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Robertson v HWE Mining Pty Ltd

Robertson v HWE Mining Pty Ltd

Case [2014] WASC 11 23 January 2014

Appeal

Statutory Construction

Judicial Review

Criminal Law

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: ROBERTSON -v- HWE MINING PTY LTD [2014] WASC 11

CORAM: ALLANSON J

HEARD: 26 & 27 JUNE 2013

DELIVERED : 23 JANUARY 2014

FILE NO/S: SJA 1018 of 2013

BETWEEN: ANTHONY ROBERTSON
Appellant
AND
HWE MINING PTY LTD
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE M D WHEELER
File No  :NE 654 of 2011

Catchwords:

Criminal law - Appeal against decision - Mines Safety and Inspection Act 1994 (WA) s 9, s 9A - Whether employer so far as was practicable maintained a safe working environment - Meaning of practicable - Whether magistrate had regard to specific matters as required by the Act - Turns on own facts

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Procedure Act 2004 (WA), sch 1, cl 5(1)(a)
Magistrates Court Act 2004 (WA), s 31
Mines Safety and Inspection Act 1994 (WA), s 9, s 9A
Road Traffic Code 2000 (WA)

Result:

Appeal allowed in part
Matter remitted to Magistrates Court for retrial

Category: B

Representation:

Counsel:

Appellant: Mr G T W Tannin SC & Mr A Shuy
Respondent: Mr M H Zilko SC & Mr P Mendelow

Solicitors:

Appellant: State Solicitor for Western Australia
Respondent: K & L Gates

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

Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568
Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; (2012) 246 CLR 92
Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430
Bennett v Carruthers [2010] WASCA 131
Bunnings Forest Products Pty Ltd v Shepherd (Unreported, WASCA, Library No 980235, 5 May 1998)
Chugg v Pacific Dunlop Ltd [1990] HCA 41; (1990) 170 CLR 249
Holmes v RE Spence & Co Pty Ltd (1992) 5 VIR 119
Kelly v The Queen [2004] HCA 12; (2004) 218 CLR 216
Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117
Manonai v Burns [2011] WASCA 165
Riley v The State of Western Australia [2005] WASCA 190; (2005) 30 WAR 525
Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6; (2001) 205 CLR 304

ALLANSON J: On 4 September 2008, Adam Michael Sargeant was killed when the vehicle he was driving collided with a haul truck. The collision occurred at the Yandi Mine, where Mr Sargeant was working as an apprentice employed by HWE Mining Pty Ltd.
HWE was charged with one offence under s 9(1) and s 9A(2) of the Mines Safety and Inspection Act 1994 (WA) (the Act) for failing to provide and maintain a safe working environment. The charge was tried in the Perth Magistrates Court between 19 and 28 November 2012. The magistrate found the charge had not been proved. The prosecution now seeks leave to appeal from that decision, on 22 grounds of appeal. For the reasons set out below, I would grant leave on some of those grounds, allow the appeal, and remit…

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 Robertson v HWE Mining Pty Ltd

Details

AGLC: Robertson v HWE Mining Pty Ltd [2014] WASC 11
Case: [2014] WASC 11
Decision Date: 23 JANUARY 2014

CaseChat Overview and Summary

The case of Robertson v HWE Mining Pty Ltd was heard in the Supreme Court of Western Australia. The respondent, Robertson, appealed against a decision made by a magistrate under the Mines Safety and Inspection Act 1994 (WA). Robertson had been charged with breaching section 9 of the Act, which imposes a duty on employers to maintain a safe working environment for their employees as far as is practicable. Robertson was further charged under section 9A, which mandates the consideration of specific matters when determining whether a safe working environment has been maintained. The central dispute centred on whether the employer, HWE Mining Pty Ltd, had fulfilled its obligation to maintain a safe working environment and whether the magistrate had appropriately considered the statutory requirements when making the decision.

The key legal issues before the court were the interpretation of the term 'practicable' within the context of section 9 of the Mines Safety and Inspection Act 1994 (WA) and whether the magistrate had properly considered the specific matters outlined in section 9A when assessing the employer's compliance. The court had to determine if the employer had taken all reasonable steps to ensure a safe working environment and whether the magistrate's decision was in accordance with the statutory obligations. The interpretation of 'practicable' was crucial, as it could affect the extent of the employer's duty and the scope of the court's review of the magistrate's decision.

In its reasoning, the court examined the meaning of 'practicable' in the context of the statutory duty. The court held that 'practicable' encompassed not only what was technically possible but also what was reasonably possible, considering the resources available to the employer and the nature of the risk. The court emphasised that the duty required the employer to take all reasonable steps to ensure a safe working environment, which included assessing risks, implementing control measures, and ensuring adequate supervision and training. The court also considered whether the magistrate had properly applied section 9A in assessing the employer's compliance, noting that the specific matters outlined in the statute were to be taken into account in making the decision. The court found that the magistrate had failed to adequately consider these matters, leading to an incorrect application of the law.

The Supreme Court allowed the appeal and quashed the decision of the magistrate. The matter was remitted to the Magistrates Court for reconsideration in light of the court's findings. The court emphasised that the magistrate must thoroughly consider the specific matters required by section 9A and apply a balanced approach to determining what is practicable in maintaining a safe working environment. The employer was directed to ensure compliance with the statutory obligations and to address any deficiencies in their safety management practices.

Orders