Rodney Dale Morrison v Eureka Opals Pty Limited

Rodney Dale Morrison v Eureka Opals Pty Limited - [2005] NSWIRComm 80 - NSWIRComm 2000 case summary — Zoe

[26]

(iv) The premises were made available as a place of work. 14 Of particular relevance to these proceedings is the issue of 'control' and whether Eureka, as the registered claim holder 'had to any extent control of certain premises'. Indeed, this issue was the significant and determinative issue in these proceedings. 15 The Full Bench in McMillan Britton and Kell Pty Limited v WorkCover Authority of New South Wales (Inspector Blake) (1999) 89 IR 464 considered the notion of 'control' in relation to s 17(1)(b) and concluded at 480 as follows: In other words, the proper operation of the section requires, in our view, the degree of control which a defendant has over plant or substances or non-domestic premises, as the case may be, to be to the extent to which that person is able to ensure safety by guaranteeing, securing or making certain. For that reason, the applicable meaning of "control" in the context of s.17, by reference to its ordinary meaning as earlier outlined, must, it seems to us, have about it the sense of not mere "sway", "checking" or "restraint" but rather controlling in the sense of "directing action" or "command" - the ability of a person to compel corrective action to secure safety, having in mind the context and purpose of the statute, clearly seems to be necessary in order to enable safety to be ensured. If it were otherwise then the alleged controller would be simply unable to assume the strict duty cast by the section. We are satisfied that this approach to the meaning of "control" is consistent with that expressed in Rowson and Growth Securities by adopting the contextual approach stated in Australia and New Zealand Bank. It may be thought that the words "to any extent" qualify the word "control" so as to reduce or diminish the degree otherwise than as we have stated; however, and conformably with the context of the section, the phrase "to any extent, control" means no more than that the person liable being able to compel (or direct or command) to any extent. 16 In WorkCover Authority of New South Wales (Inspector Ankucic) v McDonald's Australia Limited and Anor (2000) 95 IR 383 Walton J, Vice-President, referring to the above passage in McMillan Britton, concluded that: In my view, and having regard to the reasoning of the Court in McMillan Britton and Kell Pty Limited, these conclusions are equally applicable to the provisions of s17(1)(a) in relation to the exercise of control by the defendants over non-domestic premises which have been made available to persons (not being the employees of the defendants). 17 To that extent, for the purposes of this prosecution, it must be established in relation to the premises known as Claim 26313, Eureka had control not simply to the extent of 'mere sway', 'checking' or 'restraint' but an ability to 'compel (or direct or command) to any extent'. 18 As in all criminal matters, the absolute nature of the duty imposed does not relieve the prosecutor of the necessity to prove the employer's failure, by reference to the elements of the offence, beyond reasonable doubt: See State Rail Authority of New South Wales v Dawson (1990) 37 IR 110 at 120-121 where the Full Bench stated: Although s15(1) creates an absolute liability on the employer, it is still nevertheless necessary for the informant to prove, according to the criminal standard of beyond reasonable doubt, that the employer failed to meet the obligation cast on him by the section. 19 The principle is equally applicable to s 17(1)(a). 20 Further, it is trite law but important to note that the phrase 'beyond reasonable doubt' requires no elaboration or explanation beyond stating that it is the task of the prosecutor to establish the elements of the offence to that standard and, where any doubt exists, the defendant is entitled to the benefit of that doubt.

[27]

Relevant background and considerations 21 The specific factual circumstances of this matter are, to say the least, unusual. In the majority they appear unchallenged, but there is conflict in comparing some aspects of prior records of interview and the oral testimony before me. That is a matter I will deal with in due course. 22 The defendant Eureka has been an entity involving members of the Buchanan family since 1991. Two of the directors of the defendant, at least as at 28 March 2000, were Wayne Buchanan and Darryl Buchanan. Their brother, Peter Buchanan, was working the Claim in question on the day of the accident. Kevin Buchanan, their father, was also a director of Eureka until he died in 2002. Peter Buchanan was not then, and has never been a director of Eureka, although the evidence before me suggests that he did work for Eureka up to some point in 1997 but not, as I understand it, at Claim 26313. 23 The ability to undertake mining in the Lightning Ridge area, at least as far as this matter is concerned, was dependant on the registration of a mineral claim. That registration is effected by the DMR on the payment of a fee pursuant to the provisions of the Mining Act 1992. The evidence is that Eureka became the registered claim holder in respect of Claim 26313 on or around 14 June 1995. 24 Prior to 14 June 1995, the previous claim holder of Claim 26313 was Ms Fiona Johnson. For some years prior to the transfer of the Claim to Eureka, Ms Johnson had been the de facto wife of Peter Buchanan, and had been holding Claim 26313 on his behalf. That is, it was Peter Buchanan who worked the Claim exclusively, and who, using the term advisedly, was the effective 'owner' of the Claim. The background for this arrangement, it would seem, was to overcome the undisputed relevant legislative provisions that provide for a maximum of two claims to be registered by any one person. It was not disputed that Peter Buchanan was then, and is now, the registered claim holder in respect of two other claims. 25 When the relationship between Ms Johnson and Peter Buchanan broke down in 1995, Ms Johnson relocated to Melbourne. Because of his already existing claims, it was not possible for Peter Buchanan to register the Claim in his name in order to continue to work it. At that time, to overcome that fact and with the agreement of Kevin Buchanan, the father of Peter Buchanan and a director of Eureka, the transfer of Claim 26313 from Ms Johnson to Eureka was effected. Ms Johnson transferred the Claim as a gift, and Kevin Buchanan signed as transferee on behalf of the defendant. 26 Since that time the arrangement has remained on foot, except Kevin Buchanan now having died, the relevant director of Eureka for the purposes of renewing that claim is Wayne Buchanan. There is a requirement that registered claims at Lightning Ridge be renewed on an annual basis. Since 1995, the applications for renewal each year, to the extent those applications are before me, have been signed by Wayne Buchanan on behalf of Eureka. 27 Of particular relevance in terms of classifying the nature of the arrangement between Eureka and Peter Buchanan is that renewal of a mineral claim at Lightning Ridge requires the payment of a renewal fee. The evidence is that Peter Buchanan, whilst not formally renewing the registration of the claim in person, as that was a process that could only be undertaken by a representative of Eureka, paid the renewal fee himself.

[39]

31 In line with the authorities, for the purposes of s 17(1)(a) of the Act, for Eureka to have had, to any extent, control of Claim 26313, that control must be evidenced by an identifiable ability on the part of the defendant to compel, direct or command Peter Buchanan to ensure that the premises were safe and without risk to health. 32 On the evidence, I am of the view, for all practical purposes, Peter Buchanan had control of the mining activity undertaken on Claim 26313. There was some suggestion that Wayne Buchanan had, at some stage prior to Peter Buchanan, also worked the claim. However, without more, I cannot be satisfied as to that fact. Further, I am unable to rely on this for the purposes of reaching any conclusion going to Eureka's ability or inability to control the premises known as Claim 26313. 33 Evidence was adduced from both Wayne Buchanan and Peter Buchanan going to the absence or otherwise of any financial arrangement between Eureka and Peter Buchanan. Essentially, their evidence was that all proceeds and profits generated by the mining activity at Claim 26313 were solely the property of Peter Buchanan and that there was no arrangement whereby some of those profits were shared with Eureka in return for letting Peter Buchanan work the claim. 34 That evidence is somewhat contradicted by the record of interview conducted by Inspector Garth Sheehy with Peter Buchanan on 13 April 2000. In that interview, Peter Buchanan indicated that Eureka was entitled to fifty per cent of all profits generated by his (Peter Buchanan's) work on Claim 26313. However, the presence of such an arrangement was denied by Wayne Buchanan in his record of interview, also held on 13 April 2000. It is also contrary to the oral evidence given by both witnesses before me. Giving consideration to all the evidence before me, I cannot be satisfied that any financial arrangement was in place to the effect that any profits from mining Claim 26313 were shared with Eureka. I would consider it unlikely as I consider the evidence outlining the role of Eureka as an entity 'warehousing' Claim 26313 for Peter Buchanan to be correct. 35 Nevertheless, the fact that Eureka, on the evidence, had no direct involvement in the operation of Claim 26313 on a day to day basis does not, without more, result in a conclusion that it had no ability to control, direct or command Peter Buchanan to any extent to ensure that the premises were safe and without risk to health. 36 In making its submissions on the issue of control, the prosecutor referred specifically to s 5 of the Mining Act 1992 which provides as follows:

[40]

A person must not prospect for or mine any publicly owned mineral on any land otherwise than in accordance with an authority, mineral claim or opal prospecting licence that is in force in respect of that mineral and that land. 37 By restricting persons permitted to prospect on a mineral claim, it was submitted that this section evidences an ability on the part of Eureka, as the registered claim holder, to restrict access to Claim 26313 to persons without permission to prospect there. As such, it was submitted, the ability to regulate access converts to the ability of Eureka to 'control' Claim 26313 as contemplated for the purposes of s 17(1)(a) of the Act. 38 I am not persuaded however, such a right on the part of Eureka transfers in this instance to a practical ability on its part to control the mining activity on Claim 26313. The factual circumstances of this matter suggest that, for all intents and purposes, Peter Buchanan exercised control over Claim 26313, and that control extended to the ability to decide who would be permitted to prospect on the Claim and the circumstances in which it would be done. It was Peter Buchanan who employed Mr Kennedy, not the defendant, and it was he who made the day-to-day decisions regarding the operation of the mine. 39 The prosecutor pointed to the evidence of Wayne Buchanan to the effect that if he attended at Claim 26313 and witnessed a person prospecting on it without authority he would report that person to the DMR who would then, in the opinion of Wayne Buchanan, arrange for the removal of the unauthorised individual from the Claim. However, when asked from whom such a person would normally seek permission to prospect on Claim 26313, Wayne Buchanan responded that such permission would be sought from Peter Buchanan. Bearing in mind the nature of the arrangement between Peter Buchanan and Eureka, I can accept that this was in fact the position. 40 I believe the prosecutor's submission misses the point. Central to the control requirement in s 17(1)(a) is, as was said in McMillan Britton and Kell, 'the ability of a person to compel corrective action to secure safety'. While Wayne Buchanan may well complain of some unauthorised person being on Claim 26313, what is essential is did he, (Wayne Buchanan) as a director of Eureka, have the practical ability by way of authority to compel Peter Buchanan to take corrective action to secure safety? It is on that issue, given the facts and circumstances of this matter, that I believe real doubt exists.

[53]

... the possession of the columns by Woolworths may not obviate control by Growth Equities unless possession is a requirement of "control" under s.17(2)(b). In my opinion the language of the section suggests the contrary. The qualification of control imported by the words "to any extent" should not be read as confined to a duality of control as Mr. Holmes submitted (although it would include it) but naturally extends to cover various degrees of control. 45 His Honour then went on to state: Here the evidence suggests that the managing employees of Growth Equities did not consider it their responsibility to oversee the use of the columns (and, incidentally, they did not observe any risks in the use thereof). However, those matters do not absolve them from the duty to exercise any control they may have had. While the evidence is, as I have said, inconclusive, as to any express authorisation of use, I consider that the evidence of each of Messrs. Hunter, Hollingworth and Fanning is consistent with a finding that Growth Equities had a degree of control over the columns which could have led to their withdrawal from use, or non-use, in the first place. 46 The unique factual circumstances of the matter presently before me can be distinguished from those in which his Honour Peterson J found liability on the part of Growth Equities. In that case the defendant, Growth Equities, was a corporate entity that had entered into a contractual relationship with Woolworths for the leasing of a particular store within its retail complex. Growth Equities had constructed the retail complex together with the offending columns in the first instance. There is no such factual background in these proceedings, where an arrangement had been entered into with Eureka only for the purpose of maintaining Peter Buchanan's entitlement and access to Claim 26313. 47 The present proceedings can also be distinguished from Rodney Morrison v Akula Pty Limited formerly known as RaiseBore Australia Pty Ltd [2004] NSWIRComm 41, where an employee of the defendant, appointed as project manager, had given certain directions to prevent risk from unsafe premises. 48 Certainly, Wayne Buchanan visited the claim site when it was being worked on by Peter Buchanan and Mr Kennedy in 2000. During those visits the evidence is that, when asked, he gave advice about work being undertaken on the claim to Peter Buchanan that he 'ought put a few more props in'. However, there is a distinction between the giving of advice when asked and being in a position to be able to 'compel, direct or command'. 49 Wayne Buchanan maintained that he made suggestions about procedure at the mine in response to advice sought by Peter Buchanan. Having asked for advice, Wayne Buchanan presumed his brother would act upon it. Nevertheless, as he said, ultimately Peter Buchanan would make his own decisions. As I have considered the factual circumstances of this matter, I accept that to be the case. 50 Overall, the evidence is one whereby the Buchanan family, via the entity of Eureka, facilitated Peter Buchanan's continuing possession and mining of Claim 26313. Beyond the signing of the claim renewal application, there is no evidence that Eureka took any interest in the operation of the claim, leaving that entirely to Peter Buchanan. The only control Eureka had in relation to Claim 26313 might well have arisen if there had been a falling out between the Buchanan brothers that resulted in Wayne Buchanan refusing to renew Claim 26313 in the name of Eureka. That possibility does not, in my view, establish to the requisite standard that the persons who were the controlling mind of Eureka, Wayne Buchanan and Darryl Buchanan, had the ability by way of authority, to any extent, to compel, direct or command Peter Buchanan to undertake any particular action in the operation of Claim 26313. 51 Given the factual evidence, the practical effect of the arrangement between Peter Buchanan and Eureka meant that the ability to control Claim 26313 in its entirety rested with Peter Buchanan. Unlike the Growth Equities matter, Eureka was never in control of Claim 26313 prior to its occupation by Peter Buchanan. It was always his to control and mine. Registration of the claim passed directly from Ms Johnson to Eureka so that Peter Buchanan was able to continue working the Claim. Whilst the name of the legally registered claim holder changed, the practical effect did not. That is, Peter Buchanan continued to exercise sole control over the Claim, as he presumably did when Ms Johnson was the registered claim holder. 52 In support of this conclusion, evidence was adduced that none of the tools or equipment used by either Peter Buchanan or Anthony Kennedy in working Claim 26313 were owned by the defendant. In his record of interview in April 2000, Peter Buchanan stated that some 'Pelican Picks' were the property of Eureka but that he either borrowed or paid for all other plant and material himself. Wayne Buchanan stated in April 2000 that there was no equipment belonging to Eureka being used to work Claim 26313. He confirmed that in evidence before me. As well, in his oral evidence, Peter Buchanan stated that none of the plant or equipment used by him or Mr Kennedy at Claim 26313 was owned or borrowed from Eureka. He was not challenged on that assertion. Taken together and notwithstanding the contradiction in Peter Buchanan's evidence on this point, the more likely inference is that Eureka provided no plant or equipment in the mining activity being undertaken at Claim 26313. 53 In conclusion, I cannot be satisfied beyond a reasonable doubt that the defendant had sufficient ability to control to any extent the non-domestic premises known as Claim 26313 as required in relation to an offence arising under s 17(1)(a) of the Act. Accordingly, the summons is to be dismissed. 54 I will hear further from the parties on the question of costs prior to final orders being made to conclude these proceedings.

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