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Work Health Authority v Outback Ballooning Pty Ltd

Work Health Authority v Outback Ballooning Pty Ltd

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Case Copied 6 February 2019 69 min read

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HIGH COURT OF AUSTRALIA
KIEFEL CJ,
BELL, GAGELER, KEANE, NETTLE, GORDON AND EDELMAN JJ
WORK HEALTH AUTHORITY APPELLANT
AND
OUTBACK BALLOONING PTY LTD & ANOR RESPONDENTS
Work Health Authority v Outback Ballooning Pty Ltd
[2019] HCA 2
6 February 2019
D4/2018
ORDER
1.Appeal allowed.
2. Set aside the order made in paragraph 1 of the order of the Court of Appeal of the Supreme Court of the Northern Territory made on 19 October 2017 and the order made in paragraph 1 of the order made on 28 March 2018 and, in their place, order that the appeal to that Court be dismissed with costs.
3. The first respondent pay the appellant's costs of the appeal to this Court.

On appeal from the Supreme Court of the Northern Territory
Representation
S L Brownhill SC, Solicitor-General for the Northern Territory, and T Moses for the appellant (instructed by Solicitor for the Northern Territory)
J T Gleeson SC with T J Brennan for the first respondent (instructed by GSG Legal)
Submitting appearance for the second respondent
S P Donaghue QC, Solicitor-General of the Commonwealth, with Z C Heger and T M Wood for the Attorney-General of the Commonwealth, intervening (instructed by Australian Government Solicitor)
P J Dunning QC, Solicitor-General of the State of Queensland, with F J Nagorcka for the Attorney-General of the State of Queensland, intervening (instructed by Crown Law Queensland)
M E O'Farrell SC, Solicitor-General for the State of Tasmania, with S Elankovan for the Attorney-General for the State of Tasmania, intervening (instructed by Office of the Solicitor-General – Tasmania)
K L Walker QC, Solicitor-General for the State of Victoria, with F I Gordon for the Attorney-General for the State of Victoria, intervening (instructed by Victorian Government Solicitor)
G T W Tannin SC with J A Godfrey for the Attorney-General for the State of Western Australia, intervening (instructed by State Solicitor's Office (WA))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

KIEFEL CJ, BELL, KEANE, NETTLE AND GORDON JJ. Outback Ballooning Pty Ltd, the first respondent to this appeal, operates a business in Alice Springs which provides rides in hot air balloons to passengers. On 13 July 2013 a group of persons were taken to a location some distance from Alice Springs airport for that purpose. On their arrival the basket which would hold them was laid on its side pointing towards the balloon, which was spread out on the ground preparatory to its inflation. The intended passengers were given a short briefing during which they were told to avoid the inflation fan. The fan was a stand-alone piece of equipment driven by a motor with a metal guard around its blades. The fan was started. Three passengers boarded. The fourth, Ms Stephanie Bernoth, approached the basket and as she did so the scarf she was wearing was sucked into the inflation fan causing her to be dragged towards the metal guard. Ms Bernoth later died…

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: [2019] HCA 2
Decision Date: 6 February 2019

CaseChat Overview and Summary

The Work Health Authority (WHA), the appellant, appealed to the High Court of Australia following a decision by the Court of Appeal of the Northern Territory. The dispute concerned whether the WHA could prosecute Outback Ballooning Pty Ltd for a breach of the Northern Territory's Work Health and Safety Act 2011 (NT) concerning risks to embarking passengers during the inflation of a hot air balloon. The primary court had dismissed the complaint, finding the subject matter was covered by Commonwealth aviation law, a decision later overturned by a single judge of the Supreme Court of the Northern Territory. However, the Northern Territory Court of Appeal reinstated the dismissal, holding that Commonwealth aviation law was intended to be exhaustive and that Territory law was indirectly inconsistent.

The central legal issue before the High Court was whether the Commonwealth's regulatory scheme for civil aviation, which implements international obligations and aims for uniformity, evinced a legislative intention to cover the field of safety in operations associated with aircraft, thereby precluding the application of the Northern Territory's work health and safety legislation to the embarkation of passengers. This involved determining whether the Commonwealth law implicitly prohibited the operation of any other law, including Territory laws, in relation to the safety of persons affected by aircraft operations, specifically during the embarkation process.

The High Court allowed the appeal, reasoning that while the Commonwealth aviation law comprehensively regulates many aspects of aviation safety, it did not demonstrate an intention to cover the field exhaustively to the exclusion of all other laws. The Court found that the Commonwealth regime was designed to operate within a framework of other laws and did not contain an implicit negative proposition that it was the sole law governing safety in all operations associated with aircraft, including embarkation. The Court distinguished the present case from prior decisions that had found an intention to cover the field, emphasising that the specific subject matter of the complaint – risks to embarking passengers from a ground-based activity – was not so intrinsically linked to flight safety as to be exclusively regulated by Commonwealth law.

Consequently, the High Court set aside the orders of the Court of Appeal of the Northern Territory and ordered that the appeal to that Court be dismissed with costs. The first respondent, Outback Ballooning Pty Ltd, was ordered to pay the appellant's costs of the appeal to the High Court.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside the order made in paragraph 1 of the order of the Court of Appeal of the Supreme Court of the Northern Territory made on 19 October 2017 and the order made in paragraph 1 of the order made on 28 March 2018 and, in their place, order that the appeal to that Court be dismissed with costs.

3. The first respondent pay the appellant's costs of the appeal to this Court.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

KIEFEL CJ, BELL, KEANE, NETTLE AND GORDON JJ GAGELER J (dissent)

The Work Health Authority ("the WHA"), the appellant in these proceedings, filed a complaint against the first respondent under s 32 of the NT WHS Act in which it was alleged that the first respondent failed to comply with the duty imposed by s 19(2) of that Act. The breach of duty referred to in the complaint was identified as a failure to eliminate or minimise risks[3] to embarking passengers that arose from the use of a fan to inflate the hot air balloon.[3]NT WHS Act, s 27(1).The decisions below The complaint was dismissed by the Northern Territory Court of Summary Jurisdiction as invalid because the subject matter of it was within the field covered by the Commonwealth regulatory scheme with respect to aviation. That scheme, Magistrate Bamber considered, extended to pre-flight operations affecting the safety of passengers on the ground. The WHA sought an order in the nature of certiorari from the Supreme Court of the Northern Territory to quash that decision. Barr J held that the Court of Summary Jurisdiction was wrong to hold that it lacked jurisdiction to hear the complaint, and made the order sought[4]. In his Honour's view, the Commonwealth regime regulates aviation operations which affect the safety of aviation and passengers in flight but does not extend to all operations. His Honour did not consider that the embarkation procedure, the subject of the complaint, was so closely connected with safety in flight as to be regulated by an exclusive Commonwealth regime[5].[4]Work Health Authority v Outback Ballooning Pty Ltd (2017) 318 FLR 294 at 306 [38].[5]Work Health Authority v Outback Ballooning Pty Ltd (2017) 318 FLR 294 at 301 [21], 305-306 [37]. The Court of Appeal of the Northern Territory allowed the first respondent's appeal from his Honour's decision[6]. Southwood J (with whom Blokland J agreed)[7] and Riley J[8] concluded that the Commonwealth aviation law was a complete statement of the relevant law and that there was an indirect inconsistency between the Northern Territory law and the Commonwealth aviation law, which extended to the embarkation of passengers. Riley J was of the view that the Commonwealth aviation law was intended to cover the field and was not intended to operate in conjunction with any State or Territory scheme directed to the same end. In reaching these conclusions their Honours followed the decision of a Full Court of the Federal Court in Heli-Aust Pty Ltd v Cahill[9].[6]Outback Ballooning Pty Ltd v Work Health Authority (2017) 326 FLR 1.[7]Outback Ballooning Pty Ltd v Work Health Authority (2017) 326 FLR 1 at 11-12 [59], [61].[8]Outback Ballooning Pty Ltd v Work Health Authority (2017) 326 FLR 1 at 19 [99].[9](2011) 194 FCR 502. Following a grant of special leave, the WHA appeals to this Court. In this Court, Outback Ballooning contends that the Commonwealth aviation law, as defined below, deals completely, exhaustively or exclusively with the "prescription and enforcement of the standards of safety in the conduct of air navigation or air operations" in Australia. For the reasons that follow, that contention should be rejected. In rejecting that contention, it is important to recognise that there is no dispute that there are aspects of matters preparatory to and subsequent to an aircraft flying, including embarkation and disembarkation of passengers, that are completely, exhaustively or exclusively dealt with by the Commonwealth aviation law.The Commonwealth aviation law

Ratio Decidendi

Legal Principle Established

Established by: KIEFEL CJ, BELL, KEANE, NETTLE AND GORDON JJ,

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