SafeWork NSW v Grasso; SafeWork NSW v Grasso Consulting Engineers Pty Ltd

[2022] HCATrans 132

[2022] HCATrans 132

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S4 of 2022

B e t w e e n -

SAFEWORK NSW

Applicant

and

IGNAZIO GRASSO

Respondent

Office of the Registry
  Sydney  No S5 of 2022

B e t w e e n -

SAFEWORK NSW

Applicant

and

GRASSO CONSULTING ENGINEERS PTY LTD

Respondent

Applications for special leave to appeal

GAGELER J
STEWARD J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON FRIDAY, 12 AUGUST 2022, AT 1.27 PM

Copyright in the High Court of Australia

____________________

GAGELER J:   In accordance with the protocol for remote hearings, I will announce the appearances in each of the two matters.

MR J.V. AGIUS, SC appears with MR B.G. DOCKING for the applicant in each matter.  (instructed by Legal, Department of Customer Service (NSW))

MR I.M. NEIL, SC appears with MR S.R. MEEHAN for the respondents in each matter.  (instructed by Harris Freidman Lawyers)

GAGELER J:   Mr Agius.

MR AGIUS:   Your Honour, the Work Health and Safety Act has been adopted by the Commonwealth, Australian Capital Territory, the Northern Territory, Queensland, South Australia and Tasmania and, to a large extent and to the extent relevant for this case, by Western Australia.  One of the objects of the Act under section 3(1)(h) is to maintain and strengthen national harmonisation of laws relating to work health and safety.

These applications raise questions, the answers to which are of public importance going to how and from what temporal point should the exposure to risk be determined.  The Court of Criminal Appeal dealt with this by reference to the notion of causation and looking at what the workers were doing at the time of the collapse.  Justice Cavanagh’s, with whom the other two judges agreed, approach was to attempt to solve what he called the causation question by looking backwards, in particular at paragraph 243 of his judgment his Honour said:

In my view, in accepting the causal connection between the failure to undertake computer modelling and the workers being exposed to a risk to their health and safety, the trial judge erred in considering the causation question through the prism of what GCE did at the time of breach rather than how its work exposed the workers to a risk at the time they were doing the demolition work.

In our submission, his Honour was wrong to look at the issue through the prism of how the risk played out and that led to error . . . . . which we seek to correct.

GLEESON J:   Mr Agius, is it not a simple matter of making a factual finding about exposure, and the question is:  does the failure expose the individual to the risk?

MR AGIUS:   That is what it should have been, your Honour.  But the question is: at which time?  The failure here was the failure at the time the advice was given to the constructor.

GLEESON J:   It is a risk of death or serious injury.

MR AGIUS:   Yes, and the exposure occurred when the workers turned up at work and began demolition work, acting on the advice that they had been given.  It is not a question of waiting for the roof to collapse and to examine anything to do with how the risk played itself out.  It was a question merely about how it was and from what point in time they were exposed to the risk.

GAGELER J:   What was the point in time, Mr Agius, that you say they were exposed to the risk?

MR AGIUS:   The very latest point in time would be when they commenced demolition work.  That would be the 7th of March.

GLEESON J:   That cannot be right, because they were definitely exposed to the risk at the time that the ceiling collapsed.

MR AGIUS:   Yes, they were exposed to the risk all the way through, I said the very latest –  I should have said the earliest they were exposed to the risk.  There was always a risk that the roof could collapse.  This was a very complex structure, and the purpose of GCE doing work it did was to minimise or eliminate that risk, so the existence of a risk of unplanned collapse was always there.  The work to be done by the respondents was to minimise or eliminate that risk.

STEWARD J:   Could I ask – Mr Agius, I am sorry – on that argument, do I take it that it means that they were in breach from the very moment they entered into the building for demolition purposes?

MR AGIUS:   Yes.  That is the point at which they were first actually exposed to that risk.

STEWARD J:   If nothing had happened; if the roof had not fallen in, would there have been breach, on your view, in any event?

MR AGIUS:   Yes.

STEWARD J:   That is the nub of your argument?

MR AGIUS:   Yes, that is ‑ ‑ ‑ 

STEWARD J:   Your point is that we should not look to see what actually subsequently happened, it is sufficient that they were exposed to risk at any particular time, regardless of what happened.

MR AGIUS:   Yes.

STEWARD J:   I understand.

MR AGIUS:   That is the way in which we put our case below and which we put it here and indeed the way in which we put it at the Court of Criminal Appeal.

GAGELER J:   What do you say to paragraph 246 of Justice Cavanagh’s judgment?  And that is that there cannot be said to be an exposure to a risk if there is:

no potential for that risk to come home –

or, unless or until there is potential for the risk to come home?

MR AGIUS:   If there is no potential, then – I withdraw that.  If there is a risk and there is exposure to that risk, whether – it is not the point as to whether or not that risk would eventuate.  For example, if they were there on day one and doing some work and nothing had collapsed, there had been no indication that the roof was about to collapse, and if you froze time and looked at what was happening then, they were still subject to that risk.  You do not have to wait for the risk to come home.

GAGELER J:   That is not what is being said in paragraph 246.  What is being said is that there has to be a potential for the risk to come home.  That is to say, there has to be a prospect of the harm occurring.

MR AGIUS:   Yes.  If that is another way of saying there was no risk to the health and safety of the workers, then we have to accept that.  But the findings of the trial judge in this case was that there was a risk and that the advice that was given was inadequate and was not supported by calculations which should have been undertaken by a computer and any advice ‑ ‑ ‑ 

GAGELER J:   The point being made, though, in paragraph 246 is that would have been a meaningful risk – a real risk – if the advice had been followed.  But in the absence of the advice being followed, the connection between the getting of the problematic advice and the exposure of an individual to a risk, it just does not occur.  I think that is the nub of the judgment here.

MR AGIUS:   The problem with that approach, your Honour, if I may say, is this:  it does not take account of the fact that part of the advice that was given and upon which the constructor, Lendlease, acted was ambiguous, and in the circumstances of this case his Honour found that it should not have been ambiguous, it should have been clear.  It should have been clearly stated that particular supporting sections of the structure needed to be retained during the course of demolition.

Now, it was a matter of interpretation for the recipient and his Honour the trial judge found, well, that creates a risk, that creates the risk that if it is not interpreted the way the engineer says that he intended it to be interpreted, if there is any room for doubt then, given the complex nature of this structure, there was a risk to health and safety and that the advice should not have been given in the absence of finite element analysis.

Now, that was the unchallenged evidence of the expert.  He said that any advice given based only on the engineering experience or even based on hand calculations – and there were not any in this case – would not be safe because you would not, without conducting a finite element analysis because of the huge number of variables, be able to come up with a demolition methodology which was safe.  That is why the risk was created here.  The risk was created – well, really there were two causes.  One was the risk in relation to the ambiguous way that the demolition was to take place because it was not clear and because Mr Arnold was in a position where he did not have a clear direction and where he could misinterpret what he was being told by the engineer.  That was one aspect of the risk.

The other aspect of the risk was that aside from the drawing there was also a statement in writing, or a direction in writing, that the demolition could take place with “any bay in any order”.  So, any one of the nine bays and the order of the destruction after that was all a matter of discretion for the workers.  There was no guidance as to which were the most vulnerable bays or anything at all about the order.

Now, the problem with that advice is that the only basis for that advice was the engineering experience of Mr Grasso.  It should have been based upon finite element analysis, for all the reasons the judge gave.  For example, you could then test – if you had the finite element analysis up, you could test the order of demolition on the computer and determine whether or not there was in fact any difference in the order in which a safe demolition could take place.  But if there was no finite element analysis, it would not be possible to safely say you can do it in any order, “any bay in any order”, nor would it have been possible to say that any order could have been provided by the engineer without reference to computer modelling.

Professor Rasmussen, the Challis Professor, gave . . . . . evidence about . . . . . but there was no contrary. . . . . The only evidence about the safety of doing this by engineering experience alone came from the fact that that is all that happened.  There was no evidence to contradict that the only safe way of determining the order of demolition, leaving aside for the moment whether or not the adjacent beams could or should remain during the course of the demolition, just looking at the direction “any bay in any order”, that was just unsafe.  Now, that piece of advice was not altered by Arnold.  That piece of advice went to the workers, and there are two findings by the primary judge that that piece of advice was being followed.

Now, as soon as they went down there, knowing that they could choose the order in which this could be done, they were at risk, because there was no safe basis upon which that advice was given.  So, even if our case on the destruction or the non‑destruction of the supporting structures alongside of the principal trusses failed, there was still the case in relation to “any bay in any order”, and there simply was no answer to that in the defence case and there was no answer to that in the Court of Criminal Appeal.  The only answer that, with respect to him, that Justice Cavanagh came up with was one which ignored the evidence of Mr Rasmussen, the expert, and which said there was no finding that not using a finite element analysis was a breach of safety.  But there was such a finding.  The court ‑ ‑ ‑

STEWARD J:   Mr Agius – no, Justice Gageler, you go first.

GAGELER J:   Mr Agius, this is a highly factually intensive application you are presenting.  Ordinarily, a prosecuting body does not get a second chance at going over the facts.  There really has to be some question of public importance that is raised.  Can you elevate your argument to one of principle?

MR AGIUS: The principle of general application is whether or not it is appropriate to look at the question of exposure to risk only through the prism of how the risk played out. That is a fundamental error of the law. One can identify exposure to the risk without the risk playing out at all. It is a significant departure from the law, it is binding on the District Court in New South Wales that deals with these matters, and other courts in other states applying the WHS Act would also need to respect the decision of the Court of Criminal Appeal in New South Wales. In that ‑ ‑ ‑

GLEESON J: Mr Agius, in effect are you arguing that the point of principle is a misconstruction of section 32(c)?

MR AGIUS:   Yes.  The way in which you determine exposure is not restricted to looking at how the risk played out.  This is not an action at common law for negligence.

GLEESON J:   Well, you are saying you could expose someone to a risk of serious injury by – how?

MR AGIUS:   If one looks at the authorities, there is the British Museum case, and the Australian case of . . . . . creates this question of proximity.  So, depending on the particular risk, if you are in the position where, for example, in this case, there could be an unplanned collapse of the roof, even before the roof or any work is done, then that is exposure.  In the British Museum case ‑ ‑ ‑

GAGELER J:   Mr Agius, can I ask you a practical question?  If your interpretation is correct, two things may result.  Firstly, there will be many breaches of section 32 which will never be detected and prosecuted because nothing will happen.  Secondly, in a case where someone has been exposed to a risk which becomes unfulfilled because nothing happens, it will be very hard to measure the risk, to measure how dangerous – or how much danger the worker was put.  Is that not right?

MR AGIUS:  Once the risk is recognised, then it is not difficult to measure the extent of the damage that could be occasioned if the risk came up.  As it is, no matter what your test is in relation to exposure to the risk, there are people being exposed to risks all day – even under the approach that his Honour took – without knowing about it.  With respect, your Honour, it is not a necessary point of rational difference between the two approaches.  There will always be, in work health and safety, regrettably, a situation where people will be exposed to risk without their knowledge.

Your Honour, another point of general application here is to recognise that this approach by the Court of Criminal Appeal is contrary to

the approach in Victoria and is also contrary to the approach in South Australia.  We discovered, since this application was lodged, the decision of the Chief Justice Kourakis in Cleanaway Operations Pty Ltd v Hanel at 2022 SASC 52 that, in particular, at paragraph 63 of his judgment, having quoted Justice Cavanagh at paragraph 241, he looked back at that statement in paragraph 241 and he disagrees with it.  He disagrees with the use of the concept of causation and he frames the matter in a way in which, we contend, would be a proper way, which looks at the issue in terms of what it was that, in this case, GCE could have done to minimise or alleviate the risk.

GLEESON J:   Mr Agius, one way of understanding your interpretation is that you read into 32(c) some words, so that the failure is capable of exposing an individual to the risk of death or serious injury if acted upon.

MR AGIUS:   We do not – there has to be an exposure and you are exposed in this case if you are working in demolition work.  We are not prosecuting because these workers never got down onto the worksite.  They were at the worksite, they were doing demolition work on the 7th, 8th, 9th, 10th of March.  This Court in Kirk has recognised that in order for an offence to be made out, the risk does not have to come to an event.  That is at, I think your Honours have the reference to Kirk in our list of authorities.

As are the cases to exposure ‑ Theiss Pty Ltd in the Industrial Court which picked up on the Board of Trustees of the Science Museum‑ they are also 4 and 5 of our list of authorities.  Neither of those cases were referred to by the Court of Criminal Appeal.  I see my time is up.

GAGELER J:   Thank you, Mr Agius.  Mr Neil.

MR NEIL:   If it please the Court, the grounds on which we oppose a grant of special leave come down to these four propositions.  First, there is no reason to doubt the correctness of the judgment of the Court of Criminal Appeal.  Second, there is no point of general importance raised by the proposed appeal.  Third, even if that were not so, even if there were some point of general importance, including those identified today by the applicant, the proposed appeal is not a suitable vehicle to determine any of those points because the facts as found and not substantially challenged inexorably support the judgment of the Court of Criminal Appeal.  And fourth, this application, in our submission, does not survive the special scrutiny warranted by a proposed appeal against a judgment of acquittal by a Court of Criminal Appeal.

The judgment of the Court of Criminal Appeal in this case was the result of a straightforward application of intractable statutory language to a particular and unusual set of facts.  As the Court of Appeal correctly reasons, subsection 32(c) requires that there be a connection in fact, proved connection in fact, between on the one hand a breach of duty and on the other hand the exposure of an individual to risk.  In this case, on the facts found at trial and not disturbed on appeal, there – not relevantly disturbed on appeal, there was no such connection.

There was a duty, subsection 32(c).  There was a breach of duty, subsection 32(b).  But the risk that inhered in the advice that was given was not in fact connected to any exposure of any individual to any risk of the kind identified in the statute, and that was because the advice was not being applied, not being followed, at the time when the charge asserted that the individuals were exposed to risk.

GAGELER J:   Mr Neil, Mr Agius sought to make something of the advice being ambiguous.  Is that an element ‑ ‑ ‑

MR NEIL:   The answer to that ‑ ‑ ‑

GAGELER J:   Go ahead.

MR NEIL:   I am sorry, your Honour.  The answer to that was given by the Court of Appeal by Justice Cavanagh with whom the other members of the Court of Criminal Appeal agreed, page 175 of the application book, paragraphs 252, 253 and 254.  Now, for the ambiguity or lack of clarity ground of the proposed appeal, to succeed the applicant would need to successfully challenge the conclusion in paragraph 253.  In our submission, that conclusion is correct, manifestly, for the reasons given in paragraph 254.  But, in any event, what one sees here is of course an exercise in inferential factfinding in which the Court of Criminal Appeal was in as good a position as the trial judge and it is not a finding which, in our respectful submission, would ordinarily attract a grant of special leave.  We have dealt with this point in our submissions in paragraph 28, page 232 of the application book.

STEWARD J:   Could I ask a related question, Mr Neil?  What about what Mr Agius said about the “any bay any order” point?

MR NEIL:   May we take a moment to remind your Honours of the facts that were found, because that disposes of that point, in our respectful submission.  Before we do so, may we remind your Honours that the charge against the corporate respondent is found at pages 12 and following of the application book.  The particular point we would wish to make is that the date of the offence and the date of exposure to risk commenced upon the beginning of the process of demolition and was said to have existed, as the particulars on page 15 identify, in the course of demolition, not some earlier point in time.  So the whole focus of the charge was, relevantly, on whether the two identified workers were exposed to risk in the course of demolition.

The applicant of course now seeks special leave in a sense – a real sense – to argue that the Court of Criminal Appeal should have not focussed on the pleaded risk, but instead should have considered a different risk which is said to have arisen at some earlier point of time upon the giving of the advice.  That is, in our submission, not an available ground upon which to challenge the judgment of the Court of Criminal Appeal.

The facts as found – might we ask your Honours first to go to page 51 of the application book, this is in the judgment of the trial judge, the liability judgment.  Your Honours will recall that the respondent’s advice was comprised relevantly of three elements.  The first was the initial advice given in December 2015.  Your Honours will see that dealt with in paragraphs 152 and 153, on page 51.  As to the four elements in the approved methodology at that time, we draw particular attention to the first two.  The first is what your Honours have seen, we have called the “horseshoe”, the retention of some of the structural elements in each bay.

The second item is the “any bay in any order” element of the advice.  Then, the 14th of December advice was transposed by a Mr Khoury into what became known as the “Hassarati sketch”.  That was adopted by the respondents in February 2016, the relevant finding is at paragraph 158.  We put some weight upon the words “At this point,” and we point particularly to the first two elements.  The Hassarati sketch was given to Lendlease where a Mr Arnold used it to create his own document.  However, Mr Arnold did not transpose the horseshoe into his document.

The findings in that regard are perhaps best captured in the first sentence of paragraph 160, and then would your Honours be good enough to drop down to paragraph 162.  We point particularly to the words “changing the approved methodology,” and point again particularly to the first item – the horse‑shoe was gone.  Item number two is the “any bay in any order”.  Next, if we could ask your Honours to turn to application book page 175, this is in the judgment of Justice Cavanagh, where in paragraph 254 his Honour concisely captures some findings of fact made by the trial judge.

Then, if your Honours would be good enough to go back to page 60, the trial judge’s liability judgment, might we remind your Honours of paragraph 199.  The applicant has submitted in writing in paragraph 3 of their amended application . . . . . demolition workers when they began the demolition . . . . .

GAGELER J:   You are breaking up.

MR NEIL:   I am sorry, your . . . . .

GAGELER J:   . . . . . moment, but if we cannot hear you properly, we perhaps need to adjourn and reconnect.

MR NEIL:   Shall I continue, your Honour?

GAGELER J:   Please do.

MR NEIL:   Thank you.  The point I had been making was that it is a central plank of the applicant’s case, in writing in paragraph 3 of the amended application, and repeated again today, that the trial judge had found that the workers when they began the demolition work, were following the advice given by the respondent.  That proposition is contrary to the finding that is made in paragraph 199 by the trial judge.

Next, if we could ask if your Honours would be good enough to go back to the judgment of Justice Cavanagh in the Court of Criminal Appeal at page 155, and we draw attention to the following paragraphs.  Firstly, paragraph 135, then paragraph 138 all the way through to page 142.

There was a third element in the advice given by the respondents which we should, for completeness, mention.  Mr Grasso attended the site on 8 March 2016 for a different purpose, but was asked to look at the demolition work then under way and he certified that the approved methodology was being followed.

However, he did so in circumstances where, as the trial judge found, it would not have been apparent to him that the demolition workers were following the Arnold sketch and not Mr Grasso’s advice; the respondent’s advice.  The relevant findings are on page 78 of the application book, paragraphs 297 and 300.  When it came to trial, the applicant led expert evidence from the engineer to whom our learned friend has referred.  That evidence was discussed by Justice Cavanagh at page 158 of the application book in paragraphs 155 and 156.  Justices Walton and Simpson agreed.  Justice Simpson observed succinctly in paragraph 7 on application book page 131:

The expert evidence did not assist in the causation issue.

What had happened, as your Honours will have seen, is that the applicant’s experts modelled the Arnold sketch and pronounced the Arnold sketch unsafe.  They did not model Mr Grasso’s advice in its entirety.  In the result, there was no evidence that was capable of supporting a finding that demolishing “any bay in any order” would have exposed anyone to risk if Mr Grasso’s advice to retain the horseshoe had been applied.  In fact, the only evidence on the question tended to indicate otherwise.  Justice Cavanagh referred to that in paragraph 156.  So, if it please, that is perhaps a longwinded way of answering your Honour Justice Steward’s question.

GAGELER J:   Mr Neil, before your time is up, I would appreciate your response to what was said by Mr Agius about Chief Justice Kourakis’ departure from an aspect of Justice Cavanagh’s reasoning.

MR NEIL:   If there is a difference between Cleanaway, the judgment of Chief Justice Kourakis and the Court of Criminal Appeal in this matter, if there is a difference, it is linguistic rather than substantive.  The Court of Criminal Appeal used the language of causation and if special leave were to be granted we would seek to defend that language.  But for present purposes, the language does not matter.

If your Honours have a copy – I think your Honours have in the bundle of authorities behind tab 15 a copy of Cleanaway, and might we ask your Honours to go to page 20 of the printed judgment ‑ your Honours have the same one that we do – paragraph 64, the fifth sentence.  It begins on the last line of page 20:

Cavanagh J went on to state his conclusions in a way in which did not rely on causation, in its commonly used sense, and spoke more directly about GCE’s breach not exposing the workers to risk.

Both the Court of Criminal Appeal in this matter and Chief Justice Kourakis correctly identify the need for there to be in fact a connection between the breach of duty on the one hand and the exposure of an individual to risk on the other way.  In Cleanaway one can see that captured neatly on page 9, paragraph 36, the second sentence.  That is the same – essentially the same point as constituted the nub of the Court of Criminal Appeal’s judgment.

In the present case, no finding of such a connection was or could be made.  As Chief Justice Kourakis correctly observed, in paragraph 63, back on page 20 of the printed judgment, in the absence of such a finding:

the prosecution for a breach of s 32 was bound to fail.

If, contrary to our primary submission, there is a substantive divergence of opinion, then our secondary submission is that this case is not an appropriate vehicle for its resolution because of its very particular facts.  As the Chief Justice pointed out in the passage – the fourth sentence of

paragraph 63 to which we pointed a moment ago, of which we reminded your Honours a moment ago – the facts, or rather the absence in this case,

mean that the result would be the same no matter how one gets there.  That, if it please your Honour, is our response to the applicants’ reliance on Cleanaway.  If it please ‑ ‑ ‑ 

STEWARD J:   Just to put to the nub of the vehicle point, your argument is that even on Mr Agius’ interpretation of 32, by the time of the risk period, the risk that he identified had disappeared or had been subsumed by the new risks from the Arnold drawing? Is that how ‑ ‑ ‑

MR NEIL:   Yes.  Correct.  We should make the point, perhaps, that a circumstance in which there is a breach of duty, and that breach of duty is not connected to an actual exposure to risk, is the province of section 33 of the Act.  What distinguishes section 32 from section 33 is the connection between the breach and exposure, and it is that fact that elevates a section 32 offence in the hierarchy of offences above that of section 33.

If it please, the last submission that we wish to make is if contrary to the submissions that we have made, there were to be a grant of leave, then in our submission this would be a proper case in which to make any grant of leave conditional on the applicant paying the respondent’s costs in any event, and on not disturbing the costs orders made in the respondent’s favour by the Court of Criminal Appeal.  Unless we can be of any more assistance, those are the submissions we would wish to make by way of supplementing that which we have put in writing.

GAGELER J:   Thank you, Mr Neil.  Mr Agius, do you have something in reply?

MR AGIUS:  Your Honours, in relation to the requirement for special circumstances, given that these applications challenge, in effect, an acquittal, we would draw attention to what fell from Chief Justin Mason in R v Benz which is on our list, 168 CLR 110 at page 113, where his Honour refers to what had fallen from the court in Davern v Messel:

Although review of any ruling of law discharging a defendant obviously enhances the likelihood of conviction and subjects him to continuing expense and anxiety, a defendant has no legitimate claim to benefit from an error of law when that error could be corrected without subjecting him to a second trial –

That point was picked up in other decisions of the High Court which are in our written submissions.  There are special circumstances here, because this judgment has effect across all of those jurisdictions which have adopted the Work Health and SafetyAct and may be taken by many of them to be binding.  It is certainly significantly influential.

The whole concept of going to causation rather than looking at the risk and seeing whether or not there was anything that a defendant could or should have done to eliminate or minimise that risk – the whole concept of that is watered down by this judgment.  The reasons why we did not succeed in the Court of Criminal Appeal is that Justice Cavanagh and, for that matter, Justice Walton, said various things were not found by the primary judge.  In fact, they were found and properly dealt with by the primary judge.  What Justice Cavanagh says at 226, 245, was dealt with by his Honour at application book pages 74 and 75.

What was said about the risks that were created as a result of the provision of advice not being in place at the time the workers were working, that was dealt with specifically by the trial judge, who said that the workers were exposed to the risks that he found had been created by the provision of the ambiguous advice and by the provision of the direction “any bay in any order”.  My learned friend has not dealt with “any bay in any order”, but that direction was just as much responsible for the creation of a risk because the unequivocal evidence which the Court of Criminal Appeal did not deal with was that you could not come to that conclusion without conducting computer analysis.  It was just too complex.

Now, engineers working in demolition work, if this judgment stands, will no longer feel themselves obliged to conduct finite element analysis in order to properly determine whether or not their conclusion about how work – demolition work in particular – can be done, creates a risk to health and safety.  The fact is that in the modern world, finite element analysis is available.  It is reasonably available.  It is relatively inexpensive.

All of this was dealt with by the trial judge in his finding that it was unsafe to leave for advice and direction a methodology for demolition which included the direction “any bay in any order”.  Now, this might be tied up with facts, as no doubt it is, and there were some complicated facts, but the principles are not complicated, and what the Court of Criminal Appeal got wrong here - aside from missing bits of judgment in the primary judge’s findings, what it got wrong here was a fundamental matter to work health and safety law as it operates in the demolition industry.  The reference to Kirk, by the way, was at paragraph 14.

GAGELER J:   Thank you, Mr Agius.  The Court will adjourn to consider the course it will take.

AT 2.15 PM SHORT ADJOURNMENT

UPON RESUMING AT 2.22 PM:

GAGELER J: Having regard to the way in which the risk was particularised and to the evidence that was led on the prosecution, we are not satisfied that this case presents as a suitable vehicle for the consideration of any question of principle relating to the application of section 32(c) of the Work Health and Safety Act 2011 (NSW). Each application is refused with costs.

The Court will now adjourn until 10.00 am on Tuesday, 16 August.

AT 2.23 PM THE MATTERS WERE CONCLUDED