171 There are no authorities directly in point as to the scope of what is encompassed by the term "persons concerned in the management of the corporation" as that phrase is used in the Occupational Health and Safety Act and in interpreting the phrase it is necessary to have regard to the normal rules governing statutory construction, which would include an examination of the context in which the expression is used and the objects of the Act. It is permissible, however, as an aid to interpretation, to have regard to how the phrase or similar wording has been construed in other statutory contexts: R v Scott (1990) 20 NSWLR 72 at 77 per Gleeson CJ with whom Hunt and Allen JJ concurred.
172 Helpful expositions of the expression "concerned in the management of" the corporation or body corporate (albeit not in connection with occupational health and safety legislation) are contained in the judgment of Ormiston J Commissioner for Corporate Affairs v Bracht [1989] VR 821 at 828 and in the judgment of Bleby J in Griggs v Australian Securities Commission [1999] SASC 405 at [41] to [45]. Bracht is referred to in Griggs, so it is unnecessary to refer to both separately. In considering the scope of the expression, Bleby J said in Griggs:
41 Management of a company may take place at many levels. It is reasonably clear from the section that management is not confined to matters performed by the directors or a managing director of a company, nor is it limited to the formulation of policy and direction of the company. As Ormiston J pointed out in Bracht (supra) at 829, there must be the exercise of some decision making powers. The question is how far down the management line does the definition extend. Ormiston J defined the concept of management in the following terms, with which I have no reason, with respect, to disagree (supra at 830):
There must be an element of decision-making, which affects the corporate enterprise as a whole, but those responsible need not form part of the board, nor even need they be executives directly communicating with the board. Nevertheless, in the ordinary course of affairs, it is only in a large company that persons outside this latter category, so far removed from the power of control exercised by the directors, may be engaged in the 'management' of a company. In a small company like the present the actions of those directly answerable to the directors may amount to 'management', for, even if those people are also engaged in routine activities of a kind not normally associated with management, it is sufficient if powers and functions are delegated to those persons which are likely in their performance to have a significant effect on the business and financial standing of a company. As it is a protective section, protective at least of the creditors and shareholders, then it must have been designed to prevent the participation in management of those who might put the solvency or the probity of the corporation's administration at risk. Persons not given any significant discretion or advisory role in decision-making could not therefore be intended as an object of the prohibition. It may be difficult to draw the line in particular cases, but in my opinion the concept of 'management' for present purposes comprehends activities which involve policy and decision-making, related to the business affairs of a corporation, affecting the corporation as a whole or a substantial part of that corporation, to the extent that the consequences of the formation of those policies or the making of those decisions may have some significant bearing on the financial standing of the corporation or the conduct of its affairs.
42 That definition does not require that management be exclusively vested in one person. Different persons may undertake different aspects of management. The fact that in this case Mr Lomman may well have been regarded as being involved in the management of Pernil does not exclude the appellant from being so involved also.
43 Ormiston J went on in Bracht to attempt to summarise the nature of the prohibition in these terms (at 832 - 833):
In the present section I would see the prohibition as covering a wide range of activities relating to the management of a corporation, each requiring an involvement of some kind in the decision-making processes of that corporation. That involvement must be more than passing, and certainly not of a kind where merely clerical or administrative acts are performed. It requires activities involving some responsibility, but not necessarily of an ultimate kind whereby control is exercised. Advice given to management, participation in its decision-making processes, and execution of its decisions going beyond the mere carrying out of directions as an employee, would suffice. If the respondent had been left to negotiate terms with bankers or providers of credit, although those terms had to be confirmed, there would have been sufficient participation, but not if those acts involved only communication or were merely casual. The negotiation of matters of financial importance, such as the rent of its principal premises, may well lead to an inference that a person is concerned in the management of a company, but not if that involved merely communication of instructions on a single occasion. A combination of these activities may likewise lead to the relevant inference, so long as the defendant is given some measure of responsibility or some area of discretion, or so long as his opinion is given some weight in the decision-making processes of management. Beyond this it is difficult to go, for circumstances and procedures may vary widely from company to company."
44 In a slightly different context Young J in Cullen v Corporate Affairs Commission (1989) 7 ACLC 121, after reviewing a number of authorities, including Bracht , concluded (at 126):
From all this one can say that one looks to see somebody making decisions as to the direction of the corporation though one does not necessarily look for someone who is making decisions at the highest level, nor is it necessarily so that the manager's decisions will not be subject to obtaining the approval of some higher officer. However, even though a person may be described as a manager if that person is merely carrying out the policy of the corporation in charge of a branch or division of the business and not making decisions as to its direction then probably that person is not taking a management role in the corporation.
45 I would merely add that, upon a review of all the evidence in a particular case, it becomes essentially a matter of impression, bearing in mind the sort of factors which are referred to in these cases, together with others to which I make reference below. It will be unhelpful to embark on a minute assessment of each activity, to determine whether that is an act of management or an act of a clerical or administrative kind, and then to attempt some weighing or balancing process according to the result of such assessments.
173 Having regard to the evidence in these proceedings and what was said in Bracht and Griggs, we consider Mr Foster was concerned in the management of the corporate respondent. The evidence in this respect was that Mr Foster was the mine manager and, as the appellant submitted, he had "the highest level of supervisory control of all matters at the Awaba Colliery and ultimate supervisory control over all occupational health and safety matter at the Awaba Colliery."