Inspector Ross Wolf v Rockdale Beef Pty Ltd

Practice and Procedure - notice of motion - orders sought by defendant to have proceedings permanently stayed or dismissed - refused - costs sought - costs to be dealt with at conclusion of proceedings

CATCHWORDS: Stated Case - section 5AE of the Criminal Appeal Act 1912 - amended Stated Case application - Rule 48 of Commission Rules - leave granted for new questions to be raised - some questions to be referred - others declined

Criminal Appeal Act 1912 Occupational Health and Safety Act 2000 LEGISLATION CITED: Industrial Relations Commission Rules

Inspector Ross Wolf v Rockdale Beef Pty Ltd [2005] NSWIRComm 163 Inspector Ross Wolf v Rockdale Beef Pty Limited [2005] NSWIRComm 169 Inspector Ross Wolf v Rockdale Beef Pty Ltd [2005] NSWIRComm 184 Environmental Protection Agency v Ampol Ltd (1995) 81 LGERA 233 Environment Protection Agency v Goulburn Wool Scour Pty Ltd [2004] NSWCCA 439 CASES CITED: Environment Protection Authority v Land and Environment Court of New South Wales [2004] NSWCA 50 R v Madden (1995) 85 A Crim R 370 R v Porter [20 February 2004] NSWCCA 32 Thomas v The King (1937) 59 CLR 279

PROSECUTOR: Mr PM Skinner of counsel SOLICITORS: Legal Group WorkCover Authority of New South Wales LEGAL REPRESENTATIVES:

DEFENDANT: Mr GJ Hatcher SC with Mr S Bell of counsel SOLICITORS: Terrett Lawyers

• 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

Prosecution under section 8(2) of the Occupational Health and Safety Act 2000

1 On 3 June, I gave judgment (Inspector Ross Wolf v Rockdale Beef Pty Ltd [2005] NSWIRComm 184) in relation to an application made by the prosecutor that I state a case under s 5AE of the Criminal Appeal Act 1912. I there dealt with various difficulties with certain of the questions proposed and the absence of any factual foundation for any of those questions. I refused to state questions 3 and 4; directed that the prosecutor recast questions 5 and 8 and that the facts upon which the questions were to go forward be framed. 2 On 4 July, the defendant filed a motion seeking the following orders: 1. An Order that the hearing of this matter be permanently stayed.

2. An Order that the Respondent/Prosecutor pay all of the costs of the Applicant/Defendant of the proceedings on an indemnity basis, such costs as agreed or assessed to be paid forthwith.

3. An Order that the Respondent/Prosecutor pay the costs of the Applicant/Defendant of this Motion.

4. Such further or other orders as this Honourable Court deems fit. 3 When the matter came on for mention on 21 July, the prosecutor filed an amended state case application. Questions 1 and 2 were recast; questions 3, 4 and 5 were not pressed; question 6 was recast in terms of new question 3; question 8 in terms of new question 5 and two new questions were posed in new questions 6 and 7. Only question 7 (new question 4), remained unaltered. A factual foundation was proposed for the questions. 4 Both the motion and the amended application came on for hearing in August. The defendant argued that the new proposed stated case should be refused; that the proceedings should be permanently stayed or dismissed as an abuse and that it should have an indemnity costs order made in its favour. The prosecutor argued that the Court had no discretion to refuse to state a case, given the terms of the judgment of 3 June and the requirements of s 5AE of the Criminal Appeal Act. It was also argued that the defendant was not entitled to an order for costs on any basis and that in any event, an indemnity costs order would be declined as a matter of discretion. The motion

5 I am satisfied that the stating of a case under s 5AE may not be refused on account of the delay or the approach here complained of, which I will refer to again below. 6 Rule 48 of the Commission's Rules requires that such an application be made within 28 days, unless otherwise ordered. Questions 1 and 2 related to what occurred on 11 May, reasons for which were given on 20 May (Inspector Ross Wolf v Rockdale Beef Pty Ltd [2005] NSWIRComm 163). The application was dealt with on 31 May, well within the period fixed and very closely upon the decision of 27 May (Inspector Ross Wolf v Rockdale Beef Pty Limited [2005] NSWIRComm 169), to which other of the questions raised related. That time frame reflected directions given by the Court, about which the prosecutor made no complaint, having regard to my own commitments and the desirability of not delaying the preparation of the case, having regard to the parties' interests. The recasting of the case by 20 July, in that context, cannot be reasonably criticised in my view, particularly having in mind the undoubted difficulty of properly framing and casting such an application. Even a cursory review of the decided cases upon which each of the parties relied, makes this apparent. 7 Given the conclusions which I have reached in relation to the stating of a case, I am satisfied that there should be no departure from the usual approach, that the question of costs should not be dealt with until the conclusion of the proceedings. Consideration of this aspect of the defendant's motion must accordingly be deferred. The amended stated case

8 The defendant opposed the reference of all questions, submitting that while s 5AE of the Criminal Appeal Act was expressed in mandatory terms, it did not require the Court to refer any question which did not itself comply with the section. Section 5AE provides:

(1) At any time before the completion of proceedings before the Supreme Court in its summary jurisdiction, the Land and Environment Court in its summary jurisdiction or a Court of Coal Mines Regulation in its summary jurisdiction, the judge hearing the proceedings may, or if requested by the Crown must, submit any question of law arising at or in reference to the proceedings to the Court of Criminal Appeal for determination.

(2) The Court of Criminal Appeal may make any such order or give any such direction to the court concerned as it thinks fit. 9 It was argued that responsibility for drafting of the stated case was that of the prosecutor (R v Porter [20 February 2004] NSWCCA 32 at [32] and R v Madden (1995) 85 A Crim R 370 - 371 and 373). There had been delay and repeated attempts made to prepare a draft case stated, with 'a cavalier disregard for common courtesy, let alone the requirements of justice'. 10 It was argued that the final draft case failed to present any question of law 'arising at, or in reference to the proceedings' as s 5AE requires. 11 As Spigelman CJ observed in Porter, in a case like this, while the prosecutor has primary responsibility for drafting a stated case, it is desirable that such proceedings do not go off on technical points and that parties should be encouraged to ensure that legal questions of sufficient particularity are put before the Full Bench, supported I might add for myself, with the necessary factual material. Deficiencies in this respect led the Court of Appeal in Porter to order that the prosecutor bear only half of the respondent's costs, because 'it was desirable, and should have been able of attainment', to have the technical points in question resolved prior to the hearing. 12 To these observations should be added the other obvious comment. Such an approach requires courtesy and co-operation between the legal practitioners involved, as a matter of their duty to the Court, as well as their interests to their respective clients. This should always be borne in mind by all those involved in the proceedings. 13 I note that there was some helpful discussion at the hearing as to the proper framing of a stated case in this instance. For example, it was common ground that part of the factual material which should go forward was the charge in question. The authorities are also divided as to whether a judgment should form a part of the factual material going forward in a stated case. Again, it was common ground between the parties that in this case, were a case to be stated, the judgments in question should go forward as part of the factual material. I agree with the parties as to both of these matters in the circumstances of this case. 14 The importance of these matters cannot be understated. Contrary to what was put by the prosecutor, it is not simply a matter for the parties to raise other material before the Full Bench when the stated case is heard. In Porter, Spigelman CJ observed that the Court of Criminal Appeal could not recast the questions stated and also referred to the High Court's judgment in Thomas v The King (1937) 59 CLR 279 at 286. There it was observed that only the questions stated may be answered and that in answering any question, the Court should not refer to material not set forth in the stated case itself.

Questions 1 and 2 15 I turn then to the questions now pressed. Questions 1 and 2 provide: 1. Is it valid as a matter of law for the prosecution to charge an allegation of an offence pursuant to s 10 of the Occupational Health and Safety Act 2000 in the alternative to a charge pursuant to s 8? A SUMMARY OF MY FINDINGS RELEVANT TO THIS QUESTION IS ANNEXED AND MARKED "A".

2. For a charge alleging an offence against s 10 of the Occupational Health and Safety Act 2000 to be valid must the Application for Order plead any or all of those matters which are referred to in subss 10(3) and s 10(4) of the Act? A SUMMARY OF MY FINDINGS RELEVANT TO THIS QUESTION IS ANNEXED AND MARKED "B". 16 Questions 1 and 2 were in similar terms to the questions initially proposed. Following the approach of the Court of Criminal Appeal in Environment Protection Authority v Land and Environment Court of New South Wales [2004] NSWCA 50, I concluded in the June judgment that as formal orders had not been entered dismissing that part of the proceedings brought under s 10 of the Occupational Health and Safety Act 2000 ('the OHS Act') and because the proceedings in which the charge was dealt with had not yet come to completion, s 5AE permitted the stating of these questions. 17 The defendant however, argued that because the prosecutor had not sought an adjournment to appeal the decision to dismiss the s 10 aspect of the charge, but had proceeded with the hearing of the s 8 charge, it had made an election. Failing a successful appeal, any charge under s 10 was statute barred by s 107 of the OHS Act, which provides: Time for instituting proceedings for offences (1) Proceedings for an offence against this Act or the regulations may be instituted within the period of 2 years after the act or omission alleged to constitute the offence, except as otherwise provided by this section or section 107A. (2) This subsection applies to an offence against section 11 (Duties of designers, manufacturers and suppliers of plant and substances for use at work) or section 86 (Notification of incidents). Proceedings for any such offence may be instituted: (a) within 6 months after WorkCover first becomes aware of the act or omission alleged to constitute the offence, or (b) within 2 years after the act or omission alleged to constitute the offence, whichever provides the longer period to institute proceedings. (3) If a coronial inquest or inquiry is held and it appears from the coroner's report or proceedings at the inquest or inquiry that an offence has been committed against this Act or the regulations (whether or not the offender is identified), proceedings in respect of that offence may be instituted within 2 years after the date the report was made or the inquest or inquiry was concluded. (4) This section applies despite anything in any other Act. 18 It followed that any view of the Full Bench as to whether a charge could be pressed in the alternative under s 8 and s 10, could have no effect on these proceedings. Accordingly, neither questions 1 nor 2 now arose for the purpose of s 5AE, it being clear that the question was sought to be stated, not to assist the judge 'to determine matters of law that arise for determination in the conclusion of the proceedings', but 'rather to challenge her decision on matters of general legal principle'. 19 The prosecutor argued that the defendant was not entitled now to cavil with the judgment already given and that s 5AE was mandatory in its terms and had to be complied with. The asserted discretion did not exist. The questions proposed raised issues of importance for the administration of justice and were pressed. 20 The Court of Criminal Appeal has emphasised in the authorities the necessity in stated cases, of the court below first establishing the facts and then considering the question of law in the light of those facts. This permits the reference of a question of law on a factual foundation. (See Environmental Protection Agency v Ampol Ltd (1995) 81 LGERA 233.) 21 Questions 1 and 2 go to the proper construction of s 10 of the OHS Act, in the particular circumstances here before the Court, namely in the light of the charge in question. I have determined that this aspect of the charge does not accord with the requirements of the section and have concluded that it must accordingly be dismissed. Having dealt with that question, a case must be stated as s 5AE requires, the prosecutor desiring that course and the proceedings not having yet concluded. I am satisfied that the prosecutor's change of the wording of these questions does not alter the conclusion I reached in the June judgment, that these are questions of law, properly to be referred. 22 The judgment of 20 May sets out the charge in question and provides a convenient way of putting the relevant material before the Full Court, together with what the prosecutor proposes in Schedule A and B, although I observe what there appears is largely quotation from the judgment, which is also reflected in the other proposed Schedules.

Did the prosecutor's obligation to conduct a fair trial require the tendering in the prosecution case of all of the evidentiary material provided to it by the defendant and which the defence sought be tendered? 24 It replaced question 6, which I concluded in the June judgment could be referred. In the alternative, the prosecutor pressed the original question 6, which was in these terms:

Was it correct in law to hold that the prosecution had an obligation to tender in its case 'all of the evidentiary material which will provide a fair opportunity for the factual matters in issue between the parties to be determined by the Court'? 25 The prosecutor submitted that the redrafting affected no real change to what was being submitted to the Full Bench. The defendant argued that the new question could not be stated, because it raised no question of law and because it was not founded on any finding reached in the proceedings, the defendant never having advanced the submission inherent in the question. The question was a general enquiry, not cast in sufficiently specific form to enable the Full Bench to give a direct answer. 26 I accept the defendant's submissions. The question was not one which has been dealt with in the proceedings and as framed, is not a question of law which may be stated. 27 I dealt with question 6 in the June judgment, concluding that it was one which might properly be referred. Given what the prosecutor put by way of alternative, I propose to refer that question, together with the material in Schedule C and the judgment of 27 May, as providing the relevant factual foundation.

Was it correct in law to hold in [162] that on the state of the evidence as it was before me it was an abuse of process "in a case where the identity of the proper defendant is at issue" for the prosecutor to "[advance] a case that the existence of the agency is irrelevant to ascertaining whether it is the defendant or the partnership which is the employer; who conducted the undertaking, and at whose place of work the risk to safety arose" and to "[propose] to do no more than raise the issue in evidence and then to call evidence relevant to the case it advances, leaving it to the defendant, if it wishes to advance a defence, to lead evidence which establishes the agency and that the partnership is the employer, conducted the undertaking and at whose place of work the risk arose"? 29 It is in the same terms as the original question 7, which I have already concluded raises a question of law which may be referred. The defendant argued to the contrary, but I do not agree, for reasons already given in the June judgment. The question will be referred.

Question 5 30 The question provides: Was it correct in law to hold in [162] that the defendant (referred to as 'the accused' in my judgment) would be denied a fair trial if it were to continue in the manner as proposed by the prosecution? A SUMMARY OF MY FINDINGS RELEVANT TO THESE QUESTIONS IS ANNEXED AND MARKED "C". 31 The question is essentially unaltered from the wording of question 8, which I concluded in the June judgment required redrafting, given the views of the Court of Criminal Appeal in Environment Protection Agency v Goulburn Wool Scour Pty Ltd [2004] NSWCCA 439 at [27] - [33]. The defendant argued that the question now proposed impermissibly sought to attack the factual findings in the proceedings. A question which asked whether it was open, as a matter of law to find an abuse of process on the facts as found, was a question which could not be asked. 32 In Goulburn, reference was made at [30] to the observations of Hunt CJ at CL in Madden:

The reference by his Honour the Chief Justice to Madden was a reference to another judgment of this Court involving a case stated by the District Court pursuant to s 5B of the Criminal Appeal Act. Hunt CJ at CL (with whom Allen and Dunford JJ agreed), wrote: The question which is posed for this Court's determination is whether the judge's finding that the offence had been proved was erroneous in law. It is not an appropriate question to be asked in a stated case. The procedure provided by s 5B of the Criminal Appeal Act 1912 (NSW) is intended to permit the District Court judge to obtain advice from this Court upon questions of law which will assist that judge in determining the fate of the appeal to that Court pursuant to s 122 of the Justices Act [1902]. The procedure is not intended to provide a means of challenging the ultimate determination made (or to be made) by the judge on that appeal to the District Court, as there is no right of appeal to this Court from that determination. The question asked here is in form no more than an attempt to exercise such a right of appeal. It is for that reason that this Court has said, and often repeated, that it is necessary that the particular question or questions of law upon which advice is to be obtained are specifically stated.

33 Likewise in Porter, Spigelman CJ said at [30], that a question which amounts in substance to an appeal from a determination, rather than proposing a specific legal question, may not be stated. In the June judgment, I said at [27]: "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." This difficulty is not addressed in question 5 and accordingly, it must be concluded that the question is not one which may be stated under s 5AE.

6. Was it correct in law to hold in [99] that the power to issue a notice under s 62 of the Occupational Health and Safety Act 2000 in relation to the offence charged is no longer available once a prosecution has been launched.

7. Was it correct in law to hold in [99] that the power to issue a s 62 notice in relation to the offence charged is no longer available after the limitation period in s 107 of the Occupational Health and Safety Act 2000 has expired?

35 As earlier noted, Rule 48 requires that an application for a stated case be made within 28 days. These questions are new and fall outside that period, but leave to raise them may be granted. 36 The prosecutor explained that they had not originally been raised because the conclusions reached were strictly obiter. It was submitted that the question nevertheless could be referred, because in terms of s 5AE, they were questions of law 'arising at, or in reference to the proceedings' . 37 The defendant argued that the questions sought judicial advice on questions of law, rather than to provide 'specific assistance on a legal question arising in the proper and just determination of these proceedings.' 38 On balance, I have concluded that the questions may be referred. Undoubtedly, as the judgment of 27 May makes clear, the production of the documents sought in the s 62 notice, took a particular course, given the approach adopted by the defendant. Nevertheless, complaints as to pre-trial abuse of process were advanced as part of the basis upon which a permanent stay was sought. This claim rested in part on the basis of the proper construction of the powers granted to Inspectors by s 62 of the OHS Act. I dealt with this at [104] - [105] of the judgment. 39 I do not take the view that it is only questions of law which arise in relation to the final disposal of the case which may be referred under s 5AE. The section refers to such questions 'arising at, or in reference to the proceedings'. These questions so arose and, in my view, must accordingly be referred in the circumstances here arising. Orders

40 For the reasons given, I propose to refer questions 1, 2, 4, 6 and 7. I decline to refer questions 3 and 5. I also propose to refer original question 6 as set out at [24]. The prosecutor is directed to file and serve the final form of the stated case within 7 days, including the factual material on which the questions are referred, in accordance with the terms of this judgment.

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