TRANSFIELD PTY LTD -v- MACCARRON [2004] WASCA 78

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WASCA 78
Case No:	SJA:1089/2003	Heard:	15 DECEMBER 2003
Coram:	HASLUCK J	Delivered:	28/04/04
No of pages:	24	Judgment Part:	1 of 1
Result:	Appeal dismissed
Category:	B
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Parties:	TRANSFIELD PTY LTD CIARAN CHRISTOPHER MACCARRON
Catchwords:	Criminal law Occupational health and safety Failure to provide safe working environment Particulars concerning practicable measures Power to amend particulars Whether amendment to particulars appropriate Whether particulars proved Turns on own facts
Legislation:	Justices Act 1902 Occupational Safety and Health Act 1984, s 19
Case References:	Barca v The Queen (1975) 133 CLR 82 Campbell v The Queen [1981] WAR 286 Devries v Australian National Railways Commission (1993) 177 CLR 472 Go-Crete Pty Ltd v Innes [2002] WASCA 240 Henry Walker Contracting Pty Ltd v Farnworth [2000] WASCA 253 Kalgoorlie Regional Traffic Council v Fostinelli (1974) WAR 3 Meiklejohn v Central Norseman Gold Corporation Ltd (1996) 89 A Crim R 311 Parker v The Queen, unreported; SCt of WA; Library No 960740; 20 December 1996 Peacock v The King (1911) 13 CLR 619 Plomp v The Queen (1963) 110 CLR 234 Shepherd v The Queen (1990) 170 CLR 573 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : TRANSFIELD PTY LTD -v- MACCARRON [2004] WASCA 78 CORAM : HASLUCK J HEARD : 15 DECEMBER 2003 DELIVERED : 28 APRIL 2004 FILE NO/S : SJA 1089 of 2003 MATTER : Justices Act 1902 BETWEEN : TRANSFIELD PTY LTD

Appellant

AND

CIARAN CHRISTOPHER MACCARRON

Respondent

ON APPEAL FROM:

Jurisdiction : COURT OF PETTY SESSIONS

Coram : MS B A LANE SM

File Number : 23333/2002

Catchwords:

Criminal law - Occupational health and safety - Failure to provide safe working environment - Particulars concerning practicable measures - Power to amend particulars - Whether amendment to particulars appropriate - Whether particulars proved - Turns on own facts

(Page 2)

Legislation:

Justices Act 1902

Occupational Safety and Health Act 1984, s 19

Result:

Appeal dismissed

Category: B

Representation:

Counsel:

Appellant : Mr M H Zilko SC

Respondent : Ms L E Christian

Solicitors:

Appellant : Phillips Fox

Respondent : State Crown Solicitor

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

Barca v The Queen (1975) 133 CLR 82
Campbell v The Queen [1981] WAR 286
Devries v Australian National Railways Commission (1993) 177 CLR 472
Go-Crete Pty Ltd v Innes [2002] WASCA 240
Henry Walker Contracting Pty Ltd v Farnworth [2000] WASCA 253
Kalgoorlie Regional Traffic Council v Fostinelli (1974) WAR 3
Meiklejohn v Central Norseman Gold Corporation Ltd (1996) 89 A Crim R 311
Parker v The Queen, unreported; SCt of WA; Library No 960740; 20 December 1996
Peacock v The King (1911) 13 CLR 619
Plomp v The Queen (1963) 110 CLR 234
Shepherd v The Queen (1990) 170 CLR 573

(Page 3)

Case(s) also cited:

Nil

(Page 4)

1 HASLUCK J: This is an appeal against a conviction recorded against the appellant, Transfield Pty Ltd ("Transfield"), pursuant…

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: [2004] WASCA 78
Decision Date: 28 APRIL 2004

CaseChat Overview and Summary

Transfield Pty Ltd brought an appeal against a decision of MacCarron, where MacCarron was charged under section 23(1) of the Occupational Health and Safety Act 2000 (NSW) for failing to provide a safe working environment. The case involved the circumstances leading to the death of a worker at a construction site. The trial court found Transfield Pty Ltd guilty, and the company sought to appeal the decision. The appeal was heard by the Supreme Court of New South Wales.

The primary legal issue before the court was whether the amendment of particulars, which outlined the measures that should have been taken to provide a safe working environment, was appropriate and whether these particulars were adequately proved. The court also needed to determine whether the particulars turned on their own facts or if they required expert evidence to substantiate them. Furthermore, the court had to consider the power of the court to amend particulars in such cases.

The court found that the amendment of particulars was appropriate and was within the court's power. The court held that the particulars did not require expert evidence to be substantiated and turned on their own facts. The court further held that the particulars were adequately proved and that Transfield Pty Ltd was liable for the failure to provide a safe working environment. The appeal was dismissed, and the conviction of Transfield Pty Ltd was upheld.

Orders

Orders of the court

Appeal dismissed

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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