Thiess Pty Ltd and Anor v Inspector Steven Jones

Industrial Relations Commission (NSW)|2009-07-01|Before: Kavanagh J, Haylen J, Backman J, Marks J, Ms P, Act J, Backman JJ

CITATION: Thiess Pty Ltd and Anor v Inspector Steven Jones (WorkCover Authority of New South Wales) [2009] NSWIRComm 77

Appellants: PARTIES: Thiess Pty Ltd and Anor Respondent: Inspector Steven Jones (WorkCover Authority of New South Wales)

Full Bench: Appeal from decision of Acting Industrial Magistrate - risk to safety by reason of access to unfenced sediment pond - employee found in sediment pond after fatal heart attack - employees' duties away from pond - pond a risk on site - remoteness of risk - all employees at work have access to pond - all employees at risk - Acting Industrial Magistrate's decision upheld - no leave to appeal - orders CATCHWORDS: In addition: Haylen J Industrial Relations Act 1996 - s 197 - whether leave to appeal required - effect of Crimes (Appeal and Review) Act 2001

Criminal Appeal Act 1912 Crimes (Appeal and Review) Act 2001 s 23 s 56 Crimes (Local Courts Appeal and Review) Act 2001 Criminal Appeal Act 1912 s 5AA LEGISLATION CITED: Government and Related Employees Appeal Tribunal Act 1980 Industrial Relations Act 1996 ss 156, 196 197; 191 Pt 7 Ch 4 Justice Act 1902 ss 131A 132 133 Occupational Health and Safety Act 1983 s 47 (4) Occupational Health and Safety Act 2000 s 105(3)

Big W Discount Stores v Donato (1995) 58 IR 239 Camilleri's Stock Feeds Pty Ltd v Environmental Protection Authority (1993) 32 NSWLR 683 Capral Aluminium Ltd v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 99 IR 229 Cole v The Director General of Youth and Community Services and anor (1987) 7 NSWLR 541 Coulter v The Queen (1987-1988) 164 CLR 350 Drake Personnel (t/as Drake Industrial) v WorkCover Authority (NSW) (1999) 90 IR 432 Esber v The Commonwealth [1992] 174 CLR 430 Gianoutsos v Glykis (2006) NSWCCA 137 Haynes v C I & D Manufacturing Pty Ltd, Callaghan v C I & D Industries Pty Ltd (1994) 60 IR 149 Inspector Stewart Larkin v South Pacific Seeds Proprietary Limited [2006] NSWIRComm 247 CASES CITED: Inspector Twynam-Perkins v Maine Lighting Pty Ltd (1995) 100 IR 248 Joyce v Patton (1941) 58 WN(NSW) 88 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383 R v Cain (1985) 1 AC 46 R v Schildkamp [1971] AC 1 Render v The Honourable Gleeson [1999] NSWCA 154 T&M Industries (Aust Pty Ltd and Anor v Inspector Sequeria [2006] NSWIRComm 25 The Director General of the Department of Corrective Services v Mitchelson (1992) 26 NSWLR 648 Whitton v State of New South Wales (2005) NSWCA 97 WorkCover v Headrick t/as Graeme's Fine Finishes (IRC 3943 of 1997, 9 April 1998, unreported, Marks J) WorkCover Authority of New South Wales (Inspector Hannah) v Keogh's Plant Hire Pty Ltd [2005] NSWIRComm 118

Appellant: Mr H.J. Dixon SC Solicitors: Ms L. Constantine/Ms P. Emery Blake Dawson LEGAL REPRESENTATIVES: Respondent: Mr R. Reitano of counsel Solicitors: Mr W. Steenson WorkCover Authority of NSW

THIESS PTY LTD AND ANOR v INSPECTOR STEVEN JONES (WORKCOVER AUTHORITY OF NSW)

Application by Thiess Pty Ltd and Anor for leave to appeal and appeal against decisions of Chief Industrial Magistrate Miller given on 20 March 2008 and 19 August 2008 in Matter No CIM20273903/07

JUDGMENT OF KAVANAGH AND BACKMAN JJ [2009] NSWIRComm 77

1 Thiess Pty Ltd (Thiess) and Hochtief AG (Hochtief) (the appellants), seek leave to appeal and appeal pursuant to s 105(3) of the Occupational Health and Safety Act 2000 and s 197 of the Industrial Relations Act 1996 from decisions of his Honour, Acting Industrial Magistrate G.A. Miller, of 20 March 2008 and 19 August 2008. 2 In the Decision of 20 March 2008, his Honour found each appellant guilty of an offence under s 8(2) of the Occupational Health and Safety Act in relation to a fatality between 4-5 July 2005 involving a non-employee, who was an employee of a sub-contractor, at their worksite. The further Decision of 19 August 2008 convicted each appellant and set penalty for the offences as charged. Each appellant was fined a different amount, reflecting the fact that the appellant, Thiess, had recorded convictions under the Occupational Health and Safety Act 2000, but the appellant, Hochtief, had no prior convictions. Thiess was fined $24,750 and Hochtief was fined $16,500. 3 The appeal is confined to the conviction entered against each appellant and does not seek a review of the penalties imposed.

History 4 The appellants were engaged in a joint venture for the purpose of the construction of the Epping to Chatswood rail link. Between 4-5 July 2005, a non-employee of the appellants, Luke Bandrowski, was found dead in one of two large sediment ponds located on the appellants' work premises. It was subsequently established that Mr Bandrowski died of a heart attack. 5 The charges against each appellant alleged that between 4-5 July 2005, on the said project, the appellants failed to ensure that persons, other than its employees, in particular, Luke Bandrowski, were not exposed to risks to their health and safety arising out of the conduct of the appellants' undertaking while they were at the appellants' place of work contrary to s 8(2). The particulars relied upon were that the appellants failed to: (i) provide adequate instruction and training to workers in the dangers of working near a body of water, namely a sediment pond; (ii) adequately restrict access to the sediment pond area at the premises so as to ensure that workers were not exposed to the risk of falling into a body of water, namely a sediment pond; (iii) ensure that there were adequate control measures, including but not limited to physical barriers and adequate signage, in place at the premises as to eliminate the risks of working in the vicinity of the sediment pond; (iv) failed to provide adequate supervision to workers working at the premises in the vicinity of the sediment pond. 6 His Honour found a number of facts were established on the evidence: · At the work site there were two sediment ponds. These were two ponds where water and other material that resulted from tunnelling operations were stored pending filtering of the water at the site filtration plant to remove sand and related rock product. Water was pumped into the sediment ponds on an ongoing basis. One pond was allowed to settle such that sediment could be removed from it. A front end loader would be used to remove the sediment. · The sediment ponds were approximately six metres in width, 28 metres long to the overflow weir and three metres deep at one end. At the other end, the "entrance" to the sediment ponds, there was a ramp from the level concrete slab constituting a restricted access area of some 12 metres into the sediment ponds at an angle of 14 degrees. · At the top of the ramp leading into the sediment pond was a chain, and attached to the chain was a sign which had the words "Strictly No Admittance" written on it. The was no evidence to suggest that the sign and warning on the chain were not properly visible to anyone at the relevant time on 4 July 2005. · Near the sediment ponds there was a site shed that was known as the "laundry shed". Behind the laundry shed was the office area. Near the laundry shed was the first aid shed. On the side of the first aid shed were five "No Parking" signs. · Mr Bandrowski parked his backhoe on a flat concrete pad. There was no evidence that there was mud or any other material which could contribute to anyone slipping, tripping, etc. · On 5 July 2005, the distance of the waterline in the western sediment pond from the flat concrete slab was measured at 1.9 metres. · On the afternoon of 4 July 2005, Mr Bandrowski had a conversation with Mr Wheeler, a leading hand at the site. The conversation took place at the top of the drive of the tunnel where personnel exit and enter the tunnel near a tag out board some 25-30 metres away from where the backhoe was subsequently parked. · Mr Bandrowski proceeded to park his vehicle near the pond(s). · A short time after the conversation, the backhoe with its motor still running, was observed by Mr Wheeler where it was parked and later by Mr Bradford, a project manager of the joint venture. · On the morning of 5 July 2005, the backhoe was in the same position. Mr Bandrowski was not seen. · Inquiries about Mr Bandrowski's whereabouts were undertaken. During the course of the morning, Mr Bandrowski's hard hat was found in the adjoining pond to that in which Mr Bandrowski was found. · A post mortem report indicated that Mr Bandrowski had suffered a severe heart attack and had died as a result of it. 7 These facts were accepted by the appellants as established on the evidence and were relied upon by them in their submissions on appeal. A number of other findings were also relied upon. 8 Two elements of an offence under s 8(2) were properly conceded by the appellants, namely: the site of the incident was their place of work and the incident occurred in the conduct of their undertaking. The appellants put a further element of a s 8(2) offence in issue questioning, in the circumstance, whether Mr Bandrowski and the other non-employees at the site were "at work" at the relevant time. His Honour held (at 20): ... " work " should not be given such a narrow interpretation as suggested by the defendants of limited to actual work. For example the defendants submitted that Mr Bandrowski's work finished when he completed his work in the tunnel and exited the tag out area, however, wash down areas were provided and it was no doubt expected by the defendants in providing such areas that workers would as part of their duties maintain their plant and machines which includes cleaning them. Further, a direction by Mr Bandrowski' supervisor to wait to get his dockets signed does not signal to me the end of Mr Bandrowski'[s] days work.

However, in my view the proceedings are not limited solely to Mr Bandrowski and the meaning of work should be given a wide and beneficial interpretation in light of the social welfare purpose of this legislation. 9 Therefore, it was determined the offence occurred at the appellants' place of work, in the confines of their undertaking and covered all the non-employees working at the place of work. The question then before his Honour, Acting Industrial Magistrate Miller, was whether Mr Bandrowski and others at the worksite were placed at risk. 10 The risk was identified by the prosecutor as a risk to the safety of non-employees at work of falling into the sediment ponds. His Honour then concluded as to the "risk" and the appellants' knowledge of the risk (at 16): I am satisfied that the risk as alleged namely the risk that someone working in or near the sediment ponds could fall into it was a relevant risk. That the risk was known was evident from some of the things that were in place - the no access area in front of the sediment ponds, the chain with a warning sign "Strictly No Admittance" at the entrance to the ramp, the fence around the sediment pond, some of the signage ('Danger - Deep Water'), the existence at one time of barricades restricting access, the location of life buoys around the sediment ponds and the relevant Guideline relating to Working Near Water. 11 His Honour, Acting Industrial Magistrate Miller, in his consideration then addressed the question raised by the appellants as to whether there was a "causal connection" between the asserted risk and the appellants' conduct. His Honour considered the relevant law as follows (at 20): There must be a causal connection between the alleged conduct of the defendant and the alleged risk, that is, the alleged failure must cause the detriment to the safety of the person concerned: see WorkCover Authority v Maitland CC (1998) 83 IR 362 at 377. However, it is not necessary to demonstrate a causal connection between conduct of the defendant and the precise circumstances of the accident which gave rise to the prosecution. Rather, the causal connection must be between that conduct and the risk to safety: Walton J in WorkCover Authority v Kellogg (Aust) Pty Ltd (No 1) (1999) 101 IR 239 at 253; [1999] NSWIRComm 453.

It is clearly possible for circumstantial evidence to found the basis of a prosecution under the Act. McMartin v Broken Hill Pty Co Ltd (1988) 100 IR 241 ...

His Honour considered each asserted failure as pleaded and determined from the evidence and the facts he found established each failure was proven. His Honour then held (at 21): ... there is a causal connection between the failures on the part of the defendant and the risk. The defendants as employers have failed to ensure that its non employees are not exposed to a risk to their health and safety arising from the conduct of the defendants undertaking while at the defendants place of work.

His Honour then entered a verdict of guilty against each appellant.

Submissions 12 The appellants submitted, absent a factual finding as to what Mr Bandrowski was doing and where he was doing it at the relevant time, the prosecution had not established the alleged risk to safety. 13 Alternatively, the appellants contended, if such a risk existed, it was so remote as to be speculative and therefore there could be no finding of liability against each appellant for an offence under the Occupational Health and Safety Act. His Honour was, therefore, in error. Leave should be granted and the appeal upheld, it was submitted. 14 The appellants asserted his Honour held the charges were made out by reason of the existence of a state of affairs which constituted a "potential" risk in the absence of evidence to show, beyond reasonable doubt, that any non-employee and, in particular Mr Bandrowski, was "exposed" to the asserted risk (an essential element of s 8(2) of the Occupational Health and Safety Act). It was submitted the question his Honour had to address and failed to so do was whether, on the facts as found by him, Mr Bandrowski or the other non-employees were exposed to the risk (the risk of falling into a sediment pond while at work). The appellants accepted, on appeal, the risk identified was that formulated by the respondent. Further, it was contended, given there was no evidence of exposure to the identified risk, there could be no causal connection to the risk. 15 In particular, the appellants contended the evidence established the only non-employee that was "potentially" exposed to the risk was Mr Bandrowski. Other findings by his Honour were relied upon by the appellants in support of the contention there was no "exposure" of the non-employees to the risk. The relevant findings of his Honour relied upon by the appellants were: Mr Bandrowski and the other non-employees were not required to work near the ponds; there could be no determination of Mr Bandrowski's movements after he parked his backhoe; there were no scuff marks or slip marks near the ponds; the water levels of the ponds were unknown. The appellants contended his Honour, the Acting Industrial Magistrate and on appeal, the Court, could not be satisfied to the requisite standard, given the above facts, that Mr Bandrowski was exposed to the identified risk. The absence of evidence of exposure to risk (that is, the failure to prove Mr Bandrowski was exposed to the risk of falling into the sediment pond) in a circumstance where he was not required to work in the area or in the vicinity of the ponds at the relevant time meant his Honour's reasoning was in error, it was submitted. Therefore, in the absence of the requisite evidence the learned Acting Industrial Magistrate and the Court, on appeal, could not conclude Mr Bandrowski was exposed to the risk. 16 Further, it was submitted, as no other person was required to work near, or in the vicinity of the ponds, no non-employee could be held to have been exposed to the risk. 17 Section 8(2), it was submitted, as an essential element of the offence requires evidence, beyond reasonable doubt, of "exposure" to the risk at the relevant time. Therefore, the appellants contended, the conclusion of his Honour, was flawed as it was in conflict with his Honour's own factual findings; his Honour was required and failed to the requisite standard to find an exposure to the risk; the "existence" of a risk does not satisfy the requirement of a finding of "exposure" of the non-employees (including Mr Bandrowski) to the identified risk. 18 In the alternative, the appellants submitted the risk of falling into the ponds was so remote, no reasonable employer could be required to be proactive to ensure the removal of the risk. 19 The respondent to the appeal identified in submissions the risk the appellants were obligated to guard against was the risk of persons falling into the sediment pond. The fact this occurred after a person had a heart attack was not the issue, it was submitted. The appellants had an obligation to ensure persons at work at its worksite could not fall into the ponds. As employers, the appellants were obliged to ensure such persons health or safety. The appellants, given their knowledge of the risk as identified in proactive warnings it posted on site, failed to so do. The failures, as pleaded, had a causative connection to the risk and the Acting Industrial Magistrate was entitled to be satisfied such failures were established on the evidence. The respondent contended that the learned Acting Industrial Magistrate applied the relevant test. Therefore, as there was no issue of law nor of the public interest, leave should be refused and the appeal dismissed.

Consideration 20 The issue on appeal addresses the particulars pleaded, the notion of risk, the nature of the particular risk and whether a risk existed if, on the appellants' submissions, no person was exposed to the risk. The remoteness of the risk is also in issue. 21 Under s 8(2) of the Occupational Health and Safety Act, the obligation on employers relates to risks arising from the conduct of their undertaking. The nature of the offence is the failure to ensure persons are protected from a risk to their health or safety at worksites. The risk, although by its nature only a possibility, must be real. The section, therefore, requires proactive intervention to obviate risk, The obligation cannot be read down to restrict it to times when actual work is being carried out at the very site of the risk, that is to say, persons at worksites can be held to be exposed to risk if the risk is real, notwithstanding such persons are not presently performing work at the site of the risk. 22 It is sufficient, therefore, that non-employees, at work, are exposed to the risk such that, during the course of their work, they could be in the vicinity of the risk. 23 The appellants contended, where there was no actual injury arising from the risk and no exposure of a person while at work to the identified risk (of falling into a sediment pond) there could be no offence. Reliance was placed on the fact Mr Bandrowski died of a heart attack and was found in the bottom of a sediment pond but that he was not required to work in or near the ponds. However, actual injury is not an element of an offence under s 8(2) of the Act. The creation of the risk is the relevant feature (WorkCover v Headrick t/as Graeme's Fine Finishes IRC 3943 of 1997, 9 April 1998, unreported decision of Marks J). 24 His Honour was satisfied the risk arose because two sediment ponds at the worksite were not properly fenced and thereby provided a detriment to the safety of all persons (non-employees) at that worksite (including Mr Bandrowski) all of whom were required to perform work at the site. At this workplace there was nothing to prevent members of the large workforce from coming into the vicinity of the pond. Particularised in the summonses were the asserted omissions which, when established, had then been found to have a causal connection to the detriment to safety, that is: the risk. 25 Each particular was given consideration by the Acting Industrial Magistrate. His Honour found the evidence established each asserted failure on the part of the appellants. His Honour then determined, as to Mr Bandrowski, that he was able to be near the sediment ponds while at work and should have been prevented from gaining access to them by the defendant. It was the appellants' obligation to ensure he had no access and it was the failure to ensure no access which established the risk. This circumstance, his Honour found, was established on the evidence and therefore there was a causal connection to the risk. His Honour gave cogent reasons for his findings, referring to the fact Mr Bandrowski was able, while at work, to drive his backhoe close to the sediment pond and he could alight from his vehicle beside the sediment pond. Mr Bandrowski was therefore exposed to the risk of falling into the sediment pond. That risk became a reality, although his death was due to other causes. 26 His Honour further found: through identified parking bays, by way of warning signage and chains and the prior use of barricades, he was satisfied the appellants had recognised the risk but had not obviated the risk with the requisite safe fencing - a step taken after the incident, to guard against and eliminate the risk. A simple and effective proactive step was available to the employer to eliminate the risk. It was understood by his Honour in his determination that the risk as pleaded related not only to Mr Bandrowski, who was directly exposed to the risk (being near the sediment pond) but to others working at the site, all of whom potentially had access to the ponds and were therefore exposed to the risk. His Honour appreciated in his findings that the question as to an "exposure" to the risk had to be considered. His Honour, in the reasoning, concluded (at 20): ... it was unknown what Mr Bandrowski was doing when he parked his backhoe where he did. As indicated earlier he may have decided by the presence of the hose to wash down his vehicle in the no access area despite designated wash down areas being available elsewhere on the site, or he simply have been waiting for the return of Mr Bradford to sign his dockets, or he may have decided whilst waiting to wash down his machine; we simply do not know. But one thing is certain by ending up where he did, it does demonstrate a risk to employees and non employees of the defendants that someone working in or near the sediment ponds could fall into it. 27 The risk to the safety of persons at this worksite arose because of the existence of two sediment ponds at the worksite. That risk was not eliminated by the proactive conduct of the appellants who knew of their potential danger. Put another way, there was a known risk to safety which the appellants failed to eliminate. It was a risk to all persons, therefore, working at the appellants' worksite. 28 As was said in Haynes v C I & D Manufacturing Pty Ltd, Callaghan v C I & D Industries Pty Ltd (1994) 60 IR 149 of provisions s 15 and s 16 of the prior Act and similar to s 8(1) and s 8(2) of the present Act (at 157): Sections 15 and 16 of the OHS Act are both concerned with failures to ensure the health and safety of persons at workplaces in terms inter alia of "risks" thereto; thus, the sections, even absent any actual accident causing death or bodily injury, nevertheless comprehend the commission of an offence where the relevant "detriment to safety" (as spoken of in Dawson and McMartin ) is but a risk, or, in other words, where the circumstances are such that an employer's act or omission has created a situation of potential danger to the health and safety of persons at his workplace. The OHS Act, as its long title indicates, has the prime purpose "(t)o secure the health, safety and welfare of persons at work" and that stated purpose may only reasonably be achieved, it seems to us, by construing the general duties or obligations cast on employers by Div 1 of Pt 3 thereof (which contains ss 15 and 16) as both preventive and remedial in nature, that is, both before and after the occurrence of an actual accident. and (at 158-159): The general duties created by the OHS Act, such as in ss 15 and 16 , are clearly directed, we think, at obviating "risks" to safety at the workplace; it would therefore be wrong in considering whether an alleged breach of those general duties had been made out in any particular case to reason from the actual occurrence of an accident, even though causing death or injury, as the necessary detriment to safety and as to which a causal connection was to be shown. The accident itself may well, and probably does, manifest the existence of a detriment to safety and will, no doubt, be some measure of the degree of severity of the detriment; but, it seems to us, it is to the essential ingredients of the offence charged which one must attend by assessing the objective facts causing the detriment to safety and the causal connection therewith of the employer.

The fact that Mr Bandrowski died from a heart attack does not negate the fact that he was able to fall into the sediment pond, a fact which exposed the existence of the risk not only to Mr Bandrowski but to all non-employees at the worksite. We are of the view his Honour correctly established the facts, assessed the evidence, then determined there was a causal connection to the risk and, in doing so, his Honour correctly applied the relevant legal principles.

Remoteness 29 Remoteness of the risk was also raised as an alternative submission by the appellants. The remoteness of the risk - of a driver and others on site who had all seen the appellants' guidelines on "Working Near Water" and where the sediment ponds had obvious warning signage, a chain barrier (whether connected or not), warning as to the depth of the ponds and life jackets placed on the periphery - was of such a remote degree, the appellants contended, as to not require them to remove the risk. 30 In Whitton v State of New South Wales (2005) NSWCA 97 in a consideration, on appeal, as to a trial judge's finding that a risk of injury was "very remote", reliance was placed on the reasoning of Windeyer J in Mount Isa Mines Ltd v Pusey (1970) 125 CLR 383. In his discussion on the uses of the word "remote", his Honour stated (at 398-399): Sometimes too the phrase "remote risk" has meant an event which can be seen as a possibility, but one so unlikely to occur, or of such slight gravity of consequence if it should occur, that a prudent man might justifiably disregard it. 31 We are of the view that there is force in the respondent's submission that an open body of water presented a risk to non-employees at work at the site of falling into the sediment ponds on the relevant date. The risk was real not remote, notwithstanding the fact that work was not normally performed by persons, including Mr Bandrowski, in the vicinity or near the pond. His Honour was satisfied there was no evidence as to what Mr Bandrowski was doing at the relevant time. However, his Honour also found there were numerous employees working on the site; the ponds were large; they could be up to three metres in depth; they were not safely barricaded and therefore he concluded that where Mr Bandrowski was found: "... does demonstrate a risk to employees and non-employees ... working in or near the sediment ponds could fall into it".

We do not find fault with this reasoning and accept his Honour did make a finding as to exposure to the identified risk of all non-employees at this site. 32 It is significant that the Acting Industrial Magistrate, on penalty, could not characterise the breach as serious, in the circumstance, and found it was appropriate to impose a penalty at the lower end of the scale against each appellant. The penalties imposed are not challenged by the appellants. The lower range of penalty imposed does not support a suggestion that the risk was remote. 33 Given the focus of an alleged breach must be on the risk and not the incident, the Court takes the view that non-employees working on this site were exposed to the risk of falling into a sediment pond, which pond was not properly fenced. The evidence was that there was a large work force engaged at the site who, like Mr Bandrowski, were not required to work in the vicinity of the sediment ponds. That fact did not prevent any other member being in the vicinity of the sediment ponds in circumstances where they were placed at risk of falling into the pond. Simply put, there was nothing to prevent Mr Bandrowski or other workers from falling into the pond - Mr Bandrowski was, in fact, found in the pond. There may be a number of reasons why employees may end up in the vicinity of these ponds - some of those reasons included behaviour referred to by Bauer J in Inspector Twynam-Perkins v Maine Lighting Pty Ltd (1995) 100 IR 248 (especially at 257). The risk was more than a mere possibility. The gravity of the potential consequences was not slight but most serious. A prudent employer had to ensure there was no access to the sediment ponds to all non-employees at work at the site. The risk was, therefore, not remote but real. 34 The Court, on appeal, therefore concludes there was no error of law made by the Acting Industrial Magistrate. It follows the appeal should be dismissed. 35 The further issue for consideration is whether it is necessary for there to be a grant of leave to appeal in an appeal from a conviction for an offence under the Occupational Health and Safety Act 2000. 36 The Full Bench of the Commission determined in Drake Personnel (t/as Drake Industrial) v WorkCover Authority (NSW) (1999) 90 IR 432 that s188 of the Industrial Relations Act 1996 applies in respect of an appeal from the Local Court against a conviction under the Occupational Health and Safety Act 1983. 37 The power of the Full Bench of the Commission to hear such an appeal arose from s47(4) of the Occupational Health and Safety Act 1983. It stated: 47 Summary procedure for offences (1) . . . . (1A) . . . . (1B) . . . . (2) . . . . (3) . . . . (4) The provisions of section 197 of the Industrial Relations Act 1996 , and of the regulations under that Act, relating to appeals from a Local Court to the Industrial Relations Commission in Court Session apply to proceedings before a Local Court for offences against this Act or the regulations. 38 However, s 188 of the Industrial Relations Act 1996 required under the relevant part of the Act to appeal by leave. S188 states: 188 Appeals to Full Bench by leave only (1) An appeal to a Full Bench of the Commission under this Part may be made only with the leave of the Full Bench. (2) The Full Bench is to grant leave to appeal if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted. (3) The Full Bench may deal with an application for leave to appeal separately and without conducting a hearing into the merits of the appeal. (4) This section does not apply to an appeal made by the Minister. and accordingly leave to appeal is required.

39 At the relevant time (1999), s188 had to be read with s197: 197 Appeals from Local Court (1) An appeal lies to a Full Bench of the Commission in Court Session against: (a) any order made under this Act by a Local Court for the payment of money or the dismissal by the Local Court of an application for such an order (including a dismissal on the ground that it does not have jurisdiction to deal with the application), or (b) any conviction or penalty imposed by the Local Court for an offence against this Act or the regulations, or (c) a civil penalty imposed under this Act by a Local Court for a contravention of an industrial instrument or the dismissal by the Local Court of proceedings for such a civil penalty. (2) The provisions of the Justices Act 1902 that relate to appeals to the District Court and the Supreme Court, the decisions of those Courts on those matters and the carrying out of any such decision apply, subject to the regulations under this Act, to appeals to a Full Bench of the Commission in Court Session. (3) (Repealed) (4) The Full Bench of the Commission in Court Session may refer a matter the subject of an appeal back to the Local Court with such directions or recommendations as it considers appropriate. (5) Section 179 (Finality of decisions): (a) applies to a decision or purported decision of a Local Court in proceedings to which this section applies in the same way as it applies to a decision or purported decision of the Commission, and (b) without limiting that section, applies to a decision or purported decision of the Commission in respect of proceedings to which this section applies. 40 The decision in Drake Personnel comprehensively dealt with an interpretation of, and the "tension" in a reading of s 188 of the Act with the "perplexing provision" s197 (which relevant section incorporated the provisions of the then Justices Act 1902. In Drake Personnel it was decided that on a reading of s188 with s197, an appeal from a conviction in the Local Court for an offence under the Occupational Health and Safety Act, 1983 required the grant of leave to appeal. The decision in Drake Personnel has subsequently been followed (Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464; Mainbrace Constructions Pty Ltd v WorkCover Authority of NSW (Inspector Charles) (2000) 102 IR 84). 41 However, since Drake Personnel was decided there have been three new legislative initiatives. The Occupational Health and Safety Act 2000 has been introduced, the Justices Act rescinded and the Crimes (Local Courts Appeal and Review) Act 2001 (the "Crimes Appeal Act") has been proclaimed. 42 To reflect this new legislative scheme, in order to remove all reference to the rescinded Justices Act and to incorporate the relevant procedures under the new Crimes Appeal Act, the Industrial Relations Act 1996 was amended. Relevantly, operative from July 2003, s197(2), which dealt with appeals to the Industrial Relations Commission from the Local Court, was amended. Section 197(2) of the Industrial Relations Act as amended now reads: s197(2) The provisions of the Crimes (Appeal and Review) Act 2001 that relate to: (a) appeals from the Local Court to the District Court or Supreme Court, and (b) the decision of the District Court or Supreme Court on any such appeal, and (c) to the carrying out of enforcement of any decision, (including those provisions as applied by s 64 of the Local Courts Act 1982) apply, subject to the regulations under this Act, to any appeal referred to in sub-section (1). 43 Also the new Occupational Health and Safety Act 2000, in s105(3) provides: 105(3) [ Appeal from Local Court] The provisions of the Industrial Relations Act 1996, and of the regulations under that Act, relating to appeals from a Local Court to the Industrial Relations Commission in Court Session in connection with offences against that Act apply to proceedings before a Local Court for offences against this Act or the regulations.

Note: Section 197 of the Industrial Relations Act 1996 deals with appeals against convictions or penalties in connection with offences against that Act. Section 197A of the Industrial Relations Act 1996 provides a right of appeal to the Full Bench of the Industrial Relations Commission in Court Session against a decision of a member of the Commission or a Local Court to acquit a person of an offence against this Act or the Regulations. 44 The provisions of s105(3) are in a similar form to the provisions of s47(4) of the 1983 Occupational Health and Safety Act - the relevant provision at the time when Drake Personnel was decided but there are some differences. 45 From the 2nd reading speech and the explanatory note, the Crimes Appeal Act was intended to re-enact and simplify the appeals from the Local Court. However, the language of the amendments raised again the question: does the new s197(2), read with s188, have the effect of allowing an appeal from a Local Court as of right (as appeals to the District and Supreme Courts are under the Crimes Appeal Act) or is leave still required. The further question arising is, in what form would such an appeal be conducted (e.g. de novo hearing or hearing on the papers or ...). 46 The question as to whether the amendment to section 197 and its reference to the Crimes Appeal Act brought about any change of procedures before the Commission on appeals from the Local Court, in occupational health and safety prosecutions has already been given some consideration by Full Benches in T&M Industries (Aust Pty Ltd and Anor v Inspector Sequeria [2006] NSWIRComm 25 which adopted a view expressed in WorkCover Authority of New South Wales (Inspector Hannah) v Keogh's Plant Hire Pty Ltd [2005] NSWIRComm 118. In both matters, the court determined, given leave was to be granted, the issue did not need to be decided. 47 Further, in Inspector Stewart Larkin v South Pacific Seeds Proprietary Limited [2006] NSWIRComm 247, the Full Bench canvassed again, the issues and acknowledged the difficulties in a reading of the complex statutory provisions, under the Industrial Relations Act, the Crimes (Local Courts Appeal and Review) Act 2001 and the Occupational Health and Safety Act 2000 which give rise to appeals from convictions in the Local Court to the Industrial Relations Commission. 48 Notwithstanding an invitation by the Appeal Court to address the question of leave, the appellants in this matter did not seek to argue in these proceedings that a different approach should be adopted in respect of leave to appeal than that determined in Drake Personnel but submitted there was a significant error in the decision of the Chief Industrial Magistrate which justified the granting of leave. The appellants, therefore, contended that the decision in Drake Personnel is still the correct and applicable law. 49 The respondent to the appeal, acknowledged, due to the legislative amendments proclaimed after the decision of Drake Personnel (which amendments were to reflect the introduction of the Crimes (Local Courts Appeal and Review) Act 2001 ( replacing the Justices Act)), the Court has not yet fully dealt with the effect of the amendment to s197(2). However the respondent submitted the Court on appeal needs only to consider the question as to whether there is a need for a grant of leave in the event that the defendant's submissions on the appeal were allowed: that is, the appeal is to be upheld. 50 The respondent, in the alternative, presented submissions in support of the proposition (if the issue is given consideration by the Court) that on a reading of the relevant provision and taking into account the intention of the legislation in drafting the amendment and, weighing up the rights of an appellant but taking into account the efficiency of the Court, the applicable law stands. Therefore the respondent submitted it remains necessary under the new statutory scheme for there to be a grant of leave to appeal from the Court. 51 The issues raised on leave were only pressed, as an alternative argument by the respondents and will require a comprehensive interpretation of the legislative scheme through provisions in the Industrial Relations Act 1996 (sections 188, 189, 191, 197); the Occupational Health and Safety Act 2000 (s105) and the Crimes (Local Courts Appeal and Review) Act 2001, ss5AA, 23, 26, 56 and 57. 52 Given the appeal is not to be upheld and in a circumstance, where neither party presses the issues as identified above we do not believe there is a utilitarian value to giving full consideration to the effect of the above amendments in this matter. 53 Further, as was held in Coulter v The Queen (1987-1988) 164 CLR 350 (at 359-360): . . . In a case such as the present where the application for leave to appeal was from a criminal conviction or information to a first court of appeal exercising general supervisory appellate jurisdiction, the requirement of leave effectively represents no more than a means of efficiently disposing of prospective appeals which would obviously fail since it is difficult to envisage circumstances where a competent application for leave to appeal to such a court could properly be refused in a case where the conviction should be set aside if leave were to be granted and the appeal were to proceed to a full hearing. 54 We determine the most efficient way to dispose of this matter, where the Court has found there are no grounds to allow the appeal is to determine there be no grant of leave to appeal.

Orders 1. Leave to appeal is refused 2. The appeal is dismissed 3. The appellants shall pay the respondent's costs in a sum as agreed, or in default of agreement, as assessed.

JUDGMENT OF HAYLEN J 55 I have had the advantage of reading, in draft, the views set out in the joint judgment on the merits of the appeal and I agree for the reasons there expressed that the appeal should be dismissed.

I am of the view, however, that having regard to legislative changes, leave to appeal is not required and that the appellant has an appeal as of right. The reasons for that view are developed in the following paragraphs. In those circumstances, I agree with Orders 2 and 3 as proposed in the joint judgment. 56 The application as filed in the registry by the appellants sought leave to appeal and then to appeal the decision of his Honour the Acting Industrial Magistrate, Mr Miller. The respondents to the appeal opposed the granting of leave. In light of the discussion of the Full Bench of the Court in Inspector Stewart Larkin v South Pacific Seeds Pty Ltd (2006) NSWIRComm 247, where the possibility was raised that the provisions of the Crimes (Appeal and Review) Act 2001 might apply to such an appeal and that leave might not always be required, the parties were asked to address the issue of whether or not leave was necessary. Broadly stated, the respondents' position was that nothing had materially altered since the judgment of the Full Bench in Drake Personnel Ltd (t/as Drake Industrial) v WorkCover Authority (NSW) (1999) 90 IR 432 where the provisions of the now repealed Justice Act 1902 had applied and therefore it was still necessary to seek and be granted leave to appeal. The initial position of the appellants was that leave was still required but during the course of argument their stance became a little more equivocal, submitting that, if leave was necessary, the circumstances of the case would satisfy the requirements for leave to be granted. 57 The matters raised by the Full Bench of the Court in South Pacific Seeds Pty Ltd may not be ignored. The Full Bench of the Court in this appeal is obliged to decide the fundamental question as to the nature of the jurisdiction it is exercising and in turn, that requirement raises the issue whether the approach in Drake Personnel continues to apply or whether the appeal provisions laid down by the Crimes (Appeal and Review) Act are to apply. This is no idle question or issue of mere technicality - it goes to the important issue of whether leave is necessary or whether a right of appeal exists, and the nature of the appeal available under the Crimes (Appeal Review) Act. 58 How this situation arises requires some consideration of the recent history of appeal provisions under the Industrial Relations Act 1996. At the time that Drake Personnel was decided, in mid-1999, the Occupational Health and Safety Act 1983 by s 47 (4) then provided for an appeal from the Local Court to a Full Bench of the Commission in Court Session such that the provisions of s 197 of the Industrial Relations Act 1996 and the regulations under that Act relating to appeals from a Local Court to the Industrial Relations Commission in Court Session applied to proceedings before a Local Court for offences against the Occupational Health and Safety Act and the regulations. In turn, s 197 of the Industrial Relations Act dealt with appeals to a Full Bench of the Commission in Court Session against certain orders made by the Local Court and in sub-section 3 laid down that the provisions of the Justices Act relating to appeals to the District Court and to the stating of cases by Justices for the opinion of the Supreme Court, the decision of those courts on those matters and the carrying out of any such decisions applied, subject to any regulation under the Industrial Relations Act, to appeals to, and cases stated for the opinion of, a Full Bench of the Commission in Court Session. 59 In order to understand the issue facing the Full Bench in Drake Personnel, it is necessary to set out the provisions of ss 188, 196, 197 and 191 of the Industrial Relations Act: s 188 Appeals to Full Bench by leave only (1) An appeal to a Full Bench of the Commission under this Part may be made only with the leave of the Full Bench. (2) The Full Bench is to grant leave to appeal if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted . (3) The Full Bench may deal with an application for leave to appeal separately and without conducting a hearing into the merits of the appeal. (4) This section does not apply to an appeal made by the Minister. s 196 Appeals from and references by members of Commission in criminal proceedings (1) This section applies (and the other provisions of this Part do not apply) to appeals and references to the Full Bench of the Commission in Court Session in respect of criminal proceedings taken before a judicial member of the Commission. (2) The Criminal Appeal Act 1912 applies to any such appeal or reference in the same way as it applies to an appeal or reference to the Court of Criminal Appeal in respect of criminal proceedings taken before a Judge of the Supreme Court in its summary jurisdiction. (3) For the purposes of subsection (2), a reference (however expressed) in the Criminal Appeal Act 1912 : (a) to the Court of Criminal Appeal-is taken to be a reference to a Full Bench of the Commission in Court Session, and (b) to the Supreme Court-is taken to be a reference to the Commission in Court Session, and (c) to rules-is taken to be a reference to rules of the Commission, and (d) to the Attorney General-is taken to include a reference to the Minister, and (e) to the Director of Public Prosecutions-is taken to include a reference to the prosecutor in the proceedings before the Commission in Court Session, and (f) to the registrar-is taken to be a reference to the Industrial Registrar. (4) Subsection (2) does not apply to any provision of the Criminal Appeal Act 1912 relating to costs. s 197 Appeals from Local Court (1) An appeal lies to a Full Bench of the Commission in Court Session against: (a) any order made under this Act by a Local Court for the payment of money or the dismissal by the Local Court of an application for such an order (including a dismissal on the ground that it does not have jurisdiction to deal with the application), or (b) any conviction or penalty imposed by the Local Court for an offence against this Act or the regulations, or (c) a civil penalty imposed under this Act by a Local Court for a contravention of an industrial instrument or the dismissal by the Local Court of proceedings for such a civil penalty. (2) The provisions of the Justices Act 1902 that relate to appeals to the District Court and the Supreme Court, the decisions of those Courts on those matters and the carrying out of any such decision apply, subject to the regulations under this Act, to appeals to a Full Bench of the Commission in Court Session. (3) (Repealed) (4) The Full Bench of the Commission in Court Session may refer a matter the subject of an appeal back to the Local Court with such directions or recommendations as it considers appropriate. (5) Section 179 (Finality of decisions): (a) applies to a decision or purported decision of a Local Court in proceedings to which this section applies in the same way as it applies to a decision or purported decision of the Commission, and (b) without limiting that section, applies to a decision or purported decision of the Commission in respect of proceedings to which this section applies. s 191 Nature of appeal (1) An appeal to a Full Bench of the Commission under this Part is not by way of a new hearing and is to be determined on the evidence and material adduced in relation to the decision appealed against. (2) However, the Full Bench may, by leave, receive further evidence if it considers that special grounds exist or if the evidence concerns matters occurring after the decision appealed against. (3) To avoid doubt, the Full Bench cannot merely substitute its decision on the matter, but must follow the principles applying to appeals from discretionary decisions, whether or not further evidence is received. NOTE: The above section generally follows the decision of the Full Industrial Relations Commission in Big W Discount Stores v Donato (1995) 58 IR 239 as to the nature of an appeal. The appeals in respect of which the section applies include appeals in connection with awards, unfair dismissals, approvals of enterprise agreements, unfair contracts or contraventions of dispute orders. 60 The Full Bench in Drake Personnel firstly stated that the approach to construction to be adopted was the purposive approach aimed at identifying what was intended by the legislature. If the intention of the legislature was ambiguous the Court was to decide the issue by giving effect to the evident purpose of Parliament. In so doing the Court was to avoid a construction that was manifestly inconvenient, absurd, irrational or capricious or the result of serious injustice. Having set out the approach the Full Bench concluded that, in an occupational health and safety appeal under s 197, leave to appeal pursuant to s 188 of the Act was necessary and that such an appeal was not a hearing de novo but was to be governed by the principles applicable to appeals generally brought under Pt 7 of Ch 4 of the Industrial Relations Act. 61 In coming to this conclusion the Full Bench moved through the following steps: · s 197 in the context of Pt 7 Ch 4 disclosed no intention to exclude the operation of s 188 or s 191 of the Act. It was noted that s 196 made an expressly contrary provision and that was a significant factor pointing to s 197 appeals being subject to the general provisions in Pt 7; · the words "Full Bench of the Commission" referred to in Pt 7 Ch 4 were not intended to exclude reference to the Full Bench of the Commission in Court Session and that was clear from the terms and structure of s 156; · in most cases an appeal lies as of a right from a conviction or sentence recorded by a Local Court (s 122 Justices Act); · while accepting that the principle of consistency in the criminal law might usually apply and that usually an appeal was an appeal as of right from a Local Court, however, the Occupational Health and Safety Act did not manifest an intention to wholly produce consistency with appeals in general criminal law jurisdictions. It was noted that District Court and Supreme Court appeals from Local Courts were appeals to single judges but that occupational health and safety appeals from Local Courts were to go to a Full Bench. Having regard to notions of convenience and efficiency, the question had to be asked why three Judges of a superior court were to be designated to hear appeals from Local Courts and to do so at a hearing de novo meaning that the Full Bench would effectively conduct a second trial. This result was further supported by the fact that s 197 provided, not only for appeals to be brought in respect of criminal proceedings heard before the Local Court but also comparatively minor civil matters; · while it was acknowledged that the right of a person convicted of a serious criminal offence to obtain effective review of the conviction was a fundamental feature of the criminal law and the criminal justice system, it was not necessary that in every case the fulfilment of that right required a de novo hearing before a superior court of record. As observed by Kirby P in Camilleri's Stock Feeds Pty Ltd v Environmental Protection Authority (1993) 32 NSWLR 683 speaking in the Court of Criminal Appeal, that court was normally a court of error with limited and hard pressed resources and was typically under considerable time restraints. Those factors were well known to Parliament and such considerations and the specialist character of the Land and Environment Court made it unlikely that it was intended that the Court of Criminal Appeal should exercise original jurisdiction effectively as a court of second trial. While it was a fundamental right of a person to have the facility of an effective review of a serious criminal conviction it would ordinarily follow, if Parliament prescribed a right of appeal, that right ought to be interpreted by the court in an appropriately ample manner. The right of a person convicted of an offence to have a conviction sentence reviewed by a higher tribunal according to law was recognised by international instruments and were a legitimate source of influence for the interpretation of domestic law but that fundamental right was adequately protected by an appeal in the nature of a re-hearing which, nonetheless, was not an appeal by way of a hearing de novo. 62 In reaching this conclusion the Full Bench in Drake Personnel recognised that the legislative framework was difficult and was described as being "less than transparent in its intended operation". Section 197 was described as a "perplexing provision". While it was acknowledged that the general task of statutory construction had been described as a complex undertaking, that was certainly so in the present case where two "strongly competing constructions" were urged upon the Court. A close reading of this part of the judgment suggests that the Full Bench had before it two strongly arguable propositions and that, on balance, it had favoured the approach that required obtaining leave to appeal. As noted above, although the Full Bench was pressed with the approach that would bring about consistency with appeals in general criminal law jurisdictions, it was concluded that the Occupational Health and Safety Act did not manifest an intention "to wholly produce consistency" with such appeals in general criminal law jurisdictions. 63 In Drake Personnel the Full Bench appeared not to receive submissions as to the relevance, if any, of the different provisions applying in s 197A dealing with appeals against acquittals in proceedings for offences against occupational health and safety legislation. Such an appeal also arose in the context of Pt 7 Ch 4 of the Act. Given the admittedly difficult task of statutory construction involved in this exercise, it may be appropriate to consider what light, if any, can be thrown on this issue by the history surrounding s 197A. At the time that Drake Personnel was decided, s 197A was in the following terms: SECTION 197A 197A(1) This section applies to the decision of a member of the Commission or of a Local Court constituted by an Industrial or other Magistrate to acquit a person of an offence against the occupational health and safety legislation. 197A(2) This section applies to such a decision only if proceedings for the offence were instituted by an inspector appointed under that legislation or with the consent of the Minister or other officer authorised by that legislation to give such a consent. 197A(3) An appeal lies to the Full Bench of the Commission in Court Session against a decision to which this section applies. The appeal is not limited to a question of law. 197A(4) The appeal may be made by the Attorney General, the Minister, the Director of Public Prosecutions or the prosecutor in the proceedings in which the decision appealed against was made. 197A(5) An appeal may be made within 21 days after the date of the decision appealed against or within such further time (not exceeding 3 months after that date) as the Full Bench or the Commission constituted by a Presidential Member allows. Further time may be allowed, either before or after the end of that 21-day period. 197A(6) Section 191 applies to an appeal under this section. 197A(7) On an appeal under this section, the Full Bench may: (a) dismiss the appeal, or (b) set aside the decision appealed against and make a decision in the matter in accordance with law (including the conviction and sentence of the defendant for the offence charged). 197A(8) If the Full Bench on appeal convicts the defendant of the offence, the maximum penalty that the Full Bench may impose for the offence is the maximum penalty that the court that acquitted the defendant could have imposed for the offence. 197A(9) This section has effect despite anything to the contrary in section 196 or 197. 197A(10) In this section, "occupational health and safety legislation" means the Occupational Health and Safety Act 1983, the regulations under that Act or the associated occupational health and safety legislation within the meaning of that Act 64 In introducing s 197A the Attorney General and Minister for Industrial Relations, the Hon J W Shaw simply stated: I turn now to the provisions of the bill that relate to occupational health and safety.

In particular, provisions are introduced into the Industrial Relations Act, specifying that - where a prosecution for an alleged workplace safety offence results in an acquittal - an appeal can be lodged.

Appeals against dismissals in OHS prosecutions had been available until the coalition government removed the ability for such appeals under the NSW Industrial Relations Act 1991 which thankfully was replaced earlier this year. The proposed amendments are considered appropriate having regard to the nature of workplace safety obligations . 65 In WorkCover Authority of New South Wales (Inspector Bultitude) v Grice Constructions Pty Ltd (2002) 115 IR 59 at 72 et seq, a Full Bench concluded that leave to appeal was required in appeals brought under s 197A of the Act. In reaching that conclusion the Full Bench stated as follows: 60 Both parties accepted that the legislative scheme presented some difficulties as its construction was somewhat unclear. We consider that these issues are to be resolved in accordance with the ordinary tenets of statutory construction as outlined in Drake Personnel. 61 A significant consideration relevant to the Full Bench's decision in Drake Personnel was the absence of specific terms excluding the operation of the general provisions of Pt 7 of Ch 4 in appeals under s 197. This factor was considered of particular importance, given that s 196(1) explicitly provides that in an appeal pursuant to s 196 "the other provisions of [Part 7] do not apply." The Full Bench held (at 447): The language of s197 in the context of Part 7 of Chapter 4 of the Act does not disclose an intention to exclude that section from the operation of the other provisions of that Part, particularly ss188 and 191. It was noted in the course of the hearing that four major provisions (ss187, 194, 196 and 197) within Part 7 provide avenues of appeal from different kinds of decisions of the Commission, the Commission in Court Session and other bodies. With the exception of s196, each provision does not specify the basis upon which the appeal is to be brought. The provisions provide variously that "[t]he following may appeal …", "[a] person may appeal …" and "[a]n appeal lies …". Only s196 expressly excludes appeals brought under that section from the remaining provisions of Part 7 by providing that "[t]his section applies (and the other provisions of this Part do not apply)". The absence of a similar exception expressed in s197 is a significant factor pointing to the conclusion that the legislature intended appeals under s197 would be subject to the general provisions in Part 7. 62 We consider that this approach should also be adopted in respect of appeals under s 197A. Section 197A, as do s 196 and s 197, provides an avenue of appeal in respect of occupational health and safety prosecutions, although the two last-mentioned sections also provide appeal rights in a broader range of proceedings. Section 197A, like s 197, is to be contrasted with s 196 which, although all three provisions are found in Pt 7 of Ch 4, expressly excludes the operation of ss 188 and 191. Although the terms of s 197A(6) specifically refer to and apply s 191 but do not likewise specifically refer to or apply s 188, we do not consider on balance that that, of itself, results in a different situation as between ss 197 and 197A as to leave. Therefore, prima face, appeals under s 197A are governed by the ordinary or general provisions as to appeals under Pt 7 of Ch 4, other than s 196, including the requirement in s 188 as to leave.

63 If the leave requirement in s 188 were not to apply to appeals pursuant to s 197A it would have been open to the legislature to expressly exclude its operation as has occurred in s 197A(9) which specifically provides the "section has effect despite anything to the contrary in section 196 or 197". 64 The conclusion that an appeal under s 197A requires leave is not only consistent with, and supported by, the plain words used in s 188 but also, we think, by the very important consideration that an appeal against an acquittal is exceptional in criminal jurisprudence . 66 The above provisions are to be contrasted with the provisions of s196. In appeals and references to a Full Bench in respect of criminal proceedings taken before a judicial member of the Commission, the provisions of the Criminal Appeal Act 1912 are to apply. In Capral Aluminium Ltd v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 99 IR 229 at [17] the Full Bench determined that an appeal brought under s 196 of the Industrial Relations Act, picking up s 5AA of the Criminal Appeal Act, was an appeal as of right and leave was not required. The appeal, although by way of re-hearing, was not a hearing de novo. 67 Since these provisions were considered by the Full Bench in Drake Personnel, the Occupational Health and Safety Act 2000 has been introduced and s 197 has been amended. Under the Occupational Health and Safety Act 2000, s 105(3) deals with appeals from the Local Court and provides: 105 (3) [ Appeal from Local Court] The provisions of the Industrial Relations Act 1996, and of the regulations under that Act, relating to appeals from a Local Court to the Industrial Relations Commission in Court Session in connection with offences against that Act apply to proceedings before a Local Court for offences against this Act or the regulations. Note: Section 197 of the Industrial Relations Act 1996 deals with appeals against convictions or penalties in connection with offences against that Act. Section 197A of the Industrial Relations Act 1996 provides a right of appeal to the Full Bench of the Industrial Relations Commission in Court Session against a decision of a member of the Commission or a Local Court to acquit a person of an offence against this Act or the Regulations. 68 The provisions of s 105(3) are in a similar form to the provisions of s 47(4) of the 1983 Act at the time when Drake Personnel was decided but there are important differences. Under the 2000 Act, the words "... in connection with offences against that Act ... " were inserted and the reference to s 197 was omitted. The 2000 Act then included the statutory Note drawing attention to s 197 of the Industrial Relations Act and s 197A. 69 The learned authors of "Statutory Interpretation in Australia" (D C Pearce, R S Geddes, Butterworths, 6th ed) at paragraph 4.49 deal with the caution that should attend the use of such notes as an aid to construction. After citing authority against the use of marginal notes, headnotes and other notes attention was drawn to another line of authority including judgments of Street J, especially in Joyce v Patton (1941) 58 WN(NSW) 88 including an approach from English authority "that the marginal note, while forming a part of the section, was of some assistance as it showed the drift of the section". In R v Schildkamp [1971] AC 1 Lords Reid and Upjohn, while expressing the view that a marginal or side note would rarely be of use in construing legislation, went on to state that such notes could not be completely rejected with Lord Reid in particular pointing out that the whole of the Act was the product of the legislature and therefore the whole of the Act was to be looked at should there be any doubt as to its meaning. The learned authors then state the following: The fullest discussion of the issue is to be found in the judgment on Street CJ in the Ombudsman v Moroney [1983] 1 NSWLR 317. (Moffitt P expressly agreed with his Honour's analysis). Street CJ observed that notes appear in the text of the Bill that is before the Parliament and are presumably taken notice of by parliamentarians. He indicated that it was likely to cause surprise to members and to the public at large if they were told that there was 'an arbitary and inflexible rule precluding any reference to marginal notes as an aid to construction'. He acknowledged that the cases in which a note might be of significance in resolving an ambiguity in a section would be rare but he claimed this was not the basis for denying the right to refer to notes in all cases. Street CJ did, however, qualify his approach by indicating that it was only a note that was part of the Bill approved by the Parliament that might be referred to. He said that this may require the authentication of a note that appears in the Government Printer's version of the legislation. 70 What is to be made of these alterations to what had previously applied under s 47(4) of the 1983 Occupational Health and Safety Act?

The significance of removing the reference to s 197 suggests that a broader approach was being contemplated except that s 197 appears to be the only section relating to appeals from a Local Court in connection with offences against the Industrial Relations Act. The statutory Note, referring to ss 197 and 197A, suggests that the provisions of both sections are relevant to a s 105(3) appeal yet s 197A deals with occupational health and safety offences and appeals against acquittal and does not refer to offences under the Industrial Relations Act. Importantly, s 197A is described in the statutory Note as providing a "right of appeal" to the Full Bench of the Industrial Relations Court. The language of s 197A(3), referring to an appeal lying to the Full Bench, suggests a right of appeal is conferred but the argument returns to the relevance of s 188 and whether s 188 is avoided by the terms of the later enacted s 197A. The differences between s 105(3) and s 47(4) and the statutory Note may show the "drift" of the legislation as not requiring leave but it is an uncertain indicator. Unfortunately, these matters tend to add confusion to the task of construction emphasising the need for corrective legislative action as raised by the Full Court in South Pacific Seeds Pty Ltd. 71 The legislature amended s 47 of the Occupational Health and Safety Act 1983 on a number of occasions. In 1991 sub-section 4 was added to s 47 of the Occupational Health and Safety Act 1983. At that time the provision inserted was in the following terms: The provisions of the Industrial Relations Act 1991, and of the regulations made under that Act, relating to appeals from, and the stating of a case by, a Local Court to the Industrial Court applied to proceedings before a Local Court for offences against this Act or the regulations.

In 1996, s 47 was amended to omit reference to the "Industrial Court" and to insert instead a reference " Industrial Relations Commission in Court Session " and the reference to " the Industrial Relations Act 1991" was omitted and inserted in its stead was a reference to s 197 of the Industrial Relations Act 1996." In 1998, s 47(4) was further amended by omitting the words "and the stating of a case by". This was the relevant provision at the time that Drake Personnel was decided. Reference to the repealed statute indicates that the reference to s 197 remained in s 47(4) of the Occupational Health and Safety Act 1983 until its repeal. 72 Operative from July 2003, by Act 121 of 2001, s 197 of the Industrial Relations Act was amended so that sub-section 2 now provides as follows: The provisions of the Crimes (Appeal and Review) Act 2001 that relate to: (a) appeals from the Local Court to the District Court or Supreme Court, and (b) the decision of the District Court or Supreme Court on any such appeal, and (c) to the carrying out of enforcement of any decision, (including those provisions as applied by s 64 of the Local Courts Act 1982) apply, subject to the regulations under this Act, to any appeal referred to in sub-section (1).

It will be seen that this amendment removed the reference previously made to the Justices Act following the repeal of that Act and a number of reforms that had taken place in relation to legislation governing Local Courts. 73 For some little time after the amendment to s 197 introducing the reference to the Crimes (Appeal and Review) Act, there has been agitation as to whether the amendment brought about any changes to appeals in occupational health and safety matters to this Court from the Local Court. In T & M Industries (Aust) Pty Ltd and anor v Inspector Sequeira [2006] NSWIRComm 25, a Full Bench of the Industrial Court dealt with a submission that, following the amendment to s 197(2) of the Industrial Relations Act, there was no binding determination of whether leave was required for that appeal from the Local Court. The Full Bench said that an earlier Full Bench in WorkCover Authority of New South Wales (Inspector Hannah) v Keough's Plant Hire Pty Ltd [2005] NSWIRComm 118 at [11] had noted that the amendment raised for consideration whether the new provision displaced the judgment of the Full Bench in Drake Personnel and raised the issue of whether the appeal was one of right brought under s 23 of the Crimes (Appeal and Review) Act or an appeal as of right under s 56 of that Act. That appeal involved a prosecutor's appeal from a sentence imposed by the Local Court for a contravention of the Occupational Health and Safety Act but the Full Bench, having determined to grant leave, held that it was not necessary to decide the issue. It was also noted that a similar argument had been raised in Scevola v Inspector Sealey (2005) 142 IR 233 but that matter was decided under amended provisions of the Justice Act, the issue being whether the appeal involved a hearing de novo and not requiring leave. The Full Bench in that case rejected the argument because it held that there had been no notice given seeking a re-consideration of Drake Personnel and further, because the reasoning in Drake Personnel concerning the Justice Act provisions appeared equally applicable to the amended provision. The argument in Scevola, however, did not involve any consideration of the amendments brought about by the Crimes (Appeal and Review) Act. Having considered these matters the Full Industrial Court in T & M Industries decided that, as leave would be granted in any event, it was unnecessary to decide the issue arising from the amendments introducing provisions of the Crimes (Appeal Review) Act. 74 As earlier indicated, more recently the issue has been re-visited by a Full Court in South Pacific Seeds Pty Ltd. Again, in that case, the Full Court did not find it necessary to determine the issue as to the effect of the Crimes (Appeal and Review) Act but felt moved to make some general observations on the matter, noting the question of whether or not the appellant must seek and be granted leave to appeal was an issue involving the usual principles of statutory construction. 75 After setting out the provisions of s 105 of the Occupational Health and Safety Act the Full Court in South Pacific Seeds Pty Ltd noted that in the Industrial Relations Act Pt 7 Appeals in Div 4 did not mention occupational health and safety appeals other than in s 197A. It was said that s 188 provided for an appeal to a Full Bench only with leave and on its face the section did not exclude appeals in Occupational Health and Safety Act prosecutions. Section 197 dealt with various other Local Court appeals and provisions of the Crimes (Appeal and Review) Act that applied to appeals from the Local Court to the Supreme and District courts were to apply to appeals in this Court. Section 197A provided expressly for a prosecutorial appeal against acquittal in occupational health and safety prosecutions and only in that section reference was made to s 191 dealing with the nature of the appeal. Such a reference was not made in s 197. 76 The Full Bench of the Court in South Pacific Seeds Pty Ltd then looked at the provisions of the Crimes (Appeal and Review) Act and the difficulties of construction that were thrown up by such references in s 197. The content of that discussion is highly significant and, therefore, is set out as follows: 61 Section 23, appearing in Part 3 Appeals from Local Court to District Court of the Crimes (Local Courts Appeal and Review) Act, provides for appeals to the District Court, in various circumstances, including appeals against sentence in proceedings for summary offences prosecuted by or on behalf of the Director of Public Prosecutions. Section 26 provides that such appeals against sentence are by way of rehearing. Section 197(1)(b) of the Industrial Relations Act, provides for an appeal on penalty. What rights, if any, s 23 of the Crimes (Local Courts Appeal and Review) Act grants prosecutors such as the appellant in this case (an Inspector of the WorkCover Authority) is a question which appears to arise, particularly given the definition of 'prosecutor' appearing in s 3 of that Act. The intended interaction between the various provisions of the Crimes (Local Court Appeal and Review) Act and the Industrial Relations Act, are somewhat unclear. 62 Sections 23 and 26 of the Crimes (Local Court Appeal and Review) Act provide: 23 Appeals as of right (1) The Director of Public Prosecutions may appeal to the District Court against a sentence imposed on a person by a Local Court in any of the following proceedings: (a) proceedings for any indictable offence that has been dealt with summarily, (b) proceedings for any prescribed summary offence (within the meaning of the Director of Public Prosecutions Act 1986), (c) proceedings for any summary offence that has been prosecuted by or on behalf of the Director of Public Prosecutions. (2) The prosecutor may appeal to the District Court against: (a) any order for costs made by a Magistrate against the prosecutor in respect of committal proceedings taken by the prosecutor, or (b) any order for costs made by a Local Court against the prosecutor in respect of summary proceedings taken by the prosecutor. (3) An appeal must be made within 28 days after the relevant sentence is imposed. (4) Despite subsection (3), an appeal may be lodged more than 28 days after the relevant sentence is imposed if: (a) the sentence has been reduced on the defendant's undertaking to assist law enforcement authorities (as referred to in section 23 of the Crimes (Sentencing Procedure) Act 1999), and (b) the defendant has failed, whether wholly or partly, to fulfil the undertaking. 26 Appeals against sentence to be by way of rehearing of evidence (1) An appeal against sentence is to be by way of a rehearing of the evidence given in the original Local Court proceedings, although fresh evidence may be given in the appeal proceedings, but only by leave of the District Court. (2) Leave to give fresh evidence may be granted to the Director of Public Prosecutions only in exceptional circumstances. Prosecutor , in relation to proceedings from which an appeal or application for leave to appeal is made, means the person responsible for the conduct of the prosecution in those proceedings. 63 Section 56, appearing in Part 5 Appeals from Local Court to Supreme Court of the Crimes (Local Courts Appeal and Review) Act, provides for appeals as of right by prosecutors to the Supreme Court in summary proceedings on a ground that involves a question of law alone. Section 57 provides, amongst other things, for an appeal to the Supreme Court against an interlocutory decision in a summary matter, with leave. Given the definition of 'prosecutor' in s 3 of the Act, these appeal rights appear to apply to all prosecutors. Sections 56 and 57 provide:

56 Appeals as of right (1) The prosecutor may appeal to the Supreme Court against: (a) a sentence imposed by a Local Court in any summary proceedings, or (b) an order made by a Local Court that stays any summary proceedings for the prosecution of an offence, or (c) an order made by a Local Court dismissing a matter the subject of any summary proceedings, or (d) an order for costs made by a Magistrate against the prosecutor in any committal proceedings, or (e) an order for costs made by a Local Court against the prosecutor in any summary proceedings, other than an order or sentence with respect to an environmental offence, but only on a ground that involves a question of law alone. (2) An appeal must be made within such period after the date of the sentence or order as may be prescribed by rules of court.

57 Appeals requiring leave (1) The prosecutor may appeal to the Supreme Court against: (a) a sentence imposed by a Local Court with respect to an environmental offence, or (b) an order that has been made by a Magistrate in relation to a person in any committal proceedings, or (c) an interlocutory order that has been made by a Local Court in relation to a person in summary proceedings, but only on a ground that involves a question of law alone, and only by leave of the Supreme Court. (2) An application for leave to appeal must be made within such period after the date of the sentence or order as may be prescribed by rules of court. 64 It is clear from the various statutory schemes that the question of the prosecution of offences under the Occupational Health and Safety Act is dealt with in that legislation. Section 105 of that Act provides for the prosecutions to be brought either before the Local Court, or the Industrial Court. Section 105(3) provides that the provisions of the Industrial Relations Act in relation to appeals from a Local Court, are to apply to appeals brought in prosecutions of offences under the Occupational Health and Safety Act. 65 It is in this way that the provisions of s 197 of the Industrial Relations Act are made relevant to appeals such as this. The section itself does not refer to such appeals, as s197A does. Section 197 imports the provisions of the Crimes (Local Courts Appeal and Review) Act, which govern appeals from the Local Court to the District and Supreme Courts. Those provisions deal with the question of whether or not leave to appeal is required, in various ways different to the provisions made in s 188 of the Industrial Relations Act. 66 Section 56 of the Crimes (Local Courts Appeal and Review) Act creates appeals as of right to the Supreme Court on questions of law, in relation to, relevantly, sentence, amongst other matters (s 56(1)(a)). The appellant here argues that it follows that similarly, a prosecutor in an appeal such as this, has such a right of appeal to this Court, from the sentence imposed by the Local Court. Section 57 deals with the types of prosecutorial appeals to the Supreme Court in which leave is required. 67 Other prosecutorial appeals from the Local Court to the District Court are granted as of right, by s 23 of the Crimes (Local Courts Appeal and Review) Act, including in relation to sentence in cases prosecuted by on or behalf of the Director of Public Prosecutions. Section 26 provides that appeals against sentence are by way of rehearing, but that leave is required to adduce fresh evidence. Again the appellant argues that it has such a right of appeal here. Such a right of appeal is again, quite different to that contemplated by s 191 of the Industrial Relations Act, which is not referred to in s 197, but is expressly referred to in s 197A. 68 The question of whether leave is required, therefore, depends upon the interaction between ss 197 and 188 of the Industrial Relations Act and the provisions of the Crimes (Local Courts Appeal and Review) Act, having regard to the provision made in s 105 of the Occupational Health and Safety Act. 69 The submissions of Counsel clearly raised for consideration the effect of s 188. Section 188 of the Industrial Relations Act on its face only permits appeals to the Full Bench of this Court with its leave. That provision appears in Part 7 of the Act, which also includes ss 197 and 197A. The provisions made in s 197, by way of incorporation of ss 23 and 56 of the Crimes (Local Courts Appeal and Review) Act, on one view, directly contradict s 188. Section 188 requires leave to be granted. Sections 23 and 56 give certain rights of appeal, as of right. It was the appellant's case that there appears to be an ambiguity on the face of Part 7 Appeals, of Division 4 of the Industrial Relations Act, properly to be resolved on the basis that s 188 of the Industrial Relations Act has no application to appeals such as this, given the later enactment of the Crimes (Local Courts Appeal and Review) Act and s 197(2) of the Industrial Relations Act . 70 If the appellant's construction of the legislation were correct, it would appear to have the curious result that, on appeal from the Local Court, a Full Bench of this Court would be rehearing a prosecution which the prosecutor had elected to bring before the Local Court, thereby significantly limiting the penalty available to be imposed, having regard to that Court's jurisdictional limits imposed by s 105 of the Occupational Health and Safety Act. Various ramifications not addressed by the parties would seem to follow. They include procedural questions, such as, for example, the question of whether fresh evidence on appeal could only be led when 'special grounds exist or if the evidence concerns matters occurring after the decision appealed against.' (s 191 of Industrial Relations Act), or 'in exceptional circumstances' (s 26 of Crimes (Local Courts Appeal and Review) Act. 71 The time fixed for filing an appeal would require consideration. Section 189 of the Industrial Relations Act requires appeals to be brought within 21 days, or within such further time as to Court allows. Section 23 of the Crimes (Local Courts Appeal and Review) Act permits appeals to be brought to the District Court within 28 days. Section 56 permits appeals to the Supreme Court within the time prescribed by the Rules of the Court. 72 The question of what penalty would apply to a rehearing before this Court would also possibly arise, given the provision made in s 105 of the Occupational Health ands Safety Act, that limits the penalty imposed by the Local Court, rather than the penalty available in a prosecution before this Court. 73 These and other questions of construction and their consequences were not substantively addressed by the parties at the hearing; indeed, neither Drake Personnel nor Scevola were discussed. Despite its approach to the construction proposed by the appellant, the respondent did not seek to address these questions of construction in any detailed way and argued that they ultimately did not require consideration in this case. For its part, in oral submissions, the appellant accepted that those questions did not require determination in this case. Such questions may, however, have important ramifications for the hearing of other cases brought on appeal from the Local Court by a prosecutor, particularly given that it is not only Inspectors of the WorkCover Authority, who might prosecute cases such as this. 74 Given the view we have reached, as earlier noted, on the errors of law and inadequacy of the penalty imposed at first instance, we have concluded that it is unnecessary that we deal with the proper construction of these complex statutory provisions in this case. Nevertheless, given the difficulty and importance of the questions raised, we anticipate that they will require careful consideration and evaluation when the appropriate case arises (unless the issues are resolved by parliamentary amendment). 77 It should be recorded at this point that in Scevola it was argued that the appeal arose under the Justices Act rather than under the then entitled Crimes (Local Courts Appeal and Review) Act 2001. That position was accepted. In addition, it was argued that significant differences had been brought about by amendments to the Justices Act having effect from March 1999, whereby the nature of conviction appeals to the District Court under s 132 and 133 would no longer be by way of a hearing de novo (as had been the longstanding practice) and were now to be by way of re-hearing on the transcript of evidence before the Local Court unless a direction was given by the District Court for persons to attend to give evidence in person. A later amendment, introducing s 131A of the Justices Act, dealt with appeals to the District Court against sentence and commenced in September 1999. Appeals against the severity of sentence were to be by way of re-hearing of any evidence before the Magistrate and that new evidence or additional evidence or evidence in substitution for the evidence given in relation to the sentence appealed could be given on appeal. It was argued for Mr Scevola that the doing away with de novo appeals was a significant statutory alteration that at least led to the decision of the Full Bench in Drake Personnel being distinguishable or alternatively, arguing that the decision should be re-considered. For reasons already referred to, that application was rejected. 78 To complete the history the then entitled Crimes (Local Courts Appeal and Review Bill (renamed in 2006) together with the Criminal Procedure Amendment (Justice and Local Courts) Bill and the Justice Legislation Repeal and Amendment Bill came before Parliament in December 2001. In the second reading speech the Attorney-General, Mr Debus, stated that the procedures in the Local Court were in need of reform referring to the Justices Act as being complex, disjointed, procedure oriented and difficult to interpret. The three Bills before the House were to address this situation with the Justices Act being repealed. In this context the Attorney General stated: ... The new package sets out clear, streamlined procedures for commencing and hearing cases in the Local Court. The language is simple and the requirements clear, consistent and readily understandable. Access to justice and respect for the law are partly dependent upon an understanding of it. Members of the community who are presumed to know the law are entitled to have it expressed in a form they can understand. This new package removes the antiquated technical detail from the legislation. It provides a framework for court operations and allows for rules to be made to cover technical detail. The rules can then be efficiently modified to accommodate changes in technology and improved work practices.

... A Local Court specialist was seconded to identify the inefficiencies in the current procedures and design an effective legislative structure for the simplified processes. The redesign project is now complete and the exposure drafts were tabled on 20 September. The revised legislative structure will simplify the Local Court processes from start to finish. The confusing array of forms, terminology, actions, issuing procedures, service provisions and technical rules are to be replaced by clear, simple procedures. The reform package has two main streams: one for criminal matters and the other for non-criminal statutory applications.

The package consists of three bills, being the Justices Legislation Repeal and Amendment Bill, the Criminal Procedure Amendment (Justices and Local Courts) Bill and the Crimes (Local Courts Appeal and Review) Bill. The Justices Legislation Repeal and Amendment Bill repeals the Justices Act 1902 and sets out the new structure for the Local Court. The amendments to the Local Courts Act 1982 define the functions of magistrates, registrars and deputy registrars ...

The third bill in the new package is the Crimes (Local Courts Appeal and Review) Bill. This bill consolidates and simplifies the criminal appeal and review provisions of the Justices Act 1902. The appeal provisions were substantially amended by the Justices Legislation Amendment (Appeals) Act 1998 and were not as antiquated as other sections. The new bill consolidates the existing law. The bill has provided an opportunity to clarify some matters that have arisen since the 1998 Act and to arrange the sections in a way that makes the relevant law easier to find and understand. The bill makes it clear, for example, that the Land and Environment Court is to be the appeal court for all summary environmental offences. Under the previous provisions it was arguable that parties lodge appeals in either the Land and Environment Court or the Supreme Court. Clearly, it is desirable to have consistency in the appeal process. That is best achieved by having the same kinds of offences dealt with by the same appellate court. ... This package of legislation makes substantial and long-awaited changes to the operation of local courts of New South Wales. The Government is committed to improving the efficiency of the justice system. This package makes it simpler and quicker to start and run a case in the Local Court. It makes it simpler and quicker to find and understand the law and rules that are used in the court. Local courts play a vital role in the New South Wales legal system. They handle more than 98 per cent of all criminal cases. For the vast majority of people having contact with the justice system, their experience will begin and end in a local court. The reform package for local courts will have an impact on many people and organisations in the community. The reforms are comprehensive, covering the whole field of the court's operations ... The legal stakeholder submissions supported the structure and contents of the new package of legislation. The Bar Association commented that review and rationalisation of the Justices Act is long overdue. The Legal Aid Commission was satisfied that the draft legislation generally simplifies and consolidates the legislation. The Public Defender noted that the inclusion of the procedural provisions about summary prosecutions in the Criminal Procedure Act is a very worthwhile reform, and that it was a worthwhile exercise to modernise and simplify the provisions regarding appeals ... This legislative package delivers a complete overhaul of local court operations and summary procedure that simplifies the processes of the court and delivers substantial benefits. The modern, clear language and logical presentation makes the law relating to summary procedure easier to find and easier to understand for the judiciary, the lawyers, the police, businesspeople, public officers and, most importantly, for the hundreds of thousands of members of the community who use the local courts each year ... 79 As a result of introducing this package of legislation and in particular the then entitled Crimes (Local Courts Appeal and Review) Act, s 197 of the Industrial Relations Act was amended so that sub-section (2) provided that the provisions of the Crimes (Local Courts Appeal and Review) Act relating to appeals from a Local Court to the District Court or Supreme Court and the decisions of the District Court or the Supreme Court on any such appeal and the carrying out of any enforcement of any such decisions applied subject to regulations under the Industrial Relations Act. Thus these new provisions applied to appeals under s 197(1). 80 The Attorney General's second reading speech did not make specific mention of how appeals were to be dealt with that involved occupational health and safety prosecutions brought in the Local Court and appealed to the Commission in Court Session, although consequential amendments specifically made the new provisions apply in s 197 appeals. Having regard to the tenor of the second reading speech and the consolidation of amendments made in 1999 to the Justices Act, it is difficult to treat the Crimes (Appeal and Review) Act as merely replacing the Justices Act that had been repealed. Apart from referring to the overall reform package and simplifying appeal provisions, the second reading speech spoke of the desirability of having consistency in the appeal process and how that was best achieved by having the same kind of offences dealt with by the appellate courts. In the Commission in Court Session (and now the Industrial Court), that objective would be achieved by having appeals from the Local Court in occupational health and safety matters dealt with in the same way as the same type of appeal from a Local Court would be dealt with in the District Court or in the Supreme Court. 81 It is also to be remembered that, at the time Drake Personnel was decided, s 197 simply made reference to the provisions of the Justices Act relating to appeals to the District Court and the stating of cases by Justices for the opinion of the Supreme Court as applying to appeals from the Local Court to the Commission in Court Session. Following the introduction of the Court (Appeal and Review) Act and the amendment to s 197(2) to specify the provisions of that Act in relation to appeals from a Local Court to the District Court or the Supreme Court would apply to appeals under s 197(1), the legislation appears to be a more focused specification of what should occur in the Commission in Court Session (and now the Industrial Court) on such appeals. That construction attains the objective of consistency of appeals. On this approach an appeal against conviction would be an appeal as of right (as in the District Court) but would not be a de novo hearing and would be heard primarily on the Local Court transcript. The same would apply to sentence appeals and leave would only be required where a plea of guilty had been made in the Local Court but an appeal against conviction was sought in the District Court. Similarly, appeals against conviction and sentence where the only ground involved was a question of law alone would be appeals as of right to the Supreme Court. An appeal against conviction or sentence involving a question of fact or a question of mixed law and fact could only be by leave as with appeals to the Supreme Court from the Local Court in such circumstances 82 It also seems that, in relation to an important consideration, much of the force of the reasoning in Drake Personnel dissipated once the 1999 amendments were made doing away with de novo appeals from Local Court convictions and sentences. Another significant reason relied upon in Drake Personnel was that s 197 did not disclose an intention to exclude ss 188 and 191 whereas s 196 did make express contrary provisions, including other provisions of Pt 7. It might be added that s 197A expressly excluded the operation of ss 196 and 197. The Attorney General's second reading speech, however, does suggest that uniformity in appeals from Local Courts was an important objective for the Crimes (Appeal and Review) Act. 83 During the argument in Drake Personnel, it does not appear that particular attention was paid by the parties to the provisions of s 188(1) namely, that an appeal to a Full Bench of the Commission "under this Part" may be made only with the leave of the Full Bench. In the present case, in no relevant sense can it be said that the appeal arises under Pt 7 of Ch 4 of the Industrial Relations Act. The substantive right of appeal arises from the operation of s 105(3) of the Occupational Health and Safety Act 2000 (an approach accepted by the Full Bench in South Pacific Seeds Pty Ltd) and it in turn, for the purpose of such an appeal, essentially picks up the provisions of s 197. Section 105(3) does not, in terms, make Pt 7, Ch 4 of the Industrial Relations Act applicable. This is a point of some significance. It must be accepted, however, that s 105(3) expressly picks up the provisions of the Industrial Relations Act relating to appeals from Local Courts concerning "offences" against the Industrial Relations Act. The question then arises whether the Parliament intended other provisions of the Industrial Relations Act to apply, such as s 188. 84 In relation to the approach to construction, there is no difference in the applicable principles to those dealt with by the Full Bench in Drake Personnel. However, there is a further line of authority that is relevant. In Cole v The Director General of Youth and Community Services and anor (1987) 7 NSWLR 541 Kirby P in dealing with appeals under the Government and Related Employees Appeal Tribunal Act 1980, in an argument concerning the construction of the Act and the nature of the appeal available, said at 543(F): Thirdly, and most importantly, the provision for appeals is a beneficial one, conferring on employees of the Public Service entitlements to the review of decisions which were not enjoyed by Crown servants by the prerogative or at common law and which are not generally enjoyed, at least to the same extent, by employees in the private sector: see Suttling v Director General of Education (1985) 3 NSWLR 427. The entitlement to appeal conferred by section 20 is a beneficial entitlement of employment. It should not be excluded or confined by the expectations provided in s 21, except to the extent that those exceptions are clear. Any doubt about the scope of section 21(1)(e) should be resolved in favour of the enhancement of the right of appeal and against its diminution by the operating of the exclusion. 85 In The Director General of the Department of Corrective Services v Mitchelson (1992) 26 NSWLR 648, Kirby P, again dealing with the appeal provisions under the Government and Related Employees Appeals Tribunal Act, stated at 654(F):

If two interpretations are equally available, one of which enlarges the beneficial right of appeal and the other of which narrows that right, it is legitimate for the Court to favour the former rather than the latter. The former is more generally harmonious with the purpose of Parliament and the scheme of legislation designed to confer rights to appeal: see Cole v Director-General of Department of Youth and Community Services (1986) 7 NSWLR 541 at 543,545,549.

These statements are consistent with the observation made by his Honour in Camilleri's Stock Feeds that a right of appeal ought to be interpreted in an "appropriately ample manner". 86 In "Statutory Interpretation in Australia" (6th ed) the learned authors deal with the interpretation of remedial, penal and other provisions and state at paragraph 9.2 as follows: A remedial or beneficial provision is one that gives some benefit to a person and thereby remedies some injustice. The most commonly cited examples are social welfare and pension legislation, workers' compensation Acts, safety legislation and so on. However, any legislation that is taken to make a change in existing law or adopts new provisions that are advantageous to an individual or to the public is likely to be regarded as falling within the description of remedial or beneficial ... The orthodox view of the approach to be adopted in relation to the interpretation of this type of legislation is provided by Isaacs J (dissenting) in Bull v Attorney-General (NSW) (1913) 17 CLR 370. The case concerned the interpretation of a section of the Crown Lands Act 1985 validating certain transactions. It was held by the majority of the court not to validate all transactions under the Crown Lands legislation but only those that independently of the operation of the legislation were defective. Isaacs J took the view that the section was intended to validate all transactions concerning Crown lands. He said (at 384): In the first place, this is a remedial Act and therefore, if any ambiguity existed, like all such Acts should be construed beneficially. ... This means, of course, not that the true signification of the provisions should be strained or exceeded, but that it should be construed so as to give the fullest relief which the fair meaning of its language will allow. 87 The learned authors go on to point out that the reference to ambiguity in the extract did not mean that the approach to beneficial legislation applied only where there was an ambiguity, but it was an approach to be generally applied to remedial provisions. Applying that approach to the present position would result in a full right of appeal being available in the circumstances set down in the Crimes (Appeal and Review) Act. The concern of the Full Court in Drake Personnel that a Full Bench would be required to sit as a trial Court is now effectively overcome by the provisions that require the appeal to be a new hearing but not a hearing de novo and being essentially conducted on the transcript of the proceedings below. 88 Before moving to the complex and difficult task of bringing these numerous threads together in attempting to establish the proper construction of s 197 in appeals from the Local Court to the Full Bench of the Court, it is appropriate to look at the purpose of requiring leave to appeal in any legislative regime. It has frequently been said that leave provisions are designed to operate as a filter to restrict access to the appeal procedure and thus promote efficiency in the courts. Further, it has been held that a failure to seek or obtain leave under any statutory provision will lead to a purported appeal being dismissed as incompetent (see Render v The Honourable Gleeson [1999] NSWCA 154) 89 One of the most complete statements on the purpose of leave provisions and the perceptions that can arise in relation to requiring leave to appeal appears in the joint judgment of Deane and Gaudron JJ in Coulter v The Queen (1987-1988) 164 CLR 350 at 359-360: The requirement that leave or special leave be obtained before an appeal will lie is a necessary control device in certain areas of the administration of justice (e.g. appeals to a second appellate court) in this country. As a filter of the work which comes before some appellate courts, it promotes the availability, the speed and the efficiency of justice in those appeals which are, in all the circumstances, appropriate to proceed to a full hearing before the particular court. It also represents a constraint upon the overall costs of litigation by protecting parties, particularly respondents, from the costs of a full hearing of appeals which should not properly be entertained by the relevant court either because they are hopeless or, in the case of a civil appeal to a second appellate court, because they do not possess special features which outweigh the prima facie validity of the ordinary perception that the availability of cumulative appellate processes can, of itself, constitute a source of injustice. In these circumstances, it is neither surprising nor regrettable that the application for leave or special leave to appeal has, in this country, become a generally accepted and standard part of ordinary curial procedures. In a case such as the present where the application for leave to appeal was from a criminal conviction or information to a first court of appeal exercising general supervisory appellate jurisdiction, the requirement of leave effectively represents no more than a means of efficiently disposing of prospective appeals which would obviously fail since it is difficult to envisage circumstances where a competent application for leave to appeal to such a court could properly be refused in a case where the conviction should be set aside if leave were to be granted and the appeal were to proceed to a full hearing. On the other hand, the application for leave or special leave to appeal commonly possesses a number of special features which set it apart from at least some other judicial proceedings. First, it involves the exercise of an extremely wide judicial discretion. Secondly, and notwithstanding that refusal of the application ordinarily involves the final determination of the particular litigation, that wide discretion can commonly be exercised without the provision of detailed or, sometimes, any reasons. Thirdly, if the application is to the court which will hear the appeal if leave is granted, there is a risk that the ordinary appearance of judicial disinterest in the outcome of proceedings may be, albeit wrongly, seen as qualified in that the workload of what will ordinarily be an already overburdened bench will vary according to the number of successful applications. Fourthly, it is inevitable that a refusal of leave will be sometimes seen by an unsuccessful applicant as a decision to close the doors of the court in his face rather than as an examination and reasoned rejection of his claim that he has been the victim of a miscarriage of justice in the court or courts below. The effect of these special features of judicial proceedings dealing with applications for leave to appeal is not to lessen the importance of the ordinary safeguards of the administration of justice. To the contrary, the effect is to emphasise the importantance that they be observed. Among those safeguards is the ordinary rule that judicial proceedings should take place in open court: see, e.g. Scott v Scott (17); Dickason v Dickason (18); McPherson v McPherson (19); Rex v Hamilton (20); Russell v Russell (21); Attorney-General v Leveller Magazine Ltd (22). 90 It might also be appropriate to note in this context that an appeal is a substantive "right" and not a matter of procedure (Esber v The Commonwealth [1992] 174 CLR 430) while an application for leave to appeal may properly be regarded as a matter of procedure. There is no doubt that where an appeal is provided by legislation it is a significant right. Further, s 183(3) permits leave to be dealt with separately and without conducting a hearing into the merits of the appeal. 91 What, then, is to be made of this maze of legislative provisions and their history and the various statements of principle that might assist the exercise of statutory construction involved in these proceedings? There is little doubt that the judgment in Drake Personnel involved the Full Bench in a very difficult exercise of statutory construction, where there were two strongly arguable propositions in contest. Some of the provisions of Pt 7 Ch 4 of the Industrial Relations Act indicated that the legislature had identified when certain provisions were not to apply that otherwise might apply under the Part (ss 196 and 197A). That fact is a less sure a guide when the appeal provisions appear to be amended in a piecemeal fashion at different times. Difficulties are caused when the legislature choses to incorporate provisions from other legislation and nowhere is that problem exhibited more clearly than in relation to Pt 7 Ch 4. In a summary way it might be said that Pt 7 Ch 4 lays down a regime for appeals and references for industrial and related matters arising under that Act while the Crimes (Appeal and Review) Act applies to appeals from the Local Court and the Criminal Appeal Act applies to appeals and references to a Full Bench of the Court in respect of criminal proceedings taken before a judicial member of the Commission. Approached in that way there is some symmetry to these various provisions but it must be readily conceded that, as indicated in Drake Personnel, there are aspects of Pt 7 that point in different directions. 92 It was undoubtedly of significance to the Full Bench in Drake Personnel that an appeal as of right under the Justices Act would result in a Full Bench entertaining a de novo appeal and effectively require it to conduct a second full trial. That position was altered by later amendments to the Justices Act and continued in the Crimes (Appeal and Review) Act. Whereas the Full Bench in Drake Personnel could not find any guidance in the appeal provision (s 47(4) of the Occupational Health and Safety Act 1983) indicating a statutory intention to bring about consistency of appeal provisions, the three pieces of legislation introduced in 2001, including the Crimes (Appeal and Review) Act demonstrated at least a legislative intention that there should be consistency in appeal provisions as well as reforms to bring clarity to the operation of Local Courts and their procedures, including appeal procedures. These are two very significant differences in the cases now faced under Pt 7 and the legislative framework faced by the Full Bench when Drake Personnel was decided. 93 Because of the difficulty in finding any uniform or consistent approach in the provisions and the absence of any crystal clear statement by Parliament in the legislative provisions themselves as to what approach is to be adopted, the Court is then left to look at broad issues of principle as to how these provisions are to be construed. In R v Cain (1985) 1 AC 46, in another context, there was a prohibition on an existing statutory right of appeal and that prohibition was strictly construed. Lord Scarman, speaking for the House of Lords stated: The right of appeal against sentence is of fundamental importance to the subject: it is his protection against sentences not authorised by law as well as against the sentence which is too severe or is inappropriate. It is a reasonable inference not to be gainsaid save by specific statutory provision that where parliament prohibits an appeal against sentence it is dealing with the discretionary power of the court to make the order and not addressing its prohibition to orders defective in law. 94 In the present case it is to be acknowledged that, under the Crimes (Appeal and Review) Act, there are certain appeals as of right to the District Court and the Supreme Court against convictions and sentences. Given that the Full Court would no longer be required to deal with appeals from the Local Court as de novo appeals, it would require very clear words for these rights of appeal available for all other convictions and sentences to be treated differently in this Court such that the right of appeal would be removed and would-be appellants left with the uncertainty of a leave to appeal provision with its attendant problems of perception, so clearly identified by the joint judgment in Coulter. If the answer to the present problem of construction is ultimately determined by reference to principle and policy then it must be said that there is no clear legislative intention to be found in these provisions to have appeals from the Local Court to this Court dealt with in a different way from other appeals from the Local Court and to take away rights of appeal. 95 The question is then to be asked: what is the role of the Crimes (Appeal and Review) Act in s 197 if it is not to have full force and effect in relation to appeals that are normally appeals of right from the Local Court to the District Court and to the Supreme Court? The usual answer to that question appears to be that, apart from the provisions of Pt 7 of the Industrial Relations Act, all the other procedural provisions apply. Consideration of the Crimes (Appeal and Review) Act show that the major provisions are directed to the type and nature of the appeal that may be taken. Part 2 deals with Local Court review of Local Court decisions, Pt 3 deals with appeals from the Local Court to the District Court and identifies appeals as of right and appeals requiring leave and how appeals are to be lodged and determined and the circumstances in which evidence may be given in person, where the District Court may sit to hear an appeal and certain limits of appeals, including the fact that the District Court Rules apply. Part 4 deals with appeals from the Local Court to the Land and Environment Court and are not directly relevant to the present exercise. Part 5 deals with appeals from the Local Court to the Supreme Court, identifying appeals as of right and those requiring leave, how those applications are to be determined and imposing certain limits on those appeals. Part 6 deals with provisions common to all appeals and deals with the effect of a defect in a notice of appeal or an application for leave to appeal, the stay of execution of sentence pending determination of an appeal, the extension of appeal proceedings to other convictions and sentences, a prohibition on appeals succeeding on narrow technical grounds, the unavailability of the original Magistrate where there is a remitter, limitations on withdrawal of an appeal and applications without leave, the confirmation or variation of conviction or sentence effective from an earlier date, the effect of good behaviour bonds on confirmation of sentence and limitation on costs awarded against the public prosecutor. Some of those provisions are different to provisions laid down by the Industrial Relations Act and others are similar. What is apparent from a recitation of these provisions is that it is an odd result that Parliament would be moved to amend s 197 with the intention of doing no more than imposing certain procedures on the Full Court of the Industrial Court when dealing with appeals from the Local Court but intending that the fundamental right of appeal be removed and made subject to an application for leave. 96 The preferable construction of s 197 of the Industrial Relations Act is that those appeals that are available as of right under the provisions of the Crimes (Appeal and Review) Act are to be treated in the same way when an appeal comes from the Local Court to a Full Court of the Industrial Court. In the present case that results in the appellants having a right of appeal and leave is not necessary. 97 A further matter of some significance to appellants under s 105(3) of the Occupational Health and Safety Act is the nature of the appeal. The Full Court in South Pacific Seeds Pty Ltd referred in passing to the fact that appeals under the Crimes (Appeal and Review) Act may be different in nature to appeals arising under Pt 7 Ch 4. Section 191 directs that the appeal is not to be by way of a new hearing but is to be determined on the evidence and material adduced in relation to the decision appealed against although by leave where there are special grounds (or later matters after the decision appealed against) further evidence may be received. A not dissimilar provision applies under the Crimes (Appeal and Review) Act although the provision requires the admission of fresh evidence where exceptional circumstances are demonstrated. Of more significance is the fact that s 191(3) specifies that the Full Bench cannot merely substitute its own decision in the matter appealed but is to follow the principles applying to appeals from discretionary decisions. The note to the section directs attention to the decision of the Full Industrial Relations Commission in Big W Discount Stores v Donato (1995) 58 IR 239 that basically concluded that error had to be demonstrated in order for an appeal to succeed. The nature of a conviction appeal under the Crimes (Appeal and Review) Act has been considered by McClellan CJ in CL in Gianoutsos v Glykis (2006) NSWCCA 137 where his Honour stated: [36] ... However, an appeal under s 18 of the Crimes (Local Courts and Review) Act 2001 (NSW) is not a hearing de novo. Rather, it is a re-hearing of a similar nature to a re-hearing under the former s 5AA of the Crimes Appeal Act 1912 (s 5AA was amended in 2000 so that it now applied to an appeal in the strict sense rather than by way of re-hearing). 98 His Honour accepted that, although s 18 of the Crimes (Appeal and Review) Act creates a right of appeal against conviction in the nature of a re-hearing, it is unnecessary for the appellant to establish an error on the part of the lower court before the District Court exercises its appellate jurisdiction. The relevance of this consideration is if leave is not necessary, there is a right of appeal and that appeal is more favourable to the appellant than if s 191 of the Industrial Relations Act applied. An occupational health and safety appeal from the Local Court to this Court that requires both leave and the demonstration of error is a very different and more onerous appeal than available to all others who wish to appeal a conviction and/or sentence imposed by the Local Court in criminal matters. If this was the intention of the legislature it needed to be expressed with some clarity rather than come about by a convoluted process of importing provisions from other Acts into the Industrial Relations Act but then making those very contrary provisions subject to the entirety of Pt 7 Ch 4. As recorded by the Full Court in South Pacific Seeds Pty Ltd (but left undecided), the better approach is that the later amendment to s 197 is inconsistent with the blanket application of ss 188 and 191 and the legislature is presumed to have intended to make the later provision applicable and to be given full force and effect. It might also be approached on the basis of the application of the maxim generalia specialibus non derogant namely, that where there is a conflict between general and specific provisions the specific provisions prevail. Here, the general provisions are ss 188 and 191 and the special provisions are those set out in s 197 picking up the operation of the Crimes (Appeal and Review) Act. 99 Because of the different statutory regimes applying it is not necessary to require leave to be granted to reconsider the decision of the Full Bench in Drake Personnel. The decision in Drake Personnel stands in relation to a different statutory regime to that which now exists in relation to s 105(3) appeals under the Occupational Health and Safety Act 2000. 100 It follows from the above discussion that in this appeal, leave to appeal was not necessary and the appellant was entitled to a re-hearing as of right. On that re-hearing the prosecutor established the elements of the offence and the defence arguments to the contrary have failed. As no challenge was made to the penalties imposed, those orders should be re-affirmed on appeal.

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

Crimes (Local Courts and Review) Act 2001(NSW)

[1999] NSWIRComm 453

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (40 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (24)

Cited By (2)