Inspector Wolf v Rockdale Beef Pty Ltd

Inspector Wolf v Rockdale Beef Pty Ltd - [2005] NSWIRComm 346 - NSWIRComm 2005 case summary — Zoe

[14]

1 Rockdale Beef Pty Limited is the defendant in proceedings brought pursuant to the Occupational Health and Safety Act 2000 and the applicant in a Notice of Motion filed 20 September 2005 in which it seeks a stay of these proceedings. For convenience, Rockdale Beef Pty Limited will be referred to as the defendant. 2 The history of these proceedings is rather complex. It commences with a prosecution initiated on 23 October 2003 in which the prosecutor, Inspector Ross Wolf of the WorkCover Authority of New South Wales, alleged that in 2001 the defendant committed certain offences of the Occupational Health and Safety Act 2000, when a Mr Christopher Poole was injured while working on machinery in a boning room of an abattoir at Yanco. 3 In those proceedings the defendant filed a motion seeking the dismissal of the proceedings on various bases. That motion was determined by Schmidt J on 20 May 2005: see Inspector Wolf v Rockdale Beef Pty Ltd [2005] NSWIRComm 163. Her Honour handed down a further judgment on 27 May 2005: see Inspector Ross Wolf v Rockdale Beef Pty Limited [2005] NSWIRComm 169. As noted in paragraph [2] of her Honour's judgment of 20 May 2005 the grounds on which the defendant's motion advanced related to matters such as the proceedings having been initiated out of time; the order being issued inconsistently with the provisions of ss 30 and 31 of the statute; the prosecutor having failed to put relevant material before the judge issuing the order; that essential elements of the offence had not been provided and that the proceedings constituted an abuse of process (further details of the issues before her Honour and the matters decided by her Honour are provided by the questions referred, which are set out in the next paragraph). 4 On 23 August 2005, after a number of further interlocutory decisions, her Honour referred the following questions of law for decision by a Full Bench of the Court Session pursuant to s 5AE of the Criminal Appeal Act 1912 and s 196 of the Industrial Relations Act 1996 (the annexures are not included): Judgment of 20 May 2005, [2005] NSWIRComm 163

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A COPY OF MY JUDGMENT OF 27 MAY 2005, [2005] NSWIRComm 169 IS ANNEXED AND MARKED "F". 5 Subsequently, in the directions hearing before me on 31 August 2005 these proceedings were set down for hearing before the Full Bench on 8, 9 and 12 December 2005. 6 Shortly before the directions hearing on 31 August 2005 the prosecutor commenced proceedings in Matter Nos IRC 4540 and 4541 of 2005, being respectively an application which purported to be an application to extend time to appeal and appeal from the judgment of Schmidt J given on 20 May 2005 and an application for declaratory relief under s 154 of the Industrial Relations Act 1996. Thus, although procedurally the last two sets of proceedings referred were not formally before the Court at the directions hearing on 31 August 2005, the Court was aware of their filing, as were the parties. No decision has yet been made as to whether the later two applications would be listed for hearing in December 2005 with the questions referred by Schmidt J, although the parties have reached a common position in relation to that issue to which reference will later be made. 7 On 15 September 2005 the defendant commenced proceedings in the Court of Appeal in respect of these matters. In those proceedings a number of orders are sought. These include a declaration that no appeal lies to the Full Bench of this Court from the decision of a single member of the Court Session permanently staying criminal proceedings for abuse of process; a declaration that on the factual material disclosed in the judgment of Schmidt J of 27 May 2005 it was open to her Honour to find that the proceedings were an abuse of process; orders prohibiting the Full Bench from hearing the reference to it made by Schmidt J; an order prohibiting the Full Bench from hearing the application for declaratory relief made on 30 August 2005; an order that the proceedings initiated by Inspector Wolf in 2003 be permanently stayed. 8 Certain alternative orders are sought including an order requiring the Full Bench to remit the proceedings referred by Schmidt J to her Honour to make final orders in accordance with her judgment of 27 May 2005. 9 The grounds set out in the application to the Court of Appeal are numerous. They may however be summarised as follows: (a) no appeal lies from the decision of Schmidt J; (b) the purpose of the procedure under s 5AE of the Criminal Appeal Act and s 196 of the Industrial Relations Act is to provide advice to a first instance judge; (c) the prosecutor elected to proceed with the trial on the charge under s 8 of the Occupational Health and Safety Act after her Honour dismissed the s 10 charge before her. The election cannot be revoked nor has the prosecutor sought to do so; (d) any advice from the Full Bench on the questions posed in paragraphs 1 and 2 of the reference by Schmidt J will not assist her Honour in determining the proceedings before her as the prosecutor elected to proceed with the s 8 charge; (e) in relation to paragraphs 3 and 4 of the reference, the questions posed are not "questions of law arising at or in reference to the proceedings"; rather they are an attempt to challenge the factual basis of her Honour's findings as to the factual basis of the abuse of process; (f) in relation to paragraphs 5 and 6 of the reference the question posed are not "questions of law arising at or in reference to the proceedings"; (g) the only question of law that arises from her Honour's judgment is different to that referred by her Honour. That is a question not pressed by the prosecutor, the prosecutor apparently conceding that the answer to that question would be in the negative; (h) the prosecutor's application for leave to extend time to appeal does not disclose proper reasons for extending time to appeal; (i) the proceedings seeking declaratory relief to traverse the same issues determined by Schmidt J in her judgment of 27 May 2005; they are therefore an abuse of the process in that the effect of the application is an attempt to appeal the decision of her Honour in respect of which no appeal lies; (j) a continuation of the proceedings overall in the Court Session constitutes an abuse of process as the prosecutor did not properly disclose material to the Court initially approaching it, ex parte, to obtain relief; (k) a continuation of the proceedings in the Court Session is an abuse of process as the prosecutor insists upon an alleged right to put no primary financial material before the Court in adducing ownership of the undertaking the subject of the proceedings but instead seeks to secure a conviction on the basis of secondary materials. 10 Subsequently, on 20 September 2005, the defendant sought by notice of motion an order that the hearing of the proceedings concerning the reference by Schmidt J be stayed pending the final determination of its proceedings in the Court of Appeal. The motion also sought that the hearing dates set for this matter before the Full Bench of this Court on 8, 9 and 12 December 2005 be vacated. 11 The defendant's grounds and reasons in support of its motion noted that the reference proceedings were the subject of the current application by the defendant to the Court of Appeal and that: It is desirable for the Court of Appeal proceedings to be determined before the present matter in this Honourable Commission in order to preserve the position of the Applicant/Defendant with respect to the application, or possible application, or s.179 of the Industrial Relations Act 1996 in the event that this Honourable Commission ultimately determines to make final orders disposing of this matter. It is not appropriate, because of the time and convenience of this Honourable Commission and because of the duplication of costs to be borne by both parties, for the present proceedings and the Court of Appeal proceedings to both be heard at or about the same time. 12 The defendant's motion was heard outside court hours on Thursday 22 September 2005. In its submissions, the defendant referred to the fact that it was the agent of a disclosed principal, namely, the Rockdale Beef Partnership and the defendant itself had no assets and was reliant upon the Partnership meeting its expenses. The Partnership was constituted by subsidiaries of Mitsubishi Corporation and Itoham Foods, both of which are major multi-national corporations. 13 The defendant further submitted: The partnership conducts a major abattoir and feedlot operation in the Riverina region of New South Wales. It has conducted this business for several years. The business is substantial and provides meat products, principally to the Japanese market.

[30]

Supervision of the process of all NSW Courts and the satisfaction of the duties of prosecutors in those Courts are functions of the Supreme Court of NSW. Accordingly the matters that are raised as to the duties of a prosecutor in criminal proceedings may ultimately be tested in any event before that Court. 14 The defendant contended that the prosecutor had not formulated a case stated which raised a question of law for the opinion of the Full Bench but rather has sought effectively to appeal her Honour's judgment. Reference was also made to the subsequent applications filed by the prosecutor in respect of which the defendant contended that the Court Session at the Full Bench level had no jurisdiction to entertain an appeal from a decision either directly or indirectly and that it had brought proceedings in the Court of Appeal with a view to having this matter determined. 15 The defendant, however, essentially argued its case for the stay on the basis of the balance of convenience favouring the Court of Appeal proceedings going forward because any decision of the Full Bench would arguably be protected by s 179 of the Industrial Relations Act and, that if the Full Bench were to decide the issue first in time, the successful party would no doubt contend that the aggrieved party is not entitled to have that judgment reviewed by the Court of Appeal. A subsidiary contention in that regard was that the defendant's rights to seek leave to appeal to the High Court were dependent upon there being a judgment of the Court of Appeal. 16 The subsidiary arguments of the defendant seem to relate to the fact that all criminal appeals in New South Wales other than those arising under the Occupational Health and Safety Act are within the cognisance of the Court of Criminal Appeal which is constituted by, inter alios, judges of the Court of Appeal and that issues (or perhaps the kind of issues) to be dealt with in these proceedings have been traversed previously by judges of the Court of Criminal Appeal. The defendant also submits that there is no compelling urgency in the determination of the subject matter of the controversy as the factual situation is "quite discreet". 17 In support of its contentions the defendant referred to the judgment of Spigelman CJ in Solution 6 Holdings Ltd v Industrial Relations Commission of New South Wales (2004) 60 NSWLR 558 at 591 - 595 [2004] NSWCA 200 at [136] to [145] where his Honour referred to the well established principle that the Court of Appeal should exercise restraint with respect to the exercise of its supervisory jurisdiction in relation to the Industrial Relations Commission but added that the line of authority in that respect pre-dated the enactment of s 179 and the extension of protection by that provision to "purported decisions", with his Honour holding [at 145]:

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It is with respect further not accurate to state, as the submissions do, that the satisfaction of the duties of prosecutors in all NSW Courts is a function of the Supreme Court. The Supreme Court does not supervise the prosecutors in the satisfaction of their duties; See Apostilides v The Queen (1984) 154 CLR 563; The application of the authorities concerning the impact of a prosecutor's conduct upon the opportunity for an accused to have a fair trial are well settled and are as available for interpretation and application by the Full Bench or the IRC as they are by the Supreme Court. 21 At the hearing of the motion the defendant was represented by Mr G J Hatcher SC and Mr S L Bell of counsel, the prosecutor by Mr J V Agius SC and Mr P M Skinner of counsel. 22 The starting point of the consideration of the issues in this motion is the manner of conferral of the jurisdiction to hear the proceedings under the Occupational Health and Safety Act which were before Schmidt J and are now listed for hearing before the Full Bench. Since 1987 the more complex proceedings under the Occupational Health and Safety Act have been heard by the Court Session or its predecessors (see Occupational Health and Safety Act 1983 s 47(1) and Occupational Health and Safety Act 2000 s 105). 23 That situation resulted from a considered decision by the legislature in 1987 to transfer the relevant jurisdiction from the Supreme Court to the then Industrial Commission. When the Industrial Court succeeded to the judicial role of the Industrial Commission in 1992 and when the Industrial Court was replaced by the Commission in Court Session in 1996, the power to hear such proceedings remained in this jurisdiction. The mechanism to hear such proceedings under the Industrial Relations Act 1996 was the provision therein of s 168, entitled "Criminal Procedure", which incorporated into the powers and procedure of this Court the provisions of the Supreme Court (Summary Jurisdiction) Act 1967 until 2003 when the reference to that statute was replaced by reference to the Criminal Procedure Act 1986, as recently itself significantly amended. 24 Since 1987 appeals in occupational health and safety matters have also been heard in this jurisdiction rather than in the Court of Criminal Appeal. Since 1996 the relevant statutory provision has been s 196 of the Industrial Relations Act which relevantly provides: 196 Appeals from and references by members of Commission in criminal proceedings (1) This section applies (and the other provisions of this Part do not apply) to appeals and references to the Full Bench of the Commission in Court Session in respect of criminal proceedings taken before a judicial member of the Commission. (2) The Criminal Appeal Act 1912 applies to any such appeal or reference in the same way as it applies to an appeal or reference to the Court of Criminal Appeal in respect of criminal proceedings taken before a Judge of the Supreme Court in its summary jurisdiction. (3) For the purposes of subsection (2), a reference (however expressed) in the Criminal Appeal Act 1912 : (a) to the Court of Criminal Appeal - is taken to be a reference to a Full Bench of the Commission in Court Session, and (b) to the Supreme Court - is taken to be a reference to the Commission in Court Session, and (c) to rules - is taken to be a reference to rules of the Commission, and (d) to the Attorney General - is taken to include a reference to the Minister, and (e) to the Director of Public Prosecutions - is taken to include a reference to the prosecutor in the proceedings before the Commission in Court Session, and (f) to the registrar - is taken to be a reference to the Industrial Registrar. ... 25 Significantly, s 196 incorporated into the powers and procedure of this Court those relevant under the Criminal Appeal Act but specified that the appellate body was the Full Bench of this Court and not the Court of Criminal Appeal. Section 196 also provided that the powers of the Full Bench of this Court were not limited to those involving appeals under the Criminal Appeal Act but also included the power to deal with references under that statute. 26 Section 5AE of the Criminal Appeal Act provides:

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When s 5AE is invoked in this Court it has to be read (because of the effect of s 196(3)) on the basis that it reads: (1) At any time before the completion of proceedings before the Commission in Court Session 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 Full Bench of the Court Session for determination. (2) The Full Bench of the Commission in Court Session may make any such order or give any such direction to the judge concerned as it thinks fit. 27 It is clear that Schmidt J has referred the questions her Honour has pursuant to s 5AE of the Criminal Appeal Act and s 196 of the Industrial Relations Act. Whether the reference lacks validity or utility or what, if any, answers should be given to the questions referred will be dealt with on the dates in December this year unless these proceedings are stayed by this Court or, perhaps, by the Court of Appeal. 28 As noted earlier, the prosecutor relies on the judgment of the Full Bench of this Court in Powercoal (No 2). Although there are some aspects of the circumstances, and thus the reasoning, in that matter which are distinguishable (for example, the lack of timely raising in this jurisdiction of the jurisdictional issues promulgated in the Court of Appeal which is not presently relevant), nevertheless many of the statements of the Full Bench in that case are germane here. 29 In Powercoal (No 2) the applicant for the stay relied on s 179 as a consideration in favour of its application in combination with the circumstance that it had been unsuccessful in a prosecution appeal under s 197A of the Industrial Relations Act which placed it in a "unique situation". It is to be observed that s 179 provides: 179 Finality of decisions (1) Subject to the exercise of a right of appeal to a Full Bench of the Commission conferred by this or any other Act or law, a decision or purported decision of the Commission (however constituted): (a) is final, and (b) may not be appealed against, reviewed, quashed or called in question by any court or tribunal (whether on an issue of fact, law, jurisdiction or otherwise). (2) A judgment or order that, but for this section, might be given or made in order to grant a relief or remedy (whether by order in the nature of prohibition, certiorari or mandamus, by injunction or declaration or otherwise) may not be given or made in relation to a decision or purported decision of the Commission, however constituted. (3) To avoid doubt, this section extends to any decision or purported decision of the Commission, including an award or order of the Commission. 30 What the Full Bench said in (Powercoal (No 2)) concerning the submission based on s 179 included the following: [6] The Occupational Health and Safety Act is an important piece of social legislation. Its purpose is to protect workers from workplace death or injury. It would be contrary to the public interest to create a hiatus for an indeterminate period in the hearing and determination of prosecutions ...

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[10] It appears to us that the true effect of the respondents' submission is to have this Full Bench assist them in creating a legal artifice designed to avoid the operation of s 179 of the Act. That is, the respondents seek the assistance of this Court in legal manoeuvring that is designed to avoid that section having its intended effect. If the respondents wish to challenge the validity of s 179 that is a matter for them. But they cannot reasonably expect this Full Bench to ignore what is the clear legislative intention embodied in the terms of s 179 that a determination of a Full Bench of the Commission is final and not subject to challenge other than in the manner described in Mitchforce v Industrial Relations Commission & Ors (2003) 57 NSWLR 212; 124 IR 79 under the Hickman principle ( R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598). We are entitled, indeed bound, to perform our role as an appellate court on the basis of that understanding of the statutory provision. We are obliged also to pay regard to the public interest in the finality of litigation, which is one of the purposes of s 179. 31 In my view these observations of the Full Bench are equally applicable here. So too are the observations of the Full Bench later in Powercoal (No 2) where their Honours said: [18] We would, however, observe the settled principle that "it is undesirable for criminal prosecutions to be interfered with or interrupted by interlocutory or appellate procedures prior to conviction and sentence": Ridge Consolidated Pty Ltd v WorkCover Authority (NSW) (Inspector Mauger) (2000) 100 IR 156 at [19], cited with approval in Abigroup Contractors Pty Limited and Anor v WorkCover Authority of New South Wales (Inspector Maltby) (2002) 119 IR 319 at [7]. There is a line of authority in the Court of Criminal Appeal to this effect: Rogerson (1990) 45 A Crim R 253 per Gleeson CJ at 254; R v Allen (unreported, Gleeson CJ, Meagher JA, Loveday J, 60412 of 1991, 14 August 1991); Steffan (1993) 30 NSWLR 633 at 642-643; 67 A Crim R 506 at 515; BWM (1997) 91 A Crim R 260 at 267 per Hunt CJ at CL. In Chow v DPP (1992) 28 NSWLR 593 at 599 Kirby P stated: The High Court of Australia and this Court have repeatedly emphasised the undesirability of interference - whether by declaration or otherwise - in the conduct of criminal proceedings. Such interference is reserved to exceptional or special cases: see Sankey v Whitlam (1978) 142 CLR 1 at 22, 23, 24; Barton v The Queen (1980) 147 CLR 75 at 104; Lamb v Moss (1983) 76 FLR 296 at 307-308; 49 ALR 533 at 545; Bacon v Rose [1972] 2 NSWLR 793 at 797; Cain v Glass (No 2) (1985) 3 NSWLR 230 at 235. More than lip service must be given to injunctions of this kind. They are based upon the high public interest in the orderly conduct of criminal proceedings, which include the sentencing of persons convicted following a plea. They rest upon the avoidance of interruption of such proceedings by those who have access to funds and a determination to manipulate criminal prosecutions. The availability of appellate procedures following conviction and sentence and the possibility that many problems disappear, or are resolved, at first instance if only cases are allowed to take their ordinary course provide further reasons to restrain an over-enthusiastic response to interlocutory claims for judicial review of criminal proceedings.

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[19] We acknowledge that the circumstances here are somewhat different to those that attracted the observations in the foregoing series of cases regarding the undesirability of interference in the conduct of criminal proceedings. As senior counsel for the respondents rightly pointed out, there is no appeal from a conviction imposed by a Full Bench of the Commission in Court Session pursuant to s 197A of the Industrial Relations Act . Nonetheless, the broad thrust of the policy stated in those decisions does seem applicable. In any event, the absence of a further appeal reflects the legislature's intent in this area of the law. The fact that there is no further avenue of appeal open to the respondents does not, in our opinion, make for a special circumstance that requires us to exercise our discretion to stay our hand and not proceed to sentencing in order that the respondents may seek prerogative relief, which on the face of the statute is not open to them. 32 In exercising the discretion to grant, or not to grant, the defendant's stay application it is important to recognise that the essential task in many classes of interlocutory applications "comes down to the proposition of doing justice between the parties and ensuring the proper administration of justice" Van Rooy Machinery Pty Limited v WorkCover Authority of New South Wales (Inspector Wolf) (2000) 97 IR 436 at 442 ([33]). However, the discretion must of course be exercised judicially which must involve regard to the relevant statutory context and where appropriate, as in this case, the public interest. The statutory context in this case includes not only s 179 of the Industrial Relations Act but also the conscious decision of Parliament to vest the primary and appellate jurisdiction in respect of occupational health and safety prosecutions in this Court rather than the Supreme Court; a decision which was made almost 20 years ago and affirmed by the legislature on every occasion it has been necessary to revisit the issue since. In addition, as recently as 1996, the legislature made clear that the appellate jurisdiction of this Court in occupational health and safety matters included the hearing of questions of law referred by judges sitting at first instance. 33 Both parties have adverted to their own particular interests which must be balanced in considering the present application. For example, the defendant has referred to the importance of its right to have its arguments heard in the Court of Appeal without the effect of s 179 being brought into play, and the prosecutor has referred to possible prejudice to him, in his role as prosecutor, should the stay be granted. 34 Although the respective interests of the parties must be considered and weighed in proceedings such as the present under the occupational health and safety legislation, what is especially important are public interest considerations which in turn often involve consideration of the proper administration of justice. As to that consideration, the Full Bench in Powercoal (No 2) referred to many of the relevant elements; for example:

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(d) the public interest also rests on the consideration that allowing the proceedings to take their orderly course often results in the issues said to agitate the basis for interlocutory claims for judicial review being resolved, or disappearing. 35 The last element is particularly pertinent here. The issues raised by the defendant, if correct, will be likely to be readily resolved in its favour by the hearing, in the ordinary and orderly course, of the issues raised by the reference of Schmidt J. 36 As noted earlier, no decision has yet been made that the two further proceedings commenced by the prosecutor be heard with the reference in December. The parties have, however, agreed that if the stay application is unsuccessful it would be procedurally convenient and an appropriate use of the Court's time that all of the proceedings be heard at the same time in December this year, that occurring in the context of the defendant's right to argue the unavailability and inappropriateness of the remedies sought in the later two applications. 37 The agreed approach seems sound not only because of its procedural convenience and economic use of court time but because the issues raised by the defendant in respect of those proceedings are likely to be readily resolved in this jurisdiction. For example, if the defendant is correct that no appeal is available in Matter No IRC 4540 of 2005, it is likely that it will succeed on that issue here: Morrison v Joy Manufacturing Co Pty Ltd (2004) 137 IR 8. Similarly, if the defendant is correct in its contention that the declaration sought by the prosecutor in Matter No IRC 4541 of 2005 involves an abuse of process or it is otherwise inappropriate that it be made, it will be likely to be also vindicated in that respect; in that regard the cases relied on by the prosecutor turned on their own particular circumstances and, in the later case, Country Energy v Malone (2005) 138 IR 221, the Full Bench emphasised (at 238) the traditional reticence of superior courts to grant declaratory relief in criminal proceedings. 38 The consequence of accepting the submissions that this Court should in some way assist the defendant in preserving its legal situation notwithstanding the existence and terms of s 179 and that this Court should in some way defer, at this stage, to the Court of Appeal, would be to put at nought, or virtually nought, not only the terms and purpose of s 179 but also the conscious choice of the legislature in enacting s 196 of the Industrial Relations Act and the series of legislation since 1987 which preceded it. 39 To act in this way would involve a clear departure by the judiciary from the will of the legislature as expressed in the words, purpose and intention of the statutory provisions referred to. As such, it may well involve departure from accepted standards of judicial legitimacy, as to which see the paper by Gleeson CJ delivered to the Australian Bar Association Conference in July 2000 entitled "Judicial Legitimacy" (2000) 20 Australian Bar Review 4 (also available at http://www.hcourt.gov.au/speeches/cj/cj_aba_conf.htm). At p 9 of that paper his Honour, in speaking about judicial review of the validity of legislation, said: In particular, [judges] have no right to base their decisions as to the validity of legislation upon their personal approval or disapproval of the policy of the legislation. When they do so, they forfeit their legitimacy. 40 There is an apt analogy to that observation in the present case. To accept the approach of the defendant would be to prefer a subjective view of the desirability of a particular outcome to litigation, or method of dealing with it, over appropriate regard being given to the terms and intention of the legislative scheme. 41 In any event, in dealing with the present stay application, this Court is entitled to act on the basis of the statement by the Chief Justice in Solution 6 at [145] that the Court of Appeal must be slow to intervene before a superior court like this Court has had an opportunity to determine its own jurisdiction. Further, having regard to the important social purposes of the occupational health and safety legislation and the nature of litigation concerning it the situation is plainly stronger in cases such as the present than in cases such as Solution 6. 42 In the circumstances, all that can be said in favour of the defendant's application based on considerations of balance of convenience is that the grant of the stay might preserve its position against the effect of s 179. Against that are the important public interest considerations detailed earlier based upon, inter alia, legislative intent and the proper and orderly conduct of criminal litigation in the field of occupational health and safety. 43 The stay application should be refused. The Court orders accordingly. The costs of the defendant's motion are reserved. ______________

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