Abigroup Contractors v Inspector Maltby

APPELLANTS Mr B D Hodgkinson SC Solicitor: Mr L T Connolly Clayton Utz LEGAL REPRESENTATIVES: RESPONDENTS The Hon. J W Shaw QC with Mr P M Skinner of counsel Solicitor: Mr N A Correy Moray & Agnew

JUDGMENT: - 6 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION FULL BENCH CORAM: WALTON J, Vice President MARKS J BOLAND J 26 September, 2002 Matter No IRC 4804 of 2002 ABIGROUP CONTRACTORS PTY LIMITED AND ANOR v INSPECTOR MALTBY & anor Application by Abigroup Contractors Pty Limited and another for leave to appeal and appeal against a decision of Justice Kavanagh on 7.8.02 in matters no IRC99/5432, 5433, 5434, 5436, 5438, 5502, 5503. REASONS FOR JUDGMENT OF THE COURT

1 These proceedings involve an appeal and an application for leave to appeal by Abigroup Contractors Pty Limited and Luis Bustamante against an interlocutory judgment and orders of Kavanagh J handed down on 6 August 2002: WorkCover Authority of NSW (Inspector Maltby) v Abigroup Contractors Pty Limited, WorkCover Authority of NSW (Inspector Mansell) v Luis Bustamante [2002] NSWIRComm 187. The effect of her Honour's orders were to grant leave to the prosecution to adduce further evidence in relation to applications by the defendants that: 1) The time limit for the commencement of proceedings under s 49(1) of the Occupational Health and Safety Act on the face of the documents was not complied with and the proceedings are out of time.

2. In accordance with s 49(4) of the Act with reference to the WorkCover Prosecutions against both Abigroup and Mr Bustamante there was no evidence before the court related to the Coronial proceedings in which it could be found that s 49(4) was activated and, accordingly, the proceedings are out of time. 2 The appeal is brought pursuant to s 5F of the Criminal Appeal Act 1912 as applied by s196 of the Industrial Relations Act 1996. Section 5F requires that in order for the appellant in these proceedings to appeal, the Court must grant leave.

3 Mr B D Hodgkinson SC appeared for the appellants. On 13 September 2002 Mr Hodgkinson addressed the Court both as to the merits of the appeal and as to leave. Mr J W Shaw QC with Mr P M Skinner of counsel appeared for the prosecution. Mr Shaw was called upon to address the question of leave. Having heard the parties, including Mr Hodgkinson in reply, the Court refused leave and indicated that it would provide reasons at a later time. We now give our reasons for refusing leave.

4 Mr Hodgkinson submitted that, in granting leave to the prosecution to call further evidence, Kavanagh J erred in the following respects: 1) Her Honour erred in accepting that a presumption of regularity arises in proceedings of this kind as a result of the issue of orders pursuant to s 4(1) of the Supreme Court (Summary Jurisdiction) Act 1967.

2. Her Honour erred in applying the decision of the Queens Bench Division in Price v Humphries [1958] 2 QB 353 to conclude that such a presumption of regularity arises in occupational health and safety prosecutions pursuant to the Act.

3. Her Honour erred in failing to find that the notice given to the prosecutor of the issue in relation to s49(4) before the close of the prosecution case was sufficient and, therefore, that evidence ought to have been led within the prosecution case. 4) Her Honour erred in concluding that the prosecutor was not obliged to adduce evidence in support of s 49(4) as part of the prosecution case unless there had been a "formal objection" or "formal notice of the application". 5 The relief claimed was: 1) The setting aside of the interlocutory judgment and consequential orders made by her Honour Judge Kavanagh on 6 August 2002.

2. An order refusing the Prosecutor's application to adduce further evidence.

3. Costs of this Application. 6 In opposing leave to appeal, Mr Shaw referred to a strong line of authority to the effect that it is undesirable for criminal prosecutions to be interfered with by interlocutory appellate procedures prior to conviction and sentence. Those authorities included: R v Rogerson (1990) 45 A Crim R 253 at 254; R v Allen, (unreported, NSWCCA, 14 August 1991); R v Waterhouse (1992) 62 A Crim R 59; Chow v DPP (1992) 28 NSWLR 593, (1992) 63 A Crim R 316 at 320 - 321; R v Steffan (1993) 30 NSWLR 663, (1993) 67 A Crim R 506 at 515 and BWM (1997) 91 A Crim R 260.

7 In Ridge Consolidated Pty Ltd v WorkCover Authority of NSW (Insp. Mauger) (2000) 100 IR 156, after citing with approval a passage from the judgment of Hunt CJ at CL in the Court of Criminal Appeal in BWM, the Full Bench said at par [19]: For the purpose of these proceedings, we draw the following propositions from his Honour's judgment. The appeal court's role in s 5F proceedings is that of a court of error not a court of review. It is usual and appropriate to treat the issue of leave as significant and one which should be heard without necessarily hearing full argument on the appeal itself. The section should be applied on the basis that it reflects longstanding policy that it is undesirable for criminal prosecutions to be interfered with or interrupted by interlocutory or appellate procedures prior to conviction and sentence. There may, however, be some cases where leave would be readily granted if clear error in the decision at first instance is demonstrated. Further, demonstration of error is essential for the grant of leave where the appeal is brought from an exercise of discretion (see also, as to this last issue, the judgments of Gleeson CJ at 261 and Hidden J at 268). 8 Having regard to the Full Bench decision in Ridge Consolidated, we do not consider that the appellants have made out a case demonstrating error such as would warrant the grant of leave.

9 In the present proceedings Kavanagh J was concerned with purely procedural issues. That is, whether in the Court's discretion, she should grant leave to the prosecution to call additional evidence in the face of the defendant's application that the prosecutions had been brought out of time. No determination was made by her Honour affecting substantive rights.

10 We consider that Mr Shaw was correct in his submissions on leave that, in light of the authorities that hold against interrupting criminal proceedings, it is premature for us to intervene at this stage in the proceedings at first instance. All that Kavanagh J has determined at this point, in the exercise of her discretion, is to grant leave to the prosecution to call additional evidence. She has not yet determined whether the prosecutions were or were not within time and she has certainly not determined whether or not the offences have been proved. If her Honour was to determine that the prosecutions were out of time or that the appellants were not guilty of any offence then no issue arises, from the defendants' perspective, as to any need to appeal. If, on the other hand, her Honour was to find that the prosecutions were not brought out of time and the defendants, or either one of them was guilty of an offence, then the defendants, or either one of them, would be entitled (upon the basis of this judgment) to put in issue on any appeal they might bring, the subject matter of this appeal: See s 5F(6) of the Criminal Appeal Act.

11 We observe that the prosecution's application to call additional evidence was made after the close of evidence in the proceedings at first instance. Whilst it might be contended that inconvenience is caused to the appellants by the late reception of additional evidence by the Court, it was well within Kavanagh J's discretion to allow the evidence. Her Honour has presided over a lengthy and complex trial and ultimately her discretionary judgment falls for consideration in the light of those circumstances. It is apparent that her Honour had regard to the objections of the defendants and the inconvenience caused by granting leave to the prosecution to call additional evidence but that these considerations had to be weighed against broader notions of justice. Those were matters relevant to the exercise of her Honour's discretion.

12 In all the circumstances we have decided to refuse leave to appeal.

13 We note that the prosecution seeks costs. The prosecution shall file within seven days of this judgment the basis upon which they seek costs. The defendants shall reply within fourteen days of the judgment with any reply by the prosecution to be within seven days thereof.

14 We confirm the orders of the court: 1) Leave to appeal is refused.

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