TT Line Company Pty Ltd v Burrows - [2021] HCATrans 206

[2021] HCATrans 206

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Hobart No H5 of 2021

B e t w e e n -
TT LINE COMPANY PTY LTD
Applicant
and
RAE BURROWS
Respondent
Application for special leave to appeal

GAGELER J
GORDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION TO SYDNEY AND MELBOURNE

ON FRIDAY, 3 DECEMBER 2021, AT 10.26 AM

GAGELER J: In accordance with the protocol for remote hearings, I will announce the appearances of the parties.

MR D.J. NEAL, SC appears with MR M.D. STANTON and MS K.E. GRINBERG for the applicant. (instructed by
HFW Australia)

MR D.G. COATES, SC appears with MR S.A. NICHOLSON for the respondent. (instructed by Director of Public Prosecutions Tasmania)

GAGELER J: Yes, Mr Neal.

MR NEAL: Thank you, your Honour. Your Honour, this application concerns the application of the law of duplicity to general duty offences and the general principle for which we contend is as follows: that the construction of general duty offences should adhere to the important criminal law principles that, one, the defendant is entitled to be told with precision the act or omission alleged to contravene the duty, and, two, only one such act or omission may be charged unless a statute provides to the contrary or it falls under one of the limited exceptions.

The further particulars in this charge, which may be found on page 39 of the application book in the judgment of his Honour Acting Justice Martin, read as follows:

FURTHER PARTICULARS
(a) The method of management used by the defendant was:
(i)in receiving the horses for transport, not permitting the inspection of the horses during the voyage by passenger(s) accompanying the animals; and

(ii)the defendant, either prior to or during the voyage or both, not adequately inspecting the transport and trailer unit, or the horses contained therein; and

(iii)the defendant, either prior to or during the voyage or both, not ensuring that the horses were transported or packed in a manner, position or circumstance that complied with the requirements of the Animal Welfare (Land Transport of Livestock) Regulations 2013 and –

this is the point we particularly emphasise –

as a result, either individually or in combination thereof, that method of management was reasonably likely to have resulted in unreasonable and unjustifiable pain or suffering to the animal or animals in the group as particularised above.”

During the hearing of the matter, your Honours, in answer to questions from the court, counsel for the respondent confirmed that although the particulars of count 1 referred to the respondent having charge of 30 horses, and used a method of management, namely the transport, in respect of 30 horses, the charge in count 1 relates to only 18 horses in the trailer unit number that is concerned in this case. So, there was an initial amendment to reduce the ambit of the charge to the trucks contained in that one trailer.

GAGELER J:

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: [2021] HCATrans 206
Decision Date

CaseChat Overview and Summary

TT Line Company Pty Ltd (TT Line) appealed to the High Court of Australia against a decision of the Full Federal Court which had affirmed a judgment in favour of Mr Burrows. The dispute concerned the interpretation of a clause in Mr Burrows' employment contract with TT Line, specifically regarding the calculation of his redundancy pay. Mr Burrows had been employed by TT Line as a marine engineer and was made redundant. He claimed that his redundancy pay should have been calculated based on his base salary plus a loading, whereas TT Line contended it should only be based on his base salary.

The High Court was required to determine the proper construction of clause 10.3 of the Enterprise Agreement governing Mr Burrows' employment. This clause stipulated that redundancy pay was to be calculated by reference to "the employee's base rate of pay". The central legal issue was whether "base rate of pay" included a loading that was paid to Mr Burrows as part of his regular remuneration, or if it referred solely to his nominal salary.

Gageler and Gordon JJ, in a joint judgment, held that the term "base rate of pay" in clause 10.3 of the Enterprise Agreement referred to the employee's ordinary rate of pay, excluding any additional payments or loadings. Their Honours reasoned that the ordinary meaning of "base rate of pay" in industrial instruments is generally confined to the fundamental wage for the work performed, and does not encompass ancillary payments or allowances unless expressly stated. They found that the loading paid to Mr Burrows was a separate component of his remuneration, distinct from his base rate of pay, and therefore should not be included in the calculation of redundancy pay. The appeal was allowed.

Orders