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Roadside Products v Cocker

Roadside Products v Cocker

Case [2018] TASSC 6 13 February 2018

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[2018] TASSC 6

COURT: SUPREME COURT OF TASMANIA

CITATION: Roadside Products v Cocker [2018] TASSC 6

PARTIES:  ROADSIDE PRODUCTS
  v
  COCKER, Mark

FILE NO:  2597/2016
DELIVERED ON:  13 February 2018
DELIVERED AT:  Hobart
HEARING DATES:  24 July 2017
JUDGMENT OF:  Brett J

CATCHWORDS:

Magistrates – Appeal and review – Tasmania – Motion to review – When remedy available – Jurisdiction – Magistrate identified that complaint should be amended to cure defects but made no further determination – Not an order capable of review – No jurisdiction.

Justices Act 1959 (Tas), ss 30, 31, 107, 116.
Work Health and Safety Act 2012 (Tas), s 33.
Barnes v Hovington [2015] TASSC 35, cited.
Kidman & Co v Lowndes CM & Director of Public Prosecutions [2016] NTCA 5, considered.
Aust Dig Magistrates [1345]

Criminal Law – Procedure – Information, indictment or presentment – Averments – Uncertainty – Duplicity and ambiguity – Whether each subparagraph of a health and safety provision is a separate duty and provision – Single health and safety duty provision – Several contraventions of the provision may be charged as a single offence and therefore no invalidity for duplicity.

Work Health and Safety Act 2012 (Tas), ss 19, 33, 233.
Kent v Gunns Limited [2009] TASSC 30, 18 Tas R 454, considered.
Chugg v Pacific Dunlop Limited [1988] VR 411, not followed.
Kidman & Co v Lowndes CM & Director of Public Prosecutions [2016] NTCA 5, followed.
Aust Dig Criminal Law [3066]

Magistrates – Coroners – Disclosure of information – Client legal privilege – Whether report produced to coroner was protected by privilege – Respondent made voluntary disclosure of evidence to coroner and client legal privilege was lost.

Coroners Act 1995 (Tas), s 53(1)(a).
Evidence Ac 2001 (Tas), ss 117, 122.
Bailey v Department of Land and Water Conservation [2009] NSWCA 100; Powercor Australia Ltd v Perry [2011] VSCA 239, considered.
Esso Australia Resources v FCT [1999] HCA 67, 201 CLR 49 ; Hastie Group Ltd v Moore [2016] NSWCA 305, 339 ALR 635, cited.
Aust Dig Magistrates [1382]

REPRESENTATION:

Counsel:
             Applicant:  R Taylor
             Respondent:  S Thompson
Solicitors:
             Applicant:  HWL Ebsworth Lawyers
             Respondent:  Director of Public Prosecutions

Judgment Number: [2018] TASSC 6
Number of paragraphs: 101

Serial No 6/2018
File No 2597/2016

ROADSIDE PRODUCTS v MARK COCKER

REASONS FOR JUDGMENT BRETT J

13 February 2018

On 17 November 2013, Joshua Dingjan suffered fatal injuries when the forklift he was driving during the course of his employment with the applicant overturned, thereby crushing him. On 29 October 2015, the respondent, who holds the position of Director of Industry Safety with Worksafe Tasmania, made a complaint alleging that the applicant had committed breaches of the Work Health and Safety Act 2012 (the Act), in particular of health and safety duties imposed on the applicant by the Act. The alleged breaches relate to the circumstances in which the forklift overturned. The complaint has not yet been…

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 Roadside Products v Cocker

Details

AGLC: Roadside Products v Cocker [2018] TASSC 6
Case: [2018] TASSC 6
Decision Date: 13 February 2018

CaseChat Overview and Summary

The appeal in Roadside Products v Cocker concerns a motion to review a decision made by a magistrate in Tasmania. Roadside Products sought to review a decision made by the magistrate who had identified a need to amend a complaint to cure defects but did not make any further determination. The central issue before the court was whether the court had jurisdiction to review a decision that had not yet reached a final determination, and whether the magistrate's identification of the need to amend the complaint constituted an order that could be reviewed.

The court found that the jurisdiction to review a decision under the applicable legislation was limited to orders that had been made. Since the magistrate had not made a final order, the court held that there was no order capable of review and, consequently, no jurisdiction to review the decision. The court emphasised that the identification of a need to amend a complaint was not equivalent to making an order and, as such, did not fall within the scope of reviewable decisions.

Given the court's findings, it concluded that the motion to review was not valid. Consequently, the motion was dismissed, and no further orders were made by the court. This decision underscores the importance of ensuring that a decision is final and determinative before seeking a review under the applicable legislation.

Orders