Bros Bins Systems Pty Ltd v Inspector Ching

Factories Act 1961 (UK) LEGISLATION CITED: Industrial Relations Act 1996 s 187 s 196 s 197A Occupational Health and Safety Act 1983 s 4 s 15 s 16 s 17 s 18 s 19 s 20 s 53

Blake v Shaw (1860) John 732 Capral Aluminium Ltd v Workcover Authority of New South Wales (2000) 49 NSWLR 610; 99 IR 29 Haigh v Charles W Ireland Limited [1973] 3 All ER 1137 HL Inspector Ching v Bros Bins Systems Pty Ltd [2002] NSWIRComm 276 Inspector Ching v Bros Bins Pty Ltd (2003) 130 IR 62 Inspector Ching v Bros Bins Systems Pty Ltd and Exo Pty Ltd t/as Tibby Rose Auto [2004] NSWIRComm 197 Inspector Page v Woolworths Ltd and Growth Equity Services Pty Ltd (unreported, 9 September 1994) CASES CITED: Mainbrace Constructions Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) (2000) 102 IR 84 McMillan Britton and Kell v WorkCover Authority of New South Wales (Inspector Blake) (1999) 89 IR 464 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 R v Holmes Ex parte Public Service Association of New South Wales (1976) 140 CLR 63 Sherritt Gordon Mines Ltd v FCT (1976) 10 ALR 441 Thomas v Jakacic (1983) 34 SASR 423 Waugh v Kippen (1986) 160 CLR 156 WorkCover Authority of New South Wales (Inspector Ching) v Bros Bins Systems Pty Ltd [2005] NSWIRComm 226 Yarmouth v France (1887) 19 QBD 647

APPELLANT: Mr P Kintominas of counsel Castrission & Co., Solicitors (Mr John J Castrission) LEGAL REPRESENTATIVES: RESPONDENT: Mr R Reitano of counsel WorkCover Authority of New South Wales (Ms Linda Barnes)

BROS BINS SYSTEMS PTY LTD v INSPECTOR BARNABAS CHING

Application by Bros Bins Systems Pty Ltd for leave to appeal and appeal against judgments of Justice Marks given on 9 September 2004 and 22 July 2005 in Matter No IRC 5012 of 2001

JUDGMENT OF THE COURT [2006] NSWIRComm 287 1 Pursuant to s 187 of the Industrial Relations Act 1996, Bros Bins Systems Pty Ltd (the appellant) has applied for leave to appeal and appeals against two decisions of Marks J, the first as to guilt handed down on 9 September 2004, the second as to penalty handed down on 22 July 2005: Inspector Ching v Bros Bins Systems Pty Ltd and Exo Pty Ltd t/as Tibby Rose Auto [2004] NSWIRComm 197 (the first judgment) and WorkCover Authority of New South Wales (Inspector Ching) v Bros Bins Systems Pty Ltd [2005] NSWIRComm 226 (the second judgment). 2 Unusually, in this appeal the appellant candidly accepts that the issues raised were adversely found against it in a previous Full Bench decision: WorkCover Authority of New South Wales v Bros Bins Systems Pty Ltd (2003) 130 IR 62. In such circumstances, it is necessary to outline the events prior to the two decisions of Marks J the subject of the appeal. 3 The origin of the present proceedings may be traced to the decision of Marks J, handed down on the 5 November 2002: Inspector Ching v Bros Bins Systems Pty Ltd [2002] NSWIRComm 276. His Honour there found that the appellant had no case to answer in relation to a charge under s 17(1)(b) of the Occupational Health and Safety Act 1983, having set out the factual background to the matter as follows: [4] ... The defendant owned a hook lift truck bearing registration label "WUBISH". The truck was used for the delivery, uplift and emptying of bins in which commercial waste was removed. Bins could be picked up, manipulated onto and removed from the truck by using a hydraulically operated mechanism controlled by a number of levers and switches situated on the vehicle and within the driver's cabin. Once on the truck a bin could be emptied by raising the front part of it using a pneumatically operated hook mechanism which had the effect of locking together two separate parts of a jib assembly.

[5] On 22 November 1999, the truck was taken by arrangement to Tibby Rose Auto for the purpose of having repairs carried out to its electrical systems. The vehicle had been driven into the Tibby Rose Auto premises at 591 Gardeners Road, Mascot by an employee of the defendant, David Wood. Mr Wood habitually drove that vehicle. During the course of Tibby Rose Auto employees carrying out repairs, Mr Wood agreed to lift up the jib which had been lying flat on the truck chassis to give better access to some part of the electrical wiring. He locked the jib mechanism by using the pneumatically controlled lever and raised the jib by using the hydraulic mechanism. Whilst an auto electrician, Matthew Whitehouse was working on the chassis, the jib collapsed crushing him and causing fatal injuries.

[6] The defendant submitted that in these circumstances s 17(1)(b) of the Act had no application. 4 The submissions of the appellant as to the first judgment may be summarised as follows:

(a) the issue for determination was whether a certain class of persons came within the scope of s 17 of the Act at all, or whether there was any duty cast upon such persons;

(b) there was also an issue as to whether a person who has to any extent control of plant which has been provided for the use or operation of persons at work is caught by the section, where the plant has not been provided for use as plant;

(c) the legislature did not intend for any item whatsoever to come under the purview of s 17(1)(b);

(d) the present situation could be distinguished from that discussed by Peterson J in Inspector Page v Woolworths Ltd and Growth Equity Services Pty Ltd (unreported, 9 September 1994); and

(e) the prosecutor's submission as to the meaning of the word "use" in the section was too wide and not in accordance with the intention of the legislature. 5 After finding that there was "clear evidence that the [appellant] retained some control over the truck while it was within the premises of Tibby Rose Auto", his Honour considered the question that the truck was "plant" within the meaning of s 17(1)(b) of the Occupational Health and Safety Act. In finding that the appellant had no case to answer, Marks J dismissed the charge holding that: [36] The word "plant" must be given an appropriate meaning within the overall context of these provisions. The appropriate meaning as far as I have been able to discern on the basis of such authorities as have been made available to me by counsel for the prosecutor and the defendant emphasises that the word extends to fixture, implements and apparatus used in carrying on the work processes rather than the products of work processes or the objects on which the work processes are being carried out. This approach accords with that of Lord Diplock in Haigh as reflected in the extract set out in para 27 above.

[37] For these reasons it is my opinion that the truck and the equipment attached to it was not "plant … which had been provided for the use or operation of persons at work …". The Full Bench decision in Inspector Ching v Bros Bins Pty Ltd (2003) 130 IR 62 6 On appeal to the Full Bench pursuant to s 197A of the Industrial Relations Act, the respondent in the present proceedings (the appellant at that time) submitted that his Honour erred in his approach in that his Honour's interpretation of s 17(1)(b) of the Occupational Health and Safety Act constituting an error of law. 7 The present appellant's submissions were summarised by the Full Bench in the judgment in Inspector Ching v Bros Bins Pty Ltd (2003) 130 IR 62, as follows: [26] The respondent submitted that an item which was the subject of bailment for repair has never been judicially characterised as plant in the bailor's business: see for example Blake v Shaw (1860) John 732 at 734 and Yarmouth v France (1887) 19 QBD 647 at 658.

[27] The respondent relied on the statement of Lord Diplock in Haigh v Charles W Ireland Limited [1973] 3 All ER 1137 at 1147 where he distinguished plant from "the objects on which the process is carried out" as support for the contention that an item on which a repair is to be effected by a business carrying on trade as a repairer of such items is, similarly, not plant.

[28] It was submitted for the respondent that a major flaw in the appellant's construction of s 17(1)(b) was that it would make it impossible for any person to have a potentially dangerous fault in any item, machinery or equipment associated with their business, repaired by the employees of another entity as that person could only discharge their duty under s 17(1)(b) by having the item repaired before giving it to the repairers. This absurd consequence could not have been intended by the Legislature nor could it be avoided by merely relinquishing possession of the item, given that control is defined as the ability of a person to compel corrective action to secure safety: McMillan Britton and Kell v WorkCover Authority of New South Wales (Inspector Blake) (1999) 89 IR 464 at 480-1. Therefore, it was submitted, the proper construction of the section was that it applied only in situations where the plant had been provided to the employees of another for use as plant.

[29] The fact that the words of qualification "for use or operation as plant" do not appear in s 17(1)(b), does not defeat the argument, as the ellipsis of words of qualification often occurs in statutory provisions and their inclusion to reinforce what is a matter of common sense, is unnecessary: Thomas v Jakacic (1983) 34 SASR 425.

[30] It was submitted that in the event of ambiguity, resort should be had to the principle that a penal statute should be construed strictly. In rebutting this submission, the appellant relied on the High Court's decision in Waugh v Kippen (1986) 160 CLR 156 at 164-165. The respondent submitted that the issue in Waugh v Kippen was a case where the class of persons who owed a duty under the relevant statutory provision was not in doubt and the issue to be determined was the extent of that duty. Waugh v Kippen is distinguishable as the question to be resolved in the present case is whether a certain class of persons comes within the section at all, that is, the identification of the class of persons upon whom the section casts a duty, not an identification of the extent of that duty. The High Court's conclusions do not justify an approach to construing s 17(1)(b) in such a way as to catch within its parameters, persons whom it cannot be said with certainty the legislature intended to be so caught. Further, it is a matter of fundamental importance that any citizen must be able to know and understand whether a duty imposed by a statutory provision with a penal sanction applies to them. 8 In upholding the appeal, the Full Bench referred to the approach taken by the Full Bench in construing the Occupational Health and Safety Act in Mainbrace Constructions Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) (2000) 102 IR 84 and found that, given the nature of the statute and its objects, Marks J's interpretation of s 17(1)(b) was too narrow. The Full Bench held that the approach of Peterson J in Inspector Page v Woolworths Ltd and Growth Equity Services Pty Ltd in relation to the question of what is "plant" for the purpose of s 17(1)(b) was correct. Accordingly, the Full Bench ordered that leave to appeal be granted; the appeal be upheld and the order made by Marks J dismissing the charge be set aside. Then, without objection being raised by either party, having found the decision to be erroneous, the Full Bench remitted the matter for further hearing and decision by Marks J.

The judgments of Marks J the subject of the appeal 9 Proceedings then again occurred before Marks J with his Honour finding the appellant guilty of the charge. His Honour held in the first judgment: [33] On the basis of the evidence given in these proceedings I am satisfied that neither Exo nor Bros Bins had undertaken any structured or systematic approach in the creation of a system of work and in the recognition and appraisal of risks associated with the circumstances in which, on 22 November 1999, rectification work was carried out on the truck in question at the premises of Exo. Whilst common sense might have dictated that a prop either be installed on the vehicle or utilised by Exo, there was certainly no evidence of any structured approach to the provision of a prop at the Exo premises. At best, there were materials which were lying around and which were used on an "as needs" basis in order to prop up equipment. It was the evidence of Mr Boulton that, to his knowledge, Exo had never worked on a vehicle of this kind previously. That fact of itself alone required that someone assess what needed to be done to ensure that the work should be carried out safely. Even if it could be said that it might have been sufficient to have relied on the fact that the jib was locked into place by the pneumatically driven hooks, it would nevertheless have been necessary to ascertain the circumstances in which the hooks might become disengaged. This would have required both ensuring that neither Mr Targett nor anyone else approached the cabin whilst Mr Whitehouse was working underneath the raised jib and that the state of the cabin was such that no item of equipment in it could have accidentally come into contact with the lever. Furthermore, there needed to be an assessment of what would happen if the lever moved from its uppermost position to the next position down and as to whether this would have the effect of disengaging the hooks. All of this presupposes that it would have been safe for Mr Whitehouse to have worked under the jib without some form of prop mechanism being used as a secondary safety matter. Of course, in the circumstances of these proceedings, the use of a secondary supporting mechanism was crucial. As I have said, there was no evidence of any systematic instruction or training given by Exo to any of their employees whether orally, in writing or a combination of both. Neither was there any evidence of any supervision of any ad hoc understanding or arrangement directed to minimising risks to health and safety at the workplace.

[34] In the same way, there is no evidence that Mr Wood was either trained or instructed concerning any procedures where other persons might be called upon to carry out work on the truck, especially in circumstances where danger was created when the jib was raised. He was not told of the necessity to warn others who might be carrying out the work on the truck in those circumstances and to take steps to ensure that any danger was minimised. Nor is there any evidence that Bros Bins had considered whether a prop should be constructed and installed on the truck itself. There is evidence in the proceedings that other vehicles have such props installed, and indeed, the truck in question now has a prop consequent upon an improvement notice issued by a WorkCover inspector after the incident.

[35] These are the practical ways in which the defendants have failed to comply with their obligations. 10 In accordance with the relevant sentencing principles, his Honour then, in the second judgment, sentenced the appellant imposing a fine of $90,000. The present appeal 11 In the present proceedings the appellant seeks to re-argue the issues decided by the Full Bench in 2003. It was argued by the respondent that it was not open to the appellant to do so. We consider that, having regard to the history of the matter and the possible inappropriateness of the matter having been remitted to Marks J in 2003, the appropriate course is to permit the appellant to re-argue the appeal.

12 As a preliminary issue, we note that the appellant's application for leave to appeal and appeal is brought under s 187 of the Industrial Relations Act, while it should properly have been brought pursuant to s 196 of that statute. Putting aside the appellant's technical error as to the specific section under which its application was brought, it is clear that leave to appeal is not required in s 196 appeals. 13 The grounds for appeal in the present proceedings are that his Honour erred in failing to find that the truck and equipment attached to it the subject of the relevant charge were not "plant … which has been provided for the use or operation of persons at work …" in terms of s 17(1)(b) of the Occupational Health and Safety Act; that his Honour erred in finding that the truck and the equipment attached to it were plant within the meaning of s 17(1)(b).

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. 15 Some assistance is available in respect of this apparent duality of statutory intention, from the High Court judgment in Waugh v Kippen (1986) 160 CLR 156 at 165 where the majority of the Court (Gibbs CJ, Mason, Wilson and Dawson JJ) said: Furthermore, the process of construction must yield for all purposes a definitive statement of the incidence of an obligation imposed on the employer. The legislature cannot speak with a forked tongue. Although the standard of proof applicable to criminal proceedings for a breach of the obligation will differ from that applicable to civil proceedings and the law may provide specific defences by way of answer to a prosecution which have no relevance to civil proceedings … the elements that make up the obligation will be the same in each case. For example, in the present case one could not conclude in favour for an objective criterion of the likelihood of a risk of injury in the context of a criminal proceeding and a subjective criterion for the purposes of a civil action (emphasis added).

See also Capral Aluminium Ltd v Workcover Authority of New South Wales (2000) 49 NSWLR 610 at 629 - 630; 99 IR 29 at 45 - 46 (paras [41] and [42]).

16 It was submitted by the appellant that a major flaw in the respondent's argument to the Full Bench in 2003 and repeated in these proceedings, was that the approach relied upon would make it impossible for any person to have a potentially dangerous fault in any item, machinery or equipment associated with their business, repaired by the employees of another entity, as that person could only discharge their duty under s 17(1)(b) by having the item repaired before giving it to the repairers. It was further submitted that this result could not have been intended by the legislature nor could it be avoided by merely relinquishing possession of the item, having regard to the definition of control; namely, the ability of a person to compel corrective action to secure safety: McMillan Britton and Kell v WorkCover Authority of New South Wales (Inspector Blake) (1999) 89 IR 464 at 480 - 481. The legislature's actual intention then, according to counsel for the appellant, was that the section applied only in situations where the plant had been provided to the employees of another for use as plant. 17 Furthermore, it was contended that Thomas v Jakacic (1983) 34 SASR 423, was authority for the proposition that the absence of the words of qualification "for use or operation as plant" from s 17(1)(b) does not contradict the argument, considering that the ellipsis of words of qualification often occur in statutory provisions and their inclusion to reinforce what is a matter of common sense, is redundant. 18 The appellant also submitted that when faced with ambiguity, resort should be had to the principle that a penal statute should be construed strictly. This proposition was rebutted by the respondent with reference to the High Court decision in Waugh v Kippen. In reply, the appellant put that Waugh was distinguishable as the case was one where the class of person who owed a duty under the relevant statutory provision was not in doubt, and the issue to be determined was the extent of that duty; whilst the present case is whether the certain class of persons comes within the section at all, that is, the identification of the class of persons upon whom the section casts a duty, not an identification of the extent of that duty. The appellant contended that nothing in the High Court's conclusions justifies an approach to construing the section in such a way as to catch within its parameters, persons whom it cannot be said with certainty the legislature intended to be so caught. Moreover, it is a matter of fundamental importance, according to the appellant, that any citizen must be able to know and understand whether a duty imposed by a statutory provision with a penal sanction applies to them.

19 It is also necessary to deal with a final submission made by the appellant regarding the respondent's approach to the interpretation of s 17(1)(b) of the Act. Counsel for the appellant argued, as he had done in the original hearing before Marks J, that the respondent's interpretation of s 17(1)(b) would make it impossible for any person to have a potentially dangerous fault in any item, machinery or equipment associated with their business, repaired by the employees of another entity, as that person could only discharge their duty under s 17(1)(b) by having the item repaired before giving it to the repairers. 20 The Full Bench in 2003 dealt with this contention in two ways; first, by observing that s 17(1)(b) imposes a duty on a person to ensure the plant is safe in circumstances where the person has to some extent control over the plant. If the relevant person has no degree of control over the plant the person cannot be held liable under s 17(1)(b). In response to this observation, the appellant argued that control is not a matter that is simply determined by possession, and that Parliament could not have intended to make such a radical change to the law which would effectively mean that nothing that was dangerous could henceforth be repaired. Reliance was placed on the observations of Lord Diplock in Haigh v Charles W Ireland Limited [1973] 3 All ER 1137 at 1147 and following where inter alia his Lordship said: In the context of an Act which deals with what goes in factories, 'plant' is an ordinary English word in common usage whose meaning is well understood. To quote the Shorter Oxford English Dictionary it means 'The fixtures, implements, and apparatus used in carrying on any industrial process'. As such it is to be distinguished from the products of the process or the objects on which the process is carried out . (appellant's emphasis). 21 It was said that Lord Diplock's exclusion from the concept of plant of items on which an industrial process is carried out in a factory must lend strong support for the contention that an item on which a repair is to be effected by a business carrying on trade as a repairer of such items is similarly not plant. In relying on the approach of Lord Diplock as indicative of the longstanding legal situation as to the expression "plant" the appellant also referred to the way in which the expression had been approached by Page Wood V-C in Blake v Shaw (1860) John 732 at 734 and by Lindley LJ in Yarmouth v France (1887) 19 QBD 647 at 658, the latter case being cited with approval by Lord Diplock in Haigh v Charles W Ireland Limited. 22 The second observation by the Full Bench focused on the duty found in s 16 of the Act, which was held to be analogous to that in s 17. It was held that, where the person has to some extent control over the plant that is sent out for repair, the person is in no different position, in terms of the person's duty to ensure that the plant is safe, than is an employer who has a duty under s 16(1) to ensure that persons not in its employment are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work. The appellant contended that this approach involves an error of reasoning which does not accurately ascertain the class of persons upon whom the legislature sought to impose a particular duty.

23 We consider that the approach to be adopted to the construction of s 17, and the part of that section relevant to the appeal, is to construe the provision by reference to the words used in it and also, of course, by reference to the definition of the expression "plant" in s 4. 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. 26 The question that thus arises is the interpretation of the expression "plant". Marks J originally relied (as does the appellant) on the judgment of the House of Lords in Haigh v Charles W Ireland Limited where the expression as used in the Factories Act 1961 (UK) was not expressly defined. This however, is not the case in the Occupational Health and Safety Act. The expression "plant", according to the statutory definition in s 4 of the Occupational Health and Safety Act is defined in this way: " 'plant' includes any machinery, equipment and appliance" (emphasis added). Generally, the use of the expression "includes" is intended to enlarge the ordinary meaning of the word: see, for example, R v Holmes Ex parte Public Service Association of New South Wales (1976) 140 CLR 63 at 73 and Sherritt Gordon Mines Ltd v FCT (1976) 10 ALR 441 at 445. It is essential that the expression be interpreted in accordance with its statutory definition and that appropriate weight be given to all of the elements of the definition. It is settled that a court construing a statutory provision must strive to give meaning to every word of the provision: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at 382. 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. 28 If it is to be accepted that the speech of Lord Diplock in Haigh v Charles W Ireland Limited demonstrated a settled approach by the courts to the construction of the expression "plant" in 1973 that does not remove our obligation to construe the 1983 statute relevantly by reference to its plain words within the overall scheme of the Act. We do not accept that there has been any failure by the legislature to use sufficiently clear language to give a broad, or broader, meaning to the expression "plant". 29 We consider that the approach adopted by Marks J in the decisions under appeal was correct. His Honour, in finding that a breach of the statute had been made out, gave appropriate consideration to circumstances which might have obviated the charge being made out (see, for example, his Honour's conclusions and the issue of control at para [43] of the first judgment) and there was no issue taken to the penalty imposed. 30 We have concluded that the appellant has failed in its appeal against the decisions of Marks J. Similarly, we conclude that the appellant has failed to demonstrate that the earlier Full Bench decision was in error. The appeal must therefore be dismissed. 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.

32 Finally, we should refer to that part of the history of the matter whereby, after the Full Bench proceedings in 2003, the proceedings were remitted to Marks J who further determined the issues in the proceedings. As earlier noted, the appeal to the Full Bench was pursuant to s 197A of the Industrial Relations Act, which is relevantly in the following terms: 197A Appeals against acquittals in proceedings for offences against occupational health and safety legislation

(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. ... (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. ... 33 It will be observed that s 197A(7) empowers the Full Bench, on appeal, to either dismiss the appeal or (where the Full Bench upholds the appeal) to "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)"; and that s 197A(8) refers to the possibility in upholding an appeal that the Full Bench may convict the defendant of the offence charged. In the light of the terms of these subsections, there must be substantial doubt whether it was open to the Full Bench, having upheld the appeal in 2003, to remit the matter for further hearing and determination before the earlier trial judge. 34 The Full Bench having done so, a question then arises as to whether it is open to the Full Bench to hear the present appeal. Notwithstanding the possible irregularity that occurred by the remitter of the matter to Marks J, we consider that his Honour having re-heard the case and having instructed himself correctly on the relevant legal issues having regard to the decision of the Full Bench, the subsequent finding of guilt, conviction and fine imposed on the appellant were valid. However, to ensure that any possible irregularity is cured, the appropriate course to be taken, since we as the Full Bench have concluded that the decision of Marks J was correct, is to confirm formally the conviction recorded by his Honour and the penalty imposed. The orders we may make will do that. Nevertheless, should either party consider that there is any remaining irregularity in respect of the conviction and penalty then the parties have liberty to apply within 14 days for orders to be made to deal with any difficulty they consider might still exist. Orders

35 Accordingly, we make the following orders:

1. The appeal is dismissed.
2. The conviction recorded by Marks J on 22 July 2005 in Matter No IRC 5012 of 2001 and the penalty imposed by his Honour on the same date, are hereby confirmed.
3. Liberty to apply as to the form of the orders made, provided it is exercised within 14 days of these reasons being delivered.

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