WGE v Ross

[1998] HCATrans 461

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S106 of 1998

B e t w e e n -

WGE LIMITED

Applicant

and

GREGORY ROSS

Respondent

Application for special leave to appeal

KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 11 DECEMBER 1998, AT 9.30 AM

Copyright in the High Court of Australia

MR J.E. MACONACHIE, QC:   If your Honours please, I appear for the applicant with my learned friend, MR D.S. WILKINS. (instructed by Hunt & Hunt)

MR G.P SEGAL:   If your Honours please, I appear for the respondent with my learned friend, MS L.A. WHALAN. (instructed by Teakle Ormsby Conn)

KIRBY J:   Yes, Mr Maconachie.

MR MACONACHIE:   Your Honours, I adopt the written submission or outline of argument that has been filed.  The point of general importance, we submit, is the imposition of criminal and civil liability in a broader and more capricious manner than has been ‑ ‑ ‑

KIRBY J:   You are speaking so softly I think I am in the Equity Court.

MR MACONACHIE:    Your Honour, I have never been accused of that before in my life, I apologise.

KIRBY J:   As you get older, your hearing deteriorates.  You had better speak up.

MR MACONACHIE:    I shall.  The point of general importance, we contend, is the broader and more capricious imposition of civil and criminal liability than has heretofore been the case.  The essence of the decision of the majority in the Court of Appeal is to be found at page 54 of the application book and a literal and/or purposive approach required that:

primary liability for any breach of an occupier’s duty in relation to a factory under the 1962 Act –

should be –

upon the employer.

And, employer was all that was necessary.  The contrary, and we submit, the correct approach, is that which was expounded by Mr Justice Powell, who was in the minority, and the point of his decision is to be found at pages 86 and 87 of the application book, where he says, commencing at about line 45, relevantly:

so as to hold that there was only one occupier – Cockatoo –

There was only one occupier of the island or of the factory, that is, Cockatoo.

HAYNE J:   How then does that sit with the inclusion in the definition of “occupier” of “agent” “manager” “foreman”, et cetera?

MR MACONACHIE:    Because that extension, if I can call it that, imposes on the persons who are actually controlling the area criminal responsibility.

HAYNE J:   Or controlling the work.

MR MACONACHIE:    Or controlling the work, and that is the very point, your Honour; it is either control of the work or control of the premises, which attracts liability under the Act.  What the majority have done is to extend responsibility to an employer when he has no means of control.  The very point made by Mr Justice Powell, at the top of page 87, exemplifies what I want to say:

if some lesser construction is to be called for –

that is, not the application of the principle of unity of responsibility that has been recognised in this kind of legislation in England, in Smith v Cammell, Laired, but:

if some lesser construction is to be called for, so as to hold that each such company or organisation, other than Cockatoo, was to be regarded as the occupier of only that part of the island in which that company or organisation was required to carry out, or in fact carried out, work.

So it is either control of the work or control of the premises on the evidence that was available, control of this section of the premises was not established, and that is conveniently to be found at page 63 of the application book, where Mr Justice Powell, who set out the facts in much greater detail than did the majority, had this to say, starting at line 14:

The Respondent was not required to carry out any work, and had no control whatsoever over any activities carried on, in the area between the Northern wall of the Dock and the Southern wall of the pump house to which I have earlier referred or the access road to the West of the pump house.

And, as he records or points out, at line 40 on page 63:

As he –

the plaintiff –

did so, he stepped upon a steel plate which gave way under his weight and he fell forward –

and damaged his leg and his arm.

HAYNE J:   Well, the significance of those facts depends, does it not, on the construction of the provision?

MR MACONACHIE:    It does.

HAYNE J:   The provision is unique.

MR MACONACHIE:    Yes.

HAYNE J:   It is a unique provision that has received a construction by the Court of Appeal.

MR MACONACHIE:    It has indeed, your Honour.

HAYNE J:   Why should this Court take the matter on?

MR MACONACHIE:    Because, your Honour, for the reason that I gave, it is, albeit that it appears unique to New South Wales ‑ ‑ ‑

KIRBY J:   Well you say that, but it is a statutory provision with arguably two meanings, and the meaning which found favour with the majority below is a meaning which was advanced, about 20 years ago, in Glass, McHugh & Douglas, I think it was just in Glass and McHugh, and it is a meaning which promotes, on one view, the object of the statute, which is to impose upon employers who put workers into factories, obligations as occupier; that is a good social purpose which is, arguably, that of the Act.

MR MACONACHIE:    Indeed, it is, but, your Honours, what was advanced by the learned authors of Glass, McHugh & Douglas is consistent with what Mr Justice Powell said, not with what the majority said.  That is ‑ ‑ ‑

KIRBY J:   You say that, but the passages at page 55 pointed out that - Justice Sheller says, just before that, at 53:

the drafter of the legislation in 1962 was not content that the meaning of occupier be limited to the common law -

And then the passage at page 55 is quoted.

MR MACONACHIE:    Yes.  In New South Wales it is the control of the work being done which constitutes the criterion.  The majority, Mr Justice Sheller and Mr Justice Mason, took the view that it was just the bare character of employer, not control over the work; this man was injured using ingress or egress to or from a place of work, and ‑ ‑ ‑

HAYNE J:   The employer has a measure of control over the work that the employee does, is that not so?

MR MACONACHIE:   But he was doing no work at the time.  My point is that whilst at common law - and there are a myriad of cases to suggest that the employer has an obligation to take reasonable care in providing ingress and egress - but my point is that it being a criminal statute, there being two constructions available, the narrower of the two where there is an ambiguity, the one more favourable to the defendant is the one which ought to be adopted.  That is what Mr Justice Powell did; that is not what Justice Sheller did; that is the point, and it is the capricious imposition of criminal liability together with the expression of doubt by the majority.  That is to be found at page 57:

While, because of its implications in terms of criminal sanctions, the matter is not free from doubt –

KIRBY J:   Well it usually is not in ambiguous legislation, otherwise half the people would not be in this room.

MR MACONACHIE:    But they express doubt as to their own conclusions, because of the criminal sanctions.

KIRBY J:   But that is an honest, candid judicial remark.

MR MACONACHIE:    Of course it is, your Honour, and I do not suggest otherwise, but because they expressed or recognised the doubt that is attended upon the section, because it has the effect of imposing criminal responsibility capriciously and, for that matter, important civil responsibilities somewhat capriciously, it is ‑ ‑ ‑

KIRBY J:   What is your answer to Justice Hayne’s question concerning the fact that this legislation is really confined to New South Wales; I mean, that is not a reason for not granting special leave, but it is, as it were, softens one’s enthusiasms.

MR MACONACHIE:    Indeed, I recognise it as a hurdle; my answer to you ‑ ‑ ‑

KIRBY J:   You did originally suggest the Tasmanian legislation was the same, but it is not.

MR MACONACHIE:    Yes, that has been repealed, your Honour; we cannot rely on that.  It is New South Wales legislation and the most senior court in New South Wales has passed judgment upon it, but it is because it has the capacity to impact or to impose criminal responsibility capriciously, and because ‑ ‑ ‑

KIRBY J:   Yes, you have made that point; it does have that consequence, but it is a piece of social legislation designed to enforce obligations of safety in factories, the step was taken to embrace a wider application and not only does it have criminal sanctions, but it has, as this case demonstrates, civil sanctions as well in it.

MR MACONACHIE:    The two points that I make in answer to Justice Hayne are the one that I now said three times and will not say again, and secondly ‑ ‑ ‑

KIRBY J:   You can keep saying, you have your time, we just have to sit here.

MR MACONACHIE:    I do not wish to take up your time unnecessarily, your Honours; and secondly, the fact that the ambiguity has been construed otherwise than in accordance with what Justice Gibbs said in Beckwith’s Case.  It is important social legislation, but it is important social legislation not only for the benefit of employees, but important social legislation from the perspective of those upon whom the criminal and civil responsibilities are imposed.  That it is only a New South Wales Act is, as your Honour has, if I may respectfully say so, rightly recognised, not a bar.  Cases like the sentencing legislation in the Northern Territory has recently been passed upon by this ‑ ‑ ‑

KIRBY J:   It is part of our function in our other obligations to deal with State legislation.

MR MACONACHIE:    Indeed it is.

KIRBY J:   But it is a much stronger case obviously, if you have got a statute which has general implications throughout the country and with sentencing legislation there are similarities with such legislation.

MR MACONACHIE:    I do not have that benefit, but I do have this benefit, that the principle of unity of responsibility in legislation of this kind, recognised in Cammell, Laired, put before the Court of Appeal, not passed upon by the majority, recognised as being of considerable importance by a powerful dissenting judgment by a judge greatly experienced as an advocate in this very area, it is important and right that this Court should exercise its supervisory functions over the Court of Appeal and determine whether or not this important piece of social legislation, its wide civil and criminal ramifications, has been properly construed.  I cannot put it any higher than that; that is the way in which we put the application for leave and we will urge your Honours to grant leave.

KIRBY J:   The Court does not need your assistance, Mr Segal.

The Court is not persuaded that there is sufficient doubt about the interpretation of the Factories, Shops and Industries Act 1962 (NSW) preferred by the majority in the Court of Appeal to warrant a grant of special leave in this matter. Special leave is refused.

Do you ask for costs?

MR SEGAL:   I do, your Honour.

KIRBY J:   Do you have anything to say?

MR MACONACHIE:   We cannot resist that.

KIRBY J:   It is refused with costs.

AT 9.43 AM THE MATTER WAS CONCLUDED