Van Rooy Machinery Pty Limited v WorkCover Authority of New South Wales

Occupational Health and Safey - Prosecution for offence - Plea of guilty - Appeal against conviction and fine - Failure to apply beneficial provisions of s 556A of the Crimes Act 1900 - First offence - Very good safety record - Failure to guard dangerous machine - Failure of long standing - Application for extension of time to appeal - Principles to apply in considering an out of time application - Need for leave to appeal - Approach in applying s 556A to occupational health and safety offences - Notice of Appeal filed 33 days late - Application to extend time to appeal refused - Appeal incompetent.

Crimes Act 1900 s 556A LEGISLATION CITED : Industrial Relations Act 1996 s 188 s189 s197 Industrial Relations Commission Rules 1996 r 136(1) Occupational Health and Safety Act 1983 s 18(2)(a) s 47(4) WorkCover Authority of New South Wales (Inspector Salmon) v Parkes Council (1996) 70 IR 298 LEP International Pty Ltd v Caine [2000] NSWIRComm 11 Schultz v Tamworth City Council (1995) 58 IR 221 WorkCover Authority of New South Wales (Inspector Robins) v Ecolab Pty Ltd (1999) 90 IR 413 CASES CITED : WorkCover Authority of New South Wales v Waugh (1995) 59 IR 89 Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'Ng) (1999) 90 IR 432 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'Ng) (1999) 90 IR 464 Wong v Melinda Group Pty Ltd (1998) 82 IR 118

HEARING DATES: 03/21/2000 EXTEMPORE JUDGMENT DATE : 03/21/2000

APPLICANT Mr G Thiele, Solicitor SOLICITORS Leo & Morrison Wollongong LEGAL REPRESENTATIVES:

RESPONDENT Mr B Whitehead, Solicitor WorkCover Authority of New South Wales

JUDGMENT:

• 12 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: HUNGERFORD J Tuesday, 21 March 2000 Matter No IRC 551 of 2000 VAN ROOY MACHINERY PTY LIMITED v WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR WOLF) Application to extend time to appeal and appeal against a decision of the Chief Industrial Magistrate given on 15 December 1999 in the Local Court at Port Kembla. JUDGMENT (extempore) 1 The Court has before it an application by Van Rooy Machinery Pty Limited for an extension of time within which to file an appeal against a decision of the Chief Industrial Magistrate given on 15 December 1999 in which his Worship convicted the applicant of an offence under s 18(2)(a) of the Occupational Health and Safety Act 1983. 2 The matter was before the Court as presently constituted on 24 February 2000 by way of mention and on that occasion arrangements were made to hear the parties today on the out of time application. For that purpose, a direction was made that the applicant should file within 14 days of 24 February 2000, that is by 9 March, an affidavit setting out the grounds and reasons upon which the application to extend time to appeal was made. That direction has not been complied with. 3 On the matter coming on for hearing today, Mr Thiele , solicitor for the applicant, made an application that the hearing should be adjourned for a period of about two weeks in order to permit the applicant to comply with the direction and to finally prepare its case. It seems that Mr Thiele is an agent for the applicant's solicitors, Leo & Morrison of Church Street, Wollongong. 4 Mr Thiele indicated, in support of this application for adjournment, that after the last hearing he communicated the position, including the Court's direction, to the solicitor for the applicant and that he communicated that to the principal of the applicant corporation. It seems, as late as yesterday afternoon, the applicant indicated it wished to proceed with its application and appeal. Apart from that, in a very frank and proper way, if I may say so, Mr Thiele conceded he was unable to assist the Court further as to the circumstances requiring the need for an adjournment. 5 Mr Whitehead for the respondent, being the prosecutor at first instance, opposed the adjournment application. I should indicate that that was done in the context where the initial position taken by the respondent was to consent to the out of time application but, as Mr Whitehead indicated, the respondent is starting to have second thoughts about that aspect having in mind the obvious passage of time occurring and the ultimate submission which the respondent would put if the appeal goes forward, namely, that the appeal has no merit nor reasonable prospects of success. 6 It seems to me, when a matter is listed for hearing, that unless there be a proper case made out the interests of justice and the administration of justice, particularly having in mind the interests of those parties who are ready to proceed, take on particular significance. Adjournments are not granted as of course. 7 In the present case, there is no justifiable reason, in my view, which has been put forward to warrant the grant of an adjournment. In that situation, therefore, the adjournment application is refused. 8 Mr Thiele , if you would like a few moments to order your thoughts, I am happy to accommodate you, otherwise I will hear your application.

(Submissions were then made on the application to extend time to appeal) 9 This is an application by Van Rooy Machinery Pty Limited under s 189 of the Industrial Relations Act 1996 to extend time to appeal against a conviction entered by the Chief Industrial Magistrate on 15 December 1999 for a breach of s 18(2)(a) of the Occupational Health and Safety Act . 10 The learned magistrate heard on that date a plea of guilty to the said charge, the earlier plea of not guilty being changed on the morning of the hearing and in respect of which the applicant, the then defendant corporation, sought an order pursuant to s 556A of the Crimes Act 1900. His Worship convicted the applicant and imposed a fine of $2,000 (where the maximum was $50,000) and awarded costs in the total sum of $466. 11 On 16 February 2000, the applicant's solicitor filed a Notice of Appeal against the conviction on the ground "that in the circumstances of the case the provisions of s 556A of the Crimes Act should have been applied". 12 Also filed on 16 February 2000 was the present application to extend time to appeal on the following grounds: The decision was received in the office of Leo & Morrison solicitors on 15 December 1999.

A letter was forwarded to the Respondent ( sic ) advising them of the decision and their options on 21 December 1999.

On or about 24 January 2000 the Appellant advised the solicitor that it wished to pursue an appeal.

The appropriate paperwork was then obtained from the Industrial Court.

The Appellant maintain they should be entitled to present their appeal in the appropriate court and argue against the conviction recorded against the company.

The Appellant company, in over 20 years of trading, has not had a conviction recorded against it.

The Company is a small family company of which the directors are extremely proud of the company safety record. The Appellant seeks the opportunity to keep its good name." 13 An appeal from the decision of a Local Court constituted by an industrial magistrate convicting a person of an offence under the Occupational Health and Safety Act is available pursuant to the combined operation of s 47(4) of that Act and s 197 of the Industrial Relations Act . Section 189 of the Industrial Relations Act deals with the time and procedure for making appeals and is in the following terms : (1) An appeal to a Full Bench of the Commission under this Part must be made within 21 days after the date of the decision appealed against or within such further time as the Full Bench or the Commission constituted by a Presidential Member allows.

(2) Further time may be allowed, either before or after the end of that 21-day period. 14 Thus, the appeal in the present case should have been filed no later than 14 January 2000, being 21 days after the date of the decision but allowing for 9 days of vacation from 25 December 1999 to 2 January 2000 pursuant to r 136(1) of the Industrial Relations Commission Rules 1996. It was actually filed on 16 February 2000 - 33 days outside time. 15 The respondent, the prosecutor at first instance, initially consented to the application to extend time but, having in mind the delay occasioned and the likelihood of an unsuccessful appeal, changed his position and finally opposed the application. 16 The principles which the Court follows in considering an application to extend time to appeal were set out in a decision of a Full Bench ( Bauer, Hungerford and Schmidt JJ) of the Court in WorkCover Authority of New South Wales (Inspector Salmon) v Parkes Council (1996) 70 IR 298 at 299-301 in the following terms: The proper approach to adopt in a consideration of the application was common ground between the parties. Reference was made in that respect to the decision of the Full Commission ( Peterson and Schmidt JJ, and Connor CC ) of the former Industrial Relations Commission of New South Wales in Skelly v Prouds Jewellers Pty Ltd [1994] 53 IR 3 at 5-6 as followed by the Full Commission ( Cahill V-P, Maidment J and French C) in Brookes v Watling (1995) 61 IR 163 at 166-167. In those two cases the Full Commission cited recent authorities formulating the way in which the grant of an extension of time for the filing of an appeal should be considered: see Gallo v Dawson (1990) 64 ALJR 458; Jess v Scott (1986) 12 FCR 187; and Salter Rex & Co v Ghosh [1971] 2 QB 597 at 601. From those cases, the following propositions may be drawn: (1) The grant of an extension of time is not automatic and the object of those rules which fix times for doing acts is to ensure they do not become instruments of injustice; the discretion to extend time is given for the sole purpose of enabling justice to be done between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Limited [1978] VR 257 at 262.

(2) The discretion can only be exercised in favour of an extension of time upon proof that compliance with the rules will work an injustice upon the applicant therefor which necessarily requires regard be had to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences for the parties of the grant or refusal of the application to extend time: see Avery v No 2 Public Service Appeal Board [1978] 2 NZLR 86 at 92; and Jess v Scott at 194-195.

(3) An application for an extension of time in which to file an appeal always requires consideration of the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes at 263-264; and Mitchelson v Mitchelson (1979) 24 ALR 522 at 524.

(4) Upon the expiration of the time for appealing, the respondent has "a vested right to retain the judgment" unless the application is granted: see Vilenius v Heingar (1962) 36 ALJR 200 at 201.

(5) There must be material upon which it can be satisfied that to refuse the application to extend time would constitute an injustice: see Ratnam v Cumarasamy [1965] 1 WLR 8 at 12; [1965] 3 All ER 933 at 935.

(6) "The difference between two weeks and four weeks is not much (by which the time is to be extended)... We never like a litigant to suffer by the mistake of his lawyers": per Lord Denning in Ghosh at 601. In accepting the approach inherent in the above propositions the Full Commission observed in Skelly (at 6): "The Commission's Rules require an appeal to be filed within 28 days of a decision. (I interpolate here that under the present rules it is now 21 days) There is a public interest in the prompt institution and prosecution of litigation before the Commission. Indeed the Act is designed with this as a feature. It follows that a successful litigant before the Commission is generally entitled to proceed on the basis that a decision in its favour will stand, in the absence of an appeal being filed within the time prescribed. There is a discretion in the Commission to extend the time for filing an appeal. Such a discretion will not however be lightly or automatically exercised, particularly if the application is made after the time for appeal has expired. The fact that there will be no prejudice to a respondent party by an extension of time being granted is one factor which the Commission will take into account, but will not be solely determinative of the matter. In this context the cost and inconvenience of litigation not brought within the limitation period prescribed is a matter to which regard may properly be had when an application for extension of time is made. The Commission in taking all relevant matters into account must endeavour to do justice between the parties having regard to all the circumstances before it". We too accept the above approach by the Commission as apt to apply, having in mind the identity between the relevant rules, in determining an application for extending the time for filing a notice of appeal in the Court. 17 I should indicate that the decision in Parkes Council was recently followed by Wright J, President, in LEP International Pty Limited v Caine [2000] NSWIRComm 11 at paras 41 and 42, a decision published on 11 February 2000. It seems to me only appropriate to follow the principles to which I have referred. I propose to do so. 18 Mr Thiele , solicitor for the applicant, put his case in support of the application on two bases - first, the delay in filing and, second, the substantive nature of the proposed appeal. As to the former, he emphasised that whilst the delay was of a relatively lengthy period it occurred at a time of the year over the Christmas-New Year holidays when the principal of the applicant was on vacation. It was not until 24 January 2000 that the applicant revisited, after the holiday period, the question of appealing and at that time telephoned instructions to its solicitor to lodge an appeal. Of course, the time for filing an appeal had by that date well expired. The applicant's solicitor, on being advised on 24 January 2000 of the desire to appeal, did not file the application to extend time and the appeal until 16 February 2000, some 23 days later, and in which period apparently no advice was forwarded to the respondent as to the intention to appeal. 19 In considering this submission of the applicant, it seems to me important to bear in mind that the decision was given by the Chief Industrial Magistrate on 15 December 1999. It was not until 21 December 1999 that the solicitor wrote to his client advising the decision and of the appeal rights, including apparently details as to the time within which an appeal was to be brought. In that context, and even having in mind the fact that the applicant proceeded on holidays, it seems to me strange, where it was pleaded that the applicant wished to challenge the conviction in order to keep its good name and safety record intact, that no instructions were given when the letter from the solicitor was received and at a time when the principal of the applicant had not commenced his holiday. 20 As Mr Thiele observed, the crux of the delay point is the holiday period. In the circumstances, as I have outlined them, I am not inclined to accept the explanation for the delay as referable to the holiday period; it appears to me that the question of time within which to file the appeal was given scant regard both by the solicitor for the applicant and by the applicant itself. 21 Turning then to the substance of the appeal, Mr Thiele referred to the decision given by his Worship and, in particular, to the reference therein to the applicant's excellent safety record. He pointed out that his Worship accepted that the applicant was very mindful of safety and it had a commitment to it. Reference was made also by Mr Thiele to the circumstances that the applicant pleaded guilty, albeit a very late plea, and that his Worship noted the applicant's remorse and contrition for what occurred. Mr Thiele referred to what really was the crux of the appeal itself, namely, the failure by his Worship to apply the provisions of s 556A of the Crimes Act . The applicant said it should be given the opportunity to argue that question. 22 I point out that the application of s 556A represents very much the exercise of a classic discretion. A perusal of his Worship's decision does not, on its face, disclose any failure to take into account relevant matters nor does it show he has taken into account irrelevant matters. On its face, therefore, it seems to me difficult to accept that his Worship made appellable error. Of course, it is not for me, sitting alone, to decide finally that question but, in accordance with the principles I have outlined, it is appropriate for me to consider the prospects of success. It seems to me in terms of the discretionary nature of his Worship's decision that it is reasonable there would be a very slender prospect on appeal of the applicant obtaining a favourable exercise of s 556A. 23 I mention, of course, that the application of s 556A in respect of offences under the Occupational Health and Safety Act has been said to be unusual. The question has been considered on a number of occasions and I refer in that regard to the decision of Fisher CJ in Schultz v Tamworth City Council (1995) 58 IR 221 at 229 where his Honour : The use of s 556A of the Crimes Act , which in the light of the strongly defined duty of care, clear public policy considerations in the Act and major penalties provided, ought to be rare indeed and is not appropriate in the presence of long-standing adverse work practices. 24 I observe that in the present case the subject charge faced by the applicant was a failure to guard dangerous machinery and, as the facts show, was a failure of long-standing. 25 The decision in Schultz was considered by Wright J, President, recently in WorkCover Authority of New South Wales (Inspector Robins) v Ecolab Pty Limited (1999) 90 IR 413 at 430-431 where his Honour, after citing the above passage from Schultz , expressed the view that the policy approach discussed by the Chief Judge was pertinent and appropriate. 26 A Full Court ( Fisher CJ, Bauer and Cullen JJ) of the former Industrial Court in WorkCover Authority of New South Wales v Waugh (1995) 59 IR 89 at 101 also considered the application of s 556A to offences under the Occupational Health and Safety Act and said : We consider that in serious cases where, as found by her Honour, the risk of injury from an accident was not one difficult to foresee, where the breach could and did result in serious consequences to the health of the injured man, where the risk of injury was preventable and where a safety fence with an isolation device was installed without difficulty after a second inspection, the operation of s 556A of the Crimes Act to such proceedings would seldom be appropriate. 27 I do not wish in the present case to describe the offence here in a relative sense as a serious breach of the Occupational Health and Safety Act . Indeed, his Worship found it was at the lower end of the range in terms of nature and quality. However, it seems to me from his Worship's decision and the agreed facts that the offence, being a failure to guard dangerous machinery, was readily foreseeable and was of long-standing. In that sense, my view is that it is appropriate to consider the matter as was done in Waugh , namely, that in such circumstances it "would seldom be appropriate" to apply the provisions of s 556A. 28 Again, I caution, I do not see my role as finally deciding that question, but it is relevant, in my view, in deciding the likelihood of success of an appeal in determining an application to extend time to appeal, particularly where the application is made well after the time to appeal has expired. 29 Also, of course, the granting of the present application to file out of time would not necessarily mean that the appeal itself would proceed. The applicant is faced with a further barrier, namely, the requirement to obtain leave to appeal under s 188 of the Industrial Relations Act . The need for leave was found recently by a Full Bench ( Wright J, President, Walton J, Vice-President and Peterson J) of the Court as being necessary in Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 at 449; their Honours said : In the context of a prosecution brought before the Local Court in respect of an offence committed under the OH & S Act, we are satisfied that parliament intended to guarantee the right of a person convicted of such an offence to obtain review of that conviction by providing an avenue of an appeal, albeit by leave, to the Full Bench. 30 The decision in Drake Industrial was followed by their Honours in Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 at 465. 31 Before leaving the question of s 556A, I should refer to the case of Wong v Melinda Group Pty Limited (1998) 82 IR 118 where, sitting alone, I in fact applied in respect of a breach of the Occupational Health and Safety Act the provisions of s 556A. I think it might be helpful to consider what was then said in so applying the section. After referring to the above passage which I have cited from Waugh, I concluded in this way (at p 133) : The defendant has no prior convictions and it pleaded guilty to the present charge in a timely way. Its attention to safety considerations in respect of the King Street building over very many years was well established and, in particular, its actions in arranging an appropriate and safe system for the external cleaning of the building's windows, including the approval of the WorkCover Authority, is clear. The real and effective culpability for what occurred was that of a tenant, Mr Timmins, and of Mr Child's employer, Towabug Pty Limited. The defendant was simply unaware of the arrangements for the work to be performed by Mr Child and, in view of its policy on window cleaning and the steps for a safe system, could not reasonably have foreseen the accident. Indeed, the defendant engaged a consultant, Alan Keevers Enterprises Pty Limited, to provide building services, necessarily including safety arrangements, for the King Street property and that corporation must bear a degree of responsibility for the incident. The defendant, in my view, has been subjected to extenuating circumstances over which it had no direct control. It follows, in my view, that it is inexpedient to inflict any punishment on the defendant. I propose to apply the provisions of s 556A of the Crimes Act by dismissing the charge. 32 Without labouring the point, it seems to me there is much distinction between the circumstances of Wong v Melinda Group and the present case. In the result, I am not comfortably satisfied that the prospects of achieving the benefit of s 556A on appeal would be anything other than slender and even if, which is unlikely, leave to appeal were obtained. 33 Essentially, it seems to me, in deciding whether or not to grant an application to extend time to appeal comes down to the proposition of doing justice between the parties and ensuring the proper administration of justice. 34 In opposing the application, Mr Whitehead for the respondent emphasised that the only explanation for the delay was the holiday period. However, that was to be seen in the context that in a timely way the applicant was advised of its rights, including the time within which to appeal, and, in any event, the plea of guilty was given quite late. Reference was made by Mr Whitehead to the statement of agreed facts before his Worship as to the nature and quality of the offence which concerned the failure to guard dangerous machinery, a failure which had continued for quite some years. In the result, Mr Whitehead submitted that the probability was that the applicant would be unlikely to obtain relief under s 556A of the Crimes Act even if leave to appeal were obtained. Accordingly, he resisted the grant of an extension of time. 35 On balance, it is my view, applying the appropriate principles, that the applicant has not at all satisfactorily explained the reason for the delay. In any event, I am not comfortably satisfied that the applicant on appeal would have any real prospect of success, even were leave to appeal be allowed against what is clearly a discretionary decision. 36 For those reasons, the application to extend time to appeal is refused and I so order. The Notice of Appeal is, therefore, incompetent.

(Submissions were heard on costs) 37 In my view, costs should follow the event. I order that the applicant pay the respondent's costs of the application in an amount as agreed or, failing agreement, as assessed. __________________

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