REILLY -v- DEVCON AUSTRALIA PTY LTD [2006] WASC 99

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2006] WASC 99
Case No:	SJA:1118/2005	Heard:	29 MAY 2006
Coram:	MCKECHNIE J	Delivered:	31/05/06
No of pages:	5	Judgment Part:	1 of 1
Result:	Appellant to comply with programming orders by 7 June 2006 Liberty to apply
Category:	B
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Parties:	PETER JOHN PATRICK REILLY DEVCON AUSTRALIA PTY LTD
Catchwords:	Appeals practice and procedure Strike out for want of prosecution Principles when an appeal from an acquittal
Legislation:	Criminal Appeals Act 2004 (WA) Criminal Procedure Rules 2005 (WA)
Case References:	Hancock Family Memorial Foundation Ltd v Fieldhouse [2005] WASCA 93 Roddan v Gwilliam & Anor [2005] WASCA 209 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : REILLY -v- DEVCON AUSTRALIA PTY LTD [2006] WASC 99 CORAM : MCKECHNIE J HEARD : 29 MAY 2006 DELIVERED : 31 MAY 2006 FILE NO/S : SJA 1118 of 2005 BETWEEN : PETER JOHN PATRICK REILLY

Appellant (Respondent)

AND

DEVCON AUSTRALIA PTY LTD

Respondent (Appellant)

ON APPEAL FROM:

Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE R K BLACK

File No : PE 49364 of 2003, PE 49367 of 2003, PE 7593 of 2004, PE 7594 of 2004

Catchwords:

Appeals practice and procedure - Strike out for want of prosecution - Principles when an appeal from an acquittal

(Page 2)

Legislation:

Criminal Appeals Act 2004 (WA)

Criminal Procedure Rules 2005 (WA)

Result:

Appellant to comply with programming orders by 7 June 2006

Liberty to apply

Category: B

Representation:

Counsel:

Appellant (Respondent) : Mr M A G Jenkin

Respondent (Appellant) : Mr P J McGowan

Solicitors:

Appellant (Respondent) : State Solicitor's Office

Respondent (Appellant) : Phillips Fox

Case(s) referred to in judgment(s):

Roddan v Gwilliam & Anor [2005] WASCA 209
The Hancock Family Memorial Foundation Ltd v Fieldhouse [2005] WASCA 93

Case(s) also cited:

Nil

(Page 3)

1 MCKECHNIE J: Significant unexplained delay by the appellant has continued to the hearing of this application to dismiss the appeal for want of prosecution. Only by standing back and having a broad look at the justice of the case have I concluded, by the merest margin, that the appellant should be given one last short opportunity.

2 On 18 September 2002 a concrete tilt-up panel partially erected on a Myaree building site fell and killed Desmond John Kelsh. A year later the respondent was charged with breaches of the Occupational Safety and Health Act 1984 (WA). The matter proceeded to trial in August and September 2004 and May 2005, the trial occupying 22 days. On 19 October 2005 the Magistrate delivered a reserved decision dismissing the charges.

3 On 24 November 2005 I granted leave to appeal and made programming orders, one of which was:

"3. The appellant and the respondent to lodge and serve:

(a) written submissions

(b) chronology of events relevant to the appeal

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Reilly v Devcon Australia Pty Ltd

Details

AGLC: Reilly v Devcon Australia Pty Ltd [2006] WASC 99
Case: [2006] WASC 99
Decision Date

CaseChat Overview and Summary

The Supreme Court of Western Australia heard an appeal by Peter John Patrick Reilly against Devcon Australia Pty Ltd. The case involved an appeal from an acquittal in the Magistrates Court concerning charges under the Occupational Safety and Health Act 1984 (WA), following an incident where a concrete tilt-up panel fell and killed Desmond John Kelsh. The appeal was brought following the dismissal of charges against the respondent, Devcon Australia Pty Ltd, by a Magistrate on 19 October 2005. The primary legal issue before the court was whether to dismiss the appeal for want of prosecution due to significant unexplained delays by the appellant in complying with programming orders.

The court examined the principles for dismissing an appeal for want of prosecution, particularly focusing on the balance between the rights of the acquitted defendant to a prompt resolution of the appeal and the public interest in the authoritative determination of questions of law and fact in occupational health and safety prosecutions. The court noted that while the delay was significant and unexplained, it was not inordinate when compared to other cases. However, the court highlighted the importance of a prompt resolution for the acquitted defendant and the public interest in upholding Occupational Health and Safety laws.

Ultimately, the court decided that justice could be served without dismissing the appeal immediately. The court ordered the appellant to comply with the programming orders by 7 June 2006, with the condition that if the appellant failed to do so, the respondent could relist the application for dismissal before the court. The court also noted that it would hear from the parties regarding a revised timetable for further orders and the costs of the application.

Orders