National Hire Pty Limited v Howard

APPELLANT Mr R J Buchanan QC with Mr J J Fernon of counsel Solicitors: Landerer & Co (Mr L Pozniak) LEGAL REPRESENTATIVES: RESPONDENT Mr S Crawshaw SC with Mr D B O'Neil of counsel WorkCover Authority of New South Wales (Ms R Parmegiani)

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION FULL BENCH

CORAM: Wright J, President Walton J, Vice-President Haylen J Staunton J

Matter No IRC 1674 of 2002 NATIONAL HIRE PTY LIMITED v INSPECTOR DENNIS HOWARD

Application by National Hire Pty Limited for leave to appeal and appeal against a decision, conviction and penalty of Chief Industrial Magistrate Miller given on 30 January 2002 and 1 March 2002 in Matter No 20056466 of 2000

JUDGMENT OF THE COURT [2003] NSWIRComm 144

1 The present proceedings concern an application for leave to appeal and, if leave be granted, an appeal by National Hire Pty Limited against a decision of Chief Industrial Magistrate Miller on 30 January and 1 March 2002 in which his Worship convicted the appellant of an offence under s 18(1)(a) of the Occupational Health and Safety Act 1983 (the Act).

2 At the conclusion of the hearing before the Full Bench, we indicated that we had determined to refuse leave to appeal and would publish our reasons in due course.

3 The appellant's submission on leave to appeal sought consideration of a decision of the Full Bench of the Commission in WorkCover Authority of New South Wales (Inspector Mulder) v Arbor Products International (Australia) Pty Limited (2001) 105 IR 81. In effect, therefore, the applicant is seeking leave to appeal in order to obtain leave to have Arbor reconsidered.

4 That decision was a decision on appeal against an order and decision of Marks J given on 14 April 2000: WorkCover Authority of New South Wales (Inspector Mulder) v Arbor Products International (Australia) Pty Ltd [2000] NSWIRComm 12, whereby his Honour acquitted the defendant of an offence alleged under the then s 18(2)(a) of the Act. Before the repeal of the Occupational Health and Safety Act 1983 s 18 was amended and, for present purposes, the relevant offence previously created by s 18(2)(a) was (in general terms) replaced by an offence under s 18(1)(a).

5 In his decision at first instance in these proceedings, the Chief Industrial Magistrate, having regard to the facts and circumstances of the offence before him, relied on the Full Bench decision in Arbor as follows: Recently the obligation of a supplier under s18 of the Act was considered by a Full Bench of the Industrial Relations Commission in Inspector Mulder v Arbor Products International (Australia) Pty Ltd [2001] NSWIRComm 50. There the central issue was described as whether the plant supplied for use at work was safe and without risk to health. The majority stated: Such an approach has the potential to, and in this matter did, obscure or overshadow the central issue which, in our view, is whether the plant supplied for use at work was safe and without risk to health. If the answer to that is 'no' then, prima facie, the supplier has committed an offence under s18(2)(a) of the Act. If the answer is in the affirmative but a person uses the plant improperly or in a manner for which it was not designed, then the supplier, if charged with an offence, may rely on the defence of 'when properly used.'

6 In relying on the approach to offences under s 18(2)(a) as expressed in Arbor, his Worship, as he himself observed, was doing no more than applying the long established or received view stated by Fisher P in Callaghan v Theiss Contractors Pty Ltd (unreported, Matter No 1377 of 1989, 20 December 1990) where his Honour held that: Section 18(2)(a) which speaks of plant being safe and without risks to health when properly used still requires that the plant is to be 'safe and without risks to health' which this compactor never was. It is only when the safe and risk free plant is not properly [used] that the proviso operates to assist the manufacturer.

7 Further, as his Worship also recognised, his own decision in Inspector Ankucic v AGM Machinery Ltd (unreported, Matter No 90/121, 9 September 1991) had applied the decision of Fisher P in Theiss Contractors some ten years earlier.

8 The decision in Arbor thus rested on a carefully considered and well established principle, the subject of a long standing decision of the chief judge of this Court and the subject of a long standing decision of the Chief Industrial Magistrate.

9 An application for leave to reconsider a prior decision of a Full Bench of this Court would need to demonstrate to a substantial degree of conviction that the earlier decision was erroneous: see Clutha Developments Pty Ltd v Barry (1989) 18 NSWLR 86, particularly at 99 and 100, where Gleeson CJ stated: The Court is, however, guided in the exercise of all its powers, including its power to overrule earlier decisions, by certain principles. One such principle is a principle of restraint embodied in the axiom stare decisis. As Brennan and Deane JJ observed, in Babaniaris v Lutony Fashions Pty Ltd (1987) 163 CLR 1 at 29, citing Broom's Legal Maxims , that axiom attributes authority to judicial precedents in order 'to keep the scale of justice steady, and not liable to waver with every new judge's opinion.' ... However, making due allowance for the need for retaining flexibility and avoiding intransigence, it is generally accepted that before it is appropriate for an appellate court to overrule one of its own earlier decisions it must entertain a strong conviction as to the incorrectness of the of the earlier decision. Where the point concerns the meaning of unclear statutory language, and the view expressed in the earlier decisions is well and truly open, a mere preference for a different view will not suffice. See also WorkCover Authority of New South Wales (Inspector Keenan) v Lucon (Australia) Pty Limited (2002) 112 IR 332 at 346 (para[45]).

10 The decision in Arbor, in our view, is correct and is not one of manifest or demonstrable error that requires reconsideration. We do not accept the submission by the appellant that the passage quoted from the decision in Arbor in para [5] above suggests that an onus is cast on a defendant charged under s 18 to make out the proposition of equipment being properly used in the same way as an onus may arise as to a defence under s 53 of the Act. Leave to re-argue Arbor is refused.

11 In the present matter the offence under s 18(1)(a) of the Act was expressed thus: Full Offence Description: The defendant, being a person who supplied plant, to wit a Thomas Skid-Steer Loader, Plant No 2057, Registration No UKY 497 on 04 November 1997 to Hannas Civil Engineering Pty Ltd at a construction site situated at the Department of Defence Depot, Frenchmans Road, Randwick in the State of New South Wales for use by persons at work, in particular, Gene Claude Barrett, failed to ensure that the said loader was safe and without risks to health when properly used. In particular, the defendant failed to guard the nib point created by the cross member of the hydraulic boom arms and the chassis of the said loader.

12 The Chief Industrial Magistrate found as a matter of fact that a safety guard feature of the loader supplied by the manufacturer was a front step shield. That front step shield was not fitted or supplied with the loader when delivered by the defendant to Hannas Civil Engineering on 4 November 1997, the day on which the offence occurred. Given the findings of fact made by his Worship as to the absence of the safety shield, we discern nothing in his decision that would enliven any issue on appeal such that leave should be granted to appeal.

13 While the form of the section that applied at the date of the offence in Arbor and the offence before us has altered, that is not, in our view, a material consideration. The deletion of the then s 18(9) does not alter the principal obligation or duty under the section and to which the decisions in Theiss and Arbor were directed.

14 Accordingly, we make the following orders: 1. leave to appeal is refused; 2. the appeal is dismissed; 3. the appellant shall pay the respondent's costs as agreed or assessed.

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