Masterton Homes Pty Ltd v WorkCover Authority of New South Wales

CATCHWORDS: Notice of Motion - appeal proceedings - adjournment sought - orders seeking vacation of hearing date pending High Court decision - effect of matters before High Court likely to affect jurisprudence of Industrial Court of New South Wales - construction of Occupational Health and Safety Act 1983 - adjournment granted

Administrative Decisions (Judicial Review) Act 1977 (Cth) Crimes (Appeal and Review) Act 2001 LEGISLATION CITED: Industrial Relations Act 1996 Judiciary Act 1903 Occupational Health and Safety Act 1983 Occupational Health and Safety 2000

Cahill v State of New South Wales (Department of Community Services) (No 3) [2008] NSWIRComm 123 City of Sydney Council v Satara [2007] NSWCA 148 Geelong Football Club v Clifford [2002] VSCA 212 Kirk v Industrial Relations Commission of New South Wales (2008) 173 IR 465 Kirk v Industrial Relations Commission of New South Wales & Anor [2009] HCA Trans 93 Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales & Anor (2006) 66 NSWLR 151 Liberato v The Queen (1985) 159 CLR 507 CASES CITED: Meggitt Overseas Ltd v Grdovic (1998) 43 NSWLR 527 Ramsay v Aberfoyle Manufacturing Co (Australia) Pty Ltd [1935] HCA75; (1935) CLR 230 Re Yates' Settlement Trusts [1954] 1 All ER 619 Repatriation Commission v Law (1980) 47 FLR 57 Thornton v Repatriation Commission (1981) 52 FLR 285 Wallace v Stanford (1996) 187 CLR 707 WorkCover Authority of New South Wales v Kirk Group Holdings Pty Limited & Anor (2005) 137 IR 462 WorkCover Authority of New South Wales v Kirk Group Holdings Pty Limited (2004) 135 IR 166

APPELLANT/APPLICANT ON MOTION Mr KG Bennett, counsel

LEGAL REPRESENTATIVES: RESPONDENT/RESPONDENT ON MOTION Mr R Reitano, counsel SOLICITORS: DLA Phillips Fox

MASTERTON HOMES PTY LTD v WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR BATTY)

Application by Masterton Homes Pty Ltd for leave to appeal and appeal against a decision and orders given by Chief Industrial Magistrate Hart on 28.5.2008 and 12.11.2008 in matter No. CIM 120264/06/4

1 On 28 May 2008, Chief Industrial Magistrate Hart found that the appellant had breached the obligations imposed upon it by the Occupational Health and Safety Act 2000 ('the OHS Act'), when the employee of a subcontractor was injured at a worksite where the appellant was constructing a two storey residential dwelling. A beam, which was struck by a crane operated by another employee of the subcontractor, was dislodged from its position, striking the employee as it fell to the ground. The appellant defended the charge brought and sought to make out a defence under s 28 of the OHS Act, but was convicted. A penalty of $34,000 was imposed in a judgment given on 12 November 2008. 2 By consent, his Honour's orders were stayed on terms agreed by the parties. The appeal from his Honour's decision has been set down for hearing on 10 July 2009. By notice of motion filed on 4 June 2009, the appellant asks that the hearing be vacated and that the matter not be heard, until the High Court's determination of an application which raises the question of the proper construction of the predecessor to the OHS Act, the Occupational Health and Safety Act 1983 ('the 1983 Act'), which is in relevantly similar terms to the OHS Act. That application concerned the Court of Appeal's judgment in Kirk v Industrial Relations Commission of New South Wales (2008) 173 IR 465. Special leave was granted by the High Court on 1 May 2009 (see Kirk v Industrial Relations Commission of New South Wales & Anor [2009] HCA Trans 93.) The appellant's enquiries of the High Court have revealed that the matter is expected to be heard in the July/August sittings of the Court. The respondent opposes the adjournment. 3 The parties each advanced their arguments by reference to the Court of Appeal's judgment in City of Sydney Council v Satara [2007] NSWCA 148. 4 As the appellant conceded, the notice of appeal in this case is expressed in very general terms, alleging that his Honour fell into various error, both in relation to fact finding and on the basis that the finding of guilt involved a miscarriage of justice, it having made out a defence on the evidence. Plainly, the notice of appeal could have been better drafted. An appellant is not entitled to first reveal the case it truly wishes to put on appeal, in submissions. If there is some infelicity in the pleadings, the proper course is to seek leave to amend the notice of appeal. 5 Nevertheless, it was the appellant's case that justice required that the hearing of the appeal not proceed, until the High Court's judgment in Kirk was given, because this appeal raised similar questions to those now before the High Court. 6 The special leave application was before us. It sought leave to appeal from the whole of the judgment of the Court of Appeal, and orders quashing the appellant's convictions and sentences, on three grounds:

2. The Court of Appeal erred in holding that the construction afforded to section 15 of the Occupational Health and Safety Act (NSW) 1983 by the Industrial Court of New South Wales in these proceedings did not render the section incapable of compliance.

3. The Court of Appeal erred in holding that the construction afforded to section 15 of the Occupational Health and Safety Act (NSW) 1983 by the Industrial Court of New South Wales in these proceedings was not affected by jurisdictional error.

4. The Court of Appeal erred in holding that the Industrial Court had not erred in a jurisdictional sense by failing to deal with, or alternatively applying the incorrect legal test to, the submission of the Appellants that omissions of an individual (Mr Kirk) were not attributable to the corporate Appellant in circumstances where the corporate Appellant had otherwise satisfied the relevant duties. 7 The appellant's case was that there was a true intersection between the matters here raised and those before the High Court. By way of example, the appellant referred to the argument on the special leave application in Kirk, as to the role which warnings had played in the breach of the statutory obligation under consideration. That was also a particular of the offence charged in this case, which the Chief Industrial Magistrate had found proven. The question of whether an employer could rely on experienced persons or specialist contractors in meeting its obligations under the OHS Act were also argued to arise in both proceedings, as did the manner in which the common law of Australia is applied to prosecutions arising under the OHS Act. 8 It followed, it was argued for the appellant, that while the delay in hearing this appeal would not prejudice the parties, as might have been the case if the matter had not yet been heard at first instance, proceeding with the appeal without the High Court's judgment being given would result in significant expenditure, delay and other consequences, inconsistent with the requirements of justice. 9 The respondent's case was that the onus fell on the appellant to establish that there would be an injustice if the hearing of the appeal was not adjourned, pending the High Court's judgment in Kirk. That onus had not been met, the necessary intersection between what arose for consideration in this appeal and what was before the High Court, not having been established. To adopt the course proposed would have considerable consequences for the administration of justice, leading to similar applications in other cases. It was accepted that there might be inconvenience and cost, if the appeal proceeded and the appeal in the High Court succeeded, with the result that there was some impact on what had to be determined in these proceedings, but that, it was argued, was not a sufficient basis for the granting of an adjournment. The matter should not be determined on the basis of speculation as to what the High Court might do. More had to be shown. If those submissions were not accepted, a middle course would be to utilise the time allocated to deal with the issues of evidence raised on the appeal and then to reserve judgment, later giving the parties the opportunity to make further submissions when the High Court's judgment had been given. Consideration 10 There is no question that the Court has power to grant the adjournment sought, if justice requires that outcome (see s 162 of the Industrial Relations Act 1996 ('the IR Act')). It is also well settled that courts should act upon the law as it is; they should not speculate upon future alterations to the law (see Ramsay v Aberfoyle Manufacturing Co (Australia) Pty Ltd [1935] HCA 75; (1935) CLR 230 at 253.) This approach was again considered by the Court of Appeal in Satara, where it was observed at [31]:

A case which has been specially fixed for hearing at a date some months in the future should proceed to hearing unless to refuse an adjournment would prejudice a party to the point of denying justice: Watson v Watson (1968) 70 SR (NSW) 203 at 206 per Asprey JA; at 210 - 211 per Holmes JA. 11 In Satara, the proceedings were governed by the provisions of the Civil Procedure Act 2005, which in s 56 specifies that the overriding purpose of that Act is 'to facilitate the just, quick and cheap resolution of the real issues in the proceedings'. That Act does not apply to this Court. These proceedings concern an appeal from a conviction under the OHS Act, which are governed by the provisions of the Crimes (Appeal and Review) Act 2001 (see s 197 of the IR Act). Nevertheless, it is undoubted that when considering an adjournment application in such proceedings, the Court must also be concerned to do what justice requires, as between the parties to the appeal. 12 In Satara, reference was made to the judgment of Mason P in Meggitt Overseas Ltd v Grdovic (1998) 43 NSWLR 527, where his Honour discussed exceptions to the ordinary approach, which included situations such as those discussed in Re Yates' Settlement Trusts [1954] 1 All ER 619 at 621. There, it was accepted that where an important case is known to be the subject of an appeal, the view may properly and reasonably be taken that another case along the same lines should not be decided until the result of the case under appeal is known, but that this depended on the circumstances of the particular case. In the particular circumstances of that case, it was concluded that there should be no adjournment, despite the pending appeal, given the health of the settlor, who might not have long to live, with the result that there might be an injustice to the parties, if he died before the matter was heard. Evershed MR observed:

It may well be that, if a case, and an important case, is known to be subject to appeal to the House of Lords, or from a judge of first instance to the Court of Appeal, a judge may reasonably and properly think that it is in the general public interest not to decide another case on the same lines until the result of the case under appeal has become known. I say that it may be so. It depends very much on all the circumstances of the particular case, and, if the judges of the Chancery Division have reached the conclusion that in the public interest it would be better generally to postpone dealing with applications of this kind until the decision in Re Chapman is known, then I should feel that it was, prima facie at any rate, a matter for the Chancery judges to decide. Whether any such decision by the judges has been come to I do not, of course, know. I have said what I have because I desire to confine my judgment to the particular case which we have before us. 13 Reference was also made in Satara to Thornton v Repatriation Commission (1981) 52 FLR 285 at 292, where it was held that delaying a determination pending a decision of the High Court which would clarify or settle the law, was not improper or incapable of justification. There Fisher J was considering a delay by the Repatriation Commission in making a decision under the Administrative Decisions (Judicial Review) Act 1977 (Cth), until the High Court handed down its decision in an appeal from the Full Court of the Federal Court in Repatriation Commission v Law (1980) 47 FLR 57. His Honour dismissed the appeal, concluding that the delay was not unreasonable. His Honour took into account the fact that the delay was for a finite period, it not being able to be assumed that there would be any excessive delay in the High Court handing down its decision. He also considered the consequences of the matter being decided before the High Court's judgment was given. They included, at 293:

It cannot be said to be unreasonable, and conversely it might be said to be more responsible, to refrain from paying irrecoverable moneys during a period of some uncertainty. Likewise the undesirability of the raising of her expectations in circumstances where there could conceivably be a reversal of the decision is a matter worthy of consideration.

14 Of particular significance in this case, was the reference made in Satara to the observations of the Victorian Court of Appeal in Geelong Football Club v Clifford [2002] VSCA 212, where it was observed at [6] to [8]:

[6] The error here demonstrated was the judge's failure to appreciate that a party is entitled to a trial of a proceeding ready for hearing unless it is clearly shown that injustice is likely to be caused if the adjournment is refused. It is not ordinarily sufficient to show that an appeal yet to be heard in another case may reach a legal conclusion which could support the claim made by the party seeking the adjournment. Of course there are no black and white rules preventing adjournments in appropriate circumstances. It is not, for example, necessary to say anything here about the adjournment of criminal trials, where the accused may suffer the stigma of being found guilty of an offence where the constituent elements are under direct challenge in an appeal court. On the civil side there may be cases involving some technical rule of law or the disputed meaning of a particular section, where an appeal court has reserved its decision (or, even, is just about to hear argument), where the hearing and the resolution of the case will directly depend on the outcome of an appeal in a test case, such that it would be preferable to await the expected outcome. The sooner the appeal is likely to be resolved, the stronger may be the argument in favour of delay, especially in terms of convenience to parties and the trial court itself.

[7] Generally speaking, however, a possible change in the law, whether judicial or legislative, is not to be treated as justification for failing to hear a case fixed and ready for trial. It is not necessary to examine such authorities as there are on the subject, for they were not referred to in argument and all deal with particular cases. Possible changes in the law are too speculative and it is ordinarily rare that one can foresee that a decision on appeal will necessarily apply in the subject proceeding. In the end, as I have said on another occasion, it is the principle which counts, not the outcome of a particular case. Many issues are on appeal in the High Court at any one time and many applications for special leave are in the pipeline, but one cannot demand that trials be delayed and adjourned merely because the outcome of any one of those appeals may have a bearing on the outcome of a particular trial. One may think of exceptions, particularly where the issue is limited and the appeal to the High Court is intended to resolve a dispute between two directly conflicting lines of authority binding on the trial court, but that would seem to be a rare situation.

[8] In the present case there was no justification for taking the case out of the list. There is in fact no appeal on foot in the South Tweed Heads Rugby Club case and it would be quite wrong to await the outcome of that particular appeal before hearing the present case, even assuming special leave to appeal will be granted. If there is an error in principle here, then the unsuccessful party can appeal the outcome and the answer to that appeal may lie in the High Court's decision, if it reaches one, in the South Tweed Heads Rugby Club case or possibly in some other case relating to liability in negligence. Each case must depend on its facts and it is significant to notice that even on the stated question of principle in the South Tweed Heads Rugby Club case Heydon, J.A. said at para. [2]: "Though the general questions relating to duty discussed in his reasons for judgment [i.e. those of Ipp, A.J.A.] were not fully argued, and though their resolution is not crucial to the outcome of this case, it is convenient, in examining the case as a whole, to take into account those questions." From this it would seem that it is by no means clear that the matter will be resolved by reference to the asserted principle nor, looking at the present case, will the facts necessarily depend precisely on what statement of principle is reformulated by the High Court, if any principle is reformulated. But in any event, as I have said, there is no reason to assume for the purposes of such an argument and for such applications as the present, that there will be a change in the law, unless that appears as a likely consequence. Every case, of course, depends on its own facts. But the circumstances here outlined are clearly not ones which justified the grant of the adjournment. The consequential delay was clearly going to be excessive and it was quite unjust to the parties, especially the appellant, to defer the trial for so long for such an uncertain consequence. As I have said, if this proceeding turns out to have been decided on a wrong principle, that can be corrected appropriately. 15 In Satara, the conclusion reached by the Court of Appeal was that the trial judge had erred in granting an adjournment of the hearing. Special leave had been sought in the other proceedings relied on, but not yet considered by the High Court. At [32] it was observed

[32] It is apparent from the authorities that there are circumstances in which it is open to a trial judge to adjourn the hearing of a case pending the outcome of an appeal yet to be heard in another case. In Meggitt , Mason P pointed out that one of the distinguishing features in such cases was the "level of certainty that the point will be addressed" and the "knowledge that if and when it is, the decision of the Court higher in the appellate chain will declare the law on the relevant topic with retrospective effect." In Yates , too, the fact that a case was known to be subject to appeal to the House of Lords or from a judge at first instance to the Court of Appeal was a matter a judge might reasonably take into account in deciding not to hear a case on the same lines until the result of the case under appeal had become known. In Thornton , too, it was certain that there would be a decision of the High Court on the relevant point of law as, at that stage, the High Court had reserved its decision. 16 The Court of Appeal went on to say at [38] that 'The position may (but not necessarily) have been different if special leave had been granted and the hearing of the appeal expedited.' The Court also accepted at [41] that 'As the authorities and this judgment indicate, much can change depending on the stage the application for special leave in North Sydney Council v Roman has reached. It would clearly be open to the opponent to renew her adjournment application if the position in the High Court becomes clearer.'

Would the appellant be denied justice if the adjournment were refused? 17 Against that background, turning then to the circumstances of this case, may it be concluded that the appellant has shown that to refuse the adjournment would be to prejudice it to the point of denying justice? 18 Firstly, it is relevant to consider that these are appeal proceedings, not the trial of the charge laid against the appellant, so that the type of difficulty discussed in Satara at [39], does not here arise for consideration. In this case, it is the appellant who seeks to delay the hearing of the appeal it has brought and the respondent, the successful prosecutor below, who opposes that course. It follows that what is at issue between the parties, apart from the cost of the litigation, from the appellant's point of view is both the stigma of the offence of which it has been convicted and the $34,000 penalty which has been imposed. The appellant is content to live with that stigma, pending the High Court's judgment. The penalty has been stayed, a matter presumably of some significance to the prosecutor, because of the Chief Industrial Magistrate's order granting it a moiety of that fine. 19 The parties take their respective positions in relation to the adjournment in circumstances where it is certain that the question of whether or not the duty imposed by s 15 of the 1983 Act was an absolute duty, will be put beyond further argument by the High Court's judgment in Kirk. That is certainly an important, albeit limited issue, one which has long been settled by judgments of this Court and its predecessor, which the Court of Appeal recently confirmed in Kirk. This Court has also taken a similar view in relation to the obligation imposed by s 8 of the OHS Act (see Cahill v State of New South Wales (Department of Community Services) (No 3) [2008] NSWIRComm 123 at [291]). 20 This Court may not proceed on the basis that there is any certainty that the High Court will disagree with the long settled jurisprudence of this Court, now supported by the Court of Appeal's judgment from which special leave has been given. Nevertheless, that special leave has been given in Kirk is undoubtedly a factor which weighs in favour of the application being granted (see Satara at [38]). 21 Also to be considered is the evidence, that while not certain, it is likely that the matter will be heard shortly. It may not be thought that there will be any real delay in the High Court giving its judgment, once the matter has been heard, the question before it concerning a criminal conviction under the 1983 Act.

22 That these proceedings involve an appeal against a criminal conviction, not a hearing at first instance which may be corrected on appeal, is another factor to be considered, having in mind the statutory scheme under which the Court operates. This Court's judgment on appeal will attract the provisions of s 179 of the IR Act, which provides that: 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. 23 In Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales & Anor (2006) 66 NSWLR 151, the Court of Appeal concluded that it had a limited supervisory power over the decisions of this Court, Spigelman CJ observing, for example: [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). 24 In Satara, the Court of Appeal emphasised that adjournment of a hearing pending determination of other proceedings in the High Court will not be the course ordinarily taken, but may be what justice requires in a particular case, where there is a "level of certainty that the point will be addressed" and the "knowledge that if and when it is, the decision of the Court higher in the appellate chain will declare the law on the relevant topic with retrospective effect." 25 Here, it is the judgment which the Court of Appeal went on to give in Kirk, in respect of which the High Court has given special leave. This was undoubtedly an important judgment, as even a perfunctory examination of the headnote reveals. Amongst other things, there it was decided that:

5 The Industrial Relations Commission has not adopted an interpretation of the Occupational Health and Safety Act 1983 that renders the statutory duties imposed by the Act impossible of compliance. No jurisdictional error of law is made out either in the general jurisprudence of the Industrial Relations Commission of New South Wales, or in its application to this case. [37] [40] [61] [63]

6 The test of reasonable foreseeability should not be introduced into ss 15(1) and 16(1) of the Occupational Health and Safety Act 1983.

7 The defence of honest and reasonable mistake has no relevance to this case. [42]-[43] [61] [63]

8 The claimants have not established any jurisdictional error in the interpretation of s 15(2)(d) and s 15(3) of the Occupational Health and Safety Act 1983. [47] [61] [63]

9 The Court has no jurisdiction to review findings of fact challenged by the claimants. [38]-[39] [44] [46] [61] [63] 26 Whether or not the view which the High Court takes in Kirk, will confirm that reached by the Court of Appeal as to the proper construction of the 1983 Act, cannot be known. The High Court does not give reasons for granting special leave, but it is pertinent to observe that the grant of such leave is governed by the Judiciary Act 1903, which provides:

s 35A Criteria for granting special leave to appeal

In considering whether to grant an application for special leave to appeal to the High Court under this Act or under any other Act, the High Court may have regard to any matters that it considers relevant but shall have regard to:

(a) whether the proceedings in which the judgment to which the application relates was pronounced involve a question of law: (i) that is of public importance, whether because of its general application or otherwise; or

(ii) in respect of which a decision of the High Court, as the final appellate court, is required to resolve differences of opinion between different courts, or within the one court, as to the state of the law; and

(b) whether the interests of the administration of justice, either generally or in the particular case, require consideration by the High Court of the judgment to which the application relates. 27 It may be, as the appellant argued, that in granting special leave the High Court took the view that the Court of Appeal's judgment in Kirk was an appropriate vehicle to endorse the settled view of the proper construction of the 1983 Act, given that there have been a number of earlier special leave applications refused by the High Court. That is certainly one possibility, given that there are no apparent differences of opinion within this Court, or between it and the Court of Appeal, as to the proper construction of the 1983 Act. Nevertheless, that may not be the High Court's purpose. The High Court has repeatedly said that it is not a court of criminal appeal and in Liberato v The Queen (1985) 159 CLR 507 observed at 509 that:

... it will not grant special leave in criminal cases unless some point of general importance is involved, which, if wrongly decided, might seriously interfere with the administration of criminal justice: see now Judiciary Act 1903 (Cth), section 35A.

28 It was also said in Wallace v Stanford (1996) 187 CLR 707 by Brennan CJ that: Questions of great public importance to the residents of a State often depend on the construction of a particular provision in the statutes of that State. Although this court's appellate jurisdiction is available to resolve conflicting decisions of a State's courts on such matters, prima facie the resolution of such conflict should be effected by the Court of Appeal or the Full Court of the Supreme Court of the State. If the parties do not seek a Court specially constituted to resolve such conflicts in this Court will not necessarily intervene to settle the question of construction. In general, the construction of a State statute which involves no important question relating to the rules of statutory construction is not an issue which commends the grant of special leave to appeal. Particularly is that so when the special provision is not common to other States and Territories of the Commonwealth. 29 It follows that the prospect that the appeal in Kirk may be upheld by the High Court, may not be discounted. That does not, however, entirely dispose of what here arises to be considered. 30 What must also be considered is whether there is a real intersection between what was in issue in Kirk and what is here in issue. The parties were not agreed as to this. Walton J, Vice President set out the charges which are now before the High Court in Kirk in WorkCover Authority of New South Wales v Kirk Group Holdings Pty Limited & Anor (2005) 137 IR 462:

[6] The charge laid under s15(1) (being Matter No. IRC 1730 of 2004) was as follows: The alleged offence is that [the Company], on 28 March 2001, at "Mount Hercules Farm", 340 Mount Hercules Road, Razorback in the State of New South Wales, a work place operated by [the Company] failed to ensure the health, safety and welfare at work of its employees, in particular Graham George Palmer, contrary to s15(1) of the Occupational Health and Safety Act 1983.

[7] The particulars of that charge were that the Company failed to: (a) provide or maintain systems of work that were safe and without risks to health in relation to the operation of the [ATV];

(b) provide such information, instruction, training and supervision as may be necessary to ensure the health and safety at work of its employees in relation to the operation of the [ATV]; (c) to take such steps as are necessary to make available in connection with the use of any plant (namely the ATV) at the place of work adequate information about the use for which the plant is designed and about any conditions necessary to ensure that, when put to use, the plant is safe and without risks to health;

(d) ensure that the [ATV] was only operated by persons with appropriate training; (e) adequately identify, assess and control risks and hazards in relation to the operation of the ATV on the farm.

[8] The charge laid under s16(1) (being Matter No. IRC 1732 of 2004) was as follows: The alleged offence is that [the Company], being an employer, on 28 March 2001, at "Mount Hercules Farm", 340 Mount Hercules Road, Razorback in the State of New South Wales, a work place operated by [the Company] failed to ensure that non-employees, namely David Thorn, Jason McLeod and Craig Haden, were not exposed to risk of injury arising from the conduct of its undertaking while they were at "Mount Hercules Farm", contrary to s16(1) of the Occupational Health and Safety Act 1983.

[9] The particulars of that charge were that the Company failed to: (a) ensure that persons not in the employer's employment were 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 in relation to the operation of the [ATV]; (b) ensure that the [ATV] was only operated by persons with appropriate training;

(c) adequately identify, assess and control risks and hazards in relation to the operation of the ATV on the farm.

[10] The charges laid against Mr Kirk under s50(1) of the Act (being Matter Nos. IRC 1731 and 1733 of 2004) recited the offences alleged under s15(1) and s16(1) and, in relation to each offence, alleged as follows:

[Mr Kirk], being a person concerned in the management of [the Company], is deemed to have contravened the same section pursuant to s50(1) of [the Act]. 31 In this case, the Court Attendance Notice indicated the charge to be:

On the said date at the said place the defendant, being an employer, failed to ensure that persons other than its employees, namely William Gordon Mitchell (injured worker) (then aged 65 years) an employee of Structural Cranes Pty Ltd were not exposed to risks to their health, safety and welfare arising from the conduct of the defendant's undertaking, namely the construction of a two storey residential home (undertaken) at the site (place of work of the defendant), in that whilst the injured worker was standing in the front of the garage area of the home under construction an unsecured steel beam was struck and dislodged from its position above the top of the garage area by a pack of timber wall frames being raised to the upper level of the home by crane, striking the injured worker on the left shoulder and left ankle as it fell causing him to sustain serious injuries including two fractures to his shoulder and a fracture to his left ankle, which prevented him from performing his normal duties for a period of more than seven days by reason that: 1. The defendant failed to adequately secure the beam in position.

2. The defendant failed to ensure that persons did not access the area beneath the unsecured beam.

3. The defendant failed to provide information or warning to the injured worker that the beam was unsecured.

4. The defendant failed to provide the injured worker with a site induction.

32 Further particulars of the charge were given by the respondent, as the Chief Industrial Magistrate's decision reveals, which led to repeated complaint by the appellant, both at an interlocutory stage and at trial. Lying between the parties at one point was the impact of the Court of Appeal's judgment in Kirk, particularly observations made by Basten JA, who observed, for example:

[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].

33 As the Chief Industrial Magistrate's reasons for decision of 28 May 2008 reveal, all of these controversies were resolved in favour of the respondent (see at [4] to [14]). His Honour then dealt with various evidentiary contests and concluded at [33] to [34] that certain failures had been established, including that:

[T]here was no-one on site authorised and instructed to ensure that such subcontractors were fully aware of any hazards that might be relevant to the tasks they were about to perform…. On the evidence, Mr Mitchell was never given any induction of the site, but even of he had received some induction many weeks earlier, such induction would have been irrelevant in that it would not have included any relevant warning alerting him to risks to his safety present at the site on the day of the alleged offence.

34 His Honour concluded that the steel beam which fell presented a risk to safety in that it could be moved by being nudged by a load of timber frames (at [37]). The particulars of the offence charged were found to have been established. There had been no warning given that the beam was resting on its own weight, or of any hazard associated with the beam (at [45]). His Honour concluded at [46] that the evidence had established a causal connection between the defendant's failures and the relevant risk to safety at the site. On appeal, the appellant seeks to challenge those findings on the evidence, also complaining that his Honour failed to explain the basis of his conclusion that there was a causal connection between the risk of the beam falling and the evidence that despite the failure to warn, the beam had been observed by the workers involved in the accident which gave rise to the charge and even if there had been a warning that the beam was not secured, the work undertaken which led to the beam falling, would have been performed no differently than it was. 35 Before the High Court in Kirk the arguments advanced by the appellant focussed on matters which were claimed to reveal this Court's error in the proper construction of the 1983 Act, by reference to various matters, including a failure to give necessary warnings about the risks there in question. Evidence of a failure to give necessary warnings was a factor which led Walton J to convict in WorkCover Authority of New South Wales v Kirk Group Holdings Pty Limited (2004) 135 IR 166, albeit it was not at the heart of the prosecution, in the same way as here arises (see at [152]). His Honour also there had to deal with the question of supervision. It follows that while there are by no means an identity of issues between the two proceedings, there is sufficient intersection for it to be concluded in this case, that the High Court's judgment in Kirk will be of some importance to the resolution of the matters which here arise on appeal. 36 Proceeding with the hearing of this appeal, if the High Court ultimately dismisses the appeal, may prove to have worked no injustice for the appellant. If the appeal is upheld, however, it would appear unavoidably to be the case, that the High Court's decision will have been of real relevance to what here arose for determination, given the leave to appeal which has been granted from the Court of Appeal's judgment. 37 In the circumstances of this appeal, that is of some moment, given the provisions of s 179 of the IR Act. While the respondent argued that there was no injustice in the appellant being left to pursue its remedies before the Court of Appeal, if its appeal to this Court failed, or even asking this Court to review its own judgment, it must be considered that the IR Act shows the Parliament's intention to be that appeal decisions of this Court will finally resolve all of the issues lying between the parties to an appeal. Any future review of this Court's judgment in these proceedings by the Court of Appeal will thus be limited, in the way discussed in Kirk Group Holdings Pty Ltd v WorkCover Authority Of New South Wales. Were this a trial, rather than an appeal, that difficulty would not arise for consideration. 38 As the appellant argued, the time, trouble and expense of even such a limited review of the Court's judgment in these proceedings would be considerable, in addition to what is involved in the appeal proceedings themselves. Also to be considered is that it is possible that such a review could result in a referral of the matter back to this Court, for its further consideration, in light of the High Court's judgment. Unnecessarily increasing the parties' costs is certainly undesirable, as is adopting a course likely to lead to proceedings elsewhere, if the adjournment be granted. 39 All of these potential difficulties will be avoided if the hearing of this appeal is delayed until the High Court gives its judgment, so that a Full Bench of this Court might have an opportunity to consider what was decided, in resolving the issues lying between the parties to this appeal. The Court of Appeal accepted in Satara that there are cases where justice demands that the parties not simply be left to pursue their appeal rights, but where instead, the proper course is to adjourn to await the High Court's decision. That is, in cases where the High Court's decision will have a critical impact on the case under consideration by the other Court. In those cases, justice requires that the hearing be adjourned, unless there is some other particular reason for the trial proceeding, such as was found in Re Yates' Settlement Trusts, where it was concluded that there might be an injustice to the parties, if the settlor died before the matter was heard 40 In a prosecution brought under the OHS Act, there does not seem to be anything more critical than the question of the nature of the duty imposed by the statute on the defendant and consequently, what the prosecutor has to establish at trial, in order to prove that the offence charged was committed. That is the question before the High Court in Kirk, albeit in the context of the 1983 Act. On appeal before us in these proceedings, is the question of what the prosecutor had to prove before the CIM, having regard to the nature of the duty imposed on the defendant by the OHS Act. 41 If the appeal in Kirk is upheld, what the prosecutor had to establish below, in order to prove that the offence charged was committed, may well be different to how that question was approached by the parties at trial. It may of course be that the evidence below still shows that the prosecutor met that different onus. That is what we would have to determine on appeal. 42 In that context, it follows in our view, that justice requires that the hearing of this appeal be adjourned. There are no countervailing reasons which would dictate that justice requires that the hearing of the appeal proceed. 43 A delay of the hearing and a delay in the payment of the fine and the appellant's receipt of the moiety ordered below, if the appeal ultimately fails cannot amount to a 'special circumstance' such as that considered in Re Yates' Settlement Trusts, which could lead to a refusal of the adjournment, notwithstanding 'the general public interest not to decide another case on the same lines until the result of the case under appeal has become known' (at 621). 44 In all of the circumstances, we are satisfied that the hearing of this appeal should be adjourned until the High Court gives its judgment in Kirk. To refuse the adjournment application would be to risk doing a real injustice to the appellant. Each case must be decided upon its own facts, but we are satisfied that it has been established that this is one of those exceptional cases where, as a matter of justice, the adjournment must be granted, given the potential consequences of a refusal of the application under the statutory scheme which governs these proceedings. This is not a case of delaying a trial, in the expectation of a change in the law enacted by the Parliament, but the delay of the hearing of an appeal by a Full Bench of this Court, while the High Court gives judgment in proceedings which will bind this Court, as to what the Parliament's relevant intention was in enacting the 1983 Act, in circumstances where the proceedings before the High Court also raise issues which will require this Court's consideration in these proceedings. 45 We have considered the middle course proposed by the respondent, but take the view that it is neither efficient nor fair to the parties, to split the hearing of this appeal. Orders 46 The hearing fixed for 10 July 2009 is adjourned and the parties are directed to approach to have the matter restored to the list, once the High Court's judgment in Kirk has been given.

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