NK Collins Industries Pty Ltd v The President of the Industrial Court of Queensland & Anor [2013] QCA 179

 

JUDGES: Holmes and Fraser JJA and Margaret Wilson JSeparate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:
  1. Allow the application for an extension of time within which to appeal.
  2. Allow the appeal.
  3. Set aside the orders made by Martin J on 8 June 2012.
  4. Set aside the order of the first respondent made on 22 March 2011 dismissing the applicant’s appeal from the Industrial Magistrate’s decision.
  5. Remit the matter to the first respondent for hearing and determination according to law.
  6. Order that the second respondent pay the applicant its costs of and incidental to the application for judicial review of the decision of the Industrial Court of Queensland filed 21 June 2012 and its costs of this appeal other than the costs of the application for leave to appeal.
CATCHWORDS: APPEAL AND NEW TRIAL – APPEAL – PRACTICE AND PROCEDURE – QUEENSLAND – TIME FOR APPEAL – EXTENSION OF TIME – WHEN GRANTED – where the application for an extension of time was filed some three months after the expiry of the appeal period – where the delay in bringing the appeal was explained by affidavit material – where the second respondent alleged prejudice in its inability to locate witnesses – whether an extension of time within which to file a notice of appeal should be allowedADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – JURISDICTIONAL MATTERS – where the applicant was convicted in the Industrial Magistrates Court on the second respondent’s complaint that it had failed to discharge its obligation under s 24 of the Workplace Health and Safety Act 1995 to ensure the workplace health and safety of its workers – where the Industrial Magistrate declined to order that the second respondent give further and better particulars of the act or omission alleged to have constituted the offence – where the applicant appealed to the first respondent, who ruled that the particulars were not required and dismissed the appeal – where the primary judge dismissed an application for review of the first respondent’s decision, holding that it involved no jurisdictional error – whether the Act required that an act or omission be identified as constituting the offence – whether the High Court’s decision in Kirk was properly distinguished whether the structure of the Act required that the measure a defendant employer should have taken to ensure its workers‘ safety from risk be identified in order to permit an effective defence under s 37 – whether there was jurisdictional error by the first respondentADMINISTRATIVE LAW – JUDICIAL REVIEW – POWERS OF COURT UNDER JUDICIAL REVIEW LEGISLATION  –  ORDERS  TO  QUASH  DECISION  – where the parties proposed that if the appeal were to be upheld, the Court should quash the decision of the Industrial Magistrate under s 47(3) of the Judicial Review Act 1991 and remit the matter to the Industrial Magistrates Court – where r 766 of the Uniform Civil Procedure Rules 1999 gives this Court all the powers and duties of the Court that made the decision appealed from – where the decision appealed from did not concern jurisdictional error by the Magistrate, but by the first respondent on appeal from the Magistrate‘s decision – whether the primary judge, and accordingly this Court, had any power to quash the Industrial Magistrate‘s decision and remit the matter to the Industrial Magistrates Court.Holmes JA delivered the leading judgment with whom Fraser JA and Margaret Wilson J concurred. Holmes JA held the correct approach was the applicaiton of Kirk:

 “[58] The respondent’s construction should not be accepted. For s 37 to have any sensible application, the same approach must be taken to a contravention of s 24 as was taken in Kirk to contravention of s 15 and s 16 of the New South Wales Act, so that the relevant breach “is the measure not taken, the act or omission of the employer”. In the present case, the only suggestion of what measures might have been taken came after the defence case was closed and the applicant’s submissions were made. What was then raised was a miscellany of steps under two different codes, at varying levels of generality, with no attempt made to isolate any particular measure as of relevance to the risk in question.”

 

The basis for reaching the decision was fivefold.

A.      Decisions dealing with a breach of the civil duty needed to be distinguished:

“[47] I do not consider that Bourk and Parry assist in resolving the question of jurisdictional error here. In Bourk, the appellant was a linesman who sued for injuries suffered in a fall from a power pole when his safety harness failed. The primary judge found that the employer was obliged by s 28(1) to maintain safety equipment it provided to its employees, and its failure to do so constituted a breach of s 28. That finding was unchallenged on appeal, the argument there turning on whether the appellant had proved that the breach had caused his injuries. At no point was it suggested that it was unnecessary to establish of what the failure on the part of the employer amounting to a breach consisted. And as the applicant pointed out here, the case was not concerned with what was necessary to prove a contravention of s 24 of the Act.

[48] Parry, similarly, was not concerned with a breach of s 24. The appellant/plaintiff had contended that the respondent/employer breached s 28 by requiring him to assist in lifting a heavy tub of meat. The trial judge did not accept an expert report as to the risk of injury involved in the lift, and found, consequently, that the plaintiff had not proved the breach. The appeal was allowed, the court holding that the report did support the view that the lift involved a risk of injury. The expert had identified counter-measures: the use of smaller tubs or a requirement that the tubs not be lifted when they were more than half full. There was an advisory standard in place which set out a means of managing exposure to risks of the kind. Fraser JA, delivering the leading judgment, observed that, although the report was in some respects vague, it supported the view that the lift involved a risk of injury and the fact that the risk might have been managed in the various ways described in the report and the standard served to emphasise that there was a risk. Again, there was no suggestion in this case that it was unnecessary to identify what the employer had done or failed to do.”

B.      The absence of wording referring to “acts and omissions” in s 24 needed to be considered in the context of the legislation where it elsewhere was a requirement:

“[49] Nor do I think that the absence of reference to an “act or omission” in s 24 is conclusive of what is entailed in a contravention of the section. As the applicant pointed out, s 164 of the Act, which dealt with proceedings for offences, provided in ss (2) that more than one contravention could be charged as a single charge “if the acts or omissions giving rise to the claimed contravention” happened at the same time and place. Section 166 had the effect that a defendant was responsible for acts done or omitted to be done by his representatives within the scope of their actual or apparent authority unless he proved that he “could not, by the exercise of reasonable diligence, have prevented the act or omission”. The applicant submitted that it would be an odd result if it were necessary for the prosecution to particularise acts or omissions where it was sought to establish vicarious liability, but not where it relied on direct liability.”

C.      Section 24(2) provided it applied regardless of ss23 and 24 of the Criminal Code which applies to acts and omissions, but under a honest and mistaken belief. If the legislation did not intend to apply to acts or omissions, it rendered the exclusion under the Criminal Code redundant:

“[50] The applicant made another point which has some force. Section 24(2) of the Act provides that the preceding subsection applies despite ss 23 and 24 of the Criminal Code, which deal, respectively, with acts, omissions and events which occur by accident and acts or omissions done pursuant to an honest and reasonable but mistaken belief as to the facts. It would be unnecessary to exclude the application of those provisions if s 24 of the Workplace Health and Safety Act were not concerned with criminal responsibility for acts or omissions.”

D.      The particulars of the charge were little more than a repetition of s 28(1) and did not provide the basis upon which a defence could be mounted:

“[51] The contravention in this case was identified as the failure to discharge the obligation to ensure that the workplace health and safety of the applicant’s workers was not affected by the conduct of its business or undertaking. That allegation, which merely repeats the words of s 28(1), could hardly be more general; it gives no guidance at all as to what the contravention actually consists of. What was specified as the relevant risk – “death or injury including the risk of crush injuries to [Mr] Guo” – was, at best, particulars of the results of eventuation of the risk. The risk was identified as emanating from two sources: falling dead trees and/or the system of work for felling dead trees. The applicant thus had to respond to the general allegation of contravention with the elaboration that the risk included crush injuries and its source was either the mere existence of the dead trees, or some unidentified aspect of the way in which it went about its tree-felling; or both.

[52] There was no allegation in the complaint that the Forest Harvesting Code of Practice or the Risk Management Advisory Standard Code of Practice stated a way of managing exposure to the risk of death or injury from the specified sources; although the prosecutor’s address at the end of the case suggested that both were relevant. It was thus left to the applicant, in mounting his defence, to identify whether this was a case in which s 26(3) applied. If it did, the only means by which the applicant could discharge its obligation was by adopting or following a way stated in the relevant code or an equivalent means, in the latter case also taking reasonable precautions and exercising proper diligence. If s 26(3) did not apply, there were various provisions dealing with how the obligation might be discharged: generally, under s 28(2), by not exposing any of the workers to risks to their health or safety in the conduct of the business or undertaking; by proof, under s 27, of having adopted any way to discharge the obligation, taken reasonable precautions and exercised proper diligence; or by doing all of the things set out in s 29 relevant to the circumstances of the particular case.

[53] It was, accordingly, left to the applicant to examine the codes of practice and attempt to ascertain what stated ways there were to manage exposure to the risk of death or injury emanating firstly, from falling dead trees and secondly, from its system of work for the felling of dead trees. Notwithstanding the prosecutor’s submissions in the Magistrates Court, it seems improbable that a perusal of the Risk Management Advisory Standard Code of Practice, which is pitched at a very general level, would yield a way of managing the risk from either source. However, the fact that the prosecutor suggested that there was a relevant failure to take measures contained in it serves to illustrate the difficulties confronting an employer in defending a complaint which does not refer to any code of practice.

[54] An examination of the Forest Harvesting Code of Practice, on the other hand, would have revealed in relation to the risk posed by falling dead trees that “[t]he danger from dead or dry standing decayed trees can be reduced firstly by their identification, and secondly by their removal from within the felling zone.” and, under a heading, “Working with machinery”, that “[d]anger from dead or dry standing decayed trees can be reduced by their removal, both along proposed snig tracks, and within the drop zone of a landing.”

[55] The second aspect of the exercise, of discerning whether the Forest Harvesting Code of Practice states a way of managing exposure to the risk of death or injury from the system of work for the felling of dead trees is rather more difficult, in the absence of identification of any particular aspect of the system of work as creating the relevant risk. The code deals with a number of ways in which forest harvesting is to be done safely. It requires a harvesting plan detailing the methods and conditions of operation for any given harvesting area:

“The harvesting plan must describe how work should be performed to eliminate or minimise the risks faced when harvesting.”

In conducting harvest operations, employers are to ensure that their workers are competent and hold appropriate certificates or are undergoing training. Individuals are not to be required to work alone during felling except “where a high standard of safety is in place”; personal protective equipment is to be used. Manual felling is to be undertaken by certain methods of cutting. Any of those stated measures might minimise the risk arising from the employer’s system of felling dead trees, if one knew what it was about the system that gave rise to the risk.”

E.       The employer did not know the basis upon which to defend the charge when there was more than one applicable code of practice aimed at the risk:

“[56] Putting to one side the difficulty of not knowing what aspect of the system of work created the risk, there is the more general problem of how an employer is to defend a charge when there is more than one relevant code of practice or where a code of practice states more than one measure for dealing with a risk. On one view (which seems generally to have been the approach of the prosecutor at first instance), it would fall to the employer to adduce evidence of what it had done in respect of every one of the measures, whatever their relevance, or absence of it, to the actual hazard involved in the case. The second respondent did not argue here for that construction, accepting that it would suffice under s 37(1)(b) to show that the applicant adopted and followed any one way stated in the code of practice to manage exposure to the identified risks. Given the wording of the sub-section, that concession is not surprising.

[57] But accepting that position as correct, the respondent’s construction of s 24, as not requiring that the actual nature of the contravention be identified, can only produce absurdity. For example, although in reality the cause of injury might be the failure to identify and remove dead trees, or a lack of training of workers in felling around dead trees, in the absence of any particularisation to that effect, it would suffice for the applicant to prove that there were no dead trees within the drop zone of a landing. That is a way stated in the code for managing the risk of falling dead trees. There need not, on that approach, be any nexus between the measure advanced under s 37 as a means of managing exposure to the risk and the actual manifestation of the risk. But for a defence under s 37 to have a rational relationship to ensuring workplace health and safety, it must be responsive to some identified aspect of what the employer has done or failed to do in the conduct of its business which has created the risk.”

 

David Cormack – Brisbane Barrister. 

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