KIRK GROUP HOLDINGS PTY LTD & ANOR v WORKCOVER AUTHORITY OF NEW SOUTH WALES... [2006] NSWCA 172 | Case summary

KIRK GROUP HOLDINGS PTY LTD & ANOR v WORKCOVER AUTHORITY OF NEW SOUTH WALES... [2006] NSWCA 172 | Case summary | Zoe

[7]

Anisminic Limited v Foreign Compensation Commission [1969] 2 AC 147 Application of Pearson (1999) 46 NSWLR 148 Attorney General (NSW) v Dawes [1976] 1 NSWLR 242 Batterham v QSR Limited [2006] HCA 23 Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501 Brambles Holdings Ltd v Carey (1976) 15 SASR 270 Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467 Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 Craig v South Australia (1995) 184 CLR 163 Darling Casino Limited v New South Wales Casino Control Authority (1997) 191 CLR 602 Director of Public Prosecutions v Cassell (1995) 80 A Crim R 160 Drake Personnel Ltd v WorkCover Authority (NSW) (1999) 90 IR 432 Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318 Fish v Solution 6 Holdings Ltd [2006] HCA 22 He Kaw Teh v The Queen (1985) 157 CLR 523 Hickling v Laneyrie (1991) 21 NSWLR 730 John Holland Group Pty Ltd v Industrial Relations Court of New South Wales [2006] NSWCA 93 Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 McDonald (t/as BE McDonald Transport) v Girkaid Pty Ltd [2004] NSWCA 297; [2004] Aust Torts Rep 81-768 Mitchforce Pty Limited v Industrial Relations Commission of New South Wales (2003) 57 NSWLR 212 Morrison v Powercoal Pty Ltd (2004) 137 IR 253 Newcastle Wallsend Coal Co Pty Ltd v Industrial Relations Commission of NSW & Anor [2006] NSWCA 129 O'Toole v Charles David Pty Ltd (1991) 171 CLR 232 Ove Arup Pty Ltd & Ors v Industrial Court of NSW & Anor [2006] NSWCA 28 Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 CASES CITED: Powercoal Pty Ltd v Industrial Relations Commission [2005] NSWCA 345; 156 A Crim R 269 Proudman v Dayman (1941) 67 CLR 536 Public Service Association (SA) v Federated Clerks Union of Australia (1991) 173 CLR 132 R v Badger (1856) 6 EL & BL 138; 119 ER 816 R v Doyle (2001) 123 A Crim R 151 R v Dunphy; Ex parte Maynes (1978) 139 CLR 482 R v Gray; Ex parte Marsh (1985) 157 CLR 351 R v Hull University Visitor; Ex parte Page [1993] AC 682 R v Willesden Justices; Ex parte Utley [1948] 1 KB 397 Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 Said v Judges of the District Court of New South Wales (1996) 39 NSWLR 47 Sheen v Fields Pty Ltd (1984) 58 ALJR 93 Solution 6 Holdings Ltd v Industrial Relations Commission of New South Wales (2004) 60 NSWLR 558 South East Asia Fire Bricks Sdn Bhd v Non-Metallic Mineral Products Manufacturing Employees Union [1981] AC 363 The Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 Uniting Church in Australia Property Trust (NSW) v Industrial Relations Commission (2004) 60 NSWLR 602 Varley v Attorney General (NSW) (1987) 8 NSWLR 30 Waugh v Kippen (1986) 160 CLR 156 White v The King (1906) 4 CLR 152 Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707 WorkCover Authority of New South Wales v Atco Controls Pty Ltd (1998) 82 IR 80 WorkCover Authority of New South Wales (Inspector Keelty) v State of New South Wales (No. 2) (2001) 104 IR 268 WorkCover Authority of New South Wales (Inspector Mulder) v Arbor Products International (Australia) Pty Ltd (2001) 105 IR 81 WorkCover Authority (NSW) v Cleary Bros (Bombo) Pty Ltd (2001) 110 IR 182 WorkCover Authority of New South Wales v Coffey Engineering Pty Ltd (No. 2) (2001) 110 IR 447 WorkCover Authority of New South Wales v Fletcher Constructions Australia Ltd (2002) 123 IR 121 Workcover Authority of New South Wales (Inspector Downey) v Menzies Property Services Pty Limited (2004) 136 IR 449

[18]

Kirk Group Holdings Pty Ltd and Mr Kirk appealed against the decisions of the Industrial Court which found charges against them under ss15, 16 & 50 of the Occupational Health and Safety Act 1983 (NSW) ("OH&S Act") proved. The charges relate to the death of Mr Palmer, manager of the farm owned by the Company. Mr Palmer died when the All Terrain Vehicle he was driving overturned while he was navigating a steep slope with a load of steel pipes. The Industrial Court found that the Appellants failed to ensure the health, safety and welfare of Mr Palmer. The Appellants sought to appeal against this decision in both the Court of Appeal and the Criminal Court of Appeal. The proceedings were listed together and heard by a bench separately constituted as both courts. The issues for the determination by the appellate courts involved: (i) whether an appeal from the Industrial Court can be brought to the Court of Criminal Appeal; (ii) whether s179 of the Industrial Relations Act 1996 (NSW) is invalid; (iii) whether the privative clause (s179) operated in relation to proceedings in the criminal jurisdiction of the Industrial Court; (iv) whether the Appellants can make an application for an inquiry pursuant to Part 13A of the Crimes Act 1900 (NSW); (v) whether the Court of Appeal can and should exercise its supervisory jurisdiction over the Industrial Court. Held in relation to (i) Per Basten JA (Spigelman CJ & Beazley JA agreeing): The appeal to the Criminal Court of Appeal should be dismissed.

Section 256 of the Criminal Procedure Act 1986, which replaced s28B of the Supreme Court (Summary Jurisdiction) Act 1977 (NSW,) rendered a conviction under the relevant part of the Criminal Procedure Act a "conviction on indictment" for the purpose of the Criminal Appeal Act 1912: at [73]. However it does not apply to the proceedings: at [79]
In accordance with the old s28B of the Summary Jurisdiction Act, the conviction is not a "conviction on indictment" for the purposes of the Criminal Appeal Act, hence s5(1) of the Criminal Appeal Act is not engaged: [79].
Even if s256 of the Criminal Procedure Act had application in the present case, s196(2) of the Industrial Relations Act will be engaged, the proceedings still being taken in summary jurisdiction and s196(3) will render the reference in s5(1) to the Court of Criminal Appeal, a reference to the Full Bench of the Industrial Court: at [126]. Held in relation to (ii) Per Basten JA (Spigelman CJ & Beazley JA agreeing): The constitutional validity of s179 of the Industrial Relations Act should not be determined in this case as it can be properly disposed of on other, non-constitutional, grounds: [91], [95]. Newcastle Wallsend Coal Co Pty Ltd v Industrial Relations Commission of NSW & Anor [2006] NSWCA 129, applied. Held in relation to (iii): Per Basten JA (Spigelman CJ & Beazley JA agreeing):
It is not appropriate to read down s179 of the Industrial Relations so that it applies only to industrial matters or to civil as opposed to criminal proceedings: at [85].
If s179 is valid, which need not be determined in this case, the claimants cannot avoid the operation of s179 in seeking to invoke the jurisdiction of the Court of Appeal with respect to their convictions and sentences: at [85]. Held in relation to (iv) Per Spigelman CJ (Beazley JA agreeing & Basten JA agreeing to points 1 and 3):
The steps to be undertaken under s474E(1) of the Crimes Act do not constitute of themselves "calling into decision" the decisions or proceedings in the Court: [16]. The finding of an 'appearance' of a "doubt or question as to the convicted person's guilt" has the same quality as finding that something is arguable, rather than "deciding the point": [18] Batterham v QSR Limited [2006] HCA 23, applied.
As a preliminary view, the Supreme Court does have jurisdiction to make an order under s474E of the Crimes Act with respect to convictions in the Industrial Court under the OH & S Act: [21].
However an inquiry under s474D is an entirely inappropriate mechanism for challenging the general body of jurisprudence as applied to a particular case. The discretion not to order an inquiry should be exercised: at [23]. Per Basten JA: Because the relief sought is a referral to the Court of Criminal Appeal for that Court to exercise its powers to quash or set aside the convictions, the Appellants seek to "review" or "call into question" their convictions, a course precluded by s.179 of valid: at [134] - [137]. Held in relation to (v): Per Spigelman CJ (Beazley JA & Basten JA agreeing):
The deletion of the words "purported decision" from s179(1) and the failure to include an equivalent in s179(2) was deliberate and made for the purpose of restoring the Court of Appeal's supervisory jurisdiction over the Industrial Court: at [31], [33]. Mitchforce Pty Ltd v Industrial Relations Commission of New South Wales (2003) 57 NSWLR 212; Solution 6 Holdings Ltd v Industrial Relations Commission of New South Wales (2004) 60 NSWLR 558; Batterham v QSR Limited [2006] HCA 23, considered.
With respect to "purported decision… on an issue of jurisdiction", this Court 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: [34], [46]. Per Basten JA:
In cases where jurisdictional error is asserted, the Court will be slow to intervene, and generally speaking should not intervene, where the question of jurisdiction has not been considered by the Court below. The reluctance of a Court exercising supervisory jurisdiction to intervene is greater since the Industrial Court was established by the Industrial Relations Act as a "superior court of record": at [151].
Section 179(4) does not preclude a challenge in respect of "a purported decision of the Commission on an issue of the jurisdiction of the Commission" where the decision is that of the Full bench. Accordingly, the need to intervene prior to a determination by the Full Bench, because its decision would be protected from any form of review, no longer exists and the Court should apply the principles of constraint: [154]. Solution 6 Holdings Ltd v Industrial Relations Commission (NSW) (2004) 60 NSWLR 558; The Queen v Australian Stevedoring Industry Board; Ex Parte Melbourne Stevedoring Co Pty Ltd (9153) 88 CLR 100, distinguished. John Holland Group Pty Ltd v Industrial Relations Court of NSW [2006] NSWCA 93; Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501; Fish v Solution 6 Holdings [2006] HCA 22, applied.

[23]

(iii) As Pt 13A of the Crimes Act inserted by the Crimes Legislation (Review of Convictions) Amendment Act 1993. 6 The new Pt 13A followed a detailed review of the former provision by the Criminal Law Review Division of the Attorney General's Department which published an Issues Paper: Review of Section 475 of the Crimes Act 1900, Sydney, November 1992. 7 The history of the legislation is outlined by Heydon J in Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318 at [64]-[75].) It is noteworthy that the original scheme in both the 1883 and 1900 Acts preceded the adoption of a system of appeals in criminal cases by the Criminal Appeal Act 1912. 8 With respect to s474D, which the Appellant invokes in the present proceedings, it is quite clear that this is remedial legislation designed to overcome the injustices that sometimes arise in the course of the administration of criminal justice. Whatever else may be said about s179 of the Industrial Relations Act, it cannot be characterised as beneficial or remedial legislation. 9 In White v The King (1906) 4 CLR 152 at 165 O'Connor J, in a case involving s475 of the 1900 Act, said, referring back to the 1883 Act: "Before that law was enacted, it was impossible, except by way of special case, to have a public inquiry upon oath into the circumstances attending a conviction. It was the custom, as is well known, for the Crown to obtain information by means of ministerial inquiries. But these were not on oath, and were not public. The object of the new provision was to enable the case to be re-opened where no point had been reserved at the trial, but some facts had come to the notice of the Government indicating that the prisoner might have been improperly convicted, and also to enable the Crown, where the prisoner's sentence had been served, and he appeared to have been unjustly convicted, to give him the opportunity of having his character cleared by a public proceeding." 10 To similar effect were the observations of Hope JA in Varley supra at 46: "The principal mischief to which the provision was directed seems clear enough. Both in 1883 and in 1900, there was no way in which any doubt or question concerning a conviction or a resulting sentence could be effectively investigated. The Crown could arrange for an inquiry to be held, but there was no statutory basis for doing so, there could be no public inquiry, evidence could not be given on oath, and persons could not be compelled to provide information. No doubt since it was established the appellate system has been able to handle many of these problems, but subject to the operation of an appellate system the Crown might be faced with a possible injustice to a convicted person which it could not deal with satisfactorily, and there would be no effective means available to the convicted person to seek to have his name cleared." 11 The beneficial purpose of this legislative scheme was affirmed by the High Court in Eastman supra at [60], [64]-[75]. See also R v Doyle (2001) 123 A Crim R 151. 12 Upon an application under s474D(1), or on its own motion pursuant to s474E(1), the Supreme Court may either direct that an inquiry be conducted or refer the case to the Court of Criminal Appeal "to be dealt with as an appeal under the Criminal Appeal Act 1912". However, an order of either character can only be taken, relevantly: "… if it appears that there is a doubt or question as to the convicted person's guilt". 13 The terminology of "doubt or question" closely aligns with part of the prohibition in s179 that a decision or proceedings may not be "called into question by any court". Indeed, in Application of Pearson (1999) 46 NSWLR 148 at [59] and [63], Wood CJ at CL expressed support for the proposition that the purpose of an application under s474D "is to 'call in question' the relevant decision" for purposes of s3 of the Judiciary Act 1903 (Cth). 14 I agree with Basten JA that it is not appropriate to read down the word "decision" in s179 so that it does not to refer to decisions made in the exercise of the criminal jurisdiction of the Industrial Court. The issue of whether or not s179 otherwise applies may raise different questions with respect to the two powers conferred by s474E(1), i.e. directing an inquiry or referring the case to the Court of Criminal Appeal. In Pearson, Wood CJ at CL treated the two paragraphs separately for constitutional purposes. 15 With respect to the power to direct an inquiry, s474H requires a report to be prepared and empowers a person directed to conduct the inquiry to refer the matter to the Court of Criminal Appeal "for consideration of the question of whether the conviction should be quashed", when the person has formed an opinion "that there is reasonable doubt as to the guilt of the convicted person". It is relevant to note that, even in the case of a report ordered by the Court, not one initiated by the Governor, the Supreme Court may send a report to the Governor pursuant to s474H, no doubt with a view to invoking the Crown prerogative of mercy. Accordingly, reference to the Court of Criminal Appeal is not the only end result of an inquiry. 16 Notwithstanding the fact that, by force of s474E(2), it is a pre-condition to the exercise of either of the powers in s474E(1) that the Court find an appearance of a "doubt or question" as to guilt, the three steps for which s474E(1) provides, namely: (i) A preliminary consideration pursuant to the chapeau of the subsection,

[24]

(iii) A reference to the Court of Criminal Appeal, do not, in my opinion, constitute of themselves "calling into question" the decision or proceedings in the Court. 17 In Batterham v QSR Limited [2006] HCA 23, the High Court considered s179 in its previous form. In that case Peterson J in the Industrial Commission, as the Court was then known, had determined that the proceedings had not been shown to be beyond jurisdiction. The High Court rejected the contention that the application to this Court for an order in the nature of prohibition 'called in question' the decision of Peterson J. Their Honours said: "[28] … Peterson J did not decide that the proceedings were or were not within the Commission's jurisdiction. The only decision made was that the proceedings instituted in the Commission had not been shown to be unarguably beyond jurisdiction. There is a real and radical difference between deciding that a point is arguable and deciding the point. All that Peterson J decided was the former. To hold, as the Court of Appeal did, that some, but not all, of the claims made in the proceedings were beyond jurisdiction did not question the decision of Peterson J or the reasoning that supported it." 18 By analogy, in this case, there is a "real and radical difference" between calling in question, relevantly, the convictions and sentences by Walton J on the one hand, and each of the three decisions, set out in [15] above, made pursuant to s474E. The finding of an 'appearance' of a "doubt or question as to the convicted person's guilt" has the same quality as a finding that something is arguable, rather than "deciding the point", to use the terminology of the High Court in Batterham. 19 For present purposes it is not pertinent to determine whether or not a reference to the Court of Criminal Appeal either pursuant to s474E(1)(b) or s474H(2) would be futile if the Court were unable to actually quash a conviction. As noted above, an alternative route by reference to the Governor is available following an inquiry. 20 It may be that conducting an appeal pursuant to a reference under s474E(1)(b), or considering the question of whether the conviction should be quashed or a sentence reviewed pursuant to s474H(2), gives rise to a similar distinction as that made in the joint judgment in Batterham which I have quoted above. In any event, it may be the case that the Full Court of the Industrial Court constitutes the Court of Criminal Appeal within s474E(1)(b) and s474H(2), by force of s196 of the Industrial Relations Act 1996. (Note s474L.) The Court did not receive submissions on this matter and it is unnecessary to decide it. 21 I am of the preliminary view that the Supreme Court does have jurisdiction to make an order under s474E of the Crimes Act with respect to convictions in the Industrial Court under the OH&S Act. However, it is not necessary to finally determine this point. 22 In order to apply Div 3 of Pt 13A, it is essential to consider the particular allegations of error in the specific case. The Appellant has identified four errors which can be 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.

[27]

(iv) By reason of the above three errors, the Court erred in applying the law to the facts of the case. 23 The submissions identified as (i) and (ii) in the immediately preceding paragraph hereof are a challenge to the jurisprudence of the Industrial Court. In my opinion, an inquiry under s474D is an entirely inappropriate mechanism for challenging a general body of jurisprudence as applied to a particular case. Part 13A is concerned with a miscarriage of justice particular to the circumstances of the individual case. On any view, I would exercise the discretion in the opening clause of s474E(3) to refuse to deal with the application. In any event, with respect to the balance of s474E(3), in the present case, there was a right of appeal within s474E(3)(iii) and there are no "special facts or special circumstances" within s474E(3)(b). On this alternative basis I would also exercise the discretion not to order an inquiry. 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. 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.

[28]

The Supervisory Jurisdiction 28 Basten JA sets out s179 of the Act in its form after the 2005 Amendment Act. Before that Act the section expressly extended the scope of the protection to "a decision or purported decision of the Commission". This Court held that the section was effective, subject to the Hickman principle, to prevent this Court exercising a supervisory jurisdiction with respect to decisions affected by jurisdictional error. (See Mitchforce Pty Limited v Industrial Relations Commission of New South Wales [2003] NSWCA 151; 57 NSWLR 212 esp at [62]-[65], [70], [92], [205], [207].) 29 Subsequently, this Court held that s179 did not apply to proceedings brought in advance of a decision by the Industrial Relations Commission and that this Court, by reason of the change in the scope of protection by the extension of s179 to a "purported decision", should modify its prior practice of exercising restraint before intervening in proceedings before the Commission. (See Solution 6 Holdings Ltd v Industrial Relations Commission of New South Wales [2004] NSWCA 200; 60 NSWLR 558 esp at [102]-[103], [136]-[145]. Appeal dismissed Fish v Solution 6 Holdings Ltd [2006] HCA 22.) 30 The distinction between a "decision" and a "purported decision", was based on earlier such references in High Court authority. See e.g. O'Toole v Charles David Pty Ltd (1991) 171 CLR 232 at 285, 286 and 287 referring to "purported awards"; Public Service Association (SA) v Federated Clerks Union of Australia (1991) 173 CLR 132 at 143 referring to "a purported exercise of jurisdiction"; Darling Casino Limited v New South Wales Casino Control Authority (1997) 191 CLR 602 at 635 which emphasised that: "The phrase is not under or purporting to be under this Act". 31 The High Court has now determined that the reference to "purported decision" in s179 did not extend the scope of s179 beyond the word "decision". (Batterham v QSR Limited supra at [26].) Nevertheless, in reliance on the previous judgments of this Court, the new s179 expressly makes a distinction between a "decision" and a "purported decision". The reasoning of the High Court in Batterham cannot be directly applied to the new s179. The introduction of the words "purported decision" was deliberate. (See Mitchforce supra at [62]-[65].) Their deletion from s179(1) and the failure to include an equivalent in s179(2) was equally deliberate. This change was made for the purpose of restoring this Court's supervisory jurisdiction. 32 The Second Reading Speech for the 2005 Amendment Act makes the intention clear: "The Government regards it as crucial that the Court of Appeal should be able to scrutinise judicial decisions of the IRC to ensure that they involve the proper exercise of its jurisdiction. … Section 179 has been around in more or less its current form for over a century. The most significant amendment was made to it in 1996, when the words 'or purported decision' were added, following the High Court's decision in Public Service Association of South Australia v Federal Clerks Union . In that case, the court drew a distinction between a decision and a purported decision. Essentially, the court found that where a court makes a decision that is outside its jurisdiction, it can only be a purported decision because it was not one that was within the court's power to make. In order to afford decisions of the IRC the greatest possible protection from appeal and review, section 179 was amended to state that even purported decisions of the IRC - that is, decisions that were outside its jurisdiction - could not be reviewed or appealed against. That amendment made section 179 one of the most complete privative clauses on record. … … 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. This will ensure that parties cannot use the judgment in Solution 6 to bypass the commission." 33 The continuation of the distinction between a "decision" in s179(1) and a "purported decision" in s179(4) makes it clear that this Court can exercise its supervisory jurisdiction with respect to decisions of the Industrial Court made beyond jurisdiction, subject to s179(4) which provides: "(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." 34 Accordingly, with respect to a "purported decision … on an issue of jurisdiction" this Court should not exercise its supervisory jurisdiction until the Full Bench has either decided the issue of jurisdiction or refused leave to appeal from such a decision. I should note that, as a superior court of record, a decision on "an issue of jurisdiction" by the Industrial Court would not usually be a "purported decision" in the way that expression has hitherto been used. Nevertheless, the manner in which the supervisory jurisdiction may be exercised will also be affected by s179(2), which does not arise in the present case. 35 With respect to errors of law, the jurisdiction of this Court has been extended by s69 of the Supreme Court Act 1970 which, relevantly, provides: "69(3) It is declared that the jurisdiction of the Court to grant any relief or remedy in the nature of a writ of certiorari includes jurisdiction to quash the ultimate determination of a court or tribunal in any proceedings if that determination has been made on the basis of an error of law that appears on the face of the record of the proceedings. (4) For the purposes of subsection (3), the face of the record includes the reasons expressed by the court or tribunal for its ultimate determination. (5) Subsections (3) and (4) do not affect the operation of any legislative provision to the extent to which the provision is, according to common law principles and disregarding those subsections, effective to prevent the Court from exercising its powers to quash or otherwise review a decision." 36 Section 179 is a provision to which s69(5) applies. As s179 protects "decisions" but, no longer save in one respect, "purported decisions", s69(3) authorises this Court to review jurisdictional errors of law and to do so by reference to the reasons for judgment, pursuant to s69(4). 37 The authoritative statement of Australian law with respect to the determination of when a court, that is subject to supervision by a court of general jurisdiction, commits a jurisdictional error is found in the joint judgment of the High Court in Craig v South Australia (1995) 184 CLR 163 esp at 177-179. That judgment makes it clear that Australian law, unlike English law, retains a distinction between jurisdictional and non-jurisdictional errors of law. (C/f Anisminic Limited v Foreign Compensation Commission [1969] 2 AC 147 esp at 171; R v Hull University Visitor; Ex parte Page [1993] AC 682.) 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.

[30]

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. 40 The determination of the line between a jurisdictional error and a non-jurisdictional error is a matter of considerable difficulty. (See e.g. R v Dunphy; Ex parte Maynes (1978) 139 CLR 482 at 495-496; R v Gray; Ex parte Marsh (1985) 157 CLR 351; note also the observations of Hayne J in Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 at [163]; and the analysis in Uniting Church in Australia Property Trust (NSW) v Industrial Relations Commission (2004) 60 NSWLR 602 esp at [54]-[62]. See also Aronson et al Judicial Review of Administrative Action (3rd ed) Law Book Co, Sydney, 2004, pp211-218; Bath "The Judicial Libertine - Jurisdictional and Non-Jurisdictional Error of Law in Australia" (1982) 13 Fed L Rev 13. 41 The case law on the exercise of a supervisory jurisdiction in the case of criminal trials is limited. For the last century there has been a formal system of appeals and, before that, the procedure by writ of error was generally employed. Furthermore, questions of law were often determined by the long established procedure by way of a stated case. 42 Nevertheless, prerogative relief was available, e.g. where a sentence that was not authorised by statute was imposed (see R v Willesden Justices; Ex parte Utley [1948] 1 KB 397; Attorney General (NSW) v Dawes [1976] 1 NSWLR 242); or where the power to state a case was misconstrued (Director of Public Prosecutions v Cassell (1995) 80 A Crim R 160); or where a sentencing judge erred in his understanding of the statutory options available to him (Said v Judges of the District Court of New South Wales (1996) 39 NSWLR 47.) 43 Misinterpreting the mens rea requirement of a statutory offence, by not applying the defence of mistake of fact, was held to be jurisdictional and the decision was quashed in R v Badger (1856) 6 EL & BL 138; 119 ER 816. Similarly, in the case of the Industrial Court, this Court has held that a failure to apply the criminal standard of proof would be a jurisdictional error. (See Powercoal Pty Ltd v Industrial Relations Commission [2005] NSWCA 345; 156 A Crim R 269 at [51]-[57].) 44 Applying, by analogy, terminology developed in the context of interpreting privative clauses affecting review of administrative decisions, the process of statutory interpretation may lead to the conclusion that certain requirements or limitations are "essential", "indispensable", "imperative" or "inviolable". (See Plaintiff S157/2002 supra at [20], [21], [26], [65], [66], [70], [157], [159], [160]; Mitchforce supra at [68]; Woolworths Ltd v Pallas Newco Pty Ltd (2004) 61 NSWLR 707 at [81] and see also Mitchforce supra at [67]-[92].) Limitations or requirements that can be so characterised will, if not observed, give rise to jurisdictional error. In Powercoal, this Court determined that the criminal standard was of such significance that it reached the level of essentiality required to be regarded as jurisdictional. 45 The Appellant seeks to have this Court intervene even at this stage, notwithstanding the fact that it has not sought to appeal to the Full Bench. It challenges the validity of s179 and asserts an inconsistency with the Commonwealth Work Choices legislation. Like Basten JA, I do not find it necessary to decide these issues. 46 Relief of the nature sought by the Appellant is discretionary. Even if such relief were available with respect to the decision of Walton J, a matter which I do not decide, I would refuse relief in the exercise of the discretion of the Court. 47 Prior to the amendment of s179 of the Act, which inserted the reference to "purported decision", this Court had a well established practice of exercising restraint with respect to the decisions of the Industrial Court and its predecessors. (See Solution 6 Holdings supra esp at [136]-[138].) That principle of restraint should now be restored. The principle does not mean that this Court will never exercise such jurisdiction. Nevertheless, it should not do so in the circumstances of the present case. 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. 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.

[31]

Conclusion 51 I agree with the orders proposed by Basten JA. 52 BEAZLEY JA: I have had the advantage of reading in draft the judgments of Spigelman CJ and Basten JA. I agree with the reasons of the Chief Justice in respect of s 474D of the Crimes Act 1900 (NSW) and with his reasons relating to the supervisory jurisdiction of the Court of Appeal. Otherwise I agree with the reasons of Basten JA and with his Honour's orders. 53 BASTEN JA: The late Mr Graeme Palmer was, until his death on 28 March 2001, the manager of a farm owned by Kirk Group Holdings Pty Ltd ("the Company") at Razorback Mountain near Picton, a short distance south-west of Sydney. His death occurred as the result of a vehicle known as a Polaris All Terrain Vehicle, or "ATV", overturning, whilst he was navigating a steep slope with a load of steel pipes, intended for fencing work. 54 On the day following his death, an inspector appointed under the Occupational Health and Safety Act 1983 (NSW) ("the OH&S Act 1983") inspected the property and carried out an investigation into the death. As a result of that investigation, charges were laid against the Company pursuant to ss 15, 16 and against its director, Mr Graeme Kirk, pursuant to s 50 of the 1983 Act. 55 The prosecutions were heard by Walton J, Vice-President of the Industrial Relations Commission of New South Wales, now known as the Industrial Court: see Industrial Relations Act 1996 (NSW), s 151A. The Court found that the charges were proved in a judgment delivered on 9 August 2004: WorkCover Authority of New South Wales (Inspector Childs) v Kirk Group Holdings Pty Ltd and Anor [2004] NSWIRComm 207. On 24 January 2005, his Honour delivered a further judgment, imposing financial penalties on the defendants: Childs v Kirk Group Holdings Pty Ltd & Anor [2005] NSWIRComm 1. 56 The defendants before the Industrial Court 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 judgment in the Industrial Court. However, in their written submissions, the claimants also sought to have the Court order an inquiry into the claimants' convictions, pursuant to s 474D (in Part 13A) of the Crimes Act 1900 (NSW). 57 Separately, but concurrently, the Company and Mr Kirk 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 (NSW). (They also sought leave to appeal if it were held that the appeals were out of time: the prosecutor, however, did not seek to rely on such an objection.) The two sets of proceedings (civil and criminal) were listed together and heard by a bench separately constituted as the Court of Appeal and the Court of Criminal Appeal.

[41]

No other part of clause 13 is relevant: the phrase "former Act" is defined to mean the OH&S Act 1983: see clause 2 of Schedule 3. 65 This transitional provision impliedly recognised the continued liability for an offence under the OH&S Act 1983, despite its repeal. In the absence of any contrary indication in the OH&S Act 2000, the liability under the OH&S Act 1983 continued by virtue of s 30 of the Interpretation Act 1987 (NSW). 66 Accordingly, the relevant provisions under which the charges were laid against the Company were ss 15 and 16 of the OH&S Act 1983, which, so far as relevant, read as follows: 15 Employers to ensure health, safety and welfare of their employees (1) Every employer shall ensure the health, safety and welfare at work of all the employer's employees. (2) Without prejudice to the generality of subsection (1), an employer contravenes that subsection if the employer fails: (a) to provide or maintain plant and systems of work that are safe and without risks to health, … (c) to provide such information, instruction, training and supervision as may be necessary to ensure the health and safety at work of the employer's employees, … (f) to take such steps as are necessary to make available in connection with the use of any plant … at the place of work adequate information: (i) about the use for which the plant is designed and about any conditions necessary to ensure that, when put to that use, the plant will be safe and without risks to health, … . 16 Employers … to ensure health and safety of persons other than employees at places of work (1) Every employer shall ensure that persons not in the employer's employment are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work. 67 The liability of Mr Kirk depended on the operation of s 50 of the OH&S Act 1983, which, including its own defences, read as follows: 50 Offences by corporations (1) Where a corporation contravenes, whether by an act or omission, any provision of this Act …, each director of the corporation and each person concerned in the management of the corporation, shall be deemed to have contravened the same provision unless he or she satisfies the court that: … (b) he or she was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or (c) he or she, being in such a position, used all due diligence to prevent the contravention by the corporation. 68 The Company itself was entitled to rely on a defence which read as follows: 53 Defence It shall be a defence to any proceedings against a person for an offence against this Act or the regulations for the person to prove that: (a) it was not reasonably practicable for the person to comply with the provision of this Act or the regulations the breach of which constituted the offence, or (b) the commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision. 69 As in force when application was made to the Industrial Relations Commission, on 27 March 2003, s 168 of the Industrial Relations Act relevantly provided: 168 Criminal procedure (1) Proceedings for any offence in respect of which proceedings are taken before the Commission in Court Session are to be dealt with summarily by the Commission. (2) The Supreme Court (Summary Jurisdiction) Act 1967 applies to any such proceedings in the same way as it applies to proceedings that may be taken before the Supreme Court in its summary jurisdiction. (3) For the purposes of subsection (2), a reference (however expressed) in the Supreme Court (Summary Jurisdiction) Act 1967 : (a) to the Supreme Court … - is taken to be a reference to the Commission in Court Session … . 70 On 7 April 2003, a judicial member of the Commission ordered each of the claimants to appear before the Commission to answer the charges, pursuant to the procedure provided in s 4(1) of the Summary Jurisdiction Act. 71 On 7 July 2003 the Summary Jurisdiction Act was repealed by the Justices Legislation Repeal and Amendment Act 2001 (NSW). At the same time, s 168(2) was amended to refer to Part 5 of Chapter 4 of the Criminal Procedure Act 1986, in place of the Summary Jurisdiction Act: see Schedule 2, item 2.126[1]. No transitional provisions were made, but the changes, being procedural, should be taken to apply to extant proceedings from the date of the commencement of the new provisions. 72 Subject to one qualification, it was not suggested in the course of argument that anything turned upon the change in statutory authority for the procedures adopted in the Commission. The qualification involves a variation as to the effect of a conviction. Thus, s 28B of the Summary Jurisdiction Act provided, at the time of its repeal: 28B Effect of convictions under this Act A conviction under this Act for an offence - … (b) that is of a kind that may be tried either on indictment or under this Act shall be deemed for all purposes, except the Criminal Appeal Act 1912 , to be a conviction on indictment. 73 Following the repeal of the Summary Jurisdiction Act, s 256 (in Part 5 of Chapter 4) of the Criminal Procedure Act provided: 256 Effect of conviction under this Part A conviction under this Part for an offence that is of a kind that may be tried either on indictment or under this Part is taken for all purposes, except the Crimes (Local Courts Appeal and Review) Act 2001, to be a conviction on indictment.

[42]

The effect of this change was to render a conviction under the relevant part of the Criminal Procedure Act , a "conviction on indictment" for the purposes of the Criminal Appeal Act 1912 including s 5(1), set out and discussed at [118] below. (For completeness, it may be noted that s 170(3) of the Criminal Procedure Act expressly adverts to the application of Part 5 of Chapter 4 to proceedings before the Industrial Court.) 74 Because of s 28B of the Summary Jurisdiction Act, there was no appeal to the Court of Criminal Appeal under s 5(1) of the Criminal Appeal Act before the replacement of the Summary Jurisdiction Act with the provisions (including s 256) in the Criminal Procedure Act. There is no explanation in the legislative history for the change in the exception to the deeming provision treating a conviction in the summary jurisdiciton as a "conviction on indictment". There is certainly no suggestion of any legislative intention to create dual, or bifurcated, rights of appeal from a judge of the Industrial Court exercising a summary criminal jurisdiction. The new exception in relation to the deeming provision, referring to the Local Courts (Appeal and Review) Act 2001 was perhaps intended to avoid the subversion of long-standing rights of appeal to the District Court and to a single judge of the Supreme Court, on a question of law, from a decision in summary jurisdiction exercised by a magistrate in the Local Court. The need to make this exception was presumably thought to have resulted from the establishment of Chapter 4 of the Criminal Procedure Act as a code dealing with summary offences and indictable offences being dealt with summarily: s 170(1). However, Part 5 of the that Chapter (which contains s 256) has no application in relation to Local Courts but only deals with the exercise of summary jurisdiction by the Supreme Court and "other higher courts": see heading to Part 5. Accordingly, the reference to the Crimes (Local Courts Appeal and Review) Act appears to be based on a misapprehension. 75 The effect of s 256, relevantly for present purposes, is to engage s 5(1) of the Criminal Appeal Act, which applies to any "conviction on indictment" in relation to a conviction in the Industrial Court in the exercise of summary jurisdiction. This is a curious result. However, the consequences are broader in that any conviction which would be subject to an appeal as of right under s 5AA of the Criminal Appeal Act will now also be subject to appeal, though in some cases subject to leave requirements, pursuant to s 5(1) of that Act. There is no apparent reason why the Parliament should have set out to achieve that result: the preferable view is that it occurred through inadvertence and was not intended. Whether any principle of statutory interpretation would permit that conclusion to be applied, so as to deprive a convicted person of a right of appeal which appears to have been created by the new s 256, may be doubted. 76 It is not necessary to pursue the last question as to any possible reading down of s 256, because the transitional provisions to the Criminal Procedure Amendment (Justices and Local Courts) Act 2001, which introduced the new s 256, provided that it does not apply in relation to proceedings commenced before the commencement of that legislation, as were the present proceedings. 77 The Criminal Procedure Act now contains transitional provisions consequent on the Acts which repealed the Summary Jurisdiction Act and inserted, amongst other provisions, s 256 in the Criminal Procedure Act: see Schedule 2, Part 7. Clause 26 provides a number of definitions, the following parts of which are relevant: 26 Definitions In this Part: amended Criminal Procedure Act means this Act, as amended by the Criminal Procedure Amendment (Justices and Local Courts) Act 2001 . … old Act means this Act, as in force before its amendment by the Criminal Procedure Amendment (Justices and Local Courts) Act 2001 . … repealed provision means a provision of an Act that is repealed by one of the 2001 amending Acts. 2001 amending Acts means the Criminal Procedure Amendment (Justices and Local Courts) Act 2001 and the Justices Legislation Repeal and Amendment Act 2001 . 78 The relevant operative provision appears to be clause 32, which provides: 32 Offences committed before commencement of clause (1) The provisions of the amended Criminal Procedure Act, and any instruments made under that Act, … apply to or in relation to proceedings for an offence committed before the commencement of this clause, if proceedings for the offence were not commenced before the commencement of this clause. (2) The provisions of the old Act and the Justices Act 1902 … continue to apply to or in relation to proceedings for an offence committed before the commencement of this clause, if proceedings for the offence were commenced before the commencement of this clause. (3) For the purposes of this clause, proceedings are taken to have been commenced in respect of an offence if an information was laid or a complaint made, or an attendance notice issued, in relation to the offence, before the commencement of this clause. (4) This clause applies to all proceedings for offences (including committal proceedings). 79 This provision is, itself, not without difficulties. Subclause (1) provides, at least by implication, that the new procedures do not apply to proceedings commenced before the commencement of the clause. However, sub-cl (2), which is no doubt meant to give effect to this implication, does not pick up the provisions of all the repealed legislation. Nevertheless, because subcl (4) expressly states that the clause applies to all proceedings for offences, it should be inferred that the provisions of the repealed Summary Jurisdiction Act were intended to continue to apply in relation to proceedings commenced before the amendments. On this basis, the new s 256 is not applicable, with the result that, in accordance with the old s 28B of the Summary Jurisdiction Act, the conviction is not a conviction on indictment for the purposes of the Criminal Appeal Act and hence s 5(1) of the Criminal Appeal Act is not engaged. This result is consistent with the approach adopted by the parties, which did not advert to s 28B of the Summary Jurisdiction Act, nor to its repeal, nor to its replacement.

[43]

Privative provision 80 On 9 December 2005 the Industrial Relations Amendment Act 2005 (NSW) ("the 2005 Amendment Act") commenced. It introduced a new privative clause into the Industrial Relations Act, replacing that which had been the subject of comment by this Court in cases identified in Ove Arup Pty Ltd & Ors v Industrial Court of NSW & Anor [2006] NSWCA 28 at [79]. (The approach adopted by this Court in those cases was substantially approved by the High Court in Fish v Solution 6 Holdings Ltd [2006] HCA 22 at [44].) The new provision reads: 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. 81 It was common ground that if any privative clause were relevant to these proceedings, being "proceedings pending in any State court or tribunal" as at the commencement of the 2005 Amendment Act, the new s 179 applied: see cl 31B, Sch 4, also introduced by the 2005 Amendment Act. 82 Unlike earlier proceedings in which this Court intervened to prohibit a threatened excess of jurisdiction, prior to a decision being made, this case involved a challenge to a decision of a single member of the Commission. The privative clause, if applicable, would preclude intervention by this Court. To avoid that result, the claimants 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. 83 The new section draws a distinction between 'decisions' and 'purported decisions'. In context, it would seem that the latter term is intended to refer to decisions made in excess of jurisdiction. In Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476 the joint judgment in the High Court, applying a statutory definition of decision in a privative clause, which referred to a "decision … made under this Act" held that the privative clause did not operate with respect to purported decisions, because they were not decisions made under the enactment, being invalid for want of jurisdicition: at [76]. However, the Court was concerned with a decision tainted by jurisdictional error, made by an administrative body. Because s 75(v) of the Constitution would prevent the Parliament giving such a body power to determine its own jurisdiction, the legislation was properly construed as not withdrawing the supervision of the High Court in such a case: at [72]-[75]. No such limitation constrains the State Parliament. In any event, the correct presumption is that a court of record does have jurisdiction to determine the extent of its own jurisdiction. In that context, the use of the term "purported decision" may be otiose: see Batterham v QSR Ltd [2006] HCA 23 at [26]. However, read in context and with its statutory history in mind, s 179 in its new form uses such language to distinguish decisions tainted by jurisdictional error from those which are not. I agree with the comments of the Chief Justice in this respect at [32]-[36] above. 84 The first question is whether there is any reason based on the structure or form of the Industrial Relations Act to read down the word "decision" so as not to refer to decisions taken in the exercise of criminal jurisdiction. The statutory context is not consistent with such a limited reading. Thus, in s 197, dealing with appeals from the Local Court, express provision is made for the operation of s 179 in relation to a decision or purported decision of a Local Court in proceedings to which that section applies in the same way as it applies to a decision or purported decision of the Commission. In this section, the term "decision" is clearly intended to include a conviction and sentence, and other orders made by the Local Court. Section 197A uses the term "decision" to apply to an acquittal. 85 Accordingly, it is not appropriate to read down s 179 so that it applies only to industrial matters (being the scope of s 84 of the former Industrial Arbitration Act 1940 (NSW)) or to civil as opposed to criminal proceedings. Although it is not necessary finally to determine this issue, if s 179 is valid, it would appear that the claimants cannot avoid the operation of s 179, in seeking to invoke the jurisdiction of this Court with respect to their convictions and sentences, nor in seeking to invoke the powers of the Court under Part 13A of the Crimes Act. 86 Constitutional invalidity was asserted on two bases. The first was identified, somewhat imprecisely, by reference to statements in Mitchforce Pty Ltd v Industrial Relations Commission (2003) 57 NSWLR 212 at [120]-[128] (Spigelman CJ). The substance of the complaint was that it would be inconsistent with the operation of s 73(ii) of the Constitution, vesting jurisdiction in the High Court in relation to the decisions of the Supreme Court of any State, to allow a State parliament to remove basic matters of criminal jurisdiction from the purview of a State Supreme Court, so as to preclude the invocation of the constitutionally guaranteed role of the High Court. 87 In Fish v Solution 6 Holdings (supra) at [33], in considering the construction of the old privative clause, the joint judgment of Gleeson CJ, Gummow, Hayne, Callinan and Crennan JJ stated: "In addition, it must also be presumed that a State parliament does not intend to cut down the jurisdiction of the Supreme Court of that State over matters of a kind ordinarily dealt with by the State Supreme Courts and which, if dealt with by those Courts, are amenable to the appellate jurisdiction of this Court under s 73 of the Constitution." 88 The Company and Mr Kirk also invoked in support of this ground of challenge certain remarks of McHugh J in Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 at 114, noting that the removal of jurisdiction from a Supreme Court would render it "difficult, indeed probably impossible, to have the unified system of common law that the Constitution intended should govern the people of Australia". His Honour continued: "Moreover, although it is not necessary to decide the point in the present case, a State law that prevented a right of appeal to the Supreme Court from, or a review of, a decision of an inferior State court, however described, would seem inconsistent with the principle expressed in s 73 and the integrated system of State and federal courts that covering cl 5 and Ch III envisages." 89 In Mitchforce, Spigelman CJ referred to these remarks in Kable and noted that "there may be a fundamental distinction between statutory rights and matters at the heart of the exercise of the judicial power, such as the law of torts or of contracts or the criminal law": [126]. 90 On one view, the present case involves part of the core jurisdiction of the Supreme Court, namely aspects of the criminal law. On the other hand, the particular offences of strict or absolute liability, with respect to occupational health and safety, were the creation of a statute only in 1983 and hence may not fall within the heartland of the judicial power as envisaged in the Constitution. 91 This issue, as raised by the claimants, involves a large question as to the limits on the powers of State parliaments to legislate with respect to the jurisdiction of their own courts and tribunals, which must be implied where the results may affect the constitutional jurisdiction of the High Court. This issue was touched upon in argument, but was not the subject of detailed written or oral submissions by the claimants. It should not be determined in this case if it can be properly disposed of on other, non-constitutional, grounds: see generally Newcastle Wallsend Coal Co Pty Ltd v Industrial Relations Commission of NSW & Anor [2006] NSWCA 129 at [40]. In any event, given the current form of s 179, these contentions were unlikely to be persuasive. The present form of s 179 does not invite concerns expressed in other cases in relation to the possible diminution of the rule of law if a court were capable of determining criminal guilt, but subject to no form of review, even where its conduct appeared to exceed its jurisdiction. 92 The second constitutional argument relied upon the proposition that s 16 of the Workplace Relations Act 1996 (Cth) as amended by the Workplace Relations Amendment (Work Choices) Act 2005 (Cth) ("the Work Choices Act") gave rise to inconsistency between s 179 and s 16 of the Commonwealth law. 93 Section 16 provides that the Commonwealth law "is intended to apply to the exclusion of" a State industrial law: s 16(1)(a). However, sub-s (2) provides that sub-s (1) does not apply to a State law dealing with "occupational health and safety": s 16(2)(c) and (3)(c). The claimants argued that, whilst the operative provisions under which they were convicted were laws with respect to occupational health and safety, the procedural provision which protected the decisions from review, is not such a law. The submissions in support of this conclusion relied upon the proposition that s 179, given its history, did not apply to matters arising under the OH&S Act 1983 at all. However, for the purposes of the constitutional argument, the contrary must be assumed, or the issue does not arise. The question is then why a procedural provision which would otherwise operate with respect to a decision of the Industrial Court would not continue so to operate with respect to the residual jurisdiction of that Court, on the assumption that other parts of its jurisdiction are removed because they are inconsistent with a Commonwealth law. 94 In any event, reg 1.2(2) of the Workplace Relations Regulations 2006 (Cth) provides that s 16(1) does not apply to a State law "to the extent to which it relates to compliance with an obligation … in respect of an act or omission which occurred prior to the reform commencement". The somewhat inelegant phrase "reform commencement" is defined in the Work Choices Act as the commencement of the amendments to the Workplace Relations Act introduced by the Work Choices Act, which was 27 March 2006. If s 179 operates in the present circumstances, it operates to protect the decision of the Industrial Court which, at the latest, would appear to be the judgment delivered on 24 January 2005. Therefore that constitutional issue, if it arises at all, does not arise in this case. 95 There are other arguments which might be considered in relation to the operation of s 16(1) of the Workplace Relations Act, some of which have been the subject of argument in proceedings known as State of New South Wales & Ors v Commonwealth (The Workplace Relations Challenge) heard by the High Court over several days in early May 2006. If it were necessary to address these arguments, it might be desirable to await the judgment in those proceedings. However, as already explained, it might also readily be concluded that this ground of challenge to validity is without substance. Ultimately, for reasons noted below, it is not necessary to reach a final conclusion in relation to either of the constitutional challenges.

[45]

Mr Palmer suffered fatal injuries." 98 A similar charge was laid against the Company under s 16(1) of the OH&S Act 1983 with respect to non-employees, identified in the opening statement of the offence as David Thorn, Jason McLeod and Craig Haden. In the final paragraph of the charge, a further individual, Christopher Jamison, was added as a person placed at risk, but nothing seems to have turned on this discrepancy. The particulars given in relation to this charge were three: the first merely repeated the words taken from s 16(1) in the opening paragraph of the charge, but identified the source of risk as the operation of the ATV. The second and third particulars were the last two particulars in the s 15(1) charge. 99 Two related charges were laid against Mr Kirk, as a person concerned in the management of the Company and as deemed to have contravened the same provisions, pursuant to s 50(1) of the OH&S Act 1983. In the charge with respect to the offence under s 16(1), the non-employees (including Christopher Jamison) were identified as "contractors engaged to work at the farm". In fact, all of them were fencing contractors who were involved in constructing a new boundary fence on the property, for which Mr Palmer was transporting the fencing steel at the time of the accident. 100 It might be thought that the drafting of the charge, and especially the particulars, left something to be desired. There was no complaint about any specific action undertaken by the employer; rather, each charge alleged omissions on the part of the Company. However, apart from identifying the ATV as the relevant "plant", and its operation as the source of risk, the first three particulars given in relation to the risks faced by employees, merely repeated the terms of s 15(2)(a), (c) and (f). The fourth particular, concerning the operation of the ATV only by persons with appropriate training, and the fifth particular, identifying a failure to assess and control risks and hazards are largely repetitive of the earlier particulars, in practical terms. 101 To speak of a failure to provide "systems of work" that were safe and without risks to health is of no assistance in identifying particular actions which should have been taken and were not. The same may be said of the failure to provide "such information, instruction and training as may be necessary" to ensure health and safety at work. The failure to identify the relevant omissions with precision is likely to be of particular importance in circumstances where, in accordance with the jurisprudence of the Industrial Court, the offences are "absolute" and the opportunity for a defendant to escape conviction will be largely dependent upon establishing a defence under s 53 of the OH&S Act 1983, which, at least in part, required the identification of steps which might have been taken in order to comply with the absolute obligation, but are said not to be reasonably practicable. 102 The lack of content in the particulars is significant in another respect. If the obligation to obviate risks to health and safety is absolute, it may be of assistance to the Court to know how the steps, the omission of which is relied on by the prosecutor, were said to have been capable of obviating the relevant risk. Furthermore, to be able to defend itself, the employer might wish to know what was the precise "risk" which was said to exist in relation to the use and operation of the ATV. 103 These questions need not be pursued for present purposes, as no objection appears to have been taken to the lack of particularity in the formulation of the charges, and no issue is raised in these proceedings in that respect. However, it may be noted that the prosecutor, Inspector Childs, was apparently asked in cross-examination what he believed should have been done by the Company, and provided some evidence which might be seen as particularising the omissions, and which was set out by the trial judge at [84], [93] and [100]. 104 His Honour found at [105] that the evidence demonstrated: "… beyond reasonable doubt, that Mr Kirk (and therefore the Company, except in the case of (k)): (a) had not seen or read the Owner's Manual prior to Mr Palmer's accident; (b) did not supervise the daily activities of employees or contractors working on the Farm; (c) did not conduct a risk assessment, or request any other person to conduct a risk assessment, regarding the use of the ATV on the Farm; (d) did not take any steps to limit or restrict access to the ATV to only those employees and contractors who were suitably qualified and trained to ride the ATV; (e) did not ensure that employees or contractors read and understood the Owner's Manual; (f) gave no instructions to any employee or contractor, including Mr Palmer, that conditions for use of the ATV specified in the Owner's Manual must be adhered to; (g) gave no instructions to Mr Palmer to instruct employees and contractors only to use the ATV in accordance with the Owner's Manual; (h) gave no particular instructions to any employee or contractor as to how the Owner's Manual would be applied at the Farm; (i) gave no instructions to any employee or contractor that the ATV was not to be used off-road or on sloping terrain (either generally or of a particular gradient); (j) relied on Mr Palmer to give instruction and training without equipping him with the knowledge or tools to undertake those duties, and without supervising or monitoring his performance of those duties; (k) approached the creation of a safe system of work differently between two businesses he operated; and (l) had no system in place to assess and determine whether or not employees of, or contractors to, the Company were trained in the use of the ATV, or were using the ATV in a manner which was safe and without risk to health." 105 After setting out the respective submissions of the parties, his Honour then dealt with the legal principles which were said to govern the operation of ss 15 and 16 of the OH&S Act 1983. The primary authority relied upon by his Honour was a summary of relevant propositions derived from the judgment of Hungerford J in WorkCover Authority of New South Wales (Inspector Keelty) v State of New South Wales (No. 2) (2001) 104 IR 268 at 288-289. Those principles, his Honour noted, had been endorsed by the Full Court in WorkCover Authority of New South Wales v Coffey Engineering Pty Ltd (No. 2) (2001) 110 IR 447 at [16]. The first two principles identified by Hungerford J were as follows: "(1) The duty imposed on an employer to ensure the health, safety and welfare at work of employees is absolute. (2) Such duty to ensure is to be construed as meaning to guarantee, secure or make certain."

[47]

His Honour then referred to a judgment of the Full Court in WorkCover Authority of New South Wales (Inspector Mulder) v Arbor Products International (Australia) Pty Ltd (2001) 105 IR 81 at [45] where the majority stated: "The duty to provide a risk free work environment is a duty owed not only to the careful and observant employee but also to the hasty, careless, inadvertent, inattentive, unreasonable or disobedient employee in respect of conduct that is reasonably foreseeable … ." 108 This latter passage goes both further than and qualifies, the statement by Walton J in the previous passage quoted. His Honour noted that there were discrepancies in the judgment of the Full Court and proffered the following comment at [129]: "The use of the words 'reasonably foreseeable' in that context should not be construed as introducing an element of foreseeability to the duty owed under s15, or to limit the risks to safety contemplated by s15 to only those that are foreseeable (as was proscribed by the majority in Drake Personnel ). Rather, to the extent that the behaviour of careless or disobedient employees may not be reasonably foreseen, that is a matter which may properly be raised in relation to a defence under s53 of the Act. That is, the unforeseeable behaviour of a disobedient employee may well lead to the happening of an event that could not be reasonably foreseen, and, therefore, which was not reasonably practicable for an employer to guard against." 109 The reference to Drake Personnel, appears to be a reference to a passage in the judgment in Drake Personnel Ltd v WorkCover Authority (NSW) (1999) 90 IR 432, at 452, to the following effect: "The concept of 'reasonable foreseeability' is not, in our view, apt to be applied in relation to the duties owed under the OH&S Act. The duties imposed by the Act are not merely duties to act as a reasonable or prudent person would in the same circumstances … . Under s15(1) the obligation of the employer is 'to ensure' the health, safety and welfare of employees at work. There is no warrant for limiting the detriments to safety contemplated by that provision, to those which are reasonably foreseeable. Whilst employers are not liable for risks to safety which are merely speculative or unduly remote …, the terms of s15(1) specify that the obligation under that section is a strict or absolute liability to ensure that employees are not exposed to risks to health or safety. It is inappropriate to seek to substitute a different test for that specified in s15(1)."

[48]

The phrase to "detriments to safety" is itself a departure from the language of "risk" and has been repeated in other judgments. It may be thought to provide little assistance and perhaps some obscurity in relation to the terminology adopted by the statute. Indeed, the word "risks" has itself been the subject of discussion, Drake Personnel excluding from the area covered by the statute of risks which are "speculative or unduly remote". 110 Walton J also referred to authority in the Commission which introduced a concept of "causation" with respect to the operation of ss 15 and 16. That concept was identified by Hungerford J in WorkCover Authority (NSW) v State of New South Wales (No. 2) (2001) 104 IR 268 at 288-289, as one of twelve principles, in the following terms: "[7] It is necessary to establish both a relevant 'failure' on the part of the employer and a causal relationship between the conduct of the employer and the consequent risk to health, safety or welfare of the employees. [8] It is to the essential ingredients of the offence charged which one must attend by assessing the objective facts causing the detriment to safety and the causal connection therewith of the employer." 111 The concept of "causation" in this area of discourse also appears to have been widely adopted; Walton J identified it with a separate heading and discussed references to the principle in a number of decisions of the Full Bench at [141]-[143]. 112 The discussion in his Honour's judgment of the principles relevant to the defence under s 53 was limited. He noted that the foreseeability of a risk "has no application to liability under ss 15 and 16, [but] is relevant when considering whether a defence has been established under s 53": at [144]. He referred to a passage in the judgment of the Full Court in WorkCover Authority (NSW) v Cleary Bros (Bombo) Pty Ltd (2001) 110 IR 182 at [87] where the Court noted "if the happening of an event is not reasonably foreseeable then it will not generally be reasonably practicable to make provision against that event". His Honour went on to note that reasonable foreseeability is "one consideration relevant to establishing a defence under s 53 and is not, of itself, conclusive": [147]. One would have thought that it was one way of establishing the defence, and if unforeseeability was established, it would, as Cleary Bros suggested, have "generally" constituted a sufficient defence. 113 In seeking to apply these principles his Honour stated at [149]: "It is clear from the preceding review of authorities that in order to determine liability, the Court should identify the relevant risks; determine whether, as a matter of fact, there was a relevant failure by the defendants (by act or omission, as particularised in the charges); and, if so, determine whether there is a causal connection between the risk and the defendants' failures." 114 The Industrial Court identified the relevant risk in the following terms at [151]: "In my view, there was a clear risk, evident from Mr Kirk's own experience and from the express warnings in the Owner's Manual, that the ATV could overturn (or otherwise unbalance) in various circumstances: clearly a situation of potential danger to the health and safety of people at the Company's workplace. In this case, it is only necessary to consider two limited classes of such circumstances. First, off-road driving at the Farm, which, by its very nature, increased the likelihood of many of the precursors to overturning mentioned in the Owner's Manual: excessively steep hills (avoided on one steep hill by a hairpin road specifically built for safety), hidden rocks, bumps or holes, or excessively rough, slippery or loose surfaces. Secondly, towing from the ATV's rack."

[52]

(2) whether such an appeal, if otherwise available, is precluded by s 179 of the Industrial Relations Act . 121 The first basis upon which s 5(1) would appear not to apply is that a person convicted in the exercise of summary jurisdiction is not convicted "on indictment". Accordingly, the right of appeal given by s 5AA (set out below) in relation to a conviction in the summary jurisdiction of the Supreme Court should be understood to apply, but, by virtue of the terms of the Industrial Relations Act, will provide a right of appeal to the Full Bench of the Industrial Court only. 122 In relation to the construction of s 5(1), the Criminal Procedure Act now provides that a conviction in the summary jurisdiction of the Supreme Court is to be treated as a "conviction on indictment", the exception in relation to the operation of the Criminal Appeal Act having been abandoned upon the repeal of the Summary Jurisdiction Act: see [73] above. The reason for that variation in the legislative scheme was not addressed in submissions and gives rise to some anomalies. The principal anomaly is that s 5AA of the Criminal Appeal Act, which is in the following terms, provides a right of appeal without leave in relation to both conviction and sentence: 5AA Appeal in criminal cases dealt with by Supreme Court in its summary jurisdiction (1) A person: (a) convicted of an offence, or (b) against whom an order to pay any costs is made, … by the Supreme Court in its summary jurisdiction may appeal under this Act to the Court of Criminal Appeal against the conviction (including any sentence imposed) or order. 123 In understanding the operation of this provision in relation to proceedings in the Industrial Court, it is necessary to make reference to the terms of s 196 of the Industrial Relations Act, which relevantly provides as follows: 196 Appeals from … members of Commission in criminal proceedings (1) This section applies (and the other provisions of this Part do not apply) to appeals … 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 … in the same way as it applies to an appeal … 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 a reference to a Full Bench of the Commission in Court Session… . 124 The drafting of s 196 is awkward. Subsection (1) appears to assume that a right of appeal to the Full Bench arises from some other statutory source. It is not clear that such a source is to be found in the Industrial Relations Act, but it may be s 187, which provides a general right of appeal to a Full Bench, subject to a leave requirement in s 188. The other possible source is the Criminal Appeal Act, but absent sub-s 196(2) and (3), the Act does not in terms provide any appeal to the Full Bench. The solution must be that jurisdiction is vested in the Full Bench by s 187 and that the vesting is not affected by the disengagement of other provisions of Part 7 (which may include s 188) effected by s 196(1). 125 The Company and Mr Kirk argue that s 196 has no operation in relation to an appeal to the Court of Criminal Appeal under s 5(1), but only to an appeal to the Full Bench of the Commission which arises by the implied reference in s 196(2) to s 5AA only of the Criminal Appeal Act. The next step in the argument is that the reference to "court" in s 5(1) is a reference to the Court of Criminal Appeal, in accordance with the definition of s 2(1) of the Criminal Appeal Act. Having been convicted on indictment, as provided by s 256 of the Criminal Procedure Act (despite the conviction being in exercise of a summary jurisdiction), the terms of s 5(1) of the Criminal Appeal Act are engaged and, it is argued, there is no provision which replaces the reference to the Court of Criminal Appeal in s 5(1) with a reference to the Full Bench of the Commission, because the replacements made by sub-s 196(3) only apply in relation to sub-s (2), which is not concerned with convictions on indictment, but only convictions in summary jurisdiction. Further, to the extent that the appeal is against conviction and is limited to a question of law, no leave is required. 126 There are two answers to these contentions. The first is that, to the extent that s 256 of the Criminal Procedure Act has application in the present case, it will deem all convictions in the summary jurisdiction of the Supreme Court to be convictions on indictment. The result will be that s 196(2) will be engaged, the proceedings still being taken in summary jurisdiction even though the right of appeal arises under s 5(1) of the Criminal Appeal Act and not s 5AA. Accordingly s 196(3) will render the reference in s 5(1) to the Court of Criminal Appeal, a reference to the Full Bench of the Industrial Court, as it does with respect to s 5AA. 127 The effect of s 256 is not limited to appeals in the Industrial Court. The real anomaly created by the new s 256 is to allow any person convicted of an offence in the summary jurisdiction of the Supreme Court access to rights of appeal under both s 5AA and s 5(1). In most cases, an appellant will be content to rely on s 5AA, because it provides a right of appeal, whereas s 5(1) imposes a leave requirement in specified circumstances. No additional anomaly arises through the operation of s 196(2) of the Industrial Relations Act. 128 The second answer to these contentions is that s 256 has no application in relation to these proceedings. This follows from the consideration of the changes effected by the 2001 amendments to the Criminal Procedure Act, and the transitional provisions, at [74]-[79] above. 129 Accordingly, the appeal to the Court of Criminal Appeal should be dismissed. 130 This conclusion is consistent with the apparent intention of ss 179 and 197. Section 179(6) permits an appeal to the Full Bench, but to no other court or tribunal.

[53]

Inquiry into conviction 131 In the event that the Court of Criminal Appeal had no jurisdiction to consider the appeal which had been lodged, the claimants sought to make an application, pursuant to s 474D of the Crimes Act 1900 (NSW) for "an inquiry into a conviction or sentence" and invited this Court to refer the whole case to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act, pursuant to s 474E(1)(b) of the Crimes Act. 132 Although the jurisdiction of this Court to direct such an inquiry was not the subject of detailed consideration, the basis of the jurisdiction should be identified. First, this Court may exercise any power or authority conferred on the Supreme Court under any Act: Supreme Court Act, s 44 and Crimes Act, s 474D. Secondly, a conviction by the Industrial Court for an offence under the OH&S Act 1983 may be the subject of an application under s 474D because that provision (and indeed the whole of Part 13A) is identified in the Second Schedule to the Crimes Act and hence contains provisions to which s 3 applies. That section is in the following terms: 3 Application of certain parts of Act The sections mentioned in the Second Schedule, so far as their provisions can be applied, shall be in force with respect to all offences, whether at Common Law or by Statute, whensoever committed and in whatsoever Court tried. 133 There remains a question as to whether Part 13A can be invoked in cases where an appeal could not otherwise have reached the Court of Criminal Appeal. In Application of Pearson (1999) 46 NSWLR 148, Wood CJ at CL considered the application of Part 13A in relation to a summary offence determined by a magistrate. His Honour considered the appeals then available from such a decision and the unlikelihood that Parliament intended to permit an additional means of review by a Court which was generally unavailable for review of matters determined in a Local Court: at [28]-[34]. His Honour also noted an argument that s 474E(1)(b) could only be invoked in relation to cases which were from the outset capable of being taken to the Court of Criminal Appeal: at [35]. However, noting the principle that a provision which created a right of review of a criminal conviction should be given the broadest scope which the fair meaning of its language would allow (at [25]) his Honour concluded, at [38]: "Having regard to the matters outlined, it may be somewhat burdensome, if not excessive, for there to be an additional and independent right to seek review under Part 13A of the Crimes Act , in relation to summary offences. I am not, however, persuaded that the words of general ambit in s 3 and in the Second Schedule to the Crimes Act , can be lightly disregarded, or that this ground of objection to jurisdiction has been made good." 134 The provision for appeals from a member of the Industrial Court to go to a Full Bench of that Court reveals an intention that all such appeals should be dealt with by the Full Bench. However, putting s 179 to one side, there is no clear exclusion of any right of review which might otherwise arise under the Crimes Act, and accordingly there is no clear intention to exclude the operation of Part 13A of the Crimes Act. 135 That leaves open questions as to the operation of s 179 in relation to such an inquiry. First, there is the question whether s 179 was intended to apply to criminal proceedings at all. Assuming (as indicated above) that it does, there is a question whether s 179, in its terms, excludes review under Part 13A of the Crimes Act. The answer to that question depends on whether an application for an inquiry seeks to have the decision below "reviewed" or "quashed or called into question". Although an inquiry would not itself have such an effect, the outcome sought is a referral to the Court of Criminal Appeal where the applicants would seek to have their convictions quashed or set aside. The application will then be dealt with as if it were an appeal: Crimes Act, s 474L. No reason was suggested why this might not aptly be described as a review. 136 If the conviction were to be referred to the Court of Criminal Appeal, it would there be dealt with as an appeal and, if successful, would result in the conviction being allowed and the conviction "quashed", pursuant to s 6(2) of the Criminal Appeal Act. In some cases, the expression "quashed or called into question" has been treated as a kind of hendiadys. In a passage cited with approval by Kirby J in Batterham v QSR Ltd [2006] HCA 23 at [59], Lord Fraser of Tullybelton stated in South East Asia Fire Bricks Sdn Bhd v Non-Metallic Mineral Products Manufacturing Employees Union [1981] AC 363 at 370: "[T]he final words 'quashed or called in question in any court of law' seemed to their Lordships to be clearly directed to certiorari. 'Quashed' is the word ordinarily used to describe the result of an order of certiorari, and it is not commonly used in connection with other forms of procedure (except in the quite different sense of quashing a sentence after conviction on a criminal charge). If 'quashed' were for some reason not enough, the expression 'called in question in any court of law' is in their Lordships opinion amply wide enough to include certiorari procedure." 137 In s 179, the words "called into question" may have a broader meaning because sub-s (1) extends not merely to review "by any court" but also by any "tribunal". Similarly, sub-s (5) states that the section extends to proceedings brought "in a court or tribunal for any relief or remedy", referring then to the standard forms of prerogative relief, injunction or declaration, and ending "or otherwise". On its face, this language is broad enough to extend to the quashing of a conviction by the Court of Criminal Appeal, whether pursuant to an appeal or pursuant to the procedures found in Part 13A of the Crimes Act. Thus, if s 179 does extend to criminal convictions, it would seem to preclude review in the present case. If no relief were available in the Court of Criminal Appeal, it would be futile for the Court to refer the matter to the Court of Criminal Appeal. However to dispose of the matter on this basis would require the Court to consider the validity of s 179. There is a separate basis on which relief should be refused. 138 I do not doubt the correctness of the general approach to the powers of inquiry identified by the Chief Justice at [14]-[20] above. My conclusion differs from the preliminary view expressed by his Honour at [21], only because I deal with the matter by reference to the relief sought in these proceedings as identified at [135]. 139 Where those making application for an inquiry pursuant to s 474D have a statutory right of appeal available to them, the Court is empowered to defer its consideration of the application until the appeal proceedings are finally determined: s 474E(3A)(b). Further, sub-s (3) provides that the Supreme Court may "refuse to consider or otherwise deal with" the application if the matter has been fully dealt with on appeal, and it is not satisfied that there are special circumstances justifying the taking of further action. 140 The claimants say that the Court should not defer the application or refuse it, on the basis of the appeal to the Full Bench, because, given its earlier jurisprudence, that appeal is unlikely to result in the conviction being overturned. 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.

[54]

Court of Appeal: supervisory jurisdiction 142 The next issue concerns the jurisdiction of the Court of Appeal in its supervisory jurisdiction under s 69 of the Supreme Court Act. For the purpose of invoking that jurisdiction, the claimants contended that the primary judge had misunderstood the nature of the duty of a court administering the criminal law and had thus failed to discharge the duty reposed in it by the legislature. That language was no doubt designed to identify a form of jurisdictional error and hence at least a constructive failure to discharge the jurisdiction of the Industrial Court. 143 One basis for that challenge was the treatment by the Industrial Court of ss 15 and 16 as creating offences of "absolute" liability, rather than strict liability. This complaint had two limbs. First, the nature of the "risks" against which an employer was required to provide protection was said to be limited to risks which were either known to the employer or were risks of which it should reasonably have been aware. That limitation had been rejected by the Industrial Court, which had adopted a test of risks which were not "too remote" or "speculative", but which need not be "reasonably foreseeable". (This Court was not taken to any discussion in the Commission which showed how it identified risks which were not reasonably foreseeable, but which were also not "too remote" or "speculative".) 144 The second (and related) element of the complaint was that, properly understood, the sections invoked strict liability in the sense that they were "presumed to contain the requirement of a mental element which may be expressed as the absence of an honest and reasonable belief in a state of facts which if true would take the case outside the ambit of the offence": reliance was placed on He Kaw Teh v The Queen (1985) 157 CLR 523. 145 The argument also placed reliance on the reasoning of this Court in McDonald (t/as BE McDonald Transport) v Girkaid Pty Ltd [2004] NSWCA 297; [2004] Aust Torts Rep ¶81-768. That case involved a civil claim for damage to property, following a fire apparently resulting from the spontaneous combustion of certain chemicals. The claim depended in part on a count of breach of statutory duty. The relevant duties were found in regs 18 and 19 of the Dangerous Goods Regulation 1978 (NSW). Regulation 18 required an occupier of premises on which dangerous goods were kept to "take all practicable steps to ensure" that persons handling the goods were adequately instructed. Regulation 19 required occupiers to "take all practicable precautions to prevent the occurrence on the premises of accidents through fire, explosion …". Section 15 of the OH&S Act 1983 differed in that the requirement to "ensure" health and safety at work was not subject to taking "all practicable steps". That factor must be taken into account in the exercise of statutory construction which is required under the OH&S Act 1983. Nevertheless, the claimants relied upon the approach to the questions of statutory construction identified by McColl JA in McDonald at [180]-[194]. Her Honour there discussed the principles of construction applied by the High Court in considering legislation which could be described as both "penal" and "beneficial" in Waugh v Kippen (1986) 160 CLR 156, Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 and Sheen v Fields Pty Ltd (1984) 58 ALJR 93, as well as He Kaw Teh v The Queen. Her Honour concluded that the obligations imposed "were not absolute": at [190]. After referring to Chugg she continued: "Rather, the words requiring the occupier to take 'all practicable steps' and 'all practicable precautions' indicate that regs 18(e) and 19(e) should be interpreted as imposing a penalty, and a corresponding private cause of action, only in circumstances where the occupier of the relevant premises (in this case McDonald) knew or ought to have known that the course of conduct he was taking involved a risk proscribed by the Regulations." 146 The jurisprudence in the Industrial Court has given significant weight to the fact that reasonable practicability and questions of control are dealt with by way of the defence provided to the employer by s 53. Although the structure of the legislative scheme is a significant consideration, it does not dictate the conclusion that the liability imposed by ss 15 and 16 is in each case absolute. Taken literally, s 15 requires an employer to ensure that workers do not fall sick, suffer strokes or heart attacks or die at work, even for reasons entirely unrelated to the work environment. That construction is not adopted, because it would not be sensible in the statutory context. Similarly, it appears that the obligation does not extend to the removal of risks which are so remote as to be speculative. That exclusion might extend to the risk of events which, though remote, are statistically predictable. But if the obligation is not taken to include its full literal extent, by what principle is that construction achieved? Whether the obligation extended to conduct of which the employer was not aware and of which it could not be said that it should reasonably have been aware, is a question of construction to be determined at least with reference to the principles discussed in the cases referred to above. The Court was not taken to any authority in the Industrial Court which addressed those principles. 147 In considering the role of s 53 within the statutory scheme, it may be significant that the defences provided by that section were not specifically directed to the obligations under ss 15 and 16, but applied to all offences under the Act. In relation to Mr Kirk, there is also an issue as to how those defences interacted with the specific defences provided under s 50(1) in relation to the liability of directors and "each person concerned in the management of" the company. These questions, it was argued, have not been adequately addressed in the jurisprudence in the Industrial Court. 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. 149 These arguments have varying levels of arguability in principle, although the prosecutor says that the facts in the present case prevent anything turning on their resolution. The question to be considered is whether these issues can and should be addressed in this Court, in its supervisory jurisdiction.

[55]

Jurisdiction discretionary 150 This case may properly be determined on the assumption that the jurisdiction of this Court is unconstrained by s 179, without determining the scope and operation of s 179 or its constitutional validity. That is an assumption favourable to the claimants. The question is why this Court should intervene in circumstances where there is a statutory right of appeal (by leave) to the Full Bench of the Industrial Court, which has not been pursued. 151 It is well-established in cases where jurisdictional error is asserted that the Court will be slow to intervene, and generally speaking should not intervene, where the question of jurisdiction has not been considered by the Court below. The Industrial Court being established by the Industrial Relations Act as a "superior court of record", the reluctance of a Court exercising supervisory jurisdiction to intervene is greater than would otherwise be the case. 152 In John Holland Group Pty Ltd v Industrial Relations Court of New South Wales [2006] NSWCA 93, this Court declined to intervene on jurisdictional grounds in relation to proceedings before a single judge of the Industrial Court, in circumstances where that Court had not been invited to consider the jurisdictional issue: at [14] (Spigelman CJ, Handley JA and Giles JA agreeing). In other cases, this Court has not been willing to stay its hand in cases of a "patent" defect in jurisdiction: see Solution 6 Holdings Ltd v Industrial Relations Commission (NSW) (2004) 60 NSWLR 558 at [158] (Spigelman CJ, Mason P and Handley JA agreeing). This Court relied particularly upon the approach accepted by the High Court in The Queen v Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co Pty Ltd (1953) 88 CLR 100 at 118-119 (Dixon CJ, Williams, Webb and Fullagar JJ). In that case the High Court was satisfied that prohibition to prevent the Board acting in excess of its authority should not be withheld as premature in circumstances where the prosecutor had satisfactorily shown that it was about to so act and where its decision, if it did act, would be protected by a privative clause contained in s 52 of the Stevedoring Industry Act 1949 (Cth). The joint judgment observed: "… that the existence of s 52 in the Act supplies a strong reason for the prosecutor seeking the protection of the writ before the board or its delegate orders cancellation or suspension when it or he threatens to make such an order although the requisite basis for the exercise of the power is absent or the grounds upon which it is threatened are legally misconceived, and extraneous to the board's authority." 153 Although Ex parte Melbourne Stevedoring involved an administrative body and not a superior court of record, the application of that principle was upheld in relation to the Industrial Court: see Fish v Solution 6 Holdings Ltd [2006] HCA 22 at [44]. 154 However, two points of distinction arise in the present case. The first is that an appeal lies as of right to the Full Bench of the Industrial Court, pursuant to s 5AA of the Criminal Appeal Act. The second is that s 179, in its current form, does not preclude a challenge in respect of "a purported decision of the Commission on an issue of the jurisdiction of the Commission" where the decision is that of the Full Bench: s 179(4). Accordingly, the need to intervene prior to a determination by the Full Bench, because its decision would be protected from any form of review, no longer exists. As a result, this Court should apply the principles of constraint which operated whilst the privative clause extended only to "decisions of the Commission" and not to "purported decisions", thereby leaving open the possibility of review for jurisdictional error: see, for example, Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501, in relation to the Industrial Relations Act 1991 (NSW), s 301; and see Fish v Solution 6 Holdings, at [139]-[142] (Kirby J) and [162]-[172] (Heydon J). 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.

KIRK GROUP HOLDINGS PTY LTD & ANOR v WORKCOVER AUTHORITY OF NEW SOUTH WALES & ANOR

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