Kirk Group Holdings Pty Ltd and Anor v WorkCover Authority of New South Wales

Application to extend time to appeal - Appeal - Occupational health and safety - Simultaneous challenges to first instance decision of the Industrial Court pursued in Court of Appeal and Court of Criminal Appeal - Challenges unsuccessful - Applicants subsequently sought to extend time to appeal before Full Bench of Industrial Court - Consideration of appropriate statutory basis as to time for filing the appeal and for granting the extension of time to appeal - Application to appeal well out of time - Court's discretion to grant extension of time - Reason for delay because applicants considered they had a better chance of success in Courts of Appeal than in Industrial Court - No reason of substance why an appeal could not have been brought within prescribed time before Full Bench of Industrial Court - Effect of amendments to s 179 of Industrial Relations Act 1996 - Re-formulation of two alleged errors at first instance by Court of Appeal - To grant an extension of time would not only provide applicants with the benefit of forum shopping but also with added advantage of re-formulation by Court of Appeal of their jurisdictional case - Absolute nature of liability under Occupational Health and Safety Act - Considered that on balance extension of time should be granted in relation to third alleged error that Court at first instance failed to deal properly with the responsibility of individuals whose knowledge and acts could be those of the corporate employer - Extension of time to appeal granted only in respect of third alleged error. CATCHWORDS: Occupational health and safety - Application to extend time to appeal - Appeal - Simultaneous challenges to first instance decision of the Industrial Court pursued in Court of Appeal and Court of Criminal Appeal - Challenges unsuccessful - Applicants subsequently sought to extend time to appeal before Full Bench of Industrial Court - Consideration of appropriate statutory basis as to time for filing the appeal and for granting the extension of time to appeal - Application to appeal well out of time - Court's discretion to grant extension of time - Reason for delay because applicants considered they had a better chance of success in Courts of Appeal than in Industrial Court - No reason of substance why an appeal could not have been brought within prescribed time before Full Bench of Industrial Court - Effect of amendments to s 179 of Industrial Relations Act 1996 - Re-formulation of two alleged errors at first instance by Court of Appeal - To grant an extension of time would not only provide applicants with the benefit of forum shopping but also with added advantage of re-formulation by Court of Appeal of their jurisdictional case - Absolute nature of liability under Occupational Health and Safety Act - Considered that on balance extension of time should be granted in relation to third alleged error that Court at first instance failed to deal properly with the responsibility of individuals whose knowledge and acts could be those of the corporate employer - Extension of time to appeal granted only in respect of third alleged error.

Crimes Act 1900 Criminal Appeal Act 1912 LEGISLATION CITED: Industrial Relations Amendment Act 2005 Occupational Health and Safety Act 1983 Occupational Health and Safety Act 2000 Workplace Relations Act 1996 (Cth)

Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467 Craig v South Australia (1995) 184 CLR 163 Gallo v Dawson (1990) 64 ALJR 458 Inspector Childs v Kirk Group Holdings Pty Limited & Anor (2005) 137 IR 462 CASES CITED: Jess v Scott (1986) 12 FCR 187 Kirk Group Holdings Pty Ltd & Anor v WorkCover Authority of New South Wales & Anor [2006] NSWCA 172 LEP International Pty Ltd v Roger Caine (2000) 97 IR 35 Newcastle Wallsend Coal Co Pty Ltd v Industrial Relations Commission of NSW & Anor [2006] NSWCA 129 Vilenius v Heinegar (1962) 36 ALJR 200 WorkCover Authority of New South Wales (Inspector Childs) v Kirk Group Holdings Pty Limited and Anor (2004) 135 IR 166 WorkCover Authority of NSW (Inspector Salmon) v Parkes Council (1996) 70 IR 298

APPELLANT Mr G Hatcher, SC with Dr C Ward of counsel Solicitor: Mr D Lardner David Lardner Lawyer LEGAL REPRESENTATIVES: RESPONDENT Mr J Agius, SC with Mr P Skinner of counsel Solicitor: Ms R Panagoda WorkCover Authority

KIRK GROUP HOLDINGS PTY LTD AND ANOTHER v WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR BARRY CHILDS)

Application by Kirk Group Holdings Pty Ltd and Graeme Joseph Kirk by notice of motion seeking orders to extend time to appeal against judgments of Justice Walton given on 9 August 2004 and 24 January 2005 in Matter Nos IRC 1730, 1731, 1732 and 1733 of 2003

1 Kirk Group Holdings Pty Ltd and Graeme Joseph Kirk ("the applicants") have moved the Court for orders pursuant to r 42(1) of the Industrial Relations Commission Rules 1996 to extend time to appeal two judgments of Walton J, Vice President given on 9 August 2004 and 24 January 2005 in Matter Nos IRC 1730, 1731, 1732 and 1733 of 2003: WorkCover Authority of New South Wales (Inspector Childs) v Kirk Group Holdings Pty Limited and Anor (2004) 135 IR 166; Inspector Childs v Kirk Group Holdings Pty Limited & Anor (2005) 137 IR 462. 2 In the first of those judgments his Honour found proven charges that had been laid by Inspector Barry Childs of the WorkCover Authority of New South Wales against Kirk Group Holdings Pty Ltd under s 15(1) and s 16(1) of the Occupational Health and Safety Act 1983. Mr Kirk was also prosecuted under s 50(1) of that Act for deemed contraventions of s 15(1) and s 16(1) of the Act and again his Honour found the offences proven. The prosecutions arose out of an incident on 28 March 2001 when Graeme Palmer, who was the manager of a farm owned by Kirk Group Holdings Pty Ltd at Razorback Mountain near Picton, was killed when a vehicle known as a Polaris All Terrain Vehicle overturned whilst Mr Palmer was navigating a steep slope with a load of steel pipes, intended for fencing work. 3 In his second judgment Walton J made the following orders: I make the following orders: (1) in Matter No IRC 1730 of 2003, the defendant, Kirk Group Holdings Pty Limited, is fined an amount of $58,000, with a moiety thereof to the prosecutor; (2) in Matter No IRC 1731 of 2003, the defendant, Graeme Joseph Kirk, is fined an amount of $6,500, with a moiety thereof to the prosecutor; (3) in Matter No IRC 1732 of 2003, the defendant, Kirk Group Holdings Pty Limited, is fined an amount of $52,000, with a moiety thereof to the prosecutor; (4) in Matter No IRC 1733 of 2003, the defendant, Graeme Joseph Kirk, is fined an amount of $4,500, with a moiety thereof to the prosecutor; (5) the defendants shall pay the prosecutor's costs as agreed or in default as assessed. 4 The notice of motion seeking an extension of time to appeal was filed on 10 July 2006 - almost two years after the first judgment on liability and 18 months after the judgment on penalty. The reason for the long time lag was the decision by the applicants on the motion to initiate proceedings in other Courts rather than pursue what might be regarded as the conventional course of appealing to the Full Bench of the Industrial Court. 5 On 14 February 2005, the applicants on the motion sought to institute appeals against conviction and sentence in the Court of Criminal Appeal, pursuant to s 5(1) of the Criminal Appeal Act 1912. Additionally, on 22 February 2005, the applicants commenced proceedings in the Court of Appeal (as claimants) seeking orders in the nature of certiorari and prohibition, the primary purpose being to set aside the judgments of Walton J. However, in their written submissions in the Court of Appeal, the applicants also sought to have the Court order an inquiry into their convictions, pursuant to s 474D (in Part 13A) of the Crimes Act 1900. 6 There were five issues for determination in the Court of Appeal and Court of Criminal Appeal (to which, for convenience, we shall refer to collectively as "the Court of Appeal"): (1) whether an appeal from the Industrial Court can be brought to the Court of Criminal Appeal;

(2) whether s 179 of the Industrial Relations Act 1996 is invalid;

(3) whether the privative clause (s 179) operated in relation to proceedings in the criminal jurisdiction of the Industrial Court;

(4) whether the Appellants can make an application for an inquiry pursuant to Part 13A of the Crimes Act 1900;

(5) whether the Court of Appeal can and should exercise its supervisory jurisdiction over the Industrial Court. 7 In relation to the first issue, the appeal was dismissed. As to the second issue, the Court of Appeal held that the constitutional validity of s179 should not be determined as the matter could properly be disposed of on other, non-constitutional, grounds. As to the third issue, it was held that it was not appropriate to read down s 179 of the Industrial Relations Act so that it applied only to industrial matters or to civil as opposed to criminal proceedings. In relation to the fourth issue, it was held, inter alia, that an inquiry under s 474D was an "entirely inappropriate mechanism" for challenging the general body of jurisprudence as applied to a particular case. The Court held that the discretion not to order an inquiry should be exercised. As to the final issue, it was held that the Court of Appeal should not exercise its supervisory jurisdiction until the Full Bench of the Industrial Court has either decided the issue of jurisdiction or refused leave to appeal from such a decision: see Kirk Group Holdings Pty Ltd & Anor v WorkCover Authority of New South Wales & Anor [2006] NSWCA 172, a judgment given on 30 June 2006.

8 As the applicants correctly submitted, their lack of success in the Court of Appeal was not on the basis of findings against them as to the substantive matters of challenge, but rather the availability and propriety of the matters being pressed before that Court when the Full Court of the Industrial Court of New South Wales had not considered them. This was the thrust of the respondent's submission before the Court of Appeal, namely, that as the applicants still had an ability to go to the Full Bench of the Industrial Court by way of an appeal, relief ought to be refused in the exercise of discretion. Senior counsel for the respondent submitted before the Court of Appeal that to do otherwise, would "encourage forum shopping and … lead to the risk of the establishment of two separate bodies of jurisprudence, which we submit is not in the interests of justice".

9 In relation to the inquiry into conviction under Pt 13A of the Crimes Act Spigelman CJ noted that the applicants had identified four errors before the Court of Criminal Appeal, which his Honour described in the following terms: (i) The Industrial Court, in accordance with its established approach to these matters, interpreted the duty in s15 and s16 of the OH&S Act in such a way as to make it impossible to comply with those sections.

(ii) In applying the s53 defence, the Court interpreted the section, in accordance with its usual approach, in a way that denies the natural meaning of the words of the section and impermissibly made reference to the specific incident.

(iii) The Court dealt inappropriately with issues of corporate responsibility by failing to determine that the company had in fact fulfilled its duty through Mr Palmer who, rather than Mr Kirk, had been chosen by the company to fulfil the duty.

(iv) By reason of the above three errors, the Court erred in applying the law to the facts of the case. 10 In relation to (i) and (ii) above, the Chief Justice considered that an inquiry under s 474D was "an entirely inappropriate mechanism for challenging a general body of jurisprudence as applied to a particular case": [23]. As to (iii) and (iv) his Honour stated at [24]-[25]: 24 The proposition identified in (iii) and, insofar as it is linked to that paragraph, also the proposition identified in (iv), is particular to the circumstances of this case. This submission raises a specific finding of fact as to who constituted the corporate mind of the company at the relevant time. The Appellant does not challenge the jurisprudence in the Industrial Court concerning the non-delegable nature of the duty imposed on the company. Nevertheless, it submits that a company can only act through human agency and the relevant human agency in this case was Mr Palmer not, as his Honour found, Mr Kirk.

25 This is an appeal point concerning the circumstances of the case which is perfectly capable of being raised before a Full Bench of the Industrial Court on an appeal. It is true, by reason of the institution of the proceedings in this Court, that the time for lodging an appeal in the Industrial Court has expired, subject to the leave of the Full Bench. However, no such leave has been sought. 11 The Chief Justice concluded in relation to the proposed inquiry (Beazley JA agreeing at [52]): 26 This Court should not intervene by ordering an inquiry in the present case on such grounds before any appeal. This is particularly so because the Full Bench of the Commission may constitute the Court of Criminal Appeal for purposes of Pt 13A with respect to the OH&S Act although, as noted above, this matter cannot be decided in this case.

27 In my opinion, the Court should exercise its discretion against ordering any inquiry with respect to this ground.

12 Basten JA dealt at [140]-[141] with the applicants' submission that the Court should not defer the application for an inquiry pursuant to s 474D or refuse it, on the basis of the appeal to the Full Bench, because, given its earlier jurisprudence, that appeal was unlikely to result in the conviction being overturned. At [141] his Honour stated: 141 Without more, that consideration would not justify this Court taking steps which would render nugatory the statutory appeal process. The additional consideration, which led the Court to intervene in matters such as Solution 6 , namely the unavailability of any form of review once the Commission had finally determined the matter, is no longer engaged, because s 179 does not extend to review of a jurisdictional challenge to a decision of the Full Bench: see s 179(4). If it should be thought that a further inquiry would be justified after the Full Bench has dealt with the appeal before it, a further application may be available, based on any appropriate considerations which may then remain. The present application should be refused. 13 Spigelman CJ formulated what his Honour saw as the possible jurisdictional errors raised by the applicants at [38]-[39] of the judgment. At [48] his Honour stated: 48 Furthermore, this Court has not had detailed submissions on the difficult question of determining whether any of the Appellant's complaints involve jurisdictional error. The Court was not even referred to Craig . The submission that each alleged defect was jurisdictional did not rise much above mere assertion. A matter such as this, involving the relationship between this Court and the Industrial Court, should not, as a matter of comity, be determined without full argument.

14 His Honour concluded in relation to these matters that it was not appropriate for the Court of Appeal to deal with them because it remained open to the Full Bench to consider an appeal in the present proceedings: 49 The only submission that is entitled to consideration in favour of the exercise of the jurisdiction is the proposition advanced by the Appellant that it would be futile to await the decision of the Full Bench. The decision of Walton J is based on a series of propositions that have been well established in prior Full Bench decisions of the Court. Indeed, the very decision presently under consideration has been quoted in subsequent Full Bench decisions with approval. (See, e.g. Morrison v Powercoal Pty Ltd (2004) 137 IR 253 at [133]-[137]; Workcover Authority of New South Wales (Inspector Downey) v Menzies Property Services Pty Limited (2004) 136 IR 449 at [155]-[156].)

50 Nevertheless, a number of the matters put to this Court appear to differ, or at least were expressed in somewhat different terms, from the submissions expressly considered by the Full Bench in its case law . I am not satisfied that it would be futile to allow the Full Bench to consider an appeal in the present proceedings. 15 At [150]-[156] Basten JA considered the applicants' submissions regarding the Industrial Court's jurisprudence and whether the Court of Appeal should intervene in circumstances where there was a statutory right of appeal (by leave, his Honour considered) to the Full Bench of the Industrial Court, which had not been pursued. At [155]-[156] his Honour held: 155 Against this approach, the claimants' argued that an appeal to the Full Bench would be unlikely to succeed, because there was an established line of authority in that Court, including authority relying upon the decision of the judicial member in the present proceedings at first instance. However, this argument is unpersuasive. If the Full Bench were to commit a jurisdictional error, which should not be assumed for the reasons noted by the Chief Justice at [48] above, its decision will be reviewable. If it did not, it would, at worst, merely err within jurisdiction. Again such error should not be assumed, but in any event prohibition would not lie to prevent such error. It was not argued that this Court should intervene if the errors in the judgment below were non-jurisdictional.

156 For these reasons, and those given by the Chief Justice at [46]-[50], the supervisory jurisdiction of this Court has not been appropriately invoked. 16 Beazley JA concurred with the reasons of Basten JA on this point: [52]. Submissions of the parties 17 The thrust of the applicants' submission on the extension issue was that they had a legitimate case to take to the Court of Appeal and to press that case notwithstanding the legislative change brought about by the Industrial Relations Amendment Act 2005. Whilst it had to be accepted by them that an appeal was open to the Full Bench of the Industrial Court, the applicants considered that the weight of precedent against their jurisdictional case in the Court's occupational health and safety jurisdiction was such that it was unlikely their case would find favour in the Industrial Court. 18 Moreover, the applicants' lack of success in the Court of Appeal was not on the basis of findings against them as to the substantive matters of appeal, but rather the availability and propriety of the matters being pressed before those Courts when the Full Bench of the Industrial Court had not considered them. 19 It was also contended for the applicants that it was questionable whether they needed an extension of time. It was noted that the Criminal Appeal Act requires that a notice of intention to appeal be filed within the statutory period. In this case such a notice was filed in the Registry of the Court of Criminal Appeal, which is what is required under the Criminal Appeal Act. It was submitted that the notice of intention to appeal, which was served on the Industrial Court as a respondent to the proceedings in the Court of Criminal Appeal, should be accepted as sufficient to meet any notice of appeal requirement under the Criminal Appeal Act. 20 The respondent strongly resisted the application for an extension of time to appeal. Its submissions may be summarised as follows: (1) The notice of intention to appeal filed in the Court of Criminal Appeal is no substitute for the process and procedure necessary to initiate an appeal in the Industrial Court. (2) The applicants have not offered any explanation for the failure to file the appeal within time. (3) The history of the matters militates against the granting of leave. (4) The applicants had a right to appeal their convictions under the Industrial Relations Act . They made a conscious decision not to exercise their appeal rights to the Industrial Court but instead commenced proceedings in the Court of Appeal and the Court of Criminal Appeal. (5) After the commencement of the Industrial Relations Amendment Act 2005 (the Act commenced on 9 December 2005), in which it became apparent that the applicants would be required to seek relief in the Full Court of the Industrial Court before approaching the Court of Appeal in respect of any jurisdictional error, the applicants did not seek leave to withdraw the proceedings before the Court of Appeal but pursued them. (6) The applicants made a calculated choice to go to the Court of Appeal. The applicants argued before the Court of Appeal that an appeal to the Full Bench was unlikely to succeed because there was an established line of authority in the Industrial Court contrary to their submissions. (7) The appeals to the Court of Appeal and to the Court of Criminal Appeal were unfounded. Firstly, it was clear that the effect of the Industrial Relations Amendment Act 2005, was that the Court of Appeal would not exercise its supervisory jurisdiction until the Full Bench of the Industrial Court had either decided the issue of jurisdiction or refused leave to appeal such a decision. Secondly, the claims by the applicants did not raise jurisdictional error but merely alleged that the court erred within jurisdiction. (8) Further, and in the alternative, if there was a valid ground for seeking relief in the Court of Appeal in respect of the decisions made by Walton J then an avenue of appeal to the Full Bench of the Industrial Court was always available on the same basis as that which was thought to be available in the Court of Appeal. The same submission can be made about the purported appeal to the Court of Criminal Appeal. (9) To permit an extension of time in this case can only encourage forum shopping. (10) The prospects of a successful appeal are extremely poor. So much was acknowledged by the applicants in their cases before the Court of Appeal and Court of Criminal Appeal. Indeed, the applicants relied upon their poor prospects of appeal as a reason why the Court of Appeal ought to grant prerogative relief. (11) The applicants have not sought to appeal against the severity of penalty. There are no proposed grounds in this regard. Time ought not be extended to permit an appeal against the severity of the penalty. (12) The applicants have not demonstrated an adequate reason for the granting of the stay. Consideration 21 The applicants rely on r 42 of the Commission's Rules, which provides: 42 Time to appeal (1) Unless otherwise provided, an appeal must be made within 21 days after the date of the decision appealed against (or such further time as the Commission allows, before or after the expiration of that period). (2) An application to extend time to appeal may be included in the notice of appeal or may be made by separate notice of motion.

22 Section 189 of the Industrial Relations Act, which is in Ch 4 Pt 7, is in the following terms: 189 Time and procedure for making appeals (1) An appeal to a Full Bench of the Commission under this Part must be made within 21 days after the date of the decision appealed against or within such further time as the Full Bench or the Commission constituted by a Presidential Member allows. (2) Further time may be allowed, either before or after the end of that 21-day period. 23 In LEP International Pty Ltd v Roger Caine (2000) 97 IR 35, Wright J, President had occasion to consider whether a notice of appeal had been filed in time. At [17] his Honour observed: 17 In the decision I delivered last week in New South Wales Teachers' Federation v New South Wales Office of the Board of Studies [2000] NSWIRComm 1 at 9 and following, I held that the "drafter" of r 42 did not appear to appreciate that the relevant time for lodging an appeal was specified in s 189 of the Act. Upon an analysis of those provisions, I concluded that the time for lodging an appeal was laid down by s 189 and not r 42 and that, in particular, r 42(1) had no relevant practical effect. Nothing has been put to me in these proceedings which has persuaded me that that view was incorrect. Accordingly, I proceed on the basis that the provision which I need to consider in the present proceedings is s 189 and r 42 has no present relevance. 24 We consider his Honour was correct and r 42(1) had no relevant practical effect in relation to an appeal to which s 189 applies. In these proceedings however, neither s 189 nor s 42(1) has any application by virtue of s 196(1) of the Industrial Relations Act, which is also found in Ch 4 Pt 7 and applies the relevant provisions of the Criminal Appeal Act. It is convenient to set out s 196 in full: 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. (4) Subsection (2) does not apply to any provision of the Criminal Appeal Act 1912 relating to costs. 25 Section 10 of the Criminal Appeal Act provides: 10 Method and time for making appeal (1) The following provisions apply to an appeal, or application for leave to appeal, under this Act against a person's conviction or sentence: (a) The person is required to give the court, in accordance with the rules of court, notice of intention to appeal, or notice of intention to apply for leave to appeal, within 28 days after the conviction or sentence. (b) The court may, at any time, extend the time within which the notice under paragraph (a) is required to be given to the court or, if the rules of court so permit, dispense with the requirement for such a notice. (c) The appeal, or application for leave to appeal, is to be made in accordance with the rules of court, which may include: (i) provision with respect to any statement of grounds of appeal, transcripts, exhibits or other documents or things to accompany the appeal or application, and (ii) provision with respect to the timely institution and prosecution of the appeal or application, and (iii) provision with respect to the period during which the notice under paragraph (a) has effect. (2) For the purposes of any other Act or statutory instrument (whether enacted or made before or after the commencement of this subsection): (a) the period provided for making or lodging an appeal or notice of appeal to the court against a conviction or sentence is taken to be the period for giving the court notice of intention to appeal or notice of intention to apply for leave to appeal, or

(b) an appeal against a conviction or sentence is taken to be pending in the court if notice of intention to appeal or apply for leave to appeal has been duly given to the court (unless the appeal or application has not been made within any time it is required to be made by the rules of court). 26 On the assumption that the proposed appeal is pursuant to s 5AA of the Criminal Appeal Act (and, therefore, does not require leave) it would appear that s 10(1) of the Criminal Appeal Act is applicable to the issue of the time for filing the appeal and an extension of time to appeal. There was no debate on this point.

27 However, apart from the applicants' contentions regarding the notice of intention to appeal in the Court of Criminal Appeal being available to initiate an appeal before the Industrial Court, there was no issue about the applicants being well out of time. We do not accept that the notice filed by the applicants in respect of the appeal to the Court of Criminal Appeal may be regarded as an appropriate substitute for initiating appeal proceedings in this Court. The applicants' appeal to the Court of Criminal Appeal was dismissed and any notice of intention to appeal cannot be revived and sought to be used for initiating a separate appeal in an entirely different jurisdiction. We are surprised that such a contention was put as a serious submission. 28 In any event, whether or not this Full Bench should grant an extension of time to the applicants is a matter entirely within the Court's discretion. However, whilst the discretion to extend time is a broad one in this case, the discretion is given for the sole reason of enabling the court to do justice between the parties which means that the discretion will usually only be exercised in favour of an applicant upon proof that strict compliance with the relevant provision will work an injustice upon the applicant: Gallo v Dawson (1990) 64 ALJR 458 at 459; 93 ALR 479 at 480; WorkCover Authority of NSW (Inspector Salmon) v Parkes Council (1996) 70 IR 298 at 299-301. In order to determine whether the relevant provision will work an injustice, it is necessary to have regard to the conduct of the parties, the nature of the litigation and the consequences for the parties of the grant or refusal of the application for extension of time: Gallo v Dawson per McHugh J citing Avery v No 2 Public Service Appeal Board [1978] 2 NZLR 86 at 92; and Jess v Scott (1986) 12 FCR 187 at 194-5; 70 ALR 185.

29 The reason for the delay is very apparent: the applicants considered their chances of overturning the convictions and sentences were significantly better in the Court of Appeal than before the Full Bench of this Court. The reason they took that view was obviously because their legal advisers considered the weight of precedent in this Court's occupational health and safety jurisdiction was decidedly against the applicants' case. Having taken a deliberate decision to pursue relief through the Court of Appeal and having failed in that regard, should leave now be granted by this Full Bench to allow the applicants to appeal the judgments at first instance in this Court given the extensive delay, the applicants having plainly engaged in forum-shopping? 30 The respondent contended that such leave should not be granted. It was submitted that once s 179 of the Industrial Relations Act was amended by the Industrial Relations Amendment Act 2005 in December 2005, it should have been apparent to the applicants that maintaining proceedings in the Court of Appeal was, in effect, a futility. We note that process was filed in the Court of Appeal in February 2005 and was heard in May 2006. It was also submitted by the respondent that an avenue of appeal to the Full Bench of the Industrial Court was always available on the same basis as that which was thought to be available in the Court of Appeal and that the same submission could be made about the purported appeal to the Court of Criminal Appeal. 31 It is undoubtedly the case that the matters that were the subject of the applicants' challenges in the Court of Appeal were all matters capable of being the subject of an appeal before the Full Bench of the Industrial Court. Moreover, in the proceedings before the Court of Appeal, Spigelman CJ was "not satisfied that it would be futile to allow the Full Bench to consider an appeal in the present proceedings" ([50]). 32 Accordingly, there was no reason of substance why an appeal could not have been brought, within the prescribed time, before a Full Bench of this Court under the combined operation of s 5AA of the Criminal Appeal Act 1912 and s 196 of the Industrial Relations Act 1996. Nevertheless, it could not be said that at the time the applicants initiated proceedings in the Court of Appeal in February 2005 that it was not open to them to do so having regard to the existing jurisprudence in the Court of Appeal at the time and the fact that the amending Act had not yet become law. 33 In December 2005, the privative clause in s 179 of the Industrial Relations Act was amended. The purported effect of the amendments to s 179 was explained in the second reading speech: The Court of Appeal's decisions in Mitchforce and Solution 6 have created the potential for additional, more drawn-out and more expensive litigation. The bill seeks to remedy this situation in two ways. Firstly, it removes the protection of purported decisions of the Commission in Court Session from the privative clause. This allows for review of decisions that are claimed to be outside the Commission in Court Session's jurisdiction, and so should cause the Court of Appeal to reinstate the doctrine of restraint, and to refrain from accepting very early applications before the commission has had an opportunity to consider jurisdiction. Secondly, the bill makes clear that there will be no access to the Court of Appeal under any circumstances until the processes of the commission, including appeal, are complete. 34 The amended s 179 is in the following terms: 179 Finality of decisions (1) A decision of the Commission (however constituted) is final and may not be appealed against, reviewed, quashed or called into question by any court or tribunal. (2) Proceedings of the Commission (however constituted) may not be prevented from being brought, prevented from being continued, terminated or called into question by any court or tribunal. (3) This section extends to proceedings brought in a court or tribunal in respect of a decision or proceedings of the Commission on an issue of fact or law. (4) This section extends to proceedings brought in a court or tribunal in respect of a purported decision of the Commission on an issue of the jurisdiction of the Commission, but does not extend to any such purported decision of: (a) the Full Bench of the Commission in Court Session, or

(b) the Commission in Court Session if the Full Bench refuses to give leave to appeal the decision. (5) This section extends to proceedings brought in a court or tribunal for any relief or remedy, whether by order in the nature of prohibition, certiorari or mandamus, by injunction or declaration or otherwise. (6) This section is 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. (7) In this section: decision includes any award or order. 35 The practical effect of the amendment is that in respect of a "purported decision… on an issue of jurisdiction" the Court of Appeal is precluded from exercising its supervisory jurisdiction until the Full Bench of the Industrial Relations Commission (including the Court) has either decided the issue of jurisdiction or refused leave to appeal from such a decision. The latter situation, as to refusal of leave to appeal, is applicable to proceedings where leave to appeal is required. Section 188 of the Industrial Relations Act which imposes the leave requirement, applies to appeals under, for example, s 187 and s 197 but not to the provision (s 196) which is the appeal provision relevant to the applicant's present application. In any event, the present application is not in any sense an application for leave but rather an application for an extension of time in which to commence appeal proceedings. Section 179(4)(b) therefore has no relevance to these proceedings. 36 Returning to the December 2005 amendments, ordinarily the applicants should have accepted they had no choice but to discontinue the proceedings once the amendments came into effect on 9 December 2005: see, for example, Newcastle Wallsend Coal Co Pty Ltd v Industrial Relations Commission of NSW & Anor [2006] NSWCA 129. However, as Basten JA noted at [82] in the Kirk Group judgment in the Court of Appeal, in order to avoid the prospect of their challenge being short-circuited because of the provisions of s 179, the applicants argued that the privative clause had no operation in relation to proceedings in the criminal jurisdiction of the Industrial Court, or, if it purported to have such an effect, it was constitutionally invalid. 37 As to whether it was a maintainable decision on the part of the applicants, notwithstanding the amendments to s 179, to continue to press for the intervention of the Court of Appeal in its supervisory jurisdiction because of the potential involvement of constitutional issues, we note what Basten JA stated in Newcastle Wallsend Coal Co Pty Ltd v Industrial Relations Commission of NSW & Anor at [40] (Mason P agreeing, Tobias JA dissenting): Further, because it is a well-established principle that constitutional issues should not be addressed in circumstances where a case may be determined on other issues, an application to have this Court intervene because there were constitutional issues potentially involved would itself not have enjoyed reasonable prospects of success: see the classic statement in Peters v Hobby 349 US 331 (1955) at 338 and at 349 (Black J); in the course of argument Frankfurter told counsel: "The question is not whether you want to win the case on that ground or not. This Court reaches constitutional issues last, not first": 23 US Law Week 265-66 (1955), quoted by Henry J. Abraham, The Judicial Process (6th ed, 1993) p 364. In the High Court, see recent comments to similar effect: R v Hughes (2000) 202 CLR 535 at [66] (Kirby J) and Re Minister for Immigration and Multicultural Affairs; Ex parte Te (2002) 212 CLR 162 at [135] (Gummow J). In this Court, see, eg, John Holland Group Pty Ltd v Industrial Relations Court of NSW [2006] NSWCA 93 at [10] (Spigelman CJ) (our emphasis). 38 It was clearly not necessary for the applicants to rely on their challenge to the constitutional validity of s 179 in order to challenge the correctness of the decisions at first instance regarding conviction and sentence. To emphasise this point, as Basten JA observed at [91]-[92], the first limb of the applicants' contentions regarding the constitutional invalidity of s 179 (inconsistency with the operation of s 73(ii) of the Constitution) were not persuasive and whilst touched upon in argument, it was not the subject of detailed written or oral submissions by the applicants. As to the second limb (inconsistency with provisions of Workplace Relations Act 1996 (Cth)), his Honour considered that it might "readily be concluded that this ground of challenge to validity is without substance" ([95]). 39 On one view of it, the applicants' attack on s 179 (an attack formulated in the applicants' written submissions prior to the amendment in December 2005), weak as it appears to have been, was merely a device to circumvent the likelihood of the Court of Appeal declining to hear the applicants from the outset. 40 However, whether that is so or not, the reasons proffered by the applicants for the delay in seeking to prosecute an appeal before the Full Bench of the Industrial Court really only amount to the proposition that the applicants felt they had a better chance in another forum.

41 Whilst it may be accepted that it was open to the applicants in February 2005 to choose to pursue their relief through the Court of Appeal rather than via an appeal to the Full Bench of the Industrial Court, the applicants made a calculated, informed choice in that respect and having failed in their endeavour to achieve relief in the Court of Appeal it is difficult to see why they should be provided with an opportunity to re-run the whole of their argument in another place. 42 The respondent, after all, has a vested right to retain the fruits of the judgments the subject of the appeal: Vilenius v Heinegar (1962) 36 ALJR 200 at 201; Gallo v Dawson (1990) 64 ALJR 458 at 459; 93 ALR 479 at 480. In circumstances where the respondent has been put to the task of defending proceedings in the Court of Appeal, the applicants plainly have no automatic right to appeal to this Court well out of time. Indeed it might be said that it is unreasonable and unfair to require the respondent to defend all of the same issues before this Court because the applicants made the wrong choice in selecting the forum for litigating their claims. 43 What is more, on any objective view of the choices facing the applicants following the amendments to s 179 in December 2005, the applicants should have opted to discontinue the proceedings in the Court of Appeal and at that stage made the application to extend time. At least at that time the applicants were most likely to have had a more reasonable case for an extension of time to be granted. 44 As we earlier noted, the Court of Appeal referred to four errors that the Court considered had been identified by the applicants: (i) The Industrial Court, in accordance with its established approach to these matters, interpreted the duty in s15 and s16 of the OH&S Act in such a way as to make it impossible to comply with those sections.

(ii) In applying the s53 defence, the Court interpreted the section, in accordance with its usual approach, in a way that denies the natural meaning of the words of the section and impermissibly made reference to the specific incident.

(iii) The Court dealt inappropriately with issues of corporate responsibility by failing to determine that the company had in fact fulfilled its duty through Mr Palmer who, rather than Mr Kirk, had been chosen by the company to fulfil the duty.

(iv) By reason of the above three errors, the Court erred in applying the law to the facts of the case. 45 The first two of these alleged errors were significantly re-formulated by the Court of Appeal. After referring to Craig v South Australia (1995) 184 CLR 163 esp at 177-179 as the authoritative statement of Australian law as to when a court, that is subject to supervision by a court of general jurisdiction, commits a jurisdictional error, it was stated at [38]-[39] (emphasis supplied): 38 A number of the matters argued in the submissions on behalf of the Appellant may give rise to jurisdictional questions. The relevant part of the test in Craig is whether the Industrial Court "misapprehends or disregards the nature or limits of its functions or powers" ( Craig at 177), or misconstrues the statute and "thereby misconstrues the nature of the functions which it is performing or the extent of its powers in the circumstances of a particular case". ( Craig at 177-178.) 39 Matters of this character are possibly raised in a number of the submissions put before this Court by the Appellant: (i) The Industrial Court has failed to apply High Court authority on the proper approach to interpreting legislation which is both remedial and creates criminal offences. ( Waugh v Kippen (1986) 160 CLR 156 esp at 164-165.) (ii) The Industrial Court has converted the strict liability offences created by s15 and s16 of the OH&S Act into offences of absolute liability and has fundamentally misconstrued the mens rea element by not allowing a defence of mistake of fact.

(iii) The Industrial Court has fundamentally misconstrued s15 and s16 of the OH&S Act by assuming that it is possible to create a work environment that is entirely risk free, with the effect that the provisions are impossible of compliance.

As to (ii) see Proudman v Dayman (1941) 67 CLR 536 at 540; He Kaw Teh v The Queen (1985) 157 CLR 523 at 572-573; Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467 at 469-570; and see Brambles Holdings Ltd v Carey (1976) 15 SASR 270; and re the s53 defence, see Hickling v Laneyrie (1991) 21 NSWLR 730.

Neither Craig nor Waugh v Kippen were referred to by the applicants in their arguments in the Court of Appeal (see, for example, para [48] of the Court of Appeal judgment). 46 At [48] of the Court of Appeal's judgment it was said: 48 Furthermore, this Court has not had detailed submissions on the difficult question of determining whether any of the Appellant's complaints involve jurisdictional error. The Court was not even referred to Craig . The submission that each alleged defect was jurisdictional did not rise much above mere assertion. A matter such as this, involving the relationship between this Court and the Industrial Court, should not, as a matter of comity, be determined without full argument. (emphasis supplied) 47 We understand that it is the reformulated jurisdictional questions that the applicants now wish to pursue before the Full Bench. We are quite unable to see why the applicants, having put submissions to the Court of Appeal that "did not rise much above mere assertion" in relation to the jurisdictional nature of the alleged errors, should now be provided with a further opportunity in the Industrial Court to pursue those matters on the basis of a reformulation of their case by the Court of Appeal. To do so would not only provide the applicants with the benefit of their forum shopping but also with the added advantage of a re-formulation by the Court of Appeal of their jurisdictional case. We do not consider it would be in the interests of doing justice between the parties, or in the interest of the orderly conduct of proceedings before this Court, to grant an extension of time for the applicants to appeal in relation to the reformulated jurisdictional issues. To grant an extension would be to provide the applicants with an indulgence that they have not shown is merited; an indulgence because it would involve providing to the applicants an advantage resulting from their forum shopping. We therefore consider there is no basis shown by the applicants why they should be granted an extension of time to appeal on these issues. 48 In any event, what the applicants seek to challenge is a body of jurisprudence that has accumulated in the Court's occupational health and safety jurisdiction over the past 20 years, and which was relied upon by Walton J in his decision-making. Much of that jurisprudence would seem to be settled, having been the subject of Full Bench consideration on more than one occasion over the years. 49 The absolute nature of the liability under s 15(1) and s 16(1) of the 1983 Act has been the basis upon which this Court and its predecessors have acted since at least 1985 following the decision of Watson J in Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467. Further, the 1983 Act was subject to an extensive review and following wide-ranging consultation with stakeholders the legislature enacted the Occupational Health and Safety Act 2000. Nothing in the 2000 Act changes the longstanding jurisprudence regarding absolute liability or the nature of the statutory defences that are available. One would expect that if absolute liability under the statute had not been the legislature's intention or if the legislature considered the nature of the liability and/or the defences ought be changed, the introduction of the 2000 Act would have provided an opportunity to effect the change. No change was made. 50 These circumstances provide a further basis to refuse the present application in respect of what we have earlier described as the reformulated jurisdictional issues. It would be a significant step for the Industrial Court and, indeed, the Court of Appeal with respect, to overturn in proceedings with the history of this litigation, the jurisprudence relating to liability and defences in circumstances when it is longstanding and manifestly consistent with Parliament's intention. Further, these considerations do not augur well for the applicants' chances of success as they themselves acknowledged in their contentions before the Court of Appeal. 51 In contrast to those reformulated issues, there is the third alleged error identified by the Court of Appeal (the fourth alleged error was merely a catch-all): (iii) The Court dealt inappropriately with issues of corporate responsibility by failing to determine that the company had in fact fulfilled its duty through Mr Palmer who, rather than Mr Kirk, had been chosen by the company to fulfil the duty. 52 In respect of this alleged error, Spigelman CJ stated at [24]-[25]: 24 The proposition identified in (iii) and, insofar as it is linked to that paragraph, also the proposition identified in (iv), is particular to the circumstances of this case. This submission raises a specific finding of fact as to who constituted the corporate mind of the company at the relevant time. The Appellant does not challenge the jurisprudence in the Industrial Court concerning the non-delegable nature of the duty imposed on the company. Nevertheless, it submits that a company can only act through human agency and the relevant human agency in this case was Mr Palmer not, as his Honour found, Mr Kirk. 25 This is an appeal point concerning the circumstances of the case which is perfectly capable of being raised before a Full Bench of the Industrial Court on an appeal. It is true, by reason of the institution of the proceedings in this Court, that the time for lodging an appeal in the Industrial Court has expired, subject to the leave of the Full Bench. However, no such leave has been sought. 53 Basten JA dealt with this point at para [148] of his judgment: [148] It was further and separately submitted that the Industrial Court had failed to deal properly with the responsibility of individuals whose knowledge and acts could be those of the corporate employer. Although the Company was controlled by Mr Kirk, Mr Kirk had no relevant experience in farming and Mr Palmer had been employed as the manager, having the relevant expertise and experience to conduct the farming operation on the land. Accordingly, it was argued that if the employer were to take steps to protect its employees, the person responsible for carrying out that function on behalf of the employer was Mr Palmer and not Mr Kirk. Thus, it was argued that if Mr Palmer drove the ATV in an inherently dangerous manner, he being the person responsible for establishing safe systems of work, the employer could not be held criminally responsible if he (Mr Palmer) failed to take proper care for his own safety. 54 Unlike the other alleged errors, the third alleged error was a matter consistently pressed as being of great importance to the applicants, both in the Court of Appeal and before this Full Bench. It is thus an issue of quite a different character to the reformulated jurisdictional issues. 55 It nevertheless remains a matter of very fine balance whether we should grant the extension in relation to the third alleged error. We consider, however, justice would be served if we were to grant an extension of time to appeal this alleged error. As we should in the exercise of the discretion on an application to grant an extension of time, we have considered the prospect of success of the proposed appeal. We have concluded only that such an appeal would not necessarily be futile. Accordingly, we propose to extend the time for the applicants to appeal the third alleged error. 56 There was some debate during the proceedings as to the terms upon which any extension of time to appeal might be granted. We determine that the terms of the grant of the extension of time to appeal should be: (a) that the respective applicants shall each within 14 days file and serve a written undertaking to diligently prosecute the appeal; (b) that they shall each pay into the Industrial Registry within 21 days half of the amount of each of the fines imposed by Walton J; that is, the amount of $5,500 in the case of Mr Kirk and $55,000 in the case of Kirk Group Holdings Pty Ltd; and (c) the extension of time granted will be revoked in the event that these terms are not complied with. Orders 57 The Full Bench makes the following orders: (1) Subject to Orders (2), (3), (4), (5) and (6) hereof, leave is granted to the applicants to extend the time to appeal the decisions and orders of Walton J, Vice President referred to in [1] of this judgment. (2) An amended Notice of Appeal shall be filed and served within 14 days of the date of this judgment. (3) The grounds of appeal in that Notice of Appeal shall be limited to the alleged error identified by Spigelman CJ at [22] (and numbered (iii)) and at [24] of the judgment of the Court of Appeal in Kirk Group Holdings Pty Ltd & Anor v WorkCover Authority of New South Wales & Anor [2006] NSWCA 172, the judgment given on 30 June 2006. (4) The applicants shall each within 14 days file and serve a written undertaking to diligently prosecute the appeal. (5) Graeme Joseph Kirk shall pay into the Industrial Registry within 21 days half of the amount of each of the fines imposed by Walton J in Matter No IRC 1731 of 2003 and Matter No IRC 1733 of 2003, being a total amount of $5,500. (6) Kirk Group Holdings Pty Ltd shall pay into the Industrial Registry within 21 days half of the amount of each of the fines imposed by Walton J in Matter No IRC 1730 of 2003 and Matter No IRC 1732 of 2003, being a total amount of $55,000. (7) The extension of time granted will be revoked in the event that orders (2), (3), (4), (5) and (6) are not complied with within the times specified. (8) Costs are reserved. ___________

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