Bros Bins Systems Pty Ltd v Industrial Relations Commission of New South Wales

HELD Scope of the offence Per Spigelman CJ, Giles JA and Handley AJA agreeing

1 There was no jurisdictional error in the determination that a particular piece of equipment is not "plant" within the meaning of s 17 of the Occupational Health and Safety Act 1983 on the basis that it was sent to a third party for repair. It was open to the Full Bench to determine that question in the way it did. If there was an error it was an error within jurisdiction. [27]-[28], [40]-[42], [87], [88] Craig v South Australia (1995) 184 CLR 163; Re Refugee Review Tribunal: Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 referred to.

2 This Court can only intervene if the Full Bench has committed, or failed to correct, a jurisdictional error of law. [29], [87], [88]

3 In Australian law the distinction between jurisdictional and non-jurisdictional error remains real, indeed fundamental. [30], [39], [87], [88]

Power to remit 4 By enacting s 197A of the Industrial Relations Act 1996, the Parliament plainly intended to abrogate the principle of common law against double jeopardy. That does not, however, determine whether or not the principle was abrogated to the extent that multiple new trials could be permitted. The structure of the relevant text does not suggest that this was the Parliamentary intention. [62]-[63]

5 Section 197A(7)(b) is intended to be a comprehensive statement of the outcome. Section 197A(7)(b) confers a power to "make a decision in the matter". A decision to remit is not such a decision. [63]-[64], [76], [87], [88]

6 The force of the common law principle against double jeopardy, including the basis of the rule in the principle of fairness concerned to avoid oppressive and unfair conduct by a prosecutor, is such that the clear statement principle applies not only to the intention of Parliament to abrogate it, but also to the degree to which Parliament has done so. [67]-[68], [87], [88] Davern v Messel (1984) 155 CLR 21 referred to.

7 The application of the clear statement principle in this context leads to the conclusion that the correct interpretation of s 197A(7)(b) is that a person, subject to an appeal against an acquittal, is to be subject to only one additional hearing, ie the hearing in the Full Bench. [68], [87], [88]

8 Section 12(2) of the Criminal Appeal Act would, if applicable, also be read down so as not to apply to an appeal from an acquittal. [71], [87], [88]

9 Section 192(1)(c) of the Industrial Relations Act 1996, which confers a power on the Full Bench to refer the matter back to a member of the Commission, has no application to criminal appeals. [72], [87], [88]

10 Once the Full Bench determined that it would set aside the first decision of Marks J it was obliged to proceed to "make a decision in the matter". Its failure to do so constitutes a jurisdictional error, and the subsequent proceeding before Marks J and in the Full Bench were conducted without jurisdiction. [76]-[78], [87], [88] Craig v South Australia (1995) 184 CLR 163 referred to.

11 Section 170(3) of the Industrial Relations Act 1996 refers to the failure to 'comply' with the Act and states that any such failure is to be treated as an "irregularity". A jurisdictional error of the character identified is not a "failure to comply" with the Act. [79]-[80], [87], [88]

12 The retirement of the presiding judge does not prevent the Full Bench "mak[ing] a decision in the matter". The jurisdiction is conferred upon the institution not upon persons. [83]-[84], [87], [88] Cotogno v Lamb (1985) 3 NSWLR 221 referred to.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 40655/05

SPIGELMAN CJ GILES JA HANDLEY AJA

Friday 7 November 2008 Bros Bins Systems Pty Ltd v Industrial Relations Commission of New South Wales Judgment 1 SPIGELMAN CJ: The applicant invokes the supervisory jurisdiction of the Court in order to quash its conviction for an offence under s 17 of the Occupational Health and Safety Act 1983 ("the OH&S Act 1983") and the fine imposed upon it following that conviction. 2 The applicant conducts a waste disposal business. In November 1999 it sent one of its garbage tip trucks to an auto electrician in order to repair an electrical fault in its light blinker system. During the course of the repair process the jib on the truck was raised so that the auto electrician could obtain access to the site of the fault. The jib collapsed, killing the worker. 3 The charge against the applicant was made under s 17(1)(b) of the OH&S Act 1983 which relevantly provides: "17(1) Each person who has, to any extent, control of: … (b) any plant … which has been provided for the use or operation of persons at work (not being the person's employees), shall ensure that … the plant … is safe and without risks to health." 4 In s 4 of the OH&S Act 1983 the word "plant" is defined to include "any machinery, equipment and appliance". 5 Section 17 is, as stated, applicable to injury to workers who are not employees of the person alleged to be in default. In contrast, s 15 of the Act imposes upon every employer an obligation to "ensure the health, safety and welfare at work of all the employer's employees". Furthermore, s 16 imposes upon an employer an obligation to ensure that persons not employed by them but who are working at the employer's place of work "are not exposed to risks to their health or safety arising from the conduct of the employers undertaking". 6 The employer of the deceased auto electrician was found guilty of the offence against s 15. These proceedings are concerned only with the applicant as an owner of plant delivered to a third party for purposes of repair. 7 The principal issue before the Industrial Court was whether the owner of equipment who submits that equipment to another person for purposes of repair is capable of falling within the scope of s 17(1)(b), ie in those circumstances does the equipment constitute "plant … which has been provided for the use or operation of persons at work". 8 The first issue before this Court is, whether the Industrial Court committed a jurisdictional error of law in holding that the Act did apply to equipment deployed in those circumstances. 9 The second jurisdictional issue arises by reason of the procedural history of the proceedings in the Industrial Court. 10 In the first trial Marks J upheld the applicant's submission that there was no case to answer that an offence had been committed under the section and acquitted the applicant. (Inspector Ching v Bros Bins Systems Pty Ltd [2002] NSWIRComm 276.) Pursuant to the express power to appeal from an acquittal in s 197A of the Industrial Relations Act 1996 ("the IR Act"), the second respondent, being an Inspector of the WorkCover Authority of New South Wales, lodged an appeal to the Full Bench which allowed the appeal and remitted the case for trial. (WorkCover Authority (NSW) v Bros Bins Systems Pty Ltd [2003] NSWIRComm 386; (2003) 130 IR 62) ("the first appeal decision"). 11 In his first judgment Marks J dealt, and dealt only, with a no case to answer submission. His Honour's order was that "the charge is dismissed". 12 In the first appeal decision the Full Bench made the following orders: "2 The appeal is upheld and the order made by Marks J dismissing the charge in Matter No IRC 5012 of 2001 is set aside. 3 The matter is remitted to Marks J to be dealt with according to law." 13 On remitter Marks J convicted the applicant and the deceased worker's employer. (Inspector Ching v Bros Bins Systems Pty Ltd [2004] NSWIRComm 197.) I note that Marks J heard the proceedings for four days at the first trial and for an additional three days after the remitter. It does not appear what, if any, additional evidence was adduced at the second trial in the case of the applicant. Presumably, there was, at least, evidence on sentence. The Industrial Court of New South Wales dismissed the applicant's appeal and confirmed the conviction and sentence. (Bros Bins Systems Pty Ltd v Inspector Ching [2006] NSWIRComm 287) ("the second appeal decision"). 14 An issue arose in the course of the second appeal as to the power of the Industrial Court to remit proceedings with respect to which it had allowed an appeal pursuant to s 197A of the IR Act. The Industrial Court rejected the applicant's contention that the first order remitting the matter was ultra vires on alternative grounds. It expressed an opinion on the issue of power but did not determine the case on that basis. 15 The Full Bench decided that once it had set aside Marks J's order of acquittal, the charge originally laid had not been determined and remained on foot. Accordingly, irrespective of any remitter order, Marks J had jurisdiction to determine the outstanding proceedings. In the alternative, the Full Bench determined that s 170(3) of the IR Act, which I will set out below, applied and the purported exercise of a non-existent (if that is so) power to remit should be regarded as a mere irregularity. (Bros Bins Systems Pty Ltd v Inspector Ching (No 2) [2007] NSWIRComm 184; (2007) 165 IR 455) ("the decision on jurisdiction"). 16 The second jurisdictional issue before this Court involves the power to remit purportedly exercised by the Industrial Court on the first appeal. It is pertinent to note that at the time of the first appeal the applicant conceded that such power existed. However, as noted, the issue was raised at the time of the second appeal and determined by the Industrial Court.

The Scope of the Offence 17 In the first appeal decision the Full Bench identified the relevant issue as the interpretation of the words "plant … which is being provided for the use or operation of persons at work" in s 17(1)(b) of the OH&S Act 1983 as set out above. 18 Their Honours referred to the approach to the Act adopted by the Full Bench in Mainbrace Constructions Pty Ltd v WorkCover Authority (NSW) (Inspector Charles) [2000] NSWIRComm 239; (2000) 102 IR 84 at 58-61. In that case the court was concerned with an issue as to whether or not means of access or egress fell within the words "place of work" in s 16(1) imposing a liability upon an employer to a non-employee. The court adopted the traditional supportive approach to the interpretation of remedial legislation designed to protect the health, safety and wellbeing of persons in workplaces. 19 With respect to the present proceedings the Full Bench said in the first appeal decision: "[34] … In this respect it may be observed that s 5(1) of the Act provides that two of the objects of the Act are: (a) to secure the health, safety and welfare of persons at work, (b) to protect persons at a place of work (other than persons at work) against risks to health or safety arising out of the activities of persons at work The Act proceeds to set out comprehensive provisions, including in particular ss 15, 16, 17, 18 and 19 designed to achieve those objectives. [35] The respondent in these proceedings would not be amenable to prosecution under s 15 of the Act because the risk did not arise in relation to an employee of the respondent. Similarly, s 16 would not apply because the risk did not arise at the respondent's place of work. Section 18 would have no application because the respondent was not a designer or manufacturer of the hook lift truck and we do not consider that the respondent could be regarded as a supplier. Section 19 is not relevant. [36] If s 17 of the Act has no application then it must follow that one or both of the objects in s 5(1)(a) and (b) of the Act is defeated in the circumstances of this case. The Occupational Health and Safety Act 1983 is an elaborate safety code the objectives of which are to secure the health, safety and welfare of persons at work and to protect persons at a place of work (other than persons at work) against risks to health or safety arising out of the activities of persons at work. [37] We do not consider that it was the Legislature's intention that where a person sends plant for repair in non-domestic premises, and where the plant remains to any extent under that person's control, that there should be no obligation on that person to ensure the plant is safe and without risks to health." 20 Their Honours referred to the analysis of Marks J at first instance and concluded: "[40] On the approach taken by Marks J 'plant' is limited in its application to 'fixture, implements and apparatus used in carrying on the work processes'. This would exclude the product of work processes and objects on which work processes are carried out, notwithstanding these products and objects may be machinery, equipment or appliances that have been provided for the use or operation of persons at work. We can see no basis, given the nature of the statute and its objects, for reading down the definition of 'plant' in this way …" 21 The Full Bench returned to the issue of interpretation in the second appeal and permitted the appellant to reargue the point. 22 In the second appeal decision the Full Bench referred to Waugh v Kippen (1986) 160 CLR 156 at 165 and Capral Aluminium Ltd v WorkCover Authority (NSW) [2000] NSWIRComm 71; (2000) 49 NSWLR 610 at [41] and [42]. 23 The Full Bench said: "[14] Section 17 of the Occupational Health and Safety Act is a provision, similar to ss 15, 16 and 18 of that statute, which has a dual nature. On the one hand, the provision is concerned with furthering industrial safety, while on the other hand, it creates obligations on employers, breach of which has penal consequences and sanctions. This dichotomy gives rise to some difficulty in the appropriate construction of such a provision between the apparently competing principles of interpretation, on the one hand, of giving a broad or generous construction to beneficial legislation or, on the other hand, to follow the approach of strict construction, as argued by the appellant, applying to penal statutes." 24 After setting out the submissions and referring to the judgment of the Full Bench on the first appeal, their Honours said: "[24] Section 17 must of course be construed by reference to its context. The relevant context includes the provisions proximate to s 17 in the statute, namely ss 15, 16, 18, 19 and 20. Section 17, specifically s 17(1)(b), states that 'each person who has, to any extent, control of any plant … in any non-domestic premises which has been provided for the use or operation of persons at work (not being the person's employees), shall ensure that … the plant … is safe and without risks to health', effectively placing an obligation on each person who has control of the plant. Section 17 is part of a scheme of absolute liability to ensure the safety of persons at work, whether or not they are the employees of the person upon whom or which the relevant duty is placed - in some cases such as ss 15 and 16 the duty is placed on the employer - but in s 17(1)(b) the duty is placed upon each person who or entity which has control of plant used by non-employees in non-domestic premises. [25] Also of significance is s 53 of the Act, which contains statutory defences to what would otherwise be breaches of occupational health and safety. This provision also provides part of the context applicable to the construction of s 17. The 1983 statute creates defences where, if it can be proven that it was not reasonably practicable for the person to comply with the provision of the Act or the regulations the breach of which constituted the offence; or the commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision. Having regard to the terms and function of s 53, there is no reason to read the provisions of ss 15 to 20, including s 17, artificially. Additional words of limitation, beyond those which it contains, are not to be read into s 17. … [27] We consider that when there is regard given to the words relevantly used in s 17(1)(b), the context in which the provision is to be considered (which includes the significant limitation on its scope deriving from its scope being conditioned upon the notion of 'control') and the definition of 'plant', the construction advanced by the appellant should be rejected. … [31] While we have taken a slightly different approach to that taken in the earlier Full Bench decision, we have reached the same conclusion. For the reasons earlier referred to, we considered it appropriate to give separate or independent consideration in the present appeal to the legal issues raised." 25 Mr P Kintominas, who appeared for the applicant, submitted that the proper construction of s 17(1)(b) of the OH&S Act 1983 is a question of law and that the Commission has no power to convict and punish if the section, properly construed, is not engaged. He submitted that the Full Bench misconstrued the section, in both the first and second appeals, because an item delivered for repair could not be "plant" within s 17(1)(b). 26 The provision conferring jurisdiction is not s 17 of the OH&S Act 1983. Subject to appeal to the Full Bench, jurisdiction is conferred by s 47 of the OH&S Act 1983 which provided: "47(1) Proceedings for an offence against this Act … shall be dealt with summarily: … (b) before the Industrial Relations Commission in Court Session." 27 Marks J heard proceedings for "an offence" and, subject to the second jurisdictional point, an appeal lay from that decision, which appeal was not limited to a question of law (s 197A(2)). The Full Bench heard the appeal and determined a question of law. It is irrelevant whether or not this Court agrees or disagrees with the Full Bench's interpretation. There is, in Australian law, a clear distinction between an error which transgresses the limits of what a decision-maker - relevantly a court - has the power to do, on the one hand, and an incorrect decision - including a decision on a question of law - which the decision-maker has power to decide, on the other hand. 28 If there is any error of law in the approach of the Full Bench, in my opinion, it is an error within jurisdiction, not a jurisdictional error. Whether or not a piece of equipment constitutes "plant" is a matter which the Parliament has determined is a matter for the Industrial Commission, and the Full Bench on appeal, to decide. 29 There is no appeal to this Court on an error of law. (See s 179(1) of the IR Act.) The applicant has failed to properly distinguish between an error of law and a jurisdictional error. This Court can only intervene if the Full Bench has committed, or failed to correct, a jurisdictional error of law. (See s 179(4) of the IR Act; s 69 and s 48(1)(a)(ii) of the Supreme Court Act 1970.) 30 The distinction between jurisdictional and non-jurisdictional error of law remains a critical distinction in Australia. If there had ever been a prospect that the distinction would become attenuated, that prospect disappeared with the renewed emphasis given to the constitutional dimension of the relevant principles, as the High Court has developed its s 75(v) jurisprudence over recent years about what came to be called "the constitutional writs". The gravitational pull of constitutional jurisprudence upon Australian common law is strong. 31 Early in the course of this development, the High Court emphatically confirmed the traditional common law distinction in Craig v South Australia (1995) 184 CLR 163. In that case the Court was concerned with the availability of certiorari to what has traditionally been described, perhaps unfortunately, as an "inferior" court. This appellation means no more than the court is subject to supervisory jurisdiction of, relevantly, this Court. Although the Industrial Court is a superior court of record (see s 152 of the IR Act), it is not a superior court with general jurisdiction. (See Berowra Holdings Pty Ltd v Gordon [2000] HCA 32; (2000) 225 CLR 364 at [11] and cases referred to therein.) 32 In Craig the joint judgment stated at 177: "An inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist. Such jurisdictional error can infect either a positive act or a refusal or failure to act. Since certiorari goes only to quash a decision or order, an inferior court will fall into jurisdictional error for the purposes of the writ where it makes an order or decision (including an order or decision to the effect that it lacks, or refuses to exercise, jurisdiction) which is based upon a mistaken assumption or denial of jurisdiction or a misconception or disregard of the nature or limits of jurisdiction." 33 Their Honours proceeded to give various examples of jurisdictional error, at 177-178, of which the following was relied upon in the present case: " … [A]n inferior court will exceed its authority and fall into jurisdictional error if it misconstrues that statute or other instrument and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case. In the last-mentioned category of case, the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern (See eg R v Dunphy; Ex parte Maynes (1978) 139 CLR 482; R v Gray; Ex parte Marsh (1985) 157 CLR 351 at 371; Public Service Association (SA) v Federated Clerks' Union (1991) 173 CLR 132.)" 34 The reference in Craig to the difficulty sometimes involved in discerning the distinction between jurisdictional and non-jurisdictional error has often been stated. As Hayne J put it in Re Refugee Review Tribunal: Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [163]: "The difficulty of drawing a bright line between jurisdictional error and error in the exercise of jurisdiction should not be permitted, however, to obscure the difference that is illustrated by considering clear cases of each species of error. There is a jurisdictional error if the decision maker makes a decision outside the limits of the functions and powers conferred on her or him, or does something which he or she lacks power to do. By contrast, incorrectly deciding something which the decision maker is authorised to decide is an error within jurisdiction ... The former kind of error concerns departures from limits upon the exercise of power the latter does not." 35 The primary meaning of jurisdiction in a legal context is "authority to decide". (Minister for Immigration and Multicultural and Indigenous Affairs v B [2004] HCA 20; (2004) 219 CLR 365 at [6].) 36 Justice Felix Frankfurter, who once described the idea of a jurisdiction as "a verbal coat of too many colours" (United States v L A Tucker Truck Lines, 344 US 33 (1952) at 39), also referred to the "morass" in which one can be led by "loose talk about jurisdiction" and concluded that "'jurisdiction' competes with 'right' as one of the most deceptive of legal pitfalls" (City of Yonkers v United States, 320 US 685 (1944) at 695). 37 The most sustained attack on the distinction between jurisdictional and non-jurisdictional error came from the pen of D M Gordon with respect to jurisdictional facts. (Commencing in (1929) 45 LQR 458 and (1931) 47 LQR 386, see the list in P Craig, Administrative Law (6th ed) London, 2008 at 441n and M Aronson, "The Resurgence of Jurisdictional Facts" (2001) 12 Public Law Rev 17 at 19n.) Lord Cooke of Thorndon extended the attack to the distinction between jurisdictional and non-jurisdictional errors of law, commencing with his 1954 unpublished PhD thesis at Cambridge University (Aronson, "Resurgence" at 19n) and sustained by him in the New Zealand Court of Appeal and the House of Lords. It is a frequently reiterated theme in the judgments of Justice Kirby. (See Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57 at 123; Re Minister for Immigration and Multicultural Affairs; Ex parte Holland [2001] HCA 76; (2001) 185 ALR 504 at [22]; Re McBain: Ex parte Catholic Bishops Conference [2002] HCA 16; (2002) 209 CLR 372 at 439; Re Minister for Immigration and Multicultural Affairs; Ex Parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 at [120].) 38 In Craig, the High Court refused to adopt the reasoning in Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 esp at 171, which had been widely interpreted as effectively abolishing the distinction between jurisdictional error and error within jurisdiction. (See Craig at 178-179.) The joint judgment did not refer to the House of Lords affirmation of Anisminic in R v Hull University Visitor; Ex parte Page [1993] AC 682, which has come to be regarded as the leading English authority on this issue. 39 In Australian law the distinction between jurisdictional and non-jurisdictional error is real, indeed fundamental. The criticism has often been advanced that there is no single test or theory or logical process by which the distinction can be determined. (See, eg, Craig, Administrative Law, at ch 14.) In my opinion, that does not detract from the validity of the distinction. The life of the law, as Oliver Wendell Holmes Jr famously said, has not been logic, but experience. Further, as Chief Justice Gleeson put it "twilight does not invalidate the distinction between night and day". (A M Gleeson, "Judicial Legitimacy" (2000) 20 Aust Bar Rev 4 at 11.) 40 The present case is not, in my opinion, close to the difficult borderline between jurisdictional and non-jurisdictional error. I can see nothing jurisdictional about the determination that a particular piece of equipment is not "plant", within the meaning of the section, on the basis that it was sent to a third party for repair. In the incident which led to the death of the auto electrician, it was an employee of the applicant's who operated the jib which collapsed. 41 The issue which the Industrial Commission had to determine was whether the complainant had "control" of "plant" "to any extent", being "plant … provided for use or operation of persons at work". It was for the Full Bench to determine, on the facts, whether it did. In its doing so I can detect no "misconception or disregard of the nature or limits of its jurisdiction" (Craig at 177), nor any "decision outside the limits of the functions and powers conferred" (Aala at [163]). 42 In my opinion, the Full Bench had power to decide whether or not equipment provided for repair constituted "plant … provided for the use or operation of persons at work" within s 17 of the OH&S Act 1983. If there was an error, which it is unnecessary to decide, it was an error within jurisdiction.

The Power to Remit 43 In the course of the second appeal the Full Bench of the Industrial Court raised the issue whether or not the Full Bench at the time of the first appeal had the power to remit the matter for further trial. Their Honours gave the applicant liberty to apply to agitate the question of jurisdiction, leading to the Full Bench decision on jurisdiction. 44 The power of the Industrial Court to hear an appeal from an acquittal is found in s 197A of the IR Act which it is appropriate to set out in full: "197A(1) This section applies to the decision of a member of the Commission or of a Local Court constituted by an Industrial or other Magistrate to acquit a person of an offence against the occupational health and safety legislation. (2) This section applies to such a decision only if proceedings for the offence were instituted by an inspector appointed under that legislation or with the consent of the Minister or other officer authorised by that legislation to give such a consent. (3) An appeal lies to the Full Bench of the Commission in Court Session against a decision to which this section applies. The appeal is not limited to a question of law. (4) The appeal may be made by the Attorney General, the Minister, the Director of Public Prosecutions or the prosecutor in the proceedings in which the decision appealed against was made. (5) An appeal may be made within 21 days after the date of the decision appealed against or within such further time (not exceeding 3 months after that date) as the Full Bench or the Commission constituted by a Presidential Member allows. Further time may be allowed, either before or after the end of that 21-day period. (6) Section 191 applies to an appeal under this section. (7) On an appeal under this section, the Full Bench may: (a) dismiss the appeal, or (b) set aside the decision appealed against and make a decision in the matter in accordance with law (including the conviction and sentence of the defendant for the offence charged). (8) If the Full Bench on appeal convicts the defendant of the offence, the maximum penalty that the Full Bench may impose for the offence is the maximum penalty that the court that acquitted the defendant could have imposed for the offence. (9) This section has effect despite anything to the contrary in section 196 or 197. (10) In this section, occupational health and safety legislation means: (a) the Occupational Health and Safety Act 1983 and the regulations made under that Act, and (b) the Occupational Health and Safety Act 2000 and the regulations made under that Act, and (c) the Coal Mines Regulation Act 1982 and the regulations made under that Act, and (d) the Coal Mine Health and Safety Act 2002 and the regulations made under that Act, and (e) the associated occupational health and safety legislation, within the meaning of the Occupational Health and Safety Act 2000 . (11) This section does not apply to a decision made before the commencement of this section." 45 In view of the submissions made, it is also appropriate to set out s 191, s 192(1) and part of s 196 of the IR Act: "191 (1) An appeal to a Full Bench of the Commission under this Part is not by way of a new hearing and is to be determined on the evidence and material adduced in relation to the decision appealed against. (2) However, the Full Bench may, by leave, receive further evidence if it considers that special grounds exist or if the evidence concerns matters occurring after the decision appealed against. (3) To avoid doubt, the Full Bench cannot merely substitute its decision on the matter, but must follow the principles applying to appeals from discretionary decisions, whether or not further evidence is received." "192(1) On an appeal under this Part to a Full Bench of the Commission, the Full Bench may (in accordance with this Act): (a) confirm, quash or vary the decision of the Commission concerned, or (b) direct a member of the Commission to take further action under this Act to carry its decision on the appeal into effect, or (c) refer the matter back to the member of the Commission, with such directions or recommendations as the Full Bench considers appropriate. The Full Bench may determine a part of the matter and refer the remainder back to the member of the Commission." "196(1) This section applies (and the other provisions of this Part do not apply) to appeals and references to the Full Bench of the Commission in Court Session in respect of criminal proceedings taken before a judicial member of the Commission. (2) The Criminal Appeal Act 1912 applies to any such appeal or reference in the same way as it applies to an appeal or reference to the Court of Criminal Appeal in respect of criminal proceedings taken before a Judge of the Supreme Court in its summary jurisdiction. (3) For the purposes of subsection (2), a reference (however expressed) in the Criminal Appeal Act 1912 : (a) to the Court of Criminal Appeal - is taken to be a reference to a Full Bench of the Commission in Court Session …" 46 In the decision on jurisdiction, the Full Bench noted the applicant's submissions before it that Marks J had no jurisdiction to resume the hearing of the charge, had no power to make a finding of guilt or to enter a conviction and impose a fine and that, accordingly, the conviction of the applicant was a nullity. 47 The Full Bench noted that the second respondent submitted before it that s 197A should not be narrowly interpreted and that the general powers found in s 196 applying the provisions of the Criminal Appeal Act 1912 empowered the court to make the order of remitter. In this respect the Full Bench referred to the second respondent's reliance on the earlier judgment in Morrison v Power Coal Pty Ltd (No 3) [2005] NSWIRComm 61; (2005) 147 IR 117 in which the Full Bench concluded at [149]-[152] that, notwithstanding the absence of any reference to a power to award costs in s 197A, the general power found in s 181 of the IR Act was applicable to appeals under s 197A. 48 The Full Bench said that it did not need to finally determine the jurisdictional matter: "[20] Although we consider it appropriate to grant the implicit application made by the appellant to add an additional ground of appeal to its appeal in the proceedings we, nevertheless, consider that ground of appeal should be rejected and that it is appropriate to do so generally on the basis of the respondent's alternative submission. In taking that approach we note that we may be thought to have assumed the correctness of the appellant's submission that the 2003 Full Bench lacked power to remit the proceedings to Marks J. We, however, make it clear that we do not determine that issue in these proceedings because it is unnecessary to do so. There is nevertheless a reasonable basis to conclude that the powers given to the Full Bench under s 197A(7) are sufficiently wide to empower the Full Bench to remit the proceedings to be dealt with to conclusion, as the consideration that the legislature was at pains to expressly confer on the Full Bench power to convict and sentence the defendant does not, in our view, detract from the width of the power to 'make a decision in the matter in accordance with law' as set out in the preceding words in s 197A(7). We, however, base our decision on the consideration that even if the contention of the appellant as to s 197A(7) is correct it does not affect the validity of the proceedings before Marks J or that of the subsequent proceedings on appeal before the Full Bench last year." 49 The second respondent had also submitted an alternative basis upon which the jurisdiction issue could be resolved, which the Full Bench summarised as follows: "[17] In the alternative, the respondent submits that there can be no issue that the Full Bench that originally heard the appeal had power to set aside the decision appealed against, and, having done that, made the original order of Marks J acquitting the appellant of no effect. The proceedings before Marks J were incomplete as his original order acquitting the appellant was a nullity. Marks J at that point was required to deal with the charge. The validity or power of the Full Bench to remit the matter in that light is irrelevant. It cannot be contended, according to the respondent, that s 197A(7)(b) did not empower the Full Bench to set aside the decision of Marks J acquitting the defendant." 50 The Full Bench determined: "[22] … The Full Bench in 2003 had the power to set aside the order made by Marks J dismissing the charge against the appellant and it did so in terms . [23] Once that occurred the charge against the appellant was on foot and was yet to be heard to finality. Undoubtedly Marks J had power to hear prosecution proceedings under the Occupational Health and Safety Act 1983 which had not been determined and which met other procedural and legal requirements (such as having been commenced within the requisite limitation period, etc): see s 168 of the Act." 51 In coming to this conclusion the Full Bench distinguished the judgment in R v Perry (1990) 29 NSWLR 589 upon which the applicant had relied. It did so on the basis that, in that case, an essential precondition under s 332(4) of the Criminal Procedure Act 1986 had not been met before a judge could validly hear a trial without a jury. That was not so in the present case. The Court concluded: "[24] It could not be, therefore, held, as was held in Perry , that the trial of the appellant was 'no trial at all', or that it was heard by a judge not authorised to do so, or that it was a proceeding coram non judice ." 52 In the alternative, the Full Bench considered the application of s 170(3) of the Industrial Relations Act 1996 which relevantly provides: "170(3) If this Act, the regulations or a rule of the Commission is not complied with in relation to the institution or conduct of proceedings before the Commission, the failure to comply is to be treated as an irregularity and does not nullify the proceedings, any step taken in the proceedings, or any decision in the proceedings." 53 The Full Bench concluded in this regard: "[25] Although these conclusions are sufficient to dispose of these proceedings we also consider that s 170(3) of the Act has the effect of validating the proceedings even if the appellant's submission was held to be correct. On the hypothesis put forward by the appellant, the order of the Full Bench in 2003 remitting the proceedings to Marks J to be 'dealt with according to law' was beyond power and, as such, part of the Act (namely the relevant part of s 197A) had not been complied with. However, it is precisely that kind of situation which s 170(3) was enacted to deal with. [26] Section s 170(3) provides that if, inter alia, a provision of the Act is not complied with in relation to, for example, 'the conduct of proceedings before the Commission [or the Court], the failure to comply is to be treated as an irregularity and does not nullify the proceedings, any step taken in the proceedings, or any decision in the proceedings'. Thus, any supposed lack of power in the Full Bench to remit the proceedings is, because of the terms and effect of s 170(3), to be treated as a mere irregularity and does not nullify the proceedings before Marks J. [27] Although in proceedings to which s 170(3) applies the Court has power to wholly or partly set aside the proceedings, there would need to be a proper basis (for example, a denial of procedural fairness) for such a step to be taken. There is no basis shown in this matter which could justify that occurring." 54 The critical issue is the interpretation of s 197A(7)(b) which empowers the Full Court to "set aside the decision … and make a decision". The applicant's primary contention is that the Full Bench is obliged to do both, ie it cannot set aside the decision but fail to make its own decision. 55 Section 197A was the first occasion upon which the Parliament of New South Wales enacted a provision permitting an appeal from an acquittal which could lead to the conviction of an accused. It was enacted in order to overcome the effect of this Court's decision in CI & D Manufacturing Pty Ltd v Registrar Industrial Court (NSW) (1996) 40 NSWLR 1. That decision was handed down on 16 August 1996. The WorkCover Legislation Amendment Act 1996, which introduced s 197A, including s 197A(7) in its current form, was introduced in November 1996. 56 The Explanatory Memorandum expressly refers to the decision in the CI & D Manufacturing case and says that the amendment was designed to overcome that decision "which held that the common law rule against double jeopardy was not abrogated by rights of appeal, expressed in general terms". The document noted that, although the decision was pursuant to the IR Act 1991, it would apply to appeals under the IR Act 1996. 57 In CI & D Manufacturing, Mahoney P referred to the characterisation of the rule that there was no appeal from a judgment of acquittal as "a fundamental principle of the common law", expressed by Deane J in Thompson v Master Touch TV Service Pty Ltd (No 3) (1978) 38 FLR 397 at 412. Mahoney P concluded that he was not satisfied that Parliament intended to abrogate this fundamental principle and said at 6: "This aspect of the rule against double jeopardy is too important to be put aside by inference or to be committed finally to the determination of a specialist court in such a way." 58 Mahoney P quoted the explanation of the rule by Gibbs CJ in Davern v Messel (1984) 155 CLR 21 at 30 who said that it was designed: "… to ensure fairness to the accused. It would obviously be oppressive and unfair if a prosecutor, disappointed with an acquittal, could secure a retrial of the accused person on the same evidence, perhaps before what the prosecutor 'considered to be a more perspicacious jury or tougher judge': R v Humphreys [1977] AC 1 at p47."

His Honour went on to refer to "the burden that would in any case be placed on an accused who was called upon repeatedly to defend himself". 59 Clarke JA, with whom Mahoney P and Handley JA agreed, also referred to the judgment of Deane J in Thompson v Master Touch and to the observations of Mason and Brennan JJ in Davern v Messel at 48. 60 The force of the common law's aversion to subjecting persons accused of crime to double jeopardy has been emphasised in Australian law over recent years. (See, eg, The Queen v Carroll [2002] HCA 55; (2002) 213 CLR 635; Michael Kirby, "Carroll, Double Jeopardy and International Human Rights Law" (2003) 27 Criminal Law Journal 231.) 61 The principle of statutory interpretation that a statute will not be interpreted to overturn a fundamental principle in the absence of a clear statement has been applied to the interpretation of provisions concerned with an appeal against an acquittal on a number of occasions in this jurisdiction. (See, eg, R v Lethlean (1995) 83 A Crim R 197 esp at 204-205; R v Cheng [1999] NSWCCA 373; (1999) 48 NSWLR 616 esp at [24]-[29]; R v JS [2007] NSWCCA 272; (2007) 175 A Crim R 108 esp at [26]-[32]. See generally J J Spigelman, "The Principle of Legality and the Clear Statement Principle" (2005) 79 Australian Law Journal 769.) 62 Plainly the Parliament intended to abrogate the principle of common law against double jeopardy. That does not, however, determine whether or not the principle was abrogated to the extent that multiple new trials could be permitted. If the Full Bench on appeal had power to remit, rather than being obliged to decide the question of guilt or innocence, then the prospect arises that there would be more than one first instance trial, following a full consideration of argument on an appeal and, indeed, that there could be more than one appeal leading to more than two first instance trials. 63 The structure of the relevant text does not suggest that this was the Parliamentary intention. Section 197A(7) contains two paragraphs, one refers to the Full Bench dismissing the appeal and the second, being the paragraph in issue, contains a conjoint reference to the decision to set aside the decision and to making a decision including, but not necessitating, a conviction and sentence. The structure of s 197A(7)(b) indicates that it is intended to be a comprehensive statement of the outcome. 64 Furthermore, there is no express statement to the effect that the Full Bench may set aside a decision but not determine the matter itself. The contrary is suggested by the formulation "make a decision in the matter". A remitter order is not, in my opinion, "a decision in the matter". 65 A further textual indication is the absence of any qualificatory words such as "may" before the operative words conferring power: "make a decision". There is no textual suggestion that this is optional, as distinct from consequential upon the exercise of the power to set aside. 66 The second respondent submitted that the word "including" before the reference to "conviction" in s 197A(7)(b) would have no work to do unless it could extend to something other than a conviction, because the first part of the paragraph assumes the acquittal has been set aside. However, it has long been part of our criminal law that a court can refrain from entering a conviction, even if it finds the offence to have been made out. 67 I am reinforced in the conclusion I would have in any event drawn on the basis of the text of the provision, by the principle against double jeopardy, including the basis of the rule in the principle of fairness concerned to avoid oppressive and unfair conduct by a prosecutor, as set out by Gibbs CJ in Davern v Messel, quoted by Mahoney P in the very decision which the Parliament intended to overcome. 68 The force of this fundamental principle of the common law is such that the clear statement principle applies not only to the intention of Parliament to abrogate it, but also to the degree to which Parliament has done so. The application of the clear statement principle in this context leads to the conclusion that the preferable interpretation of s 197A(7)(b) is that a person subject to an appeal against an acquittal is to be subject to only one additional hearing, ie the hearing in the Full Bench. The possibility of yet a further hearing at first instance, indeed the possibility of further appeals, was not something which Parliament intended to create. 69 There is a useful analogy from case law on another fundamental principle of our legal system, to which the clear statement principle applies - the approach to the interpretation of retroactive statutes. Such statutes are given retrospective application only to the extent necessitated by the clear intention of Parliament in the words of the statute. (See Reid v Reid (1886) 31 Ch D 402 at 408-409; Lauri v Renad [1892] 3 Ch 402 at 421; Moss v Donohoe (1915) 20 CLR 615 at 621; Secretary of State for Social Security v Tunnicliffe [1991] 2 All ER 712 at 724; Plewa v Chief Adjudication Officer [1995] 1 AC 249 at 257; Thaina Town (On Goulburn) Pty Ltd v City of Sydney Council [2007] NSWCA 300; (2007) 156 LGERA 150 at [127]; Attorney-General (NSW) v World Best Holdings Ltd [2005] NSWCA 261; (2005) 63 NSWLR 557 at [48]; Lodhi v R [2006] NSWCCA 121; (2006) 199 FLR 303 at 310-311; R v JS [2007] NSWCCA 272; (2007) 175 A Crim R 108 at [45]-[46]; Chang v Laidley [2007] HCA 37; (2007) 81 ALJR 1598 at [82]-[83] per Hayne, Heydon and Crennan JJ.) This approach has particular application when legislation modifies fundamental principles of the criminal justice process (see, eg, R v JS at [45]-[46]). On these authorities a statute intended to be retroactive will be interpreted as not having that effect in particular circumstances, eg in the extant proceedings. 70 The second respondent relied upon s 196 of the IR Act which provides that the Criminal Appeal Act 1912 applies to criminal proceedings as if the references to the Court of Criminal Appeal are references to the Full Bench of the Commission. It invokes s 12(2) of the Criminal Appeal Act which confers a discretion on the Court of Criminal Appeal to remit a matter to the court of trial. 71 This is a consideration which supports the contentions of the second respondent. However, in my opinion, in view of the textual indicators to which I have referred, and the strength of the double jeopardy principle, this indirect reference is insufficient to satisfy the clear statement principle. Section 12(2) of the Criminal Appeal Act would, if applicable, also be read down so as not to apply to an appeal from an acquittal. 72 The second respondent also relied on s 192(1)(c) of the IR Act, which confers a power on the Full Bench to refer the matter back to a member of the Commission. This section has no application to criminal appeals. As s 196 expressly states: "This section applies (and the other provisions of this Part do not apply) … to appeals … in respect of criminal proceedings" (emphasis added). 73 An appeal under s 197A involves a criminal proceeding and the emphasised parenthetical qualification prevents the application of s 192 to an appeal under s 197A. That is why s 197A(6) had to expressly apply s 191 to such an appeal. 74 Mr J Agius SC relied on the possibility, as occurred in the present case, that an order dismissing proceedings could occur on the basis of a no case to answer submission. He submitted that Parliament would not have intended to deny an accused the right to adduce evidence, particularly on the statutory defences for which the OH&S Act 1983 expressly provides (see s 53). Furthermore, in the case of an acquittal, there would have been no sentence hearing and the Full Bench would have to determine the facts relevant to sentence for the first time. 75 There is some force in these submissions. However, s 191(2), which is expressly made applicable by s 197A(6), provides for evidence to be adduced by leave in the Full Bench. It may be inconvenient for such evidence to be adduced for the first time on appeal, but I do not find this consideration to be entitled to sufficient weight to overcome the force of double jeopardy considerations that invoke the clear statement principle of the law of statutory interpretation. 76 Section 197A(7)(b) is a power to "make a decision in the matter". As I have indicated above, in my opinion, a decision to remit is not such a decision. Once the Full Bench determined that it would set aside the first decision of Marks J it was obliged to proceed to make a decision as to guilt or innocence. Its failure to do so constitutes a misunderstanding of its jurisdiction of a fundamental character. In the terms of Craig at 177 the Full Bench proceeded on a misconception of the nature of its jurisdiction. It was not merely an error within jurisdiction. 77 For this reason the order remitting the matter was, in my opinion, beyond jurisdiction and the subsequent proceeding before Marks J and in the Full Bench were conducted without jurisdiction. 78 As indicated above, the Full Bench determined the matter on the basis that once they had set aside the order dismissing the proceedings, the original proceedings before Marks J stood unaffected. That is contrary to the interpretation of s 197A(7)(b) I have set out above. It is a jurisdictional error. 79 The Full Bench concluded that, in the alternative, it could invoke s 170(3) which, it determined, would have the effect of validating the proceedings, even if the applicant's submission before it were correct. Section 170(3) refers to the failure to 'comply' with the Act, regulations, or a rule of the Commission and states that any such failure is to be treated as an "irregularity". Section 170(3) reflects a longstanding provision. At the time it was added to the IR Act, it was found in s 81 of the Supreme Court Act 1970. It cannot be said that a jurisdictional error of the character I have identified is a "failure to comply" with the Act. 80 This section did away with the former distinction between nullities and irregularities with respect to procedural matters. (See, eg, Australian Coastal Shipping Commission v Curtis Cruising Pty Ltd (1989) 17 NSWLR 734 esp at 752-755.) It said nothing about jurisdictional error. This conclusion is reinforced by the procedural context of the whole of s 170 which it is unnecessary to set out.

Conclusion 81 There is a clear distinction between the decision of the Full Bench to set aside the order dismissing the proceedings and the order remitting the matter for a new trial. They are clearly severable. The Court can quash pro tanto. In view of the applicant's success on the second jurisdictional point it is appropriate to quash the remitter order and the consequential proceedings and orders. In view of its lack of success on the first jurisdictional point, it is not appropriate to quash the set aside order. 82 This may leave it open to the second respondent to pursue the proceedings in the Full Bench. Whether such proceedings will be taken involves an exercise of prosecutorial discretion. Whether they will lead to a conviction involves decision-making including the exercise of discretion by the Full Bench. This Court cannot intervene with either discretion in the exercise of the supervisory jurisdiction which has been invoked in these proceedings. 83 The applicant submitted that this Court should not only quash, but also prohibit the Full Bench from further hearing the matter. The applicant submitted that s 197A(7)(b) assumes that the same Bench which sets aside the acquittal should also decide the issue of guilt or innocence. It submits that the presiding judge in both the first and second appeal has retired and that Full Bench cannot be reconvened. 84 In my opinion, that contention should be rejected. The jurisdiction is conferred upon the institution not upon persons. If the Full Bench had split the issues, hearing argument on the acquittal appeal before going to the conviction phase (and even more clearly the sentencing phase) but a member of the Bench had died after the first order was made, I can see no reason why a reconstituted court could not complete the proceedings. A retirement is no different. (See Cotogno v Lamb (1985) 3 NSWLR 221 at 223-224.) 85 When the Full Bench awarded costs in IRC 6649/2002 on 12 December 2003 it proceeded on the assumption that its order remitting the matter to Marks J was a complete exercise of its jurisdiction. This was an error of a jurisdictional character and the costs order should be set aside. Although the point on which the applicant has succeeded in this Court was not taken before the Full Bench on the second appeal, the issues involved are interconnected and the existing costs orders awarded against the applicant should not stand. The Industrial Court should, absent agreement between the parties, determine the appropriate costs order. 86 The orders I propose are: 1 Remove into the Court of Appeal the record of the following proceedings: (i) Proceedings IRC 6649/2002. (ii) Proceedings IRC 5012/2001. (iii) Proceedings IRC 4243/2005. 2 Quash Orders 3 and 4 of the Full Bench in IRC 6649/2002. 3 In IRC 5012/2001 quash: (i) The finding of guilt and conviction against Bros Bins Systems Pty Ltd. (ii) Orders 2 and 3 made by Marks J on 22 July 2005. 4 In IRC 4243/2005 quash Orders 1 and 2 of the Full Bench of 7 September 2006 and the order as to costs of 31 July 2007. 5 Proceedings IRC 6649/2002 remitted to the Industrial Court. 6 Costs of proceedings in IRC 6649/2002, IRC 5012/2001 and IRC 4234/2005 remitted to the Industrial Court for its consideration. 7 Order the second respondent to pay half of the applicant's costs of these proceedings. 87 GILES JA: For the reasons given by the Chief Justice, there was no jurisdictional error in the Full Bench upholding the appeal in the first appeal decision, but there was jurisdictional error in it then remitting the matter to Marks J. I agree with the orders proposed by his Honour. 88 HANDLEY AJA: I agree with the Chief Justice. **********

16/03/2009 - Lauri v Renad [1892] 3 Ch 402 at 421 - Paragraph(s) [69]

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