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Patrick Stevedoring Pty Ltd v Chasser (Victorian WorkCover Authority)

Patrick Stevedoring Pty Ltd v Chasser (Victorian WorkCover Authority)

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Case Copied 23 November 2011 72 min read

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

BETWEEN

S CI 2011 00727

PATRICK STEVEDORING PTY LTD (ACN 007 427 652)	Appellant
and
JAMES REID CHASSER (VICTORIAN WORKCOVER AUTHORITY)	Respondent

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JUDGE:	OSBORN J
WHERE HELD:	Melbourne
DATE OF HEARING:	7-8 November 2011
DATE OF JUDGMENT:	23 November 2011
CASE MAY BE CITED AS:	Patrick Stevedoring Pty Ltd v Chasser (Victorian WorkCover Authority)
MEDIUM NEUTRAL CITATION:	[2011] VSC 597

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INDUSTRIAL LAW – Occupational health and safety – Offences – Discrimination against an employee because employee has raised a concern about health or safety – Appeal from Magistrates’ Court on questions of law – Whether Magistrate failed to apply subjective test to defendant’s motive – Onus on defendant to establish dominant reason for conduct – Whether Magistrate’s conclusion as to relevant factors open – Whether employee suffered injury in circumstances where no actual loss of pay – Magistrate’s conclusions as to dominant reason open – Whether Magistrate failed to give adequate reasons for sentence – Limitations on appeal on questions of law raising issues of fact relevant to sentence – Whether manifest excess raises question of law – Whether sentence manifestly excessive –Whether current sentencing practice for relevant offences exists – Whether aggregate sentence disclosed error in sentencing – Magistrate’s reasons for sentence disclose no error – Appeal dismissed – Occupational Health and Safety Act 2004, ss 76, 77 – House v The King (1936) 55 CLR 499.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Dr D Neal SC with Mr R Dalton	Freehills
For the Respondent	Mr H Borenstein SC with Mr P Rozen	Victorian WorkCover Authority

TABLE OF CONTENTS

The first issue - motive...................................................................................................................... 3

The evidence....................................................................................................................................... 4

The Jacamar Arrow........................................................................................................................... 12

The Magistrate’s conclusions on motive...................................................................................... 19

Ground 1............................................................................................................................................ 20

The first factor.............................................................................................................................. 21
The second factor........................................................................................................................ 23
The third factor............................................................................................................................ 25
The fourth factor.......................................................................................................................... 29

Ground 2............................................................................................................................................ 30

Ground 3............................................................................................................................................ 31

The second issue – was it open to the Magistrate to make a finding of ‘injury’ in the relevant sense 35

Ground 4............................................................................................................................................ 37

Ground 5............................................................................................................................................ 37

The third issue – sentence.............................................................................................................. 38

Ground 7 – current sentencing practice....................................................................................... 41

Ground 8 – the imposition of a conviction.................................................................................. 42

Ground 9 – manifest excess............................................................................................................ 43

HIS HONOUR:

On 3 February 2010, Carlin M found the appellant (‘Patricks’) guilty of three charges pursuant to the Occupational Health and Safety Act 2004 (‘OHS Act’), namely:

Charge 1: causing injury to an employee for the dominant reason that he raised a health or safety concern;

Charge 2: altering the position of an employee to his detriment for the dominant reason that he raised a health or safety concern; and

Charge 5: threatening to dismiss an employee for the dominant reason that he raised a health or safety concern.

Patricks now appeals on questions of law, which address three underlying issues.

The first issue is whether the Magistrate erred in law in reaching the conclusion that she…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2011] VSC 597
Decision Date: 23 November 2011

CaseChat Overview and Summary

The case of Patrick Stevedoring Pty Ltd v Chasser (Victorian WorkCover Authority) involved a dispute regarding occupational health and safety offences. The defendant, Patrick Stevedoring Pty Ltd, was charged with multiple offences under the Occupational Health and Safety Act 2004 for actions taken against an employee who raised concerns about health and safety. The employee, Chasser, appealed the decision of the Magistrates’ Court to the Supreme Court on questions of law, challenging the Magistrate’s handling of the case and the sentence imposed. The central legal issues revolved around whether the Magistrate had correctly applied the necessary subjective test to determine the defendant’s motive, the burden of proof concerning the dominant reason for the defendant’s conduct, and the adequacy of the reasons provided by the Magistrate for the sentence.

The Supreme Court found that the Magistrate had not erred in applying the subjective test to assess the defendant's motive. It was established that the onus was on the defendant to demonstrate that the dominant reason for their conduct was not discriminatory. The court concluded that the Magistrate's assessment of the relevant factors was open to reasonable interpretation. Furthermore, the court held that the employee did not need to suffer an actual loss of pay to be considered injured under the Act. The Supreme Court determined that the Magistrate’s conclusions regarding the dominant reason were not flawed and that the reasons provided for the sentence were adequate. The court also noted that the appeal was limited to questions of law and that any issues of fact relevant to the sentence would generally not be reviewable.

The court further addressed the argument that the sentence was manifestly excessive, considering whether there was a current sentencing practice for similar offences and whether the aggregate sentence revealed an error in the sentencing process. It found that the Magistrate’s reasons for the sentence did not disclose any error, and the appeal was ultimately dismissed. The Supreme Court upheld the original decision, confirming the applicability of the Occupational Health and Safety Act 2004 and referencing the decision in House v The King (1936) 55 CLR 499 in support of its ruling.

Orders