Archer v Simon Transport Pty Ltd
[2016] QCA 168
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Notable Unreported Decision
- Appeal Determined (QCA)
- Archer v Simon Transport Pty Ltd[2016] QCA 168
- Add to List
Archer v Simon Transport Pty Ltd[2016] QCA 168
Archer v Simon Transport Pty Ltd[2016] QCA 168
CITATION: | Archer v Simon Transport Pty Ltd [2016] QCA 168 |
PARTIES: | KEVIN ARCHER |
FILE NO/S: | CA No 11294 of 2015 DC No 2313 of 2015 |
DIVISION: | Court of Appeal |
PROCEEDING: | Application for Leave s 118 DCA (Criminal) |
ORIGINATING COURT: | District Court at Brisbane – [2015] QDC 263 |
DELIVERED ON: | 21 June 2016 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 17 May 2016 |
JUDGES: | Margaret McMurdo P and Gotterson JA and Atkinson J Separate reasons for judgment of each member of the Court, each concurring as to the orders made |
ORDERS: |
|
CATCHWORDS: | ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – JURISDICTIONAL MATTERS – where the applicant laid a complaint under the Justices Act 1886 (Qld) that, contrary to s 32 of the Work Health and Safety Act 2011 (Qld) (‘WHS Act’), the respondent failed to comply with its duty under s 19(1) of the WHS Act and this failure exposed an individual to a risk of serious injury – where a District Court judge upheld the decision of the Industrial Magistrates Court striking out the complaint for want of jurisdiction on the basis that the complaint was insufficiently particularised – where the complaint set out the ways in which the employer failed to comply with its duty and measures which should have been taken to obviate the identified risks – whether leave to appeal should be granted – whether the complaint was adequate to invoke the jurisdiction of the Magistrates Court District Court of Queensland Act 1967 (Qld), s 118 Justices Act 1886 (Qld), s 48 Occupational Health and Safety Act 2004 (Vic), s 20, s 26Work Health and Safety Act 2011 (Qld), s 18, s 19, s 32 Baiada Poultry Pty Ltd v Glenister [2015] VSCA 344, considered Bell v Hendry & Ors [2014] ICQ 18, cited Coggins v Steelcon Cava Pty Ltd [2014] ICQ 22, cited Daytona Trading Pty Ltd v McGarry [2014] ICQ 21, cited DPP v Vibro-Pile (Aust) Pty Ltd [2016] VSCA 55, considered Harrison v President of the Industrial Court of Queensland & Ors [2016] QCA 89, cited John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508; [1987] HCA 42, considered Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77, cited Karimbla Construction Services P/L v President of the Industrial Court of Qld & Ors [2014] QSC 56, cited Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1, applied NK Collins Industries Pty Ltd v President of the Industrial Court [2014] 2 Qd R 304; [2013] QCA 179, distinguished Rodgers v Smith [2006] QCA 353, cited |
COUNSEL: | P Matthews for the applicant R Perry QC for the respondent |
SOLICITORS: | WHSQ, Office of Industrial Relations for the applicant Norton Rose Fulbright for the respondent |
[1] MARGARET McMURDO P: I agree with Atkinson J’s reasons and proposed orders and with the additional observations of Gotterson JA.
[2] GOTTERSON JA: I agree with the orders proposed by Atkinson J and with her Honour’s reasons for them.
[3] I would add that I would reject the criticism embodied in the second alleged defect in the complaint as misplaced for the following reasons.
[4] The meaning of the qualification “reasonably practicable” is defined in s 18 of the Work Health and Safety Act 2011 (Qld) (“the WHS Act”) to mean:
“… that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including—
(a)the likelihood of the hazard or the risk concerned occurring; and
(b)the degree of harm that might result from the hazard or the risk; and
(c)what the person concerned knows, or ought reasonably to know, about—
(i)the hazard or the risk; and
(ii)ways of eliminating or minimising the risk; and
(d)the availability and suitability of ways to eliminate or minimise the risk; and
(e)after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.”
[5] Thus, the conduct required in order to comply with s 19(1) of the WHS Act is to be determined by a process in which all relevant matters are identified and then weighed up. The latter step is an exercise in judgment. Relevant matters are not confined to those listed in the definition.
[6] Paragraph 8 of the complaint sets out control measures which, it is alleged, the respondent could have implemented, but failed to implement, as reasonably practicable measures for ensuring Mr New’s health and safety. As her Honour observes, it may be that particulars of such measures are requested. However, in my view, it is not necessary in order for the complaint to be valid, that it set out what would be, in effect, argument as to how relevant matters are to be weighed up in exercising the judgment required by the definition of “reasonably practicable”.
[7] The view I take is, I think, consistent with that taken by Ferguson and McLeish JJA in the recent decision of the Court of Appeal of Victoria in Baiada Poultry Pty Ltd v Glenister[1] to which the respondent referred this Court in argument. That decision concerned the validity of charges in a charge sheet for offending against s 26(1) of the Occupational Health and Safety Act 2004 (Vic) which is similar to s 19 of the WHS Act. The Victorian provision required that a person ensure the safety of a workplace of which the person has, to any extent, the management or control, as far as is reasonably practicable. Although the Victorian legislation contained a statutory elaboration of the concept of reasonable practicability in s 20 thereof, it is differently structured to s 18 of the WHS Act in that it requires that regard be had to the listed matters which are substantially the same as those in s 18; it does not refer to “all relevant matters”; nor does it expressly refer to a process in which all such matters are weighed up.
[8] One of the grounds of appeal in that case focused on a contention by Baiada that there was a failure by the complainant going to the validity of the charge, to identify the essential factual elements for the proposition that it was reasonably practicable for Baiada to implement the measures it allegedly should have taken.[2] In responding to that contention, the plurality made the following observations which have since been approved by the same court in DPP v Vibro-Pile (Aust) Pty Ltd:[3]
“48It is plain that a charge under s 26(1) of the OHS Act must identify the act or omission which constitutes a contravention of the section. In our opinion, the reasoning in Kirk does not support the proposition that this requires specification of the detailed actions which it was reasonably practicable for the defendant to take. Kirk concerned a trial that had been heard and determined on the basis of charges which were particularised almost entirely in terms of the words of the statute, in circumstances where the onus of proof on the question of reasonable practicability lay on the defendant. Such particulars, as well as failing to inform the defendant of the substance of the charge, amounted in effect to little more than a statement of the statutory offence.
49References in the plurality’s judgment to ‘particular measures’ need to be read in that light. The fundamental requirement is that the act or omission that constituted the contravention be specified. Analysis of a failure to do so in terms of the need to specify a ‘measure’ or a ‘particular measure’ does not say anything as to the degree of particularity required. It serves, instead, to emphasize what is the relevant act or omission which gives rise to the offence, namely the measure or measures which the defendant has failed to take to prevent an identifiable risk eventuating. The convictions in Kirk stemmed from charges which wholly failed to identify any such measure. That sufficed to require the convictions to be set aside. Baiada’s submissions sought to attribute too much significance to the plurality’s use of the word ‘measure’.” (footnote omitted)
[9] The plurality concluded their judgment with the following observations:
“53Rather than being of general application, or merely reciting the statutory language, these particulars relate specifically to the identified machinery (that is, the chicken processing line) which is at the heart of the incident in question here. Use of the word ‘adequate’ lends itself to standards applicable to the maintenance and operation of such machinery, which the VWA can seek to establish, and Baiada to contest. Taken in conjunction with the rest of what is stated in the charge-sheet (including that it was reasonably practicable for the matters identified to have been done) the elements of the charge have been identified. Baiada’s alleged failures have not been left at large. That is, the charge-sheet goes further than simply saying that Baiada failed to have a safe system in place to prevent the fatality. Baiada knows that there are only two matters that it must focus its attention on in defending the allegations — the operation of and the prevention of contact with the machine during cleaning.
54Having said that, more precise information about what Baiada allegedly should have done to ensure that the processing line was not operating and to prevent contact with it must be known well before a trial. That can and should be done through the provision of further and better particulars. Baiada will then know the boundaries of the case that it must meet at trial. It will have a full opportunity to prepare its defence and to marshal evidence to support it. But for the reasons set out above, it already knows the particulars necessary to give it reasonable information as to the nature of the charge.” (footnote omitted)
Likewise, here, paragraph 8 of the complaint, in particular, serves to inform the applicant sufficiently of the measures, which it is alleged, were reasonably practicable for it to have undertaken.
[10] In submissions, the respondent sought to distinguish Baiada by categorising it as a case in which a less exacting statement of the elements of the charge was required because the employer must have had, to some extent, management or control of the work site where the accident occurred. In my view, this is not a point of relevant distinction. A complainant for an offence against s 19(1) of the WHS Act must sufficiently inform the alleged offender of the elements of the offence, including the measure or measures it is alleged could have been taken as reasonably practicable, whether the breach occurred at the offender’s own work site or at another work site at which a worker was required to work in the offender’s business or undertaking.
[11] ATKINSON J: The applicant has sought leave to appeal a decision given by a District Court Judge on appeal from a Magistrate. These are my reasons for concluding that the application for leave should be granted and the appeal allowed.
[12] On 16 April 2012, George Henry New was injured at work.
[13] On 15 April 2014, Kevin Archer, the applicant, laid a complaint under the Justices Act 1886 (Qld) against the respondent, Simon Transport Pty Ltd (“Simon Transport”), for failure to comply with its duty under s 19(1) of the Work Health and Safety Act 2011 (Qld) (“WHS Act”) contrary to s 32 of the WHS Act and the failure to do so exposed an individual, being Mr New, to a risk of serious injury.
[14] The complaint set out the circumstances of the breach. Of particular relevance are the allegations made under paragraphs 5, 6, 7 and 8 which were as follows:
“5.Hazard
(a)The hazard giving rise to the risk is the method of undertaking the work activity of unloading large rolls of electrical cable from a semi-trailer at the workplace with the use of mobile plant;
(b)Upon arrival at the client workplace noted at paragraph 3(b) above, George Henry NEW prepared the trailer for unloading, positioning it near a driveway and removing load restraints and side gates;
(c)NEW required the assistance of a forklift operator and a forklift from the client workplace to unload the rolls of bulk cable;
(d)NEW assisted in the moving of the rolls of bulk cable to a position on the trailer to permit the forklift operator to access and remove the rolls of cable;
(e)NEW had to move the rolls of bulk cable as the forklift was unable to access the side of the semi-trailer due to the position the semi-trailer was required to be parked at the client premises;
(f)The rolls of cable were between 1-2 tonnes in weight;
(g)The forklift was unsuitable for the lifting of the rolls of cable;
(h)The method of work devised by the forklift operator and NEW was to place timber under the rolls of cable and place the forklift tines under the timber and lift the rolls of cable;
(i)This method required NEW to be in close proximity of the operating forklift, including in the lifting of the rolls of cable;
(j)During the unloading of a roll of cable it fell from the tines and struck NEW who was standing nearby.
6.Risk:-
(a)The risk arising out of the hazard of which SIMON TRANSPORT PTY. LTD. ought to have known is of death or injury to workers, including the risk of being struck by load falling from the mobile plant being used in the unloading process, resulting in multiple fractures to the left leg of George Henry NEW;
(b)While carrying out tasks associated with unloading rolls of cable from a semi-trailer delivering to a client premise with the aid of a forklift, there was a risk George Henry NEW would be struck by a load falling from the forklift as there were inadequate controls in place in the vicinity of the operating forklift carrying out this unloading activity.
(c)The risk of injury materialised when a load fell from the operating forklift and he was struck sustaining the injury particularised in paragraph 6(a) above.
7.Failures:-
(a)SIMON TRANSPORT PTY. LTD. did not ensure, as far as reasonably practicable, the health and safety of, inter alia, George Henry NEW, while he was at work in that it failed:-
(i)to develop and implement adequate work procedures to manage the hazards to sole transport drivers attending client workplaces to deliver, including unloading, bulk freight product;
(ii)to develop safe work procedures for the unloading of bulk rolls of electrical cable at client premises;
(iii)to undertake any, or any adequate risk assessment for the activity of unloading bulk rolls of electrical cable at client premises, including the manner of using client’s workers and mobile plant in the unloading activity, in accordance with the Code of Practice ‘How to Manage Work Health and Safety Risks’ 2011;
(iv)to develop any, or any adequate safe systems of work in accordance with the Plant Code of Practice 2005, in particular, clause 5.8 thereof;
(v)provide a standard of work health and safety equivalent to or higher than the standard required in the said Codes of Practice.
8.Control measures SIMON TRANSPORT PTY. LTD. could have implemented:-
(a)develop safe work procedures for the unloading of bulk rolls of electrical cable at client premises, including ensuring that client premises had adequate facilities including parking and appropriate mobile plant, for unloading of bulk freight product;
(b)develop and implement adequate work procedures to manage the hazards of sole transport drivers attending client workplaces to deliver, including unloading, bulk freight product;
(c)exclusion zones to ensure, so far as is reasonably practicable, transport drivers were excluded from the vicinity of operating mobile plant in the unloading activity;
(d)undertake a risk assessment for the activity of unloading bulk rolls of electrical cable at client premises, including the manner of using client’s workers and mobile plant in the unloading activity, in accordance with the Code of Practice ‘How To Manage Work Health and Safety Risks’ 2011 to ensure adequate controls were implemented;
(e)develop adequate safe systems of work in accordance with the Plant Code of Practice 2005, in particular, clause 5.8 thereof.
Contrary to the Act and Regulation in such case made and provided.”
[15] Simon Transport filed an application in the Magistrates Court on 23 October 2014 to quash the complaint on the basis that the court had no jurisdiction to hear or determine the complaint by reason of its failure to:
“(a)properly plead the nature of the offence; and/or
(b)plead the essential factual ingredients of the offence.”
[16] That application to strike out was heard on 23 January 2015 in the Industrial Magistrates Court in Wynnum. On 8 May 2015, the learned Magistrate struck out the complaint for want of jurisdiction. The Magistrate held:
“The complaint is too vague and obscure in identifying legal ingredients that inculpate Simon Transport in the commission of the alleged charge. On this basis I find the complaint fails to expose the legal ingredients and it cannot be sustained in law. The complaint will be struck out for want of jurisdiction.”
[17] The applicant appealed to a District Court judge who dismissed the appeal. In an ex tempore judgment delivered on 21 October 2015 the District Court judge held that the complaint was invalid. He held that paragraph 7 of the complaint was insufficient because it was not “accompanied by a meaningful identification of how the work procedures or risk assessment or systems of work or safety standard fell short of what was alleged to have been reasonably practicable”; paragraph 8 effectively repeated the allegations in paragraph 7, merely adding an allegation in sub-paragraph (c) about exclusion zones; and “there was no identification of how the relevant work procedures etc fell short of the expected standard, having regard to the definition of ‘reasonably practicable’”.[4]
[18] The application for leave to appeal to the Court of Appeal was brought pursuant to s 118(3) of the District Court of Queensland Act 1967 (Qld). Leave will be granted only where it is necessary to correct a substantial injustice to the applicant and there is a reasonable argument that there is an error to be corrected.[5] It was therefore necessary to determine whether there is a reasonable argument that there was an error to be corrected. This involves a consideration of the merits of the proposed appeal.
[19] The grounds of appeal raised by the applicant are that the learned judge erred in finding that the complaint was invalid; he misdirected himself as to the applicable legal principles for the determination of the validity of a complaint; and the points on which he found the complaint to be invalid should properly be determined by a tribunal of fact.
The applicant’s submissions
[20] The applicant submitted that a comparison of the complaint in this case with the complaint examined by the President of the Industrial Court, applying the test set out by the High Court in Kirk v Industrial Court (NSW),[6] in Daytona Trading Pty Ltd v McGarry[7] supports the view that this complaint is sufficient to meet the requirements identified in Kirk. The applicant also submitted that this conclusion is supported by consideration of the passages in Bell v Hendry & Ors[8] where the President set out the requirements for a valid complaint.
[21] The applicant submitted that particulars 7(a)(i), (ii) and (iii) do not merely recite the statutory provisions, they clearly identify the act or omission which constitutes the offence, that is, the alleged failure of the respondent to manage hazards to sole transport drivers attending client workplaces to deliver and unload bulk freight products; develop safe work procedures for unloading bulk electrical cables at client premises; and undertake risk assessment for the activity of unloading bulk rolls of electrical cable at client premises, including the manner of using the client’s workers and mobile plant in the loading activity in accordance with the Code of Practice “How to Manage Work Health and Safety Risks 2011”.
[22] Further, it was submitted that particular 7(a)(iv) identifies the failure to develop adequate safe systems of work in accordance with the Plant Code of Practice 2005, with specific reference to the relevant section of that code, clause 5.8.
[23] The applicant submitted that his Honour’s finding that the particulars “fell short” is unable to be sustained. The appellant has, at paragraphs 7 and 8 of the complaint, set out the respondent’s failures and the controls that may have been implemented. Whether a defendant has breached its duty, relevant to the particulars within the complaint, is properly a matter for the determination by a tribunal of fact after hearing evidence.
Respondent’s submissions
[24] The respondent submitted that the complaint suffers from three defects, each of which, alone, is sufficient to render the complaint invalid:
(a) The complaint fails to properly plead the legal nature of the offence;
(b) The elements of the concept of “reasonably practicable” set out in s 18 of the WHS Act are essential factual ingredients of the offence, but the complaint fails to identify these ingredients; and
(c) The complaint does not inform the respondent of the particular act, matter or thing alleged as the foundation of the charge, as it does not allege anything the respondent failed to do, being reasonably practicable to have been done.
Statutory provisions
[25] Section 19(1) of the WHS Act provides:
“19Primary duty of care
(1)A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of—
(a)workers engaged, or caused to be engaged by the person; and
(b)workers whose activities in carrying out work are influenced or directed by the person;
while the workers are at work in the business or undertaking.”
[26] Section 19(3) of the WHS Act provides:
“(3)Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable—
(a)the provision and maintenance of a work environment without risks to health and safety; and
(b)the provision and maintenance of safe plant and structures; and
(c)the provision and maintenance of safe systems of work; and
(d)the safe use, handling and storage of plant, structures and substances; and
(e)the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities; and
(f)the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking; and
(g)that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking.”
[27] Section 32 of the WHS Act provides:
“32Failure to comply with health and safety duty—category 2
A person commits a category 2 offence if—
(a)the person has a health and safety duty; and
(b)the person fails to comply with that duty; and
(c)the failure exposes an individual to a risk of death or serious injury or illness.
Maximum penalty—
(a)for an offence committed by an individual, other than as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking—1500 penalty units; or
(b)for an offence committed by an individual as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking—3000 penalty units; or
(c)for an offence committed by a body corporate—15,000 penalty units.”
Relevant case law
[28] In John L Pty Ltd v Attorney-General (NSW),[9] the High Court considered what was required for an information before justices to be valid. At pp 519-520, Mason CJ, Deane and Dawson JJ held:
“The traditional function of an information was to found jurisdiction to deal with an alleged offence. Disregarding the effect of statutory provisions curing or precluding reliance upon a defect, the old authorities established that an information should be quashed as insufficient in law and invalid if it failed to inform the justices before whom it was laid of the nature of the offence and the manner in which it had been committed. The rationale of that requirement has, in more recent times, commonly been seen as lying both in the necessity of informing the court of the identity of the offence with which it is required to deal and in providing the accused with the substance of the charge which he is called upon to meet: ‘an accused person could not be required to defend the charge if the information did not supply the particulars necessary to enable him to prepare his defence’: Ex parte Lovell; Re Buckley (1938) 38 SR (NSW) 153 at 166. … [T]he common law requirement remains that an information must at the least condescend to identifying the essential factual ingredients of the actual offence.”
[29] With regard to a prosecution for a breach of occupational health and safety requirements, the High Court held in Kirk:[10]
“A statement of an offence must identify the act or omission said to constitute a contravention of s 15 or s 16. It may be expected that in many instances the specification of the measure which should have been or should be taken will itself identify the risk which is being addressed. The identification of a risk to the health, safety and welfare of employees and other persons in the workplace is a necessary step by an employer in discharging the employer’s obligations. And the identification of a risk which has not been addressed by appropriate measures must be undertaken by an inspector authorised to bring prosecutions under the Act (s 48). But it is the measures which assume importance to any charges brought. Sections 15 and 16 are contravened where there has been a failure, on the part of the employer, to take particular measures to prevent an identifiable risk eventuating. That is the relevant act or omission which gives rise to the offence.”
[30] The legislation the court was there referring to required an employer to ensure the health, safety and welfare at work of its employees. Unlike the Queensland WHS Act it did not limit the employer’s duty to ensure health and safety “as far as practicable”. Such a provision “places the onus upon the prosecution to show that the means which should have been employed to remove or mitigate a risk were practicable.”[11]
[31] No matter whether the limitation “so far as is reasonably practicable” is found in the legislation, or is available as a defence, what must be identified in the offence alleged is the employer’s act or omission with respect to the measures which should have been taken to address identifiable risks.
[32] Referring to Johnson v Miller[12] and John L Pty Ltd, the Court in Kirk held that “the common law requires that a defendant is entitled to be told not only of the legal nature of the offence with which he or she is charged, but also of the particular act, matter or thing alleged as the foundation of the charge.”
[33] The statements of the offence in Kirk failed to identify the measures that Mr Kirk and the Kirk company could have taken but did not. They did not identify an act or omission which constituted a contravention of the relevant Act. Accordingly, Mr Kirk and the Kirk company were convicted when the Industrial Court lacked the power to make such orders because an offence against the relevant Act had not been proved.
Application in Queensland
[34] Kirk was followed and applied in Queensland in NK Collins Industries Pty Ltd v President of the Industrial Court.[13] It is salutary to compare the complaint in the present case to the complaint in NK Collins. In that case, the complaint was in these terms:
“… that on the 4th day of June 2007, at the Forestry Entitlement Area 5A within the Woodlands area – Mitchell / St George Road, approximately 92 km South of Mitchell Qld in the Magistrates Court District of Mitchell N.K. COLLINS INDUSTRIES PTY LTD being a person on whom a workplace health and safety obligation prescribed by section 28(1) of the Workplace Health and Safety Act 1995 is imposed, did fail to discharge that obligation contrary to section 24 of the Workplace Health and Safety Act 1995 in that being a person who conducted a business or undertaking N.K. COLLINS INDUSTRIES PTY LTD failed to ensure the workplace health and safety of each of it’s [sic] workers was not affected by the conduct of the said business or undertaking.
Particulars
Business/undertaking:The harvesting of trees and the cutting of wood in sawmills.
Worker:Jiandong GUO
Workplace:Forestry Entitlement Area 5A within the Woodlands area – Mitchell / St George Road, approximately 92 km South of Mitchell Qld.
The source of the risk emanates from:
- Falling dead cypress trees, and/or
- System of work for the felling of dead cypress trees.
The risk is the risk of death or injury including the risk of crush injuries to Jiandong GUO
AND IT IS ALLEGED that the breach caused the death of one Jiandong GUO
Contrary to the Acts and Regulations in such case made and provided.”
[35] Holmes JA (as her Honour then was) noted that the allegation in the complaint, which merely repeated the words of s 28(1) of the Workplace Health and Safety Act 1995 (Qld), could hardly have been more general and gave no guidance at all as to what the contravention actually consisted of. There was no allegation in the complaint as to whether specific industry codes stated a way of managing exposure to the risk. Holmes JA concluded that the Magistrate convicted the applicant of an offence when he had no jurisdiction to do so, because no relevant act or omission had been identified as constituting the offence. Her Honour said at [59]:
“In my view, it was incumbent on the prosecution to identify the measure or measures which should have been taken to ensure workers’ safety from the risk; which would, presumably, have been a means stated in the Forest Harvesting Code of Practice. That would in turn clarify what the risk was, and whether it was alleged to emanate from the existence of dead trees which might fall or whether it was posed by some feature of the system of work.”
Application of the legal principles to the present case
[36] In contradistinction to the complaint in NK Collins, this complaint set out the hazard identified and the risks engendered by the hazard to the employee. It set out the ways in which the employer failed to comply with s 19 and s 32 of the WHS Act and then set out the measures which should have been taken to obviate the identified risks. It therefore set out the relevant acts or omissions alleged to constitute the offence.
[37] In doing so, the complaint dealt with all the matters it was required to traverse and could not therefore be said to be void or a nullity. It did not fail to invoke the jurisdiction of the Magistrates Court. It may be that the complaint could be amended or further particularised under s 48 of the Justices Act.[14] But in its present form it is valid at law. The learned District Court judge erred in otherwise deciding.
Orders
[38] The application for leave to appeal is granted and the appeal to this Court is allowed with costs. The order of the District Court is set aside and, instead, the appeal to that court is allowed with costs. The decision of the Magistrates Court is set aside and, instead, the application to strike out the complaint is refused. The matter should be remitted to the Magistrates Court for hearing in accordance with law.
Footnotes
[1] [2015] VSCA 344.
[2] At [10].
[3] [2016] VSCA 55 per Maxwell P, Redlich and Whelan JJA at [133], [134].
[4] Archer v Simon Transport Pty Ltd [2015] QDC 263 at [10].
[5] Rodgers v Smith [2006] QCA 353 per Keane JA at [4], quoting Pickering v McArthur [2005] QCA 294 at [3].
[6] (2010) 239 CLR 531 (‘Kirk’).
[7] [2014] ICQ 21; see also Coggins v Steelcon Cava Pty Ltd [2014] ICQ 22.
[8] [2014] ICQ 18 at [32], [37], [38] and [41].
[9] (1987) 163 CLR 508 (‘John L Pty Ltd’).
[10] (2010) 239 CLR 531 at 553, [14].
[11] Kirk at 554 [16], citing Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249.
[12] (1937) 59 CLR 467 at 489 per Dixon J.
[13] [2014] 2 Qd R 304; [2013] QCA 179 (‘NK Collins’).
[14] See eg Karimbla Construction Services P/L v President of the Industrial Court of Qld & Ors [2014] QSC 56; Harrison v President of the Industrial Court of Queensland & Ors [2016] QCA 89 at [132], [156], [161].