Thiess Pty Ltd v Industrial Court of New South Wales

[2010] NSWCA 252

Reported Decision: 78 NSWLR 94205 IR 263

New South Wales

Court of Appeal

CITATION:	Thiess Pty Limited v Industrial Court of New South Wales [2010] NSWCA 252
HEARING DATE(S):	12 August 2010
JUDGMENT DATE:	30 September 2010
JUDGMENT OF:	Spigelman CJ at 1; Beazley JA at 79; Basten JA at 80
DECISION:	Application dismissed with costs.
CATCHWORDS:	ADMINISTRATIVE LAW - judicial review - grounds of review - Occupational Health and Safety Act 2000 - meaning of ‘exposed to risks’ in s 8(2) - whether there is a requirement for the prosecution to prove the actual exposure of a person or persons to a risk - whether it is sufficient for the prosecution to prove that a person or persons were proximate to the risk - ADMINISTRATIVE LAW - prerogative writs and orders - Occupational Health and Safety Act 2000 - where the Full Bench of the Industrial Court dismisses an appeal from the Local Court - where the Court of Appeal subsequently finds that the Local Court decision was vitiated by jurisdictional error - whether the prerogative writs should issue with respect to the orders of both the Full Bench and the Local Court - ADMINISTRATIVE LAW - judicial review - grounds of review - Occupational Health and Safety Act 2000 - inconsistencies in magistrate’s findings of fact
LEGISLATION CITED:	Crimes (Appeal and Review) Act 2001 Industrial Relations Act 1996 Occupational Health and Safety Act 1983 Occupational Health and Safety Act 2000 Supreme Court Act 1970
CASES CITED:	Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 Blacker v Parnell [1978] 1 NSWLR 616 Craig v State of South Australia (1995) 184 CLR 163 Forbes v NSW Trotting Club Limited (1979) 143 CLR 242 Hollingsworth v Industrial Court of New South Wales [2007] NSWCA 209; (2007) 166 IR 192 Keramianakis v Regional Publishers Pty Ltd [2009] HCA 18; (2009) 237 CLR 268 Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 McDonnell and East Ltd v McGregor (1936) 56 CLR 50 Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 R v Board of Trustees of the Science Museum [1993] 1 WLR 1171 R v Hull University Visitor; Ex parte Page [1993] AC 682 R v Marks; Ex parte Australian Building Construction Employees and Builders Labourers’ Federation (1981) 147 CLR 471 Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612 Victorian Stevedoring and General Contracting Co Pty Limited v Dignan (1931) 46 CLR 73 Wishart v Fraser (1941) 64 CLR 470
TEXTS CITED:	K R Handley Spencer Bower and Handley: Res Judicata (4th ed, 2009) LexisNexis, London
PARTIES:	Thiess Pty Ltd (First Applicant) Hochtief AG (Second Applicant) Industrial Court of New South Wales (First Respondent) Inspector Steven Jones (Second Respondent)
FILE NUMBER(S):	CA 2009/298410
COUNSEL:	H J Dixon SC with A B Gotting (Applicants) J V Agius SC with R Reitano (Second Respondent)
SOLICITORS:	Blake Dawson (Applicants) Crown Solicitor’s Office (First Respondent) WorkCover Authority of NSW (Second Respondent)
LOWER COURT JURISDICTION:	Full Bench of the Industrial Court of New South Wales
LOWER COURT FILE NUMBER(S):	IRC 1503 of 2008
LOWER COURT JUDICIAL OFFICER:	Kavanagh, Haylen and Backman JJ
LOWER COURT DATE OF DECISION:	28 May 2009
LOWER COURT MEDIUM NEUTRAL CITATION:	Thiess Pty Ltd & Anor v Inspector Steven Jones (WorkCover Authority of NSW) [2009] NSWIRComm 77

- 27 -

2009/298410

SPIGELMAN CJ
BEAZLEY JA
BASTEN JA

Thursday 30 September 2010

Thiess Pty Ltd & Hochtief AG v Industrial Court of New South Wales & Inspector Steve Jones

Judgment

1 SPIGELMAN CJ: The applicants invoke the supervisory jurisdiction of the Court with respect to proceedings in which each was convicted of an offence under s 8(2) of the Occupational Health and Safety Act 2000 (“the OH&S Act 2000”). On 3 July 2007 the workplace inspector (the second respondent) commenced proceedings against the applicants in the Chief Industrial Magistrates Court of New South Wales alleging contraventions of s 8(2). The Court concluded that the applicants had breached s 8(2) and published its reasons for decision on 20 March 2008. The Court convicted the applicants and imposed penalties in a second judgment on 19 August 2010.

2 The applicants appealed against their convictions to the Industrial Court of NSW in Court Session. A Full Bench of that Court rejected the appeal on 28 May 2009. (Thiess Pty Ltd & Anor v Inspector Steven Jones (WorkCover Authority of NSW) [2009] NSWIRComm 77.) The Court made orders both refusing leave to appeal and dismissing the appeal.

3 In this Court the applicants seek orders to bring up the record of the Full Bench of the Industrial Court and to quash the orders of both the Chief Industrial Magistrates Court and of the Full Bench. The applicants also seek a declaration that the Chief Industrial Magistrates Court cannot convict the applicants in the proceedings in that Court and an order prohibiting the second respondent from pursuing the proceedings.

4 The charge arose from an incident, which I will further describe below, involving the death of Mr Luke Bandrowski, who was the employee of a subcontractor and was working on a construction site administered by the applicants as joint venturers at the time of his death. Because Mr Bandrowski was not an employee of the applicants the relevant charge under the OH&S Act 2000 was made under s 8(2) which states:

“(2) An employer must ensure that people (other than the employees of the employer) are not exposed to risks to their health or safety arising from the conduct of the employer’s undertaking while they are at the employer’s place of work.”

5 Section 8(1) makes similar provision with respect to persons employed directly by a particular employer. The charge did not allege any contravention of s 8(1) by the applicants.

6 The charge was in the following terms:

“ Description of Offence
Between 4-5 July 2005, the defendant, at the Chatswood-Epping Rail Line project situated at the Corner of Wicks and Waterloo Roads North Ryde, New South Wales (‘the premises’), being an employer, failed to ensure that persons other than its employees, and in particular Luke Bandrowski, were not exposed to risks to their health or safety arising from the conduct of the defendant’s undertaking while they were at the defendant’s place of work, contrary to section 8(2) of Occupational Health and Safety Act 2000
Time & Date of Offence
4-5 July 2007
Place of Offence
Chatswood-Epping Rail Line Project situated at the Corner of Wicks and Waterloo Roads North Ryde, New South Wales
Short Particulars
The defendant failed to:
1. Provide adequate instruction and training to workers in the dangers of working near a body of water, namely a sediment pond;
2. Adequately restrict access to the sediment pond area at the premises so as to ensure that workers were not exposed to the risk of falling into a body of water, namely a sediment pond.
3. Ensure that there were adequate control measures, including but not limited to physical barriers and adequate signage, in place at the premises as to eliminate the risks of working in the vicinity of the sediment pond.
4. Failed to provide adequate supervision to workers working at the premises in the vicinity of the sediment pond.
As a result of these breaches persons were placed at risk of injury.”

Background Facts

7 The primary facts were not in dispute. In July 2005 the applicants were in the process of constructing the Epping to Chatswood Rail Link at a number of locations, including at a site located at North Ryde. Some of the works had been subcontracted to CB Constructions NSW Pty Ltd, which employed Mr Bandrowski.

8 On 4 July 2005 Mr Bandrowski was working at the North Ryde site. At some time during the afternoon he parked a back hoe near two sediment ponds. The next morning his body was found in the western pond. A post-mortem examination indicated that he had died of a heart attack.

9 The prosecution has made it clear throughout that it did not allege that any contravention of the OH&S Act 2000 resulted in the death of Mr Bandrowski. The particulars of the charge were as set out above.

10 At the commencement of the proceedings in the Chief Industrial Magistrates Court the prosecutors outlined the WorkCover Authority’s case in the following terms:

“The relevance of his body being found in the bottom of the sediment pond is that it demonstrated the risk to which someone was exposed if they went near the sediment pond or if they were working near it, that they could slip, trip or fall into it, or onto the surrounds of it and injure themselves.”

11 On the Industrial Magistrates findings of primary fact, which are not challenged and which are confirmed by the photographic evidence tendered in the proceedings, the following appears to have been the position:

Each sediment pond was approximately 6 metres in width, 28 metres long to the overflow weir and 3 metres deep. There was in length an additional 6 metres from the overflow weir to a filtration unit. The depth of the water could not exceed 2.1 metres by reason of the height of the overflow weir.
At one end of each pond was a ramp that allowed vehicles to enter the pond when the water had evaporated in order to remove the sediment that had settled. The ramps extended into the ponds some 12 metres at an angle of 14 degrees. There was a concrete dividing wall between the two ponds that could be accessed from the ramp. At the top of the ramps leading into the ponds was a concrete pad, on which Mr Bandrowski’s back hoe was found.
At the top of the ramp leading into the sediment ponds was a chain attached to which was a sign with the words “Strictly No Admittance”. In the police photographs the chain was up. However, according to the Inspector’s photographs, taken later on 5 July 2005, the chain was down.
There were two signs attached to the railing of one of the sediment ponds that read “Danger Deep Water”. There was no deep water near the end of the pond where Mr Bandrowski parked his vehicle.
Mr Bandrowski’s back hoe was parked in front of the western sediment pond at a slight angle about 700 millimetres from the entrance to the ramped access to the pond and 2.6 metres from the water line leading into the western pond.
Mr Bandrowski’s hardhat was found in the eastern pond. That is Mr Bandrowski’s body went in one direction and his hat went in the other direction. As the magistrate found, “[t]hat would suggest that Mr Bandrowski must have been at or towards the rear of the vehicle at the time of his heart attack”.

12 The magistrate made the following findings with respect to the evidence

“There was no evidence (as submitted by the defendants) of:
(i) precisely where Mr Bandrowski was after he parked his vehicle near the pond;
(ii) precisely what his movements were;
(iii) what he was in fact doing;
(iv) the distance Mr Bandrowski was from either the edge of the pond or the edge of the water;
(v) the absence of any care or caution on Mr Bandrowski’s behalf (bearing in mind his experience and training);
(vi) Mr Bandrowski, being at risk of, or in fact slipping, tripping or falling;
(vii) any scuff or slip marks or footprints at or near the entrance to the pond;
(viii) visibility being poor or any difficulty with someone seeing where they might stand or tread;
(ix) any other employee working in the area or vicinity;
(x) the water level as at 4 July 2005 (which is the only time that Mr Bandrowski could have been ‘in the vicinity’ so as to be potentially at risk) in circumstances where the ponds have water pumped into them from time to time;
(xi) the chain not being properly in place on 4 July 2005 prior to any activity on the part of Mr Bandrowski;
(xii) the relevant depth of the water – because of the gentle slope of 14° the depth at 2.1m or 2.2m or 2.3m from the entrance to the sediment pond is unlikely to vary much, but the Court is left guessing because no measurements were taken.”

13 His Honour also found that Mr Bandrowski had parked his machine in a no parking area. The area was so designated because the first aid shed for the site was located in front of the sediment ponds and it was desirable to ensure that emergency vehicle access was not blocked. There was no reason for Mr Bandrowski to park his machine near the sediment ponds. It was not a machine used with respect to the clearing of the sediment.

14 The magistrate also noted that, after the incident and pursuant to an Improvement Notice issued by the WorkCover Authority, a higher fence was installed around the perimeter of the sediment ponds. Additional life preservers and life jackets, appropriate signage and resuscitation information were also installed.

The Magistrate’s Decision

15 In the course of his finding of contravention, Magistrate G A Miller, said:

“The prosecution alleges that the fact that Mr Bandrowski’s body was found in the sediment pond is evidence of the existence of a risk – namely the risk that someone working in or near the sediment ponds could fall into it. That of course was the purpose of the fencing that was around the sediment ponds, the warning signs about deep water, the life buoys that were located around it and the Safety Guideline on Working Near Water that the defendants had in place. … I am satisfied that the risk as alleged namely the risk that someone working in or near the sediment ponds could fall into it was a relevant risk. That the risk was known was evidenced from some of the things that were in place – the no access area in front of the sediment ponds, the chain with a warning sign ‘Strictly No Admittance’ at the entrance to the ramp, the fence around the sediment pond, some of the signage (‘Danger – Deep Water’), the existence at one time of barricades restricting access, the location of life buoys around the sediment ponds and the relevant Guideline relating to Working Near Water.”

16 The magistrate then proceeded to separately consider each of the four particulars in the charge set out at [6] above.

17 With respect to the first particular, concerning instruction and training to workers, the judgment concentrated on the induction given to Mr Bandrowski. His Honour said:

“No one … prevented Mr Bandrowski from being where he was. The induction also failed to prevent Mr Bandrowski himself from parking the back hoe where he parked it … “

18 His Honour went on to say:

“In terms of the particulars the induction given to Mr Bandrowski was not a site induction, such that should have dealt with all the risks at the site. The induction that he received did not articulate or even explain the risks associated with being in proximity to the sediment pond – the closest it got was an incantation to ‘obey signage’.”

19 His Honour concluded:

“Proper induction training would have ensured that Mr Bandrowski did not go near the sediment pond let alone end up in it. It would have explained to the recipient the dangers that the sediment pond prevented [sic ‘presented’] both in terms of the potential to drown as well as the potential to be injured by reason of slipping, falling or tripping near and upon its surrounds not only because of the fact that it had an ‘edge’ but also because of the sloped access at the ramped end.”

20 With respect to the second particular, ie, inadequacy of measures to restrict access to the pond area, the magistrate emphasised that there was no physical barrier between the backhoe and the ramp which prevented access. He added:

“There were no concrete or plastic barriers across the area between the backhoe and the edge of the sediment pond. Chains were in place and signs hanged off the chains that were intended to prevent ‘unauthorised access’. … There was no physical barrier in place around the ramp entrance into the sediment pond on 5 July 2005. There had been a physical barrier in place previously but it had been removed.
The fact that a body was found in the sediment pond is the most obvious evidence that access to it was not restricted such that prevented people falling into it. The evidence about how close people could get to the edge of the sediment pond and what was there at the time (a chain laying on the ground with an upside down sign) makes out the particular. Even if the chain was in place it did not prevent access – it could easily be overcome. The sign on the chain was not such that would have deterred access – it did not indicate that access was dangerous …”

21 His Honour also noted that this particular was “not limited to the risks of working near the vicinity of the sediment pond”.

22 With respect to the third particular, ie, the absence of adequate control measures to eliminate the risks of working in the vicinity of the sediment pond, he found:

“The Safety Guideline on Working Near Water refers to some of the controls that should have been in place at 4.2.1. There appears to have been no other guideline or procedure or policy that reflected the existence of any control measures that operated at the site to prevent people from accessing the sediment pond area. This was in circumstances where (apparently) people were required at various times to work in and around the sediment pond area. That document also illustrates the awareness the defendant had of the danger posed by water at the site. This like the existence of the chain (whether it was up or down); the signs as to the danger presented by the water, the life buoys and the earlier physical barriers that had been in place all point to knowledge of the risk associated with people being near the sediment pond area.”

23 With respect to the fourth particular, ie, the inadequacy of supervision, his Honour found this made out by reason of what happened to Mr Bandrowski and the fact that no-one stopped him from “going as near to the sediment pond as he did”.

24 His Honour noted that the charge was not limited to Mr Bandrowski. As set out above it refers to all non-employees, “particularly Mr Bandrowski”. He went on to note that there were possible reasons for Mr Bandrowski parking his back hoe where he did, but he made no finding of fact in this regard. Nevertheless, he concluded:

“But one thing is certain by ending up where he did, it does demonstrate a risk to employees and non employees of the defendants that someone working in or near the sediment ponds could fall into it.”

The Full Bench Decision

25 Two judgments were delivered in the Full Bench. The Court divided on a matter not relevant to the present proceedings. Kavanagh and Backman JJ concluded that leave to appeal was required and granted it. Haylen J concluded that leave to appeal was not required. However, Haylen J agreed with the judgment of Kavanagh and Backman JJ on the facts and law pertinent to the present proceedings.

26 The joint judgment in the Full Bench set out the facts and summarised the judgment by Magistrate Miller. The submissions in that Court, as in this Court, focused on the requirement in s 8(2) of the OH&S Act 2000 that a person must be “exposed” to a risk. The submissions are, in substance, the same as put in this Court and I will refer to them further below.

27 In its considerations of the issues the Full Bench referred to s 8(2) and in that respect said:

“[21] Under s 8(2) of the Occupational Health and Safety Act , the obligation on employers relates to risks arising from the conduct of their undertaking. The nature of the offence is the failure to ensure persons are protected from a risk to their health or safety at worksites. The risk, although by its nature only a possibility, must be real. The section, therefore, requires proactive intervention to obviate risk. The obligation cannot be read down to restrict it to times when actual work is being carried out at the very site of the risk, that is to say, persons at worksites can be held to be exposed to risk if the risk is real, notwithstanding such persons are not presently performing work at the site of the risk.

[22] It is sufficient, therefore, that non-employees, at work, are exposed to the risk such that, during the course of their work, they could be in the vicinity of the risk.
[23] The appellants contended, where there was no actual injury arising from the risk and no exposure of a person while at work to the identified risk (of falling into a sediment pond) there could be no offence. Reliance was placed on the fact Mr Bandrowski died of a heart attack and was found in the bottom of a sediment pond but that he was not required to work in or near the ponds. However, actual injury is not an element of an offence under s 8(2) of the Act. The creation of the risk is the relevant feature ( WorkCover v Headrick t/as Graeme's Fine Finishes IRC 3943 of 1997, 9 April 1998, unreported decision of Marks J).
[24] His Honour was satisfied the risk arose because two sediment ponds at the worksite were not properly fenced and thereby provided a detriment to the safety of all persons (non-employees) at that worksite (including Mr Bandrowski) all of whom were required to perform work at the site. At this workplace there was nothing to prevent members of the large workforce from coming into the vicinity of the pond. Particularised in the summonses were the asserted omissions which, when established, had then been found to have a causal connection to the detriment to safety, that is: the risk.
[25] Each particular was given consideration by the Acting Industrial Magistrate. His Honour found the evidence established each asserted failure on the part of the appellants. His Honour then determined, as to Mr Bandrowski, that he was able to be near the sediment ponds while at work and should have been prevented from gaining access to them by the defendant. It was the appellants' obligation to ensure he had no access and it was the failure to ensure no access which established the risk. This circumstance, his Honour found, was established on the evidence and therefore there was a causal connection to the risk. His Honour gave cogent reasons for his findings, referring to the fact Mr Bandrowski was able, while at work, to drive his backhoe close to the sediment pond and he could alight from his vehicle beside the sediment pond. Mr Bandrowski was therefore exposed to the risk of falling into the sediment pond. That risk became a reality, although his death was due to other causes.
[26] His Honour further found: through identified parking bays, by way of warning signage and chains and the prior use of barricades, he was satisfied the appellants had recognised the risk but had not obviated the risk with the requisite safe fencing - a step taken after the incident, to guard against and eliminate the risk. A simple and effective proactive step was available to the employer to eliminate the risk. It was understood by his Honour in his determination that the risk as pleaded related not only to Mr Bandrowski, who was directly exposed to the risk (being near the sediment pond) but to others working at the site, all of whom potentially had access to the ponds and were therefore exposed to the risk. His Honour appreciated in his findings that the question as to an "exposure" to the risk had to be considered.”

28 Their Honours went on to conclude:

“[28] … The fact that Mr Bandrowski died from a heart attack does not negate the fact that he was able to fall into the sediment pond, a fact which exposed the existence of the risk not only to Mr Bandrowski but to all non-employees at the worksite. We are of the view his Honour correctly established the facts, assessed the evidence, then determined there was a causal connection to the risk and, in doing so, his Honour correctly applied the relevant legal principles.”

29 With respect to submissions on remoteness made to the Full Bench their Honours concluded:

“[31] We are of the view that there is force in the respondent's submission that an open body of water presented a risk to non-employees at work at the site of falling into the sediment ponds on the relevant date. The risk was real not remote, notwithstanding the fact that work was not normally performed by persons, including Mr Bandrowski, in the vicinity or near the pond. His Honour was satisfied there was no evidence as to what Mr Bandrowski was doing at the relevant time. However, his Honour also found there were numerous employees working on the site; the ponds were large; they could be up to three metres in depth; they were not safely barricaded and therefore he concluded that where Mr Bandrowski was found:
‘ ... does demonstrate a risk to employees and non-employees ... working in or near the sediment ponds could fall into it.’
We do not find fault with this reasoning and accept his Honour did make a finding as to exposure to the identified risk of all non-employees at this site.
[32] It is significant that the Acting Industrial Magistrate, on penalty, could not characterise the breach as serious, in the circumstance, and found it was appropriate to impose a penalty at the lower end of the scale against each appellant. The penalties imposed are not challenged by the appellants. The lower range of penalty imposed does not support a suggestion that the risk was remote.
[33] Given the focus of an alleged breach must be on the risk and not the incident, the Court takes the view that non-employees working on this site were exposed to the risk of falling into a sediment pond, which pond was not properly fenced. The evidence was that there was a large work force engaged at the site who, like Mr Bandrowski, were not required to work in the vicinity of the sediment ponds. That fact did not prevent any other member being in the vicinity of the sediment ponds in circumstances where they were placed at risk of falling into the pond. Simply put, there was nothing to prevent Mr Bandrowski or other workers from falling into the pond - Mr Bandrowski was, in fact, found in the pond. There may be a number of reasons why employees may end up in the vicinity of these ponds - some of those reasons included behaviour referred to by Bauer J in Inspector Twynam-Perkins v Maine Lighting Pty Ltd (1995) 100 IR 248 (especially at 257). The risk was more than a mere possibility. The gravity of the potential consequences was not slight but most serious. A prudent employer had to ensure there was no access to the sediment ponds to all non-employees at work at the site. The risk was, therefore, not remote but real.
[34] The Court, on appeal, therefore concludes there was no error of law made by the Acting Industrial Magistrate. It follows the appeal should be dismissed.

The Judgment in Kirk

30 The applicants relied on the judgment of the High Court in Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531. In that case the High Court was concerned with a prosecution for contraventions of s 15(1) and s 16(1) of the Occupational Health and Safety Act 1983. It was common ground in this Court that there is no material difference between those provisions and ss 8(1) and (2) of the OH&S Act 2000.

31 The joint judgment in Kirk identified the scope of the statutory obligation as follows:

“[19] What was necessary to be done in connection with the health, safety and welfare of employees and others at the workplace depended upon the presence of identifiable risks and measures which could be taken to address them.”

32 The applicants primarily relied on that part of the High Court’s reasoning in Kirk which applies, to the facts of that case, the third example of jurisdictional error identified in Craig v State of South Australia (1995) 184 CLR 163 at 177-178, namely:

“ … by entertaining a matter outside the limits of the inferior court’s functions or powers by … misconstruction of the relevant statute thereby misconceiving the nature of the function which the inferior court is performing or the extent of its powers in the circumstances of the particular case.” ( Kirk at [72])

33 The error found to be jurisdictional in Kirk was identified in similar terms at a number of points in the judgment. It is sufficient to note the following:

“[28] The statements of the offences as particularised do not identify what measures the Kirk company could have taken but did not take. They do not identify an act or omission which constitutes a contravention of ss 15(1) and 16(1).”

34 The High Court also said:

“[74] The first of the errors in question in this case – the errors of construction of s 15 of the OH&S Act – can be identified as a jurisdictional error of the third kind identified in Craig . That is, it can be identified as the Industrial Court misapprehending the limits of its functions and powers. Misconstruction of s 15 of the OH&S Act led the Industrial Court to make orders convicting and sentencing Mr Kirk and the Kirk company where it had no power to do so. It had no power to do that because no particular act or omission, or set of acts or omissions, was identified at any point in the proceedings, up to and including the passing of sentence, as constituting the offences of which Mr Kirk and the Kirk company were convicted and for which they were sentenced. And the failure to identify the particular act or omission, or set of acts or omissions, alleged to constitute the contravening conduct followed from the misconstruction of s 15. By misconstruing s 15 of the OH&S Act, the Industrial Court convicted Mr Kirk and the Kirk company of offences when what was alleged and what was established did not identify offending conduct.
[75] The explanation just offered also demonstrates that the error made by the Industrial Court was not only an error about the limits of its functions or powers. It was an error which led to it making orders convicting Mr Kirk and the Kirk company where it had no power to do so. The Industrial Court had no power to do that because an offence against the OH&S Act had not been proved. It follows that the Industrial Court made orders beyond its powers to make.”

35 The approach which the High Court rejected, with reference to past charging practice and case law in the Industrial Court, was:

“[31] … [I]t was considered sufficient to allege that, as a consequence of a series of unspecified failures on the part of the employer, there remained present general risks to the health and safety of employees and others.”

36 As determined in Craig, and affirmed in Kirk, Australian law does not treat every error of law as jurisdictional. In this respect Australian law has developed differently to that of England and Wales. (See Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147; R v Hull University Visitor; Ex parte Page [1993] AC 682.) In Australia, it remains necessary to determine whether an error of law identified in a particular case constitutes jurisdictional error.

37 As the High Court emphasised in Kirk at [73], the examples of jurisdictional error identified in Craig were “just that – examples”. However, the Court affirmed at [72] the “general description of what is jurisdictional error” from Craig at 177, that an inferior court falls into such error “if it mistakenly asserts or denies the existence of its jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers”. The italics are from Kirk, being that part of this “general description” found to apply on the facts of that case.

38 Each of the four particulars of the charge, set out at [6] above, identifies an omission by the applicants. Particular 2 specifies a risk to health and safety, being the risk of falling into the sediment pond. It is not clear to me that the other three particulars, as charged, which refer only to the risks of working in the vicinity of the pond, identify a risk in the sense required by Kirk. However, further particulars were supplied during the course of the hearing. (See par [10] above.) The parties accepted that, at the hearing, the risk was identified as “slipping, tripping or falling into the water” with respect to each particular. Furthermore, the judgment of the Full Bench appears to concentrate only on particular 2. The applicants did not contend in this Court that anything turned on the other particulars.

39 On this basis, the issue before this Court differs from the relevant determination in Kirk. No complaint is made here of a failure to identify a risk, nor of a failure to identify the act or omission on the part of the applicants.

40 The issue to be determined in these proceedings is whether the misconstruction of the section, if any, alleged to have been made by the magistrate was such as to lead his Honour to make orders convicting and sentencing the appellants when the Chief Industrial Magistrates Court had no power to do so. The Full Bench, the applicants submit, failed to correct that error, indeed, repeated it.

Submissions in this Court

41 Mr H J Dixon SC, who appeared for the applicants in this Court, submitted that both the magistrate and the Full Bench failed to properly construe s 8(2), in that they failed to address the question prescribed by s 8(2), and thereby proceeded on an incorrect understanding of what constituted an offence. Alternatively, he submitted that the applicants were convicted in circumstances where there was no evidence of the offence charged. In so convicting, the applicants submitted, the magistrate committed jurisdictional error and the Full Bench, proceeding on the same basis, failed to correct the error. The jurisdictional error was that identified in Craig and Kirk as a misconception of the nature of their respective functions and the extent of their respective powers.

42 Mr Dixon SC submitted that the error was manifest in the approach of the Full Bench which, he contended, proceeded on the basis that any person present at any point of a work site was necessarily exposed to an extant risk, whether or not that person was anywhere near that risk, because s/he could, potentially, gain access to the location of the risk.

43 The principal focus of the applicants’ submissions is that, in order for an employer to be convicted under s 8(2), it must be established that a person or persons have been exposed to an identified risk. It is not sufficient to establish only that a generalised risk existed at a workplace. It is necessary, they submitted, to find that there was an actual exposure of a person or persons to the identified risk. In this respect, the applicants submitted that the magistrate did not in fact make a specific finding that any person had been “exposed” to a risk and had thereby misconstrued the relevant statute and fallen into error.

44 The applicants placed particular reliance on the express findings by the magistrate, set out at [12] above, that there was no evidence of:

“(vi) Mr Bandrowski, being at risk of, or in fact slipping, tripping or falling.”
and
“(ix) Any other employee working in the area or vicinity.”

45 The magistrate’s finding that there was no evidence of “any other employee working in the area or vicinity” must be understood to refer to persons within s 8(2), ie, to employees of subcontractors.

46 In this Court, the second respondent accepted that there was no evidence that any person, other than Mr Bandrowski, was in the vicinity of the ponds on the days referred to in the charge. The judgments below did make reference to the exposure to risk of persons other than Mr Bandrowski. Mr Agius SC, who appeared for the second respondent, submitted that it was likely that other subcontractors would have been present and sought to explain these references on that basis. However, he did not seek to uphold the judgment on any such basis.

47 Mr Agius SC did not seek to support the statements in the Full Bench judgment that extended the persons at risk to other workers on the site, whether working in the vicinity of the ponds or not. (See eg at [22], [26], [28], [33] of the Full Bench judgment set out at [27]-[29] above.) In this respect, there is force in the submissions of Mr Dixon SC that, in view of the finding of fact by the magistrate that there was no evidence of any other employee working in the vicinity, it was not open to the Full Bench to uphold the conviction on this wider basis because no such contravention was established, let alone established beyond reasonable doubt, on the two days the subject of the charge. However, in view of the position taken by Mr Agius SC, it is unnecessary to decide this issue. He relied solely on the finding that Mr Bandrowski was present and exposed to the risk.

48 Mr Dixon SC submitted that the finding by the magistrate that there was no evidence of Mr Bandrowski “being at risk of or in fact slipping, tripping or falling” was inconsistent with any finding of contravention, particularly a finding beyond reasonable doubt. There was no “exposure” of him to risk. It was insufficient to show that a person was physically close to an extant risk. There must be a real exposure. Mere presence or proximity is not enough to constitute “exposure” within s 8(2).

49 Mr Agius SC put his case in a number of ways. In essence it was that Mr Bandrowski did fall into the water and he ought not to have been able to do so. The fact that his cause of death was a heart attack was not relevant. Mr Agius SC also submitted that determining whether a person had been “exposed” to a risk, involved a finding of fact or, at most, a mixed finding of fact and law. Such a decision should not form the basis of a finding of legal error, let alone jurisdictional error. He submitted that the legal issue was not did he in fact fall into the water, but could he have fallen into the water.

50 The risk existed, Mr Agius SC submitted, irrespective of what in fact happened in order to cause Mr Bandrowski to end up in the water. His proximity to the pond was sufficient to conclude that he had been “exposed” to the risk. He submitted that proximity was enough and it was not necessary to identify or establish any specific mechanism by which a person could fall into the pond. Mr Bandrowski was at risk of falling into the pond because there was nothing to prevent it.

51 The contending submissions appear to me to come down to deciding whether or not a person can be found to be “exposed to risk” within s 8(2) by reason of proximity to a risk, in the absence of a finding of any mechanism by which the risk could have come home.

The Magistrate’s No-Evidence Finding

52 At the heart of the applicants’ submissions with respect to Mr Bandrowski, are the findings of the magistrate with respect to the absence of any evidence of the character identified in pars (i) to (vi) of his Honour’s findings as set out at [12] above. Paragraph (vi) states that there was no evidence that Mr Bandrowski “in fact” slipped, tripped or fell. If the finding had been limited to that terminology, there may not have been a tension between his Honour’s finding in this paragraph and his ultimate findings. However par (vi) extends to a finding that there was no evidence that Mr Bandrowski was “at risk of…slipping, tripping or falling”.

53 If this is to be understood in the sense of identifying a “risk” within the meaning of s 8(2), then it could not be concluded that Mr Bandrowski was “exposed”, within the meaning of s 8(2), to the risk of slipping, tripping or falling into the pond, which was the risk identified in the course of the hearing as the relevant risk for the purposes of the charge. (See [10] above.)

54 It is, therefore, necessary to consider whether or not par (vi) is using the word “risk” in some difference sense. In my opinion, his Honour must have been done so, as par (vi) cannot be reconciled with his subsequent finding of contravention.

55 His Honour made further findings in the course of his treatment of each of the four particulars in the manner which I have summarised at [17]-[24] above. I have not set out the findings in full, but I have read the whole of the relevant passage with a view to determining whether there was further identification of exposure to a risk of falling into a sediment pond. I have done this with each particular, even though the judgment of the Full Bench and the submissions in this Court focused on the second particular.

56 The first particular alleged that the defendants had failed to “provide adequate instruction and training to workers in the dangers of working near a body of water, namely a sediment pond”. The critical finding with respect to that particular is that set out at [17] above and is directed to a failure to prevent Mr Bandrowski being in the location near the sediment pond. His Honour found that the training induction “failed to prevent Mr Bandrowski himself from parking the back hoe where he parked it”. His Honour found, in the passages set out at [18] above, that the induction Mr Bandrowski received did not identify and articulate risks, namely, those associated with “working near water” and “being in proximity to the sediment pond”. In particular, the paragraph set out at [19] refers to the potential of injury “by reason of slipping, falling or tripping near” the sediment pond. It is not possible to reconcile this finding with par (vi) of his Honour’s earlier findings if the word risk was being used in the sense in which it appears in s 8(2).

57 The second particular alleged that the defendants had failed to “adequately restrict access to the sediment pond area at the premises so as to ensure that workers were not exposed to the risk of falling into a body of water”. With respect to this particular, which as I have indicated is the focus of this appeal, the second paragraph of his Honour’s reasons set out at [20] above identifies the fact that access to the sediment pond “was not restricted such that prevented people falling into it”. This was based on his Honour’s analysis of the absence of barriers and of the inadequacy of the chain and signage. Again it is not possible to reconcile this finding with the interpretation of par (vi) to which I have referred.

58 The third particular alleged that the defendants had failed to “ensure that there were adequate control measures … in place at the premises as to eliminate the risks of working in the vicinity of the sediment pond”. With respect to this particular, his Honour referred, as set out at [22] above, to the fact that the preventive measures which had been taken by the applicants and that were, and had been, in place at the time of Mr Bandrowski’s death “all point to knowledge of the risk associated with people being near the sediment pond area”. Again there is an inconsistency.

59 With respect to the fourth particular there is no clear inconsistency of the character earlier identified.

60 Finally, it is pertinent to note the finding set out at [24] above, that the very fact that Mr Bandrowski was found in the pond demonstrated that “someone working in or near the sediment ponds could fall into it”. This finding applies to each particular. Again this is not a finding consistent with the absence of a “risk” of falling.

61 I conclude from this analysis that his Honour was not using the word “risk” in par (vi) of his list of no evidence points in the sense that the word “risk” is used in s 8(2). There is not, in my opinion, any other way of reconciling par (vi) with his Honour’s ultimate findings that led to the conviction.

62 It may be that his Honour’s reference to the absence of evidence of “risk” was intended to refer to the fact that there was no specific evidence identifying a feature or defect of the surrounds of the pond which constituted some kind of hazard. That, if the submissions of the second respondent are accepted, is too narrow a meaning of the concept of “risk” within s 8(2).

Exposure to Risk

63 As I indicated earlier, the second respondent submitted that a person is “exposed” to a risk, within the meaning of s 8(2), when they are proximate to the risk. It submitted that it was not necessary to identify or establish any specific mechanism by which the risk could come home. In this respect, Mr Agius SC referred the Court to the judgment of the Court of Appeal of England and Wales in R v Board of Trustees of the Science Museum [1993] 1 WLR 1171. The British statutory provision under consideration in that case was in relevantly identical terms, imposing a duty on an employer to conduct an undertaking “in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health or safety”. Although the New South Wales provision does not include the requirement of ‘reasonable practicability’, no issue of that character arises on this application.

64 In Trustees of the Science Museum, the employer’s air conditioning cooling tower was found to contain the bacterium that causes legionnaire’s disease. The trial judge and the Court of Appeal rejected a submission that the prosecution had to establish an actual danger, as distinct from the mere possibility of danger. The Court of Appeal held that the prosecution had to establish that the bacterium was present in the air conditioning system and there was a “risk” of it escaping, but not that it was present in the atmosphere and capable of being inhaled.

65 Steyn LJ, delivering the judgment of the Court of Appeal, referred to the statutory provision and said at 1177-1178:

“In the context the word ‘risks’ conveys the idea of a possibility of danger. Indeed, a degree of verbal manipulation is needed to introduce the idea of actual danger which the defendants put forward. The ordinary meaning of the word ‘risks’ therefore supports the prosecution's interpretation and there is nothing in the language of s 3, or indeed in the context of the Act, which supports a narrowing down of the ordinary meaning. On the contrary, the preventive aim of ss 3, 20, 21 and 22 reinforces the construction put forward by the prosecution and adopted by the judge. … The interpretation which renders those statutory provisions effective in their role of protecting public health and safety is to be preferred.
We have not lost sight of the defence submission that we ought to concentrate on the word ‘exposed’ rather than ‘risks’ in section 3(1). If the word ‘risks’ has the meaning which we consider it has, the point disappears. In that event exposure to a possibility of danger is sufficient. The word ‘exposed’ simply makes clear that the section is concerned with persons potentially affected by the risk. In this case that refers to members of the public within a certain range of the infill building. But the word ‘exposed’ cannot change the meaning of ‘risks’ from a possibility of danger to actual danger. On the principal point in this case this argument of the defence is really a red herring”.

66 It was common ground in that case that any escape of the bacterium from the cooling tower “could expose members of the public within a cordon of 500 yards to risks to their health and safety” (at 1174). Nevertheless, there was no evidence of any actual escape. It does appear to me that, in the case of Mr Bandrowski, the reasoning in the Trustees of the Science Museum case supports the submissions of the second respondent that proximity is sufficient. As Steyn LJ put it, the word exposed “refers to persons within a certain range of the building”.

67 In my opinion, the word “risks” in s 8(2) also refers to the possibility of danger. The word “exposed” refers to a person who is sufficiently proximate to the source of the risk at the relevant time or times for that risk to possibly impinge upon his or her health or safety.

68 The objects of the OH&S Act 2000 are the same as those which were identified by the English Court of Appeal. Section 3 of the OH&S Act 2000 identifies the first two objects of the Act to be:

“(a) to secure and promote the health, safety and welfare of people at work.
(b) to protect people at a place of work against risks to health or safety arising out of the activities of persons at work.”

69 It serves these objects better if the words “exposed to risks” in s 8(2) are understood as extending to a person, like Mr Bandrowski, who was sufficiently proximate to the source of risk for the risk to come home, irrespective of the mechanism by which that could happen.

70 It was, in my opinion, open to the magistrate to convict. No error justifying the intervention of this Court has been identified.

The Full Bench Orders

71 Although it is not strictly necessary to do so, it is appropriate to comment on the submissions of the applicants with respect to the orders sought in relation to the judgment of the Full Bench. The applicants submitted that the Full Bench had committed a jurisdictional error by “failing to appreciate” that the trial judge had either proceeded on, or convicted upon, a wrong understanding of the offence and/or that the trial judge had found the offence proved on evidence that did not establish the offending conduct. This would not, in my opinion, constitute a jurisdictional error on the part of the Full Bench.

72 The Full Bench was exercising an appellate jurisdiction pursuant to the combined effect of s 105(3) of the OH&S Act 2000 and s 197(1)(b) of the Industrial Relations Act 1996. The Full Bench had jurisdiction to hear the appeal. It exercised that jurisdiction.

73 It is well established that the jurisdiction of an appellate court is confined to the jurisdiction exercised by the first instance court. (See eg McDonnell and East Ltd v McGregor (1936) 56 CLR 50 at 53–54; Victorian Stevedoring and General Contracting Co Pty Limited v Dignan (1931) 46 CLR 73 at 109; Keramianakis v Regional Publishers Pty Ltd [2009] HCA 18; (2009) 237 CLR 268 at [39]). However, the issue in the present application was not whether the Local Court had jurisdiction to try the offence, as it clearly did. Rather, the allegation is that the magistrate committed a jurisdictional error in exercising that jurisdiction.

74 In a case such as the present, it is not sufficient to make orders directed only at the outcome of the proceedings in the Local Court. An order dismissing the appeal, as made by the Full Bench of the Industrial Court in this case, has the consequence that the orders of the Local Court become merged in the judgment of the Full Bench. (See Wishart v Fraser (1941) 64 CLR 470 esp at 482-483; R v Marks; Ex parte Australian Building Construction Employees and Builders Labourers’ Federation (1981) 147 CLR 471 esp at 476; Blacker v Parnell [1978] 1 NSWLR 616; Hollingsworth v Industrial Court of New South Wales [2007] NSWCA 209; (2007) 166 IR 192 at [6]; The Honourable Mr Justice K R Handley Spencer Bower and Handley: Res Judicata (4^th ed, 2009) LexisNexis, London at [2.33]). It is, accordingly, necessary to make orders directed to the order of an appellate court dismissing an appeal.

75 This is what happened in Kirk where the Full Bench of the Industrial Court had dismissed the appeal. The High Court made orders directed at both the first instance decision and the Full Bench decision. Their Honours said:

“[108] An order in the nature of certiorari could, and in this case should, have been directed to the Industrial Court in respect of its decisions at first instance. That remedy should have been granted for jurisdictional error of the Industrial Court. Because both the order of Walton J finding the offences proved and the order of Walton J passing sentence should have been quashed, the orders subsequently made by the Full Bench of the Industrial Court should also be quashed.”

76 The authorities referred to in the joint judgment in Kirk for this proposition were Forbesv NSW Trotting Club Limited (1979) 143 CLR 242 at 277 and Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612 at [160]. Each of these references identifies the order of certiorari as rendering a decision void ab initio.

77 That appears to me to be the correct analysis with respect to the justification for making an order in the nature of certiorari to quash the order dismissing the appeal made by the Full Bench. Once an order is made quashing the conviction and sentence by the court of first instance, there is no “conviction or penalty imposed by the Local Court for an offence” within the meaning of s 197(1)(b) of the Industrial Relations Act as applied by s 105(3) of the OH&S Act 2000. In those circumstances, by reason of the retrospective effect of the quashing order, the Full Bench had no jurisdiction to hear the appeal.

Conclusion

78 The application should be dismissed with costs.

79 BEAZLEY JA: I agree with Spigelman CJ.

80 BASTEN JA: I agree that the application in this matter should be dismissed with costs, for the reasons given by the Chief Justice.

81 I would, however, prefer not to express a final view as to the matters discussed by his Honour at [71]-[77] above, without the benefit of full argument. In the present case, it was common ground that the Full Bench of the Industrial Court was undertaking an appeal by way of rehearing: see Industrial Relations Act 1996 (NSW), s 197(1)(b) and (2), Crimes (Appeal and Review) Act 2001 (NSW), ss 11 and 18-20. The supervisory jurisdiction of this Court was invoked under s 69 of the Supreme Court Act 1970 (NSW). If this Court had identified error on the part of the Full Bench, it would have been necessary to determine whether it was jurisdictional error.

82 The proposition that a superior court, which has determined, albeit erroneously, an appeal from a judgment below which was affected by jurisdictional error, itself loses jurisdiction as a result of the retrospective effect of the final quashing order, is not self-evidently correct. Cases such as Forbesv NSW Trotting Limited [1979] HCA 27; 143 CLR 242 at 277 and Ruddock v Taylor [2005] HCA 48; 222 CLR 612, referred to at [76] above, each involved invalid administrative decisions. The invalidity of the administrative decision, as determined on ‘appeal’ or judicial review, would not deprive the trial judge of jurisdiction to consider whether the decision was valid or not: Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597 at [45] (Gaudron and Gummow JJ).

83 If a trial court, exercising supervisory jurisdiction, found no jurisdictional error, its decision would not replace the decision under review. Cases involving appeals by way of rehearing may have a different result, but the dismissal of such an appeal does not mean the earlier judgment ceases to have effect, at the very least, for example, in relation to the accrual of post-judgment interest. Cases such as Wishart v Fraser [1941] HCA 8; 64 CLR 470, dealt with the old quarter sessions appeals from convictions in petty sessions, being hearings de novo. A decision of the District Court in such cases left no decision of the magistrate to be reviewed.

84 In relation to judicial review of a judicial decision, as with an appeal limited to error of law, it seems doubtful that, where the trial court lacked jurisdiction, an intermediate appellate court which erroneously failed to identify the error, would itself necessarily commit jurisdictional error. However, the analysis might be different in circumstances where the intermediate appellate court dismissed an appeal, leaving standing the trial court decision although affected by jurisdictional error. Arguably, the error which infected the decision at trial would also infect the decision of the intermediate appellate court. That may be the reasoning accepted in Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 at [108].

85 Because the Full Bench of the Industrial Court did not err, it is not necessary to consider whether, its decision being protected by a privative clause against all except jurisdictional error, the error asserted would have permitted intervention by this Court.

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