RESOURCE RECOVERY SOLUTIONS PTY LTD -v- AYTON [2021] WASC 443 (10 December 2021)

Criminal procedure - Function, purpose and effect of particulars - Whether gross negligence could be found turned on the particulars - Prosecution bound by the case it particularised, as knowledge of the contravention measures found proven by the presiding magistrate

Criminal law - Appeal against conviction - Failure to comply with an improvement notice - Failure to state reasonable grounds for forming the opinion that a person is contravening a provision of the Occupational Safety and Health Act

Statutory interpretation - Formation of requisite opinion essential pre-condition to the exercise of power to issue an improvement notice - Statement of reasonable grounds of requisite opinion a jurisdictional fact - Requirement to 'specify' in s 48(2) of the Occupational Safety and Health Act different to the requirement to 'state' in s 48(2) - Substantial compliance with the requirement to state reasonable grounds is not sufficient for an improvement notice to be valid

Criminal Appeals Act 2004 (WA), s 9(1), s 9(2)

Magistrates Court Act 2004 (WA), s 31(1)

Occupational Safety and Health Act 1984 (WA), s 18A, s 19(1), s 19(2), s 23F, s 48(1), s 48(2), s 48(4), s 54

Leave to appeal on Grounds 1, 2, 3, 5 and 6 refused

Conviction of offence of gross negligence pursuant to s 18A of Occupational Safety and Health Act set aside, and conviction on general duty charge pursuant to s 19A(2) of Occupational Safety Act and Health Act substituted

Conviction of failing to comply with Improvement Notice set aside and verdict of not guilty substituted

1 The appellant was charged with three offences. The first and second charge (Charge PE 39876/18 and Charge PE 39877/18) were in the alternative, and alleged circumstances of gross negligence. The alternative charges were as follows:[1]

On 28 January 2016 at 50 Clune Street, Bayswater

1/2 Where under a labour hire arrangement work was carried out for remuneration by a worker, namely MANIKANDAN RATH NASABAPATHY for the accused who was a client of a labour hire agent, namely Mode 2 Group Pty Ltd, in the course of the accused's trade or business, in relation to matters over which the accused had the capacity to exercise control, the accused failed to, so far as practicable, provide a working environment in which MANIKANDAN RATH NASABAPATHY was not exposed to hazards, in circumstances of gross negligence, contrary to sections 19(1), 19A(1) and 18A when read with s 23F of the Occupational Safety and Health Act 1984. (39876/18)

2/2 Where a worker namely MANIKANDAN RATH NASABAPATHY, for remuneration carried out work for the accused, in the course of the accused's trade or business, and where the accused had the power of direction and control in respect of the work in a similar manner to the power of an employer under a contract of employment, and where there was no control of employment between MANIKANDAN RATH NASABAPATHY and the accused, the accused failed to, so far as practicable, provide and maintain a working environment in which MANIKANDAN RATH NASABAPATHY was not exposed to hazards, in circumstances of gross negligence, contrary to sections 19(1), 19A(1) and 18A when read with s 23E of the Occupational Safety and Health Act 1984. (39877/18)

2 If the presiding magistrate found the appellant guilty of the first charge of gross negligence (PE 39876/18), it was not necessary to consider the second alternative charge of gross negligence (PE 39877/18).

3 The third charge (PE 39837/18) was as follows:[2]

Between 1 August 2015 - 28 January 2016 at 50 Clune Street, Bayswater, the Accused, being a person to whom improvement notice no. 61500197 was issued by an inspector duly appointed under the Occupational Safety and Health Act 1984, failed to comply with the improvement notice within the time specified therein, contrary to sections 48(4) and 54 of the Act.

4 Following a 10 day trial on and between 2 December 2019 and 4 February 2020, on 10 July 2020, the appellant was found guilty of breaching s 19(1) of the Occupational Safety and Health Act 1984 (WA) (OSH Act) (Charge PE 39876/18) in circumstances of gross negligence, where a labour hire arrangement applied, pursuant to s 23F of the OSH Act), and guilty of Charge PE 39837/18 (failing to comply with an improvement notice within the time specified therein, contrary to s 48(4) and s 54 of the OSH Act).

5 The appellant was fined $310,000 on Charge PE 39876/18, and $20,000 on Charge PE 39837/18, and ordered to pay costs of $234,000.

6 The appellant's grounds of appeal are as follows:

Ground 1

1. A miscarriage of justice was occasioned because it was not reasonably open on the whole of the evidence for the Court to find beyond reasonable doubt that a labour hire arrangement existed between the Appellant (RRS) and Mode 2 Group Ltd (Mode 2) for the purposes of s 23F of the Occupational Safety and Health Act 1984 (the Act).

Particulars

(a) On the proper construction of Exhibit 34 (Agreement), it was not open to find that Mode 2 had agreed with RRS to provide a worker (Manikandan Rathinasabapthy) to carry out work for RRS for the purposes of s 23F(3)(a) of the Act (Reasons at [44](b), [48] to [65]).

(b) To the extent that the Court relied on the principles in Codelfa Construction Pty Ltd v State Rail Authority of New South Wales [1982] HCA 24; (1982) 149 CLR 337 in using extrinsic evidence to construe the Agreement that was erroneous (Reasons at [62] to [64]).

(c) To the extent that the Court relied on post-contract conduct to construe the Agreement that was erroneous (Reasons at [65]).

Ground 2

2. A miscarriage of justice was occasioned because it was not reasonably open on the whole of the evidence for the Court to find beyond reasonable doubt that an agreement between Manikandan Rathinasabapthy and Mode 2 applied to the carrying out of work by Mr Rathinasabapthy for RRS for the purposes of s 23F(3)(d) of the Act (Reasons at [40]).

Ground 3

3. A miscarriage of justice was occasioned because it was not reasonably open on the whole of the evidence for the Court to find beyond reasonable doubt that Mode 2 was an agent for the purposes of s 23F(1) of the Act (Reasons at [44(a)], [46], [47]).

Ground 4

4. The Court erred in law by misstating the legal test in considering inferential evidence to prove actual knowledge for the purposes of s 18A(2)(a)(i) of the Act, in particular the Court did not state that an inference of actual knowledge must be the only rational inference available (Reasons at [185] to [189]).

Ground 5

5. The Court erred in law in finding that RRS had the necessary actual knowledge for the purposes of s 18A(2)(a)(i) of the Act, in circumstances in which it had made no finding that the only rational inference was that RRS had that knowledge (Reasons at [197] and [198]).

Ground 6

6. The Court erred in law by finding that it could aggregate the knowledge of Mr Mangione, Mr Di Cicco and Mr Clarke and attribute that knowledge to RRS for the purposes of s 18A(2)(a)(i) of the Act (Reasons at [190] to [196].

Ground 7

7. A miscarriage of justice was occasioned because it was not reasonably open on the whole of the evidence for the Court to find beyond reasonable doubt that RRS had actual knowledge that a contravention by failing to implement the practicable measures in particulars 5(c) to (e) was likely to cause death or serious harm for the purposes of s 18A(2)(a)(i) of the Act (Reasons at [197] to [199]).

Ground 8

8. A miscarriage of justice was occasioned because it was not reasonably open on the whole of the evidence for the Court to find beyond reasonable doubt that RRS had acted or failed to act in disregard of the likelihood in respect of the contravention comprising a breach of particulars 5(c) to (e) for the purposes of s 18A(2)(a)(i) of the Act (Reasons at [207] to [211]).

Ground 9

9. The Court erred in law in finding that Improvement Notice 6150097 was valid (Reasons at [229] to [249]).

7 On 4 December 2020, Archer J granted leave to appeal on grounds 4 and 9.

8 Leave to appeal is required for each ground of appeal. The court must not grant leave to appeal on a ground of appeal unless it is satisfied that the ground has a reasonable prospect of succeeding. This means that the ground is required to have a rational and logical prospect of succeeding, in that it would not be irrational, fanciful or absurd to envisage it succeeding, or in effect that it has a real prospect of success.[3]

9 The appellant's grounds of appeal raise issues as to whether a miscarriage of justice has been occasioned, and errors of law, but do not raise any issue going to an error in the facts found by the presiding magistrate.

10 In grounds 1, 2, 3, 7 and 8 (which relate to the charge of gross negligence only), the appellant raises arguments that a miscarriage of justice was occasioned in respect of particular findings which are claimed to have not reasonably been open on the evidence.

11 The Chief Justice and Beech JA, in a joint judgment in MEN v The State of Western Australia, recently summarised the general principles governing the determination of appeals alleging that a jury's verdict is unreasonable or cannot be supported.[4] Although this is an appeal against a decision made by a magistrate, these principles are nonetheless applicable. In MEN v The State of Western Australia, Quinlan CJ and Beech JA said:[5]

In Wells v The State of Western Australia, this court summarised the principles governing a ground of appeal that the verdict is unreasonable or cannot be supported by the evidence, by reference to the leading authorities, including M v The Queen, SKA v The Queen and R v Baden‑Clay, as follows:

(a) The appeal court must undertake its own independent assessment of the sufficiency and quality of the evidence. It is not simply a matter of deciding whether as a matter of law there was evidence to support the verdict. The appeal court must determine whether, in all the circumstances, it would be dangerous to permit the verdict to stand.

(b) The question for the appeal court is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.

(c) That question requires consideration of whether the jury must, as distinct from might, have entertained a reasonable doubt about the accused's guilt.

(d) In answering that question, the appeal court must pay full regard to the consideration that the jury was entrusted with the primary responsibility of determining guilt or innocence, and to the advantage that the jury had of seeing and hearing the witnesses.

(e) A doubt experienced by an appellate court would be a doubt which a jury ought also to have experienced, unless the jury's advantage in seeing and hearing the evidence is capable of resolving that doubt.

(f) If the evidence, upon the record, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the appellate court must set aside the verdict.

(g) The setting aside of a jury's verdict on the ground that it is unreasonable within the meaning of s 30(3)(a) of the Criminal Appeals Act is a serious step, not to be taken without regard to the advantage enjoyed by the jury over a Court of Appeal which has not seen or heard the witnesses called at trial.

Where a court of criminal appeal is called upon to decide whether it considers that, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty of the offence charged, the court must not disregard or discount either that the jury is the body entrusted with primary responsibility of determining whether the prosecution has established the accused's guilt or that the jury has had the benefit of having seen and heard the witnesses. At the same time, however, the court may take into account the realities of human experience, including the fallibility and plasticity of memory especially as time passes, the possibility of contamination of recollection, and the influence of internal biases on memory. The court can also take into account the well-known scientific research that has revealed the difficulties and inaccuracies involved in assessing credibility and reliability. (citations omitted)

Recently, in Pell v The Queen, the High Court elaborated on the principles in the following terms:

[T]he assessment of the credibility of a witness by the jury on the basis of what it has seen and heard of a witness in the context of the trial is within the province of the jury as representative of the community. Just as the performance by a court of criminal appeal of its functions does not involve the substitution of trial by an appeal court for trial by a jury, so, generally speaking, the appeal court should not seek to duplicate the function of the jury in its assessment of the credibility of the witnesses where that assessment is dependent upon the evaluation of the witnesses in the witness-box. The jury performs its function on the basis that its decisions are made unanimously, and after the benefit of sharing the jurors' subjective assessments of the witnesses. Judges of courts of criminal appeal do not perform the same function in the same way as the jury, or with the same advantages that the jury brings to the discharge of its function.

It should be understood that when the joint reasons in M v The Queen spoke of the jury's 'advantage in seeing and hearing the witnesses' as being 'capable of resolving a doubt experienced by a court of criminal appeal' as to the guilt of the accused, their Honours were not implying that it was only because there were, at that time, no practical means of enabling a court of criminal appeal to see and hear the evidence of the witnesses at trial that the jury's assessment of the credibility of the witnesses was of such potentially critical importance. The assessment of the weight to be accorded to a witness' evidence by reference to the manner in which it was given by the witness has always been, and remains, the province of the jury. Rather, their Honours in M were remarking upon the functional or 'constitutional' demarcation between the province of the jury and the province of the appellate court. That demarcation has not been superseded by the improvements in technology that have made the video-recording of witnesses possible.

The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable. The court examines the record to see whether, notwithstanding that assessment - either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence - the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt. (citations omitted; emphasis added)

In this passage, the High Court emphasised that the assessment of the weight to be accorded to a witness' evidence by reference to the manner in which it was given by the witness is, and remains, the province of the jury, and not of the appellate court. The appellate court performs its function on the assumption, in a case such as the present case, that the evidence of the complainant was assessed by the jury to be credible and reliable. The question for the appellate court is whether, upon its examination of the record, by reason of inconsistencies, discrepancies or other inadequacy, or in light of other evidence, the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to guilt.

12 Even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.

13 Success on any ground will not necessarily result in the setting aside of the conviction and the substitution of a verdict of acquittal, if the court considers that no substantial miscarriage of justice has occurred, because not all errors of law enliven this court's jurisdiction. To enliven the appellate court's jurisdiction, the error must be material, in the sense that it must have affected, or have been capable of affecting, the decision to convict or acquit. In Morgan v Cramer, Hall J explained:[6]

The success of the grounds of appeal does not necessarily result in the setting aside of the acquittal and the substitution of a conviction. Section 14(2) of the Criminal Appeals Act 2004 (WA) provides that even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.

This form of the proviso needs to be understood as operating in a context where, unlike a jury, the magistrate provides detailed reasons for his or her decision. This enables an assessment to be made of whether any error was in fact material to the result, rather than merely having the potential to have such an effect.

Whether the error is one of fact or law is relevant to the question of whether there has been no substantial miscarriage of justice. Where the error is one of law, there may be circumstances where the error has not affected the outcome, but there has been such a significant breach of the presuppositions of a trial that the operation of the proviso is excluded.

14 Generally, an immaterial or inconsequential error will not give rise to a substantial miscarriage of justice. Where an error could not have affected the outcome, an appeal court will generally be able to conclude that there has been no substantial miscarriage of justice.[7]

15 When considering a magistrate's reasons, as Archer J recently observed:[8]

[I]t is necessary to keep in mind the nature of the work of magistrates. As was pointed out by Martin CJ in Strahan v Brennan, magistrates are required to conduct cases efficiently and with a degree of informality given the large volume of cases they hear each day. Accordingly:

[I]t is not appropriate to scrutinise the reasons for decision given by magistrates with a fine‑tooth comb or with an eye keenly attuned to the identification of error. Nor is it appropriate for the court to infer from infelicity of language that error is thereby demonstrated. That is because, of necessity, magistrates are required to perform their important functions in a different time frame to that which applies in the superior courts and in that context it is to be expected that some infelicity of language is likely to occur from time to time.

16 These observations may have less weight when, as here, a magistrate has reserved their decision after a hearing and delivered it at a later date. Nevertheless, a magistrate in such a case must still manage a large volume of cases daily and is still faced with the requirement to conduct cases efficiently and with a degree of informality. It remains inappropriate to scrutinise their reasons with a fine-tooth comb and it is still to be expected that some infelicity of language is likely to occur from time to time, even with reserved decisions.

17 A number of the grounds of appeal raise the proper construction of a number of provisions of the OSH Act.

18 The principles that apply to the construction of statutory provisions, in particular to the construction of express object and purpose provisions in a statute and statutory provisions creating offences, were recently summarised by the Court of Appeal in Tsang v Francis as follows:[9]

The statutory text is the surest guide to Parliament's intention. A decision as to the meaning of the text requires consideration of the context, in its widest sense, including the general purpose and policy of the provision. See Project Blue Sky Inc v Australian Broadcasting Authority; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (NT); Travelex Ltd v Federal Commissioner of Taxation; SZTAL v Minister for Immigration and Border Protection.

The context includes the existing state of the law, the history of the legislative scheme and the mischief to which the statute is directed. See CIC Insurance Ltd v Bankstown Football Club Ltd.

However, legislative history and extrinsic materials cannot displace the meaning of statutory text. Further, the examination of legislative history and extrinsic materials is not an end in itself. See Federal Commissioner of Taxation v Consolidated Media Holdings Ltd; Alphapharm Pty Ltd v H Lundbeck A/S.

The purpose of legislation must be derived from the statutory text and not from any assumption about the desired or desirable reach or operation of the relevant provisions. See Certain Lloyd's Underwriters v Cross. The intended reach of a legislative provision is to be discerned from the words of the provision and not by making an a priori assumption about its purpose. See Minister for Employment and Workplace Relations (Cth) v Gribbles Radiology Pty Ltd.

A section in a statute which specifically states the purposes or objects of the statute is relevant to the proper construction of the statute. See Tickner v Bropho; Russo v Aiello. It is necessary to consider the method by which Parliament has implemented the specified purposes or objects. See Municipal Officers' Association of Australia v Lancaster. The purposes or objects must be read and understood in the context of the statute as a whole. See IW v The City of Perth.

By s 29 of the Interpretation Act 1984 (WA), every section of an Act takes effect as a substantive enactment without introductory words. This provision was included in the Interpretation Act to avoid the repetition of enacting words before each section. See Smalley v Motor Accident Authority of New South Wales. A section in a statute which specifically states the purposes or objects of the statute therefore, of itself, takes effect as a substantive enactment.

Section 18 of the Interpretation Act provides that, in the interpretation of a provision of a written law (including all Acts for the time being in force), a construction that would promote the purpose or object underlying the written law (whether that purpose or object is expressly stated in the written law or not) shall be preferred to a construction that would not promote that purpose or object. The requirement in s 18 that one construction be preferred to another can apply only where two constructions are otherwise open. If the ordinary meaning conveyed by the text of a provision is to be modified by reference to the purposes or objects underlying the written law, the modification must be able to be identified precisely as that which is necessary to give effect to those purposes or objects and it must be consistent with the text otherwise adopted by the draftsperson. Section 18 requires a court to construe a written law, and not rewrite it by reference to its purposes or objects. See Mills v Meeking.

The view has been expressed that a section in a statute which specifically states the purposes or objects of the statute cannot cut down the meaning of another provision of the statute if that meaning is, in its textual and contextual surroundings, plain and unambiguous. See, for example, Minister for Urban Affairs and Planning v Rosemount Estates Pty Ltd; S v Australian Crime Commission; Director of Public Prosecutions v Mattiuzzo. This view has been based primarily on similar observations in Wacando v Commonwealth in relation to the proper construction of a preamble to a statute.

More recently, in Lynn v The State of New South Wales, Beazley P stated that the object provisions of a statute cannot control clear statutory language. Her Honour then elaborated:

Further, there are many statutes where the objects of the Act are directed to disparate ends and are not necessarily harmonious. Nonetheless, as Gleeson CJ observed in Russo v Aiello (2003) 215 CLR 643; [2003] HCA 53 at [5], the statement of legislative objects is 'not an exercise in apologetics', rather, it gives practical content to terms such as 'reasonable', 'justification' and 'satisfactory'. Likewise, the long title of an Act may be referred to as an aid to construction of the provisions of the Act: Pitt, Son & Badgery Ltd v Municipal Council of Sydney (1908) 24 WN (NSW) 203 at 204; Birch v Allen [1942] HCA 17; (1942) 65 CLR 621.

In Beckwith v The Queen, Gibbs J made these observations in relation to the proper approach to the construction of penal provisions in a statute:

The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences: see R. v Adams [1935] HCA 62; (1935) 53 CLR 563, at pp. 567 - 568); Craies on Statute Law, 7th ed. (1971), pp. 529-534. The rule is perhaps one of last resort.

See also Deming No 456 Pty Ltd v Brisbane Unit Development Corporation Pty Ltd; Waugh v Kippen; Newcastle City Council v GIO General Ltd; Re Day (No 2); Aubrey v The Queen.

The existence of a penal provision in a statute is part of its context. See Alcan (NT) Alumina [57].

2.0 The circumstances of the accident on 28 January 2016

19 In written reasons for decision delivered on 10 July 2020, her Honour made the following findings of fact that are relevant to the disposition of the issues raised in the appeal.

20 The appellant operates a business of recycling material from construction and demolition sites, and operates from premises at 50 Clune Street, Bayswater, known as Instant Waste (the workplace).

21 A number of migrant workers who originated from Sri Lanka, with limited English, were employed at the workplace by another company, Mode 2 Group Pty Ltd (Mode 2) as sorters (also known as 'pickers') to carry out work, under the appellant's instruction and direction. The role of the sorters was to pick rubbish at picking stations and to clear blockages from conveyor belts.

22 During each of the two daily shifts, the conveyor belts throughout the workplace were subject to regular blockages, which the sorters were required to clear.

23 On 28 January 2016, one of the sorters, Mr Manikandan Rath Rathinasabapathy, was working in the picking station with other workers. One of the conveyor belts, known as the 'diversion belt' (Diversion Belt), was located in the crushing area, Area 5. During that day, the Diversion Belt experienced multiple blockages, and Mr Rathinasabapathy attended Area 5 with other workers to clear them.

24 The Diversion Belt was between a rock belt and a crusher belt. It diverted material to the crusher and then the material went through a screen to a stacker belt. Any material that did not go through the screen went through the Diversion Belt and the crusher again.

25 On the final occasion when Mr Rathinasabapathy attended Area 5 to clear a blockage, Mr Jerald Anthony (Jena), Thaventhiram Gopalasingam (Thavam), Mr Sutharshan Selliyah (Sudah) and Mr Raveendran Sridharan (Shah (also referred to as Sri)), the operator for Area 5, and Mr Sayedreza Mosawe (Reza), a machine operator, also attended.

26 Mr Rathinasabapathy and Jena were on either side of the Diversion Belt's roller to clear the blockage. Thavam was close to the roller near Jena. Reza stood at the Diversion Belt's nearby control panel, approximately 2 metres away, and operated the controls. The Diversion Belt was switched off to enable clearance. After it had been cleared and switched on for testing, it blocked again, at least once. After the belt was switched off to clear the last blockage, Reza turned the belt on again. When it was activated and moving, Jena reached in with his hand to remove a small stone from the top side of the gap between the top and bottom sections of the moving Diversion Belt. Mr Rathinasabapathy then put his hands into the bottom end of the roller, where the roller meets the Diversion Belt, to remove a rock or stone. In doing so, Mr Rathinasabapathy's right arm was dragged into the pinch point between the belt and roller of the Diversion Belt and was amputated at the shoulder (the accident). Reza pushed the emergency button to immediately stop the Diversion Belt. The Diversion Belt had to be cut to remove Mr Rathinasabapathy's arm.

27 At the time of the accident, there were two ways to access Area 5. The first access was from the walkway near the picking station and the second from an external access stairway below. There was a hinged gate to the crusher area, at the landing from the picking station (Area 5 Gate).

28 Grounds 1 to 3 of the appeal raise three issues. The three issues are whether it was not reasonably open on the whole of the evidence for the presiding magistrate to find to the requisite standard, within the meaning of s 23F of the OSH Act that:

(a) a labour hire arrangement existed between the appellant and Mode 2 (Ground 1);

(b) an agreement between Mr Rathinasabapathy and Mode 2 applied to the carrying out of work by Mr Rathinasabapathy for the appellant (Ground 2); and

(c) Mode 2 was an agent carrying on a business of providing workers to carry out work for clients (Ground 3).

3.1 The findings of fact and law made in respect of the finding made in the first instance that, on 28 January 2016, Mr Rathinasabapathy carried out work under a labour hire arrangement between the appellant and Mode 2, and under an agreement made between Mr Rathinasabapathy and Mode 2

(a) means a person that carries on a business of providing workers to carry out work for clients of the person; and

(b) includes a group training organisation as defined in section 7(1) of the Industrial Relations Act 1979;

(2) This section applies where, under a labour hire arrangement, work is carried out for remuneration by a worker for a client of an agent (the client) in the course of the client's trade or business.

(3) A labour hire arrangement exists where -

(a) an agent has for remuneration agreed with the client to provide a worker to carry out work for the client; and

(b) there is no contract of employment between the worker and the client in relation to the work; and

(c) there is an agreement (which may be a contract of employment) between the worker and the agent as to the carrying out of work including in respect of remuneration and other entitlements; and

(d) that agreement applies to the carrying out of the work by the worker for the client.

(4) Where this section applies, sections 19 and 19A have effect as if -

(a) each of the agent and the client were the employer of the worker; and

(b) the worker were an employee of each of the agent and the client,

(i) the agent, is a matter over which the agent has the capacity to exercise control; or

(ii) the client, is a matter over which the client has the capacity to exercise control.

(5) Where this section applies, the further duties referred to in subsection (6) apply, and sections 20A and 23J have effect, as if -

(a) each of the agent and the client were the employer of the worker; and

(b) the worker were an employee of each of the agent and the client.

(6) The further duties mentioned in subsection (5) are -

(a) the duties of an employee under section 20; and

(b) the duties of an employer under section 23I(3).

(7) This section applies despite anything to the contrary in, or any inconsistent provision of, an agreement, whether made orally or in writing.

(8) A purported waiver by a worker of a right that arises directly or indirectly under this section is void.

30 The presiding magistrate made the following findings of fact and law, set out in 3.1.1 to 3.1.4, which are relevant to Grounds 1 to 3.

3.1.1 Findings as to the elements of s 23F of the OSH Act

31 In order to establish charge 39876/18, the prosecution must prove beyond reasonable doubt that:

(a) Mode 2 was an 'agent', namely, that it 'carried on a business of providing workers to carry out work for [Mode 2's] clients' (s 23F(1)); and

(b) there was a labour hire arrangement between Mode 2 and RRS where:

(i) Mode 2 had for remuneration agreed with the appellant to provide a worker (Mr Rathinasabapathy), to carry out work for the appellant;

(ii) there was no contract of employment between Mr Rathinasabapathy and the appellant in relation to the work;

(iii) there was an agreement (which may be a contract of employment) between Mr Rathinasabapathy and Mode 2 as to the carrying out of work, including in respect of remuneration and other entitlements; and

(iv) that agreement applied to the carrying out of the work by Mr Rathinasabapathy for the appellant (s 23F(3)).

32 If each of the matters stated in [31] are established,[10] s 23F applies if where, under the labour hire arrangement, work was carried out for remuneration by a worker for a client of Mode 2, namely the appellant, in the course of the appellant's trade or business.[11]

33 The relevant evidence relating to the issue of whether Mode 2 was carrying on a business of providing workers to carry out work for its clients, included the following:

(a) Mr De Gee's (Mode 2's director) evidence that, 'we [Mode 2] provide engineering services to the waste recycling industry';[12]

(b) when the appellant was considering options of labour hire companies to obtain labour, Mr Salvatore Mangione (a director of the appellant) met with Mr De Gee to obtain that labour;

(c) the agreement was subsequently executed;

(d) Mode 2 recruited and entered into employment contracts with the workers, who then carried out work at the workplace at the appellant's direction;

(e) Mode 2 paid the workers directly; and

(f) Mode 2 invoiced, and was paid by, the appellant for 'labour supplied at Instant Waste'.

3.1.3 Findings as to the nature of the engagement of Mr Rathinasabapathy to carry out work at the workplace

34 Mr Rathinasabapathy was carrying out work for the appellant for remuneration, under a labour hire arrangement between Mode 2 and the appellant. For the purposes of s 23F of the OSH Act:

(a) it is not in dispute that the workers were employed by Mode 2 or that they performed work at the workplace, under the direction of the appellant;

(b) there was a contract of employment between each of the sorters, including Mr Rathinasabapathy, and Mode 2; and

(c) there was no contract of employment between the sorters and the appellant in relation to the work.

3.1.4 Findings as to the agreement between the appellant and Mode 2 to provide services to the appellant

35 An agreement titled, 'Draft Contractor Agreement Instant Waste C & I Bayswater Operations', dated 17 April 2015, was executed between the appellant and Mode 2, signed by Salvatore Mangione and Tom Mangione for the appellant, and by Theodore De Gee for Mode 2.[13] It is the only documented agreement between the appellant (described as the 'Company' in the agreement) and Mode 2 (described as the 'Contractor' in the agreement) in relation to the work that Mode 2 employees performed at the workplace.

36 The presiding magistrate found that it appeared that the agreement was a generic contractor agreement that had been modified, mainly in the schedules, to specify Mode 2's obligations. Her Honour then went on to find as follows in [37] to [50] of these reasons.

37 Mode 2's obligation was set out in cl 2 of the agreement as follows:

The Contractor will provide the Services to the Company at the Site for the Term on the terms and conditions set out in this Agreement. The Term may be extended by agreement between the parties. (Refer: Schedule 4 Job Description).

38 The term, 'Services' was defined in cl 1.1 (Definitions) as:

the services specified in Schedule 2 and any other services as reasonably requested from time to time by the Company.

39 Schedule 4 set out the job description for a 'Sorter', including the basic objective and responsibilities.

SERVICES

The Contractor must provide the following services:

(a) Staff training

(b) Site inductions

(c) Compliance with relevant Council contractual requirements

(d) Site daily housekeeping

(i) Personal Protective Equipment - Safety Glasses; Rubber Boots; Shirts; Hard Hats; Ear Plugs; Gloves

Acceptance of Material

The Company will agree a daily schedule with the Contractor to remove the majority of the tonnes processed by the plant on the basis of full loads only...

7.1 The Contractor is engaged by the Company as an independent contractor and nothing in this Agreement constitutes the Contractor as an agent or employee of the Company.

...

7.3 Subject to the terms of the Agreement, the parties acknowledge that the Contractor is solely responsible for controlling the manner in which the Contractor provides the Services at the Site.

42 A determination of the question of whether Mode 2 had, for remuneration, agreed with the appellant to provide a worker to carry out work for the appellant depends on the construction of the agreement.

43 Clause 2 of the agreement stipulated that Mode 2 will provide 'Services' (as defined in cl 1.1) to the appellant at the site (the workplace), and expressly referred to Schedule 4, which set out the job description of a 'Sorter'.

44 On its face, cl 2 suggests that Mode 2 agreed to provide the 'Services' in respect of a sorter(s). The 'Services' set out in Schedule 2 relate to personnel issues for labour/workers, and are consistent with the supply or provision of labour to the appellant, rather than Mode 2 performing work for the appellant. Schedule 3 set out the hourly rates of pay for 'Sorters', 'Operators' and 'Lead Supervisors'. [14]

45 The only reference to the 'performance of recycling work' is in respect of the 'basic objective' comprising the sorter's job description in Schedule 4. However, the 'responsibilities' for the job can properly be characterised as relating to labour related requirements (e.g. occupational safety and health).

46 If Mode 2 itself agreed, under the agreement, to perform work for the appellant, as opposed to agreeing to provide labour/workers to carry out work for the appellant, one would expect that the obligations in the agreement would clearly set out the work that was to be performed at the appellant's workplace. However, there is no description or detail in any of the 'Services', as defined, in Schedule 2, which refers specifically to recycling work.

47 By regard to these express provisions of the agreement, her Honour concluded beyond reasonable doubt that, under the agreement, Mode 2 had, for remuneration, agreed with the appellant to provide workers, including Mr Rathinasabapathy, to carry out work for the appellant.

48 Her Honour then went on to find that in any event, to the extent that the agreement is ambiguous because the scope of the applicability of the agreement gives rise to a 'constructional choice', as to whether Mode 2's obligation was for the performance of work or the provision of workers, extrinsic evidence of the surrounding circumstances of the agreement known to the parties at the time of the transaction, is admissible to assist in the interpretation of the agreement.

49 Her Honour then had regard to what was said by Mr Salvatore Mangione when interviewed by Inspector Trayner as admissible evidence of the surrounding circumstances of the agreement, including the objective background behind it and the parties presumed (not subjective) intention. This evidence was as follows:[15]

KT [Inspector Trayner]: Alright, so, [Mani had] been provided by Mode 2 Group ... to work for [RRS]?

SM: Correct.

...

KT: ... with [Mode 2] and [RRS]. ... was there an agreement between the two companies?

SM: Correct, there is, yeah.

KT: And ... so what can you tell me about that?

SM: ... there's ... an agreement set ... I went to a tender process ... to look for ... a labour hire ... company, because we had a lot of issues maintaining staff ... in that particular area ...

...

KT: ... [S]o [De Gee was] the sole person you've had ... discussions about

...

KT: ... providing labour hire workers?

SM: Yep.

SM: ... we were pretty in depth in ... dealing with two different companies, in regard to supplying the labour ... [W]hen [De Gee] ... Mode 2 approached ... myself ... I asked him to come in ... [W]e spoke about the process ... he was very comfortable.

50 Her Honour then found that there was other evidence consistent with the conclusion that Mode 2 did, for remuneration, agree with the appellant to provide workers (including Mr Rathinasabapathy) to carry out work for the appellant, as opposed to performing work for the appellant:

(a) Mode 2 issued an invoice to the appellant on 12 February 2016, for 'labour supplied at Instant Waste ... for the fortnight ending ...'.[16] Salvatore Mangione confirmed that the appellant paid Mode 2 for the provision of workers pursuant to an invoice;

(b) Mr De Gee had limited access to the workplace and did not monitor in any way the work which the workers performed at the appellant's workplace.[17]

51 In Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd, the plurality set out the following established principles:[18]

In determining the meaning of the terms of a commercial contract, it is necessary to ask what a reasonable businessperson would have understood those terms to mean. That inquiry will require consideration of the language used by the parties in the contract, the circumstances addressed by the contract and the commercial purpose or objects to be secured by the contract.

Ordinarily, this process of construction is possible by reference to the contract alone. Indeed, if an expression in a contract is unambiguous or susceptible of only one meaning, evidence of surrounding circumstances (events, circumstances and things external to the contract) cannot be adduced to contradict its plain meaning.

However, sometimes, recourse to events, circumstances and things external to the contract is necessary. It may be necessary in identifying the commercial purpose or objects of the contract where that task is facilitated by an understanding 'of the genesis of the transaction, the background, the context [and] the market in which the parties are operating'. It may be necessary in determining the proper construction where there is a constructional choice.

52 To these general principles of construction, the principle that definitions do not have substantive effect and should not be construed in isolation from the operative provision or provisions in which the definitions appear must also apply.[19] The usual rules of construction of contracts require that the relevant definitions are to be inserted into the operative provisions of a contractual term.[20]

53 Construing a commercial contract depends on finding the meaning of the language of the contract,[21] and what each party by words and conduct would have led a reasonable person in the position of the other party to believe.[22]

54 Where a formula of words has been accepted by the courts, the parties are taken to have included that accepted meaning into the words chosen.[23]

3.3 Ground 1 - The agreement between Mode 2 and the appellant

55 The appellant's contentions in respect of this ground are as follows.

56 At trial, it was not in dispute that the sorters were employed by Mode 2 or that they performed work at the premises of the appellant, under the direction of the appellant. However, the appellant disputed that the work was performed under an arrangement that satisfied the elements of s 23F of the OSH Act.

57 It was the prosecution case that the agreement signed by Salvatore Mangione and Tom Mangione for the appellant, and by Mr De Gee for Mode 2 was the only relevant agreement for the purposes of s 23F(3)(a). The presiding magistrate also found that the agreement was the only agreement between Mode 2 and the appellant.

58 At trial, the appellant contended that there was reasonable doubt about the proper construction of the agreement such that the court could not be satisfied beyond reasonable doubt that s 23F applied. In particular, the appellant argued that the prosecution had failed to prove that a labour arrangement existed, because it was reasonably possible that the agreement was not an agreement for the purposes of s 23F(3)(a), that is an arrangement where an agent had for remuneration agreed with the client to provide a worker to carry out work for the client.

59 The basis of the argument put at trial was that the 'Services' were defined in cl 1.1 of the agreement by reference to Schedule 2, and that although cl 2 refers to Schedule 4 (a job description for a sorter, which is to 'perform process work to aid the process and sort (sic) of recyclable materials'), none of these clauses refer to the provision of labour.

60 It was argued by the appellant that Schedule 2 describes the 'Services' by way of things to be carried out by Mode 2 (i.e. staff training, inductions, compliance with Council contractual requirements and daily housekeeping as to PPE). Schedule 2 also contains as part of the 'Services' to be carried out by Mode 2 under the heading 'Acceptance of Material' which states:

RRS will agree a daily schedule with the Contractor to remove the majority of the tonnes processed by the plant on the basis of full loads only. This is in recognition of the fact that storage capacity on the site is limited. In the event processed material is not moved in align with the agreed programme, the Contractor must notify RRS and RRS will organise the removal of the excess tonnes as soon as possible.

61 In addition, the appellant argues that while Schedules 3 and 4 contemplate the hourly rates of pay for various job descriptions, the agreement does not state anywhere that Mode 2 is providing labour to the appellant.

62 For these reasons, the appellant contends that the specified 'Services' contemplate the provision of services by Mode 2 that are not reconcilable with a labour hire arrangement. It is also contended that Schedule 2 has clearly been drafted so as to apply to waste processing work at the appellant's workplace and that the contractor (Mode 2) was responsible for the performance of work for the appellant rather than the provision of labour.

63 This construction is said to be advanced also by Mode 2's obligations in clause 3, particularly 3.1 - 3.4, which contains various warranties as to Mode 2's competence and diligence in the performance of the 'Services'.

64 When regard is had to all of these provisions, the appellant contends that the express terms of the agreement are all consistent with a relationship of principal and contractor and inconsistent with a labour hire arrangement.

65 It is claimed that the 'Services' identified in the first limb of Schedule 2 might relate to 'personnel issues for labour/workers' but that does not 'suggest', and does not result in, an agreement to provide a worker to carry out work for the appellant. At the highest, it is said to indicate parts of the work or 'services' to be undertaken by Mode 2. The reference to hourly rates in Schedule 3 is also said to not indicate or determine an agreement to provide a worker to carry out work for the appellant. It is said to indicate the basis on which Mode 2 was to be paid for providing the 'Services'.

66 The only other evidence of the arrangement between the appellant and Mode 2 is an invoice (Exhibit 2, Tab 3) issued by Mode 2 to the appellant on 12 February 2016, which shows a lump sum (with no breakdown) with the entry 'labour supplied at Instant waste ...'. For the fortnight ending ...'. The invoice confirms that a payment was made from the appellant to Mode 2, but nothing more about the arrangement under which that payment was made.

67 In respect of the presiding magistrate's reasons, the appellant points out that the core reasoning of her Honour was that cl 2, read with the description of the 'Services' in Schedule 2 and the 'Job description' in Schedule 4, suggested that Mode 2 agreed to provide 'Services' in respect of a sorter(s) rather than agreeing to perform work for the appellant.

68 The appellant contends the presiding magistrate found that the only reference 'to the performance of recycling work' was in Schedule 4, which finding, the appellant claims, overlooks the second of two obligations in Schedule 2, the first of which requires Mode 2 to agree to a daily schedule to remove the majority of the tonnes processed by the plant, and the second is that if material is not moved in line with the agreed programme, Mode 2 was to organise a removal of the excess tonnes as soon as possible. The appellant contends that her Honour's reasons do not explain how the second obligation of Schedule 2 can fit with her Honour's construction of the agreement.

69 Insofar as the presiding magistrate's reasoning had regard to extrinsic evidence, being part of a record of interview with Mr Salvatore Mangione, the appellant contends her Honour erred, on three grounds:

(a) the prosecution confined its case on s 23F to the four corners of the agreement. Nothing was said in opening or closing about extrinsic evidence or its application to the agreement. In these circumstances, it was not open to her Honour to give consideration to a formulation of the prosecution case that was never relied upon by the prosecution at trial, and certainly not without first giving notice to the appellant;[24]

(b) that part of the record of interview was inadmissible because whatever label or characterisation Mr Salvatore Mangione placed on the relationship between the appellant and Mode 2, it was an inadmissible opinion about the proper effect of the agreement, which was a question of law; and

(c) the admission of that part of the record of interview was inadmissible because there are limits on the way in which extrinsic evidence may be used to construe a contract. A court may admit evidence of mutually known facts to identify the meaning of a descriptive term and of the genesis and aim of the transaction, but it cannot receive evidence from one party as to its intentions and construe the contract by reference to those intentions.[25]

70 Finally, the appellant contends that her Honour erred in construing the agreement by having regard to post-contractual conduct, being, first, the invoice issued to the appellant on 12 February 2016, and, second, the fact that Mr De Gee had limited access to the workplace and did not monitor in any way the work performed at the appellant's workplace.

3.3.2 Ground 1 - Disposition - Was it not reasonably open on the whole of the evidence for the presiding magistrate to find beyond reasonable doubt that the labour hire arrangement existed between the appellant and Mode 2?

71 It is clear that her Honour erred in construing the agreement by regard to part of the record of interview with Mr Salvatore Mangione. This is because regard cannot be had to a party's subjective intention to determine the presumed intention of the parties when the only surrounding circumstances are evidence of subjective intention.

72 Extrinsic evidence of intention is only admissible where a latent ambiguity arises in a contractual provision, providing the ambiguity cannot be resolved after taking into account the ordinary principles of construction and the other admissible extrinsic evidence. Latent ambiguity arises where there is, on a written contract, an apparently unambiguous reference to one person or thing, but, in fact, the reference is equally applicable to more than one person or thing. In these circumstances, extrinsic evidence is receivable to resolve the equivocation.[26]

73 The ambiguity identified by the presiding magistrate cannot be characterised as a latent ambiguity.

74 The fact that her Honour had regard to inadmissible evidence does not, in this matter, lead to a miscarriage of justice. This is because it is clear from her Honour's reasons that her Honour only had regard to this evidence on the basis if it could be found that the agreement was ambiguous. However, her Honour's reasons at [61], her Honour determined that no ambiguity arose in the agreement because she had found beyond reasonable doubt that under the agreement, Mode 2 had, for remuneration, agreed with the appellant to provide workers, including Mr Rathinasabapathy, to carry out work for the appellant.

75 There are fundamental difficulties with the argument put on behalf of the appellant that, on the proper construction of the agreement, it was not open to find that Mode 2 had agreed with the appellant to provide workers, including Mr Rathinasabapathy, to carry out work (as sorters) for the appellant for the purposes of s 23F(3)(a) of the OSH Act.

76 The first is that when the definition of 'Services' is read into the operative provisions of the agreement, the services to be provided by Mode 2 to the appellant were not confined to the 'Services' specified in Schedule 2, or defined only by the 'Services' specified in Schedule 2 or the 'acceptance of material' clause in Schedule 2.

77 The appellant's argument fails to give effect to the terms of the agreement when construed by the definitions read into the relevant express provisions of the agreement, and when the terms of the agreement are read together as a whole.

78 The second is that the argument ignores the fundamental indicia of a labour hire agreement, which indicia is provided for in the express terms of agreement. A characteristic feature of all labour hire arrangements is that one party, a labour hirer, arranges for a worker or workers (either employees of the hirer or persons who independently contract to the hirer) to perform work for another party, who is usually the client of the labour hirer.

79 What emerges from the express provisions of the agreement is that the appellant was not obliged to pay the persons (the workers who carried out the work) because the payments were made to Mode 2 as a Fee,[27] for work performed by persons engaged by Mode 2. The payments were made to the benefit of Mode 2, who derived remuneration from the appellant for the provision of the persons who carried out the work (in the business of the appellant[28]). Mode 2 had control over who provided 'Services' at the site (the workers) in that it could withdraw a worker from the assignment at the request of the appellant.[29]

80 The third is that the fact that the terms of the agreement are all consistent with the relationship of principal and contractor does not render such an agreement inconsistent with a labour hire arrangement. To the contrary, the nature of the relationship created by the terms of the agreement is to provide services, which include the provision of the specified services in Schedule 2 (staff training, site inductions etc) and also to provide workers, to perform process work to aid the process and sort recyclable materials, whose work was to be carried out in accordance with the job description in Schedule 4, and to provide any other services as reasonably requested by the appellant from time to time.

81 Clause A and B of the recitals provide that the Contractor (Mode 2) has offered to provide the Services to the Company (the appellant), and the appellant engages Mode 2 to provide the Services (specified in Schedule 2 and any other services as reasonably requested from time to time by the appellant) to the appellant at the Site (50 Clune Street, Bayswater) during the Term, on the terms and conditions of the agreement.

82 The first sentence of cl 2 reflects the recitals and creates an obligation on Mode 2 to provide the Services (the services specified in Schedule 2 and any other services as reasonably requested from time to time by the appellant) at the Site for the Term on the terms and conditions set out in the agreement. The second sentence of cl 2 provides that the 'Term may be extended by agreement between the parties'. In cl 2 there is a third sentence in brackets '(Refer: Schedule 4 Job Description)'.

83 When the definition of Services is read into the first sentence of cl 2 and the first sentence is read together with the third sentence in brackets, cl 2, in the context of the rights and obligations expressly provided for in cl 3, cl 4, cl 5 (including Schedule 3), cl 6, cl 7, cl 9 cl 10 and cl 16, is to be construed as an obligation on Mode 2 to provide the 'Services' specified in Schedule 2 and Schedule 4 (being part of the category of any other services as reasonably requested from time to time by the appellant).

84 This construction emerges from the following provisions of the agreement, which construction reflects the characteristic features of a labour hire arrangement.

85 Clause 7.3 provides that, subject to the terms of the agreement, the parties acknowledge that Mode 2 is solely responsible for controlling the manner in which it provides the Services at the Site.

86 Clause 3.11, cl 6.1(a) and (b), cl 9.1 and cl 10 require Mode 2 to pay its employees, contractors and agents remuneration and benefits, including salaries and wages, annual leave, sick leave, superannuation, long service leave etc, and pay any taxes and duties, including income tax, PAYG withholding tax, fringe benefits tax, payroll tax and GST. Such provisions contemplate the provision of services which provide for the provision of labour, that is, workers, for the appellant.

87 The provisions of Schedule 2, Schedule 3 and Schedule 4 do not have independent operative effect. Pursuant to cl 5.1 and cl 5.2, the appellant was required to pay Mode 2 the Fee as calculated in accordance with Schedule 3, which Fee was payable on the receipt of a Tax Invoice (which meaning is as given in A New Tax System (Goods and Services Tax) Act 1999 (Cth)) detailing the Services (the services specified in Schedule 2 and any other services as reasonably requested from time to time by the appellant) provided by Mode 2.

88 The 'Fees' as specified in Schedule 3, are fees which comprise hourly rates for morning and afternoon shifts (being work performed in the morning and afternoon) in respect of which a normal rate is specified, a separate rate for overtime is specified, and a further separate rate for Sundays is specified for three classifications of workers, one classification of which is 'sorters' (the other classifications are 'operators' and 'lead supervisors').

89 Given that no other fees are specified as being payable pursuant to the terms of the agreement, other than as calculated by Schedule 3, it is clear from these provisions that the Services contemplated to be provided by Mode 2 pursuant to the terms of the agreement were for workers who were engaged in work as sorters, operators and lead supervisors for morning and afternoon shifts performed during specified hours, but also allowing for overtime work to be performed and work on Sundays.

90 This construction is consistent with cl 4.1, which provides that extraordinary breakdown maintenance or extraordinary labour may be required due to structural failure or a proven design defect of plant or equipment at the Site. The second sentence in this clause also provides that if such occasions occur, the appellant's nominated representative must be contacted immediately and no work is to commence by Mode 2 unless approved by the appellant. This provision contemplates that additional hours of work or additional workers may be required to be provided by Mode 2 from time to time to deal with the matters specified in cl 4.1.

91 The acceptance of material clause in Schedule 2 cannot be construed as a provision that specifies services to be provided by Mode 2. The acceptance of material clause in Schedule 2 does not require Mode 2 to remove any processed material from the Site, nor does this provision attract any remuneration payable to Mode 2. The obligation in the first sentence simply requires the parties to agree a daily schedule to remove the majority of the tonnes processed by the plant on the basis of full loads only, and the third sentence requires the appellant (and not Mode 2) to remove the excess tonnes as soon as possible in the event that processed material is not moved in line with the agreed programme. What is to be in a daily schedule is not specified in the agreement, but this clause contemplates that such matters are to be agreed by the parties.

92 I do not agree that the presiding magistrate had, in [65], regard to post-contractual conduct in construing the agreement. In [44(b)] of her Honour's reasons, her Honour found that she concluded beyond reasonable doubt that Mode 2 did, for remuneration, agree with the appellant to provide a worker, Mr Rathinasabapathy, to carry out work for the appellant for the purposes of s 23F(3)(a). In order to make such a finding, her Honour was necessarily obliged to consider whether, in fact, on the date in question, 28 January 2016, the agreement made between the appellant and Mode 2 was operative in respect of the work performed by Mr Rathinasabapathy at the workplace.

93 In particular, to make this finding it was necessary for her Honour to determine:

(a) whether the works performed by Mr Rathinasabapathy were works performed pursuant to, and in accordance with, the terms of the agreement made between Mode 2 and the appellant;[30] and

(b) whether cl 5.2 of the agreement was performed by the appellant for work performed on that day by Mr Rathinasabapathy, that is, had a Fee been claimed by Mode 2 that was calculated in accordance with Schedule 3 and forwarded to the appellant by Mode 2 for the provision of Services (performed by Mr Rathinasabapathy).

94 The invoice referred to by her Honour is an invoice dated 12 February 2016 for an amount of $5,897.38 (inclusive of GST) for labour supplied at Instant Waste - Bayswater for the fortnight 'ended' 9 February 2016. Attached to the invoice is a document titled 'Mode 2 Group Pty Ltd ... Bi-Weekly Invoice Information Sheet' and which contains a spreadsheet for labour supplied for the period from 27 January 2016 to 9 February 2016, and lists the names of 10 persons under the heading 'Labour Details', with each name classified as 'Sorter' and indicating the number of hours of work that each of those persons worked, whether there was a claim for time worked at the ordinary rate, and whether there were overtime hours and the overtime rate. Mr Rathinasabapathy's name is listed as person number 1 on the sheet and the invoice indicates that he worked 7.5 hours on 28 January 2016 (being the date of the accident).[31]

95 Clearly this uncontradicted evidence demonstrated the agreement between the appellant and Mode 2 was operative on the day in question, and applied to the work carried out by Mr Rathinasabapathy.

96 For these reasons, Ground 1 has no prospects of success, and leave to appeal on this ground should be refused.

97 The evidence referred to in [65] is also referred to in [46(d)] of her Honour's reasons as evidence that her Honour relied upon in making a finding that Mode 2 was carrying on the business of providing workers to carry out work for clients within the meaning of s 23F(1) of the OHS Act (that is, it was an 'agent' which finding is the subject of Ground 3 of the appeal and is considered below in 3.5).

3.4 Ground 2 - Was there an agreement between Mr Rathinasabapathy and Mode 2 that applied to the carrying out of the work by Mr Rathinasabapathy for the appellant on the date of the accident?

98 At the conclusion of the trial, the appellant filed written closing submissions in which a submission was made that there was no evidence before the court to satisfy the requirements of s 23F(3)(c) and (d) (that is, there was an agreement (which may be a contract of employment) between the worker (Mr Rathinasabapathy) and the agent (Mode 2) as to the carrying out of work including in respect of remuneration and other entitlements; and that (worker) agreement applied to the carrying out of the work by the worker (Mr Rathinasabapathy) for the client (the appellant)).

99 I agree that the presiding magistrate misstated in her reasons at [40] that the matters in s 23F(3)(c) and (d) were not in dispute. However, no substantial miscarriage of justice arises because there was cogent evidence before the court, which was not in dispute, and that establishes beyond reasonable doubt that the requirements of s 23F(3)(c) and (d) had been met.

100 In the appellant's written closing submissions, filed in the Magistrates Court, the following submissions about the evidence were made:

209. For s 23F of the Act it does not matter whether Mani was an employee of Mode 2 or a Contractor - what is required is proof of the arrangement between Mode 2 and RRS, and that the agreement between Mani and Mode 2 applied to the carrying out of the work for RRS.

210. Mani was originally paid as an employee of Mode 2. At some point, Mode 2 ceased paying super and PAYG tax and moved to a system of generating invoices from Mani to Mode 2 under agreed rates. As part of that change Mani entered into an agreement on 26 August 2015 (Mani's Contract).

211. Mani gave limited evidence about his work arrangements. His evidence was that he was employed by Mode 2, he was paid by Mode 2 and he worked at the premises of RRS. He gave evidence that at some point his arrangement with Mode 2 changed whereby he was no longer paid using a Tax File Number and had to obtain an Australian Business Number (with the assistance of staff at Mode 2). His evidence was that his shift times were determined by Mode 2.

212. There is no other evidence of Mani's arrangement with Mode 2 except for Mani's Contract.

...

220. It is not in dispute that Mani was paid by Mode 2 on an hourly rate and that he performed that work at RRS.

221. The issue in dispute is whether Mani's agreement with Mode 2 (whatever agreement applied as at 28 January 2016) was an agreement for the carrying out of work by Mani for RRS.

101 Although the presiding magistrate found that Mr Rathinasabapathy was an employee of Mode 2, it appears that the contractual arrangements entered into by Mr Rathinasabapathy and Mode 2 may not be capable of being characterised as a contract of employment but rather an engagement by Mode 2 of Mr Rathinasabapathy to provide services as a sorter, as a contractor.[32] However, as the appellant pointed out in their closing submissions filed in the Magistrates Court, it is immaterial whether Mr Rathinasabapathy was engaged by Mode 2 as a contractor or employee. This is because s 23F applies to a 'worker', which is defined in s 23F to include an employee or a contractor.

102 A contract was entered into by Mr Rathinasabapathy and Mode 2 on 26 August 2015,[33] which described Mode 2, by reference to its full name and ABN number, as 'the Company' and described Mr Rathinasabapathy, by reference to his full name together with an ABN number, as 'the Contractor'. Pursuant to cl 1.1 of this agreement, Mr Rathinasabapathy agreed to provide the services described in the Scope of Services specified in Schedule C to Mode 2 for a period of 4 months to 24 December 2015, and, thereafter, extendable at the mutual consent of both parties.

103 The Scope of Services in Schedule C was for the services of a Sorter to report to a supervisor, valid from the Agreement Date and valid to, 'For the period as mutually consented between the parties'.

104 Clause 1.0 of Schedule C provided that Mr Rathinasabapathy would directly report to the Client Supervisor of Mode 2 and be directed in his activities by the Client Supervisor, or their appointed nominee, and/or the Management. The terms 'Client Supervisor' and 'Management' are not defined. However, cl 6.1 required Mr Rathinasabapathy to report to and comply with the reasonable directions of Mode 2's representative mentioned in Schedule C, who was responsible for ensuring that the Services were carried out in a professional manner in accordance with the Scope of Services and the directions of Mode 2's Clients. There is also reference to requirements to comply with safety rules etc in inductions conducted by Mode 2's clients in cl 9.2 and a term noting that Mr Rathinasabapathy agreed to consent to alcohol and drug testing as required by Mode 2's Client in cl 9.0 of the agreement.

105 The appellant argued at first instance, and in the appeal, that Mr Rathinasabapathy's contract makes no reference to him performing work for the appellant, nor do his contracted obligations with Mode 2 make any reference to the arrangement between Mode 2 and the appellant.

106 It is also argued by the appellant that there was no evidence of what agreement applied between Mr Rathinasabapathy and Mode 2 after 24 December 2015, and there was no evidence that his contract continued after that date by mutual consent. Consequently, in this appeal the appellant put a submission that in the absence of this evidence, and in circumstances where the contract between Mode 2 and Mr Rathinasabapathy made no reference to work being performed by the appellant, it was not reasonably open to find that the prosecutor had proved the facts stated in s 23F(3)(c) and (d).

3.4.2 Principles - Circumstances where an agreement may be inferred

107 The express terms of the contract between Mr Rathinasabapathy and Mode 2 provided for the term of the agreement to be extended by mutual consent. The appellant argues there was no evidence before the court at first instance in respect of which it could be found that there was an express offer and acceptance of terms to extend the term of the agreement.

108 However, when no offer or acceptance can be identified, a contract can be found (including an agreement to vary or extend the term of an existing contract) if it is possible to infer from the relevant facts the conclusion that the parties have agreed to incur reciprocal promissory obligations.[34] In Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd, the New South Wales Court of Appeal had to decide whether the terms of a standard contract that had not been signed applied to give a firm of managing architects security over land.[35] The architects performed a considerable amount of work for the owners of the land and, after some time, submitted a standard contract to be signed. Although the document was never signed, the parties proceeded in a manner that was consistent with the terms of the unsigned contract. The Court of Appeal decided that the terms of the written contract should apply because there was an implied acceptance of the terms of the written contract stemming from the conduct of the parties.

109 As her Honour pointed out in [28] of her reasons, such an inference cannot be drawn in criminal proceedings if there is a reasonable hypothesis consistent with innocence.

3.4.3 Ground 2 - Was it not reasonably open on the whole of the evidence of the court to find beyond reasonable doubt that an agreement between Mr Rathinasabapathy and Mode 2 applied to the carrying out of work by Mr Rathinasabapathy for the appellant?

110 Although the appellant concedes that while in certain circumstances it may be appropriate to presume that two parties consented to extend the terms of a fixed term contract, the existence and terms of an engagement are questions of fact to be determined by the court. The appellant also makes a submission that the prosecutor at trial did not adduce any evidence of the agreement that applied at the date of the accident. In particular, no evidence was led from Mr Rathinasabapathy or Mr De Gee on the issue and the court made no findings of fact about it. Consequently, it is claimed that there was no basis to apply the presumption in this matter.

111 This submission is not correct. There was evidence led from Mr Rathinasabapathy about this issue.

112 Whilst no findings of fact were made by the presiding magistrate, no substantial miscarriage of justice can be found to arise because the uncontradicted evidence is that there was a course of conduct between Mr Rathinasabapathy and Mode 2, whereby after the date of expiry of the agreement, Mr Rathinasabapathy continued to work at the workplace for the appellant, and Mr Rathinasabapathy submitted invoices to Mode 2 for that work, including the work performed on the day of the accident, and Mode 2 paid Mr Rathinasabapathy for that work.

113 The relevant evidence of Mr Rathinasabapathy is set out in the following exchange with the prosecutor:[36]

McDONALD, MR: Yes. Okay. Well, as you know, Mr Rathinasapabathy, this is a case that concerns an incident that occurred on 28 January 2016.

INTERPRETER: Yes.

McDONALD, MR: At that time, where did you work?

INTERPRETER: Recycling company, Instant Waste.

McDONALD, MR: Instant Waste. Okay. And as of 28 January 2016, how long had you been working there?

THE WITNESS: I think roughly five to six months.

INTERPRETER: I think roughly five to six months.

McDONALD, MR: Okay. And who was your employer at that time?

INTERPRETER: Okay. I have been working for Instant Waste, but I got my salary from Mode 2.

McDONALD, MR: Okay. So you were being paid for your work there by Mode 2.

THE WITNESS: Yes.

INTERPRETER: Yes.

...

McDONALD, MR:

There's only one volume of the agreed documents. Now, if we could turn to the document behind page - behind tab 11. Do you have that there?

INTERPRETER: Yes.

McDONALD, MR: Now, what's that document?

INTERPRETER: It's like a payslip.

McDONALD, MR: Okay. We can see on there that Mode 2 Group is mentioned. How often were you paid by Mode 2?

THE WITNESS: Every two weeks.

INTERPRETER: Every two weeks.

McDONALD, MR: Okay. And who created these documents?

INTERPRETER: That came from the Mode 2 email.

McDONALD, MR: Okay.

INTERPRETER: Yes.

McDONALD, MR: What does that 7.5 - we can see that on the left-hand side in a column - 7.50, what does that signify?

INTERPRETER: That's the hours that we worked.

McDONALD, MR: Which hours?

INTERPRETER: The hours that we worked. Yes. This is the number of hours that we worked for one day.

McDONALD, MR: Okay.

HER HONOUR: That's tab 11, is it?

McDONALD, MR: Tab 11. Now, if we can just move on to the document behind tab 13, please. Again, it says across the top Mode 2 Group Proprietary. Do you recognise that document?

INTERPRETER: Yes.

McDONALD, MR: So what's this one?

INTERPRETER: So after giving my tax file number, this is the payslip that I got.

McDONALD, MR: Okay. We can see the date on there or the pay period 20.5.2015 to 2.6.2015 and then if we compare to the document behind tab 11, there's an invoice date of 11 February 2016.

THE WITNESS: Yes.

McDONALD, MR: You can see there - sorry - if we go back to the document behind tab 11, we can see there on the top right - sorry - the top left-hand corner - - -

INTERPRETER: Yes.

McDONALD, MR: - - - there's an ABN number there.

INTERPRETER: ABN number. Yes.

114 The relevant evidence of Mr De Gee is set out in the following exchange with the prosecutor:[37]

McDONNELL, MR:

...

Now, you're aware, Mr De Gee, that this is a case that relates to an incident - - -?---Sure.

- - - that occurred on 28 January 2016 that involved a person called Manikandan Rathinasapabathy?---Correct.

How do you know Mr Rathinasapabathy?---He worked for - he worked for - worked for our company.

And in January 2016? Who did he work for in January 2016?---In January 2016 he was with - with us, yes. Still with us, yes.

And where did he work in January 2016?---He worked in Bayswater - Instant Waste.

...

And who paid Mr Rathinasapabathy for the work that he did at Instant Waste?---I paid him. Mode 2 paid him.

...

Okay. If you can turn to the document behind tab 11, please, Mr De Gee?---Yes.

Across the top it says 'recipient created tax invoice?'---Yes.

Do you recognise that document?---Yes, that's right.

And what's that document?---That's a recipient tax invoice for - for a contractor.

Okay. Now, you will see there's an ABN on the top left-hand side?---Yes.

Whose ABN number is that?---That was the number issued by Mani himself.

...

And also on that document, on the left-hand side there's a column entitled quantity, and underneath that the number 7.5, what does that signify?---That's the hours work.

Okay. So what was it that determined how Mani got paid - I will withdraw that question, I will come at that another way. How often were these tax invoices issued?---Fortnightly.

Okay. And what was it that determined how much Mani got paid every fortnight?---His hours times his rate.

115 Both Mr Rathinasabapathy and Mr De Gee identified a tax invoice dated 11 February 2016,[38] which recorded 7.5 hours of work, sorting at a rate of $26 an hour, being a payment made by Mode 2 to Mr Rathinasabapathy for hours worked at the appellant's workplace in the preceding fortnight. The rate of $26 an hour is the same as the rate specified in Schedule C of the agreement entered into between Mr Rathinasabapathy and Mode 2 on 26 August 2015. Further, pursuant to cl 2.1 of this contract, it was a term of the agreement that Mr Rathinasabapathy issue fortnightly tax invoices to Mode 2 for payment for providing the Services (as a Sorter) in Schedule C.

116 In light of this evidence, no substantial miscarriage of justice can be found to arise because there was uncontradicted evidence before the court at first instance from which the court could draw a circumstantial inference from the behaviour of the parties that:

(a) a reasonable person in the position of each of the parties would conclude that there was a willingness to continue the terms of the agreement; and

(b) that both parties engaged in conduct from which a reasonable person would conclude that an agreement had been reached because the parties had acted as if there was an agreement to continue the terms of the agreement, that is, there was performance of the terms of the agreement after the date of expiry.

117 It necessarily follows, therefore, that the only inference open from all of this evidence is that the terms of the 26 August 2015 agreement had been extended, and those terms were operative between Mr Rathinasabapathy and Mode 2 as at 28 January 2016. This is because, on the uncontradicted evidence, it is clear that Mr Rathinasabapathy continued to work as a sorter at the appellant's workplace and was paid by Mode 2 the rate of pay specified in the agreement, that had expressly expired on 24 December 2015, for that work. Further, from this evidence there was no other inference open that is consistent with innocence.

118 For these reasons, leave to appeal on Ground 2 should be refused.

3.5 Ground 3 - Was Mode 2 was an agent for the purposes of s 23F(1)?

119 Section 23F(1)(a) of the OSH Act provides that, in s 23F, 'agent' means a person that carries on a business of providing workers to carry out work for clients of the person.

120 The meaning of the words 'carries on a business' is not defined in the OSH Act. However, the context in which the provision is found must necessarily mean that an agent is a person who conducts a form of commercial enterprise of providing workers to carry out work for clients of the agent. That is, it must be found the enterprise of the agent is conducted for commercial reward. It must necessarily follow that to prove that a person carries on a business, it must be proved that that person engaged in an activity of providing workers to another person for commercial reward.

3.5.2 The appellant's submissions, the evidence and disposition of Ground 3

121 The appellant contends that there was no direct evidence that Mode 2 was an agent 'carrying on a business of providing workers to carry out work for clients'.

122 It was Mr De Gee's evidence that he was a director of Mode 2 and had been, at the time of giving evidence, its sole director for five years. When asked 'what does the company do', he said, 'we provide engineering services to the waste recycling industry'.[39] Mr De Gee also said, when asked how they came to be in business with the appellant, 'We provide services to the waste recycling industry and as part of my job, is to go and source work and I got hold of Jake and Jake introduced me to Sam and that's how we started the relationship'.[40]

123 The appellant properly points that this evidence is insufficient to prove on its own that Mode 2 was carrying on a business of providing workers to carry out work for clients of the person. Although Mr De Gee's evidence is not determinative of the point, what can be found from his evidence is that the business of Mode 2 was to provide services to the 'waste recycling industry'.

124 As set out in 3.3.2 of these reasons, the agreement between Mode 2 and the appellant was clearly an agreement for Mode 2 to provide workers to carry out work for the appellant, namely, sorters, operators and lead supervisors, for commercial reward.

125 Further, there was uncontradicted evidence that sorters, including Mr Rathinasabapathy, carried out work for the appellant, in respect of which work the appellant paid Mode 2 an hourly rate for each hour worked for each of the workers, in accordance with the express terms of the agreement made between Mode 2 and the appellant.

126 The prosecution only had to prove that there was an arrangement entered into between Mode 2 and the appellant, to provide workers to carry out work for the appellant for commercial reward. There was no requirement to prove that Mode 2 carried on a business of providing workers to carry out work for more than one client.[41]

127 For these reasons, Ground 3 has no prospects of success, and leave to appeal on this ground should be refused.

4.0 Grounds 4 to 8 - Gross negligence 4.1 Elements of the offence of gross negligence

18A. Meaning of gross negligence in relation to certain breaches of this Part

(1) This section applies to a contravention of section 19(1), 20(1) or (3), 21(1) or (2), 21B(2), 22(1), 23(1), (2), (3) or (3a), 23A or 23G(2).

(2) A contravention of a provision mentioned in subsection (1) is committed in circumstances of gross negligence if -

(a) the offender -

(i) knew that the contravention would be likely to cause the death of, or serious harm to, a person to whom a duty is owed under that provision; but

(ii) acted or failed to act in disregard of that likelihood;

(b) the contravention did in fact cause the death of, or serious harm to, such a person.

129 Under s 18A(2), gross negligence requires proof that:

(a) the offender:

(i) knew that the contravention would be likely to cause the death of, or serious harm to, a person to whom a duty is owed under that provision; but

(ii) acted or failed to act in disregard of that likelihood; and

(b) the contravention did in fact cause the death of, or serious harm to, such a person.

130 In respect of the element of 'contravention', where it is alleged that s 19(1) has been contravened as it was in Charge 39876/18, it must be proved that the offender, so far as practicable failed (by failing to take the particularised practical measures) to provide a working environment in which Mr Rathinasabapathy was not exposed to hazards.

131 The particulars of the practical measures were as follows:[42]

Practicable measures

5. If was practicable for the Accused to have:

(a) fitted physical guarding in place over the pinch points of the Diversion Belt that prevented a person's body or clothing from coming into contact with it whilst the Diversion Belt was operating, and which could not be removed without the use of a tool or key; and/or

(b) implemented and enforced a system that combined:

(i) a trapped key interlocking system which physically restricted any person from accessing the Diversion Belt at all times when the Diversion Belt was energised; and

(ii) a monitoring system to detect blockages of the Diversion Belt that utilised the observation of images captured by closed circuit television (CCTV) equipment installed in the vicinity of the Diversion Belt; and/or

(c) ensured that persons working at the Workplace were provided with such information on the hazards (including those presented by nip/pinch points), risks (including serious injury or death) and safety controls relevant to working closely with plant containing potentially dangerous moving parts, such as the Diversion Belt, as necessary to enable them to perform work closely with such plant (including clearing blockages in such plant, and testing and start-up of such plant following attempted blockage clearance) in such a manner that they were not exposed to the Hazard, and ensured that those persons understood that information; and/or

(d) ensured that persons working at the Workplace were adequately instructed and trained in a formalised and documented safe working procedure (SWP) for clearing blockages in plant containing potentially dangerous moving parts, such as the Diversion Belt (including testing and start-up of such plant following attempted blockage clearance) which enabled them to perform such work in such a manner that they were not exposed to the hazard, and ensured that those persons understood that instruction and training; and/or

(e) ensured that persons working at the Workplace were provided with direct supervision by the leading shift supervisor or overall plant supervisor/manager, to ensure that the SWP is correctly followed at all times when persons working at the Workplace were required to attend to clearing of blockages in plant containing potentially dangerous moving parts, such as the Diversion Belt, or testing and start-up of such plant following attempted blockage clearance.

132 The particulars of knowledge of the contravention were as follows:[43]

Knew that the Contravention would be Likely to Cause Death or Serious Harm

7. The Accused knew the contravention would be likely to cause death or serious harm due to any or all of the following:

(i) On 19 December 2013 the Accused's Director Salvatore Mangione was advised by Worksafe Inspector Nathan Fry (Inspector Fry) and Worksafe Inspector Keith Trayner (Inspector Trayner) that numerous conveyor belts at the Workplace were not adequately guarded.

(ii) On 23 February 2015 worker Esmatollah Amini suffered a broken arm when his arm was dragged into an inadequately guarded moving conveyor at the Workplace.

(iii) On 4 March 2015 Inspector Fry issued the Accused with Improvement Notice 61500197 (IN) requiring the Accused to ensure that alt dangerous moving parts of plant at the Workplace are adequately guarded in accordance with regulation 4.29 of the Occupational Safety and Health Regulations 1996. Copies of two publications about machinery and guarding, 'Machinery and Equipment Safety - an Introduction' and 'Code of Practice - Safeguarding of Machinery, and Plant (2009)' were also provided to the Accused's Site Supervisor Tony Di Cicco on behalf of the Accused. The date for compliance on the IN was 30 June 2015.

(iv) On 5 August 2015 Inspector Fry visited the Workplace and informed Mr Di Cicco that the level of guarding put in place to that date did not amount to compliance with the IN.

(v) On 30 October 2015 Inspector Fry again visited the Workplace and informed Mr Di Cicco that the level of guarding put in place to that date, still did not amount to compliance with the IN.

(vi) On 18 January 2016 Inspector Fry sent an email and letter to Mr Mangione seeking an update, in relation to the IN. On 25 January 2016 Mr Mangione replied to Inspector Fry's email by email attaching the compliance slip to the IN, signed by Mr Mangione, and indicating that all dangerous moving parts of plant at the Workplace were now adequately guarded as required by the IN.

(vii) It is common knowledge that if a person has any part of their body or clothing down in to a moving industrial conveyor belt, serious injury or death is likely to occur.

133 The particulars of acting or failing to act in disregard of that likelihood were as follows:[44]

Acted or Failed to Act in Disregard of that Likelihood

8. The Accused acted or failed to act in disregard of the likelihood of harm by not ensuring some or all of the practicable measures as identified in paragraph 5 above were in place as at 28 January 2016.

(a) not satisfied beyond reasonable doubt that particular 5(a) of the practicable measures (guarding the Diversion Belt) was reasonably practicable;[45] and

(b) was satisfied beyond reasonable doubt that the breach in respect of particular 5(b) of the practicable measures caused Mr Rathinasabapathy's injuries, and the breach in respect of particulars 5(c) to (e) of the practicable measures was committed in circumstances of gross negligence.[46]

135 Her Honour summarised why she found that particulars 5(b) and 5(c) to (e) were reasonably practicable as follows:[47]

(i) the potential injury or harm to health from the Hazard was serious, which was objectively known to any person in this field, and was known to RRS;

(ii) there was a high risk of the serious potential injury or harm to health in all of the circumstances. That is, it was known to RRS or was foreseeable to a reasonable employer in RRS' position;

(iii) the following means of removing or mitigating the risk or mitigating the potential injury or harm to health were objectively known to any person in this field:

1. implement the system that was employed following the incident combining (particular 5(b)):

   1. a trapped key interlocking system restricting access to the Diversion Belt when energised; and

   2. a monitoring system to detect blockages of the Diversion Belt using closed-circuit television (CCTV) facilities; and

   3. provide all relevant workers with adequate information, instruction, training and supervision to enable them to perform their work safely (particulars 5(c) - (e));

(iv) the above measures were relatively available, suitable and cost-effective.

136 The principles her Honour applied to determine whether the contravention occurred in circumstances of gross negligence as defined in s 18A, were as follows.

The 'state of knowledge' refers to the state of knowledge objectively possessed by persons generally in the relevant field of activity, and not the actual knowledge in fact possessed by a specific person in particular circumstances.

The term 'risk' in relation to any injury or harm is defined in s 3(1) to mean 'the probability of the injury or harm occurring'. The word 'probability', means no more than 'likelihood' of the injury or harm occurring, which requires some consideration of the question of foreseeability. That, in turn, involves consideration of whether it is shown that (the employer knew, or that a reasonable employer in the position of the employer would have appreciated or foreseen the risk of the injury or harm to health occurring. In addition, the question is not whether some particular injury, by some particular means, was foreseeable. Rather, it is whether an accident of some class, including the class through which injury might follow, might conceivably happen.

(a) an allegation of gross negligence requires proof of actual knowledge by the appellant that the contravention would be likely to cause the death of, or serious harm to, a person to whom a duty is owed under s 19(1) of the OSH Act;[49]

(b) it must be proven specifically that the appellant had actual knowledge that if it did not employ the practicable measures in particulars 5(b) and 5(c) to (e), prior to 28 January 2016, this was likely to cause the death of, or serious harm to, a worker;[50] and

(c) proof of actual knowledge of the contravention may be found by direct evidence or may be inferred. It may be inferred from suspicious circumstances and a failure to make an inquiry; this has been described as 'wilful blindness'. Constructive knowledge is not sufficient, nor is recklessness or negligence.[51]

139 Importantly for the disposition of this appeal, the presiding magistrate found that gross negligence had been proved against the appellant in respect of the contravention of s 19(1) of the OSH Act only in respect of failure to employ the practical measures identified in paragraph 5(c), (d) and (e), which were in respect of the provision of information to persons working at the workplace (including clearing blockages); ensuring persons working at the workplace were adequately instructed and trained; and ensuring persons working were provided with direct supervision by the leading shift supervisor or overall plant supervisor/manager to ensure that the documented safe working procedure was correctly followed at all times.

140 It is implicit in her Honour's findings that she found that the appellant contravened s 19(1) in respect of the practical measures in 5(b), being a failure to implement and enforce a system that combined a trapped key interlocking system and a monitoring system, but did not find the failure to implement and enforce this system to have been committed in circumstances of gross negligence.

141 In her reasons for decision, her Honour recorded that the cornerstone of the appellant's defence to the breach of duty charges was its purported implementation, after the accident of a worker (Amini) who had suffered a broken arm when his arm was dragged into a moving conveyor at the workplace, and prior to Mr Rathinasabapathy's accident, of a standard blockage procedure to clear conveyor belt blockages, which her Honour referred to as a purported standard blockage procedure (PSBP). In respect of this procedure, her Honour posed a number of questions and answered (in italics) as follows:[52]

The pertinent disputed facts (Disputed Facts) in respect of the PSBP, and my findings (italicised), beyond reasonable doubt, are as follows:

(a) Was the PSBP implemented consistently at the Workplace? No, the PSBP was not implemented consistently, or at all. Therefore. RRS failed to implement a safe work procedure which applied to all blockage clearances of conveyor belts.

(i) Did sorters use their hands to clear small blockages from operating/running conveyor belts? Yes.

Therefore, were the bells isolated and the motor switch padlocked before clearing blockages on these occasions? No.

(ii) Did sorters consistently use padlocks for the motor switches of conveyor belts? No.

(iii) Were sorters consistently given a verbal cue to stand back or move away prior to the operator turning a belt on (to test it)? No.

(b) Did the sorters receive adequate information, instruction, training and supervision in relation to the PSBP and about hazards, risks and safety controls, to prevent them using their hands to clear blockages from moving belts (ie to ensure it did not occur)? No. Therefore, the sorters were not aware, or lacked understanding, of the PSBP.

(i) When inducted at the Workplace, were sorters provided with adequate information and instructions about hazards, risks and safety controls, and not using their hands to unblock moving bells? No.

(ii) Were sorters subsequently trained adequately, or instructed adequately during weekly 'toolbox meetings', not to use their hands to unblock moving belts? No.

(iii) Were sorters supervised adequately during blockage clearances of belts to ensure they did not use their hands to unblock moving belts? No.

(c) Was the PSBP implemented immediately prior to the Accident? No.

(i) Did Reza communicate adequately a verbal cue for workers to stand back before he turned on the Diversion Belt? No.

(ii) Did Mani move back and then forward towards the Diversion Belt during testing? No. Both Mani and Jena were already standing at the Diversion Belt because Jena, and then Mani, attempted to clear the running belt using their hands.

(d) Was the Area 5 Gate consistently kept closed during operation of the plant in Area 5? No, it was consistently open.

142 In respect of the instructions and training that the appellant claimed had been put into place in respect of the purported standard blockage procedure, her Honour observed that Mr Di Cicco, Mr Clarke, the appellant's operator, Reza, and leading shift supervisor, Mr Ngwati Wairau (Midge) (who were called as witnesses for the prosecution), were led during cross-examination to adduce evidence:

(a) of the purported standard blockage procedure;

(b) that sorters, including Mr Rathinasabapathy, were instructed and trained in the procedure and required to follow it; and

(c) that the appellant's staff observed the sorters following the procedure.

143 Her Honour made the following factual findings about the knowledge of Mr Salvatore Mangione and Mr Clarke:[53]

(a) When interviewed, Mangione stated that there was a procedure for unblocking belts, which involved a number of steps. However, he said he did not know what the steps were. Mangione also stated that there was no change in procedure after Amini's Accident, because that accident occurred as a result of a belt tracking attempt, rather than blockage clearance. RRS' position at the hearing, that the PSBP was implemented after Amini's Accident, contradicts Mangione's responses.

(b) Clarke could not proffer evidence, unassisted, of each of the steps. There was an apparent attempt during cross-examination of Clarke, to obtain evidence of the step-by-step PSBP in a non-leading way. However, when Clarke was not able to articulate those steps, he was then led through them, particularly in respect of the belt testing phase after blockage clearance.

(a) the appellant did not produce any document verifying the purported standard blockage procedure;

(b) none of the appellant's staff (which her Honour defined as the appellant's supervisors, managers, and operators)[54] provided evidence of the step-by-step purported standard blockage procedure, and the training that was provided, without being led (i.e. prompted) on it; and

(c) this in itself calls into question whether, prior to the accident (when Mr Rathinasabapathy was injured), there was a uniform procedure in place for clearing blockages of running belts at the workplace, of which the appellant's staff themselves were aware, and which was the subject of instruction, training and supervision.

145 Her Honour set out some of the principles of law that apply to the making of findings of actual knowledge, which the principles are set out in 4.4.2 of these reasons. Her Honour also considered the principles that apply to the finding of corporate attribution and the concept of aggregation, which has been applied by the Court of Appeal in Western Australia in finding corporate knowledge of insolvency by banks, of the Bell Group of companies, in civil proceedings.[55] This issue is raised in Ground 6 of the appeal.

146 After observing that the appellant submits that only Salvatore Mangione's knowledge is to be attributed to the appellant, her Honour found that a consideration of the statutory context of the OSH Act, demonstrates, in her view, that it was not only the knowledge of the managing director (Salvatore Mangione) that was to be attributed to the appellant, but also the respondent's plant managers, Mr Di Cicco (who left in late November 2015) and Mr Clarke (who replaced Mr Di Cicco in late November 2015). In making this finding, her Honour's reasons were as follows:[56]

The objects of the Act are relevantly, to promote and secure the safety and health of persons at work, and to protect persons at work against hazards. The Act and Regulations impose duties, obligations and responsibilities on duty-holders, consistently with the objects (eg s 19(1)). It is necessary, in the case of the duty-holder, to identify the person(s) tasked with, or having knowledge of, pertinent responsibilities relating to workers, including, but not limited to:

(a) What work do workers perform (ie their role and responsibilities)?

(b) How the work is to be performed (eg equipment)?

(c) When the work is to be performed and by whom (ie work allocation)?

(d) Who provides and maintains the workplace, plant and systems of work?

(e) What instruction, training and supervision arc provided to workers, and who provides it?

(f) Who prepares and implements safe work systems, including changes in response to injuries and incidents?

In the present case, the person in the Plant Manager role (Clarke, and Di Cicco before him) had the above responsibilities. Therefore, I conclude that the knowledge of Clarke and Di Cicco, as well as Mangione, respectively should be attributed to RRS.

147 Her Honour then found that there were suspicious circumstances and a failure to make inquiry, therefore 'wilful blindness', from which the requisite knowledge of Mr Salvatore Mangione, Mr Di Cicco and Mr Clarke could be (expressed in her Honour's reasons as 'as can be') inferred. The evidence and circumstances relied upon by her Honour in making this finding were as follows:

(1) Her Honour found that the following circumstances were known to Mr Salvatore Mangione, Mr Di Cicco or Mr Clarke when the latter two were in their respective plant manager roles:[57]

(a) the particulars of knowledge, which were specified in paragraph 7 of the particulars relied upon by the prosecution (and which are set out in 4.1 of these reasons;

(b) the factual context in [121] of her Honour's reasons, which were the factual findings made by her Honour that the particularised practicable measures were reasonably practicable (which factual findings related to the practicable measures 5(c), (d) and (e) (information, training and supervision));

(c) WorkSafe recommended to Mr Salvatore Mangione that the appellant engage the services of a consultant with specialist knowledge in machinery guarding to help the appellant to identify the various hazardous parts, and to identify the most appropriate type of guarding for each machine;

(d) workers were exposed to the Diversion Belt, and other machinery with dangerous parts;

(e) Mr Salvatore Mangione, Mr Di Cicco and Mr Clarke knew that the appellant did not have a formal and documented safe work procedure;

(f) Mr Clarke was aware of the minimal induction he provided new workers. He made assumptions in relation to the training which Mr De Gee provided;

(g) Mr Clarke knew that he was not supervising the sorters clearing blockages; and

(h) Mr Di Cicco knew about the policy requirements which were provided with prohibition notice IN 61500197.

(2) Her Honour found Mr Salvatore Mangione, Mr Di Cicco and/or Mr Clarke failed to make inquiry (by):

(a) failing to engage the services of a consultant with specialist knowledge in machinery guarding and failing to arrange for a risk assessment of hazards;

(b) failing to make inquiries in relation to the sorters' method of clearing blockages, and to ascertain they were using their hands to clear blockages from moving belts;

(c) failing to check whether Area 5 gate was consistently closed;

(d) failing to make inquiries in relation to instruction, training and supervision requirements, and preparing and implementing a formal and documented safe working procedure;

(e) failing to inquire whether the appellant was meeting those requirements, especially after Amini's accident;

(f) failing to ensure workers understood adequately, and implemented, a safe working procedure; and

(g) Mr Clarke failing to make inquiries with Mr De Gee about the content of the induction Mr De Gee provided and whether it was relevant to the workplace and the sorters' role.

148 From these findings, her Honour concluded beyond reasonable doubt that there were circumstances from which it could be inferred that the appellant knew that its contravention in respect of particulars 5(c) to (e) would be likely to cause death or serious harm to a person to whom a duty is owed under s 19(1).

149 Her Honour found that in s 18A 'disregard' is used as a verb and not a noun, and that to disregard requires either that no attention was paid, that something was left out of consideration or that something was treated without due regard. Further, her Honour noted that something more than mere neglect must be required, and that the appellant's submission of first instance was that the particular of disregard in particular 8 alleged no more than what would have been required to satisfy the general duty obligation under s 19(1) of the Act.

150 Her Honour then went on to consider whether the appellant had acted or failed to act in disregard of that likelihood, and found that to establish the disregard element of the offence, the prosecution must prove that the appellant had actual knowledge of the contravention and its likely consequences, and disregarded the likelihood, in the sense that it failed to pay any attention to it, left it out of consideration or breached it without due regard. In respect of this finding, the parties agreed that her Honour correctly formulated the test.

151 Her Honour then went on to find that the element of disregard had been made out on the basis that the appellant did not provide adequate information, instruction, training and supervision, through its supervisors Mr Di Cicco, Mr Clarke and Midge, and its operator, Reza, in respect of the blockage procedure. Her Honour found that sorters were left to their own devices to perform a hazardous job and it is questionable whether a blockage procedure was in existence, and, in any event, it was so inadequate as to amount to no procedure at all.

152 Her Honour found that, in a context where the appellant knew that the workers were all regularly exposed to the Diversion Belt, as well as other machines with dangerous parts, the disregard of the likelihood specified in s 18A(2)(a)(i), by not taking the measures in particulars 5(c) to (e), was blatant and went well beyond mere neglect.

4.3 The submissions made at first instance about the elements of gross negligence

153 At the conclusion of the trial, the prosecution made brief submissions about how the court should approach the making of necessary findings of fact and law that the contravention was committed in circumstances of gross negligence. These submissions were set out in the prosecutor's closing written submissions as follows:[58]

1586. It is alleged that the Accused's section 19 offence occurred in circumstances of gross negligence, which requires the following elements to be proven:

1586.1. causation of Mani's injury (see above at 17); and

1586.2. the Accused's knowledge that the contravention would be likely to cause serious harm to a person; and

1586.3. the Accused acted or failed to act in disregard of that likelihood.

1587. As to the Accused's knowledge that the contravention would be likely to cause serious harm to a person, the Prosecutor has particularised the various indicators at Particular 7(a) to (g), including:

1587.1. the Accused's Managing Director Sam Mangione being personally advised by WorkSafe inspectors on 19 December 2013 that numerous conveyor belts at the Workplace were not adequately guarded;

1587.2. the incident on 23 February 2015 involving a worker suffering a broken arm when his arm was dragged into an inadequately guarded moving conveyor at the Workplace;

1587.3. IN 61500197 being issued to the Accused on 4 March 2015;

1587.4. instruction from WorkSafe inspectors on 5 August 2015 and 30 October 2015 to the effect that the level of guarding put in place on those dates still did not amount to compliance with IN 61500197; and

1587.5. common knowledge being such that if a person has any part of their body or clothing drawn in to a moving industrial conveyor belt, serious injury or death is likely to occur.

1588. The Prosecutor has no knowledge of section 18A ever having received judicial consideration.

1589. As to section 18A(2)(a)(ii), the crucial words are: 'in disregard of that likelihood'.

1590. 'Disregard' is not defined in the Act. The Macquarie Dictionary relevantly defines it as 'lack of regard or attention, or neglect; or lack of due or respectful regard'.

1591. Construing whether the acts or omissions of the an accused constitutes 'disregard' in any particular case must necessarily require an assessment of the likelihood of death or serious harm - distinct to (but, given the use of the term 'that likelihood', necessarily informed by) the assessment necessary for the purposes of identifying the content of the relevant 'knowledge' under section 18A(2)(a)(i) - and a characterisation of the acts or omissions of the accused relative to that (known) likelihood. In other words, a consideration of 'disregard' in any particular case is crucial, in that it ultimately requires reference to the other key elemental concepts in section 18A(2)(a)(i).

1592. For example, an accused that has taken action to address the risk of a hazard eventuating, but that action was merely to issue an oral warning - although literally not an absolute absence of regard - nonetheless would likely constitute 'disregard' of an obvious, imminent, high risk of serious harm or death in circumstances where an unrestrained employee is repeatedly wandering back and forth beside an unprotected 10‑metre fall hazard (or indeed where several workers at a workplace were consistently reaching into plant with dangerous moving parts whilst energised in the absence of an adequately implemented safe working procedure to do otherwise). The same oral warning might not establish circumstances of gross negligence where, say, the fall height is only 2 metres, the employee is not repeatedly exposed to the hazard, and an appropriate safety harness is being rushed to the area.

1593. In the Prosecutor's submission, the ultimate question posed by section 18A(2) as a whole is: in all the particular factual circumstances as known to the Accused, were the acts or omissions of the Accused, when balanced against its knowledge of the risk and gravity of the potential outcome, so inadequate as to constitute 'disregard' thereof, in the ordinary, common sense construction of that word. In the Prosecutor's submission, they were.

154 In oral submissions at the conclusion of the trial, the prosecutor made the following submissions about the factual circumstances the prosecution relied upon in its case that the appellant should be found guilty of gross negligence:[59]

The second element being the accused's knowledge that the contravention would be likely to cause serious harm to a person, on the prosecution notice we particularise the various indicators of particular 7(a) to 7(g). And that includes that the accused's managing director Sam Mangione was personally advised by WorkSafe inspectors on 19 December 2013 that numerous conveyor belts at the workplace were not adequately guarded.

Your Honour has the evidence of Inspectors Fry and Trayner on that. There's the incident on 23 February 2015, involving a worker suffering a broken arm when his arm was dragged into an inadequately-guarded moving conveyor at the workplace. There's the incident notification document at exhibit 21. There is the admission by Sam Mangione that he was notified of the incident, and Di Cicco's evidence that he told Sam Mangione about the incident.

There's improvement notice 61500197 being issued to the accused on 4 March 2015. There's the instruction from WorkSafe inspectors on 5 August and 30 August - sorry, 30 October 2015, to the effect that the level of guarding put in place on those dates still not amount to compliance with the improvement notice. There's Inspector Fry's evidence there. And, finally, there's the common knowledge being such that if a person has any part of their body or clothing drawn into a moving industrial conveyor belt, serious injury or death is likely to occur.

Now, that much is clear, not only from common sense but also from the raft of publications in exhibit 9 and exhibit 27. So to the final element, your Honour, being the accused's conduct being in disregard of that likelihood, disregard isn't defined in the Act. The Macquarie Dictionary relevantly defines it as a lack of regard or attention or neglect, or lack of due or respectful regard. In my submission, your Honour, a consideration of disregard in any particular case requires reference to the other key elemental concepts, such as risk and foreseeability.

And I've used the example of an accused that has taken action to address the risk of a hazard eventuating, but that action was merely to issue an oral warning in circumstances where an unrestrained employee is repeatedly wandering back and forth beside an unprotected 10 metre fall hazard. Although, literally it's not an absolute absence of regard, nonetheless, it would likely constitute disregard, in my submission, your Honour, of an obvious imminent high risk of serious harm or death.

And the same assessment, your Honour, in my submission, is appropriate in circumstances where several workers at a workplace were consistently reaching into powerful industrial conveyor belts whilst energised in the absence of an adequately-implemented safe working procedure or information even to do otherwise. So the ultimate question for the court, your Honour, in respect of gross negligence.

In all the particular factual circumstances as known to the accused, were the acts or omissions of the accused; being no guard on the diversion belt, a gate with no interlock function that was always open, very occasional supervision and a so-called procedure that wasn't documented that seemingly none of the workers were aware of, let alone followed consistently, and for which no padlocks were available; was all of that when balanced against the accused's knowledge of the risk and gravity of the potential outcome, which is plainly foreseeable as it gets.

And, indeed, the accused had an actual consciousness of the risk. The risk was actually known by the accused, given the previous incidents and improvement notices. Was the accused's conduct so inadequate as to constitute disregard thereof in the ordinary common sense construction of that word. In the prosecutor's submission, it was. The accused's conduct in relation to the known risk demonstrated an indifference to the consequences.

And that's probably best highlighted, your Honour, by the fact that the guarding project started by Di Cicco when he was plant manager in response to improvement notice 61500197 came to a complete halt when he left in November 2015. Clarke wasn't doing anything about it. Sam Mangione clearly didn't consider it important enough to finish, and he knew it wasn't finished, your Honour. Di Cicco's evidence was that he told Sam when he left that it wasn't finished.

And when Inspector Fry approached Sam Mangione about it a week before Mani's accident, Sam just signed the compliance slip and sent it back.

155 The appellant at the conclusion of the trial filed written submissions about the legal principles that should apply where an allegation of gross negligence is cast as a failure to implement one or more practicable measures. In its written closing submissions, the appellant stated:[60]

239. There is no case law construing s.18A of the Act.

240. Section 18A was introduced by the Occupational Safety and Health Legislation Amendment and Repeal Bill 2004. Neither the explanatory memorandum nor the second reading speech assists in construing s.18A.

241. What is clear from the scheme of the Act is that the concept of gross negligence is applied to a number of contraventions of the Act to signify a more serious breach of the Act to which a higher (Level 4) penalty applies, including for individuals the prospect of imprisonment.

242. In that context, where an offence is committed in 'circumstances of gross negligence' a greater degree of culpability must be present when compared to a breach committed in the absence of that circumstance.

243. This is reinforced by the language s.18A.

244. In paragraph (a)(i) of the definition, it is clear that an allegation of gross negligence requires proof of actual knowledge by an accused that the contravention would be likely to cause the death of, or serious harm to, a person to whom a duty is owed under s.19(1) of the Act.

245. Two points arise. First, only actual knowledge will suffice. Proof that RRS 'ought to have known' that the contravention would be likely to cause death or serious injury will not prove the allegation.

246. Second, RRS must have had actual knowledge that the specific contravention as alleged would be likely to cause the death of or serious harm to a person to whom the duty is owed. Knowledge about guarding requirements generally at the premises will not be sufficient. It must be proven that RRS had actual knowledge that the pinch points of the Diversion Belt posed the particular hazard to pickers (as set out in the charge) and that if RRS did not employ at least one of the practicable measures alleged (guarding, trapped key interlocking system and training) this hazard was likely to cause the death or serious injury to a worker.

247. The prosecutor must also prove that RRS acted in disregard of that likelihood.

248. The prosecutor has set out at [106] of the Outline of Prosecutor's Opening Submissions an incomplete definition of disregard. The full definition in the Macquarie Dictionary is as follows:

1. (verb)

   (a) pay no attention to; leave out of consideration.

   (b) to treat without due regard, respect or attentiveness.

   1. (noun)

   (c) lack of regard or attention, neglect.

   (d) lack of due or respectful regard.

249. The prosecutor relies on items (c) and (d) from the above definition.

250. In s.18A disregard is used as a verb and not a noun. Its meaning should be taken from the first two items of the definition above. To disregard requires either that no attention was paid, that something was left out of consideration or that something was treated without due regard.

251. That is consistent with the construction above, whereby something more than mere neglect must be required. If gross negligence could be proven by mere neglect, it would equate the conduct that might support a breach of the general duty provisions to which a lesser penalty applies with the conduct that might support a breach of the gross negligence provisions.

252. The object of introducing to the Act the concept of gross negligence, with its higher penalty regime, was to attribute more serious consequences to a breach that was committed in circumstances that are more serious and involve a more substantial departure from the acceptable standard required of employers and other duty holders under the Act.

253. The prosecution case fails to recognise that something more than a failure to comply with the general duty for a breach is required for a breach to be committed in circumstances of gross negligence.

254. This is well demonstrated by the particulars of how RRS is alleged to have acted or failed to act in disregard of the likelihood of the contravention causing death or serious harm. Particular 8 provides:

The Accused acted or failed to act in disregard of the likelihood of harm by not ensuring some or all of the practicable measures as identified in paragraph 5 above were in place as at 28 January 2016.

255. It is obvious from that particular that no more is alleged than what would have been required to satisfy the general duty obligation under s.19(1) of the Act.

256. To establish this element of the offence the prosecution must prove that RRS had actual knowledge of the contravention and its likely consequences; and with that actual knowledge disregarded the likelihood, in the sense that it failed to pay any attention to it, left it out of consideration or treated it without due regard.

257. On that test, the prosecution cannot discharge its burden of proof.

156 In its written submissions filed in the Magistrates Court, the appellant also made detailed submissions about the evidence and the findings it said should be made in respect of the actual knowledge of Mr Salvatore Mangione about compliance with the Improvement Notice. These were that his knowledge was there was no access for sorters unless asked to enter by a supervisor to clear blockages while the plant was stopped, that he was not aware of people pulling rocks out of moving conveyors, and he understood that Mode 2 was carrying out a full induction before workers arrived at the appellant's workplace. The appellant's written submissions also made submissions about what Mr Di Cicco and Mr Clarke had reported to Mr Salvatore Mangione.

157 In respect of the evidence going to proof that the appellant disregarded the likelihood of harm, the appellant in its written submissions, filed in the Magistrates Court, made submissions about:

(a) the evidence given by Mr Salvatore Mangione about the instructions he gave to Mr Di Cicco about what needed to be done to comply with the Improvement Notice; and

(b) the evidence given by Mr Di Cicco about what Mr Salvatore Mangione had said to him about this issue.

158 Submissions were also made about the evidence given by Mr Salvatore Mangione about resources and external advice on guarding.

159 As to the provision of information, inductions and training, the appellant made the following written submissions which went to the issue of actual knowledge of Mr Salvatore Mangione and the plant managers of the appellant, Mr Di Cicco and Mr Clarke:

298. As for the provision of information to the pickers and their induction, Mr Mangione relied on what was done by his supervisors, Mr Clarke and Mr Di Cicco.

299. They each gave evidence of the induction process that they undertook with their shifts.

300. Whatever the extent of the actual inductions undertaken by Mr De Gee (and that was disputed by the pickers), RRS through Mr Mangione were entitled to rely on the Agreement and Mr De Gee's conduct and representations in forming a view that inductions were being undertaken by Mode 2.

301. Mr Mangione understood that Mr Clarke would then do a site specific induction for each picker.

302. As for training and the enforcement of the blockage procedure, Mr Mangione understood that there was on the job training for new pickers and toolbox meetings. He also understood that the blockage procedure was the subject of toolbox meetings.

303. The only evidence that Mr Mangione received a report of a worker placing their hands into a moving belt related to Esmatollah Amini's accident and the incident which resulted in Mr Di Cicco firing a picker.

304. Esmatollah Amini's incident had been responded to through the response to the Improvement Notice.

305. The latter incident did not involve an injury and was dealt with swiftly (Mr Di Cicco stopped the worker before he put his hands in the belt and then dismissed him).

306. This element of the offence cannot be proven where there is evidence that RRS had a procedure for clearing blockages which was directed at reducing the risk of injury.

307. Further, RRS had been issued with the Improvement Notice in respect of guarding and had taken steps in an attempt to comply with that notice. Even if the Court were to conclude that the steps were inadequate, in the sense that the Improvement Notice was not complied with, the Court cannot conclude on that basis alone that RRS had disregarded the likelihood that an absence of guarding, an interlock system and/or adequate training would have exposed Mani to the hazard presented by the pinch points on the Diversion Belt.

308. The evidence supports the opposite conclusion. RRS considered and assessed whether guarding could be installed at the Diversion Belt but concluded that it could not and instead installed a gate to prevent access to that area while the plant was operating.

309. RRS provided its own site specific induction in addition to whatever induction was provided by Mode 2.

310. RRS provided training and supervision in respect of the blockage procedure, through its supervisors Mr Di Cicco; Mr Clarke; and Midge; and its operator, Reza. The procedure was regularly reinforced during blockages, in toolbox meetings and in other informal meetings.

311. The evidence does not establish that RRS acted or failed to act in disregard of the likelihood specified in s 18A(2)(a)(i).

160 In oral closing submissions, senior counsel for the appellant made the following submission in which it was put that to find actual knowledge by the appellant, it must be the actual knowledge of the director, Salvatore Mangione, as only he could be regarded at law as the 'mind' of the appellant:[61]

[W]hat's required for gross negligence is actual knowledge. And it's actual knowledge in the context of an accusation against a corporate entity. So it requires proof that the knowledge that was held was held by a person sufficiently high up in the organisation such that their mind is the equivalent of the mind of the corporation. Now, no attention has been given to this issue at all in the submissions from the prosecution, which mind they rely upon. It's probably the case that, if asked, they would rely upon the knowledge of Mr Mangione.

There is no evidence about anybody else who would be regarded as being the directing or controlling mind of RRS. So it's very important at the outset to appreciate what is required here is proof of Mr Mangione's actual knowledge. And what is required is not proof of knowledge of some general risk or foreseeability of harm, which, in my respectful submission, some of the prosecutor's submissions tend to suggest.

It is proof that there was knowledge that the contravention would be likely to cause serious harm or death. So it's a focus upon knowledge of the contravention and the connection - likelihood connection between that contravention and the causation of death or serious harm.

161 Senior counsel for the appellant then went on to make further submissions about whether it could be found that the contravention was committed in circumstances of gross negligence, and said that it must be found that the appellant had knowledge that the particular contravention had a likelihood of causing death or serious harm. After conceding that knowledge could be inferred, senior counsel made the following submission about what could be found about Salvatore Mangione's knowledge, of the contravention:[62]

Or absent an admission, you can infer knowledge. But, of course, drawing an inference requires exclusion of all other rational inferences consistent with innocence. And again, there's no attention to this in the prosecutor's submissions, so I'm not able to deal with whatever inferences are said to arise from the evidence, other than the particulars that are relied upon - - -

HER HONOUR: What - - -

RUSSELL, MR: - - - to establish knowledge, which I will come to in a moment because they show that the prosecutor's case on knowledge is without regard to what actually has to be proven. So the particulars don't go towards, either individually or collectively, establishing the knowledge of Mr Mangione that the contravention alleged would be likely to cause death or serious harm. So I say the contravention - the text says the contravention and the context supports it.

...

And that's very important in this case because there is no evidence of actual knowledge of the contravention. And there are things that have been said and done by Mr Mangione in his record of interview which are the opposite of knowledge.

...

RUSSELL, MR: Knowledge of the hazard, yes. But the hazard is only part of the contravention. The contravention is formed around the hazard. That provides the context in which the practicable measures are to be looked at. But the breach is the failure to implement the practicable measures.

HER HONOUR: And then it's a question of whether they knew.

RUSSELL, MR: Not whether they knew.

HER HONOUR: Whether the - - -

RUSSELL, MR: Whether anybody sufficiently senior in the company knew.

HER HONOUR: Accused. Yes.

RUSSELL, MR: So whether the accused knew. And onus being on the prosecution to prove actual knowledge by that person. So it - what I - I don't want you to understand my submissions to mean - it doesn't mean it requires proof that Resource Recovery Solutions knew it was committing an offence. That's not what I'm saying. That would not be right. It has to be knowledge that it was practicable to do those things that you find were practicable and which caused the death.

4.4.1 The appellant's submissions relevant to each of Grounds 6, 7 and 8

162 The appellant makes a number of submissions that go generally to Ground 6, Ground 7 and Ground 8.

163 The first is that the determination of whether the elements of gross negligence have been proven to the requisite standard, as defined by s 18A, requires a focus upon the contravention that is alleged (in the particulars) and proven in two aspects. The first is the knowledge of the accused about a likelihood of death, or serious harm, that could be caused by the contravention as it is particularised. The effect of the appellant's argument is that this aspect itself in turn has two aspects and requires a finding that there is knowledge of the likelihood, together with an evaluation of an outcome (which is to be judged subjectively). The second aspect requires an objective assessment of whether or not the offender acted, or failed to act, in disregard of that likelihood.[63]

164 The second submission is that there were no submissions made at the trial about whether the principles of attribution or aggregation should be applied to establish the corporate knowledge of the appellant.

165 The third is that the prosecution's particulars of the knowledge of the appellant that the contravention would be likely to cause death or serious harm were confined to the guarding of plant, and did not go to the alleged practical measures in paragraph 5(c) to (e) (information, instruction training and direct supervision). In addition, to the extent that the particulars of knowledge relied upon the knowledge of Mr Di Cicco, the particulars were limited to his knowledge of the Improvement Notice, which required the appellant to ensure that all dangerous moving parts at the workplace were adequately guarded. None of the particulars of knowledge referred to the knowledge of Mr Clarke in respect of any issue. Further, no submission was made by the prosecution at the trial that the knowledge of Mr Clarke could be attributed to the appellant or that his knowledge could be aggregated with Mr Salvatore Mangione or Mr Di Cicco. Nor was any submission made that the knowledge of Mr Di Cicco could be attributed to the appellant (or aggregated) in relation to the particulars of the practical measures in paragraph 5(c) to (e).

166 The fourth is that the appellant claims the presiding magistrate convicted the appellant on a basis that was not run by the prosecution in that her Honour found that the contravention was committed in circumstances of gross negligence by applying the principle of wilful blindness, and by aggregating the knowledge of Mr Salvatore Mangione, Mr Di Cicco and Mr Clarke.

4.4.2.1 Legal principles - Particulars bind the prosecution case

167 In criminal proceedings, the prosecution is required to establish the essential elements of the offence charged to the requisite standard. Particulars are not elements of an offence.

168 In Cotter v The State of Western Australia, Hall J explained the distinction between particulars and the elements of an offence as follows:[64]

Particulars serve the purpose of ensuring that an accused person is aware of the act and occasion which the prosecution relies upon as being the commission of the offence alleged. It is one of the components of a fair trial that an accused person be informed of precisely what it is that the prosecution alleges he or she has done that constitutes a crime: Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467, 489 (Dixon J). This requirement is reflected in sch 1 div 2 cl 5 of the Criminal Procedure Act. In assessing whether particulars have been adequate, the relevant question is whether the accused person has been able to identify the act, omission and circumstances which the prosecution alleged amounted to the offence charged...

169 The particulars should give an adequate account of the allegations to be relied upon so as to enable a defendant to be appropriately aware of the case which they have to meet.[65] That is, the particulars should specify how or in what manner the appellant contravened a particular section.[66] This is because, in all cases, an accused is entitled to know not only the offence with which they are charged but also how or in what manner they are alleged to have committed it, that is, the particular act, matter or thing alleged as the foundation of the charge. They are also entitled to know the 'substance of the charge' as well as the nature of the alleged offence.[67]

170 In Kirk v Industrial Court (NSW), the majority of the High Court stated:[68]

The common law requires that a defendant is entitled to be told not only of the legal nature of the offence with which he or she is charged, but also of the particular act, matter or thing alleged as the foundation of the charge. In John L Pty Ltd v Attorney-General (NSW), it was explained that the older cases established that an information could be quashed as insufficient in law if it failed to inform the justices of both the nature of the offence and the manner in which it had been committed. In more recent times the rationale of that requirement has been seen as lying in the necessity of informing the court of the identity of the offence with which it is required to deal and in providing the accused with the substance of the charge which he or she is called upon to meet. The common law requirement is that an information, or an application containing a statement of offences, 'must at the least condescend to identifying the essential factual ingredients of the actual offence'. These facts need not be as extensive as those which a defendant might obtain on an application for particulars. In Johnson v Miller, Dixon J considered that an information must specify 'the time, place and manner of the defendant's acts or omissions'. McTiernan J referred to the requirements of 'fair information and reasonable particularity as to the nature of the offence charged'.

171 In John L Pty Ltd, the majority of the High Court stated:[69]

In De Romanis v Sibraa, Mahoney JA correctly pointed out that there was no technical verbal formula which could be applied to determine whether an information sufficiently identified the essential ingredients of the alleged offence. As his Honour commented:

In Johnson v Miller Dixon J saw the decision in Smith v Moody as requiring the information to specify 'the time, place, and manner of the defendant's acts or omissions'; McTiernan J referred to 'fair information and reasonable particularity as to the nature of the offence charged'. The rule does not require that the information contain all such material as a defendant may require, upon an application for particulars, for the preparation of his defence: Ex parte N Ormsby & Sons Pty Ltd; Re Mason.

...

These cases establish that it may not be sufficient for an information to state the offence charged: it may be required to condescend to particulars. But, ... they do not indicate that the information must go beyond the statement of the offence and the proper particularization of it.

172 In De Romanis v Sibraa, Mahoney JA, upon reviewing the authorities, noted the principle that an accused person could not be required to defend the charge if the information did not supply the particulars necessary to enable him to prepare his defence.[70] This case was followed by the Court of Criminal Appeal in Shoalhaven City Council v State Pollution Control Commission, in which Clarke JA said:[71]

While there is no need in the present circumstances to analyse these authorities, I think it should be said that they do establish the existence of a common law requirement that an information must, at the very least, condescend to identifying the essential factual ingredients of the actual offence and that it must also contain sufficient particularity to enable a defendant to be reasonably apprised of the charge with which he is faced. In this regard there is a distinction between the requirement that the information contain sufficient particularity and the right of a tribunal to require a prosecutor to furnish further and better particulars. The critical matter is, of course, that there be sufficient particularity.

173 When a person is charged on particulars giving one set of facts, that person cannot be convicted on proof of a different set of facts (unless the person has had a fair opportunity of defending themselves on those different facts).[72]

174 It is not for a court of trial in a criminal prosecution to see whether the offence charged was committed by the doing of some other act or by some other omission than that which is alleged against the defendant.[73]

175 Consequently, the prosecution is bound by its particulars. At trial, a finding of fact cannot be made that is based upon a case that is different to a case that is particularised, and where the person charged has not had an opportunity to meet that different case. The Court of Appeal recently held in Skelly v The State of Western Australia in the matter before them, that that meant the State could not have requested the trial judge to direct the jury in a manner inconsistent with its particulars and in a manner unfair to the appellant.[74]

4.4.2.2 The effect of the presiding magistrate's findings in respect of the particulars of practical measures and how that affected the prosecution's case as to knowledge of the contravention

(a) having found that it had not been proven to the requisite standard that the appellant had contravened s 19(1) by failing to implement the practical measure in paragraph 5(a) (by the fitting of physical guarding in place over the pinch points of the Diversion Belt); and

(b) having found that the appellant contravened s 19(1) by the failure to implement the practical measure of implementing and enforcing a system that combined a trapped key interlocking system and a monitoring system to detect blockages as particularised in paragraph 5(b) (which failure caused serious harm to Mr Rathinasabapathy),[75] but not being satisfied to the requisite standard that the failure to implement this practical measure was committed in circumstances of gross negligence because it had not been proven that the appellant had actual knowledge that the failure to implement this practical measure was likely to cause death or serious injury to a worker;

it was then only open to her Honour to find that the appellant knew that the contravention as particularised in paragraphs 5(c) to (e) (ensuring workers were provided with information, adequately instructed and trained, and directly supervised) was committed in circumstances of gross negligence by being satisfied of the matters in s 18A(2)(a), that is, the appellant had the requisite knowledge as particularised, but disregarded the likelihood of death or serious injury.

177 The prosecution's case that the appellant had the requisite knowledge, that is, knowledge that the contravention, by failing to ensure workers were provided with information, adequately instructed and trained, and directly supervised, would be likely to cause death or serious harm, was particularised in paragraph 7 of the particulars. However, there was a disconnect between the particulars in paragraph 7 of knowledge and the practical measures in paragraphs 5(c) to (e), because the particulars of knowledge in paragraph 7(i) to (vi) only concerned an allegation that the appellant knew that conveyor belts and other dangerous moving parts of plant were not adequately guarded. Particular 7(vii) was a general allegation of common knowledge of the hazard of injury if any part of a person's body of clothing is in a moving industrial conveyor belt.

178 The particulars of knowledge of the appellant in paragraph 7 made no allegation that the appellant knew that unless the practical measure of providing workers with information about the hazards was complied with, or unless it ensured that workers were adequately instructed and trained in a formalised and documented safe working procedure and provided with direct supervision to ensure that the safe working procedure was correctly followed at all times, a worker was likely to be seriously injured or to die.

179 Further, the findings as to disregard, which were particularised in paragraph 8 (that the appellant acted or failed to act in disregard of the likelihood of harm by not ensuring some or all of the practical measures as identified in paragraph 5 were in place) could, when regard is had to her Honour's findings, only relate to the provision of information, instruction and training. Thus it was only open to her Honour to consider whether the appellant disregarded that a failure to employ those additional measures, in particulars 5(c) to (e), in respect of the Diversion Belt, and by disregarding those measures only (and no other measures), would be likely to cause death or injury of a worker.

4.4.2.3 The meaning of the word 'contravention' in s 18A

180 The respondent argues that, in this case, what the prosecution had to prove was that the appellant knew that it was likely that death or serious harm would be caused through exposure to the hazard. In this matter, the hazard was a worker's body or clothing being caught in one of the pinch points of the Diversion Belt, and what must have been proved is that the appellant had actual knowledge of that hazard based on its knowledge of all the circumstances.

181 Those circumstances, the respondent contends, included, but were neither limited to, nor determined by, whether the appellant actually knew that the particularised measures had indeed not been taken. Those measures included, but were not limited to, the Diversion Belt.

182 In support of its argument, the respondent properly points out that it could not seriously be suggested that the appellant did not know that, if a worker's body or clothing were to be caught in one of the pinch points of the Diversion Belt, the worker would be likely to suffer serious harm or death as a result. Consequently, the respondent contends that the question in relation to Ground 7 should be distilled as to whether her Honour must have had a doubt that the appellant, based on its knowledge of all the circumstances, knew that there was a substantial, or real and not remote, chance of a worker's body or clothing being caught in one of the pinch points of the Diversion Belt.

183 However, as senior counsel for the appellant pointed out in the hearing of the appeal, to accept the respondent's argument, the meaning of the word 'contravention' in s 18A was to be construed as simply a failure to, so far as was practicable, provide and maintain a working environment in which a worker was not exposed to hazards, namely a person's body or clothing being caught in one of the pinch points of the Diversion Belt. The appellant contends that this construction of the word 'contravention' should not be accepted and that the contravention in s 18A is the failure to take the reasonable practical measures specified in paragraph 5(c) to (e), which raises a consideration as to whether the appellant knew that the contravention would be likely to cause death or serious injury as being the only reasonable inference.

184 The construction put forward by the appellant of the meaning of the word 'contravention' in s 18A, in my respectful opinion, is correct. The duty imposed on an employer by s 19(1) of the OSH Act is not absolute. The duty does not require an employer to provide and maintain a working environment in which employees are not exposed to hazards, but rather to do so 'so far as is practicable'. If there are no practicable measures that can be engaged by an employer to remove or mitigate the risk, no breach of s 19(1) can arise. In Chugg v Pacific Dunlop Pty Ltd, Brennan J pointed out in respect of the equivalent provision in the then Occupational Health and Safety Act 1985 (Vic):[76]

First, the words 'so far as is practicable' modify the verbs 'provide and maintain' which create the obligation. As a matter of grammar the obligation imposed by s. 21(1) is not an absolute obligation. Secondly, as a matter of substance the elements of the supposed qualification relate to elements of the same character as the elements of the obligation, namely, the taking of precautions required to make a working environment safe and without risks to health. The words 'so far as is practicable' prescribe the measure of the precautions to be taken; they do not prescribe a qualification of a character different from the character of the elements of the obligation: see per Fullagar J in Barritt v Baker.

185 More recently, Murphy JA relevantly observed:[77]

It follows from the definition of 'practicable' that the obligation imposed on an employer by s 19(1) is an obligation to provide and maintain a working environment in which its employees are not exposed to hazards only so far as is reasonably practicable. The words 'reasonably practicable' are ordinary words, bearing their ordinary meaning and simply call for the making of a value judgment in light of all the facts: Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6; (2001) 205 CLR 304, 322 (Gaudron J). Hindsight may mislead. As Harper J said in Holmes v RE Spence & Co Pty Ltd (1992) 5 VIR 119, 123 ‑ 124, in relation to the equivalent provision in the Victorian legislation:

The Act does not require employers to ensure that accidents never happen. It requires them to take such steps as are practicable to provide and maintain a safe working environment. The courts will best assist the attainment of this end by looking at the facts of each case as practical people would look at them: not with the benefit of hindsight, nor with the wisdom of Solomon, but nevertheless remembering that one of the chief responsibilities of all employers is the safety of those who work for them.

That approach has been adopted in Western Australia: see MacCarron v Future Engineering & Communication Pty Ltd (Unreported, WASC, Library No 980350, 23 June 1998) 11; Shepherd v Co‑Operative Bulk Handling Ltd [2001] WASCA 413 [55].

The 'state of knowledge' relating to, inter alia, the injury, the risk of injury and the means of removing or mitigating the risk, referred to in the definition of 'practicable', is objective. It is that possessed by persons generally who are engaged in the relevant field of activity and not merely the actual knowledge in fact possessed by a specific employer in the particular circumstances: Hamersley Iron Pty Ltd v Robertson (Unreported, WASC, Library No 980573, 2 October 1998) 22; Wylie v South Metropolitan [45]; Silent Vector Pty Ltd v Shepherd [2003] WASCA 315 [12] (although that case concerned s 22 of the Act, the same consideration applies to s 19); Reilly v Devcon Australia Pty Ltd [2008] WASCA 84; (2008) 36 WAR 492 [60].

The word 'risk' appears in the definition of 'practicable' in pars (a) and (b)(ii) and (iii). In s 3 of the Act 'risk' is defined to mean the 'probability' of the relevant injury or harm occurring, which means no more than the 'likelihood' of the injury or harm occurring: Hamersley Iron Pty Ltd v Robertson (18). This will require some consideration of the question of foreseeability: Chugg v Pacific Dunlop Ltd (265); Hamersley Iron Pty Ltd v Robertson (18). That, in turn, involves consideration of whether it is shown that the employer knew, or that a reasonable employer in the position of the employer would have appreciated or foreseen the risk of the injury or harm to health occurring: Wylie v South Metropolitan College of TAFE [45]; Reilly v Devcon [60]; Silent Vector Pty Ltd v Shepherd [11] ‑ [12].

In some cases, the duty to, so far as is practicable, maintain a safe workplace may involve a consideration of matters which are beyond the employer's own area of expertise. Although the employer's duty remains unaltered, the employer's lack of direct control over such matters may affect its knowledge and, in consequence, the question of what was 'reasonably practicable' in the circumstances. This court in Reilly v Devcon [68] quoted with approval Stuart‑Smith LJ's observations in R v Associated Octel Ltd [1994] 4 All ER 1051, 1063:

... the question of control may be very relevant to what is reasonably practicable. In most cases the employer/principal has no control over how a competent or expert contractor does the work. It is one of the reasons why he employs such a person - that he has the skill and expertise, including knowledge of appropriate safety precautions which he himself may not have. He may be entitled to rely on the contractor to see that the work is carried out safely, both so far as the contractor's workmen are concerned and others, including his own employees or members of the public; and he cannot be expected to supervise them to see that they are applying the necessary safety precautions. It may not be reasonably practicable for him to do other than rely on the independent contractor.

But there are cases where it is reasonably practicable for the employer to give instructions how the work is to be done and what safety measures are to be taken ...

The question of what is reasonably practicable is a matter of fact and degree in each case.

Steytler J's observations in Hamersley Iron Pty Ltd v Robertson concerning a similar duty imposed by s 9(1) of the Mines Safety and Inspection Act 1994 (WA) are also apposite here: Reilly v Devcon [64]. Steytler J said (20):

Here, the personal duty imposed upon the employer is, as I have said, that of providing a safe workplace, so far as is practicable. If that, in turn, requires the employer to call upon expertise which it does not itself have then there is no reason why it should not do so and, indeed, every reason why it should ... If the task undertaken by the independent contractor is one which demonstrably falls within its area of expertise and outside that of the employer and if the task reasonably appears to the employer ... to have been carefully and safely performed by the independent contractor then it would ordinarily be difficult to conclude that the employer had breached the duty put upon it by the Act. It would not, in circumstances of that kind, ordinarily have been practicable for it to have done more. (emphasis in original)

See also Slivak v Lurgi (319) (Gleeson CJ, Gummow and Hayne JJ).

The prosecution bears the onus of proving a breach of duty in s 19(1), including the question of practicability: Ball & Sons Pty Ltd v Stewart (Unreported, WASC, Library No 8829, 24 April 1991); Chugg v Pacific Dunlop Ltd (260 ‑ 263). A finding of breach cannot be based upon speculation. Each element must be proved by evidence: Interstruct Pty Ltd v Wakelam (110) (Wallace J, Rowland J agreeing); Ball v Stewart.

In Chugg v Pacific Dunlop Ltd (263), Dawson, Toohey and Gaudron JJ said, that where the onus was on the informant (as here):

[T]he issue is confined by the means which the informant claims were practicable in the circumstances.

Similarly, in Ball v Stewart, in relation to a charge of inadequate training, Anderson J said (6 ‑ 7):

It is trite to say that the respondent was required to prove each element of the offence beyond reasonable doubt. The practicability of providing some level of training different from and greater than the level of training actually provided to employees is an essential element of the offence created by the subsection. See Chugg v Pacific Dunlop Ltd (1990) 95 ALR 481 at 486 et seq. Proof of that essential element required evidence.

186 Consequently, the word 'contravention' in s 18A in this matter, is the failure to take the practical measures, which failure would be likely to cause the death of, or serious harm to, a person to whom the duty is owed.

187 The more fulsome description of the contravention within the meaning of s 18A, where the contravention is specified as a contravention of s 19(1), is the failure by an employer to take practical measures, which failure will be likely to expose a worker to a hazard, which in turn the exposure to the particularised hazard, would be likely to cause the death of, or serious harm to, a person.

188 As the appellant properly points out in its reply to the respondent's written submissions, contrary to what is in effect submitted at paragraphs 152 to 159 of the respondent's submissions, a 'contravention' of s 19(1), for the purposes of s 18A, does not merely occur when an employee is exposed to a specified hazard. It occurs when an employer fails to provide and maintain, so far as is reasonably practicable, a working environment in which workers are not exposed to hazards. This means that, in the context of a prosecution, and where there is an almost infinite variety of circumstances in which it may be alleged that there has been a contravention of s 19(1), the particular contravention is defined by the particulars that identify what is alleged to have been reasonably practicable. Consistently with the approach taken in the court below, this means that (for the purposes of s 18A(2)(a)(i)) it is necessary for the prosecution to prove that an accused had actual knowledge that a contravention of s 19(1), constituted by a failure to comply with its duty to take the practicable measures actually particularised by the prosecution, would be likely to cause death or serious harm.

189 It is that knowledge of the likely consequences of the contravention (that is, that failure to address the contravention using the proven practicable measures will likely cause death or serious harm) that distinguishes a breach to which s 19A(2) or s 19A(3) (where the contravention is not in circumstances of gross negligence) may apply from a breach to which s 19A(1) applies (being a contravention of s 19(1) in circumstances of gross negligence).

4.4.2.4 Wilful blindness and the particularised case by the prosecution of the appellant's knowledge that the contravention would be likely to cause death or serious harm

190 As the appellant contends, in this matter the inquiry into knowledge under s 18A(2)(a)(i) is not at large, it must be directed to the hazard at the Diversion Belt and the practicable measures alleged in paragraphs 5(c) to (e) of the particulars.

191 The appellant submits that her Honour erred by aggregating the knowledge of Mr Salvatore Mangione, Mr Di Cicco and Mr Clarke by finding that (each of them) were wilfully blind and that there were suspicious circumstances and a failure by each of them to make inquiries about particular matters, which point goes to Ground 6.

192 I do not agree that it was not open to her Honour to consider whether it was open to make a finding that the appellant had actual knowledge that the contravention would be likely to cause death or serious harm by regard to circumstantial evidence from which her Honour could draw such an inference from surrounding circumstances. However, the factual findings her Honour made that the appellant had actual knowledge that the contravention of s 19(1) would be likely to cause death or serious harm, were not findings open on the particulars in paragraph 7.

193 Leaving aside the issue of aggregation of knowledge, the most comprehensive consideration of the evidentiary principle of wilful blindness in Western Australia is be found in the Court of Appeal decision in The State of Western Australia v 'R', which was a reference of a question of law by the Attorney General on the construction of s 6(1) of the Misuse of Drugs Act 1981 (WA) and the meaning of 'possession',[78] in particular, the degree of knowledge required to establish possession of drugs. In the judgment of Steytler P, his Honour referred to a number of well-known authorities in which the High Court had made it clear that there was no doctrine of wilful blindness, but it simply raises an evidentiary issue of factual findings that could be made if it were found that there were suspicious circumstances (in considering whether a person has in his or her possession a prohibited drug, there were suspicious circumstances which objectively could arouse an accused's suspicion that a particular substance might be a narcotic drug), and it could be found that there was a failure of the accused to make inquiries.[79] His Honour then went on to observe:[80]

Sir Daryl Dawson, in 'Recent Common Law Developments in Criminal Law' (1991) 15 Crim LJ 5, has suggested that it was made clear in Kural and in Pereira that, while knowledge as an ingredient of an offence may be established by inference, it must be established as a fact. He went on to say (at 15):

If the term 'wilful blindness' is used merely as a shorthand expression to indicate circumstances which warrant the drawing of the necessary inference, then it is acceptable. But it is unacceptable if it is used as a basis for imputing knowledge where actual knowledge is not proved.

These comments were adopted by Crockett and Marks JJ in Zakaria (1992) 62 A Crim R 259 at 265. In the same case (at 271) Tadgell J said:

If the jury could not properly infer a suspicion on the part of the accused that she was probably bringing into the country a prohibited import there was no question in this case of her shutting her eyes to any other relevant probability. Any notion of wilful blindness therefore did not arise. If, on the other hand, the jury could infer that the accused had such a suspicion, but could not conclude, otherwise than by the further inference that she knew or believed that the prohibited import was a narcotic drug, such further inference might be drawn if the circumstances logically allowed it. One circumstance that might logically allow it would be that the accused chose to ignore the probability which she actually suspected and went ahead in spite of it. Such an inference that the accused therefore intended to import a narcotic drug would depend, as it seems to me, not on any independent doctrine of wilful blindness: the inference would be drawn, if at all, from all the available evidence that the accused had the requisite guilty intent simply on the footing that it would not be rational to do otherwise ...

Similarly, in Clare at 638, Fitzgerald P considered that it would be open to a jury to infer that an accused had actual knowledge of the presence of a dangerous drug because he knew that that was likely or had reason to suspect that that was so and in either event 'shut his eyes'. However, he said that it was equally open to the jury to decline to draw such an inference from those circumstances.

194 Turning to the suspicious circumstances found by her Honour in this matter, the only suspicious circumstances that her Honour referred to from which actual knowledge could be inferred which related to particulars 5(c) to (e) were that:

(a) Mr Salvatore Mangione, Mr Di Cicco and Mr Clarke knew that the appellant did not have a formal and documented safe working procedure;

(b) Mr Clarke was aware of the minimal induction he provided to new workers and made assumptions in relation to the training which Mr De Gee provided; and

(c) Mr Clarke knew he was not supervising the sorters clearing blockages.

However, these findings were not issues raised in the particulars of knowledge (that the contravention would be likely to cause death or serious harm) in paragraph 7.

195 First, it was not particularised that not having a formal and documented safe working procedure for the removal of blockages would be likely to cause death or serious harm to a worker at the workplace. Second, the matters found to be within the knowledge of Mr Clarke were outside the scope of the particulars.

196 As to the failure to make inquiries, her Honour's findings went to the issue of whether the practicable measures were in place, and about the systems of work in place, including instruction, training (including not making any inquiries of Mr De Gee that the content of induction Mode 2 provided) and supervision in preparing and implementing a formal, documented safe working procedure. These were matters that were factual findings that went to the issue of whether it could be found that the appellant failed to ensure the practical measures in paragraphs 5(c) to (e), but were squarely outside the bounds of the case put by the prosecution that the appellant knew the contravention would be likely to cause death or serious harm; that is, outside the bounds of the particulars of knowledge pleaded in paragraph 7.

197 These findings also go to the element of disregard, as these findings relate to an accused acting in disregard of the likelihood of causing death or serious harm by failing to implement practical measures to provide a safe working environment. This is particularly so in respect of the findings that Mr Clarke was aware of the minimal induction he provided to new workers, that he was not supervising the sorters clearing blockages and that he made assumptions in relation to the training which Mr De Gee provided. However, this point is not material in the disposition of this appeal.

198 Having found that a finding of actual knowledge by the appellant must relate to the specific contravention, and given the prosecution's case as it is put in its specified particulars of knowledge, it is clear that Ground 7 and Ground 8 of the appeal has been made out because a miscarriage of justice was occasioned by a failure by her Honour to confine the evidence relied upon in making her finding beyond reasonable doubt that the appellant had actual knowledge of the contravention, and its likely consequences, and acted or failed to act in disregard of the likelihood of causing death or serious harm to Mr Rathinasabapathy.

199 This miscarriage was not an inconsequential error. It was a substantial miscarriage of justice.

200 For these reasons, leave to appeal on Ground 7 and Ground 8 should be granted, and the appeal allowed in respect of the conviction of PE 39876/2018.

201 Having found that Ground 7 and Ground 8 has been made out, it is not necessary to consider Ground 6 of the appeal, which ground goes to whether it is permissible as a matter of law to aggregate the knowledge of individuals, that is, to apply a collective knowledge approach to imputing knowledge to a corporation, and whether, in fact, her Honour aggregated the knowledge of Mr Salvatore Mangione, Mr Di Cicco and Mr Clarke.

202 Given there is limited authority for an approach to aggregate the collective knowledge of the state of mind of certain employees of a corporation in a criminal prosecution of an offence under the OSH Act, and given the complexities of the issue, the application of this principle should be left for another day. In any event, whilst it is strongly arguable that her Honour did in fact aggregate the knowledge of Mr Salvatore Mangione, Mr Di Cicco and Mr Clarke, I do not find it necessary to determine this point.

4.5 Grounds 4 and 5 - Did the presiding magistrate err in law in misstating and not applying the test for inferring actual knowledge?

203 Although it is not necessary to consider Ground 4, the point raised in this ground is not complex, nor controversial, and can be disposed of with relative ease.

204 In Ground 4, the appellant contends that her Honour erred in law by misstating the legal test in considering inferential evidence to prove actual knowledge for the purposes of s 18A(2)(a)(i). In particular, it is contended that her Honour did not state that an inference of actual knowledge must be the only rational inference available.

4.5.1 The appellant's submissions - Ground 4 and Ground 5

205 In her written reasons, her Honour cited a passage from my reasons in Vantage Holdings Group Pty Ltd v Donnelly in which I considered the concept of actual knowledge in the context of the assessorial liability of auditors under s 79 of the Corporations Act 2001 (Cth) in civil proceedings involving trust fund defalcations.[81] In the passage cited by her Honour,[82] I set out the observations made by Burchett J in Richardson & Wrench (Holdings) Pty Ltd v Ligon No 174 Pty Ltd,[83] who in turn set out part of a passage of the majority in Pereira v Director of Public Prosecutions.[84]

206 The full passage from Pereira extracted in part in Vantage Holdings with the missing words (omitted in Richardson & Wrench (Holdings) Pty Ltd v Ligon No 174 Pty Ltd) underlined is as follows:[85]

Even where, as with the present charges, actual knowledge is either a specified element of the offence charged or a necessary element of the guilty mind required for the offence, it may be established as a matter of inference from the circumstances surrounding the commission of the alleged offence. However, three matters should be noted. First, in such cases the question remains one of actual knowledge: Giorgianni v The Queen [1985] HCA 29; (1985) 156 CLR 473, at 504 - 507; He Kaw Teh, at 570. It is never the case that something less than knowledge may be treated as satisfying a requirement of actual knowledge. Secondly, the question is that of the knowledge of the accused and not that which might be postulated of a hypothetical person in the position of the accused, although, of course, that may not be an irrelevant consideration. Finally, where knowledge is inferred from the circumstances surrounding the commission of the alleged offence, knowledge must be the only rational inference available. All that having been said, the fact remains that a combination of suspicious circumstances and failure to make inquiry may sustain an inference of knowledge of the actual or likely existence of the relevant matter. In a case where a jury is invited to draw such an inference, a failure to make inquiry may sometimes, as a matter of lawyer's shorthand, be referred to as wilful blindness. Where that expression is used, care should be taken to ensure that a jury is not distracted by it from a consideration of the matter in issue as a matter of fact to be proved beyond reasonable doubt.

207 After citing the passage from Vantage Holdings, her Honour reasoned from these observations and found:[86]

Therefore, actual knowledge in the present case may be inferred from suspicious circumstances and a failure to make an inquiry, i.e. 'wilful blindness'. Actual knowledge is required. Constructive knowledge, recklessness or negligence is not sufficient.

208 In considering the evidence of the appellant's director, Mr Salvatore Mangione and the plant managers, Mr Timothy Clarke and Mr Anthony Di Cicco, her Honour found that there were suspicious circumstances and a failure to make inquiry, therefore, 'wilful blindness', from which the requisite knowledge of Mr Salvatore Mangione, Mr Clarke and Mr Di Cicco 'can be inferred'.[87] Her Honour summarised that evidence, and then concluded beyond reasonable doubt that there were circumstances from which 'it could be inferred' that the appellant knew that its contravention in respect of particulars 5(c) to (e) would be likely to cause death or serious harm to a person to whom a duty is owed under s 19(1).[88]

209 The appellant argues that in making these findings her Honour overlooked the third requirement referred to in Pereira, in that her Honour's statement that actual knowledge may be inferred from suspicious circumstances and a failure to inquire is incomplete without also recognising that such knowledge must be the only rational inference available. Consequently, it is contended that there was no finding that such an inference of actual knowledge was the only rational inference.

210 Further, the findings as to actual knowledge, that there were circumstances from which knowledge 'can be inferred' or 'could be inferred', do not disclose a positive finding on which a conclusion of actual knowledge could be based beyond reasonable doubt, applying the correct test.

211 The issue raised in Ground 4 is whether the presiding magistrate misstated the legal test that must be applied to the drawing of inferences going to actual knowledge.

212 Although Archer J granted leave to appeal in respect of Ground 4, I am of the opinion that this ground is not made out. In the presiding magistrate's reasons under the heading 'Onus and Standard of Proof' her Honour relevantly directed herself as follows:[89]

A person charged with a criminal offence is presumed to be innocent unless and until the prosecution persuades the Court (ie proves) that the person is guilty beyond reasonable doubt.

The prosecution has the burden of proof of an accused's guilt, in respect of every element of the offence with which the accused has been charged. That burden never shifts to the accused. There is no obligation on the accused to prove any fact or issue that is in dispute. It is not for the accused to prove its innocence but for the prosecution to establish its guilt.

However, the prosecution does not have the burden of proving beyond reasonable doubt every single fact that arises from the evidence and is in dispute. The obligation that rests upon the prosecution is to prove the elements of the charge, that is, the essential facts that go to make up the charge, and must prove those facts beyond reasonable doubt.

Even if the Court prefers the evidence for the prosecution, the Court should not convict unless it is satisfied beyond reasonable doubt of the truth of the evidence. If the evidence leaves the Court with a reasonable doubt as to whether the prosecution has made out its case in respect of any element of the offence or any essential fact that it must prove, then the Court is bound, in law, to find the accused 'not guilty'.

Where the prosecution case is based on inferences, if there is a reasonable hypothesis consistent with innocence then the appropriate finding is one of 'not guilty'.

213 Senior counsel for the appellant conceded when making oral submissions in the appeal that although what her Honour said in [28] of her reasons was not a complete statement of law, it was a sufficient direction (as to the drawing of inferences).[90]

214 However, as the respondent points out in their written submissions, her Honour clearly and correctly set out the onus and standard of proof, and had specifically directed herself that, where the prosecution case is based on inferences, if there is a reasonable hypothesis consistent with innocence then the appropriate finding is 'not guilty'.

215 Having given herself those directions and approached her decision having had the benefit of closing submissions by senior counsel on behalf of the appellant specifically emphasising that knowledge can only be inferred where all other rational inferences are excluded,[91] and to her Honour's obligation to provide reasons, there was no need for her Honour to reiterate the principles prior to approaching or making every finding in the course of her decision.

216 Rather, when her Honour came to consider the knowledge element of gross negligence, she was careful to direct herself as to the requirement for actual knowledge in [185] and [186] of her reasons, which direction the appellant says was a correct statement of the law. When her Honour correctly directed herself as to how actual knowledge 'may' be inferred in [189], and as to the circumstances from which it could be inferred that the appellant knew in [198], it was in light of the principles that she had applied by her directions in [24] to [28], [185] and [186], not somehow indicating a suddenly and inexplicably lesser standard of proof.

217 In light of my findings in respect of Ground 7 and Ground 8 of the appeal, it is not necessary to consider Ground 5 of the appeal, because this ground requires an analysis of her Honour's reasons of finding that the appellant had actual knowledge that the contravention would be likely to cause the death of, or serious harm to, a person to whom a duty is owed under s 19(1) of the OSH Act.

5.0 Ground 9 -Whether Improvement Notice 6150097 was valid 5.1 The appellant's and the respondent's submissions

218 Ground 9 relates only to Charge PE 39837/18, and to Improvement Notice 6150097 (the Improvement Notice), issued to the appellant on 4 March 2015.

219 In Ground 9, the appellant contends that that her Honour erred in law in finding the Improvement Notice was valid.

220 This ground of appeal concerns one issue only, and that is the effect of the requirement in s 48(2) of the OSH Act for the inspector who issues an improvement notice to state in the notice his or her reasonable grounds for forming the opinion that the person to whom the notice is issued is contravening a provision of the OSH Act (including the regulations made under the OSH Act).

221 The power of an inspector to issue an Improvement Notice is conferred in s 48 of the OHS Act. Sections 48(1), (2) and (4) provide:

48. Improvement notices, issue and effect of

(1) Where an inspector is of the opinion that any person -

(a) is contravening any provision of this Act; or

(b) has contravened a provision of this Act in circumstances that make it likely that the contravention will continue or be repeated,

the inspector may issue to the person an improvement notice requiring the person to remedy the contravention or likely contravention or the matters or activities occasioning the contravention or likely contravention.

(2) An improvement notice shall -

(a) state that the inspector is of the opinion that the person -

(i) is contravening a provision of this Act; or

(ii) has contravened a provision of this Act in circumstances that make it likely that the contravention will continue or be repeated; and

(b) state reasonable grounds for forming that opinion; and

(c) specify the provision of this Act in respect of which that opinion is held; and

(d) specify the time before which the person is required, to remedy the contravention or likely contravention or the matters or activities occasioning the contravention or likely contravention; and

(e) contain a brief summary of how the right to have the notice reviewed, given by sections 51 and 51A, may be exercised.

...

(4) Subject to sections 51 and 51A, if a person -

(a) is issued with an improvement notice; and

(b) does not comply with the notice within the time specified in it,

222 The Improvement Notice issued to the appellant by an inspector on 4 March 2015 stated as follows:

Issued to:

RESOURCE RECOVERY SOLUTIONS PTY LTD

at 50 CLUNE ST BAYSWATER 6053 on 04 Mar 2015

I have formed the opinion that you are contravening regulation 4.37(l)(f) of the Occupational Safety and Health Regulations 1996 and the grounds for my opinion are: My enquiries have revealed that this company is the employer at this workplace. In the automated recycling facility I saw numerous items of fixed powered plant that do not have adequate guarding, for example conveyor belt CVI5 and others. I saw that there are dangerous moving parts where the conveyor belts meet rotating drums and rollers, creating in-running nip points. Enquiries revealed that employees work in this area and can access these dangerous moving parts, as evidenced by the injury on 23/02/2015. It would be practicable to install adequate guarding of these items of plant.

You are required to remedy the above by no later than 30 June 2015 at 1700 hours.

2. You are directed to take the following measures: Ensure that ALL dangerous moving parts of plant at this workplace are adequately guarded in accordance with OS&H Regulation 4.29.

For further information refer to 'Machinery and Equipment Safety - an Introduction' and 'Code of Practice - Safeguarding of Machinery and Plant (2009)', both of which have been provided today.

223 The Improvement Notice stated that the inspector had formed the opinion that the appellant was contravening reg 4.37(l)(f) of the Occupational Safety and Health Regulations 1996 (WA) (OSH Regulations). Regulation 4.37(1) provides:

4.37. Inspection etc. of plant, duties of employer etc. as to

(1) A person, who at a workplace, is an employer, a main contractor, a self-employed person, a person having control of the workplace or a person having control of access to the workplace must ensure -

(f) that every dangerous part of a fixed, mobile or hand held powered plant is, as far as practicable, securely fenced or guarded in accordance with regulation 4.29 unless the plant is so positioned or constructed that it is as safe as it would be if securely fenced or guarded;

224 The requirements of guarding of plant are specified in reg 4.29(i). Regulation 4.29(i) provides:

4.29. Means of reducing risks in relation to plant

The means referred to in regulations ... 4.37(1)(f) are -

...

(i) ensuring, in the case where guarding should be provided for the plant, that the guarding comprises -

(i) a permanently fixed physical barrier for cases in which, during normal operation, maintenance or cleaning of the plant, no person would need either complete or partial access to the dangerous area; or

(ii) an interlocked physical barrier for cases in which during normal operation, maintenance or cleaning of the plant, a person may require complete or partial access to the dangerous area; or

(iii) a physical barrier securely fixed in position by means of fasteners or other suitable devices sufficient to ensure that the guard cannot be altered or removed without the aid of a tool or key for cases where neither a permanently fixed physical barrier nor an interlocked physical barrier is practicable,

but, if none of the guards described in subparagraphs (i), (ii) or (iii) is practicable, the provision of a presence sensing safeguard system;

225 The appellant argued at trial, and in the appeal, that the Improvement Notice is invalid because, pursuant to s 48(2)(b), the inspector was required to, but did not, state reasonable grounds for his conclusion in the Improvement Notice that it would be practicable to install adequate guarding to the plant referred to in the notice.

226 'Practicable' is defined in s 3(1) of the OSH Act, to mean:

reasonably practicable having regard, where the context permits, to -

(a) the severity of any potential injury or harm to health that may be involved, and the degree of risk of it occurring; and

(b) the state of knowledge about -

(i) the injury or harm to health referred to in paragraph (a); and

(ii) the risk of that injury or harm to health occurring; and

(iii) means of removing or mitigating the risk or mitigating the potential injury or harm to health; and

(c) the availability, suitability, and cost of the means referred to in paragraph (b)(iii);

227 The appellant contends that the statement by the inspector in the Improvement Notice that 'it would be practicable to install adequate, guarding of these items of plant' was merely a statement by the inspector of a conclusion. The appellant also argues that this statement, and the other statements made in the Improvement Notice, did not include any information from which an assessment could be made about whether the conclusion that it was practicable to install adequate guarding was reasonable.

228 Thus, the appellant contends that unless it can be found that the Improvement Notice set out information from which it could be assessed whether the inspector's opinion (that it was practicable to install adequate guarding) was reasonable, the notice is invalid.

229 The appellant argues the precondition for the exercise of the power to issue an improvement notice, in this matter, was that for the inspector to form an opinion that the appellant had contravened reg 4.37(1)(f) it was necessary for the inspector to form an opinion about two matters. The first is that it was practicable to securely guard parts of the plant that were not guarded, and, second, that to install adequate guarding, the guarding was to satisfy the requirements of reg 4.29(i).

230 The respondent contends the requirement for an improvement notice to state reasonable grounds for forming an opinion should not be interpreted as an overly demanding test, and that there is no textual basis to construe s 48(2)(b) of the OSH Act as requiring an inspector to state reasonable grounds for each element of the relevant provision that is said to have been contravened.

231 The respondent also contends that if an inspector issues an improvement notice as a result of forming an opinion that a person is contravening a provision of the OSH Act, or that a person has contravened a provision of the OSH Act, the evident purpose of the improvement notice is to require the person who is issued with the notice to remedy the contravention or likely contravention, or the matters or activities occasioning the contravention or likely contravention.

232 It is also argued by the respondent that the requirement for an improvement notice to 'state' reasonable grounds for the inspector's opinion in s 48(2)(b) may be contrasted with the requirement for a notice to 'specify' the provision of the OSH Act in respect of which that opinion is held (s 48(2)(c)) and to 'specify' the time by which the contravention or likely contravention is to be remedied (s 48(2)(d)). The difference in the words used is said to be deliberate; that is, an inspector is not required to state in detail reasonable grounds for the purposes of s 48(2)(b). The respondent also makes a submission that the word 'specify' implies a higher standard and a higher level of detail than a requirement to 'state'.

233 The respondent argues that when all of the statements made in the Improvement Notice are read together, the notice does state reasonable grounds for the inspector forming the opinion that the appellant was contravening reg 4.37(1)(f) of the OSH Regulations. In particular, the respondent contends that the inspector explained in a clear and pragmatic way his reasons for concluding that there was plant at the workplace with dangerous parts that could be better guarded, and consequently that reg 4.37(1)(f) had been contravened. Further that, any reasonable person could understand that explanation, and that the appellant did not contend otherwise at the time the notice was served, and nor did it seek review of the notice for lack of clarity. To the contrary, Mr Salvatore Mangione subsequently gave notification of compliance with the notice.

5.2 Disposition - Ground 9 - Improvement Notice IN 61500197 is invalid

234 The respondent in their written submissions property points out that it was open to the appellant to challenge the validity of the Improvement Notice at trial.[92]

235 The respondent also points out that when a statute prescribes there must be 'reasonable grounds' for a state of mind (including suspicion and belief), it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.[93]

236 As the appellant submits, the power to issue an improvement notice is only conferred pursuant to s 48 of the OSH Act if an inspector forms the requisite opinion, that is, that a person is contravening or has contravened a provision of the OSH Act. The formation of that opinion is an essential prerequisite to the exercise of the power, and as such is a precondition to the exercise of the power.

237 As the respondent points out, if an inspector forms that opinion, the inspector is conferred with a discretion to issue an improvement notice. This discretion is conferred by the words 'the inspector may issue to the person and improvement notice' in s 48(1), which power only arises if an inspector has formed the requisite opinion. Put another way, the formation of that opinion is an essential preliminary to the exercise of the power to issue an improvement notice.

238 Pursuant to s 48(2)(b) there must be reasonable grounds for forming that opinion. The forming of the opinion is a jurisdictional fact. The requirement that there be reasonable grounds has the effect that the basis of the opinion must be objectively reasonable. To ascertain whether the opinion formed by the inspector is in fact objectively reasonable, those grounds must be revealed in the improvement notice, that is, it must be a properly performed opinion.

239 In R v Connell; Ex parte Helton Bellbird Collieries Ltd Latham CJ observed:[94]

[W]here the existence of a particular opinion is made a condition of the exercise of power, legislation conferring the power is treated as referring to an opinion which is such that it can be formed by a reasonable man who correctly understands the meaning of the law under which he acts. If it is shown that the opinion actually formed is not an opinion of this character, then the necessary opinion does not exist. A person acting under a statutory power cannot confer power upon himself by misconstruing the statute which is the source of his power. Thus, in the case of certain provisions in the Income Tax Assessment Act which make the opinion of the Commissioner of Taxation a condition of the imposition of liability upon taxpayers, it has been held that the opinion referred to is an opinion which is neither arbitrary nor extravagant, and which does not take into account considerations which, upon the true construction of the statute, are irrelevant.

240 Importantly, a contravention of reg 4.37(1)(f) of the OSH Regulations (not to guard or fence every dangerous part of a fixed, mobile or hand held powered plant) can only arise if it is practicable to guard or fence the plant in question. If it is not practicable to do so, then no contravention can arise. Consequently, the formation of an opinion that it is practicable to install adequate guarding of items of plant referred to in the Improvement Notice is, in essence, the gravamen of the alleged contravention referred to in the notice.

241 It is clear that the use of the words 'specify the provision of this Act', and 'specify the time before which the person is required, to remedy the contravention' in s 48(2)(c) and (d) of the OSH Act are different to the obligation in s 48(2)(b) to state reasonable grounds for forming the requisite opinion. The former simply requires specification by the identification of a specific provision of the OSH Act or OSH Regulations, such as, in this matter reg 4.37(1)(f), and specification of time for compliance, that is, the specification by the identification of a particular date, or a particular time and date. The latter, that is, the requirement to state reasonable grounds, is different. The requirement to state reasonable grounds is a requirement to state the basis of an opinion.

242 Where an inspector issues an improvement notice stating he or she has formed the opinion that a person has contravened reg 4.37(1)(f) of the OSH Regulations, unless the reasons why the inspector has formed the opinion that it is practicable to install adequate guarding of items of plant are revealed in the statements made by the inspector in the notice, the reasonableness of the opinion, as to practicability, cannot be ascertained from the information contained in the notice.

243 The purpose of the requirement in s 48(2)(b) that the inspector state (his or her) reasonable grounds for forming the requisite opinion (in this matter, that guarding of the plant referred to in the Improvement Notice was practicable) is to give notice to the person who is alleged to have contravened, or is contravening, a provision of the OSH Act as to why the inspector formed that opinion (that guarding of the plant was practicable), and to enable an assessment of whether in fact there were reasonable grounds for that opinion.

244 I have not found it necessary to decide the issue of whether s 48(2)(b) requires an inspector to state reasonable grounds for each element of the relevant provision, which is said to have been contravened. I do not find it necessary to decide because this appeal only concerns the issue of whether the Improvement Notice stated reasonable grounds for the formation by the inspector of an opinion that it was practicable to install adequate guarding of the items of plant specified in the notice.

245 The statement made by the inspector in the notice that it would be practicable to install adequate guarding of the items of plant referred to in the notice is a bare assertion by the inspector that he had formed an opinion about practicability, but the grounds for that opinion are not revealed.

246 In the alternative, the respondent argues that if it is found that the Improvement Notice did not state reasonable grounds for the inspector forming the opinion that the appellant was contravening reg 4.37(1)(f) of the OSH Regulations, the Improvement Notice was nevertheless not invalid, and Ground 9 of the appeal must be dismissed in any event. In support of this contention, a submission is put that substantial compliance with the requirement to state reasonable grounds in s 48(2)(b) of the OSH Act is sufficient for an improvement notice to be valid, when that substantial compliance is sufficient to enable the recipient to understand the contravention alleged. This is because there is sufficient information in the Improvement Notice to remedy the contravention or apply for a review of the notice. If this test is applied, then the respondent says the Improvement Notice met this threshold.

247 In making the alternative submission that Ground 9 should be dismissed irrespective of whether the Improvement Notice did not state reasonable grounds for the inspector forming the requisite opinion because no invalidity arises as substantial compliance is sufficient, the respondent relies upon the approach discussed in Project Blue Sky Inc v Australian Broadcasting Authority, in which the majority said:[95]

An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition.

248 In Forrest & Forrest Pty Ltd v Wilson it was noted that the majority in Project Blue Sky were strongly influenced in reaching the conclusion that the Act in question in that matter was not invalid by the specific legislative provision conferring power and that their Honours were influenced:[96]

[B]y the consideration that the requirement in question regulated the exercise of functions already conferred on the agency, rather than imposed essential preliminaries to the exercise of those functions. Their Honours were also influenced by the circumstance that the provisions did not have 'a rule-like quality which [could] be easily identified and applied', many of the obligations relevant in that case being 'expressed in indeterminate language'. Also important to the decision was the consideration that 'public inconvenience would be a result of the invalidity of the act', especially if those affected by non‑compliance were neither responsible for, nor aware of, the non‑compliance.

249 The majority in Forrest & Forrest Pty Ltd v Wilson found that substantial compliance had no application to the power conferred on the Minister under the Mining Act and found the nature of the statutory provisions of the Mining Act 1978 (WA) were obligatory. In making this finding, their Honours observed:[97]

The present case is readily distinguishable. A consideration of 'the language of the statute, its subject matter and objects, and the consequences for the parties of holding void' acts done in breach of the Act, reveals that ss 74(1)(ca)(ii), 74A(1) and 75(4a) imposed essential preliminaries to the exercise of the power conferred by s 71 of the Act. That this was so was made clear by both the express terms and the structure of the provisions as sequential steps in an integrated process leading to the possibility of the grant of a mining lease by the Minister. These provisions were not expressed in indeterminate terms: they imposed rules which could be easily identified and applied. In addition, any inconvenience suffered by treating the requirements of the Act as conditions precedent to the exercise of the Minister's power would ensure only to those with some responsibility for the non-observance, whereas (as will be explained) the contrary view would disadvantage both the public interest and individuals who were within the protection of the Act. Finally, and importantly, Project Blue Sky was not concerned with a statutory regime for the making of grants of rights to exploit the resources of a State.

250 I do not agree that substantial compliance with the requirement to state reasonable grounds in an improvement notice is sufficient for a notice to be valid. This is because a contravention of reg 4.37(1)(f) of the OSH Regulations could not have arisen if adequate guarding of the items of plant specified in the notice was not practicable. Where the evident purpose of the statutory requirement to state reasonable grounds is to reveal from the information stated (as those grounds) whether an inspector in fact objectively had reasonable grounds in exercising his or her discretion to issue an improvement notice, unless those grounds are sufficiently revealed, the reasonableness of that opinion is not examinable.

251 Consequently, the obligation to state those reasonable grounds for the opinion is obligatory. Unless construed as obligatory, the purpose and object of the provision requiring the statement of reasonable grounds for the opinion is stated it may be difficult to determine whether the essential preliminaries for the power to issue an Improvement Notice has been met.

252 As the appellant points out, there is no public inconvenience that will result from the invalidity of an improvement notice if it is found there is no room to apply the principle of partial or substantial compliance.

253 For these reasons, it is clear that the requirements of s 48(2)(b) of the OSH Act must be strictly complied with.

254 As the appellant properly accepts, the statement of reasonable grounds in an improvement notice need not be overly descriptive, but must be sufficient to reveal the basis of the requisite opinion. How much detail an inspector must reveal of his or her opinion would depend upon the circumstances of the particular contravention that is the subject of the notice in question.

255 For these reasons, Ground 9 of the appeal is made out, the appeal against conviction on Charge PE 39837/18 should be set aside, a verdict of not guilty entered, and the appeal allowed on this ground.

6.0 Disposition of the appeal, the convictions and the orders that should be made

256 Leave to appeal on Grounds 1, 2, 3, 5 and 6 should be refused. Leave to appeal on Ground 7 and Ground 8 should be allowed. The appeal on Ground 4 is refused. The appeal should be allowed on Ground 7, Ground 8 and Ground 9.

257 The power of an appellate court to grant a new trial is discretionary. However, where an appellate court quashes a conviction, it must decide whether it is in the interests of justice to order a new trial. It must be borne in mind in the exercise of the discretion that it is important that there is a public interest in the due prosecution and conviction of offenders, and that it is desirable, if possible, for the guilt or innocence of an accused person to be determined by the trier of fact.[98]

258 In deciding whether the interests of justice require a new trial to be had, the court should first consider whether the admissible evidence given at the original trial was sufficiently cogent to justify a conviction, for if it was not, it would be wrong, by making an order for a new trial, to give the prosecution an opportunity to supplement a defective case. Then the court must take into account any circumstances that might render it unjust to the accused to make them stand trial again, remembering that the public interest in the proper administration of justice must be considered, as well as the interests of the accused.[99] In the appeal against the conviction of the breach of s 19(1) in circumstances of gross negligence, pursuant to s 18A and s 19A(1), it would be inappropriate to order a new trial. This is because if the prosecution were afforded an opportunity to amend its particulars, the appellant would be highly likely to have to face a trial of the charge on an entirely different basis.

259 For this reason, the conviction of the offence of gross negligence, pursuant to s 18A of the OSH Act, should be set aside, the matter should not be remitted for a retrial, and a conviction should be substituted for a general duty charge on Charge PE39876/18, pursuant to s 19A(2) of the OSH Act.

260 The conviction on the charge of failing to comply with the Improvement Notice should also be set aside, a verdict of not guilty entered and charge PE 39837/18 should be dismissed.

261 I will hear the parties further as to the orders that should be made to reflect these reasons, including as to costs of the appeal and the cost orders made by the presiding magistrate, and relisting the matter for sentencing of the general duty offence.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Unreported reasons of presiding magistrate delivered 10 July 2020, Attachment 'A' - Charges.

[2] Unreported reasons of presiding magistrate delivered 10 July 2020, Attachment 'A' - Charges.

[3] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56]; Criminal Appeals Act 2004 (WA), s 9(1) and (2).

[4] MEN v The State of Western Australia [2020] WASCA 118.

[5] MEN v The State of Western Australia [2020] WASCA 118 [403] ‑ [406] (footnotes omitted); applied in De Pledge v The State of Western Australia [2021] WASCA 1 [29]; LTC v The State of Western Australia [2021] WASCA 60 [71].

[6] Morgan v Cramer [2019] WASC 68 [44] ‑ [46] (footnotes omitted).

[7] Ninyette v Holmes [2015] WASC 287 [65].

[8] Neach v Hobbs [2021] WASC 135 [15] (Archer J) (footnotes omitted), citing Strahan v Brennan [2014] WASC 190 [89] - [90] (Martin CJ); see Magistrates Court Act 2004 (WA), s 31(1).

[9] Tsang v Francis [2021] WASCA 131 [138] - [148] (footnotes omitted).

[10] Unreported reasons for decision of presiding magistrate, delivered 10 July 2020, [30].

[11] Occupational Safety and Health Act 1984 (WA), s 23F(2).

[14] Schedule 3 sets out the hourly rates of fees, being normal rates, overtime rates, and Sunday rates, and specifies that allowances are included.

[15] Record of Interview 1, Salvatore Mangione, 64 - 66 and 83 - 84; Unreported reasons of presiding magistrate delivered 10 July 2020, [64].

[17] Record of Interview 1, Salvatore Mangione, 68.

[18] Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; (2015) 256 CLR 104, 116 ‑ 117, [47] - [49] (French CJ, Nettle & Gordon JJ) (footnotes omitted).

[19] Black Box Control Pty Ltd v TerraVision Pty Ltd [2016] WASCA 219 [42(11)]; applied in Tokio Marine & Nichido Fire Insurance Co Ltd v Holgersson [2019] WASCA 114 [51].

[20] Black Box Control Pty Ltd v TerraVision Pty Ltd [2016] WASCA 219 [42(11)]; applied in Tokio Marine & Nichido Fire Insurance v Holgersson [2019] WASCA 114 [51].

[21] Young Investment Group Pty Ltd v QBE Insurance (Australia) Ltd [2019] WASC 74 [102] (Quinlan CJ); applying Byrnes v Kendle [2011] HCA 26; (2011) 243 CLR 253 [98] (Heydon & Crennan JJ).

[22] Young Investment Group Pty Ltd v QBE Insurance (Australia) Ltd [2019] WASC 74 [102] (Quinlan CJ); applying Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165 [40] (Gleeson CJ, Gummow, Hayne, Callinan & Heydon JJ); Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd [2017] HCA 12; (2017) 261 CLR 544 [16] (Kiefel, Bell & Gordon JJ).

[23] Todd v Alterra at Lloyd's Ltd [2016] FCAFC 15; (2016) 239 FCR 12 [42] ‑ [43]; Johnson v American Home Assurance Co [1998] HCA 14; (1998) 192 CLR 266, 272 - 276 [19]; citing Legal & General Insurance Australia Ltd v Eather (1986) 6 NSWLR 390, 394 (Kirby P).

[24] Nuhana v The State of Western Australia [2018] WASCA 79, [69].

[25] DTR Nominees Pty Ltd v Mona Homes Pty Ltd [1978] HCA 12; (1978) 138 CLR 423, 429 (Stephen, Mason & Jacobs JJ).

[26] Heydon JD, Heydon on Contract [9.620].

[28] This point is relevant to Ground 2 of the appeal.

[30] Post-contractual conduct is admissible.

[31] Exhibit 5, Attachments SM15 and SM16, and Exhibit 2, Tabs 3 - 4 (agreed documents). It is notable that the accuracy of what is stated in the invoice was not challenged and that Mr Salvatore Mangione admitted in his record of interview that the appellant paid Mode 2 for the work performed by Mr Rathinasabapathy at the workplace; Exhibit 5, 68, 81 - 82.

[32] It should be noted that the majority of the High Court recently observed in Workpac Pty Ltd v Rossato [2021] HCA 23; (2021) 392 ALR 39 [57] (Kiefel CJ, Keane, Gordon, Edelman, Steward & Gleeson JJ) that a court can determine the character of a legal relationship between the parties only by reference to the legal rights and obligations which constitute that relationship (and not by the real substance, practical reality and true nature of the relationship, which was the test applied by the Full Federal Court at first instance (see [37])).

[34] Toyota Motor Corp Australia Ltd v Ken Morgan Motors Pty Ltd [1994] VicRp 55; [1994] 2 VR 106, 178 (Tadgell JA).

[35] Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523.

[36] ts, 12 December 2019, 118 ‑ 119 and 130.

[38] Being part of the agreed documents in Exhibit 2, Tab 11.

[41] Interpretation Act 1984 (WA) s 10(c) provides in any written law words in the singular number include the plural and words in the plural number include the singular.

[42] Unreported reasons for decision of presiding magistrate delivered 10 July 2020, 81.

[43] Unreported reasons for of presiding magistrate delivered 10 July 2020, 80.

[44] Unreported reasons for decision of presiding magistrate delivered 10 July 2020, 81.

[45] Unreported reasons for decision of presiding magistrate delivered 10 July 2020, [18] and [199].

[46] Unreported reasons for decision of presiding magistrate delivered 10 July 2020, [17] and [198].

[47] Unreported reasons for decision of presiding magistrate delivered 10 July 2020, [17].

[48] Unreported reasons for decision of presiding magistrate delivered 10 July 2020, [31] - [32] (footnotes omitted).

[49] Unreported reasons for decision of presiding magistrate delivered 10 July 2020, [185].

[50] Unreported reasons for decision of presiding magistrate delivered 10 July 2020, [186].

[51] Unreported reasons for decision of presiding magistrate delivered 10 July 2020, [187]; applying Vantage Holdings Group Pty Ltd v Donnelly [No 4] [2019] WASC 398 [51] (Smith J).

[52] Unreported reasons for decision of presiding magistrate delivered 10 July 2020, [72].

[53] Unreported reasons for decision of presiding magistrate delivered 10 July 2020, [75] (footnotes omitted).

[54] Unreported reasons for decision of presiding magistrate delivered 10 July 2020, [22].

[55] Westpac Banking Corporation v Bell Group Ltd (in liq) [No 3] [2012] WASCA 157; (2012) 44 WAR 1.

[56] Unreported reasons for decision of presiding magistrate delivered 10 July 2020, [195] - [196] (footnotes omitted).

[57] Unreported reasons for decision of presiding magistrate delivered 10 July 2020, [197(a)].

[58] Outline of prosecutor's closing submissions dated 28 January 2020 (footnotes omitted).

[60] Outline of accused's closing submissions dated 4 February 2020.

[62] ts, 4 February 2020, 115 - 117; Although the transcript states that it is Mr Russell who is making the submission, when the preceding pages are reviewed it is clear that it was Mr Vandongen SC who made these oral submissions on behalf of the appellant.

[64] Cotter v The State of Western Australia [2011] WASCA 202 [30] - [31] (Martin CJ & Newnes J agreeing).

[65] Boral Gas (NSW) Pty Ltd v Magill (1995) 37 NSWLR 150, 156 (Fisher CJ).

[66] Boral Gas (NSW) Pty Ltd v Magill (1995) 37 NSWLR 150, 185

[67] Boral Gas (NSW) Pty Ltd v Magill (1995) 37 NSWLR 150, 169 (Hill J); Kirk v Industrial Court (NSW) (2010) 239 CLR 531, 557 [26] (French CJ, Gummow, Hayne, Crennan, Kiefel & Bell JJ).

[68] Kirk v Industrial Court (NSW) (2010) 239 CLR 531, 557 - 558 [26] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) (footnotes omitted).

[69] John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42; (1987) 163 CLR 508, 520 - 521 (Mason CJ, Deane & Dawson JJ), cited in Boral Gas (NSW) Pty Ltd v Magill (1995) 37 NSWLR 150, 169 - 170 (Hill J).

[70] De Romanis v Sibraa [1977] 2 NSWLR 264, 291 (Mahoney JA).

[71] Shoalhaven City Council v State Pollution Control Commission (1991) 52 A Crim R 291 (Clarke JA) (Enderby & Loveday JJ agreeing), cited in Boral Gas (NSW) Pty Ltd v Magill (1995) 37 NSWLR 150, 215 (Hungerford J).

[72] Bunnings Forest Products Pty Ltd v Shepherd (Unreported, WASC, Library No 980235A, 5 May 1998) 20 (Anderson J), citing Boral Gas (NSW) Pty Ltd v Magill (1995) 37 NSWLR 150.

[73] Bunnings Forest Products Pty Ltd v Shepherd (Unreported, WASC, Library No 980235A, 5 May 1998) 17 (Anderson J).

[74] Skelly v The State of Western Australia [2020] WASCA 3 [79], citing Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467, 480, 489 - 490; Cotter v The State of Western Australia [2011] WASCA 202 [30] - [32]; Environment Protection Authority v Sydney Water Corporation Ltd (1997) 98 A Crim R 481, 484.

[75] Her Honour was also satisfied that the failure to implement the practical measures in paragraphs 5(c) to (e) caused Mr Rathinasabapathy injuries; Unreported reasons for decision of presiding magistrate, delivered 10 July 2020, [180].

[76] Chugg v Pacific Dunlop Ltd [1990] HCA 41; (1990) 170 CLR 249, 251 (footnotes omitted); applied in Interstruct Pty Ltd v Wakelam (1990) 3 WAR 100 [108] ‑ [109] (Wallace J & Rowland J agreeing); Wylie v South Metropolitan College of TAFE [2003] WASCA 34 [45]; Tobiassen v Reilly [2009] WASCA 26; (2009) 178 IR 213 [59].

[77] Laing O'Rourke (BMC) Pty Ltd v Kirwan [2011] WASCA 117 [31] - [39].

[78] The State of Western Australia v 'R' [2007] WASCA 42.

[79] The State of Western Australia v 'R' [2007] WASCA 42 [55] - [58]; citing He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523.

[80] The State of Western Australia v 'R' [2007] WASCA 42 [61] - [63].

[81] Vantage Holdings Group Pty Ltd v Donnelly [No 4] [2019] WASC 398.

[82] Vantage Holdings Group Pty Ltd v Donnelly [No 4] [2019] WASC 398 [52].

[83] Richardson & Wrench (Holdings) Pty Ltd v Ligon No 174 Pty Ltd [1994] FCA 488; (1994) 123 ALR 681, 693 ‑ 694.

[84] Pereira v Director of Public Prosecutions [1988] HCA 57; (1988) 63 ALJR 1.

[85] Pereira v Director of Public Prosecutions [1988] HCA 57; (1988) 63 ALJR 1, 3.

[86] Unreported reasons for decision of presiding magistrate delivered 10 July 2020, [189].

[87] Unreported reasons for decision of presiding magistrate delivered 10 July 2020, [197].

[88] Unreported reasons for decision of presiding magistrate delivered 10 July 2020, [198].

[89] Unreported reasons for decision of presiding magistrate delivered 10 July 2020, [24] - [28].

[92] Re Lawrence; Ex parte Goldbar Holdings Pty Ltd (1994) 11 WAR 549; Australian Crime Commission v Marrapodi [2012] WASCA 103; (2012) 42 WAR 351; Selby v Pennings (1998) 19 WAR 520.

[93] George v Rockett [1990] HCA 26; (1990) 170 CLR 104, 112.

[94] R v Connell; Ex parte Helton Bellbird Collieries Ltd [1944] HCA 42; (1944) 69 CLR 407, 430 ‑ 431.

[95] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [91] (McHugh, Gummow, Kirby & Hayne JJ).

[96] Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30; (2017) 262 CLR 510 [62] (footnotes omitted).

[97] Forrest & Forrest Pty Ltd v Wilson [2017] HCA 30; (2017) 262 CLR 510 [63].

[98] R v Taufahema [2007] HCA 11; (2007) 228 CLR 232 [49] - [51] (Gummow, Hayne, Heydon & Crennan JJ), adopting observations of Gleeson CJ in R v Anderson (1991) 53 A Crim R 421, 453, applied in Gibson v The State of Western Australia [2017] WASCA 141; (2017) 51 WAR 99 [207]; Watson v Vos [2019] WASC 327 [32] (Hall J), and A v Doubikin [2019] WASC 426 [140] (Derrick J).

[99] Director of Public Prosecutions (Nauru) v Fowler [1984] HCA 48; (1984) 154 CLR 627, 630 (Gibbs CJ, Murphy, Wilson, Deane & Dawson JJ), applied in Rye v The State of Western Australia [2021] WASCA 43 [67] (Buss P & Mazza JA).