words are added:  It shall be the duty of each person who

has, to any extent, control of premises -

and so on -

to take such measures as it is reasonable for

a person in his position to take to ensure, so

far as is reasonably practicable, that the

premises -

and so on -

are safe -

C2T5/l/CM	66
Chugg(2)

and so that third element comes from those words:

to take such measures as it is reasonable

for a person in his position to take -

They only arise by reason of that and those words

do not apply under the Victorian legislation that -

DAWSON J:  It is a significant difference, is it not?

MR DWYER: Well, it is significant but only to the extent

that the words are there in the statute and if

one simply left out the reference to them the

thing would work in exactly the same way.

DAWSON J:	But it is positing some measure of the obligation
of the employer, whereas there is none in section 21
other than is imported by the words "so far as
is practicable".
MR DWYER:	Yes, well that is so, but one - - -
DAWSON J:	You see, WOOLMINGTON's case says that a prosecutor
has to prove every element of the offence, and
that requires you to identify the elements of offence. It may be that having done that there is not an answer, as with insanity, but nevertheless
you can say what it is that the prosecutor has to
prove, but the way you are putting it, you never do
that.  You never identify as part of the prosecution's
case,  what the prosecution has to prove.
MR DWYER:	But WOOLMINGTON is subject to any statutory exception
and the House of Lords in HUNT 1 s case said that means not only express statutory exception but
implied statutory exception and that was accepted
by three members of this Court -
DAWSON J:	Oh yes, but you have got to find an exception. We
are going over old ground and I will not do that
again, but all I am saying is that where you have the
words "to take reasonable measures" or whatever
the actual words are, at least you have some
evaluation, identification of the obligation, perhaps
uncomplete,, but in section 21 you have none.
MR DWYER:	Well that may mean that Your Honour is more
comfortable with prosecutiornunder section 4 of the English Act than Your Honour would be with prosecutions under section 2 of the English Act, but the problem that we face is with legislation
that is substantially identical to section 2 and that simply means, it is submitted, that those
words:

such measures as it is reasonable for a person

in his position to take -

C2TS/2/CM	67
Chugg(2)

simply do not apply to the provision that we

are dealing with. They do not apply in England

and they do not apply here and there is available

consideration by courts lower than the House ofl.ords

in England as to how prosecutions under section 2,

for example, work, and such a case is the

REG V SWAN HUNTER SHIPBUILDERS LTD, (1982) 1 All ER 264.

(Continued on page 69)

C2T5/3/CM	68	8/5/90
Chugg(2)

MR DWYER (continuing): This was an issue concerning	shipbuilding and for certain purposes in connection
with the shipbuilding oxygen was supplied to various
parts of the ship by hoses. There were safety
precautions taken with regard to that oxygen because of the danger that oxygen presents as a fire accelerant and what happened in this case was that a subcontractor, Telemeters, were not informed of
those safety precautions and had an employee who did not observe them, and by reason of that breach
of the safety precautions there was a serious fire in which eight persons lost their lives, and there
was a prosecution of both Swan Hunter and Telemeter
under section 2 and section 3 of the Act.

The report of the case does not set out exactly

what the counts in the indictment were, but the report does identify at the top of page 268 the

counts of the indictment that referred to different

parts of the legislation, and counts 2 and 3 were

laid under section 2 of the Act, as appears from that

page. On page 271 Lord Justice Dunn sums up how the duty under section 2(1) applies. It is near the top

of the page:

We accept the submissions of Mr Potts

so far as the construction of the

section is concerned. In our view the duties

are all covered by the general duty in

subsection (1) of section 2 -

His Lordship then sets it out -

As the judge said, that is a strict duty. If

the provision of a safe system of work for
the benefit of his own employees involves

information and instruction as to potential

dangers bein9 given to persons other than

the employers own employees, then the

information and instruction. His

protection is contained in the words "so far as

is reasonably practicable" which appears in all

the relevant provisions. The onus is on the

defendants to prove on a balance of probabilities

that it was not reasonably practicable in

the particular circumstances of the case.

employer is under a duty to provide such

Now, that last sentence, of course, follows from

section 40 of the English Act, but we say that the

Victorian Act should operate in exactly the same way.

Now, I will not take - - -

DAWSON J: That is to impose strict liability unless the

defendant can bring himself within the exception that

it is not reasonably practicable.

C2T6/l/FK	69	8/5/90
Chugg(2)

MR DWYER: Effectively that is so, and that is the way in

which legislation of this kind has been approached.

DAWSON J: That is not the way in which the legislation

is cast - this legislation anyway.

MR DWYER:  That is assuming the answer to the question, how,

as a matter of implication, does this legislation

throw the burden of proof in relation to practicability.

But if one does not assume the answer to that question

then, with respect, one cannot say that that is not how
this legislation is cast, and that is the way in which,

as I say, legislation in very similar terms has for many years been approached, and the reason for doing it is because of the necessity of compelling

employers to turn their mind to this question of
safety and what precautions need to be taken, and to

do so, as is pointed out in the cases, at a time

anterior to the happening of any accident. What the

legislation, both under the FACTORIES ACT and under

this legislation, aims at doing is to compel

employers to ask themselves the question, "Is my factory safe?", and to ask himself the question, "Is it practicable for me to make it safe?" and to

deal with that issue, as it were, at the outset and

then continuously during the operation of his

factory, and all of that for the protection of the

workers who are there.

(Continued on page 71)

C2T6/2/FK	70	8/5/90
Chugg(2)

MR DWYER (continuing):  I will not take the Court in detail

to the other English cases that grapple with the

problem but copies of them have been made

available to the Court. In addition to SWAN HUNTER

there is another prosecution case, MARTIN V

BOULTON AND PAUL (STEEL CONSTRUCTION) LTD, (1982)

ICR 366, and that is a case which turned on the

defence of reasonable practicability. There is

a case concerning an improvement notice alleging

a contravention which, again, turned on the

question of practicability and that is WEST

BROMWICH BUILDING SOCIETY LTD V TOWNSEND, (1983)

ICR 257. And there are two recent cases turning

on breaches of statutory duty, one under

section 29 of the FACTORIES ACT which apparently

continues in operation. That is YATES V

ROCKWELL GRAPHIC SYSTEMS LTD, (1988) ICR 8, and

the other is BOWES V SEDGEFIELD DISTRICT COUNCIL,

(1981) ICR 234, a decision of the Court of Appeal in

BOWES V SEDGEFIELD DISTRICT COUNCIL, again a breach

of statutory duty case. The statute was

regulation 6 of the CONSTRUCTION (WORKING PLACES)

REGULATIONS 1966 which is identical in language

to section 29 of the FACTORIES ACT and the issue
there is an issue as to what happened on the
pleadings in a breach of statutory duty case but
it is dealt with on the footing that it was for

the defendant to raise the issue of practicability

and that because he had not the defendant failed on

that issue.

Now, as I say, I will not take the Court in

detail to those cases but if the Court desires to
know how the thing works in practice those cases

are illuminating. I would now turn to the point

that I was at yesterday when that problem arose

which is at page 16 of the written submissions.

(Continued on page 72)

C2T7/l/LW	71	8/5/90
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MR DWYER (continuing):  I had taken the Court in detail

to what was said in KINGSHOTT and in NIMMO. I would

simply add the reference to HUNT's case saying the

same thing at page 374, Lord Griffith, and the

proposition that is made that the well-settled

approach to the construction of provisions in this

form is based on the same consideration.

I then desire to pass to this question of what

does "practicable" mean under the sect ion? The first

point that I would make is that "practicable" does

not mean "possible". Because of the definition of

"practicable" consideration does not have to be given
to all possible means of eliminating risks, but only

those that are practicable and the statute in

section 4 sets out what practicable means. It means:

practicable having regard to -

(a) the severity of the hazard or

risk in question;

(b) the state of knowledge about that
hazard or risk and any ways of removing

or mitigating that hazard or risk;

(c) the availability and suitability of

ways to remove or mitigate that hazard or

risk; and

(d) the cost of removing or mitigating

that hazard or risk.

Now, as has been said about that computation which,

although it is contained in the statute, is derived from the cases going right back to EDWARDS's case in 1949, the computation that is contemplated by those factors falls to be made by the owner at a point of

time anterior to the happening of any accident.

Lord Justice Asquith said that in EDWARDS's case

at page 712 and he is quoted with approval in the

WEST BROMWICH case to which I have referred, and

there are similar - - -

BRENNAN J:  What is the reference to EDWARDS's case?

MR DWYER:  EDWARDS's case is (1949) 1 KB 704, and the passage

is at page 712. It is near the beginning of

Lord Justice Asquith's judgment in that case.	It is,
in fact. about one third of the way down page	712
where His Lordship says:

Moreover, this computation falls to be

made by the owner at a point of time

anterior to the accident.

C2T8/l/HS	72	8/5/90
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A similar concept is contained in what Lord Upjohn

said in NIMMO's case where he talked about the

bounden duty of the employer and in what Lord Pearson

said in NIMMO's case at page 132. So when one

considers the question of whether it is appropriate

that the defendant or the informant should carry

the onus of proving the issue on practicability

that is an important consideration, in our submission,

that is the fact that this is something that the

owner is meant to have turned his mind to and

that is one of the reasons why it is appropriate for

him to carry the burden of proof in relation to it.

The further matter is that if one considers

what those elements require many of them are matters

peculiarly within his knowledge, and that is developed

in some detail in paragraph 34 beginning with the

question of severity of the risk. That requires,

it is said inter alia, knowledge of the frequency

with which the risk occurs, proximity of workers to the risk, the cautions that have to be taken, whether the hazard could result in serious or only

minor injury. Then there is reference to what is

said in MARSHALL V GOTHAM and JENKINS V ALLIED

IRONFOUNDERS.	I will not take the Court to those
passages.	Could I say that the reference in

MARSHALL V GOTHAM is to what Lord Reid said at

page 373 of that case.

The point is made that the burden of proof on

those matters, if it lay on a prosecutor, could not

be satisfied by calling an expert who has been called

in after the happening of an accident, to examine

the site.

(Continued on page 74)

C2T8/2/HS	73	8/5/90
Chugg(2)

MR DWYER (continuing):  A prosecutor will need to obtain

either admissions from the employer or evidence from

his employees. There may be cases in which there are

no employees who are capable of giving such evidence

and, in any event, employees are often reluctant to

give such evidence against their employer for fear

of prejudicing their future employment. The second

consideration that is referred to in paragraph 35

concerns knowledge about ways of removing or mitigating

hazards or risks and their availability and suitability.

They concern factors particular to the operation of

the employers own business which is not available to

an outside expert. An outside expert's view must be

subject to the effect of the considerations

peculiar to an individual employer and suitability

could only finally be assessed in the light of

detailed knowledge of an employer's business and

operations.
If the employer refuses to answer questions

or declines to make admissions on the ground of
self-incrimination,as section 40(8) permits, there

is no way that an informant can adduce evidence of

those facts which are peculiarly within the

knowledge of the employer. The further item is the

cost of removing or mitigating the hazard or risk.

BRENNAN J:  We do not really need to have it read to us now

that we have it in typescript.

MR DWYER:  Yes, if the Court pleases. That matter is developed,

the point being that there are matters of cost which

only the employer can know. The position is then

summed up in paragraph 38, that a prosecutor cannot

adduce evidence as to many of these matters of
judgment unless the employer voluntarily provides

them and there is no reason to believe that an

employer will do that. In turning to the practical

consequences in terms of knowledge and the like, I

have already taken the Court to the passage in

NIMMO's case that is referred to in paragraph 40.

Then the submission is made that the approach

that is contained in that paragraph is consistent

with the result in VINES V DJORDJEVITCH. The point

being that under the legislation in VINES V DJORDJEVITCH

the plaintiff had the obligation of attending to

giving of notice to the minister as soon as

possible after the plaintiff knew that the identity of the driver involved in the accident could not be ascertained and that is the reason why it was

appropriate to say that the plaintiff had the burden of proving that matter. It is because the plaintiff was required under the legislation to do it that it
was appropriate to say that the plaintiff is the

best person to say whether or not it was done.

C2T9/l/DR	74	8/5/90
Chugg(2)

Similarly, it is because the employer is

obliged, under the legislation, to turn his attention

to these matters of practicability that he is the

best person to give evidence about whether or not

they were done and whether or not it was practicable

to make the premises safe. Then there is reference

on page 21 to a passage from the judgment of

President Kirby from KINGSHOTT which I have already

taken the Court to. In so far as that passage -

I am now at paragraph 41 - turns on a comparison of

the position of a worker with the position of the

employer,it is acknowledged, in paragraph 41, that

the prosecutor is in a better position than many

employees but the point is taken that the prosecutor

is still in a worse position than the employer on

these matters. That is then developed in

paragraph 41 and the position of the employer is

contrasted by reference to what Lord Pearson

said in NI:MMO's case. The submissions

incorrectly say Lord Parker immediately before

that quotation which is from the judgment of

Lord Pearson.

Now, there is then reference to WOOLMINGTON V

DPP UNITED TELECASTERS. I do not desire to go

through that in detail again as the point has already

been made and I desire to say, simply, that the

proposition that appears after the quotation from

HUNT's case, it is a question of the construction

of the statute to determine whether the legislature

intended to cast the burden of proof as to

practicability on to the accused if he seeks to
exculpate himself by showing that it was not
practicable to make the work place safe. That appears
to be a matter that is in agreement between us and

the respondent, having regard to what appears in

paragraph 8(a) of the respondent's submissions and

in paragraph 8(c).

(Continued on page 76)

C2T9/2/DR	75	8/5/90
Chugg(2)

MR DWYER (continuing):  The argument is then put in

paragraph 34 that in approaching that question of

construction, one should not approach it via the

conceptual categories of essential ingredients of

the charge on the one hand, and qualification,

exception, or proviso on the other because

reference to those categories assume a distinction

which on proper analysis breaks down. We place

particular reliance on the discussion of

Sir Francis Adams in the work Criminal Onus and

Exculpations at pages 60 to 69 which is referred to

in that passage. The point has been made in other

works of authority and the point is really summed up

in the quotation from Sir Francis Adams that

appears near the foot of page 24:

rhe arbitrary nature of the test becomes

apparent when it is realised that, in a

very real sense, everything that is

included in the definition of an offence,

whether affirmative or negative may be

said to be of the essence of the offence.

Or, in other words, as we put it, there is no

distinction in meaning between a qualification within

a rule and an exception to it and we refer to the

discussion in Zuckerrnan's paper in the Law Quarterly

Review, the Third Exception to the Woolmington Rule,

and,in turn, to the paper of Professor Julius Stone
in the Law Quarterly Review in 1944 and to a case

note of Zuckerman's in the 1987 Law Quarterly Review.

The particular point is made at pages 413 to 416

in Zuckerman's 1976 artiele. That article, I should

say, was referred to by members of the House of Lords

in HUNT's case although not for that particular

purpose.

What Zuckerman shows at that reference, it is

submitted, is that as a matter of logic there is no

inherent difference between the so-called integral

elements in the definition of an offence and the

point being that it is only when regard is had to	exceptions or qualifications to the offence, the	the exceptions or qualifications that one can fully
say what the offence is. It is an offence as
qualified and - - -

BRENNAN J:  Mr Dwyer, I notice that in the article in the

Law Quarterly Review there is a quotation from

DOWLING V BOWIE and the quotation is one which seems

to place some reliance upon whether the putative

exception or qualification is based ~nd depends on

additional facts of a special kind.

MR DWYER:  Yes, Your Honour.

C2Tl0/1/JH	76	8/5/90
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BRENNAN J:  Now, one could understand that that might be

at least an indicium of an exception or a

qualification. In the present case, do you point to the existence of some exemption from liability or some privative of liability based on additonal facts of a special kind?

MR DWYER:  What we say is this, Your Honour: first of all,

that while it is true that cases where the proof of

additional facts of a special kind may be an

indicia, that is, may be a sufficient condition of

identifying a matter of qualification, they are not

a necessary condition, that one can have a - - -

BRENNAN J:  I appreciate that but my only question was, do

you say that that indicium is present in the case

that we are concerned with here?

MR DWYER:  Yes, we do. We say that the proof of the element

of practicability is the proof of additional facts

which satisfy that requirement. Thus, we submit

that President Kirby was correct when he said in

KINGSHOTT that the passage from the judgment of the court in VINES V DJORDJEVITCH, which

His Honour set out at pages 712 and 713:

"does not provide a ready solution to the
assignment of the burden of proof

concerning the reasonable practicability

of providing a safe means of access".

(Continued on page 78)

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MR DWYER (continuing): The quotation appears in the submission,

perhaps it is not necessary for me to locate that

on page 519 but to assist the Court I shall, it is on page 712 that President Kirby in KINGSHOTT sets

out the passage from VINES V DJORDJEVITCH, and it is
on page 713, immediately after the quotation, that

he says that the:

passage does not provide a ready solution

to the assignment of the burden of proof

concerning the reasonable practicability

of providing a safe means of access which

it is suggested ought to have been provided

and maintained in the factory but was not.

The indications of the assignment of the

burden of proof by the legislative language
are conflicting. In order to resolve the
preferable construction, it is useful to

catalogue the competing considerations.

And then His Honour goes on to consider the arguments

either way and we say that that remark of His Honour's

applies to what was said in that passage in

VINES V DJORDJEVITCH and we say that it is only by

imposing a certain construction on the statute
that one could say that these words are to be

treated in one way or another and we refer on page

25, in paragraph 34, to Zuckerman's point that the

distinction cannot be the reason for that construction

if circulatory is to be avoided, and we adopt what

Sir Francis Adams said as to the fact that one is

dealing with a "swivelled sign post that can be

made to point in either direction as desired".	And
it is submitted that when one is faced with the
fact that appeal to that doctrine does not solve the problem as to where the burden of proof lies

that one goes to the other considerations which

His Honour Mr Justice Kirby went to in KINGSHOTT's

case. And then it is submitted, with respect, that

Justice of Appeal McHugh's argument, the other way,	in KINGSHOTT's case was circular, that is - there
is a passage then set out from His Honour's judgment,
at page 727:

When a Statute imposes an obligation which

is the subject of a qualification, exception

or proviso, the burden of proof concerning

that qualification, exception or proviso

depends on whether it is part of the total

statement of the obligation. If it is, the

onus rests on the party alleging a breach of

the obligation. If on the proper construction

of the enactment however, the qualification,

exception or proviso provides an excuse or

justification for not complying with the

C2Tll/l/JL	78	8/5/90
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obligation, the onus of proof lies on

the party alleging that he comes within

the qualification, excuse or proviso.

The difficulty is that what His Honour there says,

it does not really provide any basis on which one

can decide into which of those categories

particular words are to be allocated and that,

for the reason that is set out in the submission

irrrrnediately following, for a total statement of the

obligation must, in any case, where the obligation

is subject to a qualification, exception or

proviso include reference to the qualification,

exemption or proviso. It is in any such case

a feature of the obligation that it is subject to the

qualification. And the submission goes on to accept

that what is said in that passage is partially

correct but to say that it does not cover the field,

as it were, because it is not the case that a

qualification. exemption or proviso must constitutute

an excuse or justification in respect of a separately

defined offence for the onus to lie on the party who

seeks to rely on it. And our position is put a little

further down on the page that is, it is ultimately

the construction of the statute which determines where

it has placed the burden of proof as to any

particular matter, and that is we say that that

question is to be approached in the light of HUNT's
case, along those particular lines, and not along

the lines of any particular conceptual framework.

(Continued on page 80)

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MR DWYER (continuing): It is not, I think, necessary for me

to take the Court in detail to the history of the

legislation. I have taken the Court to the

passage from Hansard that is set out on page 29. I did desire to say something about the decision

in the Court below.

GAUDRON J:	Now when you come to that, I really have a very fundamental difficulty with this case. It is as
well that I tell you now.  What you seek to do,
as I understand it, is obtain three convictions.
You already have one, is that right?
MR DWYER:	Yes.
GAUDRON J:	Now I do not understand how you can have three convictions in the context of this legislation.
If I can take you to 22(1) which is your first one,
that is the general offence, and that is your
information at page 440, is it?
MR DWYER:	With respect, no.  We rely on that one also on
section 21(2)(a).

GAUDRON J: Yes, that comes your second one. It seems to

me if you get one under 21(1) you simply cannot

have a conviction, a subsisting at the same time

conviction, under 22(2)(a) and it also seems to

me that if you take 21(1) as the general obligation

it is wholly inconsistent with - I am sorry -

if you take 21(1) as the general obligation, it does not seem to me that there is probably much room for a conviction under the regulation,

that is, if you had got a conviction under

21(1), for example, all the other offences should

have been regarded as in the alternative and

not available, and having got your conviction

now under the regulation, it being an alternative,

there is now no room for a conviction under 21(1).

MR DWYER:

Your Honour, there is a very real problem about

the interrelation of section 21(1) and section 21(2)

but we have not, I think, given rise to the

difficulty in this case which Your Honour is concerned

with because in each of the informations we have

alleged in both of them a contravention both of

section 21(1) and section 21(2)(a).

GAUDRON J: Yes, well I simply do not understand how as

a matter of interpretation they can be alleged other

than in the alternative.

MR DWYER:  Perhaps I should inform Your Honour that we were

faced with an earlier decision of His Honour

Mr Justice Fullagar. What we did to begin with was

to have one information which was based on,

C2Tl2/l/LW	80	8/5/90
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we said, a continuing obligation under section 21(1)

and we set out in that information a number of

ways which attracted particulars under section 21(2)(a)

but we had included those as all part of the one
count. There was then an argument that our

charge was duplicitous and the magistrate upheld

that argument in relation to the charge as it then

stood and that matter was taken to the supreme

court on an order to review and His Honour

Mr Justice Fullagar upheld the magistrate's view

that that charge was duplicitous and His Honour

said that the way to approach the legislation

was to regard section 21(1) as providing a

general duty and section 21(2) as providing

particular duties within that general duty and that

there should be a separate information in relation

to each of the particular duties.

GAUDRON J:	But alternatives, must they not be?
MR DWYER:	Well, no.
GAUDRON J:	Can you get a - - -

MR DWYER:  Could I perhaps say this: it connnonly happens that

a particular set of circumstances will reveal

various breaches of the criminal law.

GAUDRON J:  And then it becomes a question whether they are

alternative offences or they are different offences.

(Continued on page 82)

C2Tl2/2/LW	81	8/5/90
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MR DWYER:	Well if different features in a passage of
behaviour are isolated out as they were in the
informations in this case, then they are not
alternatives - - -

GAUDRON J: Well except this- let us go back- if it is

practicable to provide a guard - well, I am

sorry, let us go to your one at page 440. If

it was practicable to bar access by whatever

means, then how does the question of practicability

of cutting off the electricity or severing the

hydrolics ever arise and if it was practicable to

bar access, again under 440, by whatever means,

why do you look to whether it was barred by a

guard2

MR DWYER:	With respect, what the two informations say is that
in the circumstances that occurred there was a
breach of the duty to have practicably safe plant
and systems of work, because he could gain access
to the trapping space and we say that from the
same circumstances there was also breach - - -
GAUDRON J:	At the same time?
MR DWYER:	Not necessarily at the same time. Oh no, if there
had been a system of work,which is the second one,
to ensure that the interaction of the electrical and hydrolic systems did not result in danger, if
that system of work had been in place, then the problem about gaining access to the trapping space
would not have arisen, so in - - -
GAUDRON J: That is right, they	are alternatives.
MR DWYER: Well, it is submitted not.	I would concede that

the information at page 440 and the regulation 10 information may cover the same ground and if we -

GAUDRON J: Well, in that case, if that is right, how can you,

whilst the third conviction, the regulation 10

conviction stands, ask us to look at the one at

page 440?

MR DWYER: Well, if the regulation 10 conviction stands,

I think - - -

GAUDRON J:	As it does at the moment.
MR DWYER:	As it does at the moment, yes, but we Nere faced
in the court below and we are faced here with an
appeal which would seek to have it set aside. Now
we would be content with a final position, I think,
that we finished up with a conviction either on the information at page 440, or the regulation 10

C2Tl3/l/CM	82	8/5/90
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information, but we would say that the information

at page 441 stands differently.

GAUDRON J:  But 441 is based on the particular which is

part of the general in your Act. It either - yes.

MR DWYER:	Yes, that is so.
GAUDRON J:	It seems to me, if you are guilty under

subsection (1), if you have a conviction under
subsection (1), that is the general, there is

then no room for a conviction under subsection (2),

and if you have an acquittal under subsection (1)

it necessarily denies the possibility of the

conviction under (2), because they are all included.

MR DWYER:	But in neither of these informations is the information laid solely under subsection (1). In
both of them it is laid under subsection (2)(a) as well.
GAUDRON J:	I see.
MR DWYER:	I would concede that there is an inelegantcy about
the fact that one refers to both subsection (1) and subsection (2), but that was done following the
directionsas we understood it that have been given
to us by Mr Justice Fullagar in the earlier case
which is reported. It is (1988) VR 411.

(Continued on page 84)

C2Tl3/2/CM	83	8/5/90
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DEANE J:	Does that mean that if the employer puts a rat trap
in the centre of the floor and an employee catches his toe in it and it can be said that each of
(2)(a),(b), (c), (d) and (e) have been breached, that
one act of putting a rat trap in the middle of the floor involves five offences against section 21(1)?
MR DWYER:	If they involve breaches of separate duties, yes,
we would say that -

DEANE J: Well, the answer to my question is, "yes"?

MR DWYER:  Yes.

DEANE J: If putting a rat trap there means that you have

done (2)(a) and (2)(b) and (2)(c) and (2)(d) and (2)(e), you

do not simply say it was a bad offence under 21(1),

you say it is five offences under 21(1)?

MR DWYER:  Because there are five separate duties and each of

them has been breached.

DEANE J:  But you have only done one thing.

MR DWYER: Well, it often happens that doing one thing will

constitute cormnitting a number of crimes. Of course

the way in which it is dealt with as a matter of

practicality is that ordinarily, if one obtains a

conviction on the most serious matter, one then

informs the Court that one does not press for a

conviction on less serious matters, but - - -

DEANE J:	But if you look at the section there is only one
duty and that is 21(1). 21(2) says there are various
ways of breaching that duty including - well, what
about the ones that are not specified. I mean, if the
prosecution can think up another 10, in addition to
(a), (b), (c), (d) and (e), do you end up with 15?
MR DWYER:	Could I say this, Your Honour? That was the view

which the department had initially taken of the

legislation. That was the way in which to begin with

we had proceeded and, if the Court says that we were

right initially, we are content with that. If the

Court says that what you do is bring a prosecution for

a breach of section 21(1) and that the matters in

section 21(2) are simply particulars as to how the

particular breach has been constituted, we are content

with that. When I said that we were saying that a

breach of each duty would constitute a number of

offences, that was only on the basis that we are
bound to proceed in the way in which we did, but if we

are not,we are quite happy with that.

BRENNAN J:  What was duplicitous about your first complaint?

C2Tl4/l/FK	84	8/5/90
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MR DWYER: Well, we thought it was not duplicitous,

but what His Honour - - -

BRENNAN J: Well, how did it read?

MR DWYER: Well, it read, the Court may not have access to it,

but it recited a failur which was simply a failure

to provide - we recited, in effect:

fail to provide and maintain, as far as

was practicable for employees, a working

environment that was safe and without risks to health. When it did fail to

provide and maintain plant and systems of

work that were so far as is practicable

safe and without risks to health, and when

it did fail to provide such information,

instruction and supervision to employees

as was necessary to enable the employees

to perform their work in a manner that

was safe and without risks to health, in
contravention of the provisions of

section 21 of the OCCUPATIONAL HEALTH AND

SAFETY ACT.

We said all of that was one offence, and we then

gave particulars. We said that, first of all:

Everest was able to gain access to the trapping space created by the power driven

hopper door in frame of a Banbury mill on

which he was carrying out maintenance.

And then we said in a new paragraph:

No system of work was in place to ensure

that the interaction of the electrical and

hydraulic systems of activating a

Banbury mill did not result in danger to

employees.

And then we gave particulars of failur to provide

information, instruction and supervision.

BRENNAN J:  And what was said to be duplicitous about that

complaint?

MR DWYER: Well, His Honour said that it was wrong to regard the

section as creating one offence, but rather it

created a number of separate offences, and the paragraphs

that had been given as particulars identied or referred

to separate offences under subsection(2Xa) and so he
said the information was duplicitous because it rolled

in together those separate offences.

C2Tl4/2/FK	85	8/5/90
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TOOHEY J:  But is it possible to allege as an offence the

contravention of section 21(2)?

MR DWYER:  From the logic of what His Honour

Mr Justice Fullagar said, it may be but the

department has not, as a matter of practice, done

so. The department always alleges, or draws its

informations in the form which is contained on

page 440 and 441 and previously it was done the

other way.

TOOHEY J:  But no offence is created by subsection (2), is

there?

HR DWYER:	With respect, there is not, no.
TOOHEY J:	So, your informations on pages 440 and 441 would be just as sound if the words "and 21(2)(a)" were
in each case  deleted?
MR DWYER:	Yes, with respect, I would accept that - - -

TOOHEY J: That is a question.

MR DWYER:  From our point of view they would be. There may be

a complaint that we had not sufficiently particularized

the matter but we would say that it was sufficient

to do it in that way.

TOOHEY J:  The question of particulars is another matter but

so far as alleging an offence is concerned, the

reference to 21(2)(a) in a sense adds nothing to

what is already there.

MR DWYER:  It would appear to be not necessary to a statement

of the offence.

BRENNAN J: Well now, I take it, Mr Dwyer, that the way in

which the matter proceeded after Justice Fullagar's

judgment was that each of the paragraphs in (2),

being incorporated, so to speak, in (1) amounted

to a several definition of "offences" being those

contained in the paragraphs of (2). You have

chosen (2)(a) as the paragraph which gives

specificity to the charges which you have brought

and, therefore, is it right to say that for the

purposes of your prosecution, at 440 or 441, we

are concerned not with the construction of 21(1)

but with the construction of 21(2)(a)?

MR DWYER:  I think we are concerned with both of them,

Your Honour.

BRENNAN J: Well now, that raises the fundamental problem if

we are concerned with both, does it not, because

if we are concerned with (1) then we have to

regard (2) as being no more than illustrations of

C2Tl5/l/DR	86	8/5/90
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a duty which is a single duty being that defined in

subsection (1) but if (2)(a) is to be treated as, in
conjunction with (1), creating a separate offence
and (2)(a) is specified, then it is the wording of

(2)(a) which is deemed to be the offence, for the

purposes of 440 and 441?

MR DWYER: Well, in our submission, the true position is

that it is section 21(1) that constitutes the

offence and that (2)(a) is merely a set of

circumstances which are said, by the statute, to

amount to such a contravention.

BRENNAN J:  I can understand that. In other words it is a

deeming by (2)(a) that anything that falls within

there falls within section 21(1).

MR DWYER:  Yes.

BRENNAN J: Well, let us proceed on that basis for the moment.

Having regard to the wording of the complaint at

page 440, the allegation is that it falls within

section 21(2)(a).

MR DWYER:  The allegation - a failure to comply with

section 21(2)(a) is relied on as being the way in

which there was a breach of section 21(1).

BRENNAN J: Quite. So that if section 21(2)(a) is established

by the prosecution, convictions under 21(1) follows

without further ado.

(Continued on page 88)

C2Tl5/2/DR	87	8/5/90
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MR DWYER:	Yes, we would accept that.
BRENNAN J:	If that be so, how is it we are concerned with

the construction of section 21(1)?

MR DWYER:	Well, the particular problem that we are concerned with appears in both of the provisions.
BRENNAN J:	In a different context though, does it not?

The phrase:

that are so far as is practicable safe

and without risks to health -

qualified -

plant and systems of work -

in (~(a). In (1), they modify the obligation of

providing and maintaining.

MR DWYER:	No, it would be our submission that despite the arrangement of the words that"so far as is
practicable" is concerned with the obligation:

to provide and maintain -

rather than with the description of the:

plant and systems of work -

being safe.

BRENNAN J:  Quite, but if we have a case where there is a

failure:

to provide ..... plant and systems of work

that are so far as is practicable safe

and without risks to health -

and that is proved, then conviction follows.

MR DWYER:	Yes, that is so.
BRENNAN J:	Irrespective of whether, apart from (2)(a),

on the facts of the case conviction would follow.

MR DWYER: 

Yes, I would accept that.

TOOHEY J: 

Well, that becomes clearer once you go to one of

the paragraphs in which the language comparable to
subsection (1) does not appear, for instance,

paragraph (e), if it could be shown that an employer

had failed:

to provide such information ..... as are

necessary -

and so on, then you would not be concerned at all

about the language of subsection (1), would you?

C2Tl6/1/JH	88	8/5/90
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MR DWYER:  On that construction, that follows, yes,

Your Honour. I should inform the Court that

initially there were, under the second round, as

it were, six informations that the magistrate dealt

with and he dismissed all six and a number of them

related to subsection (e) but orders to review

were only sought in relation to the first two of

those six and that is why it is informations

under subsection (2)(a) only that are before the

Court. The Court may have observed as I read out

the charge that had previously existed that it went

to that matter of failure:

to provide such information, instruction,

training and supervision.

I would accept the construction that says that

once it is proved that there has been a failure to

comply with (2)(e), then the section means that that

establishes that there has been a breach of

section 21(1).

TOOHEY J:  But the same argument must be true of all the

paragraphs, it is just that with paragraphs (a),

(b) and (c), there is language used which is similar

to the language of subsection (1) and questions might

arise as to the meaning in each of those

subsections but that ultimately it is a contravention
of the paragraph that - or a failure to comply with
one or other of those paragraphs that leads to a

conviction.

MR DWYER:	Yes, that is so, with respect.
BRENNAN J:	What room is there then for holding that:the words:

that are so far as is practicable safe and

without risks to health -

would constitute an exception or qualification to the

requirement:

to provide and maintain plant and system of work?

MR DWYER:  We say that the argument is exactly the same.

as to the provision of:

plant and systems of work -

as it was as to the provision of a working environment.

BRENNAN J:  I thought yesterday we agreed that the offence was

failure to provide the environment and that the onus

then rested on the defendant to establish the

qualification that it is not practicable to remedy

that situation.

C2Tl6/2/JH	89	8/5/90
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MR DWYER:	Yes, that is our argument, and we say that - - -
BRENNAN J:	Well, that was the argument under section 21(1), but that will not run under section 21(2), will it?
MR DWYER:	Well, our submission is that it does, that is that

the obligation is to provide and maintain plant and

systems of work that are safe and without risks to hea 1th

and that if the employer wants to say that it was not

practicable to do so, then the onus is on him to

establish that. I acknowledge at once that there

is a difference in the arrangement of the words but

we say that there is no difference in meaning by

reason of that arrangement. We say that the

construction point that arises is, in substance, the

same and is to be answered in the same way.

GAUDRON J:  Would you forgive me - is this a plain English

statute?

MR DWYER:  I think it is, Your Honour. There is probably

agreement between both parties in this case as to

the effectiveness of plain English legislation.

I had been about to pass to what happened in the

court below. I should say that the point of analysis

that the Court has just been concerned with did not

arise in the court below, that is the Full Court

treated the problem as being the same, as it were.

I do not think there was even identification of any

difference as to whether one looked at subsection (1)

or one looked at subsection (2), so far as I can recall.

What the majority - I should tell the Court this:

the majority comprised Justices Kaye and Beach and

they said that they would not follow NIMMO's case

and KINGSHOTT's case, they said that there were

significant differences between the Victorian Act

and the English Factories Act and the New South Wales

SHOPS AND FACTORIES ACT, and so they said the

considerations in those judgments were inapplicable

and arriving at that view they said that the onus was

on the prosecutor to prove lack of reasonable

practicability and so they upheld the magistrate on

that point. They then turned to the question

whether regardless of the question of onus the

magistrate had arrived at the right result on these

two informations and unfortunately Their Honours then

overlooked a matter that was clearly the case.

What they said was that what had happened - and

this appears at page 374 of the appeal book - they say

at line 13:

the Magistrate correctly held that the

onus of proving the element of

practicability was borne by the informant.

Having withheld from leading any evidence

C2Tl7/l/HS	90	8/5/90
Chugg(2)

in relation to this essential element of the offence charged, the informant failed to discharge the onus of

proof. For these reasons we would

discharge the informant's order nisi,
regardless of any error made by the

Magistrate in his further reasons

for dismissing the informations as

complained of under the remaining

grounds.

The problem is, as Mr Justice Ormiston points out,

that is incorrect. The informant had not withheld

from leading evidence in relation to this essential

element. The informant had called expert evidence

which satisfied Mr Justice Ormiston, at any rate, that

the informant had satisfied the burden of proof,

even if the informant carried the onus, and so that

part of the majority decision has gone off on a wrong

footing, in our submission. What the majority then

did was turn to the regulation 10 offence on which the

magistrate had convicted and which is the subject of

a separate appeal, and they upheld that conviction.

Mr Justice Ormiston was the minority and he

agreed with the majority on the question of onus but

he then pointed out that they were incorrect in

saying that there had not been evidence on that matter

and that appears at page 409, I think, where he turns

to examine the magistrate's reasoning on these

matters.

(Continued on page 92)

C2Tl7/2/HS	91	8/5/90
Chugg(2)

~.iR DWYER (continuing): It is at page 423 that Mr Justice Ormiston

takes issue with ~hat Justices Kaye and Beach had

said, at line 10:

In the judgmentsof Kaye and Beach, JJ.

it is stated that it is unnecessary to deal

with this question as the informant failed
to discharge the onus of proof because
it withheld from leading any evidence in

relation to the element of practicability

which was held to be an essential element

of the offence charged. Having considered

it with care, I regret to say that I cannot

agree in this conclusion. The informant

called one Derek Basil Leonard Viner, a

consulting risk engineer and it appeared that

he had both academic and practical experience

in that field. He gave detailed evidence as

to the operation of the Banbury mill and

explained carefully prepared charts relating

to its cycle of operation and the changes

effected by the modifications of October

1985. In particular Mr Viner gave evidence

as to the attempting guarding of the machine,

in the course of describing why he considered

that the machine was dangerous. He said

that the conveyor which normally took the

rubber to the mill provided a partial guard

but that it had been moved aside on on the

day of the accident. Even when it was in

position, however, he said that the hopper

door was accessible to the human body and

could cause injury. He next described

interlocking guards and said that it would

have been possible to have such a guard

interlocked with the electrical circuit

so that, for example, when the conveyor

or any other fixed guard was moved, the

electricity to the hopper door and the

pneumatic circuit would have been cut off.

He gave further evidence in relatively general

terms of the modest cost of installing either

or both fixed and interlocking guarding.

Although Mr. Viner was not taken in his evidence to each of the elements in the

definition of "practicable", in my opinion

he gave evidence from which it could be

concluded that the hopper door and the

opening to the mill was not, so far as was

practicable, safe. There was other evidence

from those employed at the factory and from

the defendant's expert witnesses from which

the learned Magistrate could have reached a

similar conclusion. Indeed, one of those
expert witnesses, Mr. Purdey, another

consulting engineer, conceded in cross-examination

C2T18/l/JL	92	8/5/90
Chugg(2)

that even when the conveyor was in its normal position it would not have been

difficult for an operator to trap his hand
in the hopper.

magistrate's reasoning otherwise on the informations

So, His Honour takes that view of the evidence and,

that had been dismissed and, His Honour, concludes
that the magistrate was in error and that he would

have made each of the orders nisi absolute and

remitted the two informations for rehearing and

His Honour then turns, on page 425, to the regulation 10

offence. And we submit that, on these informations,

quite apart from the question of onus, His Honour

Mr Justice Ormiston was correct.

DEANE J: But Mr Dwywer, if you succeed on onus, is one thing,

but if you fail on onus, why should we get involved

in this. I mean are you suggesting a case of

triple jeopardy I mean, they have been acquitted

at first instance; they have been acquitted on

appeal; why should there be a case of triple

jeopardy to consider whether somebody proved something

for a particular purpose and so on?

MR DWYER:	What we submit is simply that the matter should be
remitted for rehearing.
DEANE J:	But it would be a case of triple jeopardy would it not?

MR DWYER: Well, perhaps so, but the error that was made by the

majority in the Full Court is manifest, it is

submitted.

(Continued on page 94)

C2Tl8/2/JL	93	8/5/90
Chugg(2)

DEANE J:	But it is still a case of, if you be wrons on your
onus point, it is still a case of acquittal on the merits at first instance which has
survived an appeal.  Why should a second appellate
court get involved and say,"You can go back
and start all over again"?
MR DWYER:	Simply because the manifest error shows that it

would be unjust for that to be the final result.

DEANE J: Well that means an unqualified denial of the rule

against double jeopardy as even a norm of practice.

MR DWYER:  We put the matter this way, that had the majority

of the Full Court not made that elementary mistake

they would have arrived at the same result as

Mr Justice Ormiston did and so they would have

set aside the acquittal and would have remitted

the matter for rehearing and,as their mistake is

so obvious, it is appropriate for that to be what

is finally done with these informations and the

fact that that means that the matter can be

described in terms of jeopardy being faced a
number of times ought not, it is submitted, be
the overriding consideration.

It is not as if we are dealing with a fine point of argument as to which views were open

either way, it is submitted. It is just correcting

an elementary mistake and that circumstance is

sufficient, in our submission, to mean that the

Court should intervene.

GAUDRON J:  What was the magistrate's mistake? Where will

I find that precisely?

MR DWYER:  The magistrate's reasons are set out at pages 330

to 349 and I can take the Court through them very

quickly.

GAUDRON J: Where is his mistake? If you could just take me

to the mistake because what he says of information 1

"In my opinion, it has not been proved." That is at

page 345 and of information 2 - and I take it they are the ones at pages 440 and 441 - again he says,

"has not been made out".

MR DWYER:  But if one looks at his reasons, the conclusion

does not follow from what he says, that is,

on information 1 ·- one sees at the bottom of page 444

he sets out information 1 and then at the top of

page 345 he sets out four conclusions on which he

bases the view that information 1 has not been
proved and they are conclusions which do not

carry the result:

C2Tl9/l/LW	94	8/5/90
Chugg(2)

1. Robert Mark Everest was an intelligent and

skilful person -

it is common ground that he was a fourth year

apprentice -

2. That he was quite conversant with the

maintenance work he was required to perform;

3. That Robert Mark Everest did not follow his

supervisor's instructions not to test the

machine;

4. That the defendant could not have foreseen

the malfunction of the hopper door because of the

modifications which were carried out on

25 October 1985 (should be 26 October 1986);	and
5. That the carrying out of the maintenance

work did not involve Robert Mark Everest placing

his body in the trapping space.

It does not follow from those findings, even if they

are proper findings on the evidence.

GAUDRON J: That depends what the offence is and what the excus~

justification or, let me say, defence might be.	I would have read that to say tha4 1l am satisfied
that in all the circumstances, having regard to those, they took all steps that were practicable:•
That is how I would have read it.

MR DWYER:  Our submission is that if one has regard to the

evidence as summarized by Mr Justice Ormiston

that one should not read those reasons in that way.

You can see how the magistrate -

(Continued on page 96)

C2Tl9/2/LW	95	8/5/90
Chugg(2)

GAUDRON J:  I find some difficulty with the logic that

says, "That is not made out, but a failure to

guard is , a regulation 10 is." I find a great

logical problem with that by reason of the matters

adverted to ealier, but I certainly do not read

that as saying, "I find that the prosecutor did

not discharge the onus of satisfying me that there

were practicable measures to be taken".

MR DWYER:	The way in which the magistrate led himself into
error can be seen on page 344, it is submitted.
What the magistrate does in approaching the
particular informations is set out two passages
from SMITHWICK V NATIONAL COAL BOARD and
MITCHELL V NORTH BRITISH RUBBER COMPANY. They
are both guarding of dangerous machines cases and
they were cases concerned with the proposition
that the question of whether or not a machine is
dangerous is to be determined by whether or not
injury from the machine was foreseeable and having
set out those passages, His Honour says:

In my view, the above passages, quoted from

the judgments above clearly show that an

employer is entitled to rely in his defence
that the consequences were not reasonably

foreseeable.

Well now, that is simply wrong, it is submitted.

GAUDRON J: Well it may be, it may be not. It may be that

if it is not reasonably foreseeable, it is not

practicable to take precautions against that which

is not foreseeable. That would seem to be allowed

by the definition section, would it not?

MR DWYER:	The magistrate has fallen into the error that was
in fact considered by the House of Lords in the AUSTIN-ROVER case and it is considered by
Lord Goff in the AUSTIN-ROVER case.  What had
happened in that case wa.sthat the court below had
said that the question of safety under the English
legislation is to be determined like the question
of dangerousness under the previous guarding
legislation by reference to what is reasonably
foreseeable and Lord Goff says that is wrong. The
question of safety does not depend on what is
reasonably foreseeable.  The question of something
is unsafe, whether it was reasonably foreseeable
that it was unsafe or not.  What -
GAUDRON J:	Well, that may be what Lord Goff said, but what is practicable means practicable having regard to
(b) the state of knowledge about that hazard or risk.
Now if it was not foreseeable there is no knowledge
about that hazard or risk.
C2T20/l/CM	96
Chugg(2)

MR DWYER: Well the magistrate does not say that. That

is treating what the magistrate said in a particular

way, but could I say this, there is a further

error that is involved in what the magistrate said.

The consequence that he is talking about are the

consequences involved in the particular accident

and his reasons, I think, make that plain and

the question of foreseeability that he addresses

in No 4 on page 345 ties the question of

foreseeability to the question of the malfunction

of the hopper door, but this hopper door was not dangerous simply because it malfunctioned. This hopper door was dangerous, as was charged

in information No 1, because there was a trapping

space between the hopper door and the frame of

the mill, not when the hopper door was malfunctioning,
but when it was functioning in any way, so the
magistrate has incorrectly linked the charge or he

has not looked at the question of the complaint

in relation to the trapping space. He has limited

the charge incorrectly to the question of the

malfunctioning of the hopper door.

(Continued on page 98)

C2T20/2/CM	97	8/5/90
Chugg(2)

MR DWYER (continuing):  The hopper door did behave in an

abhorrent way, it would appear on the evidence,

but that was not in itself the breach of safety.

The breach of safety that is under information 1

was failing to protect the worker against the trapping space. Now, on information No 2 the

magistrate's reasoning which, again, no doubt

has to be looked at in the light of what he had

said on pa3e 344. He simply says two things:

that the electrical modifications had an
unforeseeable consequence. If the deceased had
turned off the electrical system, which he did not,

there would not have been any danger.

Those conclusions cannot support the view

that information two has not been made out.

Information two as it is set out there being,

in substance, that no system of work was in place
to ensure that the interaction of the electrical

and hydraulic systems of activating the mill did

not result in danger. The magistrate's reasoning

on that information is plainly erroneous, it is

submitted.

BRENNAN J:  Mr Dwyer, if you were to fail on your argument

as to onus, the rest would all be a matter of fact,

would it not?

MR DWYER: Ultimately, it is a question of evidence and a

question of whether or not, on the evidence, the

informations were dealt with appropriately at

first instance.

BRENNAN J: Why is it· t.1-iat we shoulq not limit the grant of special

leave to question of onus?

MR DWYER: Well, all that we would say, I think, as to that,

sir, is that the questions involved in the regulation 10

matter which is the separate appeal are of exactly

the same character and the questions of fact which

have to be considered under informations 1 and 2 are

similar and ar~ related questions of fact to those

which are considered under the regulation 10 appeal.

BRENNAN J: Well, perhaps we can approach it again after we

have looked at that matter in the next appeal.

MR DWYER:  We would be content, I think, with this position,

that if the Court was against us on the onus and

the Court felt that there should not be special

leave in relation to informations 1 and 2 in so far

as they gave rise to questions of whether there

ought to have been a conviction and the Court

desired to withdraw leave on that matter, if the

Court also withdrew leave on the regulation 10

matter we would not complain as to that outcome.

C2T21/l/DR	98	8/5/90
Chugg(2)

BRENNAN J:  As I say, perhaps we should look at it again after

we have read the next appeal.

:t1R DWYER:  Yes. Now, I should endeavour, very quickly, to say

on the substantial matter - the onus question -

how the judges below dealt with it. Justices Kaye

and Beach said that there were four factors which

they said made the Australian legislation different

from the English legislation and they set those

out on pages 369, 370 to 372 and I can identify

them very quickly.

BRENNAN J: Well, do you need to do more than to give us the

page references which you have already done in the

written submissions?

:t1R DWYER:	Perhaps not, and -
BRENNAN J:	And your comments are already there.
:t1R DWYER:	- - - they are identified on pages 30 and the

following pages of the written submission and

our position in relation to each of them is set

out in the written submissions and I will not

take the matter further than that and, as I indicated
to the Court yesterday, in so far as there are
matters arising out of the submissions on behalf
of the respondent, I reserve that to our reply.

If the Court pleases.

BRENNAN J: Yes. Mr Gillard.

:t1R GILLARD:  If it please the Court, our general submission

is that the onus is throughout on the prosecution

and there is no onus on the defendant. In our

submission, the crucial issue in this appeal comes

down to what constitutes the offence.

(Continued on page 100)

C2T21/2/DR	99	8/5/90
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MR GILLARD:  Of course, one goes to the section to determine

that, and we submit that the offence is constituted

by a breach of an obligation to provide the working

environment that is safe, and that obligation is

defined as an obligation to provide and maintain

so far as is practicable, and it is that failure

to provide and maintain that working environment

that constitutes the offence. So what we are

saying is that it is an integral or essential part

of the prosecution's proof to establish that element,

and in our submission that turns on a question of

construction and we refer Your Honours to what this

Court said in DIRECTOR OF PUBLIC PROSECUTIONS V

TELECASTERS - - -

DAWSON J:	We said it was a matter of construction.
MR GILLARD:	It is a matter of construction, yes, and it is

the same point.

BRENNAN J:	Yes.
MR GILLARD:	It is a question of what is defined, and if I ~ight

say so. with respect, what Mr Justice Ormiston said

at page 389 fully surrnnarizes what, in our submission,

is the correct approach. His Honour said, at page 389,

line 5:

The very simplicity of the language here enacted by Parliament and the clarity with

which it has imposed a less than absolute

duty on employers irrnnediately suggests that

Parliament had no intention of creating an

exception of the kind which would place the

burden of proof on the defendant. In each

case it must be conceded that it is a question

of construction and the mere form of the language

employed by the draftsman does not necessarily
conclude the issue ..... Nevertheless the words

"so far as is practicable" so clearly define

the measure of the duty imposed by each

statutory provision that it is hard to see, as

a matter of normal English usage, that they
form other than an integral part of the verbal
expression which defines each relevant duty

imposed on the employer. At least without the

benefit of the authorities cited to us, it would

appear to me to be a distortion of these

relatively simple words to treat them as in each
case imposing a duty in unqualified terms to
provide a "working environment" etc. which is
both "safe and without risks to health" and then

to imply an exception which might be expressed in

terms "except so far as that is impracticable",

or words to that effect.

C2T22/l/FK	100	8/5/90
Chugg(2)

Now, that is, in our submission, the argument

we wish to put to this Court. It is a fairly

simply straightforward matter of construction,

and - - -

TOOHEY J: Construction of what, Mr Gillard?

MR GILLARD:  Well, that is a very interesting question,

Your Honour, in the light of what fell from the

Court this morning, and in the light of the way

the two informations are before the Court, taking

into account subsection (2), it would appear

with respect, Your Honour, as what was put to my

learned friend this morning that we are really

looking at (2)(a), but the same argument, in our

submission, applies. In other words, you have

got to look at the defined obligation which is to

provide and maintain plant and systems of work that

are, so far as practicable, safe. Now, what the

obligation there is that the plant and systems of

work - your obligation to provide those are, so

far as is practicable to do so, in other words,

the plant and systems of work are defined. So it is

a question of definition and, in our submission, the

same point. It comes back to the integral or
essential part of the offence and, in our submission,

that is the simple answer to this case, and indeed

we submit that section 168, of the MAGISTRATES

(SUMMARY PROCEEDINGS) ACT does not alter the position

at all because, in our submission, it makes the same

point. If I could take Your Honours to that section -
section 168(1) of the MAGISTRATES (SUMMARY PROCEEDINGS)

ACT, and Your Honours will note that the words are: exception, exemption, proviso, excuse, or

qualification, whether it does or does not

accompany the description of the offence.

Our respectful submission is that you draw a distinction

between the offence and any exception, et cetera, to

it. That, in our submission, must be so. In other

words, your first question is, "What is the offence?",

and then the next quE>stion is, "Are there any

exceptions et cetera to it?"

That seems to be supported by what Justices Kaye

and Beach said at page 372, where they quote some

extracts from two judgments in the State of Victoria,

page 372, at the bottom, line 31:

C2T22/2/FK	101	8/5/90
Chugg(2)

MR GILLARD (continuing):

The application of section 168 depends

upon the construction of section 21, and

particularly whether the matter of

practicability is an essential element of

the offence created by the section or a

qualification to the offence.

They refer to BARRITT V BAKER, Justice Fullagar

who was then on the Supreme Court of Victoria and
they quote on the top of page 373 what His Honour said:

It seems to me that the question must often turn on the form of the legislation. The

problem is not a problem of formal logic.

The Court is not to undertake the task of classification and to decide what is the

logical statement of the rule and the
logical statement of the exception. Its

task is purely and simply one of statutory construction. It has only to say what are

the elements which the Legislature has

specified as the prima facie ingredients

of the offence. When it has determined, as

a matter of construction, what those

ingredients are, it necessarily follows that

the burden of proving the totality of those

ingredients repts upon the prosecution,

The solution of the logical problem of the

classification of things is governed by

logical considerations, and logical

considerations will determine what is to be

stated as a rule and is to be stated as an

exception. But the Legislature may

formulate its rule or its rule and exception

as it pleases. It might, for example,

provide that any person who made a bet in a

city, town or borough should be guilty of

an offence. Or it might provide that any

person who made a bet in any municipality

other than a shire should be guilty of an

offence. The substance might be precisely

the same, but it might well be held that

section 214 -

which is the old section 168 -

applied to the latter case but not to the former.

This would be because the essential elements

in the specification of the offence are

differently stated in each case.

Then they also quote what Mr Justice Adams said in

HARRIS V MACQUARIE DISTRIBUTORS. It is our

submission that section 168 does not reverse the onus

in this case and we adopt what Their Honours said

C2T23/l/JH	102	8/5/90
Chugg(2)

in relation to that matter relying upon what

Mr Justice Fullagar said and if I might say so,

with respect, seems to be borne out by a

consideration of the section.

Now, the only doubts that seem to arise in this

case is NIMMO's case and that came along back

in 1967, obviously gave a few prosecution individuals

an opportunity to argue that that reversed the onus

of proof. In our submission, and clearly this is so,

neither NIMMO's case or KINGSHOTT's case in any way

bind this Court but if one is to distinguish or to

say why one should not follow those cases then, in
our submission, the first point is that the

reasoning of the minority in both cases is clearly

correct, in our submission, clearly complies with

principle and application of principle. The second

point we make is that it was a civil case and there

may be considerations of policy that may be more

relevant to a civil case than a criminal case and the

third point we make is that clearly from reading

the judgments of the majority they were very much

influenced by a long line of English cases and though

it was a Scottish appeal they referred to the

English cases as if to say, "Well, they've been around

a long time and we are not prepared in a hurry to go

against them".

In our respectful submission, if one looks at

HUNT's case in the House of Lords, one gets a clear

impression that the House of Lords is attempting to

cut back the effect of NIMMO's case. Could I take Your Honours to that case to demonstrate the point

we make? It is REG V HUNT, (1987) AC 352 and I will

take Your Honours to the leading speech of Lord Griffiths

at page 374. I may say that in the preceding pages

of his speech His Lordship refers to some of the

history relating to burdens of proof and exceptions and

the like and then at the top of page 374 he

summarizes the position by saying that:

WOOLMIN~TON did not lay down a rule that the

burden of proving a statutory defence only lay

upon the defendant if the statute specifically

so provided: that a statute can, on its true

construction, place a burden of proof on the

defendant although it does not do so expressly:
that if a burden of proof is placed on the

defendant it is the same burden whether the

case be tried summarily or on indictment,

namely, a burden that has to be discharged on

the balance of probabilities.

The real difficulty in these cases lies

in determining upon whom Parliament intended

to place the burden of proof when the statute

C2T23/2/JH	103	8/5/90
Chugg(2)

has not expressly so provided. It

presents particularly difficult problems

of construction when what might be

regarded as a matter of defence appears

in a clause creating the offence rather

than in some subsequent proviso from

which it may more readily be inferred that

it was intended to provide for a separate

defence which a defendant must set up and

prove if he wishes to avail himself of it.

This difficulty was acutely demonstrated

in NIMMO -

His Lordship then quoted the FACTORIES ACT.

(Continued on page 105)

C2T23/3/JH	104	8/5/90
Chugg(2)

MR GILLARD (continuing): His Lordship said, referring to

NIMMO, that:

The question before the House ':'1as whether

the burden of proving that it was not
reasonably practicable to make the working

place safe lay upon the defendant or the

plaintiff in a civil action. Howevever, as

the section also created a summary offence the

same question would have arisen in a

prosecution. In the event, the House divided

three to two ..... Lord Reid and Lord Wilberforce

holding that the section required the plaintiff

or prosecution to prove that it was reasonably

practicable to make the working place safe,

the majority ..... holding that if the plaintiff
or prosecution proved that the working place was
not safe it was for the defendant to excuse

himself by proving that it was not reasonably

practicable to make it safe. However, their

Lordships were in agreement that if the linguistic

construction of the statute did not clearly
indicate upon whom the burden should lie the

court should look to other considerations to

determine the intention of Parliament such as

the mischief at which the Act was aimed and

practical considerations affecting the burden of proof and, in particular, the ease or difficulty

that the respective parties would encounter in

discharging the burden -

It is interesting the next comment made by

His Lordship -

I regard this last consideration as one of

great importance for surely Parliament can never lightly be taken to have intended to

impose an onerous duty on a defendant to

prove his innocence in a criminal case, and

a court should be very slow to draw any such

inference from the language of a statute.

It is interesting, bearing in mind that the argument

was that the onus did lie upon the defendnat in

that case because of difficulties that the prosecution

may have. And then His Lordship says:

Whe..rJ. all the cases are analysed those in which

che courts have held that the burden lies on
the defendant are cases in which the burden

can be easily discharged. This point can be demonstrated by what, at first blush, appear to be two almost indistinguishable cases that

arose under wartime regulations. In REX V OLIVER

the defendant was prosecuted for selling sugar

C2T24/l/JL	105	8/5/90
Chugg(2)

without a licence.	The material part of
the Sugar -

regulation -

provided:

"Subject to any directions given or except

under and in accordance with the terms of

a licence permit or other authority granted

by or on behalf of the Minister no

wholesaler shall by way of trade ... supply

any sugar."

The Court of Criminal Appeal held that

this placed the burden upon the defendant to
prove that he had the necessary licence to

sell sugar. In REX V PUTLAND AND SORRELL, the
the defendant was charged with acquiring silk

stockings without surrending clothing coupons.

The material part of the -

regulation -

provided:  "A person shall not acquire rationed

goods ... without surrendering ... coupons . .'' The Court

of Criminal Appeal there held that the burden

was upon the prosecution to prove that the

clothing had been bought without the surrender

of coupons. The real distinction between these

two cases lies in the comparative difficulty

which would face a defendant in discharging the

burden of proof.

In OLIVER's case it would have been a simple

matter for the defendant to prove that he had a licence if such was the case but in the case of

purchase of casual articles of clothing it might,

as the court pointed out in PUTLAND's case, be a

matter of the utmost difficulty for a defendant to

of coupons for them. It appears to me that it was	establish that he had given the appropriate number	this consideration that led the court to construe
that particular regulation as imposing the
burden of proving that coupons had not been
surrendered upon the prosecution.

In REG. V EDWARDS the Court of Appeal

expressed their conclusion in the form of an
exception to what they said was the fundamental

rule of our criminal law that the prosecution

must prove every element of the offence charged.

They said that the exception

"is limited to offences arising under

enactments which prohibit the doing of an

C2T24/2/JL	106	8/5/90
Chugg(2)

act save in specified circumstances or

by persons of specified classes or with

specified qualifications or with the licence

or permission of specified authorities."

And then we rely upon the next statement by

His Lordship:

I have little doubt that the occasions upon which a statute will be construed as imposing

a burden of proof upon a defendant which do

not fall within this formulation are likely

to be exceedingly rare. But I find it

difficult to fit NIMMO ..... into this formula,

and I would prefer to adopt the formula as an

excellent guide to construction rather than

as an exception to a rule. In the final

analysis each case must turn upon the

construction of the particular legislation to

determine whether the defence is an exception

within the meaning of section ..... which the

Court of Appeal rightly decided reflects the

rule for trials on indictment. With this one

qualification I regard REG. V. EDWARDS as

rightly decided.

(Continued on page 108)

C2T24/3/JL	107	8/5/90
Chugg(2)

MR GILLARD (continuing):  In our submission, what

His Lordship is saying there, and he gave the
leading speech, is that NIMMO's case is somewhat

of an exception, it should be perhaps confined to

its own particular set of facts and does not

necessarily accord with basic principle.

DAWSON J:  Do you say this is some other formula than is

suggested in that speech of Lord Griffiths? It does

seem - and I am not sure that I can grasp it myself
at the moment - that there is something that you can
seize upon. If you take the common law exception of

insanity, a person knows when he is charged with

murder what he has been charged with, he knows all

the elements of the offence, but then you provide

an answer, or he can provide an answer by way of
a plea of insanity.

Here no one seems prepared to say - perhaps

they are, but it does not seem to me that they are
prepared to say in inequivocal terms - that the
elements of the offence are maintaining an unsafe

working environment because if that were so then

really it is a strict liability which is liable to

be defeated by the defence discharging some onus.

Is there a distinction between cases in which you
cannot see the elements of the offence at all without
taking into account the exception and those cases

in which you can see the elements of the offence

which is selling something, or whatever it might be,

without regard to the exception, or to put it the way

Justice Gaudron put it, where you can see what the

actus reus is?

MR GILLARD:  Yes.

DAWSON J:  But that is not positing a test. Do you have any

tests which you can posit? Perhaps you cannot.

MR GILLARD:	Well, I think - and I will come to our submissions in a moment - that we say that the law should strive
for certainty and we ought to lay down some guidelines
as to where we are going in this.  In our submission,
you start off with WOOLMINGTON and you bear in mind
the express reversal. If there is to be an implied
it must be obvious, otherwise the law is at the
coal-face, as is put.  You are going to have great
trouble trying to work out where the - - -
DAWSON J:	Yes, but the question is what makes it obvious?
MR GILLARD:	Well, that is up to the legislature, Your Honour. There is nothing in this Act that makes it obvious,
in our submission, and that is what the legislature
ought to do.  I mean, everybody understands the

C2T25/l/HS	108	8/5/90
Chugg(2)

principle, it is well established and it has been

around for a long time, that the burden is on the

prosecution. Now, if they wish to reverse the onus

then they ought to make it fairly clear. If they do

not expressly state it, well to imply it you would

more or less have to reach the point of saying,

"If the burden was on the prosecution throughout
here it could not possibly ever prove a case" and
then you might say, "Well, that's pretty obvious.
They never intended to create an offence that could

never be established", and that may be an example. But, in our submission, this Court should be

saying that if you are going to imply a reversal it

should clearly stand out and, indeed, borrowing what

Lord Griffithssaid, must be exceeding rare, because

it does cut across a basic principle and we submit

that if you apply the tests that have been stated

with reference, of course, to section 168, that

that works fairly well and we should not have all
these problems of coming all this way to decide

where the burden lies in this case. I think this

is about the eighth appearance in this case, if we

go right back to the first appearance before the

magistrate and Mr Justice Fullagar. It is

extraordinary.

DAWSON J: And I suppose you would say if the test was as

Lord Griffithsputs it that it is a question of whether

the burden is easily discharged by the defendant,

the burden is not easily discharged by the defendant

here.

MR GILLARD:  Your Honour, with respect, I do not want to get

into that.	I do not see why we should be concerning
ourselves about weighing it up.	I mean, it depends

on your own background how you are going to approach

the question.

DAWSON J:	Except that you read a large slab of that speech which seemed to indicate you were relying on it.
MR GILLARD:	Yes, but -

DAWSON J:  That is what it says.

MR GILLARD:  No. Well, he talks about those two cases as being

distinguishable on that basis.	I would have thought,
with respect, that is not necessarily so.	I would

submit that the words themselves fit in with the

basic principle. One does not have to worry too

much about where the burden was. He is to some

extent influenced by what was said in NIMMO, and

especially Lord Wilberforce, but it is interesting

that Lord Wilberforce at the end of his speech in

NIMMO said that was the only thing that he was concerned

about and he felt that if it was an intolerable burden

one may be impressed with that type of argument.

C2T25/2/HS	109	8/5/90
Chugg(2)

MR GILLARD (continuing):  In the end result, it is our

submission that you do not get into the question

of weighing up the difficulties of proof because

it all depends upon the particular judge, or the

barrister or the solicitor and his experience.

I mean, some judges have never done an industrial case and they would be saying, "I can see all types

of problems". Some of us have done a lot of

cases and we say we have never struck, especially

in the civil area - and that is where they are all

usually fought - never had difficulties for a

plaintiff and, indeed, this is the extraordinary

part of this case. We are talking about crime and

we are talking about helping a prosecution and

yet there is no pressure from any quarter as far

as I am aware to change the common law relating to

civil proceedings, and yet the plaintiff carries

the burden every day in an industrial accident

case and does not have much difficulty proving

his case either. Indeed, no self respecting

lawyer would ever go to Court, whether he is

plaintiff or defendant, without having his expert

on the questions of - if you need an expert - - -

DAWSON J:  They are readily available.

MR GILLARD:  They are readily available. They certainly are.

BRENNAN J:	On both sides.
MR GILLARD:	On both sides and it is not, in our respectful

submission, difficult but we submit we should not be

getting into this. The Court should not be

starting to ask questions, "Well how difficult is

it to prove?", unless, of course, we reach the

point nobody could prove anything and then you might
say, "Well it must be implied from that that one

side has a burden". Now, we submit that once you start talking about weighing up ease of proof and how easy it is to get your act together and all

that type of thing, we are going to spend days;

We have made that point in our submissions actually, very question and that is not good for the law. lawyers are going to spend days debating that Your Honour.

Your Honours, could I just take you to the

submissions. I think we have made our points and

we have set them out in our submissions and I do not
wish to say very much with respect to them but just

to go through them fairly quickly and perhaps

emphasize some points.

C2T26/l/LW	110	8/5/90
Chugg(2)

The first number of paragraphs indicate the

issues, our general submissions, of the facts as

set out as found by the magistrate and the

order to review does not attack the findings.

I only make that point because our learned friends

have extracted pieces from the transcript in their

summary. We submit that the main issue, of course,

clearly does relate to the burden of proof but it

also relates to a question of construction.

Paragraph 5 sets out one's normal approach to

construction.	We make the point in paragraph 6
that the words are clear and unambiguous.	We

submit that they lead to the conclusion that the

burden is throughout on the prosecution.

We make the point in paragraph 7 that the law

should be striving for certainty and that is what

we should be doing; that the English cases of

NIMMO and KINGSHOTT and the Full Court decision

are decisions which exemplify what I have described

as a straightforward approach - perhaps more the

literal meaning or the natural meaning of the

words - and on one side we have Lords Reid and

Wilberforce, Justice McHugh and the Full Court,

and then your approach based on policy and other

value judgment considerations; Lords Guest,

Upjohn and Pearson, President Kirby and

Justice Priestley. We would point out that the

reasoning in those cases are not decisive on the issue in this appeal. They are mere examples of

different approaches to statutory interpretation.

We point out that it is to be answered by a

construction of the statute,refer the authorities.

We go on to refer to WOOLMINGTON's general rule.

We accept that the reverse of the onus may be

implied.	We note that a breach of the duty imposed
is a criminal offence; what	constitutes the

offence is found in section 21 aided by the

definition of •~racticable''. There is no provision

in the Act which reverses, and indeed perhaps we

could just make this point that whilst there is

no express provision, nevertheless, there are

provisions in the Act that do reverse the onus and

I refer Your Honours to sections 42(2) which relate

to obstructing an inspector. Section 42(1) relates

to obstructing an inspector. The person who actually

does so commits an offence. It then goes on in 42(2):

The occuper of and employer at any workplace

at which an offence under sub-section (1) occurs

shall be guilty of the same offence unless the

occupier or employer proves that the act or

omission constituting the offence took place

without the knowledge of the occupier -

et cetera.

C2T26/2/LW	111	8/5/90
Chugg(2)

MR GILLARD (continuing): Well,that reverses the onus.

54(4) does likewise, with respect, to discrimination

against employees:

In proceedings for an offence against

this section, if all the facts constituting

the offence other than the reason for the
defendant's action are proved, the onus
of proving that the act of discrimination
was not actuated by the reason alleged in

the charge shall lie on the defendant.

There is also a provision in the Act which

eases the evidentiary burden on the prosecution.

I refer Your Honours to section 51. So one might

think from those references that the legislature

was aware of reversals and easing the burden on

a prosecutor. We submit that there are no

indicia in the Act which point to an implied

reversal and indeed my friend has not put any forward. We state, in our submission, is the

offence. We say that it is an essential or

an integral part of the offence to establish the

qualified duty. We s4bmit that the phrase II so

far qS is practicable' does not constitute an

exception et cetera::i.nd hence we then summarize it on

the top of page 5 and in accordance with basic

principle, the onus is on the prosecution. You

have a criminal case; you apply the WOOLMINGTON

principle; there is no express or implied reversal

or exception and that equals onus on the prosecution.

We submit that the English c~urts and the majority

in KINGSHOTT and the appellant's argument here

creates uncertainty in the law. We point out that

the weight that one should attach to arguments

based on difficulty of proof experienced by

prosecutions; knowledge in the defendant; difficulty
of gathering evidence by the prosecution and the

object of the Act, either expressed or ascertained

from some other source, will vary from judge to judge

and, indeed, that will depend very much upon a

particular judge or a magistrate's experience,

whether he thinks it is difficult or not difficult

and we do pose the question, would HUNT's case ever have got to the House of Lords if NTMMO's case was

not around, because on what we submit is a plain

construction in HUNT', s case, is clear the

prosecution had the burden and yet the Court of Appeal,

based on NIMMO, found the other way.

We do make the point that we submit that HUNT's

case is a clear indication that they wish to

restrict the application of the NIMMO approach.	We
point out that the law in this country should be

simple and straighforward and we set out each step

that ought to be applied, namely the onus is on the

C2T27/1/CM	112
Chugg(2)

prosecution. You have exceptions. You have a

statutory reversal, if it is clear, if it is

implied, it has got to be clear and unequivocal

indicia in the Act and, of course, the defendant

has the burden of proving exceptions et cetera,

at common law and pursuant to statute and (e)

should read the Victorian equivalent of the

Jarvis Act. I think it has got the State

equivalents or something. The Victorian equivalent
of the Jarvis Act,and we submit that the application

leads to that conclusion.

We then set out what section 21(1) is,

in our submission, a legislative enactment of

the common law duty of care and we just then

more or less repeat again what we have already said.

It is the definition of the offence. We submit

that the reasoning in the Full Court was correct

and the approach to construction adopted by

Lords Reid and Wilberforce, Justice McHugh in

this Court in the DPP case,should be accepted as

the correct approach. We also say if one is to

look for other reasons to support our construction,

we refer to the actual specific provisions which

reverse the onus. The history of a provision in

the State of Victoria is set out there. Now,my

friend and I agree that the statement of the history

is a correct one and we both also agree that there

is nothing, so far as anybody can find, in any

of the considerable discussion that took place as

to bearing on this particular question about where

the onus lay. The only point we make is that a

lot of thought was given to this Act and a lot of

submissions were received, with respect, to it and

it was well picked over, if I can put it that way,

and yet nobody took the step of suggesting the onus

should -or the legislature did not take the step,

in our submission, of specifically reversing the onus.

(Continued on page 114)

C2T27/2/CM	113
Chugg(2)

MR GILLARD (continuing): Also, we make the point that in

this -

BRENNAN J: What do you say, though, Mr Gillard, about the

proposition that there was a conscious picking up
of the English legislation which was already

subject to the judicial construction being

placed upon it.

MR GILLARD: Well, Your Honour, with respect, that is not

correct. The Health and Safety Act, 1974 was the

common provision which subsequently was used for

all other provisions around Australia and that

always had in a reversal of the onus of proof.

What my friend is saying is, if you look at some

other areas of the law - some other safety-type

regulations - so far as is practicable has

received in England the finding that there is a

reversal of the onus. Now, we would say -

BRENNAN J:  Would you say that there was a picking up of

the English provision on the conscious exclusion

of section 40?

MR GILLARD:  Yes, well, I could say that and I would but

if one is going to look at what our legislature

in Victoria was thinking at the time - and that is

always an interesting question - there was no

established case and no case has been quoted -

and we cannot find a case in Victoria which actually
does reverse the onus using the words "so far as
is practicable". If one then said, "Well, what

really would the Victorian legislature be

concerned about or know about?" you might say,

"Well, if this was nothing more than a legislative

enactment of the COITu."llon law duty of care and

making it a crime to breach i~ then one might

argue that what the Victorian legislature knew

was the burden of proof in a civil case". That

clearly always has been on the plaintiff to prove.

I mean, the only point we can make with respect to the history is that we came along, a long

time after 1974; the English Act reversed the onus;

we had a 1981 Act called the INDUSTRIAL SAFETY

HEALTH & WELFARE ACT, 1981 - I think it was - which

did not reverse the onus. Then subsequent to that

with a new government coming into power - and

this appears at the bottom of page 8 - the government

conducted a review of the legislation in 1983; it

published a discussion paper in March 1983 and

received submissions before introducing the bill

into Parliament in November 1983 and, indeed, from

the extrinsic material that we have available to us, it

appeared that they received some 200 submissions

in relation to this new OCCUPATION HEALTH and SAFETY

ACT.

C2T28/l/DR	114	8/5/90
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The bill was much debated in Parliament and

became law on 30 July 1985. Now, in the meantime,

there is the English Act of 1974 and there is the

New South Wales Act of 1983 which reversed the onus

of proof. Now, what one gathers from all that, I

suppose, is a matter of argument from whatever side

of the brief you might have but one can say that

a lot of thought was given to this Act and,

secondly, that there are some provisions in the Act

which do reverse the onus.

The third point we make, which I think I have

already made, that section 21 is a legislative

enactment of the common law duty of care in

instances of negligent conduct. We refer to the

SWAN HUNTER case which makes that point and if one

was to say, "Well, what would the legislature know?"

then one might think that they would be aware of

the law relating to claims for injuries and that

the burden rests upon the plaintiff throughout.

Well now, Your Honours, from then on - paragraph 14

on - we seek to meet the written submissions of

our learned friends and I am not sure that

Your Honours will be much assisted by me going

through those. They are there. I think they

meet - or we seek to meet - the points that are

made.

Could we say this, that there would appear to

be some cases in New South Wales where, 'so far as

in practicable" has received a construction. We

take that up at the top of page 10, or perhaps at

the bottom of page 9.

(Continued on page 116)

C2T28/2/DR	115	8/5/90
Chugg(2)

MR GILLARD (continuing):  No, at the top of page 5.

Referring to page 5 of their submissions,

KINGSHOTT applied approach in NIMMO and this was consistent with early New South Wales decisions.

Now, my learned friends quoted three New South Wales

decisions and they all - or the first two turn

purely on the Mines legislation in New South Wales

and if one goes to DUFF's case, the Full Court of

New South Wales followed a long line of English cases

on just about precisely the same legislation. Now,

for that reason, we would be saying that those cases

are confined to that particular line of authority

and those particular words.

We then meet the matters that our friends put

with respect to - he said that - this appears

at the middle of page 10, that the magistrate and

Full Court declined to adopt a well-settled approach

to legislation of this type. We would argue that

there is no universal rule with respect to this

type of legislation in Australia and, indeed, as we

have already pointed out, we cannot find any

Victorian case which so establishes it. Then, at

the middle of page 11, my learned friends talk

about the purpose or object to the Act will be defeated

if onus is not put on the defendant and we submit

that that is not so and we go on to make the point

that it is not all that difficult to prove a prima

facie case in civil cases, industrial cases and also

we refer to what Lord Reid said in NIMMO and

Mr Justice McHugh said in KINGSHOTT with respect

to that point.

We also point out at the top of page 12 that the

prosecution does have available to it extensive

powers of investigation. There are provisions in the

Act which give an inspector certain rights and it is

an offence to obstruct. We cannot deny that there is

a provision against incrimination and that appears

in section - if one looks at section 39, you see the

inspector has very wide powers and then section 40

talks about other provisions in relation to

inspections. Section 40(8) does provide, however, that:

No person shall be required under section 39

to answer any question or give any evidence

tending to self incrimination.

Even though that is there and it is obviously

deliberately put there, nevertheless, the inspector

does have very wide powers to investigate; they

invariably do, we are obliged to give notice of

accidents and, indeed, in this case, I think, the

evidence showed that the inspector was there that

afternoon, so they do have fairly wide powers of

investigation.

C2T29/l/JH	116	8/5/90
Chugg(2)

DAWSON J:  Does an inspector qualify as an expert?

MR GILLARD:  I suppose he could. It depends on his

bafkground and his experience, Your Honour, with

respect to reasonable, practical steps and that

type of thing.	I suppose he could; I do not know
that they do.	I think they - well, in this case

they got outside experts.

Then my friend talks about the difficulties

of getting their case together and we make the point

that that has not been a difficulty in the past and

it should not be a difficulty here and, indeed, here,

in this case, they did call their experts and on one

view they say they establish their case.

That brings me up to page 14 and we say that

the reasoning of the minority in NIMMO's;

Justice McHugh in KINGSHOTT and the Full Court is

correct and it should be followed. We then make the

submission about section 168 and we have referred

Your Honours to the reference to BARRITT V BAKER

quoted by Justices Kayeand Beach at pages 372-373.

(Continued on page 1J8)

C2T29/2/JH	117	8/5/90
Chugg(2)

MR GILLARD (continuing):  So, in our submission, applying

basic principle here, a question of construction,

that the question of what has to be provided is

an integral or essential part of the offence, that

it is a failure to provide that that constitutes

the breach. In our submission, the burden throughout

is on the prosecution and section 168 does not

alter that.

Well, now, that then brings me to the second

issue and the question of whether or not the
magistrate was wrong in dismissing the two

informations. It is an interesting question whether

Mr Justices Kaye and Beach did make the error that

they are alleged against them. We would submit that

on one view of what they are saying, this is at page 374,

that they are saying no more than that the evidence

on practicability fell short of proving it beyond

reasonable doubt. Now, it cannot be denied, as indeed

you tend to find with experts in these cases, that

Mr Viner came along and said practical steps could be

taken to guard the machine. Now, that cannot be

denied but practicable and determining what is involved

in the duty herP. on this day depends upon knowledge

of the risk and various other aspects are practicable and,

in our submission, that is all that Their Honours are

saying. Perhaps they went too far to saying:

Having withheld from leading any evidence

in relation to this essential element .....

the informant failed to discharge the onus.

And on another view, in our submission, they are saying
no more than that they failed to properly address

all the aspects of what was practicable in the

circumstances and that does involve risk that was

involved on that particular day and it is a little

bit hard to believe that two experienced judges

like those two, especially in the corrnnon law areas, would have failed to realize that Mr Viner did give

some evidence about what steps could have been
taken.

But, in our submission, that is not the real

point here,it really comes back to what the

magistrate did; whether or not this Court should

interfere and whether or not he was satisfied beyond

reasonable doubt. Now, let us be frank, he did not

perhaps set out his judgment as well he might but

in the end result he was not satisfied that the two

informations were made out. And perhaps if we go

back to what the magistrate did say, at 345. Now,

it is an interesting question whether practicable,

if one considers what is practicable and one then goes

to the definition, well, first of all we would submit

C2T30/l/JL	118	8/5/90
Chugg(2)

that practicable has to be tested objectively.

In other words, you could not defend yourself by saying, "Well, I just did not know anything about

it", in other words "I shut my eyes to the obvious",

so it must be objective. In other words, one considers

what the reasonable employer would have done in those

circumstances, based on the knowledge that was

available or should have been available at the time,

and therefore you do test then, "Well, what was the

severity" in other words the gravity,'bf the hazard
or risk in question on this particular day."

Now, we submit that the weighing up of those factors do import a reasonable foreseeability test, in

other 'M)rds, or even· just a foreseeable test, that in

considering what risks there were to this reasonable

employer one has to consider what was reasonably

foreseeable about the risks that were involved.

In our submission, it just could not work if we do not

have that type of test. Now, if that be so, is the

magistrate saying anything different on page 344 when

he says:

(Continued on page 120)

C2T30/2/JL	119	8/5/90
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MR GILLARD (continuing):

In my view, the above passages,

quoted from the judgments above clearly

show that an employer is entitled to

rely in his defence that the consequences

were not reasonably foreseeable.

Now, admittedly those cases have been quoted before. It did not have a great deal to do with

section 21 and section 4 but, in our submission,

it does show that he had in his mind that one of

the matters that he should take into account was

whether or ot the consequences were reasonably

foreseeable. Now, if one then goes over to the first

information and consider that the allegation is he:

was able to gain access to the trapping
space ..... and the frame ..... on which he

was carrying out maintenance in accordance

with his duties -

and then consider his findings that he made on the next

page, that he is saying in a sense, if you talk about

the gravity of a hazard or risk in what Mr Everest

was doing on this day, he is saying that there was

no real risk in the circumstances because of the factors

that he has stated but, in particular, that - this

is finding 4:

That the defendant could not have foreseen

the malfunction of the hopper door because
of the modifications which were carried

out on 25 October.

Now, as I understand it, you had the modifications

carried out to ensure that whenever the discharge

door was opened underneath the hopper door was shut.

That was the object of the exercise. It was then

ascertained that in the course of the automatic process

you could not manually override it. So the object of

what Mr Everest was doing on this day, as I understand

it, was to change the pneumatics and to end up with

the result whereby there would be a manual override.

Now, what the magistrate is saying there is that it was expected that once that procedure was

carried out, then that would override the automatic

process and when he says there that:

the defendant could not have foreseen
the malfunction of the hopper door because

of the modifications which were carried out

on 25 October -

that is what he was saying. Now, you look at the

question of the severity of the risk and you say,

C2T31/1/HS	120	8/5/90
Chugg(2)

"Well, am I satisfied beyond reasonable doubt that

there was a risk?". Now, in our submission, he is

saying no more than that but in the end result he

says the information has not been proved and he

therefore dismisses the information. If one then

goes to the second information, and that is that

we did not have any:

system of work in place to ensure
that the interaction of the electrical
and hydraulic systems ..... did not result

in danger -

he comes to further conclusions and there is no

reason why one should not build on his first conclusions.

He then says:

That the electricial modifications

carried out on 25 October ..... had an

unforeseeable consequence.

Now, that is the point he is making about the

malfunction. Again, in our submission, the magistrate

is saying no more than, "I am not satisfied beyond

reasonable doubt that the information is made out".

Even if Justices Kaye and Beach did not quite

appreciate the evidence that had been given, if one

goes back to the original findings, in our submission

there is an ample justification for the dismissal of

these two informations and, indeed, if one talks about
double jeopardy or triple jeopardy, if we have to go
back for another round in this case, the case will

never end.

I should say on page 15 that I have said in

our submission the elements involved in the definition
of "practicable" involve weighing up the factors and

the question of foreseeability, in our submission, must

be relevant to those factors.	I have then said
AUSTIN-ROVER case supports this argument.	Now, that
is incorrect. If one looks at the AUSTIN-ROVER case

you will find, as indeed emerged this morning, that

the words were "reasonable precautions". The words

were already in the statute and the statute itself

did in fact indicate that the foreseeability aspect

was there, so that does not support that

proposition.

(Continued on page 122)

C2T31/2/HS	1 2 1
Chugg(2)

ii:

MR GILLARD (continuing):  So, it is our submission that the

appeal should be dismissed with costs.

If we could now come then to the appeal by

Pacific Dunlop with respect to the regulation charge.

Have Your Honours got the Occupational Health and

Safety (Machinery) Regulations 1985? Now, one goes

to regulation 10.

DAWSON J:	Which one is that, Mr Solicitor?
MR GILLARD:	Regulation 10. Now the heading is:

Part IV - Guarding of Dangerous Machines

Division 1 - General.

Regulation 10:

Notwithstanding anything in these Regulations

to the contrary, every employer or occupier

of a workplace shall provide guards for -

(a) all dangerous parts of the plant of

a workplace ..... so as to prevent as far as

practicable loss of life or bodily injury.

Now, we are being charged under l0(a). It is

interesting to note regulation 11:

Every employer, occupier ..... shall ensure

that all guards shall be -

(a) solidly constructed:

(b) securely mounted; and

(c) constantly maintained in an efficient

state and subject to these Regulations

properly adjusted and constantly kept in

position while the plant is in use or in

motion.

Now those extra words, "whilst in use or in motion",

appear to be an addition to the statutory framework
compared with the previous provision.	I think the

Court Crier, Your Honours, has copies of the

LABOUR AND INDUSTRY ACT - perhaps Your Honours

now have it. By that I mean it is an extract -

a photostat page of section 174, we handed them up

this morning - just one page, and it sets out

section 174, which was the predecessor of this provision and you will note, Your Honours that section 174 provides that:

C2T32/l/FK	122	8/5/90
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Every occupier -

(a) of a factory, shall provide guards

for

(i) all dangerous parts of the machinery

of the factory -

and then going further dovm:

so as to prevent as far as possible loss

of life or bodily injury and shall keep all

such guards constantly maintained in an

efficient state and properly adjusted.

Then, in 1981, we have the INDUSTRIAL SAFETY

HEALTH AND WELFARE ACT, and we have handed up a

photostat copy of the section there, and it is

precisely the same, section 16.

(Continued on page 124)

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MR GILLARD (continuing):  What these regulations have done is

to divide up that single provision in both those

Acts into two parts and it is interesting to note

that they have added the words that those guards

must be:

in position while the plant is in use or in

motion.

We were charged - and I will take Your Honours

to the charges, at page 1 of the appeal book,

volume 1. It alleges, at line 3:

that the said defendant on the second day

of November 1985 being the occupier of a

workplace at 68 Cross Street Footscray

did fail to provide guards for a dangerous

part of the plant of the workplace to wit
the hopper section of a Banbury Mill,
factory number six, so as to prevent as far
as practicable loss of life or bodily injury

in contravention of the provisions of

Regulation 10.

So you will note it is alleged that we-have committed

this offence on that date, namely 2 November. That

date was a Saturday and the evidence clearly showed

that this Banbury Mill was not in operation on that

day, in other words, the factory so far as activity

was concerned with respect to manufacturing was

closed and that what Mr Everest was doing on this day was a modification of the various valves on a

control panel some distance to the side of this

hopper door. So it is that day that we are alleged

to have committed the offence and I emphasize that for

reasons which will become apparent in a moment.

If we go over the page to-page 2 we submit that

the prosecution has to prove beyond reasonable doubt

those elements which are set out there.	Your Honours,
the issue comes down to this in this case: do you

test whether there was a dangerous part of the

plant by considering what this machine was meant to

do. In other words, do you test it by saying,

"Admittedly, it was not working on this day but if it

had been your guard was not good enough" or do you test what is dangerous by considering all the

facts that were prevailing on that day, in other

words, the circumstances that were prevailing on

that day?

Now we submit that you consider what is dangerous

by looking at the facts which were existing on that

day and you do not test it by saying, "Well, if the

machine was running on that day you committed a

breach" because it has to be on that day that there

was a dangerous part of the plant.	The majority
of the Full Court said -

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TOOHEY J: Is that right, Mr Gillard, or is it on that day

that the employer must fail to provide guards or

what is - - -

MR GILLARD:  A dangerous part of the plant, yes. We have to

prove all those elements.

TOOHEY J:	But that is the same thing?
MR GILLARD:	The first step in the chain is to say on that

day this Banbury Mill was a dangerous part of the

plant of the work place. We say that if it is not

working on that day, then you have to look at it

in that way. You do not look at it as if to say,

"Well if it did work on that day, you were in

breach", and, indeed, it cannot be denied if that

is the test we were in breach because even though -

and let me say this, that we abandon

the second point under this appeal which is that
the conveyor did constitute a guard because in
the light of the evidence it did stop people getting

into the hopper door or getting near the hopper

door from the front but it could not be denied
that you could get into it from the side even if

the conveyor was in place, so we abandon that.

So if you test whether it was a dangerous part of

the plant by saying, on that day, if it was operating,

it was clearly dangerous, then we accept the

conviction. But we submit that you have to consider

the plant on that day, taking into account all the

circumstances and decide the question was it a

dangerous part of the plant on that day, bearing

in mind it is not operating at all.

(Continued on page 126)

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MR GILLARD (continuing): Now, of course, we do not deny

that if it was going to be repaired on that day

or there were various other aspects about it,

that that would not be taken into account. That

would be, because you again would test those

circumstances by looking at what the authorities

have said is meant by "a dangerous part of the

plant".

BRENNAN J:	What activated the hopper door?
MR GILLARD:	What, on this particular day?

BRENNAN J: Yes.

MR GILLARD: It would appear, Your Honour, that having

carried out the modifications, the manual override
did not in fact stop the hopper door closing and
that, in other words, the object of the first

modification was to make sure if you ever opened

the discharge door at the bottom, the hopper shut

so you could not put anything in and you would not

lose the rubber right through. Now, as I understand

it, the manual override was meant to override

all this and it would appear that having carried

out the modifications, the original process came

into operation and that the discharge door being

opened, the hopper door must have closed. Now

why Mr Everest was there and why he put his head

in there is purely and simply a matter of

speculation and indeed one could not make a finding.

Now the Full Court said you look at the machine

on that day.	You did not guard it on that day so
that is the end of the matter.	Now we say, with
respect, that is not correct.	You have got to

look at the circumstances on that day and say, "Is

this machine a dangerous part of the plant of the

workplace?". Now, perhaps I could take Your Honours

to how Justices Kayeand Beach dealt with this, and

then, in our submission, we will submit that their

approach was wrong. 374.

BRENNAN J:	What is the question of law that falls for
determination, Mr G  i 11 ard?
MR GILLARD:	The question of law is, when you consider the

test of what is dangerous laid down in the

authorities, do you apply that test to the

circumstances that were prevailing on that day

with respect to the particular activity, or do

you look at it on the basis of saying, "That machine,

if it had been operating on that day, it was

dangerous in those circumstances".

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MR GILLARD (continuing):  Now, we submit that you should look

at all the circumstances and look at the particular

activities on that day to determine whether or not

it is dangerous.

TOOHEY J:	Does that emerge from your notice of appeal?
MR GILLARD:	I would like to think it did, Your Honour.

TOOHEY J: Assuming I have the right notice of appeal - these

headings are a bit deceptive - but it is at page 462.

MR GILLARD:  No, that is not ours, I do not think, Your Honour.

It is theirs. Page 435, in our submission,

ground B - that the learned appeal judges Kaye and

Beach were wrong in law in holding that the test

of dangerousness of the plant was to be applied in
circumstances of when the machine was being

operated in the normal working mode and not to be

tested by a reference to the particular circumstances

then prevailing.

TOOHEY J: Yes, thank you.

MR GILLARD:	Well now, can I take Your Honours to how they approached it because they were not impressed with
our argument.  At page 374 - at the bottom of
page 375 they refer to the information - perhaps
we should just add in what the magistrate said and that appears at page 375, line 17 to 27:

"On the evidence I have come to the

conclusion that the hopper door was a dangerous

part of the Banbury Mill. In my opinion once

it is established that a part of the machinery

is dangerous, then the duty on the defendant
is absolute, provided it was feasible to

provide guards. On the evidence I am satisfied

that the breach of Regulation 10 has been

proved."

Then, at the bottom, Their Honours say:

The case for the defendant in relation to this

particular information was that it was not

open to the Magistrate to find that the

hopper was a dangerous part of the mill on the

day in question.  The mill was not being

operated that day. Everest was only making
modifications to it to rectify the problem

which had arisen concerning the pneumatic

system.  The defendant could not have

reasonably foreseen that Everest would test the machine, that in the process of testing

it he would place his head and the upper

portion of his body in the hopper, and that
whilst in that position the machine would

malfunction causing the hopper door to close

C2T35/l/DR	127	8/5/90
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thereby crushing him. It is next said that if

the hopper was a dangerous part of the

machine, the conveyor, when in position, was

an adequate guard.

Well, we need not worry about that - or perhaps I

should go on -

The fact that it was not in position at the

time the accident occured is not to the point.

The machine was not to be operated that day. The conveyor had been removed to enable work to be carried out on it.

Now, there is no evidence that that is so, though that may not be of great moment -

In that situation it could not be said that

the defendant had failed to provide guards

for the hopper section -

they then refer to DUNLOP AUSTRALIA V BUCKLEY and -

the High Court considered the provisions of

s. 33 of the FACTORIES AND SHOPS ACT which

provided that the occupier of a factory

shall securely fence all dangerous parts of

the machinery therein. In dealing with

the meaning to be attributed to the word

"dangerous", Dixon, CJ said:

"The word 'dangerous' in the section has been

the subject of some judicial examination and

its meaning may be taken to be settled by
authority. At the one extreme dangers are

to be excluded from consideration which are only the result of the deliberate action of individuals or of action which could not be reasonably anticipated.

We emphasize those words: 

or of action which could not be reasonably

anticipated.

(Continued on page 129)

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MR GILLARD (continuing):

At the other extreme, it is to be recognized

that the purpose of the provision is to see that the workmen are protected, even though

from consequences of their own lack of care,

inadvertence, mistakes or even foolishness.

Further, the kind of dangers to be considered

includes dangers to persons who may come

into the proximity to the machine, although
not at work upon it, as well as to persons

who operate the machine or whose work takes

them to it. In HINDLE V BIRTWHISTLE, Wills J

said that machinery or parts of machinery

is or are dangerous if, in the ordinary

course of human affairs, danger may be

reasonably anticipated from the use of them
without protection, and added, that the
contingency of carelessness on the part

of the workman in charge of it and the frequency

with which that contingency is likely to

arise are matters that must be taken into

consideration.

And just pausing there, about the carelessness

aspect, that has particular relevance to repetitive

type work where people are doing all types of

work but it is of a somewhat repetitive nature,

that in the end they will cut corners and do

careless things and, clearly, the duty extends

that far.

His Lordship said:

He described the question as entirely a

question of degree. In WALKER, du Parcq J

quoted the observation of Wills J and said

if he were to venture to expand a little

what his Lordship said he would say, and

he thought he was saying nothing inconsistent

with what that learned judge had said, that

a part of machinery is dangerous if it is

a possible cause of injury to anybody acting

in a way in which a human being may be
reasonably expected to act in circumstances

which may be reasonably expected to occur.
These authorities were applied to analogous

language ins 55 of the COAL MINES ACT in

SMITHWICK V NATIONAL COAL BOARD. Tucker LJ

adopted from a textbook the statement that

the behaviour of human beings that has to be regarded

is such behaviour as is reasonably foreseeable, which is

not necessarily confined to such behaviour as is
reasonable behaviour, and went on to say: 'An employer,

of course, has to contemplate acts of carelessness, acts
of negligence, and so on, but he has not to fence what

would otherwise be a dangerous part of the machinery which is really inaccessible and to which no ordinary reasonable

workman would be expected to go anywhere near or to come

into contact with in any way'.

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MR GILLARD (continuing):

Denning, L.J. said: 'I think that the

test for this purpose is substantially

the same as the test whether machinery is

'dangerous' within the Factories Act,

1937. It is 'dangerous' if it is such that

it may reasonably be foreseen to be a source

of injury to people who may be in the vicinity,
taking them with all the ordinary infirmities

to which human nature is prone. The occupier

must realize that not everybody is careful:
many are hasty, careless or inadvertent; some

are unreasonable, or even disobedient. It may

be unlikely that they will act in such a way,
but it is not only the likely but also the

unlikely accident against which the occupier must

guard.	He must guard against all conduct which
he can reasonably foresee.	The limit of his

responsibility is only reached when the machinery

is safe for all except the incalculable

individual against whom no reasonable foresight

can provide - the individual who does not

merely do what is unlikely, but also what is

unforeseeable, or, at least, not to be foreseen

by any ordinary man.'

BRENNAN J:  How does this apply in relation to repairing

machinery. What if you have got a series of rotating

knives or a ..... and people have to go

and put new knives in or get inside and do

some welding, somebody starts it up - there is no

prospect of survival?

MR GILLARD:  Yes, Well, that, in our respectful submission, is

the point here, that really this type of provision

is not aimed at this and, indeed, I think the

authorities tend to support that, that the object of

this provision is to protect the operator or somebody

who comes in to near vicinity while it is being in

operation. And, indeed, that is the interesting

part about those words being added in regulation 11,

":in use or ill m:Jtion". They were not in the old

provision. There are cases in England which say

that those words clearly mean that you can only be held

to breach that provision when the machine is in use
or in motion and you fail to provide and maintain

the guards.

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BRENNAN J:  Are there any cases which deal with the position

of people repairing machinery?

MR GILLARD:  There is that case that we handed up this

morning but not on this direct point but on a

provision which said that since they were repairing it

and it was not in use or motion, therefore, the

provision which related to maintain the guard while

it was in use or motion was not an offence. But

my friend is going to, no doubt, say, "Well, look

we're looking at regulation 10; we're not looking

at regulation 11 and we ought to test it in that way".

The case that - I think we handed it up to

Your Honours this morning - is RICHARD THOMAS V CUMMINGS,

(1955) AC 321 and I will from the headnote; I

will not go to the judgments or the speeches. It says:

By sections 13(1) and 14(1) of the
FACTORIES ACT, 1937, every part of

transmission machinery and every dangerous

part of any machinery other than prime

movers ..... shall be securely fenced unless

it is in such a position or of such

construction as to be as safe ... as it would

be if securely fenced. By section 16: "All

fencing or other safeguards ... shall be ... maintained and kept in position while the

parts required to be fenced or safeguarded

are in motion or in use, except when any

such parts are necessarily exposed for

examination and for any lubrication or

adjustment shown by such examination to be

irrnnediately necessary ... ".

The facts were:

A fitter employed in a factory was injured while helping another workman to make

adjustments in an electric power-driven

grinding machine. The motive power had been

cut off and when it became necessary, in

order to rotate the face plate, for the

purpose of carrying out the work on which

he was engaged, he pulled on one of the

belts through which electric power was

normally transmitted. In so doing he crushed

his fingers between the belt and a pulley.

He sued his employers for damages, alleging

breach of statutory duty.

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MR GILLARD (continuing):

machinery was not "in motion or in use 11	Held, that at the time of the accident the
within the meaning of section 16, but for
repair, and accordingly there was then no
obligation to fence it and no breach of
statutory duty.

Lor Oaksey said:

A machine is not 11 in motion" within section 16

if it is not in motion for the purposes for

which it was intended.

Lords Porter and Tucker :

A machine is not 11 in motion" when it is turned

by hand and there is no motion in the prime

mover.

Lord Reid and Lord Keith:

"In motion11 imports a continuing state of

motion lasting or intended to last an

appreciable time.

TOOHEY J;	I am sorry, Mr Gillard, I do not appreciate the
relevance of this decision to regulation 10.
MR GILLARD:	The only point we make, Your Honour, is that

regulation 11 only applies when the machinery is

in motion and if that is correct, in our submission

that comes from the words themselves, your obligation

CM	to keep them there, then in our submission when you consider regulation 10 that tends to support our proposition that you are looking at guarding in
circumstances which apply at the particular time.
We do not rely on it any more than that, with
respect to this provision.

But it comes back to what Justice Brennan put

to us. The question is well, really, is this

regulation applicable in circumstances where you are

in a state of repair. Now, we have not been able

to find any direct authority on the particular point

before the Court but we submit that you have got to

look at the machine on that day in those circumstances

to determine whether or not it is dangerous and you

would look at all the circumstances. Now, our

Full Court just said, forget the circumstances; it

would just make nonsense of the regulation; on that day you did not have it properly guarded, and that is

the end of the matter.

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DEANE J:	I do not quite follow the function of the side door
that you concede should have - - -

MR GILLARD:  At the side of the hopper. If the hopper door

comes out here, Your Honour, and you have a

conveyor running this way, a person could come on

the side and put his hand in the hopper door and it

was suggested, indeed, if you are looking at the normal

operating mode, I do not think we can argue that it

was properly guarded because of that possibility.

DEANE J: Well, did this employee working on the machine need to

get into that area?

MR GILLARD:	Not at all. That is what we say, and - - -
DEANE J:	Well then, if the machine is going and he is working
on it, but with no need to be in that area, why is not the absence of the guard relevant to him the
same way as it is to everybody else performing a
function that does not require them to go into that
part of the machine?

MR GILLARD: Well, we come back to the foreseeability point

about, it was not operating on that day - the

hopper door was not moving on that day, or should
not have been moving and that it also was not

foreseeable that this malfunction would occur.

DEANE J:	But it was foreseeable that if that access was
unguarded in circumstances where the machine was
working, it was dangerous to anybody within the
area and whatever be the reason, the machine was working and it was dangerous to an employee in the
area. I mean, surely it is not a defence to say,
"Well, we knew it was dangerous whenever it would
be working.  We knew it would be working on
occasions.  An employee was injured when it was
working but we did not know it would be working on
that particular occasion"?  (Continued on page 134)

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MR GILLARD: Well, it is the latter point that we rely on,

Your Honour, that if you stand back from this and say, "Well, what was he doing on this day?" and

taking into account all the circumstances about

what was intended and what was hoped, that in

those circumstances it was not a dangerous part

of the plant on that day in those circumstances.

DEANE J: That is like saying if you turn off the plant at

lunch-time and unexpectedly somebody turns it on

at lunch-time and somebody is injured because you

have not guarded it, that it is no defence because
you could not reasonably be expected to anticipate that it

would be turned on at lunch-time.

MR GILLARD: Well, that is the point we make, Your Honour.

That is what the test of dangerousness postulates,

in our submission, that you have to stand back and

look at that and say was it reasonably foreseeable,

in those circumstances, that that individual would

do what he did. Now, each case will depend on its

own particular set of circumstances. And it may be

the individual you are talking about happens to be

some fellow who got into the place who had nothing

to do with the place at all but just happened to

be - a burglar or a thief or something and he

happened to get in there and turn the thing on.

Now, if you postulate those set of facts you might

say, "Well, look, we'd locked all the doors and

there was nobody in the factory and we never expected

anybody to be operating at that time."

DEANE J:  But the fact is that you had a machine which would

operate, which was intended to operate and which

was not properly fenced and when, whether you

expected it to be operating or not at that

particular time, it was operated, it was a

danger to an identified employee.

MR GILLARD:  Yes. Well, I accept that on what Your Honour

has put to me that must be so for what happened before

1 o'clock, that it was operating,but this is

different in these set of circumstances because on

this day it was not operating. It was not expected
to operate and so, in our submission, you have got
to look at the particular circumstances and apply

the test of dangerousness. Now, of course, I accept,

if it had been operating on that day, I have got to

concede that my conveyor did not stop people getting

in on the side despite the fact there was 30 years'

use and nobody had ever done it before

but I cannot deny that if you stood back there was

that risk. So, that is the issue, Your Honours.

GAUDRON J: Were not the facts such that it was inevitable

that the power was going to be switched on some time

during that day to find out if the modifications

had worked?

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MR GILLARD:  Yes.

GAUDRON J: Because, really, it was a just giant mixmaster with

a lid over it.

MR GILLARD:	Yes, it certainly was.
GAUDRON J:	And if the question was did it work or did not work,

you had to switch it on.

MR GILLARD:	Yes.
GAUDRON J:	And did you not then have a situation where if you are working in and around a machine - mixmaster, if
you like - with an electric current going through it, and you can put your finger in, for example, to some place where the current is exposed, it is
dangerous, or you can put your finger in and trip it to work so that you get caught.
MR GILLARD:	But, Your Honour, he is not operating this machine

to shovel rubber into it.

GAUDRON J:  No.

MR GILLARD: If he was, a different kettle of fish - - -

GAUDRON J:  But he has to put it into working mode to see if

it works.

MR GILLARD:  But there is no reason for him to go anywhere near

it. I mean, that is the point. He was to see that

the manual override operated so that he could stop
the automatic cycle and there was no reason for him

to go and put any part of his body anywhere near

that trapping space.

BRENNAN J:	Mr Gillard, what happened on Saturday is alleged
to be a failure to provide guards.
MR GILLARD:	Yes, to a dangerous part of the plant.

BRENNAN J: Yes. If you go forward to Monday morning, this

would have been a dangerous part of the plant.

MR GILLARD: For a normal operation? Answer: yes.

BRENNAN J: Well now, how is it that it is a dangerous

part of the plant on one day but not on another?

MR GILLARD:  Because if one stands back and looks at the normal

operation, and bearing in mind a man is working at

it, he would have the potential to trap his hand if he

was silly enough to go down the side and put some

rubber in by hand and - cannot be denied but, on Saturday, it was not operating and one must test dangerousness, in our submission, on that day, by

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reference to the circumstances of that

day.

DEANE J:  What if it had injured Mr Everest on Monday when he

was repairing it?

MR GILLARD: Well, if one assumes it was operating on that day,

I suppose the prosecution would say, "Well, whether
it caught Mr Everest or anybody, it was dangerous

on that day for the use it was going on." and,

again, it would depend on the circumstances.

T43	But that is the one issue, Your Honours, and as I say,
the Full Court said, "No" and we submit that you have got to look at the circumstances otherwise you make
a mockery of the test of dangerousness.

BRENNAN J:  How much longer do you think you would take to

develop that, Mr Gillard?

MR GILLARD: Probably not much longer, Your Honour.

BRENNAN J: Yes. Perhaps we could inquire of Mr Dwyer. What

is your estimate, Mr Dwyer?

MR DWYER:  If the Court pleases, I would say about 20 minutes on
both matters.

BRENNAN J:  Yes. Mr Ward, are you able to give us a closer

estimate at this stage?

MR WARD: ..... half an hour to an hour.

BRENNAN J:  Thank you very much. Mr Gross, what is your - - -

MR GROSS:	Your Honours, we think 20 minutes for our own part.
Might we, to fit in with that timetable, hand up to
Your Honours supplementary written submissions we have
prepared which embody much of what we intended to say
orally?

BRENNAN J: Yes, thank you, Mr Gross.

MR GROSS:  I have nine copies here. My friend has a copy.

BRENNAN J:  Mr Gillard, you might bear in mind, before you resume

your submissions tomorrow, the questions of the

limitation of special leave in the first application -

MR GILLARD:	Yes, if Your Honour pleases.
BRENNAN J:	- - - which bears upon our consideration, of course,

of your substantive appeal.

MR GILLARD:	Yes.
BRENNAN J:	The Court will now adjourn until 10 am tomorrow morning.

AT 1.08 PM THE MATTER WAS ADJOURNED

UNTIL WEDNESDAY, 9 MAY 1990

C2T43/l/PLC	136	8/5/90
Chugg(2)