Williamson v Betterlay Brick and Block Laying Pty Ltd - [2020] QCA 52

SUPREME COURT OF QUEENSLAND

CITATION:

Williamson v Betterlay Brick and Block Laying Pty Ltd [2020] QCA 52

PARTIES:

IAN WILLIAMSON
(applicant)
v
BETTERLAY BRICK AND BLOCK LAYING PTY LTD
ACN 141 628 159
(respondent)

FILE NO/S:

CA No 243 of 2018
DC No 40 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Criminal)

ORIGINATING COURT:

District Court at Beenleigh – Betterlay Brick and Block Laying Pty Ltd v Williamson [2018] QDC 172 (Richards DCJ)

DELIVERED ON:

27 March 2020

DELIVERED AT:

Brisbane

HEARING DATE:

24 July 2019

JUDGES:

Morrison and Philippides JJA and Applegarth J

ORDERS:

1.   The application for leave to appeal be granted.

2.   The appeal be allowed.

3.   The orders made in the Beenleigh District Court on 24 August 2018 be set aside and in lieu thereof, the appeal to the District Court be dismissed with costs.

4.   The orders of the magistrate made on 12 October 2017, being that the respondent was convicted and fined $35,000 and ordered to pay the costs of the prosecution be reinstated.

5.   The respondent pay the appellant’s costs of the appeal to the District Court and this appeal.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – where the respondent successfully appealed to the District Court against its conviction in the Magistrates Court on a complaint that alleged that it was a person that “had a health and safety duty” under the Work Health and Safety Act 2011 (Qld) (WHS Act) – where the appeal was allowed on the basis that the prosecution did not prove its case beyond reasonable doubt – where the applicant seeks leave to appeal under s 118(3) of the District Court of Queensland Act 1967 (Qld) (DCA) – where the applicant has had the benefit of two judicial hearings before the Magistrates Court and the District Court – whether an appeal to the Court of Appeal is necessary to correct a substantial injustice – whether the applicant’s grounds of appeal concern issues of general importance in relation to the conduct of similar prosecutions under the WHS Act – whether leave to appeal should be granted

CRIMINAL LAW – PARTICULAR OFFENCES – WORKPLACE HEALTH AND SAFETY OFFENCES – where the respondent was engaged to carry out block laying work for a block wall at a construction site – where, properly built, the block wall would have been constructed by laying courses of besser blocks, with steel reinforcement or “droppers” placed vertically through the block wall and then core filled by concrete – where the respondent attended at the site on 28 November 2014 and failed to insert vertical steel reinforcement into the wall, as required by the applicable engineering specifications – where the respondent was found guilty in the Magistrates Court under s 33 of the WHS Act because it had a contractual responsibility to construct the walls according to engineering specifications and did not do all that was reasonably practicable to ensure that steel reinforcement was placed into…

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: [2020] QCA 52
Decision Date: 27 March 2020

CaseChat Overview and Summary

Williamson sought leave to appeal to the Court of Appeal against a decision of the District Court that overturned its conviction in the Magistrates Court. The Magistrates Court had convicted the respondent, Betterlay Brick and Block Laying Pty Ltd, of an offence under the Work Health and Safety Act 2011 (Qld). The court found that the respondent had a health and safety duty under the Act and failed to do all that was reasonably practicable to ensure that steel reinforcement was placed into a wall at a construction site, which placed persons at risk of harm. The District Court overturned the conviction, finding that the prosecution had not proved its case beyond reasonable doubt, as the breach was found to have occurred on 28 November 2014, not 2 December 2014 as alleged in the complaint.

The court was required to decide whether leave to appeal should be granted, and whether the grounds of appeal concerned issues of general importance in relation to the conduct of similar prosecutions under the Work Health and Safety Act 2011 (Qld). The court had to consider the statutory provisions and principles involved, including the primary object of statutory construction and the meaning of the term "reasonably practicable." The court also had to determine whether the breach was a continuing offence and whether a single date was required to be pleaded and proven as an essential element of the offence under s 33 of the WHS Act.

The court found that the primary judge erred in her interpretation and application of s 33 of the WHS Act in failing to find that the offence was a continuing offence. The court held that the risk arose at the time that the wall was core filled and the risk was there even if it was only a potential risk. The court also found that the breach was not limited to the date alleged in the complaint and that a single date was not required to be pleaded and proven as an essential element of the offence under s 33. The court granted leave to appeal, allowed the appeal, and set aside the orders made in the Beenleigh District Court on 24 August 2018. The court reinstated the orders of the magistrate made on 12 October 2017, being that the respondent was convicted and fined $35,000 and ordered to pay the costs of the prosecution. The respondent was ordered to pay the appellant's costs of the appeal to the District Court and this appeal.

Orders

Orders of the court

1. The application for leave to appeal be granted.

2. The appeal be allowed.

3. The orders made in the Beenleigh District Court on 24 August 2018 be set aside and in lieu thereof, the appeal to the District Court be dismissed with costs.

4. The orders of the magistrate made on 12 October 2017, being that the respondent was convicted and fined $35,000 and ordered to pay the costs of the prosecution be reinstated.

5. The respondent pay the appellant’s costs of the appeal to the District Court and this appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

The proposed ground of appeal that the applicant seeks to raise, if leave to appeal is granted, is that the primary judge erred in her interpretation and application of s 33 of the WHS Act in failing to find that the offence was a continuing offence.[9][9]Reasons at [25].The decision of the primary judge There was no contest before the primary judge (nor before this Court) that the respondent owed a health and safety duty pursuant to s 19(2) of the WHS Act, as the respondent was a “person conducting a business or undertaking” within the meaning of the WHS Act such that it was required to “ensure the health and safety of other persons from work carried out as part of conduct of the business or undertaking”.[10][10]Reasons at [22]. The primary judge summarised the particulars of the breach as being that the respondent:[11]“… was required to have steel in reinforcement vertically placed in the block wall at the end of veranda slab to [music room “A”] before it was core filled to ensure sufficient structural adequacy, the risk was that the wall would fail and do so without warning to persons in nearby vicinity, and that the company did not ensure that there was steel reinforcement placed in the wall before it was core filled.”[11]Reasons at [13]. Her Honour noted the evidence given at trial in a report by a civil engineer, which was not disputed and concluded that, without steel reinforcing, the wall was at risk of collapse without warning. It stated:[12]“3.1The effect of not providing vertical reinforcement in the 190 core filled block wall would be two-fold, the structural capacity of the wall in bending would be dramatically reduced and the wall would become a brittle no ductile structural element, meaning that, in the event of a failure, there would be no warning, the failure would be immediate.3.2In our opinion had the roof framing been successfully connected to the block wall the block wall would not have been structurally adequate, it would still be non-ductile structural element which is not permitted in the circumstances.”[12]Reasons at [21]. The primary judge accepted that it was proved that the respondent had breached its duty, finding that the failure to comply with the s 19(2) duty was in failing to check that the steel reinforcement was in the wall before it was core filled,[13] which it was reasonably practicable for the respondent to undertake by visual inspection.[14][13]Reasons at [23].[14]Reasons at [27]. Notwithstanding that finding, her Honour disposed of the appeal on the basis that the failure to comply with that duty had occurred on 28 November 2014, when the wall was core filled without the insertion of steel reinforcement, and not on 2 December 2014 as alleged in the complaint and, accordingly, “the prosecution did not prove its case beyond reasonable doubt”.[15][15]Reasons at [29]. In finding that the failure to comply with its s 19(2) duty occurred on 28 November 2014 when the respondent “core filled the wall without taking notice of whether the steel reinforcement was present in the wall”[16] and not on 2 December 2014 when the wall collapsed, her Honour rejected the applicant’s contention that the offence under s 33 should be interpreted as being of a continuing nature and instead reasoned:[17]“The risk arises at the time that the wall is core filled. The risk may not be known until injury or collapse occurs but that does not means (sic) that the offence does not occur until this event. The incident that manifests the risk is no more than evidence that the risk was real. The risk, however, does not have to be manifested before a breach of the act occurs. The risk is there even if it [is] only a potential risk.”[16]Reasons at [24].[17]Reasons at [25].

Ratio Decidendi

Legal Principle Established

Lastly, while the respondent acknowledged the general rule of practice set out in WGC that generally the date of an offence is not a material fact which must be proven beyond reasonable doubt, the respondent submitted that that rule had no application in this matter, as the trial “proceeded solely on the basis of a single day on which the prosecution said the offending occurred. The way in which the trial was conducted rendered the date a material particular”.[32]Consideration [32]Respondent’s submissions at [29].Statutory provisions and principles The issue before this Court is one of statutory construction. It is well established that:[33]“The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined ‘by reference to the language of the instrument viewed as a whole’.”[33]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 381 [69] per McHugh, Gummow, Kirby and Hayne JJ (citations omitted). Further, as Hayne, Heydon, Crennan and Kiefel JJ stated in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue:[34]“This Court has stated on many occasions that the task of statutory construction must begin with a consideration of the text itself… The language which has actually been employed in the text of legislation is the surest guide to legislative intention. The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.”[34](2009) 239 CLR 27 at [47] (citations omitted). It is necessary to consider the text of s 33 of the WHS Act, read in the context of the WHS Act as a whole, including s 19 (the primary duty of care). Section 33 (relevantly) provides: “Failure to comply with health and safety duty—category 3A person commits a category 3 offence if—(a)the person has a health and safety duty; and(b)the person fails to comply with that duty.” In this case, the relevant health and safety duty with which the respondent failed to comply was contained in s 19(2) of the WHS Act, which provides: “Primary duty of care …(2)A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.” (emphasis added) Section 18 provides an inclusive meaning as to the term “reasonably practicable” as follows:“… reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including—(a)the likelihood of the hazard or the risk concerned occurring; and(b)the degree of harm that might result from the hazard or the risk; and(c)what the person concerned knows, or ought reasonably to know, about—(i)the hazard or the risk; and(ii)ways of eliminating or minimising the risk; and(d)the availability and suitability of ways to eliminate or minimise the risk; and(e)after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.”Section 33 as a continuing offence

CITATION:	Williamson v Betterlay Brick and Block Laying Pty Ltd [2020] QCA 52
PARTIES:	IAN WILLIAMSON (applicant) v BETTERLAY BRICK AND BLOCK LAYING PTY LTD ACN 141 628 159 (respondent)
FILE NO/S:	CA No 243 of 2018 DC No 40 of 2017
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave s 118 DCA (Criminal)
ORIGINATING COURT:	District Court at Beenleigh – Betterlay Brick and Block Laying Pty Ltd v Williamson [2018] QDC 172 (Richards DCJ)
DELIVERED ON:	27 March 2020
DELIVERED AT:	Brisbane
HEARING DATE:	24 July 2019
JUDGES:	Morrison and Philippides JJA and Applegarth J
ORDERS:	1. The application for leave to appeal be granted. 2. The appeal be allowed. 3. The orders made in the Beenleigh District Court on 24 August 2018 be set aside and in lieu thereof, the appeal to the District Court be dismissed with costs. 4. The orders of the magistrate made on 12 October 2017, being that the respondent was convicted and fined $35,000 and ordered to pay the costs of the prosecution be reinstated. 5. The respondent pay the appellant’s costs of the appeal to the District Court and this appeal.
CATCHWORDS:	CRIMINAL LAW – APPEAL AND NEW TRIAL – PROCEDURE – where the respondent successfully appealed to the District Court against its conviction in the Magistrates Court on a complaint that alleged that it was a person that “had a health and safety duty” under the Work Health and Safety Act 2011 (Qld) (WHS Act) – where the appeal was allowed on the basis that the prosecution did not prove its case beyond reasonable doubt – where the applicant seeks leave to appeal under s 118(3) of the District Court of Queensland Act 1967 (Qld) (DCA) – where the applicant has had the benefit of two judicial hearings before the Magistrates Court and the District Court – whether an appeal to the Court of Appeal is necessary to correct a substantial injustice – whether the applicant’s grounds of appeal concern issues of general importance in relation to the conduct of similar prosecutions under the WHS Act – whether leave to appeal should be granted CRIMINAL LAW – PARTICULAR OFFENCES – WORKPLACE HEALTH AND SAFETY OFFENCES – where the respondent was engaged to carry out block laying work for a block wall at a construction site – where, properly built, the block wall would have been constructed by laying courses of besser blocks, with steel reinforcement or “droppers” placed vertically through the block wall and then core filled by concrete – where the respondent attended at the site on 28 November 2014 and failed to insert vertical steel reinforcement into the wall, as required by the applicable engineering specifications – where the respondent was found guilty in the Magistrates Court under s 33 of the WHS Act because it had a contractual responsibility to construct the walls according to engineering specifications and did not do all that was reasonably practicable to ensure that steel reinforcement was placed into…