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Resource Recovery Solutions Pty Ltd v Ayton

Resource Recovery Solutions Pty Ltd v Ayton

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   RESOURCE RECOVERY SOLUTIONS PTY LTD ‑v- AYTON [2021] WASC 443
CORAM:   SMITH J
HEARD:   26 JULY 2021
DELIVERED          :   10 DECEMBER 2021
PUBLISHED           :   10 DECEMBER 2021
FILE NO/S:   SJA 1093 of 2020
BETWEEN:   RESOURCE RECOVERY SOLUTIONS PTY LTD
Appellant
AND
LEONA YVONNE AYTON
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE L DIAS
File Number            :   PE 39876 of 2018, PE 39877 of 2018 & PE 39837 of 2018

Catchwords:

Criminal law - Appeal against conviction - Failure to maintain safe working environment of a worker who was a client of a labour hire agent, in circumstances of gross negligence

Statutory construction - Meaning of 'agent' in s 23F(1) of Occupational Safety and Health Act

Construction of contracts - Characteristic features of a labour hire arrangement considered - Principles that apply to infer the extension of an existing contract

Criminal law - Elements of gross negligence under s 18A(2) of Occupational Safety and Health Act considered - Meaning of 'contravention' in s 18A - Requirements of actual knowledge

Criminal procedure - Function, purpose and effect of particulars - Whether gross negligence could be found turned on the particulars - Prosecution bound by the case it particularised, as knowledge of the contravention measures found proven by the presiding magistrate

Criminal law - Appeal against conviction - Failure to comply with an improvement notice - Failure to state reasonable grounds for forming the opinion that a person is contravening a provision of the Occupational Safety and Health Act

Statutory interpretation - Formation of requisite opinion essential pre-condition to the exercise of power to issue an improvement notice - Statement of reasonable grounds of requisite opinion a jurisdictional fact - Requirement to 'specify' in s 48(2) of the Occupational Safety and Health Act different to the requirement to 'state' in s 48(2) - Substantial compliance with the requirement to state reasonable grounds is not sufficient for an improvement notice to be valid

Legislation:

Criminal Appeals Act 2004 (WA), s 9(1), s 9(2)

Magistrates Court Act 2004 (WA), s 31(1)
Occupational Safety and Health Act 1984 (WA), s 18A, s 19(1), s 19(2), s 23F, s 48(1), s 48(2), s 48(4), s 54

Result:

Leave to appeal on Grounds 1, 2, 3, 5 and 6 refused
Leave to appeal on Ground 7 and 8 allowed
Appeal on Ground 4 dismissed
Appeal allowed on Grounds 7, 8 and 9

Conviction of offence of gross negligence pursuant to s 18A of Occupational Safety and Health Act set aside, and conviction on general duty charge pursuant to s 19A(2) of Occupational Safety Act and Health Act substituted
Conviction of failing to comply with Improvement Notice set aside and verdict of not guilty substituted

Category: B

Representation:

Counsel:

Appellant	:	S Vandongen SC & T Russell
Respondent	:	N John & G Stockton

Solicitors:

Appellant	:	Barry Nilsson Lawyers (WA)
Respondent	:	State Solicitor's Office

Cases referred to in decision:

A v…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2021] WASC 443
Decision Date

CaseChat Overview and Summary

Resource Recovery Solutions Pty Ltd, the appellant, was charged with three offences under the Occupational Safety and Health Act 1984 (WA) (OSH Act). The charges related to an incident that occurred on 28 January 2016, where a worker, Manikanthandan Rathinasabapathy, lost his right arm in a workplace accident. The charges were for gross negligence and failure to comply with an improvement notice. The appellant was found guilty of the charges by the Magistrates Court. The appellant appealed against its conviction to the Supreme Court.

The appeal raised issues regarding the interpretation of the OSH Act, the findings of fact and law made by the presiding magistrate, and whether a miscarriage of justice had occurred. The appeal was allowed on three grounds. The appeal on the ground that the presiding magistrate erred in law by misstating the legal test in considering inferential evidence to prove actual knowledge was refused. The appeal on the ground that the presiding magistrate erred in law in finding that the appellant had actual knowledge that a contravention by failing to implement the practicable measures in particulars 5(c) to (e) was likely to cause death or serious harm was dismissed. The appeal on the ground that the presiding magistrate erred in law in finding that Improvement Notice 6150097 was valid was allowed.

The conviction of the offence of gross negligence, pursuant to s 18A of the OSH Act, was set aside, the matter was not remitted for a retrial, and a conviction should be substituted for a general duty charge on Charge PE39876/18, pursuant to s 19A(2) of the OSH Act. The conviction on the charge of failing to comply with the Improvement Notice was set aside, a verdict of not guilty entered and charge PE 39837/18 was dismissed. The court will hear the parties further as to the orders that should be made to reflect these reasons, including as to costs of the appeal and the cost orders made by the presiding magistrate, and relisting the matter for sentencing of the general duty offence.

Orders