Kirk v Industrial Relations Commission of New South Wales

Jurisdictional Error Submissions 20 A number of matters agitated before this Court on the first occasion are not now pursued. These proceedings have, save in certain specific respects on the part of the opponents, proceeded on the basis of the judgment of this Court in the first proceedings. 21 Both parties accept the analysis of this Court to the effect that, following the amendments to the privative clause in s 179 of the Industrial Relations Act 1996 discussed in the earlier judgment, this Court is empowered to exercise its supervisory jurisdiction on the basis of jurisdictional error after the Full Court of the Industrial Court had dealt with any appeal to it. (See Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (2006) 66 NSWLR 151 esp at [31], [36], [52] and [83].) 22 The claimants' submissions rely on the authoritative statement in the joint judgment of the High Court as to the circumstances in which supervisory jurisdiction can be exercised with respect to a court in Craig v South Australia (1995) 184 CLR 163, which this Court had set out in the first proceedings. (See Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (2006) 66 NSWLR 151 at [37]-[38].) 23 The relevant test, invoked by the claimants, is whether the Industrial Court: · "misapprehends or disregards the nature or limits of its functions or powers" (Craig supra at 177). · "misconstrues [the] statute … and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case" (Craig supra at 177-178). This being an example of a court falling into jurisdictional error "by doing something which it lacks authority to do" (Craig at 177). 24 The claimants identified three jurisdictional errors by the Industrial Court in written submissions: "[42] Firstly it has failed to properly interpret the provisions of s 15 of the OH&S Act in that it has accorded it a strict liability, discounting any concept of foreseeability or reasonable foreseeability let alone any mens rea in relation to the criminal offence. It has interpreted the provision in such a fashion as to make compliance impossible. [43] Secondly, it has applied the defence afforded by the legislature in s 53 of the OH&S Act in such a restrictive way that it presents no real defence at all. [44] Finally, the Court has so confused the notion of a non delegable corporate duty with the question of who within the corporation may fulfil that non delegable duty as to inflict criminal responsibility without regard to corporate compliance. [45] In each of these errors, the Court has so misunderstood its task as to fail to perform the duty reposed in it." 25 In support of the first proposition the written submissions stated, in part: "[51] The Industrial Court has expressly held that the duty is breached even when the risk to safety is not reasonably foreseeable Drake Personnel Ltd v Workcover Authority (NSW) (1999) 90 IR 432 at 452. [52] In short the Industrial Court has found that there is an absolute duty on the employer created by section 15 of the OH&S Act to prevent any risk to the Health Safety or Welfare at work of its employees. The creation of a risk free environment is of course impossible in many areas of industry … … [55] … If no coherent consistent restriction is placed on the apparently wide ranging scope of the statutory provision it covers all manner of circumstances over which the employer can have no control. No such restriction has been attempted by the Industrial Court." 26 The claimants submit that s 15(2) suggests a legislative intention to restrict the duty under s 15(1) - specifically the restriction in s 15(2)(d) - to a "place of work under the employer's control". The claimants also invoke the reference in s 15(3) to any plant or substance not being "regarded as properly used", in support of the same proposition: 27 Those subsections state: "15(2) Without prejudice to the generality of subsection (1), an employer contravenes that subsection if the employer fails … (d) as regards any place of work under the employer's control: (i) to maintain it in a condition that is safe and without risks to health … 15(3) For the purposes of this section, any plant or substance is not to be regarded as properly used by a person where it is used without regard to any relevant information or advice relating to its use which has been made available by the person's employer." 28 The claimants further submit: "[58] Alternatively, the rigor of the statute may be alleviated by focusing attention on whether the risk arises through some positive act or omission of the employer. Again the Industrial Court or its predecessor has resisted any such restriction … The employer has been held responsible for risks created through strikes and through the actions of inherently unstable criminals. [59] The absolute statutory duty created by the Act as interpreted by the Industrial Court is incapable of compliance. Such an interpretation offends the rule of law." 29 The claimants noted that there is a reference to "reasonable practicability" as a qualification in the statement of the duty itself in the interstate equivalents of s 15(1) and s 16(1) of the OH&S Act. In New South Wales alone the reference arises by way of a defence in s 53(a). 30 In this regard the claimants submit: "[63] … The Industrial Court, even in the more straightened terms of the NSW Act, has discounted any possibility of the defendant relying upon the notion that he acted on an honest and reasonable belief in conducting himself in the challenged fashion. Such an approach pays little regard to established jurisprudence in this area (see for instance Barry Edward McDonald (t/as B.E. McDonald Transport) v Girkaid Pty Ltd & 4 Ors) ." 31 The claimants conclude: "[101] Can it then be said to be an error within jurisdiction for a Court to so interpret a piece of legislation as to place it outside a rational and civilised criminal code? The Claimants submit not. As Mason J observed in Sankey v Whitlam (1978) 142 CLR 1 at 84: 'The distinction between no jurisdiction and jurisdiction to entertain proceedings for an offence unknown to the law is not sufficiently formidable to warrant intervention in one case but not in the other.' [102] The jurisdiction of the Industrial Court is statutory. The Occupational Health and Safety Act only confers jurisdiction on the Court in relation to offences under the Act. The Court below cannot create a new class of offence by misinterpreting the offences created by the statute. To the extent that it misunderstand the nature of the task reposed in it, it will inevitably have fallen into jurisdictional error ( Craig v South Australia (1995) 184 CLR 163 at 177.)" 32 In oral submissions, counsel for the claimants asserted that the Industrial Commission: " … has … imposed a duty which is incapable of being met. It has read the statute as imposing upon an employer an obligation to ensure a risk-free environment, which the court in its own jurisprudence acknowledges cannot exist."

33 As to the defence in s 53, the claimants made the following submission: "[67] … the Court below was unmoved by the practicability of a small farm operation with two part time employees conducting risk assessments and putting in place written procedures in respect presumably to every implement which could be used on the farm. This notwithstanding the familiarity of those at risk with farming operations … Such an approach to the defense, in the respectful submission of the claimant, presents in such a way that the statutory defense is not available at all. If the legislature provided a defense, presumably it was meant to have some utility. The fact that there are less than a handful of cases in the last 10 years where regard has been had to the defense may well point towards the perceived lack of utility of the defense on the interpretation adopted in the Court below."

Capacity to Comply 34 The central thrust of the claimant's submissions, repeated in a number of ways in oral submissions, was that the obligations under the OH&S Act must be capable of being complied with. To similar effect, the claimants submit that the Commission's approach deprives the defence in s 53 of any significance. It may be accepted that this was not Parliament's intention. However, the jurisprudence of the Industrial Court is not based on the denial of this proposition. 35 Walton J set out the relevant jurisprudence in the Industrial Relations Commission (now retitled, relevantly, the "Industrial Court") which expressly excludes liability for "risks that are impossible to anticipate, unduly remote or speculative". (See his judgment on liability WorkCover Authority of New South Wales v Kirk Group Holdings Pty Ltd [2004] NSWIRComm 207; (2004) 135 IR 166 at [130], [136].) His Honour indicated that he was inclined to take a different view and that he would assess such matters in terms of causation (see at [134]-[135]) but concluded that nothing turned on this in the proceedings (at [137]). Nevertheless, the prevailing jurisprudence in the Commission is as stated. 36 Similarly, Walton J identified (at [146]) authority that states that it would not be reasonably practicable to take precautions against a danger which could not have been known or, generally, which could not be reasonably foreseen. 37 The significance of these lines of authority is that it cannot be said that the Commission has, generally or in this case, adopted a position where it enforces obligations impossible of compliance or that no defendant can establish impracticability. In this regard I can detect no jurisdictional error. To apply the terminology of Craig supra at [23] above, the Commission has not misconceived its function, etc. Indeed, if there is an error of law, it is at most an error of interpretation within jurisdiction. 38 However, in substance, the claimants' submissions, in my opinion, involve an assertion that the Commission, in practice, stretches the concept of risk to such an extent that the exception for "unduly remote or speculative" risks and the defence are deprived of practical content. Similarly, that the concept of what is "reasonably practicable" is extended beyond reasonable grounds. These errors, if any, are based on factual findings. This Court does not have jurisdiction to review an error of that character. 39 Another way in which the claimants expressed this submission was that the Commission proceeds with respect to both a finding of contravention and the application of the defences so that, with the benefit of hindsight, it is always possible to think of something that might have avoided a risk that has materialised. This is also fact finding with respect to both the contravention and the s 53 defence. In my opinion, the thrust of the claimants' case is to seek judicial review of fact finding. That is not permissible in this Court. 40 The only submission made to the effect that such errors of law, which this Court has no jurisdiction to correct, constitute jurisdictional errors, entitling this Court to intervene, was that "the law 'was' not being applied in accordance with the statute". This does not identify a jurisdictional error. (See Craig supra at 177-178, set out above at [23].) Indeed, counsel for the claimants did not attempt to explain why these alleged errors constituted a misapprehension of the Commission's functions or powers, etc.

Other Submissions 41 The claimants submit that any risk to safety had to be foreseeable. I reject the submission that a test of reasonable foreseeability should be introduced into each statutory obligation. Section 15(1) and s 16(1) are strict liability offences in the sense that a mental element is not part of the offence, whether expressed in terms of intention or negligence. I do not find any assistance in the cases relied upon by the claimants concerning actions in negligence by an employee against an employer. 42 The claimants also referred to the defence of honest and reasonable mistake of fact, which, if applicable could give rise to a jurisdictional issue. (See Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (2006) 66 NSWLR 151 at [43] referring to R v Badger (1856) 6 EL & BL 138; 119 ER 816.) The significance of this "defence" or ground of exculpation, has recently been reaffirmed. (CTM v The Queen [2008] HCA 25 at [5]-[8], [35].) This "defence" was not relied upon before Walton J. Reference was made in the submissions before his Honour to the "defence", but the claimants did not and, on my reading of the decision in the Industrial Relations Commission and on appeal to the Full Bench, could not suggest that the "defence" had anything to do with this case. 43 No fact was ever identified in the Industrial Court or in this Court which could serve to relevantly excuse any, let alone each, of the breaches established. Nor was the Court referred to any evidence about such a fact or of an honest and reasonable belief in it. The most the claimants could point to was that Mr Kirk could not believe that Mr Palmer acted as he did. However, as the extracts from Walton J's judgment set out at [17]-[19] above indicate, the actual accident did not exhaust the range of failures constituting the contravention. The "defence" of honest and reasonable mistake has nothing to do with this case. 44 The claimants' submissions concentrated to a substantial degree on the circumstances of the particular accident that occurred. They drew attention to the skill and experience of some of the persons on the farm, including the deceased, and to the extraordinarily foolhardy nature of the actual conduct. I do not find it necessary to consider this factual detail. 45 For present purposes it is sufficient to note that although the particular accident triggered the investigation, the charge and conviction were not confined by it. I have set out above at [19] Walton J's findings in this respect. The claimants were convicted of creating a risk, not of causing an accident. The identification of the scope and nature of the risks went beyond the actual occurrence. 46 The claimants' submissions, variously expressed, that the accident that occurred was unforeseeable or that all relevant persons could relevantly be relied upon, because they knew how to drive the vehicles or were not permitted to do so, are misconceived. In any event, they do not establish anything in the nature of a jurisdictional error within the Craig formulation. Indeed, in my opinion, these submissions confirm that the claimants are seeking to appeal from findings of fact. This Court has no such jurisdiction. 47 With respect to the claimants' reliance on s 15(2)(d) and s 15(3), set out above, there was no attempt to articulate why this alleged error in interpreting the statute was jurisdictional in the Craig sense. In any event, s 15(2) expressly states that it does not limit the generality of s 15(1). It is not clear what are the full implications of the identification by s 15(3) of when "plant is not to be regarded as properly used". However, the words "properly used" appear in s 15(2)(f)(ii) and it appears to me that that is probably the limit of their application. It has no relevance for this case.

Corporate Responsibility 48 The issue upon which the Full Bench gave leave to appeal, and dismissed the appeal, was (Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales [2007] NSWIRComm 86; (2007) 164 IR 146 at [5]): "The Court [ie Walton J] dealt inappropriately with issues of corporate responsibility by failing to determine that the company had in fact fulfilled its duty through Mr Palmer who, rather than Mr Kirk, had been chosen by the company to fulfil the duty." 49 With respect to this issue, the claimants' written submissions in this Court state: "[68] In relation to corporate responsibility, it is clear on the face of the judgment of the Full Court in the proceedings below that there has been a misunderstanding of the concept of corporate responsibility and non delegable duty. The approach may best be expressed by reference to the English case cited by the Court below [50]. The simple point taken by the claimant in the proceedings below was that there was no finding that the company had failed to fulfill its duty. Given that Mr Palmer had been directed by the Company to fulfill the company's duty, any finding as to the failure of the company to fulfill that duty had to have regard to what Mr Palmer did, not to what Mr Kirk did. This has nothing to do with the 'corporate mind'. It is a complete acceptance of the non delegable nature of the duty. The question is to what one's attention must be directed in determining whether the duty has been fulfilled. For instance, if one was to ask whether the Company had filed a taxation return, one would not readily conclude that no return had been filed simply because Mr Kirk had not personally filed such a document. It remains the Company's responsibility to file the return, but if the accountant files it in accordance with his instructions then the company has fulfilled its statutory duty." 50 In oral submissions, the claimants contended that the company did in fact satisfy the duty through someone other than Mr Kirk, ie Mr Palmer. This was, in substance, a challenge to the finding by Walton J at [105] of his judgment set out at [17] above, that certain failures were occasioned by Mr Kirk "and therefore [by] the company". The submission is that the company was not in breach if it did take the steps by some person. A finding that Mr Kirk did not take the steps does not establish that no one did so. 51 The claimants submit that Walton J did not address the issue of whether Mr Palmer did any of the matters found to have been required (T 19.15-26). The Full Bench, they further submit, failed to address the correct issue on the appeal by misunderstanding the claimants' submission to it. 52 The claimants submit in the oral hearing before this Court: "If Mr Palmer didn't do them then we have no defence. What our complaint is, the court never attended on whether Mr Palmer did them or not. There's no finding that Mr Palmer didn't do any of this. There's a finding that Mr Kirk didn't do it. There's a finding that Mr Kirk took no steps to ensure that Mr Palmer didn't do it or did do it. But there's no finding that Mr Palmer didn't do it. There was evidence that Mr Palmer did do it. There was evidence that he discriminated in the use that employees have or that people had in their access to the ATV. But with some people he told them that they weren't to leave the marked tracks. With others he didn't. Mr McLeod the independent fencing contractor, he has been riding on his evidence motor bikes since primary school and he's 55. He's driven ATVs. He was allowed to take the vehicle off road." 53 The most pertinent findings of Walton J in this regard were: "[153] … Mr Kirk gave evidence that the Company had placed Mr Palmer "in charge" of the health and safety of employees and contractors on the Farm. It may well be that Mr Kirk was not in good health and that he placed enormous trust in his friend and employee, Mr Palmer. However, the duties imposed by ss 15 and 16 of the Act fall squarely on the Company. By purporting to delegate all responsibility for health and safety to Mr Palmer, the Company has neglected those duties. However, the Company's failure does not end there. Having delegated total responsibility, the Company took no steps to ensure that Mr Palmer had the necessary skills to conduct a risk assessment, to provide or arrange training, to instruct others in the safe use of the ATV or to supervise the use of the ATV. Further, the Company took no steps to ensure that Mr Palmer carried out his duties, particularly with respect to health and safety. Consequently, it had no effective control over use of the ATV prohibited or warned against by the Owner's Manual. [154] The provision of the safety information contained in the Owner's Manual was fundamental to ensuring the health and safety of employees and contractors. The Company's duties under the Act required it to not only make the Owner's Manual available to all persons who used the ATV on the Farm, but also to actively promulgate the information in the Owner's Manual to ensure that it had been read, understood and applied. In my view, the Owner's Manual presented a clear and practicable means of conveying important safety information about the operation of the ATV. The Company failed entirely to take advantage of that means; indeed, Mr Kirk did not know of the existence of the Owner's Manual prior to Mr Palmer's accident. The Company took no steps to disseminate the information in the Owner's Manual to those who used the ATV on the Farm: it is plain on the evidence that no employee or contractor, other than Mr Palmer, had been given a copy of the Owner's Manual and Mr Palmer received it by dint of taking possession of the ATV, not due to any independent instruction by the Company to ensure that he read it and abided by its safety precepts."

and "[156] The Company's obligations were not circumscribed by dissemination and promulgation of the Owner's Manual. The Company was required to assess the risks associated with the ATV in the actual conditions applying at the Farm and the manner in which it was used on the Farm. It was required, in my view, not only to give instructions as to the application of the Owner's Manual at the Farm but to ensure that those instructions were consistent with the topographical and other conditions of the Farm and with the experience and capabilities of those employees who may drive the ATV. This was not done. Even the basic step, which may have been taken, to instruct employees to stay on roads (notwithstanding the labelling of this vehicle as an "All Terrain Vehicle" and references in the Owner's Manual to off-road use) was not taken by the Company. The fact that Mr Palmer gave such an instruction to two contractors is not evidence that he had the view that such an approach was generally applicable or that he enforced it as a general rule. In any event, the Company gave no such instruction to Mr Palmer or any other employee or contractor. Employees and contractors used it off-road. Nor were instructions given as to driving the ATV on slopes (of whatever gradient)."

and "[158] The provision of training was a simple step available to the Company to protect the health and safety of persons in the workplace. The Owner's Manual specifically stated that "[t]he risk of an accident is greatly increased if the operator does not know how to operate the ATV properly in different situations and on different types of terrain" and prescribed a certified training course combined with regular practice to avoid this hazard. However, I have found, as a matter of fact, that none of the Company's employees or contractors were instructed or trained in relation to the use of the ATV beyond an initial demonstration of the basic functions of the vehicle. This was despite evidence of an organisation which offered training courses to ATV operators at the time the Company purchased the ATV, and at the time of Mr Palmer's accident. Importantly, the majority of that available ATV training was conducted at clients' sites, thereby addressing the specific risks likely to be faced by users of an ATV at the place of use. Although the extent and standard of training required by the Act will vary depending upon the nature of the work performed and the associated risks, there is no way that the perfunctory introduction to the ATV provided to employees and contractors (including Mr Palmer) could be said to have fully equipped them to safely perform work (including towing) with the ATV (see Genner Constructions at [58])." 54 His Honour concluded: "[162] Secondly, the defendant's submission that 'the evidence suggests that all foreseeable risks associated with the use of the ATV were the subject of appropriate risk management' cannot be sustained in the light of these conclusions and my findings at [105], particularly (c) and (l): that Mr Kirk, and therefore the Company, 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, and had no system in place to assess and determine whether or not employees or contractors of 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. To speak even more plainly, and noting that the question of reasonable foreseeability does not arise in the assessment of liability, there was clearly a foreseeable risk (spelt out in the Owner's Manual) that the ATV would overturn when driven off-road or when used to tow things and yet nothing was done to ameliorate these risks." 55 No attempt was made to identify how the oversight or finding by Walton J could constitute relevant jurisdictional error. It is all plainly fact finding, which this Court has no jurisdiction to review. 56 Towards the end of oral submissions the claimants made reference to procedural fairness, in the context of challenging some of the findings of fact, particularly the finding that the company failed to ensure that Mr Palmer had the requisite skill to ensure safety. This was not articulated as a separate basis for jurisdictional error on the part of a court, as distinct from a tribunal. Even assuming that such is capable of constituting jurisdictional error on the part of a court, which it is not necessary to consider, it is sufficient to note that this finding was merely one of many identified failings and does not constitute a basis for intervention. 57 With respect to the decision of the Full Bench, the claimants submit that the Full Bench failed to deal with the submission which was based on the absence of any finding that Mr Palmer failed to take the relevant steps. The Court focussed only on whether Mr Kirk was the controlling mind of the company and concluded, incorrectly the claimants submit, that it was unnecessary to deal with their submission. 58 Indeed, the Full Bench said: "[65] Walton J made certain findings, especially at [105] and [153], regarding the appellants' failures to ensure the safety of employees and non-employees. Those findings were not challenged on the appeal except to the extent that it was contended his Honour failed to determine that the corporate appellant had in fact fulfilled its duty through Mr Palmer who, rather than Mr Kirk, had been chosen by the corporate appellant to fulfil the duty and that there were no findings that Mr Palmer, as the controlling mind of the company in respect of the farm operations, committed any breach of the Act. [66] We have found there was no error on the part of Walton J in finding that Mr Kirk and not Mr Palmer was the directing mind of the corporate appellant. Accordingly, it is unnecessary to consider the appellants' contention that Mr Palmer committed no breach." 59 The claimants assert that the failure of the Full Bench to consider the submission was jurisdictional error. I can see no relevant jurisdictional error in accordance with the formulation in Craig set out at [23]. Indeed, no attempt was made to identify how the failure to deal with a specific submission constituted a misconception of its functions, etc.

Conclusion 60 The summons should be dismissed with costs. 61 HODGSON JA: I agree with the orders proposed by Spigelman CJ and with his reasons. 62 It is arguable that the Full Bench did not address the question whether Walton J erred in failing to consider whether or not it was proved beyond reasonable doubt that the corporate claimant did not, by its employee Mr Palmer, take steps which materially reduced the relevant risks; but I agree with Spigelman CJ that this was not a jurisdictional error. 63 HANDLEY AJA: I agree with Spigelman CJ. **********

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