Quickcell Technology Products Pty Ltd v Bell
[2020] QDC 181
•7 August 2020
DISTRICT COURT OF QUEENSLAND
CITATION:
Quickcell Technology Products Pty Ltd v Bell [2020] QDC 181
PARTIES:
QUICKCELL TECHNOLOGY PRODUCTS PTY LTD
(appellant)
v
GRAHAM CHARLES BELL
(respondent)
FILE NO/S: BD816/18, BD1809/18
DIVISION:
Appellate
PROCEEDING:
Appeal pursuant to s 222 of the Justices Act1886
ORIGINATING COURT:
Magistrates Court at Brisbane
DELIVERED ON:
7 August 2020
DELIVERED AT:
Ipswich District Court
HEARING DATE:
8 November 2018
JUDGE:
Horneman-Wren SC, DCJ
ORDERS:
1. The appeals are allowed.
2. The guilty verdict entered in the Magistrates Court is set aside.
3. The complaint is dismissed.
4. The fine imposed by the Magistrates Court is set aside.
5. The costs order made in the Magistrates Court is set aside.
6. The parties are directed to file written submissions on costs of both the proceedings in the Magistrates Court and on appeal, limited to five pages (inclusive), within 28 days.
CATCHWORDS:
MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – appeal against conviction – appeal against sentence – where appellant convicted of an offence against s 32 Work Health and Safety Act 2011 – where central to conviction was expert evidence that panels manufactured by the appellant were “too thin” – whether on a review of the evidence and the magistrate’s reasons the prosecution had proved a breach by the appellant of its duty under s 23(2) Work Health and Safety Act 2011 – where on the whole of the evidence the court could not be satisfied beyond reasonable doubt that the appellant had failed to comply with its duty – where appeal allowed and complaint dismissed
Cases:
Allesch v Maunz (2000) 203 CLR 172, followed
CDJ v VAJ (1998) 197 CLR 172, followed
Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194, followed
Coleman v Kinbacher & Anor (Qld Police) [2003] QCA 575, cited
Craig v South Australia (1995) 184 CLR 163, cited
Dearman v Dearman (1908) 7 CLR 549, cited
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389, cited
Fox v Percy (2003) 214 CLR 18, followed
Harriman v The Queen (1989) 167 CLR 590, cited
Lee v Lee [2019] 372 ALR 383, followed
Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, cited
Robinson Helicopter Company Inc v McDermott [2016] 331 ALR 550, followed
The Glannibanta (1867) 1 PD 283, citedWarren v Coombes (1979) 142 CLR 531, followed
Legislation:
Evidence Act 1977 ss 3, 93
Justices Act 1886
Work Health and Safety Act2011 ss 23, 32, 171
COUNSEL: Mr R Devlin QC with Mr M Labone for the appellant
Mr M J Copley QC for the respondent
SOLICITORS: Moray & Agnew for the appellant
Office of Industrial Relations for the respondent
Introduction
On 26 December 2012 a precast concrete panel manufactured by the appellant, Quickcell Technology Products Pty Ltd, which was being used in the construction of the Trackstar Program Alliance – Richlands to Springfield Rail Extension, failed in the course of topping concrete being poured onto it. No person working on the project was injured.
The respondent, in his capacity as a Workplace Health and Safety Inspector authorised by the Regulator, commenced a prosecution against Quickcell alleging that it had committed an offence against s 32 of the Work Health and Safety Act2011 in that it had failed to comply with a workplace health and safety duty imposed on it under s 23(1) of that Act.
Following a trial in the Magistrates Court, which occupied 12 days over slightly more than a year, Quickcell was convicted of that offence.[1] Quickcell was subsequently fined $200,000 and ordered to pay the prosecution’s costs in the sum of $189,941.94. It was ordered that the conviction not be recorded.[2] Quickcell appeals to this Court against the orders of conviction, fine and costs.
[1]Primary judgment Bell v Quickcell Technology Products Pty Ltd, 5 February 2018 (‘Reasons’).
[2]Supplementary judgment 19 April 2018.
For the reasons which follow, the appeal should be allowed, the orders below set aside and, in lieu, an order of acquittal should be entered in respect of the single charge.
The charge and a lack of particularity
As originally particularised, the breach alleged was as follows:
“1.Quickcell Technology Products Pty Ltd (Quickcell) is a company duly incorporated according to law.
2.Business or undertaking:-
(a)pre-stressed and precast concrete manufacturers;
(b)including, supplying Thiess Pty Ltd with precast items for the Trackstar Program Alliance Richlands to Springfield Rail extension (‘the project’);
(c)manufactured precast concrete panels for the project.
3.Workplace:-
(a)Springfield Central Railway Station, Greenbank Arterial Road, Springfield.
4.Persons at risk:-
(a)workers health and safety was not ensured, in particular, that of Alex Parsons, Shane Legge, Benjamin Murray, Christopher Shepherd and Clinton Burt.
5.Hazard:-
(a)the hazard giving rise to the risk is the prefabricated concrete panel.
6.Risk:-
(a)the risk arising out of the hazard, of which Quickcell ought to have known, is of death or serious injury to workers;
(b)there was a risk that while constructing the project a panel with defects could collapse and fall.
7.Failures:-
(a)Quickcell did not ensure, as far as reasonably practicable, the health and safety of, inter alia, Alex Parsons, Shane Legge, Benjamin Murray, Christopher Shepherd and Clinton Burt while they were working in that it failed to:-
(i) correctly position the pre-stressing strands;
(ii) ensure the as built cross-sections were in accordance with the Australian Standard concrete structures, 3600-2009 (AS3600-2009) and Australian Standard, AS3610-1995 formwork for concrete (AS3610-1995);
(iii) manufacture concrete panels with adequate thickness of concrete above strands;
(iv) ensure concrete panel depth was in accordance with AS3600-2009 and AS3610-1995.
8.Control measures Quickcell could have implemented:-
(a)screeding technique application where striking off is followed by an operation involving topping up of the concrete ensuring the screeded concrete had the correct depth;
(b)a quality control system of checking consistency and accuracy of measurements of concrete panels, including the panel depth;
(c)a quality control system of checking consistency and accuracy of location of pre-stressing strands.”
On 7 December 2015, the fifth day of the trial, the learned presiding Magistrate allowed an application by the prosecution to amend the period during which the offence was alleged to have been committed from “on the 26th of October 2012” to “between the 24th day of June 2012 and the 27th day of October 2012”.[3]
[3]Transcript, 7 December 2015, p 1-24.
In allowing that amendment, his Honour observed:
“It is, however, the question of allowing the amendment to cover the period of manufacture which is, perhaps, more problematic.
This is an issue which was, in effect, previously raised but not identified. I say this in the context of the application made by the defence to have the report of Professor Dux excluded, which application was refused. In the course of that, a submission was made concerning, amongst other things, similar fact evidence which went to the manufacture of other panels. In dealing with that application, I indicated, and as I understood from the prosecution’s submissions, the complaint related not simply to the panel that collapsed but to the manufacturing process, and that was particularly identified in paragraph 7 and 8 of the complaint.
For whatever reason, the Court and the parties at that stage did not highlight – or did not pick up on the fact that the complaint as drafted referred simply to the 26 October. However, it was clear at the time, in my view, of the complaint being served that at least – and if not then, at least at the time of my ruling in November of 2014, that this complaint related to the manufacturer of the panels, plural, and not simply to the panel that failed.
On that basis, it seems to me that there is no prejudice sustained by the defence in allowing the amendment sought which simply reflects the situation that has been apparent from the outset, and at least from the 13th November 2014. I therefore allow the amendment.”
His Honour’s observations as to the complaint relating to the manufacture of “the panels, plural, and not simply the panel that failed” is of some significance. The prosecution case was not one articulated with any precision as being one which related to panels other than that which failed. The defence had sought to have excluded the evidence of Professor Peter Dux. That had been dealt with by his Honour on 13 November 2014, more than a year earlier. Professor Dux was the principal witness for the prosecution. For reasons which will be developed later, a successful prosecution case rested on his evidence. It could not succeed without his evidence being accepted.
The defence had objected to Professor Dux’s evidence on the grounds of bias. There had been further objection taken by the defence to what it considered to be similar fact or propensity evidence.[4] The prosecutor’s response to that objection was in the following terms:
“If I could turn also to the similar fact and propensity evidence. Your Honour would have seen from my outline that the prosecution seems to be at completely different ends as my friend with respect to this evidence in the way in which this evidence is being led. It’s the prosecution point that this evidence is not being led as propensity evidence at all, and at no stage am I seeking to draw the conclusion that on the 10th of January this panel was deficient, therefore, look how bad the defence is or they must be guilty of all this wrongdoing or anything of that nature.
It is merely to show and to be able to support the particulars that are provided in the complaint that, yes, this panel failed. We have expert evidence that the panels were made not in accordance with the Australian Standard and we can support that by saying that the professor witness – and I don’t like it being referred to as an experiment because the professor didn’t intervene in the process until, on our case, after the process had finalised, but it was more of a view of the manufacture where he stood back and watched the process being undertaken under the advice that this was the process that was used to make the panels that had been provided to Trackstar as at the date of 26 October when the incident happened.
So the Crown can – or the prosecution can tie together those things and say, well, yes, this is the process which was used to make these panels. The process was deficient because of these reasons and that explains why these panels have not been provided without adequate thickness, which is against the Australian Standard.
And, as I have outlined, the requirement for a valid complaint requires the prosecution to actually be able to state to the Court and to the defence exactly not only what went wrong, but why and what should have happened to fix and also to establish that what needed to happen to fix this problem was reasonably practicable, and the professor’s evidence from that day suggests it was a very easy fix, and, therefore, on the prosecution case, it’s reasonably practicable that these persons were trained in what we call the proper screeding process, which would ensure the adequate thickness panels.”[5] (emphasis added).
[4]This forms part of the grounds of appeal to this Court.
[5]Transcript 13 November 2014, p 1-50 to p 1-51.
As can be seen from this response, the prosecution expressly disavowed the complaint related to several panels and expressly confined the case to the particular panel which failed. However, in the course of the same hearing, the prosecutor went on to say, somewhat contradictorily:
“That one panel that failed, though that is obviously the trigger for the investigation and the trigger for these matters, I have never identified that specific panel as the only reason for the complaint proceeding. The complaint is in relation to a charge of manufacturing and is not in relation to the fact that one single panel failed.”[6]
[6]Ibid at p 1-54.
The complaint did not, in terms, identify any particular duty imposed upon Quickcell with which it was alleged to have failed to have complied. In terms, the complaint merely stated Quickcell was a person who had a duty and that it had failed to comply with it contrary to s 32. No objection was taken to the form of the complaint before the learned Magistrate. No objection was taken to it on appeal. However, the way in which the matter was argued, particularly on the appeal, demonstrates that the parties were in considerable discord as to any duty alleged to have been imposed and not complied with. So too, it was apparent on the appeal that the parties were in discord as to what, if any, relevance s 23(3) and (4) had to any duty imposed by s 23(2).
Section 23 of the Work Health and Safety Act2011, at the relevant, time provided:
“23 Duties of persons conducting businesses or undertakings that manufacture plant, substances or structures
(1)This section applies to a person (the manufacturer) who conducts a business or undertaking that manufactures—
(a) plant that is to be used, or could reasonably be expected to be used, as, or at, a workplace; or
(b) a substance that is to be used, or could reasonably be expected to be used, at a workplace; or
(c) a structure that is to be used, or could reasonably be expected to be used, as, or at, a workplace.
(2)The manufacturer must ensure, so far as is reasonably practicable, that the plant, substance or structure is manufactured to be without risks to the health and safety of persons—
(a) who, at a workplace, use the plant, substance or structure for a purpose for which it was designed or manufactured; or
(b) who handle the substance at a workplace; or
(c) who store the plant or substance at a workplace; or
(d) who construct the structure at a workplace; or
(e) who carry out any reasonably foreseeable activity at a workplace in relation to—
(i)the assembly or use of the plant for a purpose for which it was designed or manufactured or the proper storage, decommissioning, dismantling or disposal of the plant; or
(ii)the use of the substance for a purpose for which it was designed or manufactured or the proper handling, storage or disposal of the substance; or
(iii)the assembly or use of the structure for a purpose for which it was designed or manufactured or the proper demolition or disposal of the structure; or
Example—
inspection, operation, cleaning, maintenance or repair of plant
(f) who are at or in the vicinity of a workplace and who are exposed to the plant, substance or structure at the workplace or whose health or safety may be affected by a use or activity mentioned in paragraph (a), (b), (c), (d) or (e).
(3)The manufacturer must carry out, or arrange the carrying out of, any calculations, analysis, testing or examination that may be necessary for the performance of the duty imposed by subsection (2).
(4)The manufacturer must give adequate information to each person to whom the manufacturer provides the plant, substance or structure concerning—
(a) each purpose for which the plant, substance or structure was designed or manufactured; and
(b) the results of any calculations, analysis, testing or examination mentioned in subsection (3), including, in relation to a substance, any hazardous properties of the substance identified by testing; and
(c) any conditions necessary to ensure that the plant, substance or structure is without risks to health and safety when used for a purpose for which it was designed or manufactured or when carrying out any activity mentioned in subsection (2)(a) to (e).
(5)The manufacturer, on request, must, so far as is reasonably practicable, give current relevant information on the matters mentioned in subsection (4) to a person who carries out, or is to carry out, any of the activities mentioned in subsection (2)(a) to (e).”
The decision on Quickcell’s application to have all, or some, of Professor Dux’s evidence excluded, was determined on 16 February 2015. The primary objection that the evidence should be excluded for reasons of bias was dismissed. In my respectful view, properly so. The matter raised could only go to the weight to be given to his evidence, not its admissibility. His Honour’s written reasons for dismissing the objection to what had been submitted was similar fact or propensity evidence included the following:
“As to the objection of similar fact or propensity evidence, it should be noted that while the complaint in this matter arises from the collapse of the panel at the Springfield Railway Station, the complaint relates to a number of alleged failures set out in paragraph 7 of the complaint, including a failure to manufacture concrete panels with adequate thickness of concrete above strands. The complaint also indicates in paragraph 8 control measures it is said that Quickcell could have adopted.
The complainant asserts that the evidence said to be similar fact or propensity evidence is direct evidence proving an essential factual ingredient of the actual offence particulars of which are provided in paragraphs 7 and 8 of the complaint and summons.
It seems to me that the correct characterisation of the evidence sought to be relied upon is that is being used to discharge the complainant’s obligations to seek to prove what the defendant should have done to avoid the risks in paragraph 6 of the complaint and summons, the failures in paragraph 7 of the complaint and summons and the control measures that the respondent could have taken to avoid the failures referred to in paragraph 7. This is particularly so having regard to the obligation of the complainant to identify the measure or measures which should have been taken to ensure worker’s safety from risk.”[7]
[7]Bell v Quickcell, Reasons for Decision, 16 February 2015, p 4.
In opening the case, some nine months later, the prosecutor said:
“As mentioned, your Honour, to prove the case against the defendant, the prosecution will be relying on evidence from 11 witnesses. Of particular importance is of course the evidence of Professor Peter Dux, a civil engineer with extensive experience in concrete structures. Professor Dux will be providing expert opinion evidence in relation to the concrete panel that failed and the concrete panels that have been provided for the project and the process in which the panels were made and why it is in his opinion that they were deficient. Ultimately, Professor Dux will conclude that the defects he located in the manufacturing of the panels when combined rendered the failed panel incapable of carrying the expected construction loads for which it was intended.”[8] (emphasis added).
[8]Transcript 31 August 2015, p 1-7.
By the time the application to amend the particulars was made, senior counsel had been brought in to lead the prosecution. The legal officer who had previously conducted the case alone and who had argued the earlier admissibility point was retained in a junior role.
The lack of particularity in the prosecution case arose again in February 2016, during the evidence of the central witness for the prosecution, Professor Dux. Whilst re-examining Professor Dux an objection was taken on the basis of the relevance of some evidence. Senior counsel for the prosecution said:
“Yes, your Honour. Firstly, we’re not limited to the SSP13 panel. We’re – the charge is across the panels. It’s – and quality control, at least as I recall it, is one of the issues that’s pleaded. I mean, this was part of the argument where they tried to say you’re really stuck with one panel.
---
And it’s just not the case.”[9]
[9]Transcript 19 February 2016, p 9-47.
The reference to the SSP13 panel and the prosecution not being limited to them, was that there were a number of different types of panels which Quickcell was contracted to manufacture. The panel which failed was of the SSP13 type. Senior counsel for the prosecution’s suggestion that the prosecution was not limited to the SSP13 type panel drew this response from counsel for Quickcell:
“Now, the other thing, your Honour, that my learned friend has just said in relation to that is not limited to the SSP13 type panels, that’s the first that we’ve heard that – well, anything other than the SSP13 panel that failed is on trial here. Certainly that’s not the way the evidence in this case has been presented up to date. You can’t – it can’t be the case that everything between those dates is on trial.”[10]
[10]Transcript 19 February 2016, p 9-49.
Following that submission and in response to it, the learned Magistrate referred back to his having dealt with the objection to Professor Dux’s evidence which, by then, was some 15 months earlier. His Honour said:
“Well, I’ll let Mr Glynn speak for himself, but on my reading of it – when I first picked this thing up and I first had to deal with the initial objection in this matter, I focused on the collapsed panel and, indeed, as I recall – and I’m now talking from memory – your submission as to why I should adopt a certain course focused on that. But you might recall I rejected those submissions and part of that was the point which was particularly made by the prosecution that this was not a prosecution with respect to a single panel but the process. And I’m now paraphrasing my recollections.
So – and the control measures which are detailed in paragraph 8 of the complaint talk about a process of manufacturing. Now, I suppose I’ve always implicitly, in the back of my mind, focussed on the manufacturing of the SSP13 panels and, indeed, in terms of the evidence in this, that’s the one that collapsed; that’s the one where we have measurement; all of those things. And probably if I was to accept that the SSP13 panel wasn’t properly manufactured and there were all the defects in manufacture, which the professor’s report suggests, that would be sufficient for me to find the prosecution. As I recall the evidence there has been no evidence, in effect, really given about the other panels.”[11]
[11]Transcript 19 February 2016, p 9-49 to p 9-50, l 17.
In response, counsel for Quickcell said:
“That’s my concern.”[12]
[12]Transcript 19 February 2016, p 9-50, l 19.
Senior counsel for the prosecution when asked as to the relevance of questions put to Professor Dux and whether such questions “take us anywhere when we’ve heard no evidence, in effect really, given about the other panels”, responded:
“Well, what we’ve got in the other panels is that all of the drawings have been tendered, without objection, in relation to all of the panels, because all of the panels are in issue. Because the same flaw infects them all.”[13]
[13]Transcript p 9-50, ll 25-30.
Senior counsel later went on to say:
“Because they’re all SSP panels… with the same fault throughout. The strands are all in the wrong position on our case.”[14]
[14]Transcript p 9-51, ll 22-28.
Shortly afterwards, the debate continued in the absence of the witness. Senior counsel for the prosecution persisted with a submission that drawings of panels of a type other than that which had failed, the SSP13, had been tendered without objection. His Honour, in saying that “I just want to make sure I have my head around something”, observed that junior counsel for the prosecution and defence counsel “probably have lived and breathed this case for some considerable period of time”. By contrast, his Honour said of himself, “whereas I keep stepping in and out of it”, an apparent reference to the lengthy delays which occurred between phases of the hearing of the matter. Senior counsel for the prosecution said of his involvement, “so do I”, meaning that he too had been stepping in and out of the matter. Senior counsel suggested that “one would have expected that at that stage there would have been some objection”, in an apparent reference to the lengthy involvement of counsel for Quickcell.[15]
[15]Transcript 19 February 2016, p 9-53.
Following this his Honour said:
“Well, I understand that where I had some concerns arising from the objection taken by Mr Labone – and it might be I am misrepresenting his objection, and Mr Labone you should not feel constrained to accept what I’m saying – is that in terms of the evidence given in terms of the concrete pour the focus has always been on the SSP13 and that yesterday, as I understand the evidence of Professor Dux, his reference to the strength of the panels was based upon a selection of – what do we call them – the cured cap cylinders which was taken across all of the panels.
It wasn’t my understanding and I don’t know – and somebody might tell me I’m wrong about this, but I suppose if I actually look at the legend I will be told this answer – that the issue of the concrete strength was an issue across all of the panels, but I note that all of the panels talk about concrete grade 40 mega pascals. The professor has been saying he’s not concerned about the strength of many of the panels.”[16]
[16]Transcript 19 February 2016, p 9-53.
The issue his Honour appears to have been raising was that, as his Honour understood it, the case concerned the failure of an SSP13 panel and that other evidence concerning the manufacture of panels was in relation to the manufacture of panels of that type. This seems to be made plain by his Honour who, after some further discussions with counsel, went on to say:
“But coming back to that, the problem that I – and I might be creating a mountain out a molehill here, is that we have only spoken, in effect, of the failure of the SSP13 panel… And I appreciate the manufacture. And I suppose in my mind when I have been focussed on the manufacture I’ve been focussing on the manufacture of the SSP13 panels, plural.”[17]
[17]Transcript 19 February 2016, p 9-54, l 40 to p 9-55, l 4.
To this, senior counsel for the prosecution replied “because that’s the one that failed”, an observation with which his Honour agreed before going on to ask:
“And would you accept it would be fair to say that if I was to find that the process of manufacturing the SSP13 panels was in breach of the legislation that, that’s all I need to find. I don’t need to be worried about finding whether the breach of the SSP02’s and the 11’s and the 14’s, or whatever.”[18]
[18]Transcript 19 February 2016, p 9-55, ll 11-15.
Senior counsel then said:
“Except that it would obviously be a question that went to penalty --- and therefore, it does become a significant issue. But I would accept that if you found that it was in respect of one, that that would be sufficient to result in the conviction.”[19]
[19]Transcript p 9-55, ll 16-21.
The following exchange then occurred:
“BENCH:So your case is really one based, with respect to the other panels, on what’s in the plans. Well, how can the professor give evidence about the other panels, because wouldn’t it be the case that other panels with different dimensions might have different bending focusses? And his report doesn’t go to the other panels, does it.
MR GLYNN:And I don’t think he specifically goes through the panels.
BENCH:No. So isn’t that a problem? If he’s saying that SSP13 has been incorrectly manufactured ---
MR GLYNN:No, no.
BENCH:--- Because it’s got – it’s too shallow and the strands are in the wrong place, and all of those things, then that’s fine; I can find that. But his report doesn’t go to the other ---
MR GLYNN:He doesn’t deal with it in terms of even the SSP13. What he’s dealing with is the method of manufacture and the fundamental flaw in it. It’s the flaw in the method of manufacture that’s the cause of the charge.”[20]
[20]Transcript 19 February 2016, p 9-55, ll 27-46.
After some further discussion between the learned Magistrate and senior counsel for the prosecution, the following further exchange occurred between his Honour and counsel for the defence:
“MR LABONE: Well, your Honour, with respect to my learned friend, this – these panels are all of different sizes. The SSP type 13 panel, as I understand it, had the longest span.
BENCH:Yes.
MR LABONE: The other ones are smaller. And just on principle, the effect of that length is going to have an effect on the strength of the [indistinct] because there’ll be a different load applied to it over a different area. There’s no expert evidence whatsoever in relation to any of these panels that your Honour could make any decision. The manufacturing process? Well, your Honour has recalled by object.[21] Each panel is made in a different way, depending on the slump of the concrete and the workers on the job at the time. So your Honour can’t take from one observation that every panel was made that way. It’s just – that’s the – contrary to the evidence. My friend’s case just can’t – it can’t be enhanced on that basis.
BENCH:Well, I’ll stop you there. I hear what you’re saying and, indeed, I might have some difficulties in necessarily finding that all of the different types of panels were necessarily manufactured incorrectly based on some submission you make to me based upon the evidence. It would seem to me that, in effect, one may be able to, on the evidence – and I’m not saying one can, and I’m sure I will hear conflicting submissions on this – to treat the SSP13 panels in one category and the other panels in another category on the basis of what you’ve just said to me. That the actual complaint doesn’t refer to any particular panel, it just refers to the panels – or the manufacturing process.
So I’m going to allow the questioning. It seems to me that that’s one of the difficulties with this type of prosecution is, people might perceive something whether – what communications had been between the parties and what correspondence might have passed which should or may have disabused somebody of something. But I’m going to allow the questions. And it seems to me that your strongest point on that would be to, in your submission, in effect, perhaps at least quarantine all the non SSP13 panels and say why the evidence given, particularly the evidence of slump and whatever, can’t relate to the other panels. I’m sure you’ll want to have – for other reasons, and perhaps for the same reasons – to cover the SSP13’s, because I’m sure you’re briefed to defend Quickcell with respect to the entire process, not just the non-SSP13 process. So that’s how I’m going to proceed. Now does anything arise from that gentlemen?”[22]
[21]This appears to be a typographical error and it is most likely that Counsel had referred to “my objection”.
[22]Transcript 19 February 2016, p 9-57, l 42 to p 9-58, l 33.
I have set out these matters concerning the charge, its amendment and the issues concerning the admissibility of Professor Dux’s evidence because, in my view, they demonstrate a lack of particularity which bedevilled this prosecution. With great respect to the learned Magistrate, it was no answer to the objections taken to Professor Dux’s evidence in re-examination that he might have difficulties in finding that all of the different types of panels were manufactured incorrectly based on submissions made by defence upon the evidence. The issue is whether there should be any evidence concerning panels other than that of the type which failed: the SSP13. That is, did evidence concerning panels of any other type meet the primary test of admissibility; relevance. To the proof of what facts in issue was it relevant? That could only be resolved by close consideration of the particulars of the charge bought against Quickcell. Those particulars confined the charge, and, thereby, what evidence was relevant to its proof. It was a criminal prosecution, not an inquiry. A prosecution cannot (fairly) be conducted on the basis that evidence be admitted and submissions later heard as to whether the charge, or aspects of it, can be held to fit within the evidence.
The Magistrate’s assumption as to the extent of defence counsel’s instructions was also neither to the point, nor relevant to the issue of what were the particulars of the criminal charge which Quickcell was called upon to answer.
The importance of understanding the particulars of the charge, and thus what evidence was admissible and for what purpose, was demonstrated in the respondent’s submissions on the appeal. Quickcell had, again, submitted that evidence concerning panels other than the failed panel had been admitted, impermissibly, as similar fact or propensity evidence. In written submissions the respondent, again, submitted that the evidence was not propensity evidence.
It was submitted in the respondent’s written submissions on the appeal that its basis for admission and its relevance was as follows:
“This evidence was not propensity evidence, it was evidence relevant to a fact in issue, namely, whether the appellant had failed to comply with the health and safety duty imposed on it by s 23 to ensure so far as reasonably practicable that the panel which failed was manufactured without risks to health and safety. Reasonable practicability was governed by s 18 – that reasonably able to be done to ensure health and safety taking into account the matters set out, in particular, at paras (c) and (d) of s 18.
The number of other (if any) defectively manufactured panels bore on the likelihood of the manufacturer (the appellant) knowing of the risks of death/serious injury or upon the likelihood that the appellant should have known of that risk and it bore upon what the appellant either knew, or ought reasonably to have known, about ways of eliminating or minimising the risk. Had no account be taken of the other defective panels then one could have asked: how could the appellant have known or reasonably have known that only one of thousands posed such a risk; how could the appellant have known or reasonably to have known of a way to eliminate the risk of only one defective panel resulting from its process of manufacture.
Whether there was only one or more than one defectively manufactured panel also bore upon whether it would have been reasonable to adopt or implement other ways to eliminate or minimise the risk.”[23]
[23]Respondent’s outline of submissions, paras 17 to 19.
As can be seen from these submissions, on the appeal the respondent’s position was that the prosecution concerned a breach of Quickcell’s statutory duty by failing to ensure that the failed panel was manufactured without risks to health and safety.
In the course of oral submissions, in addressing the basis upon which evidence of the manufacturing process had been admitted and that it was not propensity evidence, Mr Copely QC said:
“So the contention that I make to your Honour is that the evidence of Professor Dux about the manufacturing process that he observed was in terms of Harriman v The Queen[24] at p 594, evidence probative of the offence charged or of a fact in issue. Because evidence of the manufacturing process bore upon what the respondent company ought reasonably to have known about the hazard or the risk, and the ways of eliminating it or minimising it, and it bore upon the availability and suitability of ways to eliminate or minimise the risk. And the evidence of Dux was simply this, that he watched how these men built the panel, and he noticed, if one reads his report, that when they came to level it off, they levelled it off in such a way that they pushed too much concrete ahead of the iron bar; thus, leaving a level of concrete that was lower than the 95 millimetre depth behind.
That was simply his evidence, and it would appear, from going back and reading his report, that the reason he went to observe that process was to try to get some understanding as to how this panel may have been manufactured, to put it neutrally, too thin. So the evidence wasn’t at all being led, and I don’t recall reading anywhere in the submissions from the prosecution, that because another panel or panels had been manufactured too thin or with not the required level of 95 millimetre thickness, therefore, it is more likely than not that the company is guilty of this offence because they’ve done that on this day.”[25] (emphasis added).
[24](1989) 167 CLR 590.
[25]Appeal transcript, 8 November 2018, p 1-89, ll 20-39.
The following exchange then occurred:
“HIS HONOUR: And you weren’t putting on the panels on trial, as it’s referred to in the appellant’s submissions.
MR COPELY: No. No, they ---
HIS HONOUR: It’s about the failure. It’s a case about the failure of one panel.
MR COPELY: Yes.
HIS HONOUR: That it was not manufactured in – or, sorry, rather that in the manufacture of it ---
MR COPELY: Yes.
HIS HONOUR: --- The duty imposed by s 23(2) was not complied with.
MR COPELY: Yes.”[26]
[26]Ibid, at p 1-89, l 40 to 1-90, l 10.
Again, this makes clear that the case concerned the manufacture of one particular panel which failed and whether or not in the manufacture of that panel Quickcell had failed to comply with the workplace health and safety duty imposed on it.
The nature of the appeal
The nature of the appeal under s 222 of the Justices Act 1886, being an appeal by way of re-hearing, is that the appellate powers of the Court are to be exercised for the correction of error.[27] In Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission,[28] Gleeson CJ, Gaudron and Hayne JJ said:
“Ordinarily, if there has been no further evidence admitted and if there has been no relevant change in the law, a Court or tribunal entertaining an appeal by way of re-hearing can exercise its appellate powers only if satisfied that there was error on the part of the primary decision maker. That is because statutory provisions conferring appellate powers, even in the case of an appeal by way of re-hearing, are construed on the basis that, unless there is something to indicate otherwise, the power is to be exercised for the correction of error.”
[27]Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at 203-204, [14]; Allesch v Maunz (2000) 203 CLR 172 at 180, [23]; CDJ v VAJ (1998) 197 CLR 172 at 201-202.
[28]Supra at [14].
In Fox v Percy,[29] Gleeson CJ, Gummow and Kirby JJ observed:
“… the Appellate Court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a Judge sitting alone, of that Judge’s reasons. Appellate Courts are not excused from the task of ‘weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect’.”[30]
[29](2003) 214 CLR 18 at 126-127, [25].
[30]Ibid at [27] citing Dearman v Dearman (1908) 7 CLR 549 at 564, itself citing The Glannibanta (1867) 1 PD 283 at 287.
Their Honours went on to say:[31]
“If, making proper allowance for the advantages of the trial Judge, they conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute.”
[31]At [17].
Further on,[32] their Honours said:
“But in every appeal by way of re-hearing a judgment of the Appellate Court is required both on the facts and the law.”
[32]At [29].
As to conducting a “real review”, in Robinson Helicopter Company Inc v McDermott,[33] a Full Court of the High Court said:
“A Court of Appeal conducting an appeal by way of re-hearing is bound to conduct a ‘real review’ of the evidence given at first instance and of the Judge’s reasons for judgment to determine whether the Judge has erred in fact or law. If the Court of Appeal concludes that the Judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings. But a Court of Appeal should not interfere with the Judge’s findings of fact unless they are demonstrated to be wrong by ‘incontrovertible facts or uncontested testimony’, or they are ‘glaringly improbable’ or ‘contrary to compelling inferences’.”
[33][2016] 331 ALR 550 at [43].
In Lee v Lee,[34] Bell, Gaegler, Nettle and Edelman JJ further explained:
“A Court of Appeal is bound to conduct a ‘real review’ of the evidence given at first instance and of the Judge’s reasons for judgment to determine whether the trial Judge has erred in fact or law. Appellate restraint with respect to interference with a trial Judge’s findings unless they are ‘glaringly improbable’ or ‘contrary to compelling inferences’ is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial Judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. Thereafter, ‘in general an appellate court is in as good a position as the trial Judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial Judge.”[35]
[34][2019] 372 ALR 383 at [55].
[35]Citing Warren v Coombes (1979) 142 CLR 531 at 551.
As what is required on this appeal by way of rehearing is a real review of the evidence and the Magistrate’s reasons, it is unnecessary to concentrate overly on the grounds of appeal set out in Quickcell’s notice of appeal as developed in its outline of argument. The latter, far from being an outline, is a tortuous document comprising some 57 pages. Much of it was dedicated to misconceived grounds set out in the notice of appeal. These included, on a number of issues, that the Magistrate had “failed to deal with a fundamental issue” or that particular failures to deal with issues or provide reasons were a denial of natural justice and/or “amounted to a constructive failure to exercise jurisdiction”. Those submissions were based upon the explanations of a constructive failure to exercise jurisdiction, as opposed to an actual failure to exercise jurisdiction, in the minority judgment of Gaudron J in Minister for Immigration and Multicultural Affairs v Yusuf,[36] and upon the discussion of that principle in Dranichnikov v Minister for Immigration and Multicultural Affairs.[37] Those submissions wholly failed to appreciate that their Honour were there addressing jurisdictional error on the part of an administrative tribunal. Those submissions wholly failed to appreciate the “critical distinction which exists between administrative tribunals and courts of law” when considering jurisdictional error.[38]
[36](2001) 206 CLR 323 at [41]-[44].
[37](2003) 197 ALR 389 at [24]-[25] per Gummow and Callinan JJ and at [87] per Kirby J.
[38]Craig v South Australia (1995) 184 CLR 163 at 179 per Brennan, Deane, Toohey, Gaudron and McHugh JJ.
A number of matters addressed in Quickcell ‘s “outline” were further expanded upon in three separate documents entitled “speaking notes” handed up on the hearing of the appeal.[39] Those “notes” ran to a further 28 pages. Those notes identified two contentions. It is convenient to deal with the second of them at the outset of these reasons.
[39]Documents marked A, B and C for identification.
The contention is that Quickcell accepts that it had a duty under s 23 of the Act but that the duty under s 23 is limited to things within the manufacturer’s control. It submitted that, in this case, those things were set out under subsections 23(3) and (4). It was further submitted that the evidence is that those things were done and that the failures alleged by the prosecution, particularly in paragraph 7 of the particulars, were not made out. The submission continued that because Quickcell had not failed to ensure the matters set out in paragraph 7, it followed that it did implement the control measures set out in paragraph 8 of the particulars so far as was reasonably practicable. The submission, as further developed, was that “the focus in this case falls on whether Quickcell carried out its duty under subsections 23(3) and (4)”.
Then, having addressed why it says that the court could not be satisfied beyond reasonable doubt that it had breached its duties under subsections 23(3) and (4), Quickcell concluded its submission saying “the court would, therefore, not be satisfied beyond reasonable doubt that Quickcell failed to ensure, so far as was reasonably practicable, that the SSP13 type panel the subject of the charge, which failed, was manufactured to be without risks to the health and safety of the relevant persons”.
That submission, with respect, displays a lack of understanding both as to the structure of s 23 of the Work Health and Safety Act2011 and as to what the case was about.
The duty imposed by s 23(2) is cast in broad terms: to ensure, so far as is reasonably practicable, that the structure is manufactured to be without risks to the health and safety of the relevant persons. The further, specific matters prescribed in subsections 23(3) and (4) must be done by the manufacturer in order to discharge the general duty imposed by s 23(2), but they do not define the content of that duty. Proof beyond reasonable doubt that the manufacturer did not do the things prescribed by subsections (3) and (4) may prove that the manufacturer has not discharged the duty imposed by subsection (2). A failure to prove that the manufacturer has not done those further things will not, however, result in a failure to prove that the duty imposed by subsection (2) has not been discharged.
A failure to discharge that duty may be constituted by any number of acts or omissions entirely unrelated to subsections (3) or (4). The acts or omissions by which Quickcell is alleged to have contravened its s 23(2) duty in this case are those particularised at paragraph 7 of the particulars set out in the complaint. None of those acts or omissions engage either of subsections 23(3) or (4).
Far from the focus of the case falling on whether Quickcell carried out its duties under subsections 23(3) and (4) as submitted, those provisions are entirely irrelevant to the case.
Essentially, the issues on the appeal can be reduced to one of the 14 grounds of appeal set out in the appeal notice. Ground 9 is “there was insufficient evidence for the court to be satisfied beyond reasonable doubt that the defendant had failed to comply with the duty imposed on the defendant under s 23 of the Work Health and Safety Act 2011 (Duty), and/or in the alternative, the evidence reasonably admits that the defendant did not fail to comply with the Duty”. If Quickcell can make good this ground, the appeal should succeed.
In order to conduct a real review of the trial and decision on this appeal, the most appropriate way to proceed is with a recitation and some analysis of the learned Magistrate’s reasons. Through that analysis, the centrality of Professor Dux’s evidence and thesis will become apparent. So too, such analysis will reveal the centrality of one issue to Professor Dux’s overall thesis: the manufacturing process adopted by Quickcell resulted in the panel being too thin which caused it to fail. Such analysis will reveal why this central thesis was not proven on the whole of the evidence, or indeed in the prosecution case.
The decision in the Magistrates Court and centrality of the evidence of Professor Dux
As already observed, the prosecution case rested on the evidence of Professor Dux. Conviction of Quickcell depended upon the Court accepting his evidence. Professor Dux had been engaged to provide a report as part of the investigation into the failure of the panel which was commenced by Workplace Health and Safety shortly after the incident. Professor Dux had provided a report dated 26 February 2013. That report became Exhibit 7.2. At paragraph [12] of his reasons the learned Magistrate recited the conclusions of Professor Dux set out at paragraph 26 of that report which were:
“1.The SSP13 panel failed in bending due to inadequate structural properties which resulted from an incorrect manufacturing practice by Quickcell;
2.The key manufacturing defects were:
·Incorrect location of prestressing strands, and
·Inadequate thickness of concrete above stands due to inadequate concrete practice, specifically failure to employ good screeding practices that would have resulted in panels of the correct depth and failure to check the depth of concrete achieved with the practice actually employed;
3.The combination of these defects rendered the failed panel incapable of carrying the expected construction loads;
4.There is no evidence that indicates the failure resulted from design error;
5.There is no evidence that indicates the failure resulted from incorrect construction practiced by Trackstar at the Springfield Station site.”
The learned Magistrate correctly observed at paragraph [14] of this reasons:
“The complaint is in effect based on the conclusions reached by Professor Dux in his report of 26 February 2013.”
At paragraph [28] of his reasons[40] the learned Magistrate summarised the prosecution case as being “that Quickcell has exposed individuals to the risk of serious injury or death by manufacturing thin panels, moving the prestress strands to a level that is high and not ensuring consistent depth”.
[40]Citing paragraph 14 of the prosecution’s written submissions.
In light of the discussion above about the lack of clear particularity of the prosecution case, it should be observed that in its written submissions the prosecution references to panels was to “SSP type panels”[41] although it was identified that the panel which failed on 26 October 2012 was of the SSP13 type.[42] In that regard, at paragraph [27] of his reasons, the Magistrate observed:
“For the Court to find Quickcell guilty, it needs to be established beyond reasonable doubt that the way the panels were manufactured exposed individuals to risk of serious injury or death.”
[41]Written submissions for the prosecution at paras 2 and 3.
[42]Ibid at para 5.
Paragraphs [27] and [28] of his Honour’s reasons were a recitation of the prosecution’s written submissions.
The learned Magistrate observed that 219 SSP panels were manufactured and delivered by Quickcell to Thiess between 24 June 2012 and 27 October 2012 (being the period charged after amendment of the complaint) and set out a table summarising the types of panels and length, width and depth of each of them.[43]
[43]Paragraphs [31] and [32] of the reasons. The summary and table had been set out at para 16 of the prosecution’s written submissions. The summary and table as set out in the submissions and as adopted by his Honour was said to have been based upon Exhibits 3.3-3.11 and Exhibits 4.58-4.67.
His Honour observed[44] that a number of panels of both the SSP12 and SSP13 types were rejected by Thiess and returned to Quickcell. His Honour further observed:
“The measurements and a number of these panels varied, including panel thickness measurements which were as low as 70 millimetres on SSP12 panels and 75 millimetres on SSP13 panels.”[45]
[44]At para [33].
[45]Paragraph [34] of his Honour’s reasons.
These observations were based upon Exhibit 4.73. Exhibit 4.73 was a document in the nature of a table which was headed “Rejected SSP panels (panels not installed and returned to Quickcell)”.
The true evidentiary significance of Exhibit 4.73 is, in my view, a matter of considerable importance. It is a matter to which I shall return.
The Magistrate recorded that it was uncontentious that the target thickness for all SSP panels was 95 millimetres and that all panels manufactured during the period from 24 June 2012 to 22 October 2012 had cover to strands of 50 millimetres. The cover to strands is measured from the centre of the strand to the soffit or bottom of the slab.
His Honour then set out the applicable Australian Standards, being AS3610 of 1995, Formwork Concrete[46] and AS3600-2009, Concrete Structures.[47] As to the applicability of AS3610 and whether it applied to the precast slabs manufactured by Quickcell, his Honour observed at [38] to [44]:
[46]Exhibit 8.2.
[47]Exhibit 8.3.
“Despite the defence submission to the contrary, the precast panels manufactured by Quickcell have been accepted as formwork throughout the evidence. Professor Dux throughout his reports and oral evidence has referred to the panels as formwork. Mr Fordyce accepts and refers to the precast panels as formwork in his reports and oral evidence.
The defence accept the precast panels constitute formwork; it was not put to Professor Dux that the precast panels were not formwork, indeed the line of questioning directed to Professor Dux accepted that the precast panels were formwork. This was confirmed by counsel for the defence when specifically asked by the Bench.
‘BENCH:In effect pre-manufactured formwork, and really that’s all Quickcell was doing, was manufacturing some formwork?
MR LABONE: Yes…
MR LABONE: The way that this structure is put together, there are precast elements which form the formwork.’
The definition of formwork is ‘the surface, supports and framings used to define the shape of concrete until it is self-supporting.’
The precast panels were, as stated by Mr Fordyce, to ‘act as permanent formwork to an in situ reinforced concrete topping slab’.
As the panels were to act as formwork, AS3610 applies and confirms that the structural design of formwork shall comply with section 4 of AS3610.
Mr Fordyce agreed with Professor Dux that for design formwork the loads specified in AS3610 would be used.”
The Magistrate’s observations adopted the written submissions of the prosecution.[48]
[48]Outline of closing submissions on behalf of the complainant filed 22 December 2016, paras 23 to 28.
The learned Magistrate then set out various matters concerning loads and the design capacity and design load generally and as they relate to panels of different design and manufacture: 40 millimetres to cover design with 95 millimetres thickness – 40MPa; panel 50 millimetres cover, if 95 millimetres in depth; panel with 50 millimetres cover, thickness below 95 millimetres – 50MPa concrete.[49]
[49]Decision paras [44] to [63]. Those paragraphs of the decision adopt paras 29 to 48 of the complainants outline of submissions.
His Honour concluded, at [64]:
“The result is, if you do not take into account any of the additional safety or load factors that are required in AS3600 you have a situation where panels under 85 millimetres thick are likely to fail as their capacity is less than the construction load of 24.3kNm, that is under 85 millimetres they may just support the construction amount, but they would not support any further loads. None of the panels would satisfy the Australian Standards as outlined in [61].”
His Honour then observed, at [65]:
“It would appear that the defence do not contest that in isolation a design for 95 millimetres thickness and 50 millimetres cover does not comply with the Australian Standards. However, it is the defence position that the manufacturer (Quickcell) can enforce load limitations, and that this was done by the email of 13 September 2012. The defence argument is that with this ‘load limitation’, it would alter the bending moment to approximately 19kNm and, therefore, defence argue that even a slab of 80 millimetres thickness should not fail.”
Those conclusions and observations adopt paragraphs [49] and [50] of the prosecution’s written submissions.
His Honour then turned to consider the issue of load restrictions. At paragraph [66] he observed:
“The evidence of Professor Dux was that if a panel does not comply with the Australian Standards it cannot be made compliant by the manufacturer placing a load limitation on the panel.”
Having referred to the definition of “formwork” in AS3610 the Australian Standard Formwork for Concrete, at [68] his Honour said:
“The defence submit ‘the way that the panels were used in the construction process does not sit comfortably with the definition of formwork. The evidence before the Court is that the panels were designed to become part of any structure once combined with the topping concrete pouring on them. Accordingly, the concrete poured on the panels was never to be self-supporting. This submission and a number of the submissions that follow in relation to whether or not the precast panels were formwork is inconsistent with how the case was run with the acceptance by the defence during the course of the case, that all that Quickcell was in effect doing was manufacturing formwork.”
The learned Magistrate referred to the evidence of the expert engineer called in the defence case, Mr Michael Fordyce, as contained in his supplementary report of 11 February 2016[50] and its reference to clauses 4.6.3(b) and 5.3.1(b) of AS3610. Respectively, those clauses provide:
“Formwork shall comply with:
Where it is assembled from proprietary components these shall be used in accordance with the manufacturer’s discretions.”
and
“Formwork shall be erected and maintained in the manner that would ensure:
Compliance with the formal documentation and project documentation.”
[50]Exhibit 7.16, para 4.3.
From Quickcell’s reliance upon those clauses, his Honour said that it appeared to be submitted that those clauses allowed the designer and/or supplier of formwork to specify any limitations or restrictions in the use of the formwork.[51] His Honour noted that proprietary items were also defined by the standard as “an item made in quantity production or [sic] general use in formwork assemblies, and whose load capacity has been approved by analysis or test”.[52]
[51]Reasons at [70].
[52]Reasons at [71] reciting from Exhibit 8.2; AS3610 clause 1.52.
His Honour said that the defence submission based on clause 4.6.3(b) of AS3610 did not take into account the definition of “proprietary item” in the standard.[53] His Honour also observed that this defence submission seemed to resile from the acceptance by defence counsel and Mr Fordyce in the course of the proceedings that the panels were formwork.[54] After noting that it was the prosecution case that proprietary items, as defined by the standard could not include the precast panels the subject of the charge because they were not made in quantity production for general use and that they had not had their load capacities proven by analysis or tests, but rather they had been designed and built for a specific limited purpose, and having noted that this was supported by evidence of Mr Russo, a civil engineer employed by Thiess as the manager for the project,[55] his Honour concluded, at [76]:
“In this regard the Court accepts the prosecution submission that the formwork in this case is not a proprietary item which is supported by the evidence of Professor Dux. During cross-examination by defence counsel, Professor Dux gave examples of proprietary formwork being pre-manufactured proprietary components and of how they are to be used. The Court accepts the evidence of Professor Dux and Mr Kovis that the precast slabs designed and built by Quickcell were not proprietary items but rather designed and built for a specific purpose. It should be noted that the panels were specifically designed by Quickcell at the request of Trackstar because the proprietary humeslabs were not of an acceptable thickness.”
[53]Reasons at [72].
[54]Reasons at [73].
[55]Reasons at [74]-[75].
In addressing the panel design process, the learned Magistrate observed that the drawing endorsed “as built drawing”, being drawing QTP-TS-FS-001 dated 23 May 2012, “contained inconsistencies which meant that no panel could have been built to the specifications contained therein. The side view of that as built drawing goes with the right hand side centre of strand 40 millimetres on the left side, 50 millimetres cover to strand”. His Honour then observed, “a subsequent drawing,[56] appears to show correct design which on the side view shows on the left and right centre of strand being 40 millimetres from the base of the slab. This also has the correct depth of the panel being 95 millimetres whereas the as built drawing dated May 2012 has a depth of 100 millimetres”.[57]
[56]Exhibit 4.9 dated 24 May 2012.
[57]Reasons at [78].
If Professor Dux’s thesis were correct in respect of the failed panel then one would expect that it would manifest itself in all panels being manufactured to thinly. This is clearly not the case.
If his thesis were not correct in respect of the failed panel, one would also expect it to have been included in Exhibit 4.73 as a panel rejected and returned to Quickcell because of inadequate thickness.
In my view, the manufacture of the panel so that it was too thin is so central to the prosecution case that a reasonable doubt about that fact must cause one to have a reasonable doubt that the defendant failed to comply with its duty. The centrality of this issue can be seen from the following summary of Professor Dux’s evidence. He expressed his conclusions in his first report as follows:
“It is concluded that:
1. The SSP13 panel failed in bending due to inadequate structural properties which resulted from incorrect manufacturing practice by Quickcell.
2. The key manufacturing defects were:
·Incorrect location of prestressing strands, and
·Inadequate thickness of concrete above stands due to inadequate concreting practice; specifically, failure to employ good screeding practice that would have resulted in panels of the correct depth and failure to check the depth of concrete achieved with the practice actually employed.
3. The combination of these defects rendered the failed panel incapable of carrying the expected construction loads.
4. There is no evidence that indicates the failure resulted from design error.
5. There is no evidence that indicates the failure resulted from incorrect construction practice by Trackstar at the Springfield Station site.”[159]
[159]Exhibit 7.2, Section 7, p 28.
In his second report provided in response to Mr Fordyce’s first report, Professor Dux said:
“As the Fordyce report states, most failures feature a combination of factors. The compounding error here is the failure to systemically achieve the design panel thickness during manufacture”.[160]
[160]Exhibit 7.5, Section 2.2 p 6.
He expresses his conclusions in that report as follows:
“1.The combination of deficient thickness and misplaced strands was sufficient for the panel to collapse without overload.
2.There is no evidence that the failed panel has been overloaded.
3.The collapse was not due to a deficiency in the design as expressed in the design drawing of 24 May 2012.
4.I doubt that a panel design with thickness 95mm and cover to strands of 50mm was properly undertaken (i.e. to AS3600) prior to commencement of manufacture.
5.I think that the adoption of 50mm covered strands was likely due to one or a combination of poor document control that failed to eliminate a superseded drawing which referred to “50mm cover to stand”, incorrect drilling of holes in foreman’s and decision to simply change the strand cover to 50mm to suit the misplaced holes or to suit some other avoidable manufacturing issue.
6.The deficient thickness was due to inadequate training and supervision of the workforce at the casting yard.
7.The Fordyce report is rejected.”[161]
[161]Exhibit 7.5, Section 7, p 20.
In his oral submissions on the appeal, Mr Copley QC submitted that as long as the court was satisfied of at least one of the failures in the particulars, it would be open to be satisfied beyond reasonable doubt of the offence. As a statement of general principle that is undoubtedly correct.[162] As Mr Copley QC conceded, however, whether that was so in this case would depend upon an understanding of the evidence in the prosecution case, particularly of Professor Dux. Mr Copley QC conceded that if the evidence was that particularised failures, for example the positioning of the strands and the thickness of the panel, together caused it to fail, then the court would need to be satisfied of each of those before the court could be satisfied beyond reasonable doubt of the offence.[163]
[162]Coleman v Kinbacher & Anor (Qld Police) [2003] QCA 575 at [14] per Chesterman J, McMurdo P and Davies JA concurring.
[163]Appeal Transcript 8 November 2018 pp 1-99 ll4-35.
In my view, Professor Dux’s conclusions that it was a combination of failures, of which the thinness of the panel was the compounding factor, which caused the panel to fail, does not permit the court to be satisfied beyond reasonable doubt that Quickcell failed to comply with its duty if the court is unable to be satisfied that the panel which failed was, in fact, manufactured too thin. This is reflected in the Magistrate’s reasons. At paragraph [160] his Honour said:
“The combination of these issues, in particular the manufacture of panels with 50mm cover to the soffit rather than 40mm cover to the soffit together with the panels lacking adequate depth due to poor manufacturing technique has led to the manufacture of panels unable to carry the construction loads present on 26 October 2012.”
Then, at [171] to [172] he said:
“In this case a panel failed. Failure of a panel does not necessarily mean that there has been a breach of the Act but it predicates an investigation which may well result in evidence being adduced which would show that there has been a breach of the Act.
In this case there has been such an investigation, and arising from that investigation it is the prosecution’s view that there has been a breach of the Act. The prosecution must establish that Quickcell failed to comply with its manufacturing duty and it made concrete panels that were (sic).”
The second sentence of paragraph [172] is incomplete, however, it is readily inferred that his Honour intended to conclude it with words to the effect of “too thin” or “of inadequate depth”. At [173] he went on to say:
“The prosecution case as stated in paragraph 28 is that Quickcell has exposed individuals to serious injury or death by manufacturing thin panels, moving the prestress strands to a level that is high and not ensuring consistent depth of the panels. In reality manufacturing thin panels. The court has accepted the prosecution has proved beyond reasonable (sic) that the panel that failed was manufactured to an inadequate depth i.e. it was too thin in places. As can be seen from the varied depths along the face of the bending fracture.[164]
[164]See paragraph 118 and 119.
His Honour then went on to find that the prosecution had also proved beyond reasonable doubt that the panel as constructed had the prestressing strands at an inappropriate depth.[165]
[165]Reasons at paragraphs [174] – [176].
At [178] his Honour concluded:
“A reasonable person in the position of Quickcell would reasonably have known that a panel which was constructed with inadequate depth or one which was constructed with prestressing strands incorrectly placed would be at risk of collapse.”
In my view, that ultimate conclusion that a reasonable person would reasonably have known that a panel constructed with inadequate depth or with incorrectly prestressing strands would be at risk of collapse is not supported by the evidence, particularly that of Professor Dux already recited as to the combination of factors and the centrality of inadequate panel depth to his opinion. Indeed, it is inconsistent with the Magistrate’s own findings made earlier in his reasons.
There is other evidence which, in my view, excludes the conclusion that a reasonable person would have known that the positioning of the prestressing straps would of itself create the risk of collapse of the panels. That evidence can be referred to briefly because of the conclusion I have reached that the failure to prove that the panel was manufactured too thin leads to a failure to prove the offence.
The issue concerning the location of the pre-stressing strands is that the design had them positioned with 40 millimetres cover to soffit whereas they were manufactured with 50 millimetres cover to the soffit. A panel with 50 millimetres cover would have less strength than a panel with 40 millimetres cover. Mr Palmer, the Thiess engineer, was cross-examined about 50 millimetres cover, he said:
“I accept that there was design work done at 50 millimetres either cover or centre of strand. There was design work done.”[166]
[166]Transcript 1 September 2015, p 2-98, l 43 to 2-99, l 2.
He agreed that design with 50 millimetre cover had been checked by a registered professional engineer. He agreed that he had been notified of the 50 millimetre cover in an email of 6 September 2012.[167] Mr Palmer went on to say:
“I agree that yes, there was design work done. I have no issue with that… I agree that yes, there was design work from the evidence I’ve seen today for 50 millimetre cover. I have no issue with that. I’m not going to dispute it. It’s there… it was approved by an engineer yes, it wasn’t approved formally by our design engineers.”[168]
[167]Exhibit 4.25.
[168]Transcript 1 September 2015, p 2-99, ll 13-23.
Mr Peter Brown was the engineer who certified the design. His qualifications include Bachelor of Engineering and Master of Engineering Science. On 31 August 2012, Mr Shamsai emailed Mr Brown asking that he check Mr Shamsai’s calculations for the manufacture of SSP13 type panels. His email read:
“As you know we are doing the above job for Trackstar. I have attached to this email a calculation concerning the floor slabs. They are 3.8 metres long by 2.5 metres wide and 95 millimetres thick, with 85 millimetre topping concrete. I have used 7 number of strands, with 50 millimetre cover. The applicable live load is 7.5 kPa and I allowed for 2 kPa construction load. As per my calculation, the available Mu is okay for the required Mu. And also the stresses are in compliance. Would you please check this calculation for the given span/load requirement so I can pass it on to the designers.”[169]
[169]Exhibit 5.1.
Mr Brown initially wrote on a printed copy of the email “Okay PB”. He later crossed that out and wrote “See later”.[170] On 5 September 2012 Mr Brown replied to Mr Shamsai’s email saying “I agree with your design”.[171] On 13 September 2012 Mr Brown emailed Mr Shamsai saying “there is the same problem with the Trackstar panel. For the wet concrete case, it needs to be either 100 thick with 7 strands or 95 thick with 8 strands”.[172]
[170]Exhibit 5.1 and Transcript 2 September 2015, p 3-23, ll 33-34.
[171]Exhibit 4.25.
[172]Exhibit 5.2.
Mr Brown gave oral evidence about these communications. He said:
“Yes. Mr Shamsai sent me an email – well, there it is. He sent me an email saying that they were doing these panels, and so I did a quick check and said, yes, it was okay. I think – I probably scanned that page and sent it back to him, but then when I had more time or for whatever, I went through and – and just checked it again and changed my mind. That was a couple of weeks later and said, no, instead of 7 strands, I recommended you put 8 --- or make the panel thicker.”[173]
[173]Transcript 2 September 2015, p 3-23, ll 22-30.
He went on to say:
“Well, as I say, I think – I think agreed with the – the email by writing on it okay PB and scanning it and emailing it back to Mr Shamsai. So that’s what that means. And then when I had another look and changed my mind, I crossed it out and said see later, because later in the file there’s another email that says, you know, let’s beef it up a bit.”[174]
[174]Ibid at ll 36-42.
When asked in relation to the email on which the notation “Okay PB” appeared, Mr Brown was asked “what were you okaying? What was the purpose of the email?”. Mr Brown responded “I was okaying the design”.[175]
[175]Ibid at ll 44-45.
In relation to the calculations which Mr Shamsai had performed and provided to him to check, Mr Brown said “I generally don’t sort of look much at his calculations. I do my own”.[176]
[176]Transcript 2 September 2015, p 3-24, l 7.
Mr Brown performed calculations on 13 September 2012 for a 2,500 millimetre wide and 95 millimetre deep panel with a maximum of 85 millimetres of topping concrete. Those calculations are set out in a document titled “Structural Calculation for Quickcell Panel”.[177] The calculations were made based upon seven, 12.7 millimetre diameter pre-stressing strands located with the centre line of the strand 50 millimetres from the bottom of the panel, providing 44 millimetres of clear cover to the strand. Mr Brown performed further calculations on 26 October 2012 which are set out in another document titled “Structure Calculations for Quickcell Panel”.[178] Those calculations were also made based upon a 2,500 millimetres wide and 95 millimetres deep panel with 85 millimetres of topping concrete. Those calculations were based upon eight, 12.7 millimetres diameter pre-stressing strands located with the centre line of the strand 55 millimetres from the bottom of the panel. The panel which failed was manufactured with eight pre-stressing strands with 50 millimetres clear cover to strands. The calculations of Mr Brown were based on a panel with 49 millimetres clear cover.
[177]Exhibit 5.3.
[178]Exhibit 5.4.
In evidence Mr Brown said of these calculations:
“There seemed to be some uncertainty in my mind as to where the panel – where the panel was, what height it was, whether it was 40, 50 or 55 from the bottom of the pre-stress panel. So here I was just checking it at 55 just to make sure I – I would say that it still worked which I – I think --- yeah. Just let me look through. What was the result? Yeah. So it still – still worked at 55 and 85 deep. Yep.”[179]
[179]Transcript 2 September 2015, p 3-27, ll 5-22.
He confirmed this in cross-examination.[180] Mr Brown, in both evidence-in-chief and cross-examination, said that what gave the panel its strength is the depth between the strand and the top of the panel.[181]
[180]Ibid at p 3-42, l 43.
[181]Ibid at p 3-32, l 47 and p 3-44, l 27.
Given Mr Brown’s evidence, which was not considered in his Honour’s reasons, I could not conclude that a reasonable person would have known that the positioning of the pre-stressing strands with 50 millimetres cover to soffit would create a risk of the collapse of a panel. In my view, Mr Brown’s evidence further demonstrates that proof of manufacture of the panel such that it was of inadequate depth and “too thin” is required in order to prove the prosecution case. The prosecution has not proven this issue essential to that case.
For these reasons, I cannot be satisfied beyond reasonable doubt that Quickcell failed to comply with its duty. The appeal against conviction must be allowed.
Costs
As the appeal against conviction must be allowed and the complaint dismissed, it follows that the costs order below should be set aside.
Section 158 of the Justices Act 1886 provides that where a complaint is dismissed the complainant may be ordered to pay to the defendant such costs as seem just and reasonable. Where the complainant is a public officer, however, that power may only be exercised if the court is satisfied that it is proper that the order for costs should be made.[182] All the relevant circumstances must be taken into account[183] in deciding whether it is proper to make the order for costs.
[182]Section 158A(1).
[183]Section 158A(2).
The parties have not been heard on those matters in respect of any order for costs which might be made in favour of Quickcell in respect of the proceedings in the Magistrates Court. They should have an opportunity to make submissions on the issue.
One thing may be said as to what costs may be awarded. By s 158B, in deciding the costs that are just and reasonable, the costs which may be awarded are limited to those scale items prescribed under a regulation unless the court is satisfied that a higher amount is just and reasonable having regard to the special difficulty, complexity or importance of the case.
Central to Quickcell’s appeal against the costs order in the Magistrates Court was its contention that his Honour should not have found that the case was of such special difficulty, complexity or importance as to warrant an award of costs beyond scale items. On the appeal, counsel for Quickcell stated that it was Quickcell’s position that in the event it was successful I would find that the matter was not of such complexity so as to warrant anything other than scale costs.[184]
[184]Appeal transcript 8 November 2018 p 1-77 l 45.
Section 159 requires the sum of costs allowed to be stated in the order. Section 225(3) provides that on the appeal the judge may exercise any power that could have been exercised by whoever made the order appealed against. Those provisions would appear to require that any costs which this court may allow for the proceedings at first instance to be stated in the order.
As to the costs of the appeal itself, the court may make any order as to the costs to be paid by the parties as the court may think just.[185] The parties should be heard on that issue.
[185]Section 226.
Disposition
The orders I would make are:
1. Allow the appeal.
2. Set aside the conviction in the Magistrates Court.
3. Dismiss the complaint.
4. Set aside the fine.
5. Set aside the order for costs.
6. Direct that the parties file written submissions on costs of both the proceedings in the Magistrates Court and on appeal, limited to five pages (inclusive), within 28 days.
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15
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