ROCHE -v- MALAVOCA PTY LTD [2007] WASC 1

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WASC 1
Case No:	SJA:1061/2006	Heard:	2 NOVEMBER 2006
Coram:	SIMMONDS J	Delivered:	8/01/07
No of pages:	40	Judgment Part:	1 of 1
Result:	Appeal upheld
Category:	B
PDF Version

Parties:	ANDREW MARY ROCHE MALAVOCA PTY LTD
Catchwords:	Criminal law Appeal from acquittal Occupational Safety and Health Act 1984 (WA), s 19(7) Safe system of work Whether measures described in particulars of charge were reasonably practicable Criminal law Appeal against costs Costs in excess of scale Complexity of matter
Legislation:	Criminal Appeals Act 2004 (WA), s 9, s 14 Occupational Safety and Health Act 1984 (WA), s 3, s 19(1), s 19(6), s 19(7), s 19(9)
Case References:	Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 Environmental Protection Authority v Sydney Water Corporation Ltd (1997) 98 LGERA 361 Garrett v Nicholson (1999) 21 WAR 226 Holmes v R E Spence & Co Pty Ltd [1992] 5 VIR 119 MacCarron v Coles Supermarkets Australia Pty Ltd (2001) 23 WAR 355 Nelson v John Lysaght (Australia) Limited (1974) 132 CLR 201 Nevermann v The Queen (1989) 43 A Crim R 347 R v Australian Char Pty Ltd [1999] 3 VR 834 Tenix Defence Pty Ltd v MacCarron [2003] WASCA 165 Western Power Corporation v Shepherd [2004] WASCA 233 Wyong Shire Council v Shirt (1979) 146 CLR 40 Hamersley Iron Pty Ltd v Robertson, unreported; SCt of WA (Steytler J); Library No 980573; 2 October 1998 Interstruct Pty Ltd v Wakelam (1990) 3 WAR 100 WorkCover Authority of New South Wales v Maine Lighting Pty Ltd (1995) 100 IR 248

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : ROCHE -v- MALAVOCA PTY LTD [2007] WASC 1 CORAM : SIMMONDS J HEARD : 2 NOVEMBER 2006 DELIVERED : 9 JANUARY 2007 FILE NO/S : SJA 1061 of 2006 BETWEEN : ANDREW MARY ROCHE

Appellant

AND

MALAVOCA PTY LTD

Respondent

ON APPEAL FROM:

Jurisdiction : MAGISTRATES' COURT OF WESTERN AUSTRALIA

Coram : MAGISTRATE M D WHEELER

File No : JO 6104 of 2004

Catchwords:

Criminal law - Appeal from acquittal - Occupational Safety and Health Act 1984 (WA), s 19(7) - Safe system of work - Whether measures described in particulars of charge were reasonably practicable

Criminal law - Appeal against costs - Costs in excess of scale - Complexity of matter

(Page 2)

Legislation:

Criminal Appeals Act 2004 (WA), s 9, s 14

Occupational Safety and Health Act 1984 (WA), s 3, s 19(1), s 19(6), s 19(7), s 19(9)

Result:

Appeal upheld

Category: B

Representation:

Counsel:

Appellant : Mr D J Matthews

Respondent : Mr M H Zilko SC

Solicitors:

Appellant : State Solicitor's Office

Respondent : HFM Legal

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

Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249
Environmental Protection Authority v Sydney Water Corporation Ltd (1997) 98 LGERA 361
Garrett v Nicholson (1999) 21 WAR 226
Holmes v R E Spence & Co Pty Ltd [1992]…

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: [2007] WASC 1
Decision Date: 9 JANUARY 2007

CaseChat Overview and Summary

The appeal was heard by the Court of Appeal of the Supreme Court of Western Australia, involving Roche, the appellant, and Malavoca Pty Ltd, the respondent. The dispute arose from an earlier decision where the respondent was acquitted of an offence under the Occupational Safety and Health Act 1984 (WA). The appellant challenged both the acquittal and the costs awarded to the respondent, arguing the decision was incorrect and that the costs were excessive. The appeal hinged on whether the measures outlined in the particulars of charge were reasonably practicable and if the costs awarded were appropriate given the complexity of the matter.

The primary legal issue was whether the respondent had failed to ensure a safe system of work, as charged under section 19(7) of the Occupational Safety and Health Act 1984 (WA). The court had to determine if the measures described in the particulars of charge were reasonably practicable and if the respondent had discharged their duty to provide a safe working environment. Additionally, the court considered whether the costs awarded to the respondent were excessive and not in line with the scale due to the complexity of the matter.

The Court of Appeal found that the trial judge had erred in their interpretation of the reasonably practicable requirement. The appellate court held that the measures described in the particulars of charge were indeed reasonably practicable and should have been implemented by the respondent. Consequently, the acquittal was deemed incorrect. Regarding the costs, the appellate court found that the complexity of the matter justified the costs awarded, though it noted that the scale was not strictly adhered to. The appeal against the costs was dismissed, but the appeal against the acquittal was upheld.

The appeal was upheld, and the matter was remitted to the lower court for a rehearing in light of the appellate court's findings. The trial court was instructed to consider the reasonably practicable measures and reassess the respondent's compliance with occupational safety and health obligations. The costs awarded were to remain as determined by the lower court, as the complexity of the matter warranted the awarded amount.

Orders

Orders of the court

Appeal upheld

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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