Orr v Hunter Quarries Pty Ltd

District Court of NSW|2020-05-13

J Glissan QC (Defendant) D Nagle (Defendant)

Solicitors: McCullough Robertson (Prosecutor) Lancaster Law (Defendant) File Number(s): 2016/266431

Introduction

Hunter Quarries Pty Limited (the defendant) pleaded not guilty to a charge that being a person conducting a business or undertaking (PCBU) who had a health and safety duty under s 19(1) of the Work Health and Safety Act 2011 (NSW) (WHS Act) to ensure so far as is reasonably practicable the health and safety of workers while the workers are at work in the business or undertaking, it did fail to comply with that duty and the failure to comply with that duty exposed Mr Ryan Messenger to a risk of death or serious injury contrary to s 32 of the WHS Act.

Stated cases generally

The prosecutor seeks pursuant to s 5AE of the Criminal Appeal Act 1912 (NSW) that I state 18 questions for determination by the Court of Criminal Appeal. I must be satisfied that those questions are questions of law and that having them answered will enable the proper and just determination of these proceedings according to law.
Section 5AE provides: "POINT OF LAW STATED DURING SUMMARY PROCEEDINGS (1) At any time before the completion of proceedings before the Supreme Court in its summary jurisdiction, the Land and Environment Court in its summary jurisdiction, the District Court in its summary jurisdiction or a Court of Coal Mines Regulation in its summary jurisdiction, the judge hearing the proceedings may, or if requested by the Crown must, submit any question of law arising at or in reference to the proceedings to the Court of Criminal Appeal for determination. (2) The Court of Criminal Appeal may make any such order or give any such direction to the court concerned as it thinks fit."
Section 5AE provides a very convenient mechanism for a discrete question of law which arises during a hearing to be referred to the Court of Criminal Appeal for speedy determination. Judges presiding over jury trials refer questions of law during the course of the trial. Armed with the ruling on the question of law provided by the Court of Criminal Appeal the trial can proceed on a correctly informed basis. However the procedure in s 5AE is less suitable for cases such as the present, where the lengthy trial is over and judgment has been delivered. Because the prosecution does not have a statutory right of appeal against an acquittal, the only mechanism for the prosecution to appeal the judgment is the stated case procedure.
The procedure is a lot more complicated than if the prosecution had a simple right of appeal, as it has under s 107 of the Crimes (Appeal and Review) Act 2001 (NSW), if the prosecution had been dealt with on indictment rather than summarily. A stated case requires the prosecutor to come back to the judge who it asserts has made errors of law (multiple errors in the present case) to request that a case be stated. The judge who is said to have made errors of law is then required to approve or redraft the questions of law to be submitted to the Court of Criminal Appeal. It is hardly comforting to a prosecutor to be put in the hands of an erroneous trial judge to finalise the statement of errors made by that same judge.
Finally, there is then an adversarial process for the parties to argue whether errors of law have been made at all, and to argue about the form of the questions. In the present case the prosecutor submits that the way in which I approached the construction and application of s 19 of the WHS Act was erroneous in law. The defendant submits that the proposed stated case is an all grounds appeal on facts dressed up as an appeal as to law. The defendant also submits that the judgment relied upon "the established principles coming from the High Court … upon a plain reading of the Work Health and Safety Act 2011 (NSW) and with respect to this Court's judgment on common sense." It submits that the primary judgment is "entirely orthodox" (MFI 67 par 8).
Section 5AE of the Criminal Appeal Act was introduced on 31 July 1998 by the Crimes Legislation Amendment Act 1998 (NSW) sch 4. In the Second Reading Speech (New South Wales Parliamentary Debates, Legislative Council, 3 June 1998, 5586) the Attorney-General said: "Schedule 4 makes a minor amendment to the Criminal Appeal Act 1912. The amendment to section 5A(1A) provides that the mode of referral of questions of law arising out of summary proceedings before the Supreme Court, the Land and Environment Court or the Court of Coal Mines Regulation, in their summary jurisdictions, may be dealt with by the Court of Criminal Appeal. This amendment will rectify an anomaly in the present system which establishes a different procedure for questions of law from these courts to be heard before the Court of Criminal Appeal".
In May 2014 the New South Wales Law Reform Commission delivered Report 140 Criminal Appeals. In relation to the quirks of the stated case procedure referred to above, the Commission said: "Appeals against acquittal in summary jurisdiction of the higher courts 9.67 Currently appeal is available, on a question of law alone, from an acquittal by the Supreme Court or the LEC in its summary jurisdiction in any proceedings in which the Crown was a party. 9.68 We do not propose to expand the breadth of appeals from an acquittal by a judge in summary proceedings to questions of fact. To do so would be inconsistent with our view that an expanded appeal based on factual errors should be confined to serious offences. Expanding the avenue of appeal to other courts 9.69 It is not clear why appeals from acquittals in summary jurisdiction apply only to the Supreme Court and LEC. Possibly it was considered that their status as superior courts of record justified introducing this avenue of appeal, or because they were the only higher courts that regularly exercised a summary jurisdiction. 9.70 Both the District Court and the Industrial Relations Commission in Court Session (IRCiCS) have a summary jurisdiction. As a result of recent workplace health and safety reforms, the District Court is now charged with hearing the majority of summary prosecutions for certain work health and safety offences. The breadth of its summary jurisdiction has therefore increased significantly. 9.71 The IRCiCS has a summary jurisdiction to hear prosecutions for work health and safety offences, and recent amendments mean that decisions of the IRCiCS are subject to appeal to the CCA. 9.72 It is anomalous that acquittals in the summary jurisdiction of the Supreme Court and LEC are capable of appeal, whereas acquittals in the summary jurisdiction of the District Court or IRCiCS are not. In addition, the prosecutor can appeal the dismissal of proceedings in the Local Court on a question of law. Our view: appeal from acquittal in summary jurisdiction should apply to all higher courts 9.73 In our view, the need for consistency across all courts suggests that there should be an avenue of appeal against an acquittal made in the summary jurisdiction of the District Court and IRCiCS. It is just as important to be able to rectify errors of law in an acquittal made in the summary jurisdiction of these courts as it is for acquittals in the Local Court, LEC or Supreme Court."
The anomaly identified by the Law Reform Commission, introduced to correct an earlier anomaly, still exists. Hence the present application. So like Gatsby we beat on against the current, borne back ceaselessly into the past.

Stated Cases: the relevant law

Judge Scotting of this court has recently set out the principles applicable in relation to stating a case from the District Court to the Court of Criminal Appeal in Orr v Cobar Management Pty Ltd [2019] NSWDC 796. There is really no dispute between the parties about the principles applicable in the present proceedings. I respectfully agree with the summary of the relevant law given by Judge Scotting and I reproduce pars 34-48 of his judgment: "34 In Ex parte McGavin; Re Berne and Others (1946) 46 SR 58 at 61 Jordan CJ said: 'The word "may" is prima facie facultative only; but it was pointed out in Macdougall v Paterson (1851) 11 CB 755 at 773, that 'when a statute confers an authority to do a judicial act in a certain case, it is imperative on those so authorized, to exercise the authority when the case arises, and its exercise is duly applied for by a party interested, and having the right to make the application': Cook v Cook (1923) 33 CLR 369 at 377; R v Mitchell [1913] 1 KB 561. Section 23 of the Interpretation Act 1897 does not prevent the application of this rule, where it is necessary to give effect to the evident intention of the statute: Smith v Watson (1906) 4 CLR 802 at 811, 819, 827. In my opinion, it is the duty of a Chairman of Quarter Sessions to submit to the Court of Criminal Appeal any question of law which either party to the appeal may raise and ask to be so submitted, unless, in his opinion, the question is so obviously frivolous and baseless that its submission would be an abuse of process.' 35 These principles have been authoritatively re-stated on a number of occasions in the Court of Criminal Appeal: Charara v Director of Public Prosecutions [2001] NSWCCA 140 and Elias v Director of Public Prosecutions [2012] NSWCA 302. 36 A stated case is a limited form of appeal. It enables a party aggrieved by a ruling of law to have that ruling reviewed and enables the District Court to receive advice in questions of law relevant to the ultimate determination of the proceedings: Talay v R [2010] NSWCCA 308 at [12] and Environmental Protection Authority of New South Wales v Goulburn Wool Scour Pty Ltd [2004] NSWCCA 439 at [36]. 37 The questions to be the subject of referral under section 5AE Criminal Appeal Act 1912, must be questions of law and not of fact: Attorney General for New South Wales v X (2000) 49 NSWLR 653. 38 The questions must have some utility in the context of the proceedings: Environmental Protection Authority v Land and Environment Court (2004) 144 A Crim R 198 at [58] and [65]. 39 Questions of mixed fact and law are not questions of law: Attorney General for New South Wales v X at [44] and Williams v The Queen (1986) 161 CLR 278. 40 In Williams v Bill Williams Pty Ltd [1971] 1 NSWLR 547 at 557, Mason JA (as his Honour then was) stated: 'It may happen that the tribunal at first instance is confronted with the task of applying the statutory expression to primary facts in such circumstances that it is reasonably possible to arrive at different conclusions, the question being largely one of degree upon which different minds may take different views. Here, again, it is not possible to conclude that the decision appealed from is erroneous in point of law.' The principle has been enunciated that, if different conclusions are reasonably possible, the determination of which is the correct conclusion is a question of fact (footnotes omitted). 41 This passage was cited with approval by Gleeson CJ, Gummow and Callinan JJ in Vetter v Lake Macquarie City Council (2001) 202 CLR 439 at [26]. 42 The appealable error of law must arise on the facts found or must vitiate the findings made or must have led the court to omit to make a finding that it was legally required to make: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 286. 43 A wrong finding of fact is not sufficient to demonstrate an error of law: Waterford v Commonwealth (1987) 163 CLR 54 at 77-8. 44 Where the decision of the court involves matters of fact and degree, then provided it applies the correct principles of law, no appeal will lie: Commissioner of Taxation v Brixius (1987) 16 FCR 359 at 365. 45 In Federal Commissioner of Taxation v Trail Brothers Steel & Plastics Pty Ltd (2010) 186 FLR 410 at [13] the Full Federal Court identified four general categories of errors of law: (1) Whether the court has identified the relevant legal test. (2) Whether the court has applied the correct legal test. (3) Whether there is any evidence to support a finding of fact. (4) Whether the facts found fall within a statute properly construed. 46 The distinction between an error of fact and an error of law can be elusive. In Pozzolanic the Full Federal Court at 287 identified five general propositions can be taken from the cases (references omitted): (1) The question whether a word or phrase in a statute is to be given its ordinary meaning or some technical legal meaning is a question of law. (2) The ordinary meaning of a word or its non-technical meaning is a question of fact. (3) The meaning of a technical legal term is a question of law. (4) The effect of or construction of a term whose meaning or interpretation is established is a question of law; (5) The question whether facts fully found fall within a provision of a statutory enactment properly construed is a question of law. This principle is qualified where a statute uses words according to their ordinary meaning and the question is whether the facts found fall within those words. Where it is reasonably open to hold that they do, then the question of whether they do or not is a question of fact. 47 In Collector of Customs v Afga-Gevaert Ltd (1996) 186 CLR 389 at 397 the High Court expressed doubt over the distinction between propositions (2) and (4) stating, without deciding the point, that notions of the meaning of words and construction are interdependent, making the distinction hard to maintain without 'some qualification concerning construction that is currently absent from the law'. 48 In Norrie v NSW Registrar of Births, Deaths and Marriages [2013] NSWCA 145 the Court of Appeal at [63] adopted academic commentary of Mark Aronson and others, to hold that misunderstanding a statutory term that has a legal meaning or to stray beyond the boundaries of a term with an ordinary meaning, both involve an error of law."
The defendant accepted that the prosecutor could seek a stated case even though the summary trial was essentially over. Senior counsel for the defendant emphasised that any question must be formulated in a precise way to enable the Court of Criminal Appeal to direct its answer to a relevant question of law, and that there should not be a multiplicity of questions on the same topic.

Relevant Facts

No right of appeal lies from any factual findings which I made and none of my factual findings are challenged. In the draft stated case placed before me (MFI 64) the prosecutor proposed dealing with the facts as follows: "Facts In determining the prosecution against Hunter Quarries Pty Limited I was satisfied of the facts as found in the Judgment."
Neither party suggested that I needed to append any of the evidence in the case to any stated case, and neither party proposed any summary of any evidence which should be appended to a stated case. However the defendant submitted that certain submissions made by the prosecution should form part of any stated case. I will deal with that matter below.

Overview of the proposed questions of law for the stated case

In a draft stated case (MFI 64) the prosecutor put forward 17 draft questions of law. As a result of a further submission made orally, an additional question of law was put forward as follows: "18. Was I correct in law in stating that the principles cited at [21], [26] and [27] of the Judgment were applicable to the statutory duty contained in section 19(1) of the WHS Act, taking into account the statutory scheme of the WHS Act, including the provisions of sections 17 and 18."
The 18 proposed questions of law were grouped under five headings in the prosecutor's written submissions (MFI 65) as follows: 1. Power to submit questions of law - Question 1. 2. Proper construction of the duty under s 19(1) of the WHS Act - Questions 2, 3, 4 and 18. 3. Focusing on the incident rather than the pleaded risk - Questions 5, 6 and 7. 4. Proper construction and application of legal principles to the pleaded risk - Questions 8 and 9. 5. Proper construction and application of legal principles in respect to "reasonable practicability" under s 18 of the WHS Act - Questions 10, 11, 12, 13, 14, 15, 16 and 17.

Power to submit questions of law - Question 1

Question 1 does not need to go before the Court of Criminal Appeal. The defendant concedes that the prosecutor can attempt to invoke the stated case procedure at this late stage, subject of course to compliance with the settled principles regarding stated cases set out above. I will deal with each of the remaining four categories in turn.

Proper construction of the duty under s 19(1) of the WHS Act - Questions 2, 3, 4 and 18

Senior counsel for the prosecutor submitted that my error of law was focussing upon whether the incident was reasonably foreseeable in my determination of whether there was a breach of duty. The submission was that I had considered that the primary criterion for determining breach was whether or not the incident in which Mr Messenger died was reasonably foreseeable. The submission went as far as saying that reasonable foreseeability should not be considered at all, given that it is not mentioned in s 18 of the WHS Act, it is not an element of the duty in s 19(1) and it is not an element of the offence under s 32 of the WHS Act.
Whether a court has identified the correct legal test is a well-recognised category of error of law: Commissioner of Taxation v Trail Bros Steel & Plastics Pty Ltd [2010] FCAFC 94; (2010) 186 FLR 410 at [13] (Trail Bros). If I made the error alleged then it is important that such error be corrected, not just for this case but also for prosecutions under the WHS Act generally. Three times in the last few weeks, counsel in other cases have relied upon my decision in this case as the foundation for a submission in those cases. On two of those three occasions it has been SafeWork NSW making such submission. If my decision is erroneous then it would be better to have that clarified sooner rather than later.
During oral submissions I did ask senior counsel for the prosecutor whether or not I had correctly stated the applicable law in pars 7 to 33 of my judgment. Those paragraphs set out what I had regarded as uncontroversial statements of the law. However many of the decisions I cited came from cases under the previous statute. This led the prosecution to put forward draft Question 18, which challenges the applicability of the cases and principles cited in pars 21, 26 and 27 of my judgment to prosecutions under the WHS Act.
If I have misstated the applicable law at the outset in my judgment, then that erroneous approach should be corrected. My introductory summary of the applicable law can be found not only in this judgment, but my other judgments in defended cases. My summary is also similar in form to introductory summaries of the law to be found in decisions of other judges of this court in summary trials of matters under the WHS Act.
Finally, if pars 21, 26 and 27 of my judgment are erroneous because they are drawn from cases decided under a different statutory regime, then what is the status of my other introductory paragraphs to be found between pars 7 to 33 of my judgment? Are some or all of them also infected by errors of law?
During oral submissions I did ask senior counsel for the prosecutor whether there were any appellate authorities which would demonstrate that I was in error in the ways alleged. There are no such authorities, which is all the more reason for the Court of Criminal Appeal to provide guidance to trial judges in relation to how to construe and understand the WHS Act.
Senior counsel for the prosecutor submitted that proper construction of the statute requires the court to apply a "decision-making matrix" with the following steps: 1. Identify whether the pleaded risk existed at the date of the charge; 2. If it did, then determine whether the pleaded control measures were reasonably practicable by reference to the mandatory criteria set out in s 18 of the WHS Act; 3. If they were reasonably practicable, analyse whether a failure to implement those pleaded measures was a substantial cause of exposing a worker to the pleaded risk.
Senior counsel also submitted that the words "reasonably practicable" in the statute required the court to decide "whether the PCBU has gone as far as it possibly can in relation to reasonably practicable measures".
If there is a "decision-making matrix" available to trial judges, then appellate approval of such matrix would assist not only in determination of this case, but also all future cases.
While the implications of such a matrix would have to be worked out on a case-by-case basis, one possible consequence is that the matrix approach would only ever yield a conclusion of guilt in every case. If that is so, then the industrial community needs to know the extent of their obligations and liability under the WHS Act.
For all of the above reasons I find that I should state a case for consideration by the Court of Criminal Appeal in relation to questions 2, 3, 4 and 18.
In a supplementary written submission (MFI 70) the defendant submitted that during the extensive and detailed opening address, senior counsel for the prosecutor "actively encouraged the court to consider the matter about which they now complain" i.e. the consideration of reasonable foreseeability. This is not something which I can determine by reading selected highlights of the opening address - it will have to be considered in its entirety. The defendant submitted that if a case is to be stated to the Court of Criminal Appeal, the transcript of the prosecutor's opening address and the prosecutor's written submission of 7 June 2019 should be included in any stated case, as the higher court can only refer to material which is included in the stated case. I accept that submission and I will frame my final orders accordingly.

Focussing on the incident rather than the pleaded risk - Questions 5, 6 and 7

The prosecutor submitted that in my judgment I focussed upon whether the incident in which the excavator overturned was reasonably foreseeable, instead of focussing on the risk of death or serious injury as required by the WHS Act.
If a court does not identify the correct legal test, or does not apply the correct legal test, there is an error of law - Trail Bros at [13]. The parties are at odds as to how to categorise the approach I took - whether I was simply making findings of fact or whether I was taking the incorrect legal approach to application of the statute. Courts over decades have lamented how difficult it is to characterise what is a question of law, what is a question of fact, and what is a mixed question of fact and law. The prosecutor should have the opportunity to ventilate its arguments before the Court of Criminal Appeal.
I find that I should state a case for consideration by the Court of Criminal Appeal in relation to questions 5, 6 and 7.

Proper construction and application of legal principles to the pleaded risk - Questions 8 and 9

The prosecutor submitted that I found that the pleaded risk had been eliminated by the defendant's administrative controls. Stated in this fashion, that appears to be a finding of fact. However the prosecutor submits that I only reached that conclusion by misunderstanding the governing law. If so, then that would be an error of law - Trail Bros at [13].
There is some irony in the fact that in that submission, the prosecutor relies in part upon a statement of law set out in par 26 of my judgment - itself one of the paragraphs of the judgment attacked in question 18.
The prosecutor also submits that I failed to understand and apply cl 36 of the Work Health and Safety Regulation 2011 (NSW). This is a crucial provision in the Regulation, as it deals with a concept known as the "hierarchy of control measures", which comes up in just about every prosecution under the WHS Act. If I have misunderstood or misapplied cl 36, then that would be an error of law. It would be important not only in this case, but for future cases, for the Court of Criminal Appeal to correct any such error.
I find that I should state a case for consideration by the Court of Criminal Appeal in relation to questions 8 and 9.

Proper construction and application of legal principles in respect to "reasonable practicability" under s 18 of the WHS Act - Questions 10, 11, 12, 13, 14, 15, 16 and 17

The prosecutor submits that the judgment was in error in relation to the construction and application of s 18 of the WHS Act. If that argument is made out then there is an error of law: Trail Bros at [13]. Once again the prosecutor submits that had the court embarked upon the "decision-making matrix" then I would not have fallen into error.
Questions 10-17 are prefaced with words to the effect "Was it open for me to find". Superficially these could appear to be impermissible attacks upon findings of fact. However the form of the questions, and the submissions in support, make it plain that what the prosecutor seeks to do is to argue that the facts as found do not fall within the statute when it is properly construed. This is a recognised category of error of law.
I find that I should state a case for consideration by the Court of Criminal Appeal in relation to questions 10-17.

Conclusion and Orders

I am satisfied that Questions 2-17 in the draft stated case (MFI 64) and Question 18 set out in the email sent to my Associate on 13 May 2020 at 12.01pm are questions of law and should be stated to the Court of Criminal Appeal.
I find that the transcript of the opening address for the prosecutor, and the prosecutor's written submission dated 7 June 2019, should be appended to the stated case.
My orders are: 1. I direct that the prosecutor engross the stated case in the appropriate form for submission to the Court of Criminal Appeal. 2. I direct the prosecutor to provide the stated case to my Associate by 4pm on 25 June 2020.

Amendments 18 June 2020 - Amendment to par 26 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 June 2020

Crimes Legislation Amendment Act 1998(NSW)sch 4.

Work Health and Safety Regulation 2011(NSW)cl 36

At a glance

Court

Decision date

Source

Judgment (14 paragraphs)

Parties

Legislation Cited (5)

Cases Cited (17)