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Kilby v Harrison

 

[2019] ICQ 21

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Kilby v Harrison; Saxon Energy Services Australia Pty Ltd v Harrison [2019] ICQ 021

PARTIES:

Jacob John Robert Kilby

(Appellant)

v

Paul Kevin Harrison

(Respondent)

CASE NO:

PARTIES

CASE NO:

C/2018/12

Saxon Energy Services Australia Pty Ltd ACN 137 534 993

(Appellant)

v

Paul Kevin Harrison

(Respondent)

C/2018/13

PROCEEDING:

Appeal against conviction of Industrial Magistrate

DELIVERED ON:

11 December 2019

HEARING DATE:

28 November 2018

MEMBER:

HEARD AT:

O'Connor VP

Brisbane

ORDERS:

  1. The appeals are allowed;
  2. I will hear the parties as to the form of orders to be made.

CATCHWORDS:

INDUSTRIAL LAW – APPEAL AGAINST CONVICTION – appeal against convictions under the Petroleum and Gas (Production and Safety) Act 2004 – general principles – right of appeal – nature of right – appeals by way of rehearing – scope and effect of rehearing – whether demonstration of error is a precondition to the Industrial Court's appellate powers

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – PARTICULAR WORDS AND PHRASES – meaning of "recklessly" – whether the learned Industrial Magistrate misconstrued the word "recklessly" – whether "recklessness" requires a "conscious disregard of risk" at the time of the offence – whether the guilt of the Appellants was proven beyond reasonable doubt

PROCEDURE – COSTS – APPEALS AS TO COSTS – JURISDICTION TO ENTERTAIN – where prosecution sought orders for costs under s 158A Justices Act 1886 (Qld) – whether Magistrate had jurisdiction to award costs – whether "costs of representation" under s 319 of the Industrial Relations Act 1999

LEGISLATION:

CASES:

Crimes Act 1900 (Nsw) s 35

Industrial Relations Act 1999 (Qld) s 319, s 320, s 341

Industrial Relations Act 2016 (Qld) s 1023

Justices Act 1886 (Qld) s 223

Legal Profession Act 2007 (Qld)

Occupational Health and Safety Act 2004 (Vic) s 32

Petroleum and Gas (Production and Safety) Act 2004 (Qld) s 704, s 840

Workplace Health and Safety Act 1995 (Qld)

Workers' Compensation and Rehabilitation Act 2003 (Qld) s 561

Allesch v Maunz  (2000) 203 CLR 172

ASIC v Mariner [2015] FCA 589; 106 ACSR 343

Aubrey v The Queen (2017) 260 CLR 305

Brisbane City Council v Gillow & Simon Blackwood (Workers' Compensation Regulator) [2016] ICQ 007

Clarke v Ryan (1916) 103 CLR 486

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194

Coulton v Holcombe (1986) 162 CLR 1

Dasreef Pty Limited v Hawchar (2011) 243 CLR 588

Fitzgerald v Woolworths Limited [2017] FWCFB 2797

Forrest v Commissioner of Police [2017] QCA 132

Fox v Percy (2003) 214 CLR 118

Giudice v Legal Profession Complaints Committee [2014] WASCA 115

Orbit Drilling v The Queen [2012] VSCA 82

Makita v Sprowles (2001) 52 NSWLR 705

Muteneri v Cheeseman [1998] 4 VR 484

PES v The State of Western Australia [2013] WASCA 202

R v Abdul-Rasool (2008) 18 VR 586

R v Honeysett (2014) 253 CLR 122

R v Jones [2016] 2 Qd R 310

R v Kelly; Ex parte The Commonwealth Public Service Clerical Association [1955] HCA 20; 92 CLR 10

R v Lagos [2003] QCA 121

R v Nuri [1990] VR 641

R v Towle (2009) 54 MVR 543

Storry v Commissioner of Police [2018] QCA 291

Teelow v Commissioner of Police [2009] 2 Qd R 489

Voisine v. United States 579 U.S. (2016)

APPEARANCES:

A J Glynn QC with A Scott instructed by Norton Rose Fulbright Australia for the Appellants

J R Hunter QC with P Morreau instructed by Gilshenan & Luton Legal Practice for the Respondent

Reasons for Decision

Introduction

  1. [1]
    On 23 June 2013 drill rig 185 was operating in the Surat Basin approximately 66 kilometres east of Injune. The drill rig was an "operating plant" for the purposes of the Petroleum and Gas (Production and Safety) Act 2004 ("P and G Act"). Mr Jacob Kilby was the driller on the drill rig and was employed by Saxon Energy. Mr Gareth Dodunski, a Floorhand and his co-worker, Mr Daniel Mullings were undertaking tasks on the drill floor. Mr Dodunski was within the crush zone of the Iron Roughneck ST-80. At approximately 3.15 pm, Mr Kilby activated the ST-80. Mr Dodunski was caught by the machine and suffered a fatal crush injury. It was the act of engaging the ST-80 that was the focus of proceedings before the Industrial Magistrate. At the time of the act, Mr Kilby was a "person at an operating plant".
  1. [2]
    The Appellants were charged and convicted of the offence of "recklessly" doing an act that might adversely affect the safety of anyone at an operating plant, under s 704 of the P and G Act. Section 704 provides as follows:

704  Wilful or reckless acts or omissions that affect safety

A person at an operating plant must not wilfully or recklessly do an act or make an omission that might adversely affect the safety of anyone at the plant.

Maximum penalty—500 penalty units.

  1. [3]
    Saxon's liability for Mr Kilby's act arose by application of s 840(3) of the P and G Act which attributes the "state of mind" of a corporation's officers, employees and agents to the corporation and attributes the "conduct" of those persons' to the corporation.
  1. [4]
    The Appellants now appeal those convictions to this Court.

The Complaints

  1. [5]
    Extracted below are both the original complaints and summons filed in the Magistrates Courts of Taroom on 23 June 2014:

THE COMPLAINT OF PAUL KEVIN HARRISON of 61 Mary Street, Brisbane in the State of Queensland, a public officer within the meaning of section 142A of the Justices Act 1886 and the Acting Commissioner for Mine Safety and Health within the meaning of section 73BA of the Coal Mining Safety and Health Act 1999, made this 20th day of June 2014 before the undersigned, a Justice of the Peace for, the said State, who says that on the twenty-third day of June 2013 at an operating plant located approximately 66 kilometres east of Injune in the Dalby Magistrates Court District in the State of Queensland, JACOB JOHN ROBERT KILBY, a person at an operating plant, wilfully or recklessly did an act, namely activated the Iron Roughneck ST-80, that might adversely affect the safety of Gareth Leo DODUNSKI, a person at the plant, in contravention of section 704 of the Petroleum and Gas (Production and Safety) Act 2004,

AND the said act caused the death of Gareth Leo DODUNSKI.

Particulars

That at the place and date above mentioned:

  1. Drill rig #185 was situated at a well with the identification number FV-13-14-9 (68430) located approximately 66 kilometres east of Injune in the State of Queensland,
  2. Drill rig #l85 was "operating plant" within the meaning of that term in section 670(2)(a) of the Petroleum and Gas (Production and Safety) Act 2004 ("the Act"), in that it was a facility used to produce petroleum,
  3. Drill rig #185 was a facility used to produce petroleum because:
  1. it was a facility, in that it was something that makes possible the easier performance of an action;
  2. it was used to produce, namely it was used to drill a well to facilitate the recovery of petroleum to ground level from a natural underground reservoir in which it had been contained or from which it was to be extracted; and
  3. it was used to produce petroleum within the meaning of that term in section l0(l)(a) of the Act, namely it was used to recover to ground level as described in subsection b, a substance consisting of hydrocarbons that occur naturally in the earth’s crust,
  1. On 23 June 2013, drill rig #185 was operating within the meaning of that term in section 672 of the Act, in that it was drilling a petroleum well,
  2. Jacob John Robert KILBY (‘KILBY’) was employed by Saxon Energy Services Australia Pty Ltd ACN 137 534 993 (‘SAXON’) in the position of Driller, and was acting as a Driller at drill rig #185.
  3. KILBY was a person at the operating plant,
  4. Gareth Leo DODUNSKI (‘DODUNSKI’) was a Floorhand employed by SAXON and was acting as a Floorhand at drill rig #185,
  5. At approximately 3.20 pm, KILBY and DODUNSKI were undertaking tasks at drill rig #185 which included the disassembly of the drill string used by drill rig #185,
  6. DODUNSKI and Daniel Luke MULLINGS were engaged in attaching a dog collar to the drill string as part of the process of disassembling the drill string,
  7. DODUNSKI was located between the drill string and the Iron Rougneck ST-80,
  8. KILBY then activated the Iron Roughneck ST – 80 at drill rig #185,
  9. By activating the Iron Roughneck ST – 80, KILBY wilfully or recklessly did an act that might adversely affect the safety of DODUNSKI at the plant, particulars of which are:
  1. KILBY did an act, namely activating the Iron Roughneck ST – 80;
  2. Activating the Iron Roughneck ST – 80 might adversely affect the safety of DODUNSKI because DODUNSKI was working on the drill rig floor in close proximity to the forward moving path of the Iron Roughneck ST – 80 and contact with the moving Iron Roughneck ST – 80 was likely to cause injury or death;
  3. KILBY acted either wilfully or recklessly in that:
  1. he activated the Iron Roughneck ST – 80 knowing that it would travel towards where DODUNSKI had been engaged in a task; and
  2. he activated the Iron Roughneck ST – 80 without seeking or obtaining visual confirmation that DODUNSKI was not in the forward moving path along which the Iron Roughneck ST – 80 would travel;
  1. By wilfully or recklessly activating the Iron Roughneck ST – 80, KILBY contravened section 704 of the Act,
  2. The said contravention by KILBY caused the death of DODUNSKI,

contrary to the Acts in such case made and provided."(emphasis original)

THE COMPLAINT OF PAUL KEVIN HARRISON of 61 Mary Street, Brisbane in the State of Queensland, a public officer within the meaning of section 142A of the Justices Act 1886 and the Acting Commissioner for Mine Safety and Health within the meaning of section 73BA of the Coal Mining Safety and Health Act 1999, made this 20th day of June 2014 before the undersigned, a Justice of the Peace for the said State, who says that on the twenty-third day of June 2013 at an operating plant located approximately 66 kilometres east of Injune in the Dalby Magistrates Court District in the State of Queensland, SAXON ENERGY SERVICES AUSTRALIA PTY LTD ACN 137 534 993, a person at an operating plant, wilfully or recklessly did an act, namely activated the Iron Roughneck ST-80, that might adversely affect the safety of Gareth Leo DODUNSKI, a person at the plant, in contravention of section 704 of the Petroleum and Gas (Production and Safety) Act 2004,

AND the said act caused the death of Gareth Leo DODUNSKI.

Particulars

That at the place and date above mentioned:

  1. Drill rig #185 was situated at a well with the identification number FV-13-14-9 (68430) located approximately 66 kilometres east of Injune in the State of Queensland,
  2. Drill rig #185 was ‘operating plant’ within the meaning of that term in section 670(2)(a) of the Petroleum and Gas (Production and Safety) Act 2004 (‘the Act’), in that it was a facility used to produce petroleum,
  3. Drill rig #185 was a facility used to produce petroleum because:
  1. it was a facility, in that it was something that makes possible the easier performance of an action;
  2. it was used to produce, namely it was used to drill a well to facilitate the recovery of petroleum to ground level from a natural underground reservoir in which it had been contained or from which it was to be extracted; and
  3. it was used to produce petroleum within the meaning of that term in section 10(1)(a) of the Act, namely it was used to recover to ground level as described in subsection b, a substance consisting of hydrocarbons that occur naturally in the earth’s crust,
  1. On 23 June 2013, drill rig #185 was operating within the meaning of that term in section 672 of the Act, in that it was drilling a petroleum well,
  2. Jacob Robert John KILBY (‘KILBY’) was employed by Saxon Energy Services Australia Pty Ltd ACN 137 534 993 (‘SAXON) in the position of Driller, and was acting as a Driller at drill rig #185,
  3. KILBY was a person at the operating plant,
  4. KILBY was a representative of SAXON at the operating plant within the meaning of that term in section 840 of the Act, in that he was an employee of SAXON,
  5. SAXON, through its representative KILBY, was a person at the operating plant,
  6. Gareth Leo DODUNSKl (‘DODUNSKI’) was a Floorhand employed by SAXON and was acting as a Floorhand at drill rig #185,
  7. At approximately 3.20 pm, KILBY and DODUNSKI were undertaking tasks at drill rig #185 which included the disassembly of the drill string used by drill rig #185,
  8. DODUNSKI and Daniel Luke MULLINGS were engaged in attaching a dog collar to the drill string as part of the process of disassembling the drill string,
  9. DODUNSKI was located between the drill string and the Iron Rougneck ST-80,
  10. KILBY then activated the Iron Roughneck ST – 80 at drill rig #185,
  11. By activating the Iron Roughneck ST – 80, KILBY wilfully or recklessly did an act that might adversely affect the safety of DODUNSKI at the plant, particulars of which are:
  1. KILBY did an act, namely activating the Iron Roughneck ST – 80;
  2. Activating the Iron Roughneck ST – 80 might adversely affect the safety of DODUNSKI because DODUNSKI was working on the drill rig floor in close proximity to the forward moving path of the Iron Roughneck ST – 80 and contact with the moving Iron Roughneck ST – 80 was likely to cause injury or death;
  3. KILBY acted either wilfully or recklessly in that:
  1. he activated the Iron Roughneck ST – 80 knowing that it would travel towards where DODUNSKI had been engaged in a task; and
  2. he activated the Iron Roughneck ST – 80 without seeking or obtaining visual confirmation that DODUNSKI was not in the forward moving path along which the Iron Roughneck ST – 80 would travel;
  1. By wilfully or recklessly activating the Iron Roughneck ST – 80, KILBY contravened section 704 of the Act,
  2. KILBY’s conduct in activating the Iron Roughneck ST – 80 was engaged in for SAXON by KILBY within the scope of KILBY’s actual or apparent authority as an employee of SAXON,
  3. Consequently, KILBY’s conduct in so activating the Iron Roughneck ST – 80 is taken to have been engaged in also by SAXON pursuant to section 840 (3) of the Act,
  4. SAXON thus contravened section 704 of the Act by wilfully or recklessly activating the Iron Roughneck ST – 80,
  5. The said contravention by SAXON caused the death of DODUNSKI, contrary to the Acts in such case made and provided."(emphasis original)

The Appeals

  1. [6]
    The Appellants seek to appeal on the following grounds:
  1. The prosecution did not prove the charge against the Appellant beyond reasonable doubt (and the Learned Industrial Magistrate erred in not so holding);
  2. The Learned Industrial Magistrate made the following errors of fact:
  1. that a particular item of equipment, the ST-80 was a danger to any person in its "vicinity";
  2. there was a short lapse of time between the conversation between Mr Kilby's conversation with Mr Marshall and Mr Kilby activating the ST-80; and
  3. attaching no weight to the expert evidence of Associate Professor Dux, who had been called by the Defendants on the following bases:
  1. Associate Professor Dux described the interruption by Mr Marshall as occurring at a critical point in the sequence of tasks that Mr Kilby was required to undertake; whereas
  2. Mr Kilby did not commence the task of commencing to operate the ST-80 until after the conversation with Mr Marshall was complete; and
  1. the opinions of Associate Professor Dux because they were based on assumptions of fact which were not sworn or proven.
  1. The Learned Industrial Magistrate misconstrued the word "recklessly", as it is used in s 704 of the P and G Act by finding that Mr Kilby activated a particular item of equipment (the ST-80) "recklessly":
  1. by activating it with a cognisance, apprehension or awareness of the risks associated with operating the ST-80, in combination with a failure to take steps to ameliorate those risks;
  2. as opposed to, or contrasted with, foresight of, or indifference to, the consequence that activating the ST-80, at the time relevant to the charge, "might adversely affect the safety of someone at the plant".
  1. The Learned Industrial Magistrate erred by wrongly concluding that for the prosecution to prove that an act or omission was done or made "recklessly" within the meaning of s704 of the P and G Act it was unnecessary for the prosecution to prove that the act or omission was done or made in "conscious disregard" of the risk that safety of persons might be adversely affected by doing or making of the act or omission;
  2. The Learned Industrial Magistrate's finding that Mr Kilby activated the Iron Roughneck "recklessly" was in error.
  1. [7]
    There is a further ground that relates only to the Appellant Saxon, namely Ground 6 in the Saxon application to appeal. That ground relates to the element of the offence which requires proof that the person accused of the offence did an act or made an omission, as defined, whilst "at an operating plant" at the time of the offence. Saxon contends that element cannot be satisfied in respect of Saxon because it is a corporation with no physical existence. It is submitted that the defendant corporation cannot be "at an operating plant". Saxon therefore contends that the Learned Industrial Magistrate erred in concluding that Saxon was capable of being convicted of the offence.
  1. [8]
    On 10 October 2019, leave was granted by consent for the Appellants notice of appeal to be amended to include the following further ground of appeal with respect to costs:

The Learned Industrial Magistrate ordered costs of legal representation to the prosecution when there was no power to make the order.

Application of Industrial Relations Act 1999

  1. [9]
    For the purposes of this appeal the Industrial Relations Act 1999 (IR Act 1999) applies. 
  1. [10]
    The Industrial Relations Act 2016 (IR Act 2016) commenced on 1 March 2016 repealing the IR Act 1999. Section 1023 provides for the continued application of the IR Act 1999 to proceedings that were commenced before March 2016. Section 1023 of the IR Act 2016 provides:

1023 Existing proceedings

  1. (1)
    This section applies if—
  1. before the commencement, a person started a proceeding under the repealed Act; and
  2. immediately before the commencement, the proceeding had not ended.
  1. (2)
    The repealed Act continues to apply to the proceeding, and the proceeding must be heard and decided, as if the Industrial Relations Act 2016 had not commenced.
  1. [11]
    The Saxon and Kilby prosecutions were commenced by complaints filed on 23 June 2014. Accordingly, the IR Act 1999 applies to proceedings before the Industrial Magistrates Court and before this Court. 

Nature of the Appeal

  1. [12]
    An appeal is a creature of statute. The nature of the appeal right conferred in any particular case therefore depends on construction of the statute concerned.[1]
  1. [13]
    Section 341 of the IR Act 1999 appears in Chapter 9, Division 2 which provides for appeals from the Industrial Magistrate to the Industrial Court. The section relevantly reads:

341 Appeal from commission, magistrate or registrar

  1. (1)
    A person may appeal to the court if dissatisfied with a decision of a magistrate in relation to a matter for which the magistrate has jurisdiction.

 

  1. (2)
    The Court may –
  1. dismiss the appeal; or
  2. allow the appeal, set aside the decision and substitute another decision; or
  3. allow the appeal and amend the decision; or
  4. allow the appeal, suspend the operation of the decision and remit the … cause … to the commission, an Industrial Magistrate or the registrar to act according to law.
  1. [14]
    The Appellants contend that the powers of the Court in an appeal under s 341(2) against a decision of an Industrial Magistrate are to be exercised regardless of error.
  1. [15]
    Section 348(1) of the Act provides that an appeal is by way of re-hearing on the record. Section 348 provides:

348  Nature of appeal

  1. An appeal to an industrial tribunal is by way of re-hearing on the record.
  2. However, the industrial tribunal may hear evidence afresh, or hear additional evidence, if the industrial tribunal considers it appropriate to effectively dispose of the appeal.
  1. [16]
    The Appellants submit that the Court's power to "hear evidence afresh" suggest that its Appellant powers are to be exercised regardless of error by the Court below. A distinction is drawn between an appeal under s 341(2) and the jurisdiction of the Court under s 561 of the Workers' Compensation and Rehabilitation Act 2003.
  1. [17]
    The nature of an appeal by way of rehearing was described by the High Court of Australia in Allesch v Maunz in the following way:

For present purposes, the critical difference between an appeal by way of rehearing and a hearing de novo is that, in the former case, the powers of the appellate court are exercisable only where the Appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error, whereas, in the latter case, those powers may be exercised regardless of error.[2]

  1. [18]
    In dealing with a similar issue in Fox v Percy, Gleeson CJ, Gummow and Kirby JJ said:

…The ‘rehearing’ does not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits. No such fresh evidence was admitted in the present appeal.

…On the one hand, the appellate court is obliged to ‘give the judgment which in its opinion ought to have been given in the first instance’. On the other, it must, of necessity, observe the ‘natural limitations’ that exist in a case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the ‘feeling’ of a case which an appellate court, reading the transcript, cannot always fully share…[3]

  1. [19]
    In Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission the majority of the court concluded:

It is common and often convenient to describe an appeal to a court or tribunal whose function is simply to determine whether the decision in question was right or wrong on the evidence and the law as it stood when that decision was given as an appeal in the strict sense. An appeal to this Court under s 73 of the Constitution is an appeal of that kind. In the case of an appeal in the strict sense, an appellate court or tribunal cannot receive further evidence and its powers are limited to setting aside the decision under appeal and, if it be appropriate, to substituting the decision that should have been made at first instance.

If an appellate tribunal can receive further evidence and its powers are not restricted to making the decision that should have been made at first instance, the appeal is usually and conveniently described as an appeal by way of rehearing. Although further evidence may be admitted on an appeal of that kind, the appeal is usually conducted by reference to the evidence given at first instance and is to be contrasted with an appeal by way of hearing de novo. In the case of a hearing de novo, the matter is heard afresh and a decision is given on the evidence presented at that hearing.

Ordinarily, if there has been no further evidence admitted and if there has been no relevant change in the law, a court or tribunal entertaining an appeal by way of rehearing can exercise its appellate powers only if satisfied that there was error on the part of the primary decision-maker. That is because statutory provisions conferring appellate powers, even in the case of an appeal by way of rehearing, are construed on the basis that, unless there is something to indicate otherwise, the power is to be exercised for the correction of error. However, the conferral of a right of appeal by way of a hearing de novo is construed as a proceeding in which the appellate body is required to exercise its powers whether or not there was error at first instance.[4]

  1. [20]
    While the appeal is by way of rehearing it is not an opportunity for a reworking of the trial to deal with the impediments thrown up by the Industrial Magistrates findings. As was said in Coulton v Holcombe:

… To say that an appeal is by way of rehearing does not mean that the issues and the evidence to be considered are at large. It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial. If it were not so the main arena for the settlement of disputes would move from the court of first instance to the appellate court, tending to reduce the proceedings in the former court to little more than a preliminary skirmish. …[5]

  1. [21]
    In Teelow v Commissioner of Police[6] the Court of Appeal was called upon to determine an appeal on sentence under section 223 of the Justices Act 1886. Section 223 provides as follows:

223  Appeal generally a rehearing on the evidence

  1. An appeal under section 222 is by way of rehearing on the evidence ("original evidence") given in the proceeding before the justices.
  2. However, the District Court may give leave to adduce fresh, additional or substituted evidence ("new evidence") if the court is satisfied there are special grounds for giving leave.
  3. If the court gives leave under subsection (2), the appeal is—
  1. by way of rehearing on the original evidence; and
  2. on the new evidence adduced.
  1. [22]
    Muir JA considered the principles to be applied on an appeal by way of rehearing under section 223 as follows:

A characteristic of an appeal "by way of rehearing" is that the appellate court, subject to its powers to admit fresh evidence, rehears the matter on the record of the court from which the appeal comes. In Scrivener v Director of Public Prosecutions, McPherson JA, referring to an appeal "by way of rehearing" under r 765(1) of the Uniform Civil Procedure Rules 1999, observed:

"It is well settled that a provision that characterises an appeal to this Court as a 'rehearing' ordinarily refers to a rehearing on the record, and not to what is sometimes called a rehearing de novo: see Powell v Streatham Manor Nursing Home [1935] AC 243, 263. On such a rehearing the appellate court has power to draw inferences from primary facts, including facts found and facts not disputed, which is as complete as that of the primary judge: see Warren v Coombes (1979) 142 CLR 531, 537-541. On the other hand, an appeal under that form of procedure does not involve a rehearing of witnesses … Further evidence may be received on appeal, but only on special grounds: see r 766(1)(c) …”

It is a normal attribute of an appeal by way of rehearing that "the powers of the appellate court are exercisable only where the Appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error … At least that is so unless, in the case of an appeal by way of rehearing, there is some statutory provision which indicates that the powers may be exercised whether or not there was error at first instance."On an appeal by way of rehearing an appellate court can substitute its own decision based on the facts and the law as they stand at the date of the decision of the appeal.[7]

  1. [23]
    More recently in an ex tempore judgment in Forrest v Commissioner of Police, Sofronoff P expressed the view that error need not be proved. His Honour said:

It has been said many times that such an appeal by way of rehearing requires an appellate Court to decide the case for itself. Although the reasoning of the Court from which such an appeal has been brought is relevant to be considered by an appellate tribunal, and it is sometimes said that it should be given appropriate weight and even great weight in particular cases particularly where credit is an issue, it is not the function of a court hearing such an appeal merely to consider whether or not the tribunal at first instance has made an error of fact or law. Nor is there an onus upon an Appellant to demonstrate the existence of an error of fact or law, although such a demonstration will go a long way towards winning an appeal.[8]

  1. [24]
    However, in Storry v Commissioner of Police, Sofronoff P and McMurdo JA agreed with Bond J that for an appeal to succeed the Appellant must establish some legal, factual or discretionary error. Bond J wrote:

The learned District Court judge then recorded, correctly, that on the appeal he was required to conduct a real review of the trial, and the learned magistrate’s reasons, and make his own determination of relevant facts in issue from the evidence, giving due deference and attaching a good deal of weight to the learned magistrate’s view, but that, nevertheless, in order to succeed on such an appeal, the Appellant must establish some legal, factual or discretionary error.[9]

  1. [25]
    In my view, on an appeal by way of rehearing, it is necessary for this Court to consider the evidence and make up its own mind, particularly in relation to matters involving the drawing of inferences from primary facts.[10] In the proceeding before me, the onus is on the Appellants to show that there was some error in the decision under appeal.[11]

The Facts

  1. [26]
    The facts have been conveniently outlined in the submissions of the Appellants. Save for several amendments proposed by the Respondent (which I have incorporated) I adopt the Appellants outline as follows.
  1. [27]
    On 23 June 2013, the Rig 185 crew were tripping out. In the crew were Mr Kilby (the driller), Mr Dixon (the Derrickhand), Mr Jenner (who was in the loader at the bottom of the V-Door at ground level) and the floor crew comprising Mr Daniel Mullings and Mr Gareth Dodunski ("the crew").
  1. [28]
    A meeting was held at 12:38 pm. Thereafter, the crew commenced the process of tripping out. There were "pre-job safety meetings" at 1:45 pm and 2:45 pm, where the processes of "running in hole" and "pulling out of hole" were discussed respectively, for the specific depths reached at that point of the drilling process. Mr Kilby told police that the incident was at about 3:30 pm, after the crew had just had a "smoko". By the time of the incident, they had been undertaking that task for three hours. The drill collar was not reached until just before the incident.
  1. [29]
    "Tripping out" or "Pulling out of Hole" or "POOH" are the various terms used to describe the process of pulling the drill string out of the drill hole. The drill string consists of numerous lengths of drill pipe, below which are the drill collars and the bottom hole assembly. The lengths of pipe in the drill string are screwed together. As the drill string is pulled out, each length of pipe is unscrewed and lowered down onto the catwalk. The process has substantial involvement of machines. The drill string is pulled out of the hole by the "top drive", which is operated by the driller. Elevators latch onto the drill string up at the top drive.
  1. [30]
    The function of the ST-80 during this process is to break the connections between each length of pipe. The driller activates the ST-80 and causes it to extend to well centre by pressing the "auto break" button on the HMI screen in the doghouse ("the relevant button on the HMI screen"). Once activated, it takes the ST-80 6.8 seconds to extend from its home position to well centre. After the ST-80 has disconnected from the drill string the length of drill pipe held by the top drive, the elevators then kick the disconnected length of pipe out towards the skate. The skate then lowers the length of pipe out through the V-Door down onto the catwalk. The skate was operated by the Derrickman who sat to the right of the Driller in the doghouse and whose job it was to operate the machines that took the pipe off down onto the catwalk.
  1. [31]
    The ST-80 and the top drive are both operated by the driller using controls in a room called the doghouse. The driller sits on a chair facing the rig floor through a glass window. Mr Kilby was the driller on the day in question. To the driller's right is the derrickman, who operates the skate. On the day in question, that person was Jared Dixon.
  1. [32]
    An intermediate step that was required before the ST-80 extended to well centre was to "set slips". The setting of slips is necessary because without them the drill string would fall back down once it is disconnected from the length of pipe held by the top drive. Once installed, "slips" take the weight of the drill string and stop it falling back down the hole.
  1. [33]
    There are two types of "slips". The first is manual slips. They are the chain like device wrapped around the drill string.
  1. [34]
    The other type of slips are mechanical, or automatic, slips. For the automatic slips to be used, they must be attached to a hydraulic connection to the rig floor. Once connected, they may be set by the driller by the functioning of a joystick in the doghouse. Installing automatic slips is quite time consuming and is not used when pulling out the length of drill string that was being pulled out by the Rig 185 crew on 23 June 2013.
  1. [35]
    Manual slips are installed by workers on the rig floor. This is a quick "in and out, operation". On the day in question, the workers on the rig floor were the deceased, Gareth Dodunski, and Daniel Mullings.
  1. [36]
    Once the slips are installed, the driller would operate the top drive to take the weight off the drill string so that it was taken by the slips.
  1. [37]
    The process of tripping out involves a series of steps that are repeated numerous times: The top drive pulls up the drill string until a join in the drill pipe is reached. The slips are then installed. On the day in question, manual slips were used, so they were installed manually by the workers on the rig floor. The driller would then operate the top drive to take the weight off the drill string so that it was taken by the slips. The driller then presses the relevant button on the HMI screen and the ST-80 extends to well centre in 6.8 seconds. The ST-80 breaks the connection between the drill string and the length of drill pipe held by the top drive. The disconnected length of pipe would then be lowered onto the catwalk.
  1. [38]
    The process would be repeated numerous times until the drill collar was reached. At that point, there would be a change in the process. When that stage is reached it is necessary to use the "dog collar" as well as the slips. That is necessary because the shape of the drill collar is different to that of the drill pipe.

The risk which the ST-80 posed to workers

  1. [39]
    The evidence was that the risk which the ST-80 posed to workers was a risk of a crush injury which arose when they positioned themselves between the drill string and the ST-80.
  1. [40]
    There was an established practice understood by all workers that when workers were required to work between the ST-80 and the drill string:
  1. workers on the rig floor were not to work in the area between the drill string and the ST-80 without pressing the emergency stop button (E-stop); and
  2. the ST-80 would not be activated without the driller first having obtained visual confirmation from the floor crew;
  1. [41]
    However, the evidence at trial was that it was a common occurrence for the practice not to be observed. People were complacent. Mr Dixon recalled Mr Kilby having to remind floor crews about it.

Mr Kilby's account of the incident

  1. [42]
    The prosecution put into evidence a number of statements by Mr Kilby giving his account of the incident which were undisputed. Those statements were summarised by the Learned Industrial Magistrate as follows.

Evidence of Sergeant Mitchell who attended at the scene on the day of the incident: He gave evidence that he obtained an unsworn statement from Mr Kilby on the day of the incident, which was contemporaneously written into his police notebook and signed by Mr Kilby. The contents of the notebook were not challenged in cross examination. In evidence Sergeant Mitchell observed that "everyone I spoke to was emotionally distressed". Mr Kilby relevant told the officer:

I commenced work at 12 midday at the rig site. My role is the driller. I am responsible for the drill and crew. I work the controls of the drill as per the program set by Santos. At about half past three just after smoko we were pulling out the string and just got the drill collar. I set slips and Gareth and Dan went in to fit the dog collar, they went in on their own accord. I was speaking with Aaron who was trying to find the day lease hand. I then feel like I have fucked up and gone into auto pilot and hit the button for the ST-80 to come out and break the connection. As soon as I hit it, I saw the boys there. I was trying to stop it, but you can't stop it once you have started it. The boys should have hit the emergency stop as soon as they went in which would not allow the ST-80 to be operated…

I then gave this statement to police at 18.45

Evidence of Mr Ian Bartels, a senior inspector of the Queensland Petroleum and Gas Inspectorate. Mr Bartels gave evidence that he, together with his colleague, Mr John Barron, interviewed Mr Kilby the day after the incident at 3.09 pm. During that unsworn interview Mr Kilby stated:

I was rung from the rig manager’s office looking for the day lease hand so I tried calling him on the intercom and hoped that he would have heard it and gone to the office. Continued doing what we’re doing. We just… finished pulling the heavy weights which don’t require a dog collar, just break them out straight away. Then got to the first drill collar, I’ve set slips, in this time Aaron, the superintendent, has come up to enquire as to where the day lease was. I briefly stopped doing what I was doing, said I’d called him on the intercom, don’t know where he is. Gone back to the job and gone straight into break out without realising that the boys had already gone in there to put the dog collar on. And as soon as I’ve realised I’ve trying [sic] to hit stop but there is no stop button… should have been hitting retract which is on the other side of the screen. And in this time I’m trying to shout but they can’t hear me ‘cause I’m in the doghouse and that is when the ST-80 collected Gareth and killed him…

… depending what you do, you press break or make and it will do the same thing, it will come out to hole centre. And then you go position confirm, saying that you are where you want to be. But once you hit make or break, that’s it, it comes out…

… in this case I hit break because… the intention was to break the joint.

… if you are quick enough you can hit retract, which in that moment in time I wasn’t thinking retract, I was thinking off and there’s an off button right next to break and I’m hitting it with no effect. And… our policy is we’re supposed to have the emergency stop on whenever the boy are in there and Gareth was the best at doing that… And this one time he didn’t put it on.

… I just finished talking to Aaron and I’ve gone straight to what my next step is which is to break out the joint and then as soon as I’ve touched it I’ve realised the boys have… gone in there without looking at me for confirmation…

When asked during the interview by Mr Bartels what the normal process would be Mr Kilby stated "Well once they’re finished… inside there then it’s all clear for me to do it so they pull the button off and then I’m able to activate it." Mr Bartels then asked Mr Kilby "Okay so you never push the button first waiting for him to pull it off?" to which Mr Kilby responded "No. Well it, they push it from out there, I’m inside the doghouse.”

When asked during the interview by Mr Bartels whether there was any visual indication on his screen as to whether the E-stop had been pushed Mr Kilby stated "Yeah there’s a, it will come up say, well it’d be like in red at the top, it’s like a little thing saying E stop."

When asked during the interview by Mr Bartels whether it was normal for Mr Dodunski to stay between the ST-80 and the drill string (i.e. in the crush zone) as opposed to standing to the side Mr Kilby stated "No that’s fairly normal for him to be where he was."

Evidence of Mr McMillan West, a crew leasehand at the time: Mr West spoke with Mr Kilby on the evening of the incident. Mr Kilby told him "I wasn’t looking at what I was doing. I was talking to someone inside the dog house and activated the [ST-80] without looking what was in front of it. I then turned back around and saw what was about to happen to Gary and stood up and just started screaming at the glass.” Mr West’s evidence was not challenged under cross examination.

Evidence of Mr Ashley Jenner, a motor hand on the rig at the time: Mr Jenner gave evidence that he spoke with Mr Kilby the day after the incident and that Mr Kilby told him that he was distracted by Aaron Marshall and was devastated. Mr Jenner’s evidence was not challenged under cross examination.[12]

Mr Mullings' account of the incident

  1. [43]
    Mr Mullings gave the following undisputed account of the events up to the point of the incident as follows:

Well, we’d obviously just set slips. Gareth went and grabbed the dog collar. We both went over to the drill string and knelt down and started to – to tie it up. I was on the outside of the drill string, between the drill string and the catwalk. Gareth was in between the drill string and the ST-80. I was holding the two green handles you can see in the picture there, kneeling down. We were both kneeling down, obviously, looking at what we were doing. I looked up just – and noticed the ST-80 was – was coming. As soon as I realised, I grabbed Gareth’s right arm and tried to pull him out of the way. But it had already caught his left arm and head and it pulled him in. I stood up pretty much straight away and, you know, a bit frantic, looked over into the dog house at Jake and Jarod. They were both trying to stop the ST-80 and try get it out…Once it had reached its well centre, obviously, they were able to retract it. When they retracted it, Gareth obviously fell down. He fell down onto the slips. I grabbed and just tried to pull him out of the way.[13]

Mr Dixon's account of the incident

  1. [44]
    Mr Dixon gave the following undisputed account:
  1. at the time of the incident, he was inside the doghouse with Mr Kilby and Mr Marshall who were having a conversation;
  2. he could not recall what was said in that conversation or the duration of it;
  3. he could not say whether Mr Kilby physically turned to speak to Mr Marshall;
  4. he did not see the slips set or the dog collar put on because his focus was on things away from the drill floor. At the time of the incident, the second-to-last heavyweight drill pipe connection had been broken and was being removed. The last heavyweight drill pipe was being pulled out, which was then to be followed by the cross-over and drill collar. This was when the slips were set and the dog collar was about to be put on. However, Mr Dixon didn't see the dog collar being put on because his attention was directed elsewhere.
  5. he heard Mr Kilby swear and then turned to see the ST-80 two or three feet away from Mr Dodunksi, who had his back to the machine;
  6. he could hear Mr Kilby yelling out but could not recall whether Mr Kilby was using the intercom machine.

Factual Issues at Trial

When workers went into the path of the ST-80

  1. [45]
    It was argued before the Learned Industrial Magistrate that the evidence left open the reasonable possibility that, when Mr Kilby activated the ST-80, it was not in his contemplation that, in doing so, he might adversely affect the safety of someone at the plant. This was principally based on:
  1. Mr Kilby's own (undisputed) description of his state of mind after the conversation with Mr Marshall (i.e. that he had been distracted and gone into "autopilot" and did not realise Mr Dodunksi was in the path of the ST-80 until after it had been activated); and
  2. the undisputed evidence of his panicked reaction upon realising where Mr Dodunksi was.
  1. [46]
    In addition to the above bases, it was also submitted that the evidence left open the reasonable possibility that on the day in question until shortly before the incident no worker in the crew went into the area between the drill string and the ST-80 or activated the E-stop. It was argued that: in the three hours prior to the incident the crew had been carrying out the repetitive process in which Mr Kilby pulled the drill string out with the top drive until a join was reached; Mr Dodunksi and Mr Mullings would install the slips (without going in the area between the drill string and the ST-80 or activating the E-stop); Mr Kilby would press the relevant button on the HMI screen, the ST-80 would come out of its home position and break the joint; and Mr Dixon would use the skate to lower the disconnected length of pipe onto the catwalk and the process would be repeated.
  1. [47]
    It was submitted that after the conversation with Mr Marshall, Mr Kilby was (momentarily) distracted and went "into autopilot" and straight to the "next step" which he had been performing in the three hours previously, i.e. pressing the auto break button on the HMI screen after slips were set, forgetting that the "next step" after the drill collar was reached and the slips were set was for Mr Dodunski and Mr Mullings to install the dog collar when at least one of them would position themselves in the path of the ST-80.
  1. [48]
    Relevant to the above argument was the question when workers might position themselves in the forward moving path of the ST-80. That involved the question whether a worker could be in that position when setting manual slips or installing the dog collar:
  1. (a)
    Mr Mullings gave evidence that it was necessary for a worker to position themselves between the drill string and the ST-80 in order to install the drill collar, but not when installing slips. 

Mr Mullings' evidence in chief also included:

  1. that they had been using the E-stop for installing the slips, in the three hours prior to the incident; and
  2. that the E-stop would be activated when they "had to" enter the derrick, "which was most of the time, depending on the activity".
  1. (b)
    Mr Dixon gave evidence that commonly the dog collar would be installed by two workers, with one facing the ST-80 and the other one the other side of the drill string with their back to the ST-80. He did not agree that manual slips could be set without going into the exclusion zone.

Mr Dixon's evidence in chief also included:

  1. that two men put in the manual slips and there is no particular orientation as to where they should sit, as it depends on where the drill pipe is sitting. Accordingly, it was "sometimes" necessary for workers to go between the drill string and the ST-80 to install the slips.
  2. Mr Dixon gave evidence that "you'd have to engage the E-stop all the time, so I'm saying yes, because you'd have to push the E-stop to stop it from extending and extracting" [sic retracting]
  3. Mr Dixon accepted that sometimes it was possible to avoid going into the exclusion zone to set the manual slips, however that was not his general experience, and even then, the E-stop would still be used.
  1. (c)
    Mr Paul Beswick, the rig manager, said that workers need not position themselves between the drill string and the ST-80 to install the dog collar.

Mr Beswick's evidence also included:

  1. that it was not necessary for workers to position themselves between the drill string and the ST-80 to install the slips;
  2. in respect of installing the dog collar, even though it was not necessary in his view, he had seen people installing the dog collars from between the drill string and the ST-80; and
  3. the task of installing the dog collar would require the pressing of the E-Stop (and thus entering the exclusion zone to do so) in any event.
  1. (d)
    Mr Ashley Jenner gave evidence that it was unnecessary to stand between the drill string and the ST-80 when installing slips.

Mr Jenner's evidence also included:

  1. that the E-stop would need to be pressed (and therefore the exclusion zone entered) for setting the slips and installing the dog collar.
  1. [49]
    The only witnesses who gave evidence about whether any worker had positioned themselves in the forward moving path of the ST-80, from the time the crew commenced the process of tripping out until the incident, were Mr Mullings and Mr Dixon.

Elements of the Offence

  1. [50]
    Before venturing into a consideration of the relevant case law regarding the construction of the word "reckless" it is necessary to first consider the elements of the offence. The elements of s704 of the P and G Act are as follows:
  1. (a)
    a person;
  2. (b)
    at an operating plant;
  3. (c)
    did an act or made an omission;
  4. (d)
    that act or omission might adversely affect the safety of someone at that plant;
  5. (e)
    the person did that act or made that omission either:
  1. (i)
    wilfully; or
  2. (ii)
    recklessly.
  1. [51]
    It is not in contention that at the time of the act, namely the activation of the ST-80, Mr Kilby was a "person at the operating plant" and therefore had direct liability for that act under s704 of the P and G Act.
  1. [52]
    The offence contains both a physical and a mental element. The physical element is that the act or omission might adversely affect the safety of someone at that plant. The mental element is the act or omission was done or made either wilfully or recklessly.
  1. [53]
    Whether Mr Kilby did the act with the state of mind necessary to establish the mental element of the offence is the key issue for determination in both the Kilby and Saxon appeals.

Construction of the word "recklessly"

  1. [54]
    A central finding by the Learned Industrial Magistrate was a rejection of the defence's contention that recklessness requires "not only an awareness of the possibility of risk but the further mental element of 'consciously disregarding' those risks". The Learned Magistrate reasons were as follows:

The offence Mr Kilby confronts involves the mental element of doing an act recklessly, but it does not involve an element of intentionally risking harm being done to another. The relevant intended ‘act’ under s. 704 of the PGPS Act is the operation of the ST-80, not an act intended to harm such as murder or grievous bodily harm. I note that the defence argues that cases, such as Towle v R which involved offences of culpable driving causing death and negligently causing injury, run contrary to this construction of the word ‘recklessly’ under the PGPS Act. At first blush this argument has some appeal because, like s. 704 of the PGPS Act, the offences in that matter did not involve an intention to harm or risk harm. However the offences in Towle:

  1. are ones of gross criminal negligence involving an objective test of foreseeability of harm;
  2. are ones where the ‘conscious disregard’ of a known risk was considered by the court to be an aggravating factor, rather than an element of the offence;
  3. was decided before the High Court’s decision in Aubrey v R.

The defence further argued that to remove the element of ‘conscious disregard’ from the offence under s. 704 of the PGPS ACT would, in effect, render the defendant culpable for a negligent act, rather than a reckless one. I don’t agree with that submission. The test for negligence is an objective one based on the foreseeable and probable consequences of the actions of a reasonable person. Whereas for recklessness, it is a subjective one based on the possible consequences in the mind of the defendant at the time the act is done.

Accordingly, I find that to do an act recklessly under s. 704 of the PGPS Act means to do an act, whilst at that time being cognisant of the risks associated with that act, but without the need to consciously decide to risk harm being done. For these reasons I find that it is not necessary for the prosecution to prove that the defendant consciously disregarded the risks, merely that he apprehended that there were risks at the time that he activated the ST-80.

The court can have regard to the circumstances, probabilities and evidence of what the defendant did and said at the time to determine, beyond reasonable doubt, whether he must have thought of the risk. As noted by Lord Bingham in R v G.

Similarly with recklessness: it is not to be supposed that the tribunal of fact will accept a defendant’s assertion that he never thought of a certain risk when all the circumstances and probabilities and evidence of what he did and said at the time show that he did or must have done.[14]

  1. [55]
    The Appellant submits that there are two fundamental flaws in the Learned Industrial Magistrate's formulation of a reckless state of mind for the purposes of the offence. 
  1. [56]
    First, the cognisance, apprehension or awareness involved in her Honour's formulation of a reckless state of mind for the purposes of s704 of the P and G Act is a "cognisance" in the sense of having knowledge of the risks, as distinct from having the possibility of adversely affecting someone's safety specifically in contemplation at the time of activating the ST-80.  It is a cognisance, apprehension or awareness of the risks associated with operating the ST-80 and not foresight of the particular consequence prescribed by the statute.
  1. [57]
    Secondly, her Honour's conclusion that cognisance, apprehension or awareness of "the risks associated with operating the ST-80" will constitute recklessness if it is accompanied by a failure to ameliorate those risks, which is the type of formulation that is appropriate to negligence cases and not recklessness.
  1. [58]
    The Appellants submit that notwithstanding that Mr Kilby was aware of the risk of a crush injury in relation to the ST-80 it does not constitute the state of mind required to establish recklessness for the purposes of s 704 of the P and G Act.
  1. [59]
    The Respondent accepts that the culpable state of mind must exist at the time of the act is undertaken.
  1. [60]
    On the Appellants argument, what is required is foresight, at the (very) time of activating the ST-80, that doing so might adversely affect someone's safety. The Appellants submit that a person who is not thinking that there might be someone in the ST-80's path, when the ST-80 is activated, cannot therefore be (at that moment) thinking that activating the ST-80 might adversely affect the safety of that person.
  1. [61]
    The Appellant contends that a person who has a positive belief that no one is in the path of the ST-80 cannot be said to be reckless in those circumstances because they positively believe that no one is in danger of being injured by the ST-80. It was argued by the Appellant that on the Learned Industrial Magistrate's formulation, a person will have acted recklessly if they, despite their belief that no one is in the path of the ST-80, activate the ST-80 and do not take any steps to ameliorate the risk associated with operating the ST-80.
  1. [62]
    The Appellant submits that it is the "lack of care for the consequences" which constitutes the mental element of recklessness and may involve:
  • Awareness, or foresight, of the possible consequences and proceeding regardless (foresight recklessness) or
  • A lack of awareness of the possible consequences, with the additional element of not caring, i.e. indifference to what those consequences are (indifference recklessness)
  1. [63]
    It is said that the common element in each of the above formulations is that each constitute a manifestation of a lack of care for the consequences of the relevant act or omission.
  1. [64]
    The Appellant submits that it is clear that Mr Kilby did care about the consequences which is evidenced by his panicked and horrified reaction immediately upon realising Mr Dodunski was in the path of the ST-80. They argue that this is not a case of indifference recklessness and that the issue argued before her Honour was whether Mr Kilby's act was accompanied by foresight recklessness.
  1. [65]
    Recklessness is not defined in the P and G Act nor is it an element of any Criminal Code offence. It is therefore necessary to look to the jurisprudence in other jurisdictions, albeit drawn from different factual and statutory contexts, for assistance in ascertaining the meaning to be given to "recklessness" in s 704 of the P and G Act.
  1. [66]
    The Appellants submit that within the criminal context, it is a fundamental feature of "recklessness" that it must involve a subjective foresight on the part of the accused.
  1. [67]
    In Dreezer v Duvnjak, it was said:

The Australian authorities take approaches which have an underlying common feature, namely that recklessness is doing an act whilst contemplating the chance of it having the relevant consequence or quality with indifference to that consequence or quality. The differences in judicial approach have been as to the nature of the chance, it having been described as a probability, a substantial risk and possibility.[15]

  1. [68]
    Aubrey v The Queen[16] determined that the degree of foresight that is necessary to establish recklessness is foresight of the possibility of harm rather than the probability of harm. In Aubrey, the Appellant engaged in unprotected sexual intercourse with the complainant between January and July 2004 in circumstances where the Appellant had been diagnosed as, and therefore knew that he was, HIV positive. The High Court had to consider a charge of "maliciously" causing the complainant to contract a grievous bodily disease under the Crimes Act 1900 (New South Wales). Maliciously was defined to include acts "done recklessly or wantonly". The Court holding that the definition was designed to embrace the notion of recklessness recognised in R v Welch of "foreseeing the possibility of consequences and proceeding nonetheless".
  1. [69]
    In Banditt v The Queen[17] the High Court was concerned with the meaning of "reckless" in s 61R of the Crimes Act, which provides that a person who had sexual intercourse with another person without the consent of the other person and who was reckless as to whether the other person consented was to be taken to have known that the other person did not consent. Gummow, Hayne and Heydon JJ stated that there was a need to accommodate the term " reckless " as it appeared in this provision to the requisite mental element, that is, knowledge of absence of consent. Their Honours considered that the following comments of Professor Sir John Smith with respect to the 1976 UK legislation, which was introduced following the decision of the House of Lords in R v Morgan [1975] were on point in construing s 61R:

If D is aware that there is any possibility that P is not consenting and proceeds to have intercourse, he does so recklessly.[18]

  1. [70]
    After considering Banditt and a line of other authorities, Beazley JA in Blackwell v Regina said "…that where the mental element of an offence is recklessness, the Crown must establish foresight of the possibility of the relevant consequence."[19]
  1. [71]
    In R v Lagos McPherson JA said that "recklessness has been defined as conscious disregard for known or obvious risks".[20]
  1. [72]
    It is contended by the Appellants that appellate and superior courts have accepted that indifference to or a "conscious disregard" of the possible consequences of acts and omissions must be established to constitute recklessness. 
  1. [73]
    To support that contention, the Appellants referred to the reasoning of Buss JA in Giudice v Legal Profession Complaints Committee where his Honour wrote:

Numerous cases have examined the distinction between recklessness and negligence. In Kane v Dureau [1911] VicLawRp 58; [1911] VLR 293, Cussen J said that '"recklessness", which is characterised by indifference to consequences, is to be distinguished in this respect from "negligence", in which the consequences are as a rule not expected at all' (297). In Thompson v Copeland [1936] SAStRp 5; [1936] SASR 45, Murray CJ observed that 'recklessness implies that the possible consequences which may ensue from [a person's] act are adverted to by the actor, but he is indifferent whether those consequences occur or not' (47 - 48). See also Lederer v Hitchins [1961] WAR 99, 101 (Virtue J).

So, on those authorities, to be reckless as distinct from negligent, conduct must be such as to evince a disregard of or an indifference to consequences. A reckless disregard or indifference involves, at least, a subjective element of actual conscious disregard of or indifference to the risks created by the conduct.[21]

  1. [74]
    Earlier in the decision of PES v The State of Western Australia, Buss JA wrote:

If the Appellant 'ought to' have had 'foresight' or 'awareness' that his conduct may result in the child suffering harm as a result of abuse or neglect of the kind specified in s 101(1), then he would not have had actual 'knowledge' that his conduct may have that result and he would not have had a 'conscious disregard' of the potential consequences of his conduct. The notion that the Appellant 'ought to' have had 'foresight' or 'awareness' of potential consequences connotes negligence or carelessness. It is inconsistent with the notion of 'conscious disregard', and posits a test of 'reckless' which is materially less favourable to the Appellant than the test adopted by the trial judge in his directions to the jury. The word 'reckless' in s 101(1)(b) does not import the objective concept of negligence or carelessness.[22]

  1. [75]
    It is contended by the Appellants that the Learned Industrial Magistrate wrongly distinguished  the Victorian Court of Appeal's decision in R v Towle on the basis that the offences in Towle were ones of gross criminal negligence involving an objective test of foreseeability of harm; and were ones where conscious disregard of a known risk was an aggravating factor rather than an element of the offence.[23]
  1. [76]
    The Respondent accepts that her Honour's characterisation of the offences in Towle "was not entirely correct."
  1. [77]
    To better appreciate the Appellants contention, it is useful to embark on a short survey of the Towle decision.
  1. [78]
    In that case, the accused (Mr Towle) had lost control of his car and collided with a group of young people resulting in six deaths and seriously injuring four others. Mr Towle was charged with a number of offences including six counts of culpable driving causing death. Mr Towle was separately charged with two counts of reckless conduct endangering serious injury in regard to two of his children which had been travelling with him in the car at the time of the incident.
  1. [79]
    The culpable driving charges were brought pursuant to s 318(2) of the Crimes Act 1958 (Vic) which provided that a person drives a motor vehicle culpably if he drives the vehicle:
  1. (a)
    recklessly, that is to say, if he consciously and unjustifiably disregards a substantial risk that the death of another person or the infliction of grievous bodily harm upon another person may result from the driving; or
  2. (b)
    negligently, that is to say, if he fails unjustifiably and to a gross degree to observe the standard of care which a reasonable man would have observed in all the circumstances of the case.

(emphasis added)

  1. [80]
    The jury acquitted Mr Towle on all six culpable driving charges and he was acquitted of the reckless endangerment charges in relation to his children.  Mr Towell was however convicted on other dangerous driving offences. Mr Towle appealed on a number of grounds including that the sentences imposed were manifestly excessive. Maxwell P wrote:

In my opinion, the basis on which the judge sentenced T was not inconsistent with the acquittals on the counts of culpable driving and recklessly endangering his children. The submissions advanced on behalf of T overlook a fundamental distinction, between conscious disregard of a known risk on the one hand and a failure to take sufficient care to avoid or eliminate a known risk on the other. Conscious disregard of risk is what defines the legal concept of recklessness. Failure to take sufficient care, on the other hand, is what defines the legal concept of negligence.

The culpable driving provisions themselves illustrate this distinction. The first of the four categories of culpable driving – ‘reckless culpable driving’, in s 318(2)(a) – is defined as ‘conscious and unjustifiable disregard’ of a substantial risk of death or infliction of grievous bodily harm. By contrast, the second category – ‘negligent culpable driving’, in s 318(2)(b) – is framed in the language of negligence. That offence is committed where a driver ‘fails unjustifiably and to a gross degree to observe the standard of care which a reasonable man would have observed in all the circumstances of the case’. More than once, this Court has expressed the view that reckless culpable driving involves greater culpability than negligent culpable driving. Consciously disregarding a risk is – generally – more serious than gross negligence.

Conscious disregard of risk is likewise the defining feature of the offence of reckless endangerment with which T was charged. As the judge correctly explained in his charge, the jury could only convict T of that offence if they were satisfied beyond reasonable doubt that the accused in fact foresaw that placing the child in danger of serious injury was a probable consequence of his driving in the circumstances. On that element, the prosecution must prove that the accused, himself, not some other person, but the accused, himself, in fact foresaw that placing the child in danger of serious injury was a probable consequence of his driving in the circumstances.

The jury were not so satisfied. They did not consider that T had driven as he did in conscious disregard of the risk of serious injury to his children. This conclusion may be thought unsurprising. The circumstances must be rare where a parent who is of sound mind and sober, as T was, would be found to have proceeded with a course of conduct knowing that to do so would expose his/her child(ren) to a risk of serious injury. Senior counsel for T in his final address to the jury described the charge as ‘preposterous and absurd’. Even the prosecutor implicitly acknowledged that the idea might seem improbable.[24]

  1. [81]
    The reckless endangerment charge that was brought against Mr Towle is the same offence considered in the Victorian Court of Appeal decisions of R v Nuri[25] and R v Abdul-Rasool.[26] Both Nuri and Abdul-Rasool involved charges pursuant to s 22 of the Crime Act 1958 (Vic) which defined conduct endangering life in the following terms:

A person who, without lawful excuse, recklessly engages in conduct that places or may place another person in danger of death is guilty of an indictable offence.

  1. [82]
    In Nuri it was alleged that the accused grappled for possession of a loaded police service revolver and was accused of recklessly engaging in conduct which placed a person in danger of death. In Abdul-Rasool the accused poured petrol over herself in the vicinity of others and was accused of engaging in reckless conduct endangering life.
  1. [83]
    In the absence of a statutory definition of "reckless", the Court of Appeal in Nuri and Abdul-Rasool adopted the common law test of "reckless" to conclude that a person was "reckless" if "…they foresaw that placing another in danger … was a … consequence of their conduct …[27]
  1. [84]
    It was in this context that Maxwell P adopted "conscious disregard of risk" as the defining feature of the legal concept of recklessness.
  1. [85]
    The proposition that conscious disregard or indifference to the possible consequences of acts and omissions must be established to found recklessness was explored in ASIC v Mariner[28]. In that case, Beach J was called upon to consider an alleged breach by a company of section 631(2)(b) of the Corporations Act, which provides:

A person must not publicly propose, either alone or with other persons, to make a takeover bid if the person is reckless as to whether they will be able to perform their obligations relating to the takeover bid if a substantial proportion of the offers under the bid are accepted.

  1. [86]
    It was alleged that the company failed to comply with s 631(2)(b) of the Act by publicly proposing to make a takeover bid for "Austock" and being reckless as to whether it would be able to perform its obligations if the bid was accepted.
  1. [87]
    The first question that was addressed by Beach J was whether ASIC only had to prove Mariner ought to have been aware of a substantial risk that it could not perform its obligations under the bid (an objective question), or whether ASIC had to prove that Mariner was actually aware of that risk (a subjective question)?
  1. [88]
    Beach J said the test is subjective. He wrote:

In a criminal or quasi-criminal context, for recklessness to be established the risk of a particular result must be subjectively understood by the defendant. Further, there must be a conscious disregard of or indifference to that risk.

His Honour went on to observe:

Recklessness is an actual advertence to risk but a conscious disregard of or indifference to the risk. Contrastingly, negligence or carelessness is where there may be no advertence to or conscious awareness of the risk at all.[29]

  1. [89]
    In the context of Workplace Health and Safety, reference was made to the decision of Orbit Drilling v The Queen.[30] In that case, a worker was killed when the Mack truck he was driving went out of control on a steep slope and overturned. The truck had defective rear brakes which the company was aware of.
  1. [90]
    The company pleaded guilty to an offence under s 32 of the Occupational Health and Safety Act 2004 (Vic). In pleading guilty to a breach of s 32 the company admitted that it had recklessly engaged in conduct which placed a person in danger of serious injury. Section 32 provides that where a person without lawful excuse recklessly engages in conduct that places or may place another person who is at a workplace in danger of serious injury.
  1. [91]
    The sentencing judge said that reckless endangerment requires knowledge of the company that "serious injury would probably result from the conduct of the company…"The Court repeated what was said in Muteneri v Cheeseman[31] that "recklessness involves acting with indifference towards or in disregard of what is realised or foreseen to be the probable consequences of the relevant conduct." The Court went on:

By its plea of guilty the company admitted that, at the time the site manager required Mr Alford to drive the truck on the steep slope, the company was aware that requiring him to do so would probably place him in danger of serious injury. Despite being aware of that risk, the company nevertheless proceeded to require him to carry out that task, indifferent to the probable danger. Put simply, the company recklessly disregarded a known risk of serious injury to its employee.[32]

  1. [92]
    Looking further afield, in Voisine v. United States, the US Supreme Court was called on to decide a case involving two men (Voisine and Armstrong) both convicted of domestic violence. Both men were later convicted of unlawful firearms possession. Voisine and Armstrong did not deny that they abused their partners; they were seeking to overturn their firearms convictions on the basis that they were convicted of a "less violent" type of domestic assault. Federal law prohibits any person convicted of a misdemeanour crime of domestic violence from possessing a firearm.  They claimed that convictions based on abusive conduct that is "reckless" but not "intentional" should not disqualify them from possessing firearms. Kagan J delivered the opinion of the Court in which Roberts CJ, Kennedy, Ginsburg, Breyer, and Alito JJ joined. In concluding that a conviction for a misdemeanour assault conviction for reckless conduct would trigger the statutory firearms ban, the Court said:

To commit an assault recklessly is to take that action with a certain state of mind (or mens rea)—in the dominant formulation, to "consciously disregard[ ]"a substantial risk that the conduct will cause harm to another.[33]

Conclusions on defining "recklessness"

  1. [93]
    I find that the Learned Industrial Magistrate's formulation of the test of recklessness is flawed. First, her Honour found that to do an act recklessly under s 704 means to do an act, whilst at that time being cognisant of the risks associated with the act, but without the need to consciously decide to risk harm being done. 
  1. [94]
    Her Honour said that she was:

… satisfied beyond reasonable doubt that at the time he operated the ST-80 Mr Kilby apprehended the risks associated with operation of that equipment."[34]

  1. [95]
    However, what is required under s 704 is not a cognisance of the risks associated with the operation of the equipment but rather a cognisance of the possibility that in doing the act you might adversely affect the safety of someone at the operating plant.
  1. [96]
    The Respondent contends that the findings of her Honour:

…made about Mr Kilby's attendance in safety meetings, and that this would have meant he thoroughly appreciated the risks associated with the operation of the ST-80 at the time he engaged it, were sufficient to satisfy the correct test. That is because of the very low threshold of the adverse nature of the risk that must be foreseen.[35]

  1. [97]
    On the Respondent's submission, a general appreciation of the risks associated with the operation of the ST-80 was sufficient regardless of whether, at the time of activating the ST-80, Mr Kilby was cognisant at all of the possibility that someone might, in fact, be in the path of the ST-80 so as to engage those risks.[36]
  1. [98]
    Section 704 requires proof that Mr Kilby's activation of the ST-80 was done recklessly. Mr Kilby had to perform the act with cognisance of the fact that doing so "might adversely affect the safety of anyone at the plant". I accept the submission of the Appellants that it is inconsistent with the statutory scheme to regard a person as having a reckless state of mind merely on the basis that the person has a general awareness or appreciation of the risks associated with operating the ST-80 and not doing anything to ameliorate those risks.
  1. [99]
    Her Honour concluded that:

There were things Mr Kilby could have done to ameliorate the risks the ST-80 posed. He had an unobstructed view of the drill floor and would have been able to see Mr Dodunski and Mr Mullings on the drill floor, had he looked. He did not check the computer HMI screen on from of him to ascertain whether the ST-80 E-stop had been activated by anyone on the drill floor nor did he communicate his intention to operate the ST-80 either:

  1. over the intercom microphone; or
  2. by making visual contact with anyone on the drill floor and exchanging hand gestures.
  1. [100]
    Her Honour's findings import the objective concept of negligence thereby blurring the distinction between recklessness and negligence. The failure to take reasonable care to avoid or eliminate a known risk is what defines the legal concept of negligence.[37]
  1. [101]
    Having regard to the authorities, I am of the view that the test is at the time Mr Kilby activated the ST-80 he foresaw that doing so might adversely affect the safety of someone at the operating plant. It is not sufficient to show only that a risk was "known" or "obvious", what must be established is that the "known" or "obvious" risk was "consciously disregarded".

Beyond Reasonable Doubt – Ground 1

  1. [102]
    The Learned Industrial Magistrate could only convict Mr Kilby of the offence if she was satisfied beyond reasonable doubt that Mr Kilby in fact foresaw at the time of doing the act, namely, operating the ST-80 that it might adversely affect the safety of someone at the plant. The prosecution must prove that Mr Kilby, himself, in fact foresaw that operating the ST-80 might affect the safety of someone at the operating plant.
  1. [103]
    For the reasons that follow, the prosecution has failed to prove the offence under s704 beyond reasonable doubt.
  1. [104]
    It is asserted by the Respondent that Mr Kilby was well aware that Mr Dodunski was likely to be in-between the drill string and the ST-80 whilst the dog collar was being fitted. Accordingly, this renders Mr Kilby's appreciation of the level of risk from its activation as acute. The submission is based, in part, on the interview between Mr Kilby and Departmental investigators and the subsequent interview with Sergeant Mitchell where he said:

I set slips, and Gareth and Dan went in to fit the dog collar, they went in on their own accord.

  1. [105]
    It is submitted that it can be safely inferred that Mr Kilby would have foreseen the likelihood of Mr Dodunski's and Mr Mulling's imminent entry into the danger zone around the ST-80.[38] Whilst the Learned Industrial Magistrate found that Mr Kilby did not know that Mr Dodunski was in the path of the ST-80 until he activated it, it was submitted by the Respondent that it is open for this Court to find that: Mr Kilby actually saw Mr Dodunski and Mr Mullings enter the derrick to fit the dog collar before he spoke to Mr Marshall.
  1. [106]
    The evidence is that the crew had been undertaking the task of tripping out for approximately three hours before the incident occurred.[39] The drill collar was not reached until just before the incident. The process of tripping out did not require the crew to stand in the path of the ST-80 prior to the installation of the dog collar.
  1. [107]
    Mr Paul Beswick, the rig manager gave evidence that it was not necessary for workers to position themselves between the drill string and the ST-80 to install the dog collar. Equally, Mr Ashley Jenner gave evidence that the process was that workers would position themselves so that they were not in the path of the ST-80 when they set the slips.[40]
  1. [108]
    Only Mr Mullings and Mr Dixon gave evidence concerning the positioning of the crew in the path of the ST-80.
  1. [109]
    In examination-in-chief, Mr Mullings told the court that the E-stop had been utilised for installing the slips in the three hours before the incident.[41] However, in cross-examination the following exchange took place:
Mr Scott:Now, would it be correct to say that a worker was only required to press the E-stop if they went inside the derrick?
Mr Mullings:---Yes.
Mr Scott:Which, in practical terms, means into the area between the ST-80 and the drill string?
Mr Mullings:Yes – essentially, yes.
Mr Scott:Right. And the reason for that is because once they go into that area, they’re getting into the forward moving parts of the ST-80?
Mr Mullings:You had to go into the danger zone to – to hit the e-stop, essentially. Yep.
Mr Scott:Yes. But if you’re outside the derrick, you’re not in the danger zone?
Mr Mullings:No.
Mr Scott:Thank you. Now, the position is that in order to install the slips, a worker did not have to go inside the derrick, did they?
Mr Mullings:No.
Mr Scott:That’s correct?
Mr Mullings:Yes. Yes. Sorry.
Mr Scott:Right. And the – and – and therefore in order to – well, I’ll rephrase that. It was unnecessary for a worker to press the e-stop before installing the slips?
Mr Mullings:Correct.
Mr Scott:The worker went inside the drill string to install the drill collar; that’s correct?
Mr Mullings:The dog collar.
Mr Scott:I beg your pardon
Mr Mullings:Yep.
Mr Scott:The dog collar?
Mr Mullings:Yep.
Mr Scott:And because of that once the stage had been reached to install the dog collar, it was then necessary to press the e-stop; that’s correct?
Mr Mullings:Yes.
Mr Scott:You said, I think, in response to some questions to my learned friend – sorry. I’ll start that again. On the day in question you didn’t reach the drill collar until just before the incident?
Mr Mullings:Yes.
Mr Scott:And it wasn’t until that point that it was necessary to install the dog collar?
Mr Mullings:That’s right.
Mr Scott:So it wasn’t until that point that it was necessary to press the e-stop?
Mr Mullings:Technically yes.
Mr Scott:And therefore on the earlier occasions that day when the slips were installed neither you nor Gareth went inside the derrick?
Mr Mullings:We would have most likely gone in but I can’t recall a certain task or - - - Okay?--- - - - anything involving it.
Mr Scott:Okay. I’ll re – I’ll be clearer: for the purposes of installing slips, you wouldn’t have had to go inside the derrick?
Mr Mullings:We shouldn’t have had to have gone in for slips. No.
Mr Scott:Okay. And on the day in question when you were installing the slips, neither of you would have pressed the e-stop?
Mr Mullings:I – I can’t recall if we did or did not. Sorry.[42]
  1. [110]
    Mr Dixon gave evidence regarding the positioning of Mr Dodunski in the moments leading up to the incident. He said:
Mr Hunter:All right. Now, you’ve told us about the place that Mr Dodunski was in, and the position that he was in immediately before – moments before the ST-80 made contact with him. Had you seen him in that position earlier that shift?
Mr Dixon:Yes.
Mr Hunter:On how many occasions?
Mr Dixon:Actually, I’m not sure. When we were tripping pipe, there’s no need to be in that area. I can’t recall.[43]
  1. [111]
    In the signed statement of Mr Kilby contained in Sergeant Mitchell's police notebook it is relevantly recorded:

I was speaking with Aaron who was trying to find the day lease hand. I then feel like I have fucked up and gone into auto pilot and hit the button for the ST-80 to come out and break the connection. As soon as I hit it, I saw the boys there. I was trying to stop it, but you can't stop it once you have started it. The boys should have hit the emergency stop as soon as they went in which would not allow the ST-80 to be operated…[44]

  1. [112]
    In an interview with Mr Ian Bartels[45], a senior inspector of the Queensland Petroleum and Gas Inspectorate, Mr Kilby is recorded as saying:

Okay so leading up to the incident we were just finished drilling the surface hole, we pulled out and ran back in for a wiper trip. Got to the bottom, circulated, cleaned the hole and commenced pulling out. Then smoko was at three o'clock, just brought it up to the doghouse. I was rung from the rig manager's office looking for the day lease hand so I tried calling him on the intercom and hoped that he would have heard it and gone to the office. Continued doing what we're doing. We just got to the, finished pulling the heavy weights which don't require a dog collar, just break them out straight away. Then got to the first drill collar, I've set the slips, in this time Aaron, the Superintendent, has come up to enquire as to where the day lease hand was. I briefly stopped doing what I was doing, said I'd call him on the intercom, don't know where he is. Gone back to the job and gone straight into break out without realising that the boys had already gone in there to put the dog collar on. And soon as I've realised I've trying to hit stop but there is no stop button, I was hitting off, off, which does nothing. Should have been hitting retract which is on the other side of the screen. And in this time I'm trying to shout but they can't hear me cause I'm in the doghouse and that is when the ST-80 collected Gareth and killed him.[46]

Further it is recorded:

Well cause like I just finished talking to Aaron, I've just gone straight to what my next step is which is to break out the joint and then as soon as I've touched it I've realised that the boys have already you know they're just being efficient, getting, gone in there without looking at me for confirmation and then it's just.[47]

  1. [113]
    The submission by the Respondent is that notwithstanding that Mr Kilby was aware of the presence of Messrs Dodunski and Mullings in the danger zone, he nevertheless proceeded to activate the ST-80 knowing that to do so might adversely affect the safety of someone at the operating plant. I do not accept that submission for a number of reasons.
  1. [114]
    First, the evidence is insufficient to establish beyond reasonable doubt (as particularised in paragraph 12(c) of the Kilby Complaint) that Mr Kilby activated the ST-80 knowing that it would travel towards where Mr Dodunski had been engaged in a task.
  1. [115]
    Second, I do not accept that Mr Kilby would have activated the ST-80 if he was aware of the presence of Messrs Dodunski and Mullings in the danger zone and with the knowledge that Mr Dodunski's safety may be affected.  
  1. [116]
    Third, Mr Mullings was not in the path of the ST-80.[48] Mr Dodunski was between the ST-80 and the drill string, and Mr Mullings was on the opposite side.[49]
  1. [117]
    Fourthly, when the evidence is read in context, it is clear in my mind that Mr Kilby did not know of the presence of Mr Dodunski until after the ST-80 had been activated. As Mr Kilby is recorded as saying in the interview with Mr Bartels "…the boys have already you know they're just being efficient, getting, gone in there without looking at me for confirmation and then it's just." This evidence together with Mr Kilby's immediate panicked reaction when he became aware that Mr Dodunski presence suggests that he was not expecting either Mr Dodunski or Mr Mullings to be installing the dog collar and is inconsistent with a conclusion that he was aware that Mr Dodunski was in the path of the ST-80.
  1. [118]
    Fifth, the evidence is that Mr Kilby was interrupted by a question from Mr Marshall concerning the location of the lease hand.
  1. [119]
    Immediately following the exchange with Mr Marshall, Mr Kilby turned back and went into "autopilot" to the "next step". In the interviews with Sergeant Mitchell and Mr Bartels on 24 June 2013[50] Mr Kilby said that after the slips were set "my next step" was to "break out the joint". In fact the next steps were that the E-stop was to be activated, visual confirmation was to be given by the floor crew to Mr Kilby and only then was the ST-80 to be activated.
  1. [120]
    I accept that Mr Kilby was distracted by the conversation with Mr Marshall and, consequently, he was not conscious that the safety of anyone at the plant might be adversely affected by the activation of the ST-80. I cannot therefore be satisfied beyond reasonable doubt that Mr Kilby activated the ST-80 whilst, at the same time, foreseeing that in doing so he might adversely affect the safety of someone at the operating plant.
  1. [121]
    It follows that having reached that conclusion the decision of the Learned Industrial Magistrate ought to be set aside and the complaints dismissed. However, for completeness I will briefly address the balance of the grounds of appeal.

Ground 2 – Errors of Fact

  1. [122]
    The Appellants contend that the Learned Industrial Magistrate made the following errors of fact:
  1. (a)
    the ST-80 was a danger to any person in its vicinity; and
  2. (b)
    there was a short lapse of time between Mr Kilby's conversation with Mr Marshall and Mr Kilby activating the ST-80.

The ST-80 was a danger to any person in its vicinity

  1. [123]
    The risk posed by the ST-80 to workers was a risk of a crush injury which arose when they positioned themselves between the drill string and the ST-80.[51]
  1. [124]
    The Appellants contend that the finding by the Learned Industrial Magistrate that on the evidence before her, the ST-80 was a danger to any person in its vicinity was not established on the evidence and was therefore an error.
  1. [125]
    The Respondent submits that her Honour clearly appreciated the evidence and that her conclusion was "a turn of phrase only" and "the statement by her Honour was a shorthand one, cognisant of the evidence on the issue, setting the background to more significant findings of fact." I do not accept the submission. Irrespective of the complexion that the Respondent suggests should be given to the finding of her Honour, it is simply a fact that the conclusion reached by her was not supported by the evidence and was an error.

Lapse of time between Mr Kilby's conversation with Mr Marshall and Mr Kilby activating the ST-80

  1. [126]
    The Appellants contend that there was no evidence to support the finding that there was a "short lapse of time" between the conversation with Mr Marshall and the activation of the ST-80.
  1. [127]
    The evidence is that Mr Kilby activated the ST-80 "straight" after the conversation with Mr Marshall. It was not the case as found by her Honour "…that it was after the conversation had been completed and a short, but unspecified period of time had elapsed, that Mr Kilby brought to his mind that his next step was to break out the pipe requiring him to activate the ST-80." The Learned Industrial Magistrate placed a gloss on the evidence. It was an error.

The evidence of Professor Dux

  1. [128]
    This ground is said to be based upon a finding by the Learned Industrial Magistrate that no weight should be given to the opinions of Associate Professor Dux. To be clear, the Learned Industrial Magistrate did not say that she gave "no" weight to the evidence of Professor Dux but rather that she "derived very little assistance from it."[52]
  1. [129]
    Professor Dux is an expert in the field of Multi-tasking and Distraction. Her Honour accepted Professor Dux's "field of endeavour" as a "genuine area of expertise and neuroscience." 
  1. [130]
    The prosecution challenged Professor Dux's evidence in the court below on the basis that:
  1. (a)
    Professor Dux's opinion concerns matters that are within the Court's knowledge and experience; and
  2. (b)
    Professor Dux purports to give evidence about legal concepts and, to that extent, swears the issue.[53]
  1. [131]
    However, the Learned Industrial Magistrate went beyond the prosecutions grounds of challenge to introduce a third ground, namely, that Professor Dux's evidence was based upon what she described as: "Mr Kilby's version of events, upon which his opinion is based, is not in sworn evidence before me." Her Honour found that:

As noted earlier in this decision, Professor Dux concluded that Mr Kilby was required to be cognisant of the risk posed by the ST-80 at the time he did the act. He opined that Mr Kilby "…(h)ad a particular sequence of tasks to safely operate the ST-80. At a critical point of that sequence …he was interrupted in this thought processes by Mr Marshall … he turned back and made a sequencing error. He activated the ST-80 without first checking if it was safe to do so" The difficulty with this opinion is that the evidence before the court does not support the conclusion that Mr Kilby was interrupted after he commenced the sequence of steps required to undertake the task of operating the ST-80, but rather that he commenced the task of operating the ST-80 after he concluded his conversation with Mr Marshall.

  1. [132]
    As a statement of principle, expert opinion is not usually admissible unless the constituent facts on which it is based are properly proved by admissible evidence.[54]
  1. [133]
    In his oral evidence, Professor Dux set out the basis of his opinion:
Professor Dux:So on the day in question, Mr Kilby who was in his second hitch, I believe, as – as driller was operating the ST80. On the floor of the drill rig was Mr Dodunski, Mr Mullings. Before Mr Kilby activated the ST80, Mr Marshall entered his location, and he then asked him for a second time about the location of another leasehand.
Mr Glynn:Did you have any view of – form any view about Mr Marshall’s position?
Professor Dux:Mr Marshall, I understand, was his superior in the information I was provided with, and, indeed, that made [indistinct] assumption that it was a piece of information, or, indeed, anyone’s supervisor – if they ask you a question, generally, you want to attend to that information and process it and respond, and I believe Mr Kilby did do that. Then following that exchange in which Mr Kilby was facing Mr Marshall, he then – it’s my understanding – turned back and activated the ST80 without checking, at the time, whether Mr Mulling and Mr Dodunski were clear of the path of the ST80 which took only six seconds to get to the centre of the rig. He immediately noticed an error that he had made and tried to alert Mr Dodunski, Mr Mullings. However, he was unable to do so. Mr Mullings noticed the ST80 had been engaged, but was unable to alert Mr Dodunski, and as a result, Mr Dodunski was injured which led to his death.[55]
  1. [134]
    Professor Dux's opinion was:
Mr Glynn:Well, don’t tell us what’s in your report. Just tell us what your opinion was?
Professor Dux:My opinion was this; you have information processing capacity limits which impair our ability to perform sequences of tasks in the appropriate sequence which they are to be performed. It’s my opinion that what happened in the case at hand was Mr Kilby had a particular sequence of tasks in which he engaged in to safety operate the ST-80. At a critical point of that sequence of tasks, he was interrupted in his thought processes by Mr Marshall. Immediately upon doing that, he turned back and made a sequencing error. He activated the ST-80 without first checking if it was safe to do so. So it was the distraction/interruption that led him to initiate the ST-80 before he checked the location of his workers.[56]
  1. [135]
    It is clear from Professor Dux's evidence that he has identified the factual assumptions upon which his opinion is based. Moreover, there is, in my view, an evidentiary basis for those assumptions.
  1. [136]
    The Appellants further argue that there is an error in the reasoning of her Honour, namely, the view that Mr Kilby's act in activating the ST-80 was in isolation and not part of a wider sequence of tasks which comprised the process of tripping out which had been undertaken for three hours before the incident.

 

  1. [137]
    Her Honour's reasons note that the task of operating the ST-80 only commenced at the point Mr Kilby activated it. The Respondent argues that Mr Kilby was not in the middle of the task when the conversation between Mr Kilby and Mr Marshall occurred.
  1. [138]
    Professor Dux notes in his oral evidence, that there are two discrete tasks. The first involves the conversation with Mr Marshall and the second involves the activation of the ST-80. As Professor Dux points out, two discrete tasks, whilst not multitasking, can nevertheless interfere with each other. 
  1. [139]
    The following exchange in cross-examination illustrates the point:
Mr Hunter:And then to apply force once to a touch screen?
Professor Dux:Yes.
Mr Hunter:You say that’s a complex task?
Professor Dux:Yes, I would say it’s a complex cognitive task. Just because of the distracting information around the user interface and also having to turn away from a location that he was supposed to be looking to engage with someone else in conversation.
Mr Hunter:But he wasn’t simultaneously engaged in conversation whilst pressing the button, was he?
Professor Dux:No, he wasn’t.
Mr Hunter:No. They were discrete events?
Professor Dux:Yes. But discrete events can also interfere with one another.
Mr Hunter:But he wasn’t multitasking, was he?
Professor Dux:He wasn’t - - -
Mr Hunter:He stopped and answered the question posed to him by Mr Marshall and then turned back around and pushed the button without looking, didn’t he?
Professor Dux:It’s my understanding that he did not look for – to the floor before activating the button. And when I talk about multitasking, it could be argued that multitasking is simply rapid switching between two tasks that you’re engaged in, so that’s why I refer to it as multitasking.
Mr Hunter:Right. You’re not referring to the simultaneous performance of two tasks?
Professor Dux:No. I mean tasks preformed close together in time are often referred to ask multitasking. In fact sometimes people even argue that we may not be possible multitasking period. All we’re doing is rapidly switching between tasks.
  1. [140]
    It was open for her Honour to come to the conclusion that she did. As I understand the submissions of the Appellants, it is not argued that there was insufficient or no evidence to support the conclusion reached by her Honour. Rather, that the Appellants point to other evidence or an approach to the evidence which might support a different conclusion. That in itself is not an error.
  1. [141]
    The Respondent's contend that opinion expressed by Professor Dux concerns a matter that is within the Court's knowledge and experience and further that his evidence usurps the function of the Court as the trier of fact.
  1. [142]
    The argument advanced by the Respondent is that the nature of the distraction in the present case is a well understood aspect of normal human cognitive processes that the court could understand and determine for itself.[57]
  1. [143]
    In the submissions to the Learned Industrial Magistrate, the prosecution argued, in apparent reliance on R v Honeysett[58] that regarding Professor Dux:

His evidence essentially "gave the unwarranted appearance of science" to the defence case, unduly elevating a mundane and well understood aspect of normal human cognitive processes into a question of science.

  1. [144]
    In Honeysett the High Court concluded that the opinions of the expert witness were not based on "specialised knowledge" but "gave the unwarranted appearance of science to the prosecution case" thereby compromising the jury’s ability to evaluate the evidence. In that case, the prosecution also relied on the evidence of an expert who had examined images of the robber and the Appellant. Notwithstanding that almost all of the robber's body was covered, based on his examination of the images the expert claimed to have identified various points of anatomical similarity and no dissimilarities between the Appellant and the robber. These conclusions were based entirely on the expert’s perception. No form of anthropometric measurement was used, as the images were not taken from the same angle and body-positioning across the images was not the same. His observation of the images, he explained, did not differ from the kind of observation that could be carried out by a lay observer, save for the fact that his training and study in the field of anatomy meant that he had a better understanding of the shape and proportions of the human body.
  1. [145]
    The Respondent contends that the evidence of Professor Dux can be summarised as follows:

When a person is doing something and someone comes along and talks to them, that can be distracting … and that can cause mistakes.[59]

  1. [146]
    Dixon CJ in Clarke v Ryan wrote:

The opinion of witnesses possessing peculiar skill is admissible whenever the subject matter of enquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it without assistance. … but [expert witnesses] … cannot be permitted to attempt to point out to the jury matters which the jury could determine for themselves or to formulate their empirical knowledge as a universal law.[60]

  1. [147]
    In R v Jones, North J (Holmes JA and Henry J agreeing) said:

Opinion evidence is not admissible unless the inquiry is into a subject matter, the nature of which, is such as to require a course of study into a body of knowledge or experience which is sufficiently organised or recognised to be accepted as reliable, so that the opinion of the expert may be of assistance to the court. In R v Bonython King CJ said:

Before admitting the opinion of a witness into evidence as expert testimony, the judge must consider and decide two questions. The first is whether the subject matter of the opinion falls within the class of subjects upon which expert testimony is permissible. This first question may be divided into two parts: (a) whether the subject matter of the opinion is such that a person without instruction or experience in the area of knowledge or human experience would be able to form a sound judgment on the matter without the assistance of witnesses possessing special knowledge or experience in the area, and (b) whether the subject matter of the opinion forms part of a body of knowledge or experience which is sufficiently organized or recognized to be accepted as a reliable body of knowledge or experience, a special acquaintance with which by the witness would render his opinion of assistance to the court. The second question is whether the witness has acquired by study or experience sufficient knowledge of the subject to render his opinion of value in resolving the issues before the court.

This statement of the law holds true. Thus in Osland v The Queen Gaudron and Gummow JJ said:

Expert evidence is admissible with respect to a relevant matter about which ordinary people are ‘[not] able to form a sound judgment … without the assistance of [those] possessing special knowledge or experience in the area’ and which is the subject ‘of a body of knowledge or experience which is sufficiently organised or recognised to be accepted as a reliable body of knowledge or experience’.[61]

  1. [148]
    The onus is on the party seeking to have the evidence admitted, to demonstrate that the person has specialised knowledge based on his or her training, study or experience which enables him or her to opine on a matter that is relevant to an issue in a proceeding. That party must also demonstrate that the opinion is wholly or substantially based on that knowledge.[62] A failure to demonstrate that a witness' opinion is based on his or her specialised knowledge affects its admissibility, not its weight.[63]
  1. [149]
    Whilst the question as to whether Mr Kilby was distracted at the time he operated the ST-80 is a matter for determination by the tribunal of fact. The evidence of Professor Dux goes to support a conclusion that human cognition is more capacity limited than may be commonly understood and the performance of even simple tasks can be impaired by distraction.[64]

Balance of Grounds of Appeal

  1. [150]
    Grounds 3, 4 and 5 can be conveniently dealt with together. Ground 3 of the appeal is based on the contention that the Learned Industrial Magistrate erred in misconstruing the word "recklessly" as it is used in s 704 of the P and G Act. Grounds 4 and 5 are based upon the contention that the Learned Industrial Magistrate erred by wrongly concluding that for the prosecution to prove that an act or omission was done or made "recklessly" within the meaning of s704 it was unnecessary for them to prove that the act or omission was done or made in "conscious disregard" of the risk that safety of persons might be adversely affected by doing or making of the act or omission.
  1. [151]
    Having concluded that her Honour misconstrued the word "recklessly" as it is used in s 704 of the P and G Act; that her Honour erred by wrongly concluding that the prosecution did not need to prove that the act or omission was done in "conscious disregard" of the risk that the safety of persons might be adversely affected by doing or making the act or omission; and that her Honour's finding that Mr Kilby activated the Iron Roughneck (ST-80) "recklessly" was an error, it follows therefore, that appeal grounds 3, 4 and 5 have been established.
  1. [152]
    Equally, in light of my findings, it is not necessary to deal with Ground 6 which relates only to the appellant Saxon.

Costs

  1. [153]
    Following the convictions on 23 August 2018, a costs order was made by the Learned Industrial Magistrate that the Appellants pay the Respondent's costs in the amount $300,000 by no later than 21 May 2019. 
  1. [154]
    It has recently come to the parties attention that there is no power to award "representation costs" in respect of offence proceedings under the P and G Act.
  1. [155]
    It has been accepted in this Court[65] and the Industrial Magistrates Court that sections 158 and 158A of the Justices Act 1886 applied to legal costs concerning proceedings for breaches of the P and G Act. Those decisions were decided without the benefit of any argument before this Court as to the applicability of s 319(3).
  1. [156]
    Relevantly s 319(3) of the IR Act 1999 provides:
  1. (3)
    However, in proceedings mentioned in subsection (2)(c)(iii), the person represented can not be awarded costs of the representation.
  1. [157]
    The Appellants submit that the costs order was made by the Learned Industrial Magistrate in circumstances where there was no power to make such an order. Accordingly, it is submitted that the costs order ought to be set aside.
  1. [158]
    There is no judicial consideration of the application of s 319(3) of the IR Act 1999.
  1. [159]
    However, the Court was referred to the decision of Hall P in Fraser v Gardner[66] where consideration was given to the application of s 320(2) of the IR Act 1999 to a prosecution of an offence in the Industrial Magistrates Court under the Workplace Health and Safety Act 1995. In the course of the prosecution the complainant sought to rely on s 320 of the Industrial Relations Act 1999 as a head of power by which the Industrial Magistrate might admit otherwise inadmissible evidence. Section 320 provides as follows:
  1. Subsections (2) and (3) do not apply to proceedings for –
  1. the recovery of amounts, other than an amount ordered under section 278; or
  2. an offence against this Act.
  1. In proceedings, the commission or Industrial Magistrates Court –
  1. is not bound by technicalities, legal forms or rules of evidence; and
  2. may inform itself on a matter it considers appropriate in the exercise of its jurisdiction.
  1. Also, the commission or Industrial Magistrates Court is to be governed in its decision by equity, good conscience and the substantial merits of the case having regard to the interest of –
  1. the persons immediately concerned; and
  2. the community as a whole.
  1. In proceedings, the commission may admit evidence given before, and the findings of, the Anti-Discrimination Commission as evidence in the proceedings.
  2. In making a decision, the commission must consider the public interest, and to that end must consider –
  1. the objects of this Act; and
  2. the likely effects of the commission’s decision on the community, local community, economy, industry generally and the particular industry concerned.
  1. In exercising its jurisdiction, the commission must have appropriate regard to the rules.
  1. [160]
    In dismissing the appeal, Hall P referred to the definition of "proceedings" set out in s 319 of the IR Act 1999 and concluded:

The complainant legitimately relies heavily on the exclusion from s. 320 of "an offence against this Act”, see s. 320(1)(b). The submission is that proceedings for "an offence against another Act" are not excluded from the operation of s. 320. For myself, I consider it not to be a correct approach to commence with s. 320(1). In my view one should commence at s. 320(2) which indicates the scope of s. 320 rather than with the subsection which exempts some proceedings otherwise within its scope. It is difficult to treat the reference to "proceedings" in s. 320(2) as referring to anything other than proceedings under the Industrial Relations Act 1999. Given that the immediately preceding section, viz s. 319, defines "proceedings" to mean "proceedings under this Act or another Act being conducted by the court, the commission, an Industrial Magistrates Court or the Registrar" and that the definition is not repeated at s. 320, one would have thought that a different meaning was intended. It was unnecessary to exclude prosecutions under the Workplace Health and Safety Act 1995 from the operation of s. 320 because such prosecutions were not otherwise within the section.

  1. [161]
    In the "Explanatory Notes" which accompanied the Bill which became the IR Act 1999, the following appears: "Clause 319 provides a definition of 'proceeding' for the purpose of this clause. The clause specifies by whom a person ordered to appear or to be represented in a proceeding may be represented."[67]
  1. [162]
    In Brisbane City Council v Gillow & Simon Blackwood (Workers' Compensation Regulator) albeit in the context of the Workers' Compensation Rehabilitation Act 2003, Martin J took a similar approach to Hall P. His Honour wrote:

Section 320 of the IR Act concerns the "basis of decisions of the Commission". Section 320(2)(b) provides the Commission with a power "in proceedings" to "inform itself on a matter it considers appropriate in the exercise of its jurisdiction." Section 677 would, in the absence of a contrary intention, apply the provisions of s 320 of the IR Act to an appeal under the WCR Act.

The analysis of these sections is complicated by the express definition of "proceedings" in s 319. It provides that, in that section, "proceedings means proceedings under this or another Act being conducted by the court, the commission, an Industrial Magistrates Court or the registrar." It was argued that, because "proceedings" is defined in that way for the purposes of s 319 (and nowhere else in the IR Act) then "proceedings" in s 320 can only mean proceedings under the IR Act. That, though, overlooks the operation of s 677. It does not purport to change the meaning of "proceedings”, it merely (in the absence of a contrary intention) engages the relevant provisions of the IR Act when the Commission exercises jurisdiction under another Act.

The definition of "proceedings" in s 319 has been present in the IR Act since its enactment in 1999. It was not present in the Workplace Relations Act 1997. In the "Explanatory Notes" which accompanied the Bill which became the IR Act, the following appears: "Clause 319 provides a definition of "proceeding" for the purpose of this clause. The clause specifies by whom a person ordered to appear or to be represented in a proceeding may be represented.[68]

Meaning of Costs of Representation

  1. [163]
    As noted elsewhere, the IR Act 1999 applies to the proceedings. Section 319(2)(c)(iii) relevantly provides:

319 Representation of parties

  1. The party or person may be represented by a lawyer if, and only if –
  1. (c)
    For proceedings before an Industrial Magistrate Court, other than proceedings remitted under section 278(6) or 408F(5)-

  1. (iii)
    The proceedings are for the prosecution of an offence.
  1. [164]
    "Costs of representation" is not defined in the IR Act 1999 and no jurisprudence can be found in this jurisdiction as to its meaning. However, the Full Bench of the Fair Work Commission in Fitzgerald v Woolworths Limited[69] was called on to consider the term 'representation' in the context of a costs application in respect of an unfair dismissal application. After the decision was issued, Woolworths made an application for Fitzgerald to pay costs of the proceedings. The Full Bench found that the term 'representation' is concerned with more than just advocacy at a hearing. A lawyer[70] can be said to 'represent' their client when they engage in a wide range of activities connected with litigation, not just advocacy.[71]
  1. [165]
    The Full Bench considered that "representation" could not be construed narrowly and was wider than purely courtroom advocacy. They observed that: "A lawyer can be said to 'represent' their client when they engage in a wide range of activities connected with litigation, not just advocacy." The Full Bench made reference to the Australian Bar Association's model Barristers' Conduct Rules the equivalent provision is contained in Rule 15 of the Bar Association of Queensland's Barristers' Conduct Rules which provides:

15. Barristers’ work consists of:

  1. appearing as an advocate;
  2. preparing to appear as an advocate;
  3. negotiating for a client with an opponent to compromise a case;
  4. representing a client in a mediation or arbitration or other method of alternative dispute resolution;
  5. acting as a mediator or arbitrator or expert in any dispute resolution;
  6. giving legal advice;
  7. preparing or advising on documents to be used by a client or by others in relation to the client’s case or other affairs;
  8. carrying out work properly incidental to the kinds of work referred to in 15(a)15(g); and
  9. such other work as is from time to time commonly carried out by barristers.[72]
  1. [166]
    The Full Bench in Fitzgerald suggested that the nature of work undertaken by counsel would be no different with respect to a solicitor. Section 596(1) and (2) of the FW Act refers to a person being represented "in a matter" before the Commission. The word "matter" describes more than just a hearing, in a legal context it usually describes the whole situation that is brought before a court or tribunal.[73]
  1. [167]
    In its reasons for decision, the Full Bench also considered the High Court decision in R v Kelly; Ex parte The Commonwealth Public Service Clerical Association.[74] The High Court in that case had to consider the application of s 19 of the Public Service Arbitration Act 1920-1952, which provided:

No person or organization shall in any proceeding under this Act be represented by counsel or solicitor.

  1. [168]
    The factual issue in Kelly was whether the general secretary of the Commonwealth Public Service Clerical Association, who was also a barrister, was permitted to appear for the Association under the section. The Court said:

We are now called upon to say whether the order nisi should be made absolute, and that involves two questions; first, whether the case is within s. 19 and second, if it is not, whether the remedy of mandamus lies.

The first of these questions depends entirely on the terms of the section. Those terms are appropriate to describe the appearance before a tribunal of counsel or solicitor in his professional capacity on behalf of a client. There is no reason to suppose that it was meant to extend beyond that nor to give the language the provision uses any wider application. Clearly if a natural person who is a party to a proceeding under the Act is a barrister or a solicitor, s. 19 has nothing to say against his being heard. A corporation must proceed by the agency of natural persons and an organization not represented by counsel cannot appear before a tribunal except by some servant or agent. When it appears by its proper officer he acts as its servant, and even if he is a barrister or a solicitor he does not represent the organization in virtue of that status. The organization is not his client and his duties as well as his authorities are of a different description.

Section 19 does not vary materially from s. 12 of the Arbitration (Public Service) Act 1911, the language of which was taken from the last words of s. 27 of the Commonwealth Conciliation and Arbitration Act 1904. That section began by conferring a positive right upon an organization to be represented by a member or officer and upon any other party to be represented by an employee. Then followed the prohibition. In Waterside Workers Federation v. Commonwealth Steamship Owners' Association (1914) 8 CAR 53, Higgins J. as President of the Arbitration Court construed the words of prohibition as not excluding from the operation of the earlier or positive part of the section an officer or employee because he was qualified as a barrister or solicitor. That means that the words of prohibition referred only to representation by counsel or solicitor in his professional capacity. At the same time his Honour made it clear that the relation of the person who is a barrister or solicitor to the party whom he represented before the court as officer or employee must be in truth and reality that of an officer or employee and that a colourable employment or appointment would not do.

Although s. 19 confers no positive right to representation by an officer, employee or other agent and is confined to prohibiting representation by counsel or solicitor there is no reason for giving the words any wider meaning or application. The consequence is that the learned Chief Judge acted upon a mistaken interpretation of s. 19 in refusing to allow Mr. Smith to represent the association.”

  1. [169]
    After considering Kelly, the Full Bench in Fitzgerald concluded:

Although the provision considered by the Court referred to representation "in any proceeding”, which expression would generally be taken to refer to any application to a court in its civil jurisdiction for its intervention or action, the Court did not apparently regard it as operating more widely than the provision applying to a "hearing or determination" considered by Higgins J in Waterside Workers Federation v. Commonwealth Steamship Owners' Association, and considered its operation only in the context of an actual appearance before the tribunal by a lawyer. That may be explicable by the fact that in that era, the adduction of evidence and the making of submissions was done almost entirely in court and there was minimum scope for "representation" outside the courtroom setting.[75]

  1. [170]
    I accept that the "costs of representation" encompasses those activities usually associated with litigation as expressed in Rule 15 of the Bar Association of Queensland's Barristers' Conduct Rules and is not limited to just courtroom advocacy.
  1. [171]
    However, the expression "costs of representation" as used in s 319(3) of the IR Act does not, in my view, extend to disbursements.
  1. [172]
    It is submitted that in light of s 319(2)(c)(iii), the costs ordered by the Learned Industrial Magistrate ought to be set aside and substituted with a new costs order. I agree.

It is ordered that:

  1. The appeals are allowed;
  2. I will hear the parties as to the form of orders to be made.

Footnotes

[1] Fox v Percy (2003) 214 CLR 118, [20].

[2] (2000) 203 CLR 172, [23].

[3] (2003) 214 CLR 118, [22]-[23].

[4] (2000) 203 CLR 194, 203 [12]-[14].

[5] Coulton v Holcombe (1986) 162 CLR 1, 7. 

[6] [2009] 2 Qd R 489.

[7] [2009] 2 Qd R 489 [3]-[4].

[8] [2017] QCA 132 4-5.

[9] [2018] QCA 291, [14].

[10] Fox v Percy (2003) 214 CLR 118 at [22] – [25]; Rowe v Kemper [2009] 1 Qd R 247 at [3] – [5]; Commissioner of Police v Al Shakarji [2013] QCA 319 at [7]; Robinson Helicopter Company Inc v McDermott (2016) 90 ALJR 679 at [43], [57]; McDonald v Queensland Police Service [2017] QCA 255 at [47].

[11] Allesch v Maunz (2000) 203 CLR 172 at [23]; Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at [16]; Walker v Davlyn Homes Pty Ltd [2003] QCA 565 at [9]; Shambayati v Commissioner of Police [2013] QCA 57 at [23]; White v Commissioner of Police [2014] QCA 121 at [8]; McDonald v Queensland Police Service [2017] QCA 255 at [47].

[12] Harrison v Kilby & Anor [2018] QMC 6 [31]-[37] (italicised and bolded in original).

[13] T1 73-74.

[14] Harrison v Kilby & Anor [2018] QMC 6, [60]-[64] (citations omitted). 

[15] (1996) 6 Tas R 294-300.

[16] (2017) 260 CLR 305.

[17] 224 CLR 262, [33].

[18] UKHL 3; [1976] AC 182.

[19] (2011) 81 NSWLR 119, 133.

[20] R v Lagos [2003] QCA 121, [13].

[21] [2014] WASCA 115, [86]-[87].

[22] [2013] WASCA 202, [25].

[23]Harrison v Kilby & Anor [2018] QMC 6, [60].

[24] (2009) 54 MVR 543 [31]-[34] (bolding added).

[25] [1990] VR 641.

[26] (2008) 18 VR 586.

[27] R v Abdul-Rasool (2008) 18 VR 586, [19]; R v Nuri [1990] VR 641, 643.

[28] [2015] FCA 589.

[29] [2015] FCA 589, [258], [261].

[30] [2012] VSCA 82.

[31] [1998] 4 VR 484.

[32] (2012) 35 VR 399, [45].

[33] 579 U.S. (2016) 4.

[34] Harrison v Kilby & Anor [2018] QMC 6, [68].

[35] Respondent's submissions [81].

[36] Appellants submissions in reply [4].

[37] R v Towle (2009) 54 MVR 543, [31].

[38] Respondent Submissions [89]-[97]. 

[39] T1-72 Ll 27-29.

[40] T2-13 Ll.3-5.

[41] T1-72 Ll 32-33.

[42] T1-77 Ll.14-46; T1-78 Ll.1-17.

[43] T5-12 Ll 10-16.

[44] Exhibit 43.

[45] Exhibit 69.

[46] Exhibit 69, [38].

[47] Ibid, [54].

[48] See exhibit 22.

[49] T1-73 L.40 – T1-74 L.8, T1-74 Ll.35-40.

[50] Exhibit 69, 54.

[51] T5-12 Ll.17-21, T5-13 L.5

[52] Harrison v Kilby & Anor [2018] QMC 6, [77].

[53] Ibid, [75].

[54] See: Heydon J in Makita v Sprowles (2001) 52 NSWLR 705; Dasreef v Hawchar (2011) 243 CLR 588; TPC v Arnott's Ltd (No 5) (1990) 92 ALR 527; Arnott's Ltd v TPC (1990) 97 ALR 555, 589-598; R v Fowler (1985) 39 SASR 440, 443 per King CJ.

[55] T6-21 Ll.23-35

[56] T6-22 Ll. 6-15

[57] Respondent's submissions, [151].

[58] (2014) 253 CLR 122, 138 [45].

[59] T6-24 Ll.13-16

[60] (1916) 103 CLR 486, 491. 

[61] [2016] 2 Qd R 310.

[62] Dasreef Pty Limited v Hawchar (2011) 243 CLR 588, 603-604; [2011] HCA 21, [35]. 

[63] Dasreef Pty Limited v Hawchar (2011) 243 CLR 588, 605; [2011] HCA 21, [42]; Gunnersen v Henwood [2011] VSC 440, [64]. 

[64] T6-14 Ll. 20-30, T6-15 Ll.10-32, 6-17 Ll.37-45.

[65] De Preez v Pearce [2016] ICQ 023; Bell v Schloss [2016] ICQ 017.

[66] (2001) 167 QGIG 911.

[67] Explanatory Notes to the Industrial Relations Bill 1999 at 69.

[68] [2016] ICQ 007, [48]-[50].

[69] [2017] FWCFB 2797.

[70] Legal Profession Act 2007 defines Lawyer as "a person admitted to the legal profession under this Act or a corresponding law."

[71] Ibid. at para. 34

[72] These Rules are made pursuant to the Legal Profession Act 2007. They may be cited as the 2011 Barristers’ Rule, as amended.

[73] [2017] FWCFB 2797 [36].

[74] [1955] HCA 20; 92 CLR 10.

[75] Ibid [41].

Close

Editorial Notes

  • Published Case Name:

    Kilby v Harrison; Saxon Energy Services Australia Pty Ltd v Harrison

  • Shortened Case Name:

    Kilby v Harrison

  • MNC:

    [2019] ICQ 21

  • Court:

    ICQ

  • Judge(s):

    Member O'Connor VP

  • Date:

    11 Dec 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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