Golden Swan Investments (Australia) Pty Limited v WorkCover Authority of NSW

Crimes (Local Courts Appeal and Review) Act 2000 LEGISLATION CITED: Criminal Appeal Act 1912 Industrial Relations Commission Rules 1996 Occupational Health and Safety Act 2000

Kirk Group Holdings Pty Ltd and Anor v WorkCover Authority of New South Wales (Inspector Childs) [2006] NSWIRComm 355 Legge v Coffey Engineering Pty Ltd (2000) 103 IR 282 CASES CITED: Scevola v WorkCover Authority (NSW) (Inspector Sealey) (2005) 142 IR 233 T&M Industries (Aust) Pty Ltd v WorkCover Authority (NSW) (Inspector Sequeira) (2006) 151 IR 130 WorkCover Authority of New South Wales (Inspector Franke) v Amer Kanawaty [2005] NSWIRComm 361 WorkCover Authority of New South Wales (Inspector Ian Hannah) v Keough's Plant Hire Pty Ltd [2006] NSWIRComm 118

Applicant: Mr A Moses of counsel Solicitors: Moray & Agnew LEGAL REPRESENTATIVES: Respondent: Ms P Lowson of counsel Solicitors: DLA Phillips Fox

Golden Swan Investments (Australia) Pty Limited v WorkCover Authority of NSW (Inspector Pryor)

Application to extend time to appeal against a decision of Chief Industrial Magistrate Hart given on 16 October 2006 in Matter No 20075392/06/2

1 This is an application to extend time to appeal against a decision of Chief Industrial Magistrate Hart given on 16 October 2006. In that decision his Honour imposed a penalty of $27,000 on the applicant (the defendant in the proceedings below) following the applicant's plea of guilty to one offence under s 8(2) of the Occupational Health and Safety Act 2000. 2 The applicant filed an application for leave to appeal and appeal against his Honour's decision on 9 November 2006. On the same day the applicant filed an application to extend time to appeal. 3 In that latter application, the applicant advances two grounds for claiming an extension of time. These are extracted from the application in the following terms:

1. It is the appellants/defendant's contention that the appeal is within time by virtue of the operation of s 197(1)(b) of the Industrial Relations Act 1996 and s 11 of the Crimes (Local Courts Appeal and Review) Act 2001 which allows for an appeal to be filed within 28 days.

2. Alternatively, the appeal could not be filed within 21 days as prescribed by s 189 of Industrial Relations Act 1996, due to a difficulty in obtaining the appellant's instructions by 6 November 2006, after receipt of Counsel's advice, noting that the appellant's representatives are located in Singapore. 4 The background to the application commences with the applicant's endeavour to lodge its appeal in the Registry on 8 November 2006. It was unsuccessful in this endeavour apparently because the Deputy Registrar informed it that the period within which an appeal could be lodged was 21 days in accordance with s 189 of the Industrial Relations Act 1996 (the Act). 5 The applicant's reliance on s 11 of the Crimes (Local Courts Appeal and Review) Act 2000 (CLCARA) derives from the provisions of s 197(2) of the Act which was amended with effect on 7 July 2003. Section 197(2) provides:

(2) The provisions of the Crimes (Local Courts Appeal and Review) Act 2000 that relate to: (a) appeals from a Local Court to the District Court or Supreme Court, and (b) the decisions of the District Court or Supreme Court on any such appeal, and (c) the carrying out or enforcement of any such decision, (including those provisions as applied by section 64 of the Local Courts Act 1982 ) apply, subject to the regulations under this Act, to any appeal referred to in subsection (1). 6 Section 197(2) purports to apply the provisions of the CLCARA that relate to appeals from a Local Court to the District or Supreme Court subject to the regulations under the Act. The rationale for this is not immediately clear. First, the provisions within the CLCARA which provide for appeals to the District Court are in quite different terms from the provisions which provides for appeals to the Supreme Court. Section 11 of the CLCARA for example which governs appeals to the District Court against conviction or sentence provide for appeals as of right. It also provides for a period of 28 days in which to lodge an appeal. Section 52 of the CLCARA also provides for appeals as of right to the Supreme Court against conviction or sentence but only on a ground that involves a question of law. The section also requires applications for appeals under the section to be made, "within such period after the date of conviction or sentence as may be prescribed by rules of Court". Section 53 of the same Act provides for appeals against conviction or sentence and requires leave to appeal on a question of fact or on a question of mixed law and fact. Secondly, although I am not aware of any Regulations under the Act governing the time within which appeals may be lodged under s 197(1), Rule 42 of the Industrial Relations Commission Rules 1996 (the Rules) provides that unless otherwise provided an appeal must be made within 21 days after the decision appealed against, or such further time as the Commission allows. 7 Rule 42 was recently held to have no practical effect in relation to appeals to which s 189 of the Act applied: Kirk Group Holdings Pty Ltd and Anor v WorkCover Authority of New South Wales (Inspector Childs) [2006] NSWIRComm 355 at [24]. In that judgment the relevant proceedings involved an extension of time application in which to lodge an appeal under s 196(1) of the Act. Neither s 189 of the Act nor Rule 42 of the Rules has any application to s 196 however, which instead applies the provisions of the Criminal Appeal Act 1912. 8 In the present application the applicant's contention that s 197(1)(b) applies to the proceedings is made without the support of any binding authority which has determined the issue. The effect of s 197(2) in its present form has been considered by the Full Bench in this jurisdiction in WorkCover Authority of New South Wales (Inspector Ian Hannah) v Keough's Plant Hire Pty Ltd [2006] NSWIRComm 118 at [11]; T&M Industries (Aust) Pty Ltd v WorkCover Authority (NSW) (Inspector Sequeira) (2006) 151 IR 130 at [17]-[21]; and Scevola v WorkCover Authority (NSW) (Inspector Sealey) (2005) 142 IR 233 at [11] to [13]. It should be noted in relation to Scevola v WorkCover Authority that the issue was not fully determined in that judgment because the relevant proceedings related to a conviction before the provisions of the CLCARA became operative. The Full Bench judgment in WorkCover Authority of New South Wales (Inspector Franke) v Amer Kanawaty [2005] NSWIRComm 361 also refers, briefly, to the provisions of s 53(1) of the CLCARA in the context of a cross appeal. The judgment sets out the provision but makes no determination as to whether or not it applied to those proceedings. 9 In the absence of any judicial authority on the application or otherwise of the provisions of the CLCARA to appeals brought under s 197(1) of the Act, the relevant provision, in my view is s 189 of the Act which provides that appeals to a Full Bench brought under Part 7 of the Act must be made within 21 days after the date of the decision appealed against, or "within such further time as the Full Bench..." allows. 10 It follows from this brief analysis and my findings, that the present application for leave to appeal and appeal has been filed out of time, although only by a relatively short period, namely, 3 days. 11 Given this short period of time, I am inclined to grant the extension of time application. This is particularly so as the respondent has indicated to the Court in submissions that the application should not fail because of an error, apparently made by the applicant's legal representative, in assuming that the applicant had 28 days in which to file its appeal under s 197(1)(b) of the Act. An additional hurdle for the applicant in failing to file within time apparently involved difficulties in obtaining proper instructions from the applicant's directors who are based in Singapore. 12 This does not however entirely dispose of the matter. The respondent objects to the application being granted because, it says the applicant has limited prospects of obtaining leave to appeal, and is unlikely to succeed in any appeal. This is so notwithstanding that the respondent in the proceedings below agreed with a submission put by the applicant that its culpability is less than that of other defendants charged in relation to the same incident. 13 A relevant authority in relation to the principles to be applied in applications to extend time in which to appeal in relation to occupation health and safety prosecutions is Legge v Coffey Engineering Pty Ltd (2000) 103 IR 282. In that judgment Wright J, President, after considering Bishop v R (1982) 40 ALR 40 and WorkCover Authority of New South Wales (Inspector Salmon) v Parkes Council (1996) 70 IR 298, two earlier authorities dealing with the principles applicable to an extension of time, said:

13 I consider that the proper application of the judgment in Parkes Council, and the application in that judgment of the approach of the Full Federal Court in Bishop , would lead to the grant of the application to extend time. The essential reasons for this view can be stated shortly in the light of the earlier reference to the submissions of counsel and the approach of her Worship. I accept that the two Full Bench cases cited show that it is appropriate to consider initially whether the applicant has demonstrated an acceptable explanation for the failure to file the appeal in time and whether special circumstances were established. I consider that the appropriate consideration of the tests formulated in both Parkes Council and Bishop is that the special circumstances necessary might derive from either the circumstances of the explanation or from other circumstances. The primary consideration is whether special circumstances are shown. However, it must be emphasised that the present application involves the exercise of a discretion which must be exercised judicially. Although it is important that there be a clear and convincing case for extension of time, it is, after all, a matter for the discretion of the judge considering the application. Provided it is kept steadily in mind that what is required is the exercise of judicial discretion which should not be necessarily bound in a rigid way by any particular rule, the significance of the cases is that they emphasise that the Court must take all relevant matters into account and must in that process ensure that it does justice between the parties having regard to all the circumstances and, where relevant as it is in the present proceedings, to the public interest.

14 Reference to the considerations set out in numbered paragraphs in Parkes Council shows that the crucial consideration once there is an acceptable explanation for the delay in filing the appeal, is whether the failure to extend time would result in an injustice. This in turn involves, or may involve, consideration of the prospects of the applicant succeeding in the appeal. Much of the detailed discussion in the numbered principles in Parkes Council may be seen as falling within these broad considerations. 14 The applicant's grounds of appeal focus significantly, although not exclusively on, alleged errors of law in relation to a failure on the part of the learned Chief Industrial Magistrate to properly apply and/or furnish adequate reasons for, the application of the principle of parity, in the sentencing remarks. 15 In the decision, at [17] and [18] his Honour made the following observations and findings in relation to the principle of parity, concluding in effect that the respondent's culpability was higher than that of the other offenders who were charged in relation to the same incident:

It was submitted on behalf of the defendant that in considering an appropriate sentence in this matter the Court would find that the culpability of the defendant herein was of a lower order than that found by the Court to apply to Fab and Tam Hotel Services Pty ltd and International Hotel Services Pty Ltd. Those two companies were before the Court in other proceedings arising out of the same incident. Having considered the objective seriousness of the offences committed by the various corporate participants I reject the submission make on behalf of the defendant in this case. In the view of the Court the principle of parity does not, when considered, result in a finding that the defendant herein is the least culpable of the participants. The sump pump, which was clearly defective, was the property of the defendant herein and the defendant herein had control over any systems put in place to check the equipment, to test the equipment and to supervise its use. In essence the defendant had adopted a practice of having the equipment tested annually and in between such annual checks it left the task of monitoring the condition of the equipment entirely to the employees of contractors. It was a system that depended entirely upon such contract cleaners exercising sound judgment as to whether or not electronic equipment was defective or not. In that sense the defendant was not proactive but reactive and had put in place a system which purported to delegate the responsibility of regular checking away from its own maintenance management and into the hands of contract cleaners who could not, in a general sense, be expected to have any qualifications or expertise in relation to such matters.

In the view of the Court considerations of parity require the defendant herein to be fined a sum which is greater than that which the Court has imposed upon International Hotel Services Pty Ltd. 16 A reading of the decision discloses that his Honour's observations in relation to the respective culpabilities of the various offenders, including the respondent are confined to an assessment of the respondent's culpability only. No reference is made in the decision to the roles of the other offenders in the circumstances of the offence. It is therefore not clear on the face of the decision why the respondent was found to be more culpable than the other offenders in respect of the same incident. This alone would in my view provide support for a contention that the appeal has prospects of success. It is arguable that the learned Chief Industrial Magistrate erred in his assessment of the respective culpabilities of the offenders by failing to furnish adequate reasons for his conclusion that, "considerations of parity" required the imposition of a greater penalty on the appellant. I should emphasise that my view is based on very limited material consisting only of the decision against which it is sought to appeal. 17 The application is granted and the appellant is to pay the respondent's reasonable costs as agreed or assessed. 18 I make the following orders:

2. The applicant is to pay the respondent's reasonable costs as agreed or assessed.

   ---

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.