Edwards Madigan Torzillo Briggs Pty Ltd v Mansell

APPELLANT: Minter Ellison Lawyers [ceased to act] (Mr A A Howie and Ms R Hartwell)

LEGAL REPRESENTATIVES: RESPONDENT: Mr P M Skinner of counsel Moray & Agnew, Solicitors (Mr N A Corey)

JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION FULL BENCH

CORAM: WRIGHT J, President WALTON J, Vice-President BOLAND J

Matter No IRC 7424 of 2003 EDWARDS MADIGAN TORZILLO BRIGGS PTY LIMITED v INSPECTOR PAUL MANSELL

Application by Edwards Torzillo Briggs Pty Limited for leave to appeal and appeal against a decision of Justice Haylen given on 12 December 2003 in Matter Nos IRC 5451, 5452 and 5453 of 1999 JUDGMENT OF THE COURT [2004] NSWIRComm 162

1 Edwards Madigan Torzillo Briggs Pty Limited ("the appellant") has applied for leave to appeal, and if leave is granted, appeals against the decision of Haylen J of 12 December 2003: WorkCover Authority of New South Wales (Inspector Mansell) v Edwards Madigan Torzillo Briggs, Ove Arup Consult & ors [2003] NSWIRComm 452. The proceedings before Haylen J were brought by the appellant (a defendant in the proceedings before his Honour) by way of notice of motion and the motion sought a permanent stay of the action commenced against the appellant by Inspector Mansell of the WorkCover Authority under s 17 of the Occupational Health and Safety Act 1983. The issue before Haylen J concerned the proper construction of s 49(4) of the 1983 Act and whether the proceedings were out of time and should, therefore, be dismissed.

2 The charges brought by the prosecutor relate to an accident that occurred during building work at Kogarah Railway Station on 4 December 1995, which was the subject of a Coronial inquiry and findings. It is alleged that the ignition of gas escaping from a natural gas pipeline in, or in the vicinity of, the station caused the death of two people, and injury to several others.

3 The appellant is only one of the defendants in the proceedings before his Honour. At first instance, Haylen J accepted the prosecution's submission and made directions that the substantive trial of this defendant should proceed jointly with that of the other three defendants. The substantive proceedings apparently remain in abeyance until resolution of the present appeal which has been set down for hearing on 13 August 2004.

4 However, the appellant seems to have had some difficulty in meeting the requirements of the appeal process. On 21 April 2004, the respondent filed a Notice of Motion which sought, amongst other orders, that the appeal be struck out for the appellant's failure to comply with the directions for the filing of the appeal books. It was on that basis that the motion was initially dealt with by the President on 22 April 2004. His Honour stood the motion over until 3 May 2004, and noted the undertaking of the appellant to file and serve the appeal books by 4.00pm on 30 April; also the undertaking of the respondent to file and serve his submissions as to leave to appeal by 4.00pm on 29 April and that time would be running for the filing of the appellant's submissions on leave although the precise time they were to be filed would be determined on 3 May. During the directions hearing, Ms Hartwell, solicitor, appeared for the appellant and advised the Court that the appeal books were to be filed the following day.

5 On 23 April 2004, the appellant's solicitors, Minter Ellison, filed a Notice of Intention to Cease Acting as Solicitors; and on 3 May 2004, a Notice of Ceasing to Act was filed. On 29 April 2004 and 3 May 2004, the respondent filed submissions in relation to the motion.

6 The matter came before the Court again on 7 May 2004. On that occasion, directions were given, inter alia, that the appellant (the respondent to the motion) file and serve any submissions it relies on in relation to the issues raised in the submissions of the respondent (the applicant in the motion) no later than 2.00pm on Wednesday 19 May 2004; that leave be granted to the respondent to amend his motion in accordance with the further submissions dated 3 May 2004 and the motion be dealt with as if amended in terms of those submissions; that the respondent advise the Registrar no later than 2.00pm on 21 May 2004 whether the respondent wished to file any submissions in reply; that subject to the consideration of the Full Bench, the Full Bench will deal with the respondent's motion on the papers and the amendment thereto relating to having the appeal struck out as incompetent. The respondent was also requested to advise both the former solicitors for the appellant and the appellant of the directions made.

7 The respondent filed an amended Notice of Motion on 18 May 2004 seeking that the application for leave to appeal and appeal be dismissed as the appeal was incompetent. On 20 May 2004 a telephone communication was received from the solicitor for the respondent advising that, as the appellant had not filed submissions in response to the respondent's motion (thereby apparently in breach of the directions made on 7 May 2004), there would be no submissions in reply filed by the respondent.

8 The difficulty experienced by the appellant in proceeding with its application for leave to appeal and appeal from the judgment of Haylen J is apparently delaying the substantive trial involving all four defendants before his Honour and this is a factor which may have some relevance to any decision to grant leave to appeal. This consideration relates to the second ground relied on by the respondent for the other orders sought in the motion which sought, in the alternative, the expedition of the hearing of appeal. The second ground was in these terms: The judge allocated to conduct the trial of the substantive proceedings for the prosecution of the Respondent/Defendant, Haylen J, has made a direction that that trial be not set down for hearing, nor the Respondent/Defendant be required to enter a plea to the charges in the substantive proceedings, until the instant appeal is decided. The same direction has been made by his Honour in respect of related proceedings against five other defendants sought to be tried jointly with the trial of the substantive proceedings against the Respondent/Defendant. If this Honourable Court does not grant order 1 as sought, it is in the interests of justice in all the circumstances that there be expedition of the leave application and the appeal, or at least of the leave application on its own.

9 In the proceedings before Haylen J the motion was dismissed essentially on two bases: first, that s 49(4) was not in fact the provision relevant to the proceedings; and second, and in any event, the proper application of s 49(4) required that the defendant's submissions must fail.

10 In relation to the first basis, his Honour held that s 107(3) of the Occupational Health and Safety Act 2000 was the relevant section for the proceedings: [66] I believe that the approach of the President, Wright J, in Inspector Forster v Osprey Manufacturing Pty Ltd is correct. The transitional and other provisions set out in Schedule 3 contain provisions for dealing with proceedings which are already on foot, such as the proceedings in these cases. As the President Wright J held at paragraph [47] Clause 13 results in the application of Part 7 of the 2000 Act to proceedings under the 1983 Statute and requires that Part 7 apply even if the proceedings had commenced prior to the repeal of the 1983 Act. The 1983 is repealed and the 2000 Act applies. There is no provision, as is sometimes found, preserving the operation of the previous Act for proceedings commenced but not concluded (see for example in relation to this jurisdiction GIO Australia Ltd v O'Donnell (1996) 70 IR 1). In this respect the intention of the legislature is clear and unambiguous (see Attorney-General (Q'ld) v Australian Industrial Relations Commission ).

[67] Having formed the view that the 2000 Act and specifically s 107 of the 2000 Act applies to the present proceedings and that s 49(4) does not apply to the proceedings, the points raised by the defendants regarding s 49(4) must therefore fail. This result follows whether or not s 107 brought about a significant alternation to the provisions of s 49(4) of the 1983 Act, because of the clear statutory intention that the new Act and Part 7 of the new Act is to apply to proceedings commenced under the Act but not yet concluded. 11 It was the defendant's submission that the proper construction of s 49(4) was that the offender be identified in the material before the Coroner, that there also be evidence admissible in a criminal trial to support the charge and that the alleged offence be established prima facie. In dismissing the motion on the second basis, his Honour held that: [68] It should be immediately stated at this point that I am bound by the conclusions of the Full Bench in Inspector Page v Walco Hoist Rentals Pty Ltd (1999) 87 IR 286. The consequence of that position is that on a proper construction of s 49(4) it is not necessary to identify the offender in the material before the Coroner or in the Coroner's Report, nor is it necessary for the prosecutor to rely on only one of the Coronial proceedings or the Coroner's Report but not both. Further, there is no requirement that the material before the Coroner or found in the Coroner's Report should appear therefore for the first time and be in addition to the information and detail already in the hands of the WorkCover Authority. Similarly, Walco Hoist is binding in rejecting the proposition that the evidence before the Coroner needs to establish a prima facie breach of the Occupational Health and Safety Act or that all the necessary elements of the offence have been established. Finally, the Full Bench held that there was no ambiguity arising from the provisions of s 49(4), contrary to the submissions now made by the defendants. These matters, of course, lie at the heart of the defendants' case and in pursuing the arguments before the Court as presently constituted it was recognised that the decision of the Full Bench would be binding and that leave would be sought to re-argue the decision in Walco Hoist, presumably on appeal.

12 Notwithstanding these conclusions his Honour found it appropriate to consider in detail the defendant's submissions as to the proper application of s 49(4): see [69] - [88] of the judgment. His Honour then determined whether there was any objective or identifiable material in the proceedings before the Coroner which led to the appearance of a breach of s 17(1) of the 1983 Act. Section 17(1) requires that: (1) Each person who has, to any extent, control of:

(a) non-domestic premises which have been made available to persons (not being the person's employees) as a place of work, or the means of access thereto or egress therefrom, or (b) any plant or substance 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 premises, the means of access thereto or egress therefrom or the plant or substance, as the case may be, are or is safe and without risks to health.

13 At [106] of the judgment, his Honour held: In McMillan Britton & Kell Pty Ltd v WorkCover Authority (NSW) (1999) 89 IR 464, the Full Bench dealt with the requisite degree of control contemplated by s 17(1). The degree of control of a defendant was said to be the extent to which that person was able to ensure safety by guaranteeing securing or making certain. Control was not used in the sense of merely being able to "sway" or by "checking" or "restraint" but was used in the sense of "directing action" or "command" - the ability of a person to compel corrective action to ensure safety, having in mind the context and purpose of the statute. At [107], his Honour held that as he had rejected the defendant's submission as to the correct construction of s 49(4), by implication: [N]ot a great deal may be needed for it to be established on an objective basis that there is the appearance of an offence having been committed. It is undesirable to describe what is required to permit a prosecutor to commence proceedings in circumstances dealt with by s 49(4) by the use of terms which are too prescriptive. In my view no more need be said than, when challenged by a defendant, the prosecutor must be able to make out a case that there is sufficient material on an objective analysis of the proceedings or to point to identifiable matters to suggest that there has been a breach of the Act. His Honour also found that Capital Works Management (the registered business name of the four defendants), did exercise sufficient control over the construction site to "compel, direct, or command that steps be taken in relation to the safety of the site" at [109].

14 Although not the subject of the present appeal, a separate motion was brought by the Ove Arup defendants which challenged the prosecutions as an abuse of process. His Honour declined to make such a finding (see [101] of his Honour's judgment).

15 The factors in the appellant's notice of appeal which are said to point in favour of the granting of leave to appeal are:

(a) It is in the public interest that the Full Bench clarify whether s 107 of the Occupational Health and Safety Act 2000 applies to proceedings commenced by way of summons pursuant to s 17 of the Occupational Health and Safety Act 1983. (b) It is in the public interest that the Full Bench determines the content of the requirement that it "appear" that an offence has been committed in s 49(4) of the Occupational Health and Safety Act 1983 and/or s 107 of the Occupational Health and Safety Act 2000.

16 The respondent, however, submits that the considerations which point against the granting of leave are:

(a) There is no basis expressed in the notice of appeal as to how it is in the public interest for the Full Bench to clarify whether s 107 of the Occupational Health and Safety Act 2000 applies to proceedings brought under s 17 of the Occupational Health and Safety Act 1983. In any event, it is unlikely that there are matters which turn on the difference between the provisions of s 49(4) of the 1983 Act and s 107(3) of the 2000 Act; the difference between the two sections being the addition of the phrase in parenthesis "(whether or not the offender is identified)" in the 2000 Act. (b) The Full Bench has already dealt with the definition of the term "appear" within s 49(4) of the 1983 Act and thus in s 107(3) of the 2000 Act: see Page v Walco Hoist Rentals Pty Limited (1999) 87 IR 286; WorkCover Authority of New South Wales (Inspector Mansell) v TMG International Pty Ltd (2002) 116 IR 128. There are also the first instance judgments of Schmidt J in WorkCover Authority of New South Wales (Inspector Maltby) v AGL Gas Networks Ltd (2003) 121 IR 69 and Kavanagh J in WorkCover Authority of New South Wales (Inspector Maltby) v Abigroup Contractors Pty Ltd (2003) 126 IR 1.

17 The appellant contends in its notice of appeal that: (a) Haylen J erroneously held that the reluctance of the Court to review the prosecutor's decision to institute proceedings informed the proper construction of s 49(4) of the 1983 Act and s 107 of the 2000 Act. (b) His Honour erred in finding that the 2000 Act was retrospective and that s 49(4) of the 1983 Act did not apply to the proceedings. (c) In the alternative, his Honour failed to construe s 107 of the 2000 Act properly and consequently failed to apply it to the available evidence correctly. (d) His Honour erred in his understanding of the Full Bench judgment in Page v Walco Hoist Rentals Pty Limited (1999) 87 IR 286 as it relates to s 49(4) of the 1983 Act. (e) His Honour erred in holding that the prosecutor had satisfied a requirement, if such a requirement existed, to identify material which objectively suggested, or from which it appeared, that a breach of the Act had occurred.

18 As noted earlier, the appellant has failed to comply with the directions of the Court and has failed to file submissions in relation to the respondent's motion which seeks the appeal be struck out as incompetent.

19 Despite the lack of submissions for the appellant, the respondent submits that there is a general undesirability for courts to interfere with interlocutory decisions in criminal proceedings: see Abigroup Contractors Pty Limited v WorkCover Authority of New South Wales (Inspector Maltby) (2002) 119 IR 319 at [6]; Yates v Wilson & Ors (1989) 168 CLR 338 at 338; R v Steffan (1993) 67 A Crim R 506 at 515; R v Waterhouse (1992) 62 A Crim R 59; R v Allen (unreported, Court of Criminal Appeal, 14 August 1991). The respondent also cites the principle in Ridge Consolidated Pty Ltd v WorkCover Authority of New South Wales (Inspector Mauger) (2000) 100 IR 156 at [19] that: "[t]he appeal court's role in s 5F proceedings is that of a court of error not a court of review".

20 The respondent also submits that there is no "public interest" in an appeal point which seeks to clarify the narrow distinction between s 49(4) of the 1983 Act and s 107(3) of the 2000 Act. The respondent further submits that the issues raised by the notice of appeal have already been given considerable consideration by the Court. The Court's approach of s 49(4) of the 1983 Act, specifically that "it appears from the coroner's report or proceedings at the inquest or inquiry that an offence has been committed against this Act", has remained consistent: see Page v Walco Hoist Rentals Pty Limited.

21 The respondent finally submits that, relying on Morrison v Joy Manufacturing Co Pty Ltd [2004] NSWIRComm 107, the Court does not have jurisdiction under the combined operation of s 5F of the Criminal Appeal Act 1912 and s 196 of the Industrial Relations Act 1996 to hear and determine an appeal against an interlocutory judgment or order.

22 The appellant seeks leave to appeal and, if leave is granted, appeals against the 12 December 2003 judgment of Haylen J pursuant to s 196 of the Industrial Relations Act 1996 and s 5F(3) of the Criminal Appeal Act 1912. Section 5F provides that:

(a) proceedings (including committal proceedings) for the prosecution of offenders on indictment in the Supreme Court or in the District Court, and (b) proceedings under Division 5 of Part 2 of Chapter 3 of the Criminal Procedure Act 1986, and (c) proceedings in Class 5 of the Land and Environment Court's jurisdiction (as referred to in section 21 of the Land and Environment Court Act 1979).

(2) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in proceedings to which this section applies.

(3) Any other party to proceedings to which this section applies may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in the proceedings:

(a) if the Court of Criminal Appeal gives leave to appeal, or (b) if the judge or magistrate of the court of trial certifies that the judgment or order is a proper one for determination on appeal. (3A) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against any decision or ruling on the admissibility of evidence, but only if the decision or ruling eliminates or substantially weakens the prosecution's case.

(4) An appeal under this section shall, unless the Court of Criminal Appeal gives leave to adduce fresh, additional or substituted evidence, be determined on the evidence (if any) given in the proceedings to which the appeal relates.

(a) may affirm or vacate the judgment, order, decision or ruling appealed against, and (b) if it vacates the judgment, order, decision or ruling, may give or make some other judgment, order, decision or ruling instead of the judgment, order, decision or ruling appealed against.

(6) If leave to appeal under this section is refused by the Court of Criminal Appeal, the refusal does not preclude any other appeal following a conviction on the matter to which the refused application for leave to appeal related.

(7) A person may not appeal to the Court of Criminal Appeal under this section against an interlocutory judgment or order if the person has instituted an appeal against the interlocutory judgment or order to the Supreme Court under Part 5 of the Crimes (Local Courts Appeal and Review) Act 2001. As noted by the respondent the appellant has not sought any certificate from Haylen J pursuant to s 5F(3)(b).

23 We consider that in the light of the history and particular circumstances of this matter, it is appropriate that the Full Bench determine both issues raised for consideration. That is, whether (on the assumption that the application for leave to appeal and appeal is competent) leave to appeal should be granted; and, secondly, whether the appeal is competent.

24 There is no doubt that the judgment of Haylen J is interlocutory in nature: see WorkCover Authority of New South Wales (Inspector Mansell) v TMG International Pty Ltd at [36] to [74] and Regina v King [2003] NSWCCA 399 at [18].

25 As correctly submitted by the respondent, it is well accepted that a court ought to be reluctant to countenance appeals from interlocutory judgments in criminal proceedings: see Abigroup Contractors v Inspector Maltby at [6]; Yates v Wilson & Ors at 338; R v Rogerson (1990) 45 A Crim R 253 at 254; R v Steffan at 515; R v Waterhouse; R v Allen (unreported, Court of Criminal Appeal, 14 August 1991).

26 The approach that should be adopted as to s 5F of the Criminal Appeal Act was considered in Ridge Consolidated Pty Ltd v WorkCover Authority of New South Wales (Inspector Mauger) where the Full Bench held at [19] that: 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.

27 In the present circumstances, the appellant has failed to demonstrate a "clear error" by Haylen J which would warrant the grant of leave. We consider that his Honour was correct in following the approach in Inspector Forster v Osprey Manufacturing Pty Ltd [2003] NSWIRComm 161 and thereby applying s 107(3) of the 2000 Act to the present proceedings even though the proceedings had been brought under the 1983 Act.

28 As to the proper construction of s 49(4) of the 1983 Act, we do not consider that his Honour has committed any error in his application of the Full Bench judgment in Page v Walco Hoist Rentals Pty Ltd. We consider that his Honour was correct in concluding that, upon the proper construction of s 49(4) of the 1983 Act, an offender does not need to be identified within the Coroner's report; nor does a prima facie breach of the Occupational Health and Safety Act need to be established; nor do the elements of the breach need to be made out. Accordingly, it would be inappropriate to grant leave to appeal.

29 As to the second issue, in Morrison v Joy Manufacturing Co Pty Ltd, the Court considered the issue of jurisdiction as to appeals pursuant to s 5F of the Criminal Appeal Act. The Full Bench held at [53] that: In so far as s 5F is concerned, given our conclusion that the meaning of the term "indictment" is not extended by the definition in s 2 of the Criminal Appeal Act to include "information" in its most frequently understood sense, "indictment" in s 5F(1)(a) must be taken to refer to the regular criminal jurisdiction of the Supreme Court and not the summary jurisdiction of that Court. It follows that under s 5F an appeal does not lie to the Full Bench of this Court from an interlocutory judgment or order of a judicial member of the Court made in the Court's summary criminal jurisdiction. The Court also held at [58] that: To accept the contention that the Commission in Court Session has jurisdiction to hear appeals from interlocutory judgments and orders in its summary jurisdiction would mean that the Full Bench had, at least in one respect, greater powers than the Court of Criminal Appeal. Given the wording of s 196(2), we do not consider that was the legislature's intention.

30 Accordingly, there is no power to hear the appeal. The appeal is incompetent and must be dismissed with costs. The proceedings should now be returned to Haylen J so that the proceedings before his Honour in respect of the appellant and the other defendants may proceed. Orders are made in terms of the decisions set out in this paragraph and in paragraph [28] above. These proceedings are concluded. The hearing listed on 13 August 2004 is vacated. __________________________________

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