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Commissioner for Mine Safety and Health v Pearce[2016] ICQ 23

Commissioner for Mine Safety and Health v Pearce[2016] ICQ 23

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Du Preez v Pearce [2016] ICQ 023

PARTIES:

KATHERINE EVELYN du PREEZ (COMMISSIONER FOR MINE SAFETY AND HEALTH)

(appellant)

v

SEAN PEARCE

(respondent)

FILE NO/S:

C/2016/13

PROCEEDING:

Appeal

DELIVERED ON:

20 October 2016

HEARING DATE:

19 August 2016

MEMBER:

Martin J, President

ORDER/S:

  1. The appeal is dismissed.
  2. The parties are to confer with a view to reaching agreement, within 21 days, as to the quantum of costs to be awarded. If agreement is not reached, these directions apply:
  1. (a)
    The respondent is to file and serve a brief outline of submissions on the quantum of costs by no later than 17 November 2016.
  2. (b)
    The appellant is to file and serve a brief outline of submissions on the quantum of costs by no later than 24 November 2016.
  3. (c)
    The respondent may file and serve a reply by no later than 1 December 2016.

CATCHWORDS:

INDUSTRIAL LAW – APPEALS – APPEAL TO INDUSTRIAL COURT – OTHER MATTERS – where the respondent was charged with an offence against s 702 of the Petroleum Gas (Production and Safety) Act 2004 (Qld) (the Act) – where the respondent was a mechanic on a drill rig – where another worker on the rig fell and injured himself after entering a hydraulic unit – where the respondent had conducted modifications to that unit – where the charge alleged that the respondent was required, but failed, to conduct a ‘Job Safety Analysis’ under the relevant safety management plan as the task of modifying the unit was ‘non-routine’ – where the complaint was dismissed by the Industrial Magistrate – whether the Industrial Magistrate erred in dismissing the complaint – whether the rig was ‘operating plant’ for the purposes of the Act – whether the task undertaken by the respondent was ‘routine’ – whether there was a causal connection between the other worker’s injury and the respondent’s task

EVIDENCE – ADMISSIBILITY – OPINION EVIDENCE – EXPERT OPINION – QUALIFICATIONS OF WITNESS – where the appellant sought to call expert opinion evidence from a witness on the basis that he was an expert in risk assessment – where the Industrial Magistrate ruled the evidence inadmissible because those qualifications were irrelevant to the question of whether the task was ‘non-routine’ – whether the Industrial Magistrate erred

INDUSTRIAL LAW – APPEALS – APPEAL TO INDUSTRIAL COURT – OTHER MATTERS – where the appellant was restricted in asking certain questions of witnesses – where the appellant submitted that the Industrial Magistrate intervened in the cross-examination of the respondent by interjecting and  answering questions for the witness – where the Industrial Magistrate required both parties to file closing submissions on the same date, thus depriving the appellant of the opportunity to submit last – whether the Industrial Magistrate failed to afford the appellant procedural fairness

INDUSTRIAL LAW – APPEALS – APPEAL TO INDUSTRIAL COURT – OTHER MATTERS – where the Industrial Magistrate awarded costs against the appellant – where the Industrial Magistrate awarded an amount higher than would otherwise have been the case having regard to the ‘special difficulty, complexity or importance of the case' for the purposes of s 158B of the Justices Act 1886 – where the Industrial Magistrate considered that the prosecution case was determined to fail as it had proceeded on what had been held to be an erroneous interpretation of the Act – where the respondent maintained on appeal that the matter was of special importance, but not of special difficulty or complexity – whether the matter was of ‘special importance’ such as to justify the Industrial Magistrate’s award of costs

Justices Act 1886

Justices Regulation 2004

Petroleum Gas (Production and Safety) Act 2004

CASES:

Chappel v Hart (1998) 195 CLR 232

Doggett v The Queen (2001) 208 CLR 343

Interclean Industrial Services Ltd v Auckland Regional Council [2000] 3 NZLR 489

R v Clark (2005) 13 VR 75

R v Roissetter [1984] 1 Qd R 477

Royall v The Queen (1991) 172 CLR 378

Qld Independent Education Union of Employees v Local Govt Association of Qld Ltd [2015] ICQ 003

APPEARANCES:

J Hunter QC instructed by Gilshenan & Luton for the appellant

A Glynn QC and A Scott instructed by Gadens for the respondent

  1. [1]
    Section 702 of the Petroleum Gas (Production and Safety) Act 2004 (the Act) provides:

“Requirement to comply with safety management plan

A person at an operating plant must comply with safety procedures and other obligations under the safety management plan for the plant to the extent the procedures and obligations apply to the person.

Maximum penalty—100 penalty units.”

  1. [2]
    The respondent (Mr Pearce) was charged with an offence against that section.  The safety management plan (SMP) for the plant in question – Rig 165 – required a “Job Safety Analysis” (JSA) to be conducted for “non-routine” work. The prosecutor alleged that the task was non-routine work and, thus, required that a JSA be conducted.
  2. [3]
    The Industrial Magistrate dismissed the complaint finding, among other things, that the task was routine.

The Complaint

  1. [4]
    The gist of the Complaint was that:

“… on the nineteenth day of April, 2013 at Woleebee Creek coal seam gas well number 120 in the Industrial Magistrates Courts District of Dalby in the said State, SEAN PEARCE, a person at an operating plant, failed to comply with safety procedures and other obligations under the safety management plan for the plant to the extent the procedures and obligations applied to the said SEAN PEARCE, contrary to section 702 of the Petroleum and Gas (Production and Safety) Act 2004.

AND the contravention caused grievous bodily harm to Leyton Craig.”

  1. [5]
    In the particulars which accompanied the Complaint the following matters were alleged:

“3. The rig is an operating plant because it is a facility used to explore for or produce petroleum, within the meaning of section 670 (2) (a) of the Petroleum and Gas (Production and Safety) Act 2004 (‘the Act’). The rig includes the drill rig and the surrounding land (known as the “drill pad”) and all equipment located on that land and associated with or required by the drill rig to drill the petroleum well (‘the site’).

…

  1. 5.
    SEAN PEARCE was employed by Saxon as the mechanic for the rig. One of his duties was to perform hydraulic repairs and modifications to the rig.
  1. 6.
    SEAN PEARCE was subject to obligations under the Safety Management Plans for the operating plant.

…

  1. 8.
    Saxon had implemented two safety management plans. The first … was titled … ‘SEMP’.
  1. 9.
    Section 2.4.5 of the SEMP stated that Job Safety Analysis (JSA) ‘will be conducted for more complex or non-routine jobs on the rig’.

…

  1. 13.
    On or before 19 April 2013, SEAN PEARCE was assigned to modify the hydraulic unit. This involved SEAN PEARCE completing work on a hydraulic modification to the hydraulic system which incorporated the installation of a hydraulic arm to open a ventilation hatch in the Hydraulic Power Unit (‘HPU’) (‘the Hatch Modification’).
  1. 13A.
    On 19 April 2013, prior to the raising of the doghouse, SEAN PEARCE, in completing the Hatch Modification, plumbed in the t-piece to Rig 165’s hydraulics, for the Hatch Modification (‘the Task’).
  1. 14.
    SEAN PEARCE did not conduct a JSA for the task before commencing the task.
  1. 15.
    No testing of the modified hydraulic system was conducted by SEAN PEARCE before the doghouse was raised. SEAN PEARCE permitted the raising of the doghouse before any testing of the modified hydraulic system was conducted.
  1. 16.
    The doghouse was raised into position. After the doghouse was raised, a leak was detected in the HPU.
  1. 17.
    In order to shut down the HPU only, it was necessary for a worker to enter the doghouse of the rig.
  1. 18.
    Leyton Craig entered the raised doghouse of the rig to disable the HPU.
  1. 19.
    On leaving the doghouse, Leyton Craig fell to the ground causing him to suffer three broken vertebrae, five broken ribs and a cut to the head.
  1. 20.
    The task was a ‘more complex or non-routine job on the rig’.
  1. 21.
    Section 2.4.5, Appendix C and Appendix D of the SEMP required SEAN PEARCE to conduct a JSA for the task.
  1. 22.
    SEAN PEARCE failed to conduct a JSA for the task before commencing the task.

…

  1. 24.
    Prior to commencing the task, SEAN PEARCE ought to have complied with the safety procedures and other obligations under the Safety Management Plan by conducting a JSA for the task.
  1. 25.
    If SEAN PEARCE had, before commencing the task, conducted a JSA for the task, then:
  1. (i)
    each step of the task, their potential hazards and hazard control measures would be identified; and
  1. (ii)
    the hydraulic system would have been isolated until the modifications to the system had been completed and tested;

The absence of these measures was a substantial or significant cause of the injuries to Leyton Craig.”

The Industrial Magistrate’s Decision

  1. [6]
    The Industrial Magistrate held that, in order for the prosecution to prove the charge, it had to prove beyond reasonable doubt the following elements:
    1. (a)
      that drill rig 165 was an “operating plant”,
    2. (b)
      that the defendant was at the operating plant,
    3. (c)
      that there was a safety management plan for the plant, and
    4. (d)
      that the defendant was required to comply with safety procedures and other obligations under the safety management plan for the plant to the extent the procedures and obligations applied to him.
  2. [7]
    His Honour was satisfied that (b) and (c) had been proved.
  3. [8]
    The Industrial Magistrate held that the prosecution had not proved that drill rig 165 was “operating plant” within the meaning of s 670 of the Act. He arrived at that conclusion on the basis that drill Rig 165 was drilling for coal seam gas, that coal seam gas was not “petroleum” for the purposes of s 670 of the Act, and therefore, the drill rig was not operating plant.
  4. [9]
    That was sufficient to dismiss the charge as the prosecution had failed to prove the first element. Nevertheless, his Honour went on to consider the “routine/non-routine” issue because the parties had agreed that the real issue for determination was whether the defendant’s installation of the T-piece (referred to in particular 13A) was a routine or non-routine task. The parties also agreed that, if the task was routine, then there was no requirement for the defendant to complete the JSA referred to in particular 14. But, if the task was non-routine, then that requirement would automatically follow.
  5. [10]
    During the hearing (on 1 June 2016) his Honour had refused to admit a report from Dr Tilman Rasche about risk assessment. He gave further reasons for its exclusion in his final decision and observed that, even if he had admitted it, he would not have given it any weight. He preferred the evidence of the defendant and two other rig mechanics and held that the installation of the T-piece was a routine task.
  6. [11]
    On 17 June 2016 his Honour determined the defendant’s application for costs and ordered that the complainant pay the defendant his costs in the proceedings in the sum of $150,000.

Grounds of appeal

  1. [12]
    The grounds of appeal may be summarised as follows –
    1. The Industrial Magistrate erred:
      1. (a)
        in ruling that the evidence of Dr Rasche was inadmissible,
      2. (b)
        in finding that Rig 165 was not an “operating plant” as defined by the Act,
      3. (c)
        in finding that the task being performed by the respondent on 19 April 2013 was “routine”,
      4. (d)
        in finding that there was no causal connection between the respondent’s acts or omissions and the injuries sustained by Leyton Craig, and
      5. (e)
        in accepting the evidence of the respondent.
    2. Procedural fairness was not afforded to the prosecution.
    3. With respect to the order for costs, the Industrial Magistrate erred:
      1. (a)
        in awarding costs in excess of the scale provided by the Justices Regulation 2004,
      2. (b)
        in determining that the matter was one of “special importance”,
      3. (c)
        in failing to give sufficient reasons as to why the award of $150,000 in costs was just and reasonable, and
      4. (d)
        in ordering that the costs be paid within 28 days.

Was Rig 165 an “operating plant”?

  1. [13]
    Section 670 of the Act defines “operating plant”, so far as is relevant, in the following way:

“(2) An operating plant is any of the following –

  1. (a)
    a facility used to explore for, produce or process petroleum, including machinery used for maintaining or repairing a petroleum well;

Example of machinery used for maintaining or repairing a petroleum well – machinery known in the petroleum and gas industry as a work over rig”.

  1. [14]
    The Industrial Magistrate held:
    1. (a)
      that the definition in s 299 was confined to Chapter 3 of the Act
    2. (b)
      that Rig 165 was not an “operating plant” because it was not being used to “explore for, produce or process petroleum” as the evidence was that it was being used to drill for coal seam gas and his Honour found that coal seam gas is not petroleum for the purposes of s 670 of the Act.
  2. [15]
    The appellant submits that his Honour misconstrued the Act and that, for relevant purposes, coal seam gas is petroleum and, thus, Rig 165 was an operating plant.
  3. [16]
    “Petroleum” is relevantly defined in s 10 of the Act:

“(1)Petroleum is—

  1. (a)
    a substance consisting of hydrocarbons that occur naturally in the earth’s crust; or
  1. (b)
    a substance necessarily extracted or produced as a by-product of extracting or producing a hydrocarbon mentioned in paragraph (a); or

…

  1. (3)
    To remove any doubt, it is declared that petroleum does not include any of the following—
  1. (a)
    alginite;
  1. (b)
    coal;
  1. (c)
    lignite;
  1. (d)
    peat;
  1. (e)
    oil shale;
  1. (f)
    torbanite;
  1. (g)
    water.”
  1. [17]
    “Coal seam gas” is defined in s 299 of the Act:

“(1) Coal seam gas is petroleum (in any state) occurring naturally in association with coal or oil shale, or in strata associated with coal or oil shale mining.”

  1. [18]
    It must be noted that s 299 is found in Chapter 3 Part 1 Division 2 which bears the sub-heading “Definitions for chapter 3”. It cannot be argued, though, that the definition of coal seam gas is confined to Chapter 3 of the Act. Section 9 provides that: “The dictionary in schedule 2 defines particular words used in this Act.” Schedule 2 contains this definition: “coal seam gas – see section 299(1)”. The effect of s 9 and Schedule 2 is to extend the definition of coal seam gas in s 299 to the whole of the Act. It is not confined in its application to Chapter 3. The Industrial Magistrate’s reasoning was incorrect on this point.
  2. [19]
    The appellant relies on the evidence of four employees (including the injured Mr Craig). They said that the drill rig was being used to drill coal seam gas wells, that it was drilled for the purpose of extracting coal seam gas, and that Rig 165 was a drilling rig for coal seam gas.
  3. [20]
    But, the respondent argues, that is not enough. The respondent contends that when the Act uses the term “coal seam gas” it is to be taken to be referring to the substance described in s 299. That description includes as an element that the substance is a form of “petroleum”. When s 299 refers to “petroleum” it does not do so in any general sense. Rather, “petroleum” is to be understood as being one of the substances falling within the technical descriptions in s 10. It follows, the respondent says, that the evidence that Rig 165 drilled for “coal seam gas” does not prove that it drilled for “petroleum” within the meaning of the Act. No evidence was given as to what the witnesses meant by “coal seam gas” when they referred to it. Thus, the respondent argues that it cannot be inferred beyond reasonable doubt that when the witnesses use the term “coal seam gas” that they were referring to a substance within the technical description of “coal seam gas” in s 299 or of “petroleum” within the meaning of s 10.
  4. [21]
    The appellant responds by pointing out that it was never suggested in cross-examination of those four witnesses that they “didn’t know what they were talking about”. Further, the appellant points to the submissions of the respondent below on the “operating plant issue” where the only argument advanced was based on the erroneous construction (adopted by the Industrial Magistrate) that s 299 only defined “coal seam gas” for the purposes of Chapter 3 of the Act.  The appellant relies upon what is described as the uncontradicted evidence from four witnesses, each of whom had some experience in the industry, and about whom there was no reason to think that they wouldn’t know what was being drilled for.
  5. [22]
    The Industrial Magistrate noted that it was “not in contention that drill rig 165 was drilling for coal seam gas”. That appears to be correct. It was not submitted by the respondent in the hearing before the Industrial Magistrate that the four witnesses were unqualified to give the evidence which they gave about the purpose of the rig. No objection was taken to the evidence being given on the basis, for example, that it was opinion evidence or that it was merely hearsay. That, though, is not always fatal. A failure to object in a civil trial may constitute a waiver and disable the party from taking the point on appeal. The same may apply in a criminal trial. See R v Roissetter.[1] In that case McPherson J said:[2]

“What is equally important for present purposes is that no objection was taken or attempt made by counsel who appeared for the appellant at the trial to have the evidence in question excluded. On appeal it was urged that, although failure to object at trial might have a bearing on the question whether the accused was really prejudiced, it was nevertheless not necessarily fatal to a successful appeal on this ground; and the remarks of Viscount Simon L.C. in Stirland v. Director of Public Prosecutions [1944] A.C. 315, 327–328, were cited in support of that submission. However, what was said there is subject to the qualification recognized in R. v. Gay [1976] V.R. 577, 584, where the Full Court said:

‘It appears from the subsequent case of R. v. Cutter (1944) 30 Cr. App. Rep. 107; [1944] 1 All E.R. 337 that a distinction is to be drawn between a mere failure to object to evidence so that it is received as it were per incuriam and a conscious decision by counsel whether to object or not to object.’

The Full Court went on to hold that the conviction in that case could not on appeal be impugned on the basis of wrongful reception of evidence to the admission of which counsel for the accused at trial had made a conscious decision not to object and to which he had expressly stated that he had no objection.”

  1. [23]
    A similar conclusion was reached in R v Clark[3] where the issue was whether or not opinion evidence of a police officer about the speed of a vehicle could be relied upon where no objection was taken. Maxwell P (with whom Charles and Nettle JJA agreed on this point) said:

“[18]I now turn to consider the significance of the failure of the defence to object to the admissibility of the evidence. In my view, the failure to object has the consequence that the opinion evidence of Sergeant Bellion could properly be treated as evidence of the likely speed of the applicant’s vehicle at impact. By not objecting, the applicant waived the right which he undoubtedly had to object to the receipt of that evidence.

[19]In arriving at that conclusion, I have been much assisted by the detailed consideration of these issues by Phillips CJ and Eames J (as his Honour then was) in R v Radford. As noted by their Honours in that case, there are many instances in the context of civil litigation where the courts have held that hearsay evidence, once admitted without objection, may be treated as evidence of the facts asserted within its parameters. As Gibbs J said in Hughes v National Trustees Executors and Agency Co of Australasia Ltd:

There are no doubt some cases in which inadmissible evidence, having been admitted, may be treated as evidence for all purposes; for example, where one party by his conduct of the trial has led the other to believe that evidence, although hearsay, may be treated as evidence of the facts stated, and the other in reliance on that belief has refrained from adducing proper evidence, the former party is precluded from objecting to the use of the evidence to prove the facts stated.

[20]In Radford, the court held that it would be appropriate to apply in criminal cases the principle espoused in the civil cases. That is, hearsay evidence, once admitted in a criminal trial without objection, may be treated as evidence of the facts asserted. I see no reason not to apply that principle in the present case.

[21]There was, as I have said, ample opportunity to object. That being so, the failure to object constituted a waiver of the right to object, in my view.

[22]The question of whether the doctrine of waiver applies in criminal cases was considered by the court in Radford. Phillips CJ and Eames J referred to an article by Mr Weinberg (written when his Honour was a senior lecturer in law at the University of Melbourne), entitled ‘The Consequences of Failure to Object to Inadmissible Evidence in Criminal Cases’. The learned author identified two conflicting lines of authority, respectively comprising cases which did, and cases which did not, support the applicability of ‘waiver theory’ in criminal appeals.

[23]Victorian decisions up to that point (1978) were described in the article as having:

… embarked down the path of waiver without fully considering the consequences …

[24]In R v Matthews and Ford, http://0-www.lexisnexis.com.catalogue.sclqld.org.au/au/legal/ - 13 the court said that ‘mode or form’ evidence was subject to waiver, while other rules of evidence were not. In R v Gay, it was said that where there had been a ‘deliberate choice not to object’ (for tactical reasons other than preserving an appeal point), this constituted waiver.

[25]In his article, Mr Weinberg argued that the proper solution would be to deal with such issues not as a matter of waiver but by the use of the proviso in s 568(1) of the Crimes Act, under which the Court of Appeal:

… may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.

[26]In the learned author’s opinion:

The proviso ought to be used to uphold a conviction only where there is ample admissible evidence (apart from the inadmissible evidence received without objection) to sustain that conviction. In cases where the only evidence against the accused is the inadmissible evidence to which no objection was taken, the conviction should be quashed (subject to one slight modification discussed below).

[27]With respect, I think that the doctrine of waiver is properly applicable in a case such as this. My conclusion is strengthened by the very significant changes in criminal trial procedure which have taken place since that article was written. Given that the defence has both the opportunity and, to some extent at least, the obligation to identify in advance any disputes over admissibility, I think it can properly be said that there has been waiver when (as here) the point is not raised before trial or in the course of the evidence, and there is no cogent explanation for the failure.” (emphasis added, citations omitted)

  1. [24]
    In this case it is not contended that the omission to object was inadvertent. It may well be that the decision not to object was based upon the view, since accepted by the respondent as wrong, that s 299 did not apply. Once admitted, the evidence is able to be used as proof of an issue.  That is consistent with the manner in which the case was conducted before the Industrial Magistrate. It is also consistent with the manner in which a modern criminal trial is conducted. Although Gleeson CJ was speaking in the circumstances of a jury trial, his remarks in Doggett v The Queen[4] are relevant:

“[1]In our system of criminal justice, a trial is conducted as a contest between the prosecutor (almost always a representative or agency of the executive government) and the accused (almost always an individual citizen). In the case of a trial by jury for an indictable offence, the presiding judge takes no part in the investigation of the alleged crime, or in the framing of the charge or charges, or in the calling of the evidence. Where the accused is represented by counsel, the judge’s interventions in the progress of the case are normally minimal. The prosecution and the defence, by the form in which the indictment is framed, and by the manner in which their respective cases are conducted, define the issues which are presented to the jury for consideration. Those include not only the ultimate issue, as to whether the prosecution has established beyond reasonable doubt the accused’s guilt of the offence or offences alleged, but also the subsidiary issues which, subject to any directions from the trial judge, are said to be relevant to the determination of the ultimate issue. Such a system, sometimes described as adversarial, reflects values that respect both the autonomy of parties to the trial process and the impartiality of the judge and jury.” (emphasis added)

  1. [25]
    In this case, the respondent did not object to the evidence being given about the purpose and operation of the rig. The failure to object has the consequence that the opinion evidence of the four witnesses could properly be treated as evidence. The evidence was received as evidence of the facts asserted. So far as it is necessary to find, the respondent waived the right to object. Thus, there was evidence that the rig was drilling for petroleum within the meaning of that Act and there was no evidence to the contrary.
  2. [26]
    In the light of the evidence the Industrial Magistrate erred in finding that Rig 165 was not “operating plant”.

Should Dr Rasche’s evidence have been admitted?

  1. [27]
    The Industrial Magistrate refused to allow the prosecution to call Dr Tilman Rasche. In his reasons given on 6 June 2016, he said:

“The prosecution sought to call a Dr Rasche to give ‘expert’ opinion evidence as to whether the plumbing in of a T-piece was a routine or non-routine task. Dr Rasche is asserted to be an expert in ‘risk assessment’. He possessed no qualifications, training or experience in hydraulic mechanics. Risk assessment was not the issue in the trial and so his qualifications in risk assessment were irrelevant. Accordingly, he was, in my view, unqualified to express an opinion about the routine nature or otherwise of a job being performed by an hydraulic mechanic and his proposed opinion evidence was ruled to be inadmissible.”

  1. [28]
    He went on to say:

“Even had I allowed him to give evidence, having read his report during the course of hearing argument in relation to the Defence objection to it, I would’ve given his opinion no weight, having regard to the facile basis from which he sought to draw his conclusion.”

  1. [29]
    The Industrial Magistrate had already refused to allow Dr Rasche to be called in a ruling he gave on 1 June 2016. In that ruling he adverted to the nature of the charge and what the prosecution needed to establish. He held that Dr Rasche’s evidence did not relate to those matters.
  2. [30]
    During the argument over admissibility the Industrial Magistrate made some comments which, the appellant says, demonstrates that he did not accept that risk management was an area of specialised knowledge. His interjections were, to say the least, ill-considered and unnecessary. But they were made during argument and his Honour adjourned to consider the matter. He gave his ruling on the following morning after asking the prosecution to have Dr Rasche on standby to give evidence if necessary. The appellant argues that this ruling was wrong.
  3. [31]
    The appellant submits that the evidence sought to be given was not beyond Dr Rasche’s field of expertise. The evidence the appellant sought to lead from Dr Rasche was specifically in relation to the use of JSA for risk management purposes. It was submitted that Dr Rasche would give evidence as to:
    1. (a)
      whether a JSA should have been completed; and
    2. (b)
      if a JSA should have been completed, what the JSH should have covered.
  4. [32]
    As to the first of those matters, it was common ground between the parties that if the task particularised in 13A was non-routine then it would automatically follow that the defendant would have to complete a JSA. Thus, the question for determination was not whether a JSA should have been completed, but whether the task was non-routine. The appellant argues that Dr Rasche was qualified to give evidence about whether the task was routine or non-routine.
  5. [33]
    The basis for Dr Rasche’s opinion that the task was non-routine was accurately summarised in the respondent’s submissions in this way:
    1. (a)
      the task involved modification of plant;
    2. (b)
      it was warranted for any modification of plant to be attended by a “management of change” process; and
    3. (c)
      because of the need for a management of change process the task “should” be seen as “non-routine”.
  6. [34]
    This analysis does not make Dr Rasche’s opinion admissible. The determination which had to be made by the court was as to the nature of the particular task and, in order to do that, it was necessary to consider evidence about the task itself and not examine it through the prism of risk assessment.
  7. [35]
    Similarly, it was irrelevant to consider whether, as Dr Rasche did in his report, it was necessary for any modification of plant to be attended by a “management of change” process. That was not the subject of the charge against Mr Pearce.
  8. [36]
    It was only faintly suggested that Dr Rasche’s area of expertise extended sufficiently to deal with matters concerning hydraulic systems. There was no evidence that he had any experience with the particular task or its degree of difficulty or the frequency with which it might be carried out by a hydraulic mechanic.
  9. [37]
    It was submitted by the appellant that Dr Rasche could give evidence as to what the JSA, if required, should have covered. But that has no bearing on whether the task was routine. The Industrial Magistrate did not err in rejecting this report.

Was the task performed by the respondent on 19 April 2013 “routine”?

  1. [38]
    His Honour made the following observation in his reasons:

“It was confirmed by both parties at the commencement of the trial that the real issue for determination by the court was whether the defendant’s installation of the T-piece particularised at particular 13A was a routine or non-routine task. It was agreed between the parties that if the task was routine, there was no requirement for the defendant to complete the JSA referred [to] at particular 14, that if the task was determined to have been non-routine, that requirement would automatically follow.”

  1. [39]
    The Industrial Magistrate rejected the submission that the task was complex or non-routine. He accepted the evidence of the defendant and two other rig mechanics who said that the plumbing in of the T-piece was a routine task.
  2. [40]
    The relevant part of the SMP read:

“Identifying and managing hazards and the adverse effects of activities is a vital part of any successful operation. Saxon will be adopting the Job Safety Analysis (JSA) approach identifying hazards associated with tasks and plant and equipment, and implementing approach hazard controls to minimise the risk of injury to as low as reasonably possible. JSA’s will be conducted for more complex or non-routine jobs on the rig.

…

The Rig Manager will have overall responsibility for assuring that the necessary JSAs have been conducted prior to beginning work and communicated during work.”[5]

  1. [41]
    I was not directed to any part of the SEMP (or other document) which defined “complex or non-routine”. The parties referred at various times to dictionary definitions but no attention was given to the fundamental question of whether the test for a job being complex or non-routine was objective or subjective. It would seem obvious, though, that whether a task was routine would depend, to an extent, on the experience of the person undertaking the task.
  2. [42]
    There was evidence before the Industrial Magistrate that the task of fitting the T-piece was a routine job. The appellant argued that some of the evidence given by defence witnesses amounted to “swearing the issue” because, on occasion, they simply said the job was “routine”. But that contention has little force when such an answer is given to a question in cross-examination in which, for example, the questioner suggests that what was done was “more than a routine task”.
  3. [43]
    Mr Pearce was asked:

“And – now, before you plumbed in the T-pieces, did you carry out any exercise to identify hazards? – – – Yes, I did. I assess the task as non-complex and a routine task. So it was covered by my understanding of a stepback, which Saxon sees as a miniature JSA, and we use the stepbacks regularly for say, a non-complex job just to identify any local hazards that there might be, and a non-complex task like that – a step back was used and the yeah, I assisted as being non-complex and routine. So I continued on. I assessed it not to need a JSA as there was no need for it.

... You described a task that you were carrying out as routine. That right? – – – That’s right.

Firstly, as a rig mechanic how often did you work on the hydraulics and parts of the hydraulics on the rig? – – – It could be five times per day, but not limited to, but no less than three times a week, which would class it as routine.

What sort of work would you be doing? – – – I could be replacing a hydraulic hose on the pipe arm. The hoses are connected to actuators, which are cylinders and pumps and so on via a series of fittings including T-pieces, 90 degree fittings, 45s, straight tight fittings and they’re all like a JRC type fitting; exactly like the T-piece that I fitted that day.

…

… And you deal with them on a, as you say, a daily basis? – – – Yep.”[6]

  1. [44]
    In cross-examination, Mr Pearce was asked about the number of times he had installed the modification to a hydraulic unit. There was an exchange in which Mr Nicolson (for the prosecution) confirmed that the task in question was the plumbing in of the T-piece:

“How many times have you done this modification in the past prior to 19 April 2013? – – – Well, installing T-pieces?

No. Installing the modification to a hydraulic unit?

BENCH: Your allegation is that he needed – – –

…

BENCH: – – – a JSA for the T-piece, not for the modification.

MR NICOLSON: No. Our allegation is that he plumbed in the T-piece for the hatch modification.

BENCH: That’s right. For the T-piece. And you’ve focused on the T-piece the whole way through.

MR NICOLSON:  Correct.

BENCH: And now you seem to be wanting to broaden the issue.

MR NICOLSON:  Well, I’m sorry, I’m not meaning to do that, your Honour. I’ll be a bit more specific.

BENCH: Well, that’s exactly how – what seems to be happening.

MR NICOLSON:  The allegation is that on 19 April, Mr Pearce, that you plumbed in the T-piece to rig 165’s hydraulic for the hatch modification? – – – Correct.

Do you accept that? – – – Yeah.

How many times prior to 19 April had you plumbed in a T-piece to the hydraulics for the rig modification? – – – For that modification?

Yes? – – – I’d done no changes putting in T-pieces for that modification because, as you know, that was on the day of the job the task that I did.

That was the first time that you did that sort of task – – –? – – – No. That’s not correct.

– – – on the 19th of April? --- No.

Okay. When was the other time that you did a task – – –? – – – I fit T-pieces, 90 degree fittings, 45 degree fittings, straight-type fittings of the … JIC-type hydraulic fittings daily. Over five times a day but not limited to but less – more than three times a week which would render a T-piece being fitted a routine task.

When you’ve done the previous T-piece of replacements are they like for like, that is, replace one T-piece with another T-piece? – – – Not all the time, no.

Has there been an occasion that you’ve done a modification to the hydraulic unit as in this particular task – – –? – – – Yes, I’ve – – –

– – – where you’re adding extra material? – – – I’ve taken T-pieces and replaced 90 degree fittings where T-pieces were and vice versa so it’s not always like – like for like.

Have you added these modifications in the past? – – – Yeah, yeah.

On those occasions did you do a JSA? – – – That would depend whether they hydraulic power energy is available or not available. If it wasn’t available I would render a routine task because I work on hydraulic fittings, like I say, five times or more per day. So if there was no energy source available, then more than likely no, I wouldn’t do a JSA.”[7]

  1. [45]
    In cross-examination, Mr Wadley was asked:

“You understand Mr Pearce is the defendant in these proceedings and it relates to his task of plumbing in the T-piece for the hydraulics for this hatch modification. Do you understand that? – – – Yes.

And I’m going to suggest to you that that’s more than a routine task, I suggest? – – – To you maybe, not to us.

Yes? – – – That’s like me saying I don’t know law. So its non-routine from me, but it’s very routine for you.

…

Why did you need instructions if it was a routine task? – – – Because you need to know where the engineers needed to pick up the pressure points from.

But I suggest – – –? – – – Other than that, it’s a routine task.

I suggest to you for that very reason, it demonstrates that the task Mr Pearce was doing was, in fact, non-routine? – – – That’s fine, but it is routine.

You accept you needed instructions; correct? – – – Of course we’re going to need instructions, mate.

And including the engineering design about where to put the appropriate parts? – – – That’s correct.

Yes? – – – Not because we didn’t know where to put them; because we have to be told from somewhere where to put them.”[8]

  1. [46]
    In cross-examination, Mr Puller was asked;

“Now, Mr Puller, are you familiar with the task that Mr Pearce was completing on 19 April 2013? – – – I am familiar with parts of it, yes.

What information have you been provided as to what Mr Pearce did on the 19th of April 2013? – – – That he was completing a job on a rig move and the – the rig was moved and the inspection was – the inspection was done after the rig was moved and an injured person had fallen from the doghouse.

Were you advised as to what task he was doing on that day? – – – Changing a T-piece.

Okay. So your evidence – or your opinion is on the basis of being told that Mr Pearce changed a T-piece? – – – That is correct.

In terms of – would it change your opinion if the installation of the T-piece was a modification to the hydraulic equipment? – – – Would it change my opinion?

Yes. About whether it was routine or non-routine? – – – No.

If the hatch modification was in fact a new piece of hydraulic equipment to be attached to the HPU? – – – What about it?

Would that change your opinion whether it was routine or non-routine? – – – Not the changing a T-piece, no.

No. But it’s not just about the T-piece. It’s about connecting the new T-piece and hydraulic lines to the HPU? – – – Yeah.

And it’s not like for like. It’s a new system? – – – Mmm.

Do you understand that? – – – I do understand that.

Would that change your opinion? – – – Not really. For just doing two hoses and a T-piece, no.

Would it change your opinion that there were instructions that were required to complete the task? – – – Not really, no. Not on a rig move.”[9]

  1. [47]
    Mr Pearce’s evidence was criticised by the appellant as lacking credibility due to inconsistencies and that his evidence strongly suggested that he was not aware of the requirements of the SEMP and confused issues such as whether a task was “non-routine” or “hazardous”.[10] In his reasons, the Industrial Magistrate referred to Mr Pearce as “the most experienced and most qualified to determine whether the installation of the T-piece was a routine or non-routine job.” The appellant says that it was not reasonably open to make that finding, particularly where Mr Pearce was unfamiliar with the contents of the SEMP. Mr Pearce’s evidence certainly suggests that he was confused about the requirements of the SEMP and when a JSA would be required. But that was not the issue for decision. He was not being tested on his knowledge of the SEMP. He was being questioned about the nature of the task he had performed. The appellant argues that Mr Pearce’s evidence infected the entirety of the Industrial Magistrate’s decision as to whether the task was routine or non-routine. I do not accept that. Even if one puts to one side all of Mr Pearce’s evidence there is still the uncontested evidence from Mr Puller and Mr Wadley about the nature of the task. That evidence is sufficient to support the finding made by the Industrial Magistrate.

Was there a causal connection between the respondent’s acts or omissions and Mr Craig’s injury?

  1. [48]
    The Industrial Magistrate held that: “On any objective common sense and practical view of the evidence there was no causal connection between anything the defendant did or [omitted] to do and Mr Craig’s injury.” The appellant argues that this finding was not supported by the evidence.
  2. [49]
    The relevant principles to be applied can be summarised in this way:
    1. (a)
      “… the “but for” test is a useful tool in criminal law for determining whether a causal link existed between an accused’s act or omission and the relevant injury or damage. But before a person will be held criminally responsible for his or her act or omission, the causal link between that act or omission and the injury or damage must be sufficiently cogent to justify attributing causal responsibility”: Royall v The Queen,[11] and
    2. (b)
      to establish causation it is necessary to establish that the relevant “act or omission results in an increased risk of injury and that risk eventuates”: Chappel v Hart.[12]
  3. [50]
    The appellant contends that the following evidence given by Mr Pearce is relevant to establishing the causal link:
    1. (a)
      that he was asked by Mr Craig whether the “hydraulics were right to go” and Mr Pearce stated that they were,
    2. (b)
      that once Mr Pearce “gave the nod” the dog house was raised,
    3. (c)
      after the doghouse was raised, Mr Pearce checked for an oil leak and noticed that there was one,
    4. (d)
      Mr Pearce asked Mr Craig to shut down the hydraulics – “I didn’t ask – direct him anywhere to shut it down; I’ve just said to shut it down”, and
    5. (e)
      the leak was similar to pouring water from a cup – it wasn’t a high-pressure jet and it wasn’t a drip – it was a constant flow.
  4. [51]
    During the trial, evidence was given that a number of different switches could have been used to shut down the hydraulics. Mr Craig gave evidence that his decision to go to the doghouse was “spur of the moment” as he wanted to get it shut down quickly.
  5. [52]
    Mr Craig’s injury came about because he tripped on his way down the stairs from the doghouse. There were no railings to prevent him from falling. The Industrial Magistrate found that he had tripped on his way back down the stairs because of his own carelessness. But, as the appellant argues, the only reason that Mr Craig was placed in the position which led to him tripping was that he had to shut down the hydraulics. In a singularly inappropriate comment, the Industrial Magistrate referred to Mr Craig’s “obvious sheepishness” when giving some evidence. The ability of judicial officers to determine facts by reference to the demeanour of witnesses has been demonstrated, time and time again, over the last few decades to be almost non-existent. To rely on it in a case like this is a misuse of the position of a judicial officer and should not have occurred.
  6. [53]
    In the particulars provided with the Complaint it is asserted that had a JSA been conducted before the task then, among other things, the hydraulic system would have been isolated until the modifications to the system had been completed and tested. There was no evidence to support that. The reduction of risk is brought about by two steps: the undertaking of a JSA and the implementation of steps identified in the JSA as being necessary to reduce risk. In this case, the prosecution argued that had a JSA been conducted then Mr Pearce would have checked or tested for leaks prior to the raising of the doghouse. It is not enough to make that assertion. There must be evidence which can support the drawing of that conclusion. There was not sufficient evidence to allow that to occur.

The evidence of the respondent should not have been accepted

  1. [54]
    In light of the findings above, it is unnecessary to consider this ground.

Procedural fairness was not afforded to the prosecution

  1. [55]
    The appellant contends that the prosecution was denied procedural fairness in two areas:
    1. (a)
      the Industrial Magistrate inappropriately curtailed and restricted the cross-examination of defence witnesses, in particular, the defendant; and
    2. (b)
      the Industrial Magistrate failed to provide the prosecution with the right of final reply in circumstances where the respondent had gone into evidence.
  2. [56]
    So far as the restrictions on cross-examination are concerned, the appellant contends that there was excessive interruption and curtailment of cross-examination with the result that the prosecution lost the opportunity to appropriately test the evidence of defence witnesses. Three examples are given:
    1. (a)
      The prosecutor was specifically restricted in the cross-examination of Mr Fleming with respect to a PowerPoint slide concerning the training of Saxon employees.

This was not cross-examination, but the re-examination of a prosecution witness. Mr Nicolson was seeking to re-examine upon a document which had been tendered through the witness in cross-examination. The question sought to be asked by Mr Nicolson was, with respect, unnecessary. It appears to have been little more than asking the witness to identify what was contained on a particular page of the document. A witness does not have to do that. That can be done by counsel in submissions.

  1. (b)
    The prosecutor was prevented from cross-examining Mr Pearce as to the PowerPoint slide referred to above in circumstances where it was tendered on the basis of being training undertaken by Mr Pearce.

This concerned a document which had been provided to Mr Pearce when he did training in May 2012. Having obtained from Mr Pearce an agreement to the proposition that risk assessment on rig sites is important and that people die on rig sites, it was then put to him that he was then asked: “Is it the case that you just pay lip service to this document?”. That question engendered a later objection on the basis of relevance. The Industrial Magistrate said that there had been no evidence of any corners being cut and Mr Nicolson said that the proper evidential basis was that the witness seemed to have no recollection of the document. After further exchanges, Mr Nicolson said: “All I’m trying to understand, your Honour, [is] why it was tendered … if this witness says he’s got no recollection about the document. The defence case is that he received this training about risk safety and his evidence is that, ‘I’ve got no recollection about it’.” The Industrial Magistrate asked: “Well, what’s he supposed to – what are you suggesting? He should have memorised it?”. Mr Nicolson said: “No. What I’m suggesting is that he should have done a JSA. That’s my ultimate submission”.

What appeared to be engaged in by the Industrial Magistrate Mr Nicolson was an argument about relevance and admissibility. This is not a question of not being afforded natural justice. It is an issue of whether or not the cross-examination was relevant. Any relevance it might have is not obvious to me.

  1. (c)
    During cross-examination by the prosecution of Mr Pearce as to the “written stepback”, the Industrial Magistrate continually interjected, answered questions for the witness, and interfered generally in the cross-examination.

This is an unfortunate example of the Industrial Magistrate arguing with counsel rather than allowing counsel to make a submission and then ruling on it. It was a disproportionate response by the Industrial Magistrate to the question sought to be asked. But, in any event, counsel did ask the question which had been the subject of the argument.[13]

  1. (d)
    Final addresses

This is a complaint that the prosecution, in a case where the defence had called evidence, was not permitted to address after hearing the defendant’s submissions. The Industrial Magistrate required both parties to file written submissions at about the same time. That was an inappropriate order to make and did not properly respect the right of the prosecution in the circumstances of this case. The inability of the prosecution to respond to the defence submission resulted, in the appellant’s admission, in what the appellant says is an error of law. The appellant does not contend that it was denied the opportunity to call any evidence. Rather, it says that it was not able to meet an argument put by the defendant.

An order that requires both parties to file written submissions at about the same time is a false economy. And it can lead to avoidable error.

In any event, as the appellant has not succeeded on the “routine/non-routine” issue, this ground cannot assist.

Conclusion on the substantive appeal

  1. [57]
    The appellant has succeeded on a number of grounds but not on the ground – “was the work routine or non-routine” – which was central to the prosecution case. The appeal is dismissed.

Costs

  1. [58]
    An order for costs in a case such as this is subject to provisions of the Justices Act 1886. The relevant provisions are:

“158Costs on dismissal

  1. (1)
    When justices instead of convicting or making an order dismiss the complaint, they may by their order of dismissal order that the complainant shall pay to the defendant such costs as to them seem just and reasonable.
  1. (2)
    When a complaint is before a Magistrates Court which the court has no jurisdiction to hear and determine the court shall order the complaint to be struck out for want of jurisdiction and may order that the complainant pay to the defendant such costs as to the court seem just and reasonable.

158AExercise of discretion in relation to an award of costs

  1. (1)
    Despite section 158(1), justices who dismiss a complaint may make an order for costs in favour of a defendant against a complainant who is a police officer or public officer only if the justices are satisfied that it is proper that the order for costs should be made.
  1. (2)
    In deciding whether it is proper to make the order for costs, the justices must take into account all relevant circumstances, including, for example—
  1. (a)
    whether the proceeding was brought and continued in good faith; and
  1. (b)
    whether there was a failure to take appropriate steps to investigate a matter coming to, or within, the knowledge of a person responsible for bringing or continuing the proceeding; and
  1. (c)
    whether the investigation into the offence was conducted in an appropriate way; and
  1. (d)
    whether the order of dismissal was made on technical grounds and not on a finding that there was insufficient evidence to convict or make an order against the defendant; and
  1. (e)
    whether the defendant brought suspicion on himself or herself by conduct engaged in after the events constituting the commission of the offence; and
  1. (f)
    whether the defendant unreasonably declined an opportunity before a charge was laid—
  1. (i)
    to explain the defendant’s version of the events; or
  1. (ii)
    to produce evidence likely to exonerate the defendant;

and the explanation or evidence could have avoided a prosecution; and

  1. (g)
    whether there was a failure to comply with a direction given under section 83A; and
  1. (h)
    whether the defendant conducted the defence in a way that prolonged the proceeding unreasonably; and
  1. (i)
    ;whether the defendant was acquitted on a charge, but convicted on another.

…

158BCosts for division

  1. (1)
    In deciding the costs that are just and reasonable for this division, the justices may award costs only—
  1. (a)
    for an item allowed for this division under a scale of costs prescribed under a regulation; and
  1. (b)
    up to the amount allowed for the item under the scale.
  1. (2)
    However, the justices may allow a higher amount for costs if the justices are satisfied that the higher amount is just and reasonable having regard to the special difficulty, complexity or importance of the case.”
  1. [59]
    On 17 June, the Industrial Magistrate gave his reasons with respect to the award of costs. He ordered that the prosecution pay the defendant’s costs in the proceedings in the sum of $150,000 within 28 days. He referred to the following matters:
  • The prosecution was always destined to fail as it could not prove that the rig was an operating plant within the terms of the Act.
  • The matter was of special importance.
  • The scale costs were inadequate for a matter such as this.
  1. [60]
    The appellant argues that the decision is flawed for three reasons:
    1. (a)
      The Industrial Magistrate awarded costs in excess of the scale,
    2. (b)
      His Honour determined that the matter was one of “special importance”, and
    3. (c)
      His Honour failed to give sufficient reasons for fixing costs in the sum of $150,000.

Costs in excess of scale / the matter was one of “special importance”

  1. [61]
    The appellant does not argue that, the prosecution having been dismissed, it was not open to the Industrial Magistrate to make an award of costs. The argument was that it was not open to make an award of costs in excess of the scale provided by the Justices Regulation 2004 because there was nothing in this matter which was of “public interest” or an important question of law.
  2. [62]
    In deciding that a costs order in excess of scale should be made, the Industrial Magistrate said:

“In all the circumstances, particularly having regard to the persistence of the prosecution of the defendant despite the department’s failure to identify or recognise their legislative handicap, it’s appropriate the defendant be favoured with a costs order in excess of the scale.”

  1. [63]
    The matters to which the Industrial Magistrate referred in that sentence are matters which are relevant to the decision of whether to make an order for costs under s 158A of the Justices Act. They are not matters which are able to be taken into account under s 158B of the Justices Act. The respondent submitted that determining whether a case was “special” involved an exercise of judgment on which reasonable minds may differ. So much can be accepted. But, the decision was reached after taking into account irrelevant factors and, thus, should be set aside.
  2. [64]
    Section 341(3) of the Industrial Relations Act 1999 gives this court the power, if it sets aside a decision, to substitute another decision. Rather than incur the costs of remittal on this point, it is appropriate that this court determine the matter.
  3. [65]
    In considering this matter the Industrial Magistrate referred to the decision of Farr DCJ in Whitby v Stockair Pty Ltd & Anor[14] which, in turn, referred to the New Zealand decision of Interclean Industrial Services Ltd v Auckland Regional Council.[15] In that case, Randerson J referred to the relevant New Zealand legislation and said:

“[31]By virtue of s 4 of the 1967 Act, the Court may, subject to any regulations made under the 1967 Act, order a defendant convicted of an offence “to pay such sum as it thinks just and reasonable towards the costs of the prosecution.'' By reg 3 of the Costs in Criminal Cases Regulations, the heads of costs and the maximum scales of costs which may be ordered to be paid under the 1967 Act are those set out in the Schedule to the regulations. However, there is power under s 13(3) of the 1967 Act to make an order for the payment of costs in excess of scale if the Court is “satisfied that, having regard to the special difficulty, complexity, or importance of the case, the payment of greater costs is desirable.''

[32]As observed by Tipping J in T v Collector of Customs (High Court, Christchurch, AP 167/94, 28 February 1995) at p 2:

“The use of the word 'special' when applied to the concepts of difficulty, complexity and importance means that it is not enough simply to say that the case was difficult, complex or important. The necessary difficulty, complexity or importance must be such that it can be said to be significantly greater than is ordinarily encountered. Similarly the focus on the case itself means that it is not enough for the applicant to be able to say that by dint of its features the case had special importance to him. The fact that the scale is miserable, indeed insultingly so, naturally leads a Judge to strain to find sufficient cause to exceed the scale. Any such tendency must be resisted, albeit with little enthusiasm.”

[33]It was submitted for the appellant that the case must be one of special difficulty, complexity, and importance, judged by reference to cases of the same type. In other words, it was submitted that the question was whether the present case was one of special difficulty, complexity, or importance when compared with other prosecutions for breach of s 338 of the RMA. To the contrary, Mrs Hollings submitted for the respondent that the proper comparison is between a prosecution for an offence under s 338 and prosecutions generally.

[34]In my view, each case must be considered on its own facts. I do not accept the appellant's submission that it is necessary for the prosecutor to demonstrate that the case is one of special difficulty, complexity or importance when compared with other prosecutions of the same type. The question is whether, having regard to the general run of criminal cases, the particular case is one of special difficulty, complexity or importance. Just as murder trials are not necessarily complex or difficult, summary cases are not always straightforward and may give rise to unusual complexity. Prosecutions under s 338 may often be of some difficulty or complexity but it will not always be so.” (emphasis added)

  1. [66]
    The respondent submitted, on appeal, that the matter which was of special importance was the interpretation of s 299 of the Act and whether or not it was open to the prosecution to rely upon it. In the court below, the respondent argued that the matter was one of special difficulty or complexity. That was not argued on this appeal. It was also submitted that the question was important because other prosecutions were being pursued in which the identity of “operating plant” was at the heart of the case.
  2. [67]
    A matter can be of “special importance” without being difficult or complex. In this case, the issues surrounding the construction of s 299 were not “significantly greater than is ordinarily encountered”. So, was it of “special importance”? I have come to the conclusion that it was not.  I have had regard to the “general run of criminal cases” – this case was not one which was “significantly greater than is ordinarily encountered”.
  3. [68]
    It follows, then, that the order for costs is set aside. The parties are to confer and, if possible, agree on the costs which should be ordered in accordance with the scale. I will hear the parties, if necessary, and make an order for costs on the usual basis.
  4. [69]
    It is unnecessary to rule on the other part of this appeal on costs but I will observe that the Industrial Magistrate gave no reasons at all for his selection of the sum of $150,000. The fundamental requirement of reasons is that they reveal the steps taken to arrive at the decision. These reasons allow a person to understand how the Industrial Magistrate determined that an award above scale should be made, but it is not possible to understand how the sum of $150,000 was arrived at.
  5. [70]
    The principles guiding the adequacy and nature of reasons were set out in Qld Independent Education Union of Employees v Local Govt Association of Qld Ltd:[16]

“[14]A Tribunal need not set out reasons for every step which has led to a decision but it must record the steps which were taken to arrive at the result (Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at 666).

[15]The extent of the reasons which are required to be given will depend upon the circumstances and the context of the case. Generally, reasons should deal with the substantial points which have been raised, including findings on material questions of fact. The reasons should refer to any evidence or other material upon which those findings are based and provide an intelligible explanation of the process of reasoning that is led from the evidence to the findings and from the findings to the ultimate conclusion. Some explanations should be given if the evidence tendered or the submissions made by a party have been rejected (Police Federation of Australia v Nixon [2011] FCAFC 161 at [67]). The reasons must set out the steps that were taken by the Tribunal to arrive at the decision. This allows the parties who have been unsuccessful to determine whether they have a basis for appeal (Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386).

[16]It must be understood, though that the principles set out above do not mean that reasons for decision have to be lengthy or elaborate. A distinction has always been drawn between courts and tribunals. Just as it is not necessary for a judge to make an express finding in respect of every fact leading to, or relevant to, his or her final conclusion of fact, it is not necessary that the judge reason, and be seen to reason, from one fact to the next along the chain of reasoning to that conclusion (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 271). The fact that reasons of the Commission might be brief is not necessarily a flaw. Courts conducting reviews or appeals from tribunals have been repeatedly enjoined by the High Court to avoid overly pernickety examination of the reasons. The focus of attention is on the substance of the decision and whether it has addressed the 'real issue' presented by the contest between the parties (Roncevich v Repatriation Commission (2005) 222 CLR 115 at [64]).”

Orders

  1. [71]
    The appeal is dismissed.
  2. [72]
    The parties are to confer with a view to reaching agreement, within 21 days, as to the quantum of costs to be awarded. If agreement is not reached, these directions apply:
    1. (a)
      The respondent is to file and serve a brief outline of submissions on the quantum of costs by no later than 17 November 2016.
    2. (b)
      The appellant is to file and serve a brief outline of submissions on the quantum of costs by no later than 24 November 2016.
    3. (c)
      The respondent may file and serve a reply by no later than 1 December 2016.

Footnotes

[1][1984] 1 Qd R 477.

[2]At 479.

[3](2005) 13 VR 75.

[4](2001) 208 CLR 343.

[5] Ex 1 Tab E1 p 31.

[6]T3, 56-57.

[7]T3, 97-99.

[8]T4, 10-11.

[9]T4, 17-18.

[10]T3, 99.

[11](1991) 172 CLR 378 at 440.

[12](1998) 195 CLR 232 at 244 [27].

[13]T3, 71.

[14][2015] QDC 79.

[15][2000] 3 NZLR 489.

[16][2015] ICQ 003.

Close

Editorial Notes

  • Published Case Name:

    Katherine Evelyn Du Preez (Commissioner for Mine Safety and Health) v Sean Pearce

  • Shortened Case Name:

    Commissioner for Mine Safety and Health v Pearce

  • MNC:

    [2016] ICQ 23

  • Court:

    ICQ

  • Judge(s):

    Martin P

  • Date:

    20 Oct 2016

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Chappel v Hart (1998) 195 CLR 232
2 citations
Jump To
Cite 1 - (1998) 195 CLR 232
Cite 2 - (1998) 195 CLR 232
Doggett v The Queen (2001) 208 CLR 343
2 citations
Jump To
Cite 1 - (2001) 208 CLR 343
Cite 2 - (2001) 208 CLR 343
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378
1 citation
Jump To
Cite 1 - (1983) 3 NSWLR 378
Interclean Industrial Services Ltd v Auckland Regional Council [2000] 3 NZLR 489
2 citations
Jump To
Cite 1 - [2000] 3 NZLR 489
Cite 2 - [2000] 3 NZLR 489
Police Federation of Australia v Nixon [2011] FCAFC 161
1 citation
Jump To
Cite 1 - [2011] FCAFC 161
Public Service Board of NSW v Osmond (1986) 159 CLR 656
1 citation
Jump To
Cite 1 - (1986) 159 CLR 656
Queensland Independent Education Union of Employees v Local Government Association of Queensland Ltd [2015] ICQ 3
2 citations
Jump To
Cite 1 - [2015] ICQ 3
Cite 2 - [2015] ICQ 3
R v Clark (2005) 13 VR 75
2 citations
Jump To
Cite 1 - (2005) 13 VR 75
Cite 2 - (2005) 13 VR 75
R v Roissetter [1984] 1 Qd R 477
3 citations
Jump To
Cite 1 - [1984] 1 Qd R 477
Cite 2 - [1984] 1 Qd R 477
Cite 3 - [1984] 1 Qd R 477
R. v Cutter [1944] 1 All E.R. 337
1 citation
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Cite 1 - [1944] 1 All E.R. 337
R. v Cutter (1944) 30 Cr App Rep 107
1 citation
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Cite 1 - (1944) 30 Cr App Rep 107
R. v Gay (1976) VR 577
1 citation
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Cite 1 - (1976) VR 577
Roncevich v Repatriation Commission (2005) 222 CLR 115
1 citation
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Cite 1 - (2005) 222 CLR 115
Royall v The Queen (1991) 172 C.L.R 378
2 citations
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Cite 1 - (1991) 172 C.L.R 378
Cite 2 - (1991) 172 C.L.R 378
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
1 citation
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Cite 1 - (1987) 10 NSWLR 247
Stirland v D.P.P. (1944) AC 315
1 citation
Jump To
Cite 1 - (1944) AC 315
Whitby v Stockair Pty Ltd [2015] QDC 79
1 citation
Jump To
Cite 1 - [2015] QDC 79

Cases Citing

Case NameFull CitationFrequency
Kilby v Harrison [2019] ICQ 211 citation
1

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