Inspector Ross Wolf v Rockdale Beef Pty Ltd

Inspector Ross Wolf v Rockdale Beef Pty Ltd - [2005] NSWIRComm 184 - NSWIRComm 1999 case summary — Zoe

[13]

1 On 27 May, I gave judgment in this matter, concluding that the proceedings must be permanently stayed, as the continued trial would involve an abuse of process, which justice could not permit (Inspector Ross Wolf v Rockdale Beef Pty Limited [2005] NSWIRComm 169). Earlier judgments had been given in relation to other matters - Inspector Ross Wolf v Rockdale Beef Pty Limited and Others [2004] NSWIRComm 244, Inspector Ross Wolf v Rockdale Beef Pty Limited [2005] NSWIRComm 163, Inspector Ross Wolf v Rockdale Beef Pty Limited [2005] NSWIRComm 171. 2 I deferred making orders, so that the prosecution could consider whether it wished to ask the Court to state a case pursuant to s5AE of the Criminal Appeal Act 1912, which applies to these proceedings by virtue of s196 of the Industrial Relations Act 1996. 3 There was no opposition to that course by the defendant. It has now, however, argued that the questions which the prosecutor seeks to have referred raise no questions of law and/or are not available to be referred, given the limits of s5AE, which is not available to be utilised as an alternative to an appeal. This submission flowed from the decision of the Full Court in Morrison v Joy Manufacturing Co Pty Ltd (2004) 137 IR 8, where it was held at [68] that: We find that the Commission in Court Session does not have jurisdiction under the combined operation of s 196 of the Industrial Relations Act and s 5F of the Criminal Appeal Act to hear and determine this appeal against an interlocutory judgment or order made in proceedings to which s 168 of the Industrial Relations Act applies. Further, for reasons we have given, the judgment and order of Marks J is not susceptible to appeal under the combined operation of s 196 of the Industrial Relations Act and s 5C of the Criminal Appeal Act . 4 It was argued that s5AE could not now be used in this Court, to circumvent the legislature, which had not acted on the express invitation of the Court in Joy Manufacturing, at [69], to revisit the statutory scheme of appeals in connection with prosecutions brought under the Occupational Health and Safety Act 2000 ('the Act'). 5 The questions sought to be stated were: Judgment of 20 May 2005, [2005] NSWIRComm 163

[28]

11 In Morrison v Peacock; Morrison v Roslyndale Shipping Co Pty Ltd (Unreported, Pearlman J, Land and Environment Court, 10 and 12 December 1999, 1 March 2000), Pearlman J took the view that questions there proposed by a prosecutor for statement under s5AE of the Criminal Appeal Act were correctly framed and that it was appropriate in that case to append the judgment to the questions 'as setting out the facts upon which the questions are founded'. Her Honour reached that conclusion in the face of a view expressed by Gleeson CJ in State Pollution Control Commission v Aerosols of Australia Pty Ltd (Unreported, 13 November 1991, Court of Criminal Appeal) at 4 - 5, that a stated case should contain a statement of the findings of fact in a summary form and that it 'was normally inappropriate for the stated case to have annexed to it, the reasons for judgment of the judge.' 12 Gleeson CJ described the approach there adopted to the stated case at p2, as involving the annexure of the whole of the transcript and the reasons for judgment, with four questions raised. His Honour regarded this approach as containing fundamental difficulties and observed: A case stated should on its face, and within its own terms, identify the issues of law submitted for determination and set out the findings of fact necessary for a resolution of those issues. On occasions, stated cases also contain matter designed to indicate how it is that the question of law referred to came to arise. 13 The Court consequently declined to deal with the case as not properly identifying and submitting any question of law. The matter was remitted to the Land and Environment Court 'where a decision may be taken as to whether it is desired to attempt to reform the case stated.' 14 In Environment Protection Authority v Land and Environment Court of New South Wales [2004] NSWCA 50, the Court of Appeal was dealing with a case sought to be stated under s5AE of the Criminal Appeal Act in circumstances where the primary judge had announced that he was satisfied that the charge of polluting had been defeated, by the statutory defence having been made out. The judge declined to state a case, even though formal orders had not been made, accepting the defendant's argument that the proceedings had been completed and there was no longer jurisdiction to state a case. The Court of Appeal concluded that until formal orders were made, the proceedings were not complete and that it was appropriate for the prosecution to wait until it was aware that a question of law was going to be decided against it, before stating a case. This was so even though there had been a hearing on the merits in the case and all that was necessary before the proceedings were concluded, was for final orders to be made. 15 It follows from these authorities and the concessions made by the defendant, that, in accordance with s5AE of the Criminal Appeal Act, questions of law 'arising at or in reference to the proceedings' may be stated at this point, the proceedings not having been concluded by formal order. The questions must be properly framed and must have a factual basis provided in the stated case. The process does not involve an appeal from the decisions which I have reached and it is thus not appropriate that the case go forward, as the prosecution suggested, with a number of questions referred and an 'application book', later to be provided.

[32]

Questions 5 to 8 22 The defendant conceded that question 6 concerned a question of law, but it was argued, not one arising in the proceedings, because the prosecutor had not argued the correctness of the law to be applied in the circumstances. All that was in issue was the application of binding precedent to the facts here before the Court. 23 I am unable to accept that submission. While I took the view that there were various relevant authorities, binding upon the Court in relation to the obligations which the prosecutor had in the proceedings, at issue between the parties was both what those obligations were; whether the prosecutor had adhered to them and proposed to adhere to them and lastly, whether, given those obligations, the prosecutor's approach involved an abuse of process, which would warrant a permanent stay of the proceedings. 24 A prosecutor's obligations in proceedings such as this, plainly involves questions of law. Question 6 raises that question. Whether a prosecutor may leave to a defendant, the leading of evidence as to agency, in a case where identity of the employer, who conducted the undertaking and at whose place of work a risk arose, are in issue, also raises a question of law; the question going, as it does, to the prosecutor's obligations in proceedings brought under the Act. Question 7 raises that question. 25 Whether a case where a prosecutor proceeds inconsistently with such obligations involves an abuse of process, namely by denying a defendant a fair trial, also appears to raise a question of law. Question 8 appears to raise that question, at least in part. 26 In Goulburn Wool Scour, however, the Court of Criminal Appeal discussed the importance of the way in which a question of law is phrased at [27] - [33]. The legal issue sought to be agitated must be identified with particularity in the question posed. A question such as whether the judge's finding that the offence had been proved was erroneous in law may not be asked in a stated case (Madden). It seems to me that likewise, a question as to whether the judge's finding that abuse of process had been proved was erroneous in law, may also not be asked in a stated case. 27 It follows that the application of a question of law to the particular facts of the case, is a matter which may not be raised by way of stated case, particularly given the absence of a right of appeal in this statutory scheme. Question 8 therefore needs to be refined, inappropriately raising as it does at present, the application of the law to the facts of this case. Question 5 appears to suffer from a similar difficulty.

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