Porteous v McMartin; Romcke v McMartin

[2007] HCATrans 311

[2007] HCATrans 311

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S45 of 2007

B e t w e e n -

RICHARD MYLES PORTEOUS

Applicant

and

INSPECTOR STEPHEN FINLAY McMARTIN

Respondent

Office of the Registry
  Sydney  No S46 of 2007

B e t w e e n -

JONATHAN ERIK HUMPHRIES ROMCKE

Applicant

and

INSPECTOR STEPHEN FINLAY McMARTIN

Respondent

Applications for special leave to appeal

GLEESON CJ
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 JUNE 2007, AT 10.53 AM

Copyright in the High Court of Australia

__________________

MR B. WALKER, SC:   May it please the Court, I appear with my learned friends, MR B. HODGKINSON, SC and MS W.G. THOMPSON, for the applicant in the matter of Porteous.  (instructed by Truman Hoyle)

MR T.A GAME, SC:   If the Court pleases, I appear with my learned friends, MR D. JORDAN and MR S.E. PRITCHARD, for the applicant in the matter of Romcke.  (instructed by Sparke Helmore Lawyers)

MR S. CRAWSHAW, SC:   If the Court pleases, I appear with my learned friends, MR B.G. DOCKING and MR A.M. SLEVIN, for the respondent in both matters.  (instructed by Slater & Gordon)

GLEESON CJ:   Mr Walker and Mr Game, is it convenient to deal with these matters together?  I realise there are separate issues.

MR WALKER:   Yes, it is.

MR GAME:   Yes, your Honour.

GLEESON CJ:   I am not suggesting by that that you will have to divide the 20 minutes between yourselves.

MR GAME:   I think that Mr Walker might deal with one part of it and I might, as it were, clean up, with respect, of a separate issue that arises in my case, your Honour.

GLEESON CJ:   Is the part of it that you are planning to deal with the constitutional part of it, Mr Walker?

MR WALKER:   I am going to deal with that without, I am sure, precluding my friend, Mr Game, cleaning that up as well if he needs to.

GLEESON CJ:   Yes, Mr Walker.

MR WALKER:   Your Honours, there is a clear division in the issues that are raised by this application but the issues raised by this application concern some issues about the application and not just issues that we would seek to have ventilated in an appeal were special leave to be granted. Because this Court ought to resist the raising or decision of constitutional questions except in cases of necessity to address them, we accept that it is, first, important for us to seek to persuade your Honours that the prospective appeal raises a point which itself has merit were special leave available because it would be an appropriate course for your Honours to follow, with respect, to shelve the constitutional question and simply say that it does not arise in this case because even if special leave were available, this would not be a suitable case. 

However, may I nonetheless at the outset turn to the question which the making of the application raises and not the seeking of the appeal.  It is clear on the face of the written submissions that the respondent’s approach to this case is that our application is incompetent, that we seek special leave to appeal from a Court which is not within the purview of the Judiciary Act and the constitutional provisions in question. In our submission, that is a very important issue and if there is sufficient possible merit in the characteristics of our proposed appeal for attention by this Court in itself, then that would justify, in our submission, the Court hearing, with as many Justices as the Court thinks appropriate, the question whether section 73 of the Constitution, when referring to the Supreme Court, is confined to courts which remain named as such verbatim according to the constitutional and statutory arrangements undertaken by State Parliaments after Federation.

GUMMOW J:   What is the provision in the New South Wales legislation that takes away or denies what otherwise would be the general jurisdiction of the Supreme Court in the Court of Appeal to entertain appeals from inferior courts?

MR WALKER: Section 179 of the Industrial Relations Act is the key to that ‑ ‑ ‑

GUMMOW J:   That is the negative but where will one ever find the positive, that is what I am trying to get at.  In other words ‑ ‑ ‑

MR WALKER:   First of all there is, by dint of section 196 of the Industrial Relations Act, the bestowal of a criminal jurisdiction on the Industrial Court. Then there is, via section 179, a prevention of the Court of Appeal hearing anything which has the finality in the Industrial Court which is referred to by section 179. I think that is the proper way to answer your Honour’s question. The trial jurisdiction is bestowed by the pick-up device in section 196 of the Industrial Relations Act.  It picks up ‑ ‑ ‑

GUMMOW J:   What I am trying to get at, Mr Walker, is just suppose one were to strike down that section, where would one be left with any positive attachment in the Supreme Court to this subject matter?

MR WALKER:   Your Honour will have noticed that we do not seek to strike down, we seek, rather ‑ ‑ ‑

GUMMOW J:   I know, you may on one face of it want to say there are two Supreme Courts of New South Wales.

MR WALKER:   I want to say that there is within the description of “Supreme Court” as many courts that occupy that functional position so that if, for reasons known only to themselves, each individual justice constituted a separate Supreme Court in New South Wales, then it would follow that from the decision of each individual justice of the Supreme Courts of New South Wales special leave to appeal would be available in this Court.  I am not saying ‑ ‑ ‑

GLEESON CJ:   It used to be you could go straight from a single Justice of this Court to the Privy Council.

MR WALKER:   Yes, as you can still of course to this Court. So this is not a strike down case because that does raise unpeeling the onion problems. What are you left with? This is rather an argument where we say look at section 73 of the Constitution and, indeed, though we notice section 35 of the Judiciary Act, we say that is all you should look at, just look at section 73. Construe that properly, as a matter of constitutional law, and it will not be deflected in its evident intent to have brought within the ambit of this Court’s possible supervisory jurisdiction on matters which will include errors of law within jurisdiction, it will not exclude from that ambit courts which have suffered name changes or courts which are the result of the splitting off of what was formerly within the general jurisdiction of the colonial Supreme Courts.

GUMMOW J:   That is what I wanted to get to.  How is this within the general jurisdiction of the colonial Supreme Court?

MR WALKER:   It is statutory, so it is not.

GUMMOW J:   Exactly.

MR WALKER:   In our submission, your Honour, the question which arises is about the interpretation and application of a statute to a set of facts as found, that is, at that level of generality, subject only to the statutory delineation, allocation and change of jurisdiction that has occurred in this case and has occurred in many cases such as the Land and Environment Court in this State, subject only to that, that describes matters which ‑ ‑ ‑

GUMMOW J:   But that is rather a different question, is it not, because the traditional jurisdiction of the Equity Court to grant injunctions in aid of statutory breaches has been taken away from the equity division and put into the Land and Environment Court.

MR WALKER:   Yes, it has. 

GUMMOW J:   That I can understand, but it is founding some questions. 

MR WALKER:   Yes. It is not simply a matter, however, of an equitable jurisdiction having a special characteristic in that regard. In our submission, and this is the argument we would wish to address, the nature of the function of the Supreme Court captured by the use of the expression in section 73 is an hierarchical one and it will include, in our submission, the way in which one can ultimately marshal, not as a matter of right and obviously subject to multiple possibilities of leave being applied, but one could ultimately marshal any justiciable dispute which involves the common law of constitutional interpretation, statutory interpretation and fact finding being determined ultimately by this Court only as and when necessary and obviously subject to special leave.

If we are correct in that, it is not to the point that a huge amount, probably by now, of the vast majority of crimes regulated by statute in New South Wales are regulated by statutes enacted after 1901 and many of them now in regulatory areas enacted in terms which confine their jurisdiction at trial level obviously to courts which are not the Supreme Court, the local court, the District Court, but which also, in certain cases and certain cases only of which this case is an example, seek to prevent that finding of crime ever being examined by the Court of Criminal Appeal being the Supreme Court by name. 

It would be a curious result if the use of the expression “Supreme Court” in section 73, as the means by which this Court makes and remakes the common law of this country, could be defeated or frustrated by the simple device which has been adopted in this case of not merely conferring jurisdiction for newly created, that is post-1901 statutory created offences, at trial specialist tribunals, that is ordinary, but also preventing appeals or supervision of error within jurisdiction from being heard by the Supreme Court. That is a simple device. It is done in this case. It is no doubt done for purposes which do not include at their head the frustration of this Court’s apical function in the common law of the country but, in our submission, it is a device which this Court ought to examine for its effectiveness, bearing in mind the significance for individuals as well as for corporations involved in a very important question of workplace safety such as this case and the companion cases raise.

GUMMOW J:   Would it be enough on your theory if the Supreme Court could control the body court here by certiorari, bearing in mind that certiorari is not limited to jurisdictional error?

MR WALKER:   No.  Unquestionably, that is an important matter to be regarded in considering the merits of our proposed argument, but my answer to your Honour’s question is, no, that would not be enough.  However, I acknowledge that it is not possible to see anything rudimentary, fundamental or elementary in a so-called right of appeal.  We do not say that that is, as it were, natural law which ought to determine the way in which one understands the way in which a court may stand at the head of a hierarchy.  We acknowledge the possibility of an argument that certiorari available for the review of errors of law, for example, the kind of error of law involving the application of the statute to fully found facts, within jurisdiction.  We acknowledge that that would be a possible way of characterising the Supreme Court undertaking such review as being at the head of the hierarchy sufficient to render available that body of judging to this Court for ultimate supervision in appropriate cases. 

So that is the possible argument but that is not an argument, in our submission, that we have to face in this case because what has been done in this case plainly excludes the possibility of the review of mere errors of law within jurisdiction, that is, a mere misunderstanding of what it means to be concerned in the management of a corporation in the case of a man in the position of my client whose management of the corporation can be gauged by the extraordinarily small amounts of its money he was authorised to spend, for example, $50,000 operational and I think $1,000 capital expenditure. 

Your Honours, it is for those reasons that, in our submission, this application, as it were, without needing to be granted, raises issues which are important and, in the context of the availability of this Court’s supervisory jurisdiction, urgent to be addressed. However, as I started, I have to recognise that this Court ought not to take on that kind of argument about section 73 unless this case provides a vehicle by reason of the more than merely theoretical possibility that what we want to ventilate on an appeal ought to come to this Court in any event. Can I briefly turn to develop our position in relation to that.

As your Honours appreciate, the factual situation can be stated relatively straightforwardly.  After all, at the end of the story in the conviction of my client was the conclusion or description by the Full Bench upholding the trial judge’s determination that there had simply been no evidence of what I will call appropriate efforts on the part of my client to prevent the disastrous combination of events which led to the deaths underground.  The combination of those events is well and truly found, beyond the possibility of any dispute or the need for great detailed concern in this Court, by reference to what were errors in relation to old plans of old workings. 

Your Honours appreciate from the facts that there were two sheets which contained errors and we lost because it was said that people who are able to understand such documents should have noticed sufficiently anomalies and concerns or inconsistencies so as to be driven to another sheet – it happens to be numbered 1, number 2 being numbered 2 and 3 – whereupon it is said, with the benefit of hindsight and expert and detailed scrutiny of these matters, the application for official permission to mine in the area which turned out fatally to be closer to the old, abandoned, flooded workings than the plans revealed, was made and upheld. 

Our short answer to that, your Honours, is that if one looks at section 50, tab 9 of the materials before you, of the Occupational Health and Safety Act, the findings which were made against my client as mine manager, that is, the statutory position and general mine manager, that is, the corporate position, are findings which ought not to be seen to have satisfied the means by which he could be rendered liable to conviction as well. Under section 50(1) of the Occupational Health and Safety Act, found at page 49 of the printed extract, your Honours see there is first the positive “contravention by the corporation” about which we say nothing.  There is then a mention of a well-known class in company governance, namely, directors and then an extension of that:

each person concerned in the management of the corporation –

We would emphasise heavily, with respect, it is the “management of the corporation” in this case.  As it happens, the corporation had more than one mine –

shall be deemed to have contravened the same provision unless –

and then there is an onus reversal for relevantly paragraphs (b) and (c):

he was not in a position to influence the conduct of the corporation in relation to its contravention of the provision –

For a person who is concerned in the management of the corporation that would preternaturally, one would think, raise issues which involve, for example, the fully appropriate deferral or deference to an expert or specialist of a kind that the statute requires and qualified surveyors, mine surveyors, are required by the regulations to which you have seen reference in this case.  As it happens, surveyors are, by the relevant regulations, themselves dispensed from liability for reasonable reliance upon previous documents.

GLEESON CJ:   Is the question that we would have to decide whether your client, the mine manager, was a person concerned in the management of the corporation?

MR WALKER:   That is the first question and, we submit, that there has been an elision of the clear distinction between a management of the corporation and being placed by a corporation as manager of part of its many enterprises but one does not manage a corporation by being a mine manager.

GLEESON CJ:   You only have to be concerned in the management of a corporation.

MR WALKER:   Yes, there are two possibilities.  Anybody “involved” in – a word you will find in the reasons below – anyone involved in managerial duties might be within that group.  That would be a very wide group of people descending to what might be genuinely called foremen and descending to people who would of course have a lot to do with individual instances of safety regulation and safety monitoring.  In our submission, it would be curious if, in this high level reference, bearing in mind that you have other possibilities such as section 19 which has to do with employees mutual duties of care for each other, it would be odd if one included anybody involved at the most lowly level of managerial, that is supervisory, position that you would say they were concerned. 

The other possibility, which of course ought be preferred because this is a penal statute, is that one is talking about that which can be described in ordinary English and company law as the management of the corporation, not merely the management of an aspect of the corporation’s work.

GLEESON CJ:   What, if any, finding was made in the Industrial Court as to the responsibility within the corporation of the mine manager for the safety of this particular mine?

MR WALKER:   The findings are clear and treated as adverse and would not be contentious.  The findings were that both statutorily and under the

particular corporation’s internal arrangements, it was indeed everything that the words “mine manager” would betoken as a matter of English.  He was in charge of, statutorily in control of, all aspects of the conduct of operations both prospectively by way of planning and, at the time in terms of operational monitoring of matters, concerned with safety of the operation of the mine.  We do not run away from the fact that, of course, he was the most senior person in the operation of the conduct of the mine and with extremely explicit, very clear, thorough-going safety responsibility.

GLEESON CJ:    The question that comes to mind, of course, is if that expression “person concerned in the management” in a case such as the present does not include the mine manager, who might it include? 

MR WALKER:   Apart from the board of directors who are separately looked after, in our submission, it will certainly include people who have responsibility for the corporation’s business in the general sense rather than in one of the multifarious activities the corporation may be carrying out such as planning to open up a new drive.  Your Honours, that is the first step.  It would not be sufficient, however, for conviction for us to file at that step.  There are then the steps upon which we bear the onus and it is significant, bearing in mind the possible breadth of the embrace by the first step, to look at what the second step contemplates, namely, that though you are concerned in management, you may be in a position not to influence the conduct of the corporation in relation to its contravention of the provision. 

I see the time, your Honours, and I simply say about that that where there is a specialist required, a surveyor, it cannot possibly be that the literal signing off of a plan prepared, vouched for, by a surveyor in an application for approval, vouched for by the mine manager, that there has been a position to influence in relation to a matter in which my client could not possibly have been expert where it would have been dangerous practice for him to substitute his own opinion for that of an expert. 

GLEESON CJ:   Just before you finish, Mr Walker, which was the section that creates the contravention?

MR WALKER:   You will find that at tab 9 on pages 5, 6 and 7.  The primary provision under subsection (1) is "employer” in both sections.

GLEESON CJ:   It is an obligation to ensure safety.

MR WALKER:   Ensure and there is the word “ensure”.

GLEESON CJ:   Thank you, Mr Walker.  Yes, Mr Game.

MR GAME: May I just pick up two points concerning the constitutional issue. One is in response to a question put by your Honour, Justice Gummow to Mr Walker. You would only get to certiorari based on non‑jurisdictional error of law if you got over section 179 and you got over the Court of Appeal decisions in Powercoal and Mitchforce because they both say that you have to establish jurisdictional error in respect of certiorari. Basically it is a question of reading section 69(3) of the Supreme Court Act with section 179 and they clearly treat this as a question requiring error going to jurisdiction.

GUMMOW J:   The question would be whether that is correct.

MR GAME:   Yes, your Honour, but one would have to get ‑ ‑ ‑

GUMMOW J:   And if it is, whether the Act was valid in that respect.

MR GAME: Yes. The second point I wanted to make in respect of the jurisdictional question is to take your Honours to the provisions that are picked up by section 196 and if you could go to tab 6, the Criminal Appeal Act.  We see section 3, “Constitution of the court”, then the Supreme Court.  What is picked up is the Industrial Commission in Court session but the relevant statutory appeal provision is section 5AA.  There is some jurisprudence that describes that as an appeal, a strict use sense here but, in our submission, it is tolerably clear that section 5AA, if you look particularly at subsection (4), speaking in respect of “could have made on the evidence heard on appeal”, this is precisely the same as section 5 and 6 jurisdiction, that is to say, to give you an example, the court would be entitled to exercise the proviso and dismiss an appeal under section 5AA.

GUMMOW J:   At some stage in the 1920s this Court held that, although this statute talks about the Court of Criminal Appeal established by this Act, it was no more than the Supreme Court.  That is why we take appeals from the New South Wales Court of Criminal Appeal.

MR GAME:   Yes, exactly.

GUMMOW J:   You seek to extend that reasoning, do you, to what has been done here to the industrial body?

MR GAME:   Yes, your Honour.  What I am saying is this, you are clothing a court with intermediate appellate jurisdiction and power which exercises both appellate jurisdiction and original jurisdiction in exactly the same way as sections 24 and 25 of the Federal Court Act do and your Honours held did so in Eastman.  So what you have here is an intermediate Court of Appeal which has all the powers of the Court of Criminal Appeal exercising appellate and original jurisdiction including the powers in section 12 in which your Honours focused very much on the analogous provisions in Weiss to say, in effect, that the Court had to make its own inquiry in respect of the question whether or not a miscarriage of justice had occurred. 

Exactly that same exercise would apply to the Industrial Commission in exercising its jurisdiction and power under section 5AA. It is that process which, as it were, is sought to be completely isolated from the Chapter III of the Constitution appeal. So you have prospectively an intermediate Court of Appeal which can in certain circumstances gaol people and can make very heavy fines, not subject to any appellate review under Chapter III. So, in our submission, the question raised by this case is more confronting than it might appear to be on first blush. That is all I wanted to say about that issue.

GUMMOW J:   What is the particular section that would insulate the ‑ ‑ ‑

MR GAME: Section 179 would insulate it.

GUMMOW J:   Yes, that is right, but there is no fresh insulation, as it were, in the Criminal Appeal Act itself, is there?

MR GAME: No, your Honour. The end of the road, according to section 179, is the court sitting as the virtual Court of Criminal Appeal in the picked‑up section 196 picking up the provisions of the Criminal Appeal Act.  Our argument is that 179 cannot insulate, as it were, our appeal to this Court and it is, as it were, in the structure under Chapter III of this Court as the ultimate court – we have intermediate Courts of Appeal – this is exercising precisely the same jurisdiction as all State Courts of Criminal Appeal and the Federal Court exercising analogous jurisdiction according to Chamberlain and Eastman.  That is the question, in our submission.

May I then take your Honours to these questions of substance in respect of the merits of this case and may we go back to section 50 of the Occupational Health and Safety Act that is just behind tab 9.

GLEESON CJ:   Just remind us about your client’s position.

MR GAME:   My client was mine manager until October or November 1994 but had left long before the mining of panels 50 and 51 and the court held that no offence had been committed until the mining of panels 50 and 51 had got within 50 metres of the old workings which occurred on 26 October 1996, only two years after my client had left.

GLEESON CJ:   But section 50 is a kind of vicarious contravention.

MR GAME:   Exactly, it is a reverse vicarious provision but it has been misconstrued both by the Court of Appeal and by the Full Bench of the Industrial Commission.  It has been misconstrued as such based on a reading of the decision of this Court in Hookham.  How it has been read, page 1076, your Honours.  This is not a complicity section.  This is a reverse vicarious liability section and that is the basic error which has been made by the Court of Appeal and by the Full Bench of the Industrial Commission and you can see that in paragraph 474 of the judgment at page 1076 and if you look at paragraph ‑ ‑ ‑

GLEESON CJ:   What makes you liable is being concerned in the management of the corporation, not being concerned in the contravention.

MR GAME:   Yes, exactly, your Honour, that is the point.  But what has happened is this:  there has been a misreading of this Court’s decision in Hookham because Hookham is about the Tax Administration Act and that is a complicity section because, as it were, it can establish on the balance of probabilities that you were not aiding, abetting or complicit.  What has happened is that it has been overlooked that Hookham is a completely different statutory provision and what happens then, applying what appears in paragraph 112 of the Chief Justice’s judgment set out at page 1076, my client, as it were, because he was the manager of the mine – and you see that at page 1106, paragraph 543 – because he “was in a position to ensure  the objects of the OHS Act were met” and because he was a mine manager, he is now being held to be concerned in the management.

GLEESON CJ:   Mr Game, have penalties been imposed?

MR GAME:   Yes, your Honour.

GLEESON CJ:   Where do we find the reasons for penalty in relation to your client?

MR GAME:   It is in a book that is over there somewhere, your Honour.

GLEESON CJ:   We do not have it?

MR GAME:   No, for my client there was no conviction recorded.

GLEESON CJ:   I just wanted to see how, what I might call, the merits were regarded when it came to the question of penalty.

MR GAME:   Your Honour, we say that the fact that my client was given a section 10, that is to say no conviction recorded, says something about the curious lack of responsibility that he had, yet deemed to be liable for having committed the offence.  The top of page 1138.

What happened, you may or may not appreciate this, your Honours, but all of this came about in the first instance because the DMR gave the mine faulty maps which showed an old working to be in a lower seam when in fact it was in a higher seam and my client left at the end of 1994 at a time that those plans were acted upon but long before any mining had been done in panel 51.  So it is in the context of that and my client’s, as it were, lack of any guilt in any sensible way that he failed to be entitled to a section 10.

GLEESON CJ:   But in order to get to that, they had to conclude under section 50, did they not, that your client had failed to satisfy the court of the matters referred to in (b) and (c)?

MR GAME: Yes, your Honour, but they had to first decide that he was guilty of the offence and this takes me back to section 50. Sorry, I say, guilty of the offence. First they had to decide the primary question in section 50(1) and may I take your Honours back to that because what one has here is this. It says:

Where a corporation contravenes, whether by act or omission, any provision of this Act or the regulations, each director of the corporation, and each person concerned in the management of the corporation ‑ ‑ ‑

GLEESON CJ:   Just pausing there, what was the date of the contravention found to be committed by the corporation?

MR GAME:   It was 26 October 1996, two years after my client had left.  My client’s position is set out at 1098.  It is a mystifyingly long judgment.  If you look quickly at the bottom of 1101 you see that they say he does not have to be “concerned in the management during the whole of the period” and then they come back to this idea of complicity, but the idea of complicity would be apt if you had a single act or omission in which he was a party to because he would be liable for encouraging the offence.  He would be liable under a different section which is section 51.  But the court has failed to appreciate that he has to be “concerned in the management” in respect of “the acts or omissions” constituting the offence or so many of them as constitute the offence; that is to say the court has not addressed itself to the fundamental issue, and it is quite a fundamental issue, which is that to be “concerned in the management” applies not to the particulars, not to the elements, it applies to the “acts and omissions” which constitute the offence. 

One critical act or omission in this case is the mining in panels 50 and 51 and mining, on the findings of the Full Bench where they found that the trial judge had erred on this subject, to a point at 50 metres from the old workings.  Even if it was 100 metres or 200 metres or the whole of panels 50 and 51, that act or omission is essential to the whole reasoning of the court.  What they have gone back and looked at is the particulars but in the particulars there is an unstated assumption, what is left out is the critical aspect which is that there is mining done in panel 51.  You do not get to the offence until you get to 26 October 1996 which is two years after my client had left.  Then the court engages in what we would describe as the absurd exercise of working out whether or not he could satisfy the exclusion provisions but he could not satisfy them about that because he was not there any more.  He had not been there since November 1994. 

This case actually shows a very good example of an intermediate Court of Appeal, not subject to review, going shall I say haywire on basic issues of interpretation of its legislation and, in our submission, that really makes the point very well.  May I add to that, there is no guarantee whatsoever, in fact it is unlikely, that we would satisfy the Court of Appeal that this was jurisdictional error if we sought recourse in respect of these errors I am now speaking in respect of to your Honours.  So those are the arguments that we would ‑ ‑ ‑

GUMMOW J:   There would have been an error of law, that is what you are saying to us.

MR GAME:   There would have been an error of law but it may well have been within jurisdiction so, as I said, we would have to get over what the Court decided in Powercoal and Mitchforce which is that you do have to establish jurisdictional error. What the Court said was that prior to the amendments of section 179 you had to establish Hickman-type jurisdictional error. After the amendments to section 179, notwithstanding the decisions of this Court in Batterham which dealt with the idea of a purported decision, as did Plaintiff S, the court held that you still had to establish jurisdictional error notwithstanding the terms of section 69(3) of the Supreme Court Act.  So we would be left in the situation where you had an unsupervised intermediate court in respect of what might be described as the heartland of its jurisdiction. 

Let me give your Honours another example.  Say the court has not developed a jurisprudence where it addresses itself, for example, to the question of unsafe and unsatisfactory or to the proviso but if the court, as it must do, addressed itself to those issues it would have to develop a jurisprudence and yet we have an intermediate court whose jurisprudence is entirely insular and not subject to review.  When one thinks back about cases which have been granted special leave in appeals in this Court over the years in relation to unsafe and unsatisfactory, going back to Morris and M and Fleming, it is a whole world of jurisprudence in respect of which all one can say is this intermediate court gets some guidance from the High Court but no scrutiny and this jurisdictional error can be established which would be a mighty ask, in terms of a decision, whether or not a verdict was unsafe and unsatisfactory or whether no substantial miscarriage of justice had occurred.

GLEESON CJ:   Your client was not convicted?

MR GAME:   He was found guilty but not convicted.

GLEESON CJ:   What is the status of that finding him guilty.

MR GAME:   He is found guilty but then the court goes on under section 10 of the Crimes Sentencing ‑ ‑ ‑

GLEESON CJ:   Like section 556A, is it?

MR GAME:   Exactly the same, yes. 

GUMMOW J:   But is there such a provision?

MR GAME:   Yes, he was sentenced.

GUMMOW J:   But under this regime, is there such a provision?

MR GAME:   It picks up the Crimes Sentencing (Procedure) Act and has sentencing options available so he ‑ ‑ ‑

GLEESON CJ:   But under 556A the court did not proceed to a conviction.

MR GAME:   That is correct.

GLEESON CJ:   And your client has not been convicted.

MR GAME: No, but he has been found guilty and he is a mine manager and it is of no small moment to a mine manager to be found guilty. If the mine manager has been found guilty, that is the end of his career in New South Wales as a mine manager, but if he has been found guilty, that makes the case no less significant for him that he has been found guilty even though the court has not proceeded to conviction. There are other people at the Bar table who know this legislation better than I do, but there is a sentence provision which means that, notwithstanding the fact that no conviction is recorded, if he was convicted again, the sentence provisions under section 51A would mean that he would then be liable to a sentence of imprisonment. The effect of section 51A of the Occupational Health and Safety Act is that, notwithstanding the finding of guilt, he would be liable to imprisonment were he at a later time found guilty and convicted of an offence. 

GLEESON CJ:   That says if a person has been convicted of another offence, “if the person has previously been convicted”.

MR GAME:   I am sorry, I should have looked at it before I said it.  I am sorry I do not have the answer to this and I had not thought that this would arise, but I am told that the jurisprudence suggests that that is treated as a conviction because of provisions in the Crimes Sentencing (Procedure) Act but I am not absolutely certain about that, your Honour. 

GLEESON CJ:   Can you tell me whether, in any ordinary criminal case, a person who is dealt with under section 556A has a right of appeal?

MR GAME:   Yes, it is included as a sentence in the Criminal Appeal Act.  There are plenty of appeals to the Court of Criminal Appeal where a person gets a 556A.  That is not an unusual event at all and it falls within the description of a sentence. 

GLEESON CJ:   Thank you.

GUMMOW J:   While we are on the Criminal Appeal Act, what is the significance of section 23?  Working out the situation of the Supreme Court in 1900, there was no Court of Criminal Appeal, obviously, but there were writs of error.  Would that apply to what you say is the wrong turnings that have taken place here?

MR GAME:   Yes.

GUMMOW J:   Would they have attracted a writ of error?

MR GAME:   Yes, your Honour.

GUMMOW J:   If it were not for the privative clauses?

MR GAME:   Yes, your Honour.  It would have also attached a Crown case reserved.  Yes, that is correct.  There is a curiosity in these provisions because, if you go back, for example, to section 3, only certain words have been put in as definitional: 

The Supreme Court shall for the purposes of this Act be the Court of Criminal Appeal, and the court shall be constituted by such three or more judges of the Supreme Court as the Chief Justice may direct.

GUMMOW J:   What are you reading from, Mr Game?

MR GAME:   Section 3 of the Criminal Appeal Act.  What that is doing is, in effect, it is creating in this situation what one would describe as a virtual Court of Criminal Appeal.  It has all of those powers.  It finishes with the words, “more judges of the Supreme Court as the Chief Justice may direct”. 
Now, these judges are not appointed by the Chief Justice.  These judges are nominated by the Chief Judge of the Industrial Commission, but there is no provision that deals with what the Chief Justice.....  If the Court pleases.

GLEESON CJ:   Thank you, Mr Game.  Yes, Mr Crawshaw.

MR CRAWSHAW:   I am assuming that I get 40 minutes, if necessary, is that the correct assumption?

GLEESON CJ:   Go ahead and try your luck.

MR CRAWSHAW:   If I could deal with the constitutional argument first.  The respondent submits that these appeals are incompetent.  Although this point has not been decided in relation to the New South Wales ‑ ‑ ‑

GUMMOW J:   Not the applications.  An appeal would be incompetent.

MR CRAWSHAW:   Yes, I accept that.  This point has not been decided in relation to the New South Wales Industrial Court or its predecessors.  We have given as one of our authorities the special leave case of The Mutual Life and Citizens’ Assurance Company Limited v Thiel decided in 1919.  In that case the High Court refused special leave on the basis that there was no jurisdiction to entertain the appeal.  That was an attempt to appeal from the Court of Industrial Arbitration in Queensland in relation to a criminal offence.  We say it is a similar body that we are considering here. 

The Chief Justice in that case said that the argument the Court of Industrial Arbitration was a Supreme Court was hopeless.  We say the same statement is applicable here.  In making that submission, we acknowledge that in some High Court cases such as The Commonwealth v HCF and Parkin, it has been said that the term “Supreme Court” may include courts established under another name in substitution for the original Supreme Court or situation where there has been a radical restructure to the system of the Supreme Court but, in our submission, that does not apply here.

GUMMOW J:   Why? It looks like a significant chunk of the criminal law has been diverted.

MR CRAWSHAW:   In our submission, it is not a chunk that has been diverted.  To use the words of ‑ ‑ ‑

GUMMOW J:   Diverted and insulated.

MR CRAWSHAW:   Your Honour, this particular jurisdiction does not ‑ ‑ ‑

GUMMOW J:   From what would have been the jurisdiction of the Supreme Court in 1900, the writ of error in a criminal matter.

MR CRAWSHAW:   In our submission, it would not have been the jurisdiction of the Supreme Court in 1900.  I think Justice Basten mentions this in the Kirk Case that our learned friends have given you that they are particular offences of absolute liability created by statute in 1983.

GUMMOW J:   Yes.

MR CRAWSHAW:   We submit that does not go to the heartland of criminal law and ‑ ‑ ‑

GUMMOW J:   What does? Pure common law offences?

MR CRAWSHAW:   No.  Common law offences that ‑ ‑ ‑

GUMMOW J:   Murder is not a pure common law offence in New South Wales. You have got to look at section 18 of the Crimes Act.

MR CRAWSHAW:   It is not just pure common law offences.  It is common law offences that have since been enacted as statutory offences but that is not the case with these offences. 

GLEESON CJ:   Could the State of New South Wales set up a special separate court to deal with child sex offences and create specialist members of the court and provide an internal appellate process within that court and then cut it off from the jurisdiction of the Supreme Court and thereby ultimately from the jurisdiction of this Court?

MR CRAWSHAW:   Arguably we would say they could, but that would not be the situation that we have here.  That is the situation where one could say that the special courts have the jurisdiction that was originally within the New South Wales Supreme Court.

GLEESON CJ:   Could they create a special court of that type to deal with terrorist offences?

MR CRAWSHAW: Assuming the terrorist offences were not covered by previous criminal law, we would submit, yes, that would be a similar situation to what we are arguing for here. The other point I want to make in relation to the constitutional point is that our learned friend’s submissions on the effect of section 179 has been somewhat overblown. The situation with section 179 is that it was amended relatively recently. The Mitchforce and Powercoal decisions dealt with its predecessor.  The Kirk Case deals with the section 179 as it now stands. I am not saying there is a great deal of difference, but the situation is that if there has been an appeal to a Full Bench of the Industrial Court, as occurred in this case, there is no impediment to judicial review which includes review of errors of law on the face of the record as set out in section 69 of the Supreme Court Act.

Now, it is somewhat surprising to us that my learned friend, Mr Walker, says one could not argue the point that has been argued in the Porteous appeal in the Court of Appeal because it is the very point that was raised in the Powercoal decision before the Court of Appeal, notwithstanding section 179. If you go to that Powercoal Case, you will see that this question that my learned friend raises is the central point in the Porteous Case as to whether you have to have central management concerned in management or whether it can apply to a mine manager who is not part of the central management. 

That was the very point that was argued without any impediment before the Court of Appeal in Powercoal and decided adversely to my learned friends, Mr Walker and Mr Hodgkinson, who both appeared in that case. We would submit that contrary to our learned friend’s submissions, section 179 does allow review. It is somewhat strange to say the Industrial Court is the end gain for any occupational health and safety cases when one has such an opportunity to review, as occurs pursuant to section 69 of the Supreme Court Act. 

Indeed, irrespective of what happens with this application for special leave, our learned friends in both cases could go to the Court of Appeal to seek review and argue their statutory construction points, at least, pursuant to those provisions.  If I could then come to the particular arguments.

GUMMOW J:   What is your submission as to what avenue was open to them?

MR CRAWSHAW:   It is open to them to argue error of law on the face of the record in the Court of Appeal in relation to any statutory construction points that they are pursuing.  The main arguments in both cases are put as statutory construction points.  In the Porteous Case it is put as an argument that “concerned in management” cannot embrace managers other than those involved in central office, as it were.

GUMMOW J:   How does this fit within section 179, this proposed proceeding?

MR CRAWSHAW: If I can take you to 179, behind tab 7, page 80 of 208 at the top right‑hand corner. Section 179 provides the “Finality of decisions”. But if you go to subsection (4), you will see that those privative provisions:

extends to proceedings brought in a court or tribunal in respect of a purported decision of the Commission on an issue of the jurisdiction of the Commission, but does not extend to any such purported decision of:

(a)the Full Bench of the Commission in Court Session –

That is the situation here.  So the prior subsections do not extend to a purported decision of the Commission.  As I said earlier, that new provision is considered in Kirk.  I accept that it still requires jurisdictional error, but, in our submission, arguments about the construction of the statute fall within that umbrella.

GUMMOW J:   Yes, go on.

MR CRAWSHAW:   That is what my learned friends argued in Powercoal and it was considered by the Court of Appeal.  Perhaps I should take you to the Powercoal decision.

GUMMOW J:   No, do not take up time.

MR CRAWSHAW:   All right.  If I could then move on to the Porteous ‑ ‑ ‑

GUMMOW J:   Error of law within jurisdiction is pretty fundamental stuff.

MR CRAWSHAW:   Well, I understand all the arguments, your Honour, but, as I said, it was considered in the very decision that our learned friends seek to argue against in the Porteous decision.  The Porteous decision, we submit, because of the compelling logic of the Court of Appeal decision in Powercoal, has insufficient prospects of success for the same reason.  The application in the Porteous Case, of course, does not and could not suggest that this Court is required to resolve differences between different courts or within the one court.  As I said, there is the Powercoal decision and that has been the same logic as has been applied consistently in the Industrial Court including in these proceedings where all of the judges of the Industrial Court, including the trial judge, rejected the proposition that the words “concerned in management” are confined to central management.

There was some emphasis in my learned friend, Mr Walker’s, oral submissions on their amended argument about Mr Porteous not being in a position to influence the contravention of the corporation.  This was not, as we say in our summary, an appeal point in the proceedings before the Full Bench.  It is very much a question of fact.  The findings as to the involvement of the mine managers, the summary of their involvement, is found in the ‑ ‑ ‑

GLEESON CJ:   Are you dealing with Mr Walker’s client or Mr Game’s client at the moment, or both?

MR CRAWSHAW:   This particular section, I think, deals with both.  It is paragraphs 485 and 486 of the appeal judgment at application book 1081.  I am sorry.  This deals with Mr Porteous, 485 and 486.  As we say in paragraph 28 of our submissions, the idea of deference to the experts, very much a question of fact of the particular case, but you will note in paragraph 18 of our submissions, reference to the particular statutory responsibilities including the statutory responsibility that puts the mine manager in charge of the mine surveyor.  Of course, the plans and the applications that we are talking about or the applications for this particular mining development were co-signed by the mine manager and the surveyor.

GLEESON CJ:   Mr Porteous and the surveyor?

MR CRAWSHAW:   Yes.  Well, the original application was made by Mr Romcke and the original surveyor.  There was an amendment put in by Mr Romcke and, I think, the original surveyor, and then there was a further amendment put in by Mr Porteous and, I think, the original surveyor again.

GLEESON CJ:   What was Mr Romcke’s involvement in the contravention in the sense of his relevant concern in the management of the corporation?  By relevant I mean relevant to the contravention by the corporation.

MR CRAWSHAW:   Primarily, as found by the trial judge and the Appeal Bench, his involvement was those two applications, the original application and the amendment, and also the lack of research into alternatives to what has been mentioned as the departmental plan.

GLEESON CJ:   But just explain what was wrong with the application he signed?

MR CRAWSHAW:   The application wrongly depicted the location of the old workings which in turn meant that the miners were working in such close proximity to the old workings that their mining equipment holed into what was, in effect, a dam and that dam flooded the mine.

GLEESON CJ:   I am looking at paragraph 521 on page 1098.  Was the argument about Mr Romcke in this respect related to the fact that although he had been a co-signatory to the original application which wrongly depicted the location of the previously flooded mine, by the time he left the company they had not worked close enough to that previously flooded mine to have yet created a risk of inrush?

MR CRAWSHAW:   That is the argument.

GLEESON CJ:   Is that the whole of the argument?

MR CRAWSHAW:   It appears to be the essence of the argument as we perceive it, though my learned friend, Mr Game, now seeks to flee from the word “complicity” which seems to be embraced in his written submissions and which not only come from the Industrial Court, but also come from Justice Spigelman’s judgment in Powercoal at paragraph 112.  That is the essence of the argument.  Our counter to that argument is that there are undisputed findings, undisputed by our learned friends, of a causal connection between the applications that were made by the corporations in the name of Mr Romcke and the risk to safety that arose.

GLEESON CJ:   Where do we find those, particularly with reference to Mr Romcke’s application?

MR CRAWSHAW:   The section of the judgment your Honour is looking at beginning at 521, you will see that the Full Court deals with it at paragraph 526 and going through to 527. 

It was not, and could not, be contended that the Court could only regard failure (c) as a failure –

Failure (c) was the failure to put in an application with plans that correctly depicted the workings.

GLEESON CJ:   What was the reason why they did not proceed to conviction against Mr Romcke?

MR CRAWSHAW:   They did take into account the fact that he was not there at the time that the work actually took place.

GLEESON CJ:   Why did that matter?

MR CRAWSHAW:   It is dealt with at application book 1138 at paragraph 628.  They say:

In conclusion, despite our recognition that this is a very finely balance decision, and our real reservations concerning Mr Romcke’s lack of contrition or remorse, we have come to the view that, given the errors involved in his sentencing ‑ ‑ ‑

GLEESON CJ:   What should he have been contrite about or remorseful for?

MR CRAWSHAW:   For his failures in putting in the application and the amended application that wrongly depicted the location of the old workings.  He did it on behalf of the corporation, of course.  Those applications in turn were approved by the department and mining was allowed to go ahead in the dangerous area.

GLEESON CJ:   I would still like to understand paragraph 628 a little better, “we have come to the view that, given the errors involved in his sentencing”, what is that a reference to?

MR CRAWSHAW:   The error was the finding by the trial judge that the risk arose prior to September 1996.

GLEESON CJ:   It depends what you mean by the risk, I suppose.  From one point of view, the risk arose when the plan that misdescribed the location of the flooded mine was put in.

MR CRAWSHAW:   That was the trial judge’s reasoning but our learned friends argued against that proposition before the Appeal Bench and succeeded in persuading the Appeal Bench that the risk did not arise until September 1996.  That in turn is what my learned friends in the Romcke Case before your Honours rely on.

GLEESON CJ:   What are the “highly exceptional circumstances” referred to in 628?

MR CRAWSHAW:   I am sorry, your Honour.  I have not given a great deal of consideration ‑ ‑ ‑

GLEESON CJ:   It can hardly be highly exceptional that he left the employment after he put the plans in, presumably?

MR CRAWSHAW:   I cannot tell your Honour that off the top of my head.  Your Honour, the sentencing in relation to ‑ ‑ ‑

GLEESON CJ:   The charges against Mr Romcke were dismissed.  Has that got any relevance to a possible appeal by Mr Romcke?

MR CRAWSHAW:   We accept that it may affect his future employment.  We do not accept the proposition that my learned friend, Mr Game, put that it ends his career.  We do not know of any statutory provision that says that.

GUMMOW J:   What order did they make in relation to Mr Romcke?

MR CRAWSHAW:   I just have to find the page.  Appeal book 1149, volume 3.

GUMMOW J:   The actual orders are at 1227, are they not?  The settled orders are at 1227.

MR CRAWSHAW:   Yes, that is correct, your Honour.

GUMMOW J:   It says, “the appeal is dismissed as to liability and upheld in relation to sentence.”

GLEESON CJ:   But did they find personal fault on Mr Romcke’s part in relation to putting in those claims?  I mean, did they find that he was negligent, that he failed to make proper inquiries about something?

MR CRAWSHAW:   Of course, the negligence is not the test ‑ ‑ ‑

GLEESON CJ:   No, no. I only intended to ask you whether they attributed any personal fault to him as distinct from applied the deeming provision under section 50. It sounds as though it might have been something relevant to penalty.

MR CRAWSHAW:   I think there is personal fault in the sense that, as is set out in paragraph 527 at appeal book 1100, there is a causal connection between the failure involving the application which he signed and the risk to safety.  Similarly, the other judge, Justice Marks, perhaps more directly says at appeal book 1200, paragraph 728:

Accordingly, as it has been clear on the evidence in the proceedings as found by Staunton J that Mr Romcke was concerned in the management of the corporation at a time when the corporation’s conduct created circumstances that would assuredly lead at some stage in the future to a breach and Mr Romcke was complicit in that conduct, the provisions of s 50 would prima facie apply to him.

GUMMOW J:   What was the penalty provision?  Is that set out in section 15?

MR CRAWSHAW:   I am sorry, your Honour?

GUMMOW J:   Is the penalty provision found in section 15?  Section 15 is a deeming provision.

MR CRAWSHAW:   Yes.

GUMMOW J:   It deems the contravention of section 15, I think we were told.

MR CRAWSHAW:   It is a separate provision, your Honour.  If we could go behind tab 9, the Occupational Health and Safety Act.

GUMMOW J:   Yes, that is right.

MR CRAWSHAW:   In section 15 are the penalties.

GUMMOW J:   Yes.  Subsection (3), is that the one?

MR CRAWSHAW:   Yes.  In section 16(2) and you have to read that together with section 47(3) which is at page 47 of the printed version behind tab 9.  These matters can go to the Local Court or to the Industrial Court.  Subsection (2) deals with the Local Court, subsection (3) with the Industrial Court.

GUMMOW J:   All right.  What is the significance in the print we have been given of section 5AG of the Criminal Appeal Act?  That is talking about a section 32A in the 2000 occupational statute.  That provides for a term of imprisonment, so it seems, 32A, is that right?  There is an avenue to the Court of Criminal Appeal there it seems. 

MR CRAWSHAW:   Yes, that version is not applicable to these offences.

GUMMOW J:   There was no such industrial manslaughter provision in the 1983 Act, is that right?

MR CRAWSHAW:   I do not think so.  Certainly not at the time the offence was committed.

GLEESON CJ:   Yes, thank you, Mr Crawshaw. Yes, Mr Game. What is the difference between the position of your client and Mr Walker’s client in terms of the facts and section 50 except that your client left before they got close enough to the water for what you describe as the risk to have emerged?

MR GAME:   That is the main difference.  My client was not there after the ‑ ‑ ‑

GLEESON CJ:   Why does that matter?  I mean, as a result of the plans that were put in, they were working, as it were, towards this, were they not?  They just had not got close enough by the time your client left.

MR GAME:   It matters because the question is, what were the acts and omissions that constituted the offence for which he is made liable?

GLEESON CJ:   A contravention by the corporation.

MR GAME:   Yes.  One of the acts and omissions is the mining of panel 51.  When he left no offence ‑ ‑ ‑

GLEESON CJ:   The offence described by the statute is failing to ensure safety.

MR GAME:   Yes.  No, I understand that, but the cases and this case say that failure to ensure, there has to be an actual risk to the health and safety of a worker, that is, one might just say, in the heartland of the jurisprudence of this Court, correctly or incorrectly, and it is at the heart of its resonance in this case.  So what your Honour is really talking about, in my submission, is a complicity case, which is section 51.  When my client leaves the corporation, he is not concerned in the management of a corporation at a time when acts or omissions have been committed which constitute the offence.

GLEESON CJ:   The proposition being that at that stage nobody is at risk?

MR GAME:   That is right.  That is the point, yes.  You would have to actually reconstruct the whole judgment of the Full Bench in order to, as it were, see a mode of reasoning that goes down the road that your Honour the Chief Justice was inviting my friend to go.

GLEESON CJ:   Let me give an example.  Suppose you have a mine in a fictitious place, let us call it Wittenoom, and somebody puts in some plans to mine into asbestos in five years time and it will take five years before they get to the asbestos, and then the person who has put in the plan leaves the organisation.  Is the proposition that until four years pass, or something like that, there is nobody at risk from that asbestos?

MR GAME:   That is the proposition that was accepted by the Full Bench in this case. But even if you pull it back to the beginning of the mining of that panel, my client was not there then. Now, your Honour, it is not as if – we say that the result we advance follows from a proper application of section 50, what were the acts and omissions constituting the offence? Now, you could go to other provisions. You could go to section 51 or you could go to section 20 in respect of the position of Mr Romcke, that is to say, liability as an employee creating a risk to others or as somebody complicit in the company’s offence.

GLEESON CJ:   What were the very exceptional circumstances that attracted the sentencing leniency?

MR GAME:   Your Honour, if you go to page 1133, paragraph 617, their Honours have accepted that the risk did not arise until two years after he had left but, as I said before, the court had to engage in what I would put as the bizarre activity of seeing whether he had satisfied the defences when he left years before.  Then at paragraph 627 on page 1138 what is being said is he is not culpable in any criminal sense because he relied on the DMR’s plans.  Those are the highly exceptional circumstances.  In answer to the earlier question your Honour the Chief Justice asked, if you go back to 1103 you will see that at paragraph 533 the court says:

Mr Romcke, however, was not only concerned in the management of NWCC on 6 September 1994 as we shall see shortly, but he was also directly responsible for submitting the flawed plans to the DMR.

So we have him being concerned in the management and now we seem to have vicarious liability of the corporation based on his acts which then becomes vicarious liability in him.  So he is vicariously liable for the corporation which is vicariously liable for him.  That is what is being said.  In my submission, this case shows very well that this is a court that does not actually understand that it is supplying a criminal statute and how to apply that criminal statute.  This case provides a perfect vehicle to examine what are quite significant questions of statutory construction that apply to the workings in this criminal jurisdiction.  Now, I was going to say one thing about ‑ ‑ ‑

GUMMOW J:   Before you do that, what do you say about order 4 which appears at page 1227?  That is what you want to appeal against.

MR GAME:   Yes, that is correct. 

GUMMOW J:   “The appeal is dismissed as to liability”, what does that mean, “and upheld in relation to sentence”?

MR GAME:   That is meaningless, your Honour.  Sorry, no, it is dismissed, that is correct.  It is dismissed, that is to say, the finding of guilt stands but there is to be no conviction.  Now, may I just answer in part a question your Honour the Chief Justice asked that relates to that concerning

the Criminal Appeal Act.  If you look at the Criminal Appeal Act, the definition of “sentence” includes:

(b)any order made by the court of trial in respect of a person under section 10 or 11 –

It has to be recalled that the trial judge actually convicted him and the court set aside that sentence and made an order under subsection (b), but we still have a sentence for the purposes of the Criminal Appeal Act.

GLEESON CJ:   Thank you.  Is the form of that order on page 1227, that is, “we do not proceed to conviction of the appellant and dismiss the charges against him”, technically the correct form of order under section 10?

MR GAME:   Not under section 10 but normally you would say, “I make a finding of guilt but do not proceed to conviction under section 10.”  That is what he would say.

GLEESON CJ:   That is what I thought.

MR GAME:   Yes.

GLEESON CJ:   Where do they get this, “dismiss the charges against him”?

MR GAME:   No idea.  It is wrong.  Because they did not dismiss ‑ ‑ ‑

GLEESON CJ:   That is not the power under section 10.

MR GAME:   Yes, that is correct.  Sorry, just one last thing.  In Powercoal it was accepted that you had to establish jurisdictional error and that is post the amendments.

MR WALKER:   Your Honours, that was clearly what my learned friend did not trust me to be about to say.  That is what I was about to say.  In Powercoal jurisdictional error was at the forefront of the Chief Justice’s determination of that which could and could not be entertained by the Court of Appeal.  At the end of my learned friend’s argument concerning that today, I think that so much is conceded.  We also understand it to be conceded or indeed asserted that the errors that we identify in the Full Bench in this case would be, according to the present respondent, errors within jurisdiction, be they errors of law or otherwise. 

The form of the Powercoal argument included, it is not to be forgotten, a Hickman argument concerning so‑called inviolable standards.  In relation to that which was said to be errors of law going to jurisdiction, the conclusion of the Court of Appeal can be summarised this way.  There was no error of law and “there is no basis for the exercise of the supervisory jurisdiction”.  That last is a quotation from the Chief Justice in paragraph 124 and those are words entirely apt to have vindicated his Honour’s, with respect, correct requirement for a jurisdictional error.  Kirk, the case after the amendments, of course, repeated the requirement for jurisdictional error. There is nothing in section 69 of the Supreme Court Act which changes that at all.  One finds that in paragraph 36 of Kirk.

GUMMOW J:   What does section 69 say?

MR WALKER: It extends the face of the record concept for judicial review, but section 179 has to be read with that and section 179 requires jurisdictional error.

GLEESON CJ:   But the error which you attribute is an error in the construction of section 50.

MR WALKER:   Yes.

GLEESON CJ:   Your argument on construction being that the words “person concerned in the management of the corporation” must be limited to “person concerned in the central management of the corporation”?

MR WALKER:   That is the first step.  Your Honours will recall there is a second step and, indeed, a third step that our written submission notes which are the paragraph 51(b) and (c) answers upon which the onus lay on us.

GLEESON CJ:   But as to that first step, does that produce the consequence that a company like Rio Tinto would have nobody in Australia concerned in the management of the corporation?

MR WALKER:   No, not least because if it produced that circumstance, that would appear to be wrong and anti-purposive.  No, your Honour.  Indeed, local stewards would be the classic example of people not on the board who would be concerned in the management of a corporation.

GLEESON CJ:   But a foreign corporation might have its central management out of Australia and conduct a mine in Australia.

MR WALKER:   Quite so, so local stewards unquestionably would be, for the purpose of a New South Wales statute, directed to the criminalising of conduct by an employer who is a corporation, would no doubt look on the particular facts of the case to who is concerned in the management of the

corporation within New South Wales.  So we accept that it would be case specific.  Your Honours, there was reference made to Thiel’s Case in 1919.  One need only read the robust exchange with counsel in which, I think, as the record of arguments suggests, there was far more said by judges than by counsel, ending up with the Chief Justice’s description of the argument as “hopeless”.

GLEESON CJ:   Where was this?

MR WALKER:   This is in 27 CLR ‑ ‑ ‑

GLEESON CJ:   Sounds like a useful precedent.

MR WALKER: I am not suggesting it is a precedent your Honour would wish to follow for a number of reasons, but in 27 CLR starting at 188, what I will call euphemistically “the argument” commences. Counsel does not get much of a look in. Page 189, a conclusion of the Chief Justice’s expression of view, not for the first time, that it was “hopeless.” The judgment takes three and a half lines. There is no sign of any argument of a kind which has attracted the suggestions that we have noted in our written submissions in the New South Wales Court of Appeal as to its possibilities. There is no sign of that argument ever being able to raise its head or, indeed, having been in anyone’s head. In our submission, it is misuse of authority to say that this Court has, as it were, precluded what we wish to raise in relation to section 73 of the Constitution by that 1919 decision.

Your Honours, the respondent’s answer certainly raises very squarely this question in relation to the substantive merits of the case we wish to present on appeal.  It is clear that it is literally, as well as figuratively, the co-signing of the plans adopting inaccurate surveys, constructed both historically and as a matter of current expertise by people, not my client, for whom he could not substitute his own opinion in an expertise which the statutes recognise as requiring specialists.  It is clear that that is the way in which the defences were rejected.  It is not correct, as my learned friend said without any citation of references in the reasons, that the point was not raised below.  The point was emphatically raised as can be seen from the fact that it was dealt with explicitly in paragraph 500 at pages 1089 and 1090.

GLEESON CJ:   We will adjourn for a short time to consider the course we will take in this matter.

AT 12.21 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.35 PM:

GLEESON CJ:   The question of the available and appropriate method of appeal from or review of decisions such as those made in these cases is important.  It is, however, not a question which this Court would consider if it were in a given case theoretical or if it were presented other than by an appropriate procedure. 

In both of these cases we are not persuaded that there are sufficient prospects of success on the issues on which the applicants failed in the Industrial Court to warrant a grant of special leave and the applications are dismissed with costs.

AT 12.35 PM THE MATTER WAS CONCLUDED