Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Quickcell Technology Products Pty Ltd v Bell[2020] QDC 181

Quickcell Technology Products Pty Ltd v Bell[2020] QDC 181

DISTRICT COURT OF QUEENSLAND

CITATION:

Quickcell Technology Products Pty Ltd v Bell [2020] QDC 181

PARTIES:

QUICKCELL TECHNOLOGY PRODUCTS PTY LTD

(appellant)

v

GRAHAM CHARLES BELL

(respondent)

FILE NO/S:

BD816/18, BD1809/18

DIVISION:

Appellate

PROCEEDING:

Appeal pursuant to s 222 of the Justices Act 1886

ORIGINATING COURT:

Magistrates Court at Brisbane

DELIVERED ON:

7 August 2020

DELIVERED AT:

Ipswich District Court

HEARING DATE:

8 November 2018

JUDGE:

Horneman-Wren SC, DCJ

ORDERS:

  1. The appeals are allowed.
  2. The guilty verdict entered in the Magistrates Court is set aside.
  3. The complaint is dismissed.
  4. The fine imposed by the Magistrates Court is set aside.
  5. The costs order made in the Magistrates Court is set aside.
  6. The parties are directed to file written submissions on costs of both the proceedings in the Magistrates Court and on appeal, limited to five pages (inclusive), within 28 days.

CATCHWORDS:

MAGISTRATES – APPEAL AND REVIEW – QUEENSLAND – APPEAL – appeal against conviction – appeal against sentence – where appellant convicted of an offence against s 32 Work Health and Safety Act 2011 – where central to conviction was expert evidence that panels manufactured by the appellant were “too thin” – whether on a review of the evidence and the magistrate’s reasons the prosecution had proved a breach by the appellant of its duty under s 23(2) Work Health and Safety Act 2011 – where on the whole of the evidence the court could not be satisfied beyond reasonable doubt that the appellant had failed to comply with its duty – where appeal allowed and complaint dismissed

Cases:

Allesch v Maunz (2000) 203 CLR 172, followed

CDJ v VAJ (1998) 197 CLR 172, followed 

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

Coleman v Kinbacher & Anor (Qld Police) [2003] QCA 575, cited

Craig v South Australia (1995) 184 CLR 163, cited

Dearman v Dearman (1908) 7 CLR 549, cited

Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389, cited

Fox v Percy (2003) 214 CLR 18, followed

Harriman v The Queen (1989) 167 CLR 590, cited

Lee v Lee [2019] 372 ALR 383, followed

Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323, cited

Robinson Helicopter Company Inc v McDermott [2016] 331 ALR 550, followed

The Glannibanta (1867) 1 PD 283, cited

Warren v Coombes (1979) 142 CLR 531, followed

Legislation:

Evidence Act 1977 ss 3, 93

Justices Act 1886

Work Health and Safety Act 2011 ss 23, 32, 171

COUNSEL:

Mr R Devlin QC with Mr M Labone for the appellant

Mr M J Copley QC for the respondent

SOLICITORS:

Moray & Agnew for the appellant

Office of Industrial Relations for the respondent

Introduction

  1. [1]
    On 26 December 2012 a precast concrete panel manufactured by the appellant, Quickcell Technology Products Pty Ltd, which was being used in the construction of the Trackstar Program Alliance – Richlands to Springfield Rail Extension, failed in the course of topping concrete being poured onto it.  No person working on the project was injured.
  2. [2]
    The respondent, in his capacity as a Workplace Health and Safety Inspector authorised by the Regulator, commenced a prosecution against Quickcell alleging that it had committed an offence against s 32 of the Work Health and Safety Act 2011 in that it had failed to comply with a workplace health and safety duty imposed on it under s 23(1) of that Act.
  3. [3]
    Following a trial in the Magistrates Court, which occupied 12 days over slightly more than a year, Quickcell was convicted of that offence.[1] Quickcell was subsequently fined $200,000 and ordered to pay the prosecution’s costs in the sum of $189,941.94.  It was ordered that the conviction not be recorded.[2]  Quickcell appeals to this Court against the orders of conviction, fine and costs. 
  4. [4]
    For the reasons which follow, the appeal should be allowed, the orders below set aside and, in lieu, an order of acquittal should be entered in respect of the single charge.

The charge and a lack of particularity

  1. [5]
    As originally particularised, the breach alleged was as follows:

“1. Quickcell Technology Products Pty Ltd (Quickcell) is a company duly incorporated according to law.

  1. Business or undertaking:-
  1. (a)
    pre-stressed and precast concrete manufacturers;
  1. (b)
    including, supplying Thiess Pty Ltd with precast items for the Trackstar Program Alliance Richlands to Springfield Rail extension (‘the project’);
  1. (c)
    manufactured precast concrete panels for the project.
  1. Workplace:-
  1. (a)
    Springfield Central Railway Station, Greenbank Arterial Road, Springfield.
  1. Persons at risk:-
  1. (a)
    workers health and safety was not ensured, in particular, that of Alex Parsons, Shane Legge, Benjamin Murray, Christopher Shepherd and Clinton Burt.
  1. Hazard:-
  1. (a)
    the hazard giving rise to the risk is the prefabricated concrete panel.
  1. Risk:-
  1. (a)
    the risk arising out of the hazard, of which Quickcell ought to have known, is of death or serious injury to workers;
  1. (b)
    there was a risk that while constructing the project a panel with defects could collapse and fall.
  1. Failures:-
  1. (a)
    Quickcell did not ensure, as far as reasonably practicable, the health and safety of, inter alia, Alex Parsons, Shane Legge, Benjamin Murray, Christopher Shepherd and Clinton Burt while they were working in that it failed to:-
  1. (i)
    correctly position the pre-stressing strands;
  1. (ii)
    ensure the as built cross-sections were in accordance with the Australian Standard concrete structures, 3600-2009 (AS3600-2009) and Australian Standard, AS3610-1995 formwork for concrete (AS3610-1995);
  1. (iii)
    manufacture concrete panels with adequate thickness of concrete above strands;
  1. (iv)
    ensure concrete panel depth was in accordance with AS3600-2009 and AS3610-1995.
  1. Control measures Quickcell could have implemented:-
  1. (a)
    screeding technique application where striking off is followed by an operation involving topping up of the concrete ensuring the screeded concrete had the correct depth;
  1. (b)
    a quality control system of checking consistency and accuracy of measurements of concrete panels, including the panel depth;
  1. (c)
    a quality control system of checking consistency and accuracy of location of pre-stressing strands.”
  1. [6]
    On 7 December 2015, the fifth day of the trial, the learned presiding Magistrate allowed an application by the prosecution to amend the period during which the offence was alleged to have been committed from “on the 26th of October 2012” to “between the 24th day of June 2012 and the 27th day of October 2012”.[3]
  2. [7]
    In allowing that amendment, his Honour observed:

“It is, however, the question of allowing the amendment to cover the period of manufacture which is, perhaps, more problematic.

This is an issue which was, in effect, previously raised but not identified.  I say this in the context of the application made by the defence to have the report of Professor Dux excluded, which application was refused.  In the course of that, a submission was made concerning, amongst other things, similar fact evidence which went to the manufacture of other panels.  In dealing with that application, I indicated, and as I understood from the prosecution’s submissions, the complaint related not simply to the panel that collapsed but to the manufacturing process, and that was particularly identified in paragraph 7 and 8 of the complaint.

For whatever reason, the Court and the parties at that stage did not highlight – or did not pick up on the fact that the complaint as drafted referred simply to the 26 October.  However, it was clear at the time, in my view, of the complaint being served that at least – and if not then, at least at the time of my ruling in November of 2014, that this complaint related to the manufacturer of the panels, plural, and not simply to the panel that failed.

On that basis, it seems to me that there is no prejudice sustained by the defence in allowing the amendment sought which simply reflects the situation that has been apparent from the outset, and at least from the 13th November 2014.  I therefore allow the amendment.”

  1. [8]
    His Honour’s observations as to the complaint relating to the manufacture of “the panels, plural, and not simply the panel that failed” is of some significance.  The prosecution case was not one articulated with any precision as being one which related to panels other than that which failed.  The defence had sought to have excluded the evidence of Professor Peter Dux.  That had been dealt with by his Honour on 13 November 2014, more than a year earlier.  Professor Dux was the principal witness for the prosecution.  For reasons which will be developed later, a successful prosecution case rested on his evidence.  It could not succeed without his evidence being accepted. 
  2. [9]
    The defence had objected to Professor Dux’s evidence on the grounds of bias.  There had been further objection taken by the defence to what it considered to be similar fact or propensity evidence.[4] The prosecutor’s response to that objection was in the following terms:

“If I could turn also to the similar fact and propensity evidence.  Your Honour would have seen from my outline that the prosecution seems to be at completely different ends as my friend with respect to this evidence in the way in which this evidence is being led.  It’s the prosecution point that this evidence is not being led as propensity evidence at all, and at no stage am I seeking to draw the conclusion that on the 10th of January this panel was deficient, therefore, look how bad the defence is or they must be guilty of all this wrongdoing or anything of that nature.

It is merely to show and to be able to support the particulars that are provided in the complaint that, yes, this panel failed.  We have expert evidence that the panels were made not in accordance with the Australian Standard and we can support that by saying that the professor witness – and I don’t like it being referred to as an experiment because the professor didn’t intervene in the process until, on our case, after the process had finalised, but it was more of a view of the manufacture where he stood back and watched the process being undertaken under the advice that this was the process that was used to make the panels that had been provided to Trackstar as at the date of 26 October when the incident happened.

So the Crown can – or the prosecution can tie together those things and say, well, yes, this is the process which was used to make these panels.  The process was deficient because of these reasons and that explains why these panels have not been provided without adequate thickness, which is against the Australian Standard.

And, as I have outlined, the requirement for a valid complaint requires the prosecution to actually be able to state to the Court and to the defence exactly not only what went wrong, but why and what should have happened to fix and also to establish that what needed to happen to fix this problem was reasonably practicable, and the professor’s evidence from that day suggests it was a very easy fix, and, therefore, on the prosecution case, it’s reasonably practicable that these persons were trained in what we call the proper screeding process, which would ensure the adequate thickness panels.”[5] (emphasis added).

  1. [10]
    As can be seen from this response, the prosecution expressly disavowed the complaint related to several panels and expressly confined the case to the particular panel which failed.  However, in the course of the same hearing, the prosecutor went on to say, somewhat contradictorily:

“That one panel that failed, though that is obviously the trigger for the investigation and the trigger for these matters, I have never identified that specific panel as the only reason for the complaint proceeding.  The complaint is in relation to a charge of manufacturing and is not in relation to the fact that one single panel failed.”[6]

  1. [11]
    The complaint did not, in terms, identify any particular duty imposed upon Quickcell with which it was alleged to have failed to have complied.  In terms, the complaint merely stated Quickcell was a person who had a duty and that it had failed to comply with it contrary to s 32.  No objection was taken to the form of the complaint before the learned Magistrate.  No objection was taken to it on appeal.  However, the way in which the matter was argued, particularly on the appeal, demonstrates that the parties were in considerable discord as to any duty alleged to have been imposed and not complied with.  So too, it was apparent on the appeal that the parties were in discord as to what, if any, relevance s 23(3) and (4) had to any duty imposed by s 23(2). 
  2. [12]
    Section 23 of the Work Health and Safety Act 2011, at the relevant, time provided:

23Duties of persons conducting businesses or undertakings that manufacture plant, substances or structures

  1. (1)
    This section applies to a person (the manufacturer) who conducts a business or undertaking that manufactures—
  1. (a)
    plant that is to be used, or could reasonably be expected to be used, as, or at, a workplace; or
  1. (b)
    a substance that is to be used, or could reasonably be expected to be used, at a workplace; or
  1. (c)
    a structure that is to be used, or could reasonably be expected to be used, as, or at, a workplace.
  1. (2)
    The manufacturer must ensure, so far as is reasonably practicable, that the plant, substance or structure is manufactured to be without risks to the health and safety of persons—
  1. (a)
    who, at a workplace, use the plant, substance or structure for a purpose for which it was designed or manufactured; or
  1. (b)
    who handle the substance at a workplace; or
  1. (c)
    who store the plant or substance at a workplace; or
  1. (d)
    who construct the structure at a workplace; or
  1. (e)
    who carry out any reasonably foreseeable activity at a workplace in relation to—
  1. (i)
    the assembly or use of the plant for a purpose for which it was designed or manufactured or the proper storage, decommissioning, dismantling or disposal of the plant; or
  1. (ii)
    the use of the substance for a purpose for which it was designed or manufactured or the proper handling, storage or disposal of the substance; or
  1. (iii)
    the assembly or use of the structure for a purpose for which it was designed or manufactured or the proper demolition or disposal of the structure; or

Example—

inspection, operation, cleaning, maintenance or repair of plant

  1. (f)
    who are at or in the vicinity of a workplace and who are exposed to the plant, substance or structure at the workplace or whose health or safety may be affected by a use or activity mentioned in paragraph (a), (b), (c), (d) or (e).
  1. (3)
    The manufacturer must carry out, or arrange the carrying out of, any calculations, analysis, testing or examination that may be necessary for the performance of the duty imposed by subsection (2).
  1. (4)
    The manufacturer must give adequate information to each person to whom the manufacturer provides the plant, substance or structure concerning—
  1. (a)
    each purpose for which the plant, substance or structure was designed or manufactured; and
  1. (b)
    the results of any calculations, analysis, testing or examination mentioned in subsection (3), including, in relation to a substance, any hazardous properties of the substance identified by testing; and
  1. (c)
    any conditions necessary to ensure that the plant, substance or structure is without risks to health and safety when used for a purpose for which it was designed or manufactured or when carrying out any activity mentioned in subsection (2)(a) to (e).
  1. (5)
    The manufacturer, on request, must, so far as is reasonably practicable, give current relevant information on the matters mentioned in subsection (4) to a person who carries out, or is to carry out, any of the activities mentioned in subsection (2)(a) to (e).”
  1. [13]
    The decision on Quickcell’s application to have all, or some, of Professor Dux’s evidence excluded, was determined on 16 February 2015.  The primary objection that the evidence should be excluded for reasons of bias was dismissed.  In my respectful view, properly so.  The matter raised could only go to the weight to be given to his evidence, not its admissibility.  His Honour’s written reasons for dismissing the objection to what had been submitted was similar fact or propensity evidence included the following:

“As to the objection of similar fact or propensity evidence, it should be noted that while the complaint in this matter arises from the collapse of the panel at the Springfield Railway Station, the complaint relates to a number of alleged failures set out in paragraph 7 of the complaint, including a failure to manufacture concrete panels with adequate thickness of concrete above strands.  The complaint also indicates in paragraph 8 control measures it is said that Quickcell could have adopted. 

The complainant asserts that the evidence said to be similar fact or propensity evidence is direct evidence proving an essential factual ingredient of the actual offence particulars of which are provided in paragraphs 7 and 8 of the complaint and summons.

It seems to me that the correct characterisation of the evidence sought to be relied upon is that is being used to discharge the complainant’s obligations to seek to prove what the defendant should have done to avoid the risks in paragraph 6 of the complaint and summons, the failures in paragraph 7 of the complaint and summons and the control measures that the respondent could have taken to avoid the failures referred to in paragraph 7.  This is particularly so having regard to the obligation of the complainant to identify the measure or measures which should have been taken to ensure worker’s safety from risk.”[7]

  1. [14]
    In opening the case, some nine months later, the prosecutor said:

“As mentioned, your Honour, to prove the case against the defendant, the prosecution will be relying on evidence from 11 witnesses.  Of particular importance is of course the evidence of Professor Peter Dux, a civil engineer with extensive experience in concrete structures.  Professor Dux will be providing expert opinion evidence in relation to the concrete panel that failed and the concrete panels that have been provided for the project and the process in which the panels were made and why it is in his opinion that they were deficient.  Ultimately, Professor Dux will conclude that the defects he located in the manufacturing of the panels when combined rendered the failed panel incapable of carrying the expected construction loads for which it was intended.[8] (emphasis added).

  1. [15]
    By the time the application to amend the particulars was made, senior counsel had been brought in to lead the prosecution. The legal officer who had previously conducted the case alone and who had argued the earlier admissibility point was retained in a junior role. 
  2. [16]
    The lack of particularity in the prosecution case arose again in February 2016, during the evidence of the central witness for the prosecution, Professor Dux.  Whilst re-examining Professor Dux an objection was taken on the basis of the relevance of some evidence.  Senior counsel for the prosecution said:

“Yes, your Honour.  Firstly, we’re not limited to the SSP13 panel.  We’re – the charge is across the panels.  It’s – and quality control, at least as I recall it, is one of the issues that’s pleaded.  I mean, this was part of the argument where they tried to say you’re really stuck with one panel. 

---

And it’s just not the case.”[9]

  1. [17]
    The reference to the SSP13 panel and the prosecution not being limited to them, was that there were a number of different types of panels which Quickcell was contracted to manufacture.  The panel which failed was of the SSP13 type.  Senior counsel for the prosecution’s suggestion that the prosecution was not limited to the SSP13 type panel drew this response from counsel for Quickcell:

“Now, the other thing, your Honour, that my learned friend has just said in relation to that is not limited to the SSP13 type panels, that’s the first that we’ve heard that – well, anything other than the SSP13 panel that failed is on trial here.  Certainly that’s not the way the evidence in this case has been presented up to date.  You can’t – it can’t be the case that everything between those dates is on trial.”[10]

  1. [18]
    Following that submission and in response to it, the learned Magistrate referred back to his having dealt with the objection to Professor Dux’s evidence which, by then, was some 15 months earlier.  His Honour said:

“Well, I’ll let Mr Glynn speak for himself, but on my reading of it – when I first picked this thing up and I first had to deal with the initial objection in this matter, I focused on the collapsed panel and, indeed, as I recall – and I’m now talking from memory – your submission as to why I should adopt a certain course focused on that.  But you might recall I rejected those submissions and part of that was the point which was particularly made by the prosecution that this was not a prosecution with respect to a single panel but the process.  And I’m now paraphrasing my recollections.

So – and the control measures which are detailed in paragraph 8 of the complaint talk about a process of manufacturing.  Now, I suppose I’ve always implicitly, in the back of my mind, focussed on the manufacturing of the SSP13 panels and, indeed, in terms of the evidence in this, that’s the one that collapsed; that’s the one where we have measurement; all of those things.  And probably if I was to accept that the SSP13 panel wasn’t properly manufactured and there were all the defects in manufacture, which the professor’s report suggests, that would be sufficient for me to find the prosecution.  As I recall the evidence there has been no evidence, in effect, really given about the other panels.”[11]

  1. [19]
    In response, counsel for Quickcell said:

“That’s my concern.”[12]

  1. [20]
    Senior counsel for the prosecution when asked as to the relevance of questions put to Professor Dux and whether such questions “take us anywhere when we’ve heard no evidence, in effect really, given about the other panels”, responded:

“Well, what we’ve got in the other panels is that all of the drawings have been tendered, without objection, in relation to all of the panels, because all of the panels are in issue.  Because the same flaw infects them all.”[13]

  1. [21]
    Senior counsel later went on to say:

“Because they’re all SSP panels… with the same fault throughout.  The strands are all in the wrong position on our case.”[14]

  1. [22]
    Shortly afterwards, the debate continued in the absence of the witness.  Senior counsel for the prosecution persisted with a submission that drawings of panels of a type other than that which had failed, the SSP13, had been tendered without objection.  His Honour, in saying that “I just want to make sure I have my head around something”, observed that junior counsel for the prosecution and defence counsel “probably have lived and breathed this case for some considerable period of time”.  By contrast, his Honour said of himself, “whereas I keep stepping in and out of it”, an apparent reference to the lengthy delays which occurred between phases of the hearing of the matter.  Senior counsel for the prosecution said of his involvement, “so do I”, meaning that he too had been stepping in and out of the matter.  Senior counsel suggested that “one would have expected that at that stage there would have been some objection”, in an apparent reference to the lengthy involvement of counsel for Quickcell.[15]
  2. [23]
    Following this his Honour said:

“Well, I understand that where I had some concerns arising from the objection taken by Mr Labone – and it might be I am misrepresenting his objection, and Mr Labone you should not feel constrained to accept what I’m saying – is that in terms of the evidence given in terms of the concrete pour the focus has always been on the SSP13 and that yesterday, as I understand the evidence of Professor Dux, his reference to the strength of the panels was based upon a selection of – what do we call them – the cured cap cylinders which was taken across all of the panels.

It wasn’t my understanding and I don’t know – and somebody might tell me I’m wrong about this, but I suppose if I actually look at the legend I will be told this answer – that the issue of the concrete strength was an issue across all of the panels, but I note that all of the panels talk about concrete grade 40 mega pascals.  The professor has been saying he’s not concerned about the strength of many of the panels.”[16]

  1. [24]
    The issue his Honour appears to have been raising was that, as his Honour understood it, the case concerned the failure of an SSP13 panel and that other evidence concerning the manufacture of panels was in relation to the manufacture of panels of that type.  This seems to be made plain by his Honour who, after some further discussions with counsel, went on to say:

“But coming back to that, the problem that I – and I might be creating a mountain out a molehill here, is that we have only spoken, in effect, of the failure of the SSP13 panel… And I appreciate the manufacture.  And I suppose in my mind when I have been focussed on the manufacture I’ve been focussing on the manufacture of the SSP13 panels, plural.”[17]

  1. [25]
    To this, senior counsel for the prosecution replied “because that’s the one that failed”, an observation with which his Honour agreed before going on to ask:

“And would you accept it would be fair to say that if I was to find that the process of manufacturing the SSP13 panels was in breach of the legislation that, that’s all I need to find.  I don’t need to be worried about finding whether the breach of the SSP02’s and the 11’s and the 14’s, or whatever.”[18]

  1. [26]
    Senior counsel then said:

“Except that it would obviously be a question that went to penalty --- and therefore, it does become a significant issue.  But I would accept that if you found that it was in respect of one, that that would be sufficient to result in the conviction.”[19]

  1. [27]
    The following exchange then occurred:

“BENCH:

So your case is really one based, with respect to the other panels, on what’s in the plans. Well, how can the professor give evidence about the other panels, because wouldn’t it be the case that other panels with different dimensions might have different bending focusses? And his report doesn’t go to the other panels, does it.

MR GLYNN:

And I don’t think he specifically goes through the panels.

BENCH:

No. So isn’t that a problem? If he’s saying that SSP13 has been incorrectly manufactured ---

MR GLYNN:

No, no.

BENCH:

--- Because it’s got – it’s too shallow and the strands are in the wrong place, and all of those things, then that’s fine; I can find that. But his report doesn’t go to the other ---

MR GLYNN:

He doesn’t deal with it in terms of even the SSP13.  What he’s dealing with is the method of manufacture and the fundamental flaw in it.  It’s the flaw in the method of manufacture that’s the cause of the charge.”[20]

  1. [28]
    After some further discussion between the learned Magistrate and senior counsel for the prosecution, the following further exchange occurred between his Honour and counsel for the defence:

“MR LABONE:

Well, your Honour, with respect to my learned friend, this – these panels are all of different sizes. The SSP type 13 panel, as I understand it, had the longest span.

BENCH:

Yes.

MR LABONE:

The other ones are smaller. And just on principle, the effect of that length is going to have an effect on the strength of the [indistinct] because there’ll be a different load applied to it over a different area. There’s no expert evidence whatsoever in relation to any of these panels that your Honour could make any decision. The manufacturing process? Well, your Honour has recalled by object.[21] Each panel is made in a different way, depending on the slump of the concrete and the workers on the job at the time. So your Honour can’t take from one observation that every panel was made that way. It’s just – that’s the – contrary to the evidence. My friend’s case just can’t – it can’t be enhanced on that basis.

BENCH:

Well, I’ll stop you there. I hear what you’re saying and, indeed, I might have some difficulties in necessarily finding that all of the different types of panels were necessarily manufactured incorrectly based on some submission you make to me based upon the evidence. It would seem to me that, in effect, one may be able to, on the evidence – and I’m not saying one can, and I’m sure I will hear conflicting submissions on this – to treat the SSP13 panels in one category and the other panels in another category on the basis of what you’ve just said to me. That the actual complaint doesn’t refer to any particular panel, it just refers to the panels – or the manufacturing process.

So I’m going to allow the questioning. It seems to me that that’s one of the difficulties with this type of prosecution is, people might perceive something whether – what communications had been between the parties and what correspondence might have passed which should or may have disabused somebody of something. But I’m going to allow the questions. And it seems to me that your strongest point on that would be to, in your submission, in effect, perhaps at least quarantine all the non SSP13 panels and say why the evidence given, particularly the evidence of slump and whatever, can’t relate to the other panels. I’m sure you’ll want to have – for other reasons, and perhaps for the same reasons – to cover the SSP13’s, because I’m sure you’re briefed to defend Quickcell with respect to the entire process, not just the non-SSP13 process. So that’s how I’m going to proceed. Now does anything arise from that gentlemen?”[22]

  1. [29]
    I have set out these matters concerning the charge, its amendment and the issues concerning the admissibility of Professor Dux’s evidence because, in my view, they demonstrate a lack of particularity which bedevilled this prosecution.                 With great respect to the learned Magistrate, it was no answer to the objections taken to Professor Dux’s evidence in re-examination that he might have difficulties in finding that all of the different types of panels were manufactured incorrectly based on submissions made by defence upon the evidence. The issue is whether there should be any evidence concerning panels other than that of the type which failed: the SSP13. That is, did evidence concerning panels of any other type meet the primary test of admissibility; relevance. To the proof of what facts in issue was it relevant? That could only be resolved by close consideration of the particulars of the charge bought against Quickcell. Those particulars confined the charge, and, thereby, what evidence was relevant to its proof. It was a criminal prosecution, not an inquiry. A prosecution cannot (fairly) be conducted on the basis that evidence be admitted and submissions later heard as to whether the charge, or aspects of it, can be held to fit within the evidence.
  2. [30]
    The Magistrate’s assumption as to the extent of defence counsel’s instructions was also neither to the point, nor relevant to the issue of what were the particulars of the criminal charge which Quickcell was called upon to answer.
  3. [31]
    The importance of understanding the particulars of the charge, and thus what evidence was admissible and for what purpose, was demonstrated in the respondent’s submissions on the appeal.  Quickcell had, again, submitted that evidence concerning panels other than the failed panel had been admitted, impermissibly, as similar fact or propensity evidence.  In written submissions the respondent, again, submitted that the evidence was not propensity evidence. 
  4. [32]
    It was submitted in the respondent’s written submissions on the appeal that its basis for admission and its relevance was as follows:

“This evidence was not propensity evidence, it was evidence relevant to a fact in issue, namely, whether the appellant had failed to comply with the health and safety duty imposed on it by s 23 to ensure so far as reasonably practicable that the panel which failed was manufactured without risks to health and safety.  Reasonable practicability was governed by s 18 – that reasonably able to be done to ensure health and safety taking into account the matters set out, in particular, at paras (c) and (d) of s 18.

The number of other (if any) defectively manufactured panels bore on the likelihood of the manufacturer (the appellant) knowing of the risks of death/serious injury or upon the likelihood that the appellant should have known of that risk and it bore upon what the appellant either knew, or ought reasonably to have known, about ways of eliminating or minimising the risk.  Had no account be taken of the other defective panels then one could have asked:  how could the appellant have known or reasonably have known that only one of thousands posed such a risk; how could the appellant have known or reasonably to have known of a way to eliminate the risk of only one defective panel resulting from its process of manufacture.

Whether there was only one or more than one defectively manufactured panel also bore upon whether it would have been reasonable to adopt or implement other ways to eliminate or minimise the risk.”[23]

  1. [33]
    As can be seen from these submissions, on the appeal the respondent’s position was that the prosecution concerned a breach of Quickcell’s statutory duty by failing to ensure that the failed panel was manufactured without risks to health and safety.
  2. [34]
    In the course of oral submissions, in addressing the basis upon which evidence of the manufacturing process had been admitted and that it was not propensity evidence, Mr Copely QC said:

“So the contention that I make to your Honour is that the evidence of Professor Dux about the manufacturing process that he observed was in terms of Harriman v The Queen[24] at p 594, evidence probative of the offence charged or of a fact in issue.  Because evidence of the manufacturing process bore upon what the respondent company ought reasonably to have known about the hazard or the risk, and the ways of eliminating it or minimising it, and it bore upon the availability and suitability of ways to eliminate or minimise the risk.  And the evidence of Dux was simply this, that he watched how these men built the panel, and he noticed, if one reads his report, that when they came to level it off, they levelled it off in such a way that they pushed too much concrete ahead of the iron bar; thus, leaving a level of concrete that was lower than the 95 millimetre depth behind.

That was simply his evidence, and it would appear, from going back and reading his report, that the reason he went to observe that process was to try to get some understanding as to how this panel may have been manufactured, to put it neutrally, too thin.  So the evidence wasn’t at all being led, and I don’t recall reading anywhere in the submissions from the prosecution, that because another panel or panels had been manufactured too thin or with not the required level of 95 millimetre thickness, therefore, it is more likely than not that the company is guilty of this offence because they’ve done that on this day.”[25] (emphasis added).

  1. [35]
    The following exchange then occurred:

“HIS HONOUR:

And you weren’t putting on the panels on trial, as it’s referred to in the appellant’s submissions.

MR COPELY:

No. No, they ---

HIS HONOUR:

It’s about the failure. It’s a case about the failure of one panel.

MR COPELY:

Yes.

HIS HONOUR:

That it was not manufactured in – or, sorry, rather that in the manufacture of it ---

MR COPELY:

Yes.

HIS HONOUR:

--- The duty imposed by s 23(2) was not complied with.

MR COPELY:

Yes.”[26]

  1. [36]
    Again, this makes clear that the case concerned the manufacture of one particular panel which failed and whether or not in the manufacture of that panel Quickcell had failed to comply with the workplace health and safety duty imposed on it.

The nature of the appeal

  1. [37]
    The nature of the appeal under s 222 of the Justices Act 1886, being an appeal by way of re-hearing, is that the appellate powers of the Court are to be exercised for the correction of error.[27]  In Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission,[28] Gleeson CJ, Gaudron and Hayne JJ said:

“Ordinarily, if there has been no further evidence admitted and if there has been no relevant change in the law, a Court or tribunal entertaining an appeal by way of re-hearing can exercise its appellate powers only if satisfied that there was error on the part of the primary decision maker.  That is because statutory provisions conferring appellate powers, even in the case of an appeal by way of re-hearing, are construed on the basis that, unless there is something to indicate otherwise, the power is to be exercised for the correction of error.”

  1. [38]
    In Fox v Percy,[29] Gleeson CJ, Gummow and Kirby JJ observed:

“… the Appellate Court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a Judge sitting alone, of that Judge’s reasons.  Appellate Courts are not excused from the task of ‘weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect’.”[30]

  1. [39]
    Their Honours went on to say:[31]

“If, making proper allowance for the advantages of the trial Judge, they conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute.”

  1. [40]
    Further on,[32] their Honours said:

“But in every appeal by way of re-hearing a judgment of the Appellate Court is required both on the facts and the law.”

  1. [41]
    As to conducting a “real review”, in Robinson Helicopter Company Inc v McDermott,[33] a Full Court of the High Court said:

“A Court of Appeal conducting an appeal by way of re-hearing is bound to conduct a ‘real review’ of the evidence given at first instance and of the Judge’s reasons for judgment to determine whether the Judge has erred in fact or law.  If the Court of Appeal concludes that the Judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings.  But a Court of Appeal should not interfere with the Judge’s findings of fact unless they are demonstrated to be wrong by ‘incontrovertible facts or uncontested testimony’, or they are ‘glaringly improbable’ or ‘contrary to compelling inferences’.”

  1. [42]
    In Lee v Lee,[34] Bell, Gaegler, Nettle and Edelman JJ further explained:

“A Court of Appeal is bound to conduct a ‘real review’ of the evidence given at first instance and of the Judge’s reasons for judgment to determine whether the trial Judge has erred in fact or law.  Appellate restraint with respect to interference with a trial Judge’s findings unless they are ‘glaringly improbable’ or ‘contrary to compelling inferences’ is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial Judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts.  Thereafter, ‘in general an appellate court is in as good a position as the trial Judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial Judge.”[35]

  1. [43]
    As what is required on this appeal by way of rehearing is a real review of the evidence and the Magistrate’s reasons, it is unnecessary to concentrate overly on the grounds of appeal set out in Quickcell’s notice of appeal as developed in its outline of argument.  The latter, far from being an outline, is a tortuous document comprising some 57 pages.  Much of it was dedicated to misconceived grounds set out in the notice of appeal.  These included, on a number of issues, that the Magistrate had “failed to deal with a fundamental issue” or that particular failures to deal with issues or provide reasons were a denial of natural justice and/or “amounted to a constructive failure to exercise jurisdiction”.  Those submissions were based upon the explanations of a constructive failure to exercise jurisdiction, as opposed to an actual failure to exercise jurisdiction, in the minority judgment of Gaudron J in Minister for Immigration and Multicultural Affairs v Yusuf,[36]  and upon the discussion of that principle in Dranichnikov v Minister for Immigration and Multicultural Affairs.[37] Those submissions wholly failed to appreciate that their Honour were there addressing jurisdictional error on the part of an administrative tribunal.  Those submissions wholly failed to appreciate the “critical distinction which exists between administrative tribunals and courts of law” when considering jurisdictional error.[38]
  2. [44]
    A number of matters addressed in Quickcell ‘s “outline” were further expanded upon in three separate documents entitled “speaking notes” handed up on the hearing of the appeal.[39]  Those “notes” ran to a further 28 pages.  Those notes identified two contentions.  It is convenient to deal with the second of them at the outset of these reasons.
  3. [45]
    The contention is that Quickcell accepts that it had a duty under s 23 of the Act but that the duty under s 23 is limited to things within the manufacturer’s control.  It submitted that, in this case, those things were set out under subsections 23(3) and (4).  It was further submitted that the evidence is that those things were done and that the failures alleged by the prosecution, particularly in paragraph 7 of the particulars, were not made out.  The submission continued that because Quickcell had not failed to ensure the matters set out in paragraph 7, it followed that it did implement the control measures set out in paragraph 8 of the particulars so far as was reasonably practicable.  The submission, as further developed, was that “the focus in this case falls on whether Quickcell carried out its duty under subsections 23(3) and (4)”.
  4. [46]
    Then, having addressed why it says that the court could not be satisfied beyond reasonable doubt that it had breached its duties under subsections 23(3) and (4), Quickcell concluded its submission saying “the court would, therefore, not be satisfied beyond reasonable doubt that Quickcell failed to ensure, so far as was reasonably practicable, that the SSP13 type panel the subject of the charge, which failed, was manufactured to be without risks to the health and safety of the relevant persons”.
  5. [47]
    That submission, with respect, displays a lack of understanding both as to the structure of s 23 of the Work Health and Safety Act 2011 and as to what the case was about. 
  6. [48]
    The duty imposed by s 23(2) is cast in broad terms: to ensure, so far as is reasonably practicable, that the structure is manufactured to be without risks to the health and safety of the relevant persons.  The further, specific matters prescribed in subsections 23(3) and (4) must be done by the manufacturer in order to discharge the general duty imposed by s 23(2), but they do not define the content of that duty.  Proof beyond reasonable doubt that the manufacturer did not do the things prescribed by subsections (3) and (4) may prove that the manufacturer has not discharged the duty imposed by subsection (2).  A failure to prove that the manufacturer has not done those further things will not, however, result in a failure to prove that the duty imposed by subsection (2) has not been discharged. 
  7. [49]
    A failure to discharge that duty may be constituted by any number of acts or omissions entirely unrelated to subsections (3) or (4).  The acts or omissions by which Quickcell is alleged to have contravened its s 23(2) duty in this case are those particularised at paragraph 7 of the particulars set out in the complaint.  None of those acts or omissions engage either of subsections 23(3) or (4). 
  8. [50]
    Far from the focus of the case falling on whether Quickcell carried out its duties under subsections 23(3) and (4) as submitted, those provisions are entirely irrelevant to the case.
  9. [51]
    Essentially, the issues on the appeal can be reduced to one of the 14 grounds of appeal set out in the appeal notice.  Ground 9 is “there was insufficient evidence for the court to be satisfied beyond reasonable doubt that the defendant had failed to comply with the duty imposed on the defendant under s 23 of the Work Health and Safety Act 2011 (Duty), and/or in the alternative, the evidence reasonably admits that the defendant did not fail to comply with the Duty”. If Quickcell can make good this ground, the appeal should succeed.
  10. [52]
    In order to conduct a real review of the trial and decision on this appeal, the most appropriate way to proceed is with a recitation and some analysis of the learned Magistrate’s reasons.  Through that analysis, the centrality of Professor Dux’s evidence and thesis will become apparent.  So too, such analysis will reveal the centrality of one issue to Professor Dux’s overall thesis:  the manufacturing process adopted by Quickcell resulted in the panel being too thin which caused it to fail.  Such analysis will reveal why this central thesis was not proven on the whole of the evidence, or indeed in the prosecution case.

The decision in the Magistrates Court and centrality of the evidence of Professor Dux

  1. [53]
    As already observed, the prosecution case rested on the evidence of Professor Dux. Conviction of Quickcell depended upon the Court accepting his evidence. Professor Dux had been engaged to provide a report as part of the investigation into the failure of the panel which was commenced by Workplace Health and Safety shortly after the incident. Professor Dux had provided a report dated 26 February 2013. That report became Exhibit 7.2. At paragraph [12] of his reasons the learned Magistrate recited the conclusions of Professor Dux set out at paragraph 26 of that report which were:

“1. The SSP13 panel failed in bending due to inadequate structural properties which resulted from an incorrect manufacturing practice by Quickcell;

  1. The key manufacturing defects were:
  • Incorrect location of prestressing strands, and
  • Inadequate thickness of concrete above stands due to inadequate concrete practice, specifically failure to employ good screeding practices that would have resulted in panels of the correct depth and failure to check the depth of concrete achieved with the practice actually employed;
  1. The combination of these defects rendered the failed panel incapable of carrying the expected construction loads;
  1. There is no evidence that indicates the failure resulted from design error;
  1. There is no evidence that indicates the failure resulted from incorrect construction practiced by Trackstar at the Springfield Station site.”
  1. [54]
    The learned Magistrate  correctly observed at paragraph [14] of this reasons:

“The complaint is in effect based on the conclusions reached by Professor Dux in his report of 26 February 2013.”

  1. [55]
    At paragraph [28] of his reasons[40] the learned Magistrate summarised the prosecution case as being “that Quickcell has exposed individuals to the risk of serious injury or death by manufacturing thin panels, moving the prestress strands to a level that is high and not ensuring consistent depth”.
  2. [56]
    In light of the discussion above about the lack of clear particularity of the prosecution case, it should be observed that in its written submissions the prosecution references to panels was to “SSP type panels”[41] although it was identified that the panel which failed on 26 October 2012 was of the SSP13 type.[42] In that regard, at paragraph [27] of his reasons, the Magistrate observed:

“For the Court to find Quickcell guilty, it needs to be established beyond reasonable doubt that the way the panels were manufactured exposed individuals to risk of serious injury or death.”

  1. [57]
    Paragraphs [27] and [28] of his Honour’s reasons were a recitation of the prosecution’s written submissions.
  2. [58]
    The learned Magistrate observed that 219 SSP panels were manufactured and delivered by Quickcell to Thiess between 24 June 2012 and 27 October 2012 (being the period charged after amendment of the complaint) and set out a table summarising the types of panels and length, width and depth of each of them.[43]
  3. [59]
    His Honour observed[44] that a number of panels of both the SSP12 and SSP13 types were rejected by Thiess and returned to Quickcell. His Honour further observed:

“The measurements and a number of these panels varied, including panel thickness measurements which were as low as 70 millimetres on SSP12 panels and 75 millimetres on SSP13 panels.”[45]

  1. [60]
    These observations were based upon Exhibit 4.73. Exhibit 4.73 was a document in the nature of a table which was headed “Rejected SSP panels (panels not installed and returned to Quickcell)”.
  2. [61]
    The true evidentiary significance of Exhibit 4.73 is, in my view, a matter of considerable importance. It is a matter to which I shall return.
  3. [62]
    The Magistrate recorded that it was uncontentious that the target thickness for all SSP panels was 95 millimetres and that all panels manufactured during the period from 24 June 2012 to 22 October 2012 had cover to strands of 50 millimetres. The cover to strands is measured from the centre of the strand to the soffit or bottom of the slab.
  4. [63]
    His Honour then set out the applicable Australian Standards, being AS3610 of 1995, Formwork Concrete[46] and AS3600-2009, Concrete Structures.[47]  As to the applicability of AS3610 and whether it applied to the precast slabs manufactured by Quickcell, his Honour observed at [38] to [44]:

“Despite the defence submission to the contrary, the precast panels manufactured by Quickcell have been accepted as formwork throughout the evidence.  Professor Dux throughout his reports and oral evidence has referred to the panels as formwork.  Mr Fordyce accepts and refers to the precast panels as formwork in his reports and oral evidence.

The defence accept the precast panels constitute formwork; it was not put to Professor Dux that the precast panels were not formwork, indeed the line of questioning directed to Professor Dux accepted that the precast panels were formwork.  This was confirmed by counsel for the defence when specifically asked by the Bench.

‘BENCH:

In effect pre-manufactured formwork, and really that’s all Quickcell was doing, was manufacturing some formwork?

MR LABONE:

Yes…

MR LABONE:

The way that this structure is put together, there are precast elements which form the formwork.’

The definition of formwork is ‘the surface, supports and framings used to define the shape of concrete until it is self-supporting.’

The precast panels were, as stated by Mr Fordyce, to ‘act as permanent formwork to an in situ reinforced concrete topping slab’.

As the panels were to act as formwork, AS3610 applies and confirms that the structural design of formwork shall comply with section 4 of AS3610.

Mr Fordyce agreed with Professor Dux that for design formwork the loads specified in AS3610 would be used.”

  1. [64]
    The Magistrate’s observations adopted the written submissions of the prosecution.[48]
  2. [65]
    The learned Magistrate then set out various matters concerning loads and the design capacity and design load generally and as they relate to panels of different design and manufacture: 40 millimetres to cover design with 95 millimetres thickness – 40MPa; panel 50 millimetres cover, if 95 millimetres in depth; panel with 50 millimetres cover, thickness below 95 millimetres – 50MPa concrete.[49]
  3. [66]
    His Honour concluded, at [64]:

“The result is, if you do not take into account any of the additional safety or load factors that are required in AS3600 you have a situation where panels under 85 millimetres thick are likely to fail as their capacity is less than the construction load of 24.3kNm, that is under 85 millimetres they may just support the construction amount, but they would not support any further loads.  None of the panels would satisfy the Australian Standards as outlined in [61].”

  1. [67]
    His Honour then observed, at [65]:

“It would appear that the defence do not contest that in isolation a design for 95 millimetres thickness and 50 millimetres cover does not comply with the Australian Standards.  However, it is the defence position that the manufacturer (Quickcell) can enforce load limitations, and that this was done by the email of 13 September 2012.  The defence argument is that with this ‘load limitation’, it would alter the bending moment to approximately 19kNm and, therefore, defence argue that even a slab of 80 millimetres thickness should not fail.”

  1. [68]
    Those conclusions and observations adopt paragraphs [49] and [50] of the prosecution’s written submissions.
  2. [69]
    His Honour then turned to consider the issue of load restrictions.  At paragraph [66] he observed:

“The evidence of Professor Dux was that if a panel does not comply with the Australian Standards it cannot be made compliant by the manufacturer placing a load limitation on the panel.”

  1. [70]
    Having referred to the definition of “formwork” in AS3610 the Australian Standard Formwork for Concrete, at [68] his Honour said:

“The defence submit ‘the way that the panels were used in the construction process does not sit comfortably with the definition of formwork.  The evidence before the Court is that the panels were designed to become part of any structure once combined with the topping concrete pouring on them.  Accordingly, the concrete poured on the panels was never to be self-supporting. This submission and a number of the submissions that follow in relation to whether or not the precast panels were formwork is inconsistent with how the case was run with the acceptance by the defence during the course of the case, that all that Quickcell was in effect doing was manufacturing formwork.”

  1. [71]
    The learned Magistrate referred to the evidence of the expert engineer called in the defence case, Mr Michael Fordyce, as contained in his supplementary report of 11 February 2016[50] and its reference to clauses 4.6.3(b) and 5.3.1(b) of AS3610.  Respectively, those clauses provide:

“Formwork shall comply with:

Where it is assembled from proprietary components these shall be used in accordance with the manufacturer’s discretions.”

and

“Formwork shall be erected and maintained in the manner that would ensure:

Compliance with the formal documentation and project documentation.”

  1. [72]
    From Quickcell’s reliance upon those clauses, his Honour said that it appeared to be submitted that those clauses allowed the designer and/or supplier of formwork to specify any limitations or restrictions in the use of the formwork.[51]  His Honour noted that proprietary items were also defined by the standard as “an item made in quantity production or [sic] general use in formwork assemblies, and whose load capacity has been approved by analysis or test”.[52]
  2. [73]
    His Honour said that the defence submission based on clause 4.6.3(b) of AS3610 did not take into account the definition of “proprietary item” in the standard.[53]  His Honour also observed that this defence submission seemed to resile from the acceptance by defence counsel and Mr Fordyce in the course of the proceedings that the panels were formwork.[54] After noting that it was the prosecution case that proprietary items, as defined by the standard could not include the precast panels the subject of the charge because they were not made in quantity production for general use and that they had not had their load capacities proven by analysis or tests, but rather they had been designed and built for a specific limited purpose, and having noted that this was supported by evidence of Mr Russo, a civil engineer employed by Thiess as the manager for the project,[55]  his Honour concluded, at [76]:

“In this regard the Court accepts the prosecution submission that the formwork in this case is not a proprietary item which is supported by the evidence of Professor Dux.  During cross-examination by defence counsel, Professor Dux gave examples of proprietary formwork being pre-manufactured proprietary components and of how they are to be used.  The Court accepts the evidence of Professor Dux and Mr Kovis that the precast slabs designed and built by Quickcell were not proprietary items but rather designed and built for a specific purpose.  It should be noted that the panels were specifically designed by Quickcell at the request of Trackstar because the proprietary humeslabs were not of an acceptable thickness.”

  1. [74]
    In addressing the panel design process, the learned Magistrate observed that the drawing endorsed “as built drawing”, being drawing QTP-TS-FS-001 dated 23 May 2012, “contained inconsistencies which meant that no panel could have been built to the specifications contained therein.  The side view of that as built drawing goes with the right hand side centre of strand 40 millimetres on the left side, 50 millimetres cover to strand”.  His Honour then observed, “a subsequent drawing,[56] appears to show correct design which on the side view shows on the left and right centre of strand being 40 millimetres from the base of the slab.  This also has the correct depth of the panel being 95 millimetres whereas the as built drawing dated May 2012 has a depth of 100 millimetres”.[57]
  2. [75]
    His Honour then referred to the evidence on this issue of the experts, Professor Dux[58] and Mr Fordyce,[59] called respectively by the prosecution and the defence, particularly Mr Fordyce’s evidence that the change was not a manufacturing error, but a decision made by Quickcell to suit its manufacturing process having first confirmed the adequacy of that final design with Trackstar.[60]  Then, again noting that Quickcell had not been charged with any offences relating to design breach, and that it was not in doubt that Quickcell designed the slab, concluded that emails exchanged between Quickcell and Trackstar[61] were “consistent with the finding that the panels were not proprietary items as defined in AS3610, but rather was [sic] designed and built by Quickcell for a specific limited purpose”.[62]
  3. [76]
    On the issue of the application of the Australian Standards, it is sufficient for me to record that I concur with the conclusion reached by the learned magistrate and that those standards did apply for the reasons expressed by his Honour to which I have referred. I concur with his Honour’s conclusion that the panels were not proprietary items as defined in AS3610. As the balance of the reasons will demonstrate, however, I am not of the view that either of the alleged failures associated with these standards as set out in subparagraphs 7(a)(i) and (iv) of the particulars, of themselves, would prove that Quickcell failed to comply with its duty under s 23(2). The evidence, particularly that of Professor Dux, would require it to be found that any failure to comply with the standards either caused the failed panel to be of deficient thickness, or combined with its otherwise deficient thickness to cause it to fail. For reasons later explained, I am not satisfied of those matters. Therefore, issues concerning the standards need not be addressed further.
  4. [77]
    His Honour commenced his analysis of the issue of “panel depth” with the observation that “there is no dispute that the panel thickness as designed by Quickcell was to be 95 millimetres”.[63]  After reciting that AS3600 permitted a maximum deviation of 5 millimetres, the Magistrate referred to Mr Fordyce’s evidence that this permitted a variance of plus or minus 5 millimetres such that it could be plus 0 millimetres minus 10 millimetres and to Professor Dux’s rejection of that as being in direct conflict with the standards.[64]  His Honour observed that even if Mr Fordyce’s view was correct, his own measurements showed depths of between 82 millimetres and 97 millimetres which would be below the permissible depth of 85 millimetres.[65]
  5. [78]
    His Honour referred to the evidence of a carpenter, Mr Morgan Murphy, who was a leading hand for the civil crew on the Trackstar site which included that upon arrival at the site the panels would be taken off the truck and placed in piles having first been inspected by him to ensure that they were safe to be lifted from the truck.  When placing the panels in piles he would mark with a “big red X” any which he required to be inspected by engineers such as those with “slight cracks or anything”.  His Honour noted that in cross-examination Mr Murphy had stated that all the slabs that went up had to be measured by engineers beforehand and that he measured for width and thickness.[66]
  6. [79]
    His Honour next referred to evidence of Mr Ashley Palmer, a Thiess project manager.[67]  He gave evidence of a number of panels being rejected early in the project because they had been incorrectly stacked on the dunnage and that a non-compliance report had been raised.[68]  Mr Palmer also gave evidence of rejection of panels after being checked by project staff.
  7. [80]
    His Honour concluded that there was no evidence that the panel which failed was damaged in transit by either Quickcell or Trackstar.[69]
  8. [81]
    Next, his Honour referred to the evidence of Mr David Burton, a safety co-ordinator on the project, who gave evidence of being present on the site, about 30 metres away, when the panel fell and of taking photographs on the site including of the collapsed panel about 20 minutes afterwards.  A series of photographs were tendered in the prosecution case through Mr Burton.
  9. [82]
    His Honour observed:

“Exhibit 2.1, photo 59 shows a panel of approximately 92 millimetres depth that [sic] the top of the pre-stressing strand being approximately 27 millimetres from the top of the strand to the bottom of the strand being approximately 47m [sic] from his feet [sic].”[70]

  1. [83]
    It might be inferred that these were intended to be references to “at the top of the pre-stressing strand, “47 millimetres” and “from soffit”.  However, having examined the photographs myself, and making allowance for his Honour’s use of the term “approximately” in respect of each of the measurements, I am of the opinion that the photograph would better be described as showing a total depth of approximately 94 millimetres (perhaps even 95 millimetres).
  2. [84]
    His Honour next observed:[71]

“Photograph 71 in that exhibit shoes [sic] a panel with similar depth measurements.”

  1. [85]
    Photograph 71 is, in fact, part of Exhibit 2.11, not 2.10.  Again, with respect, I would not concur with his Honour’s description of what it depicts.  To my eye, the tape measure is positioned too far to the right of the hole to be able to ascertain useful measurement of the distance above or below it; particularly when millimetres may be significant.  Again, the total depth, to my eye, could be as much as 94 millimetres.
  2. [86]
    His Honour describes Photograph 89 in Exhibit 2.12 as showing measurements of a slab “of approximately 90 millimetres depth with the top of the pre-stressing strand being approximately 22 millimetres from the top of the panel and 50 millimetres from the soffit”.[72]  Again, respectfully, I could not concur with the accuracy of that assessment of any measurements depicted.  The tape measure is concave and has not been set flush against the edge of the panel with the consequence that the left edge of the tape is set off the panel and curved toward the camera.  The camera is also on an angle.  The part of the panel where the measurement is taken (and where the pre-stressing strand is located) appears to have some concrete missing, perhaps broken away.  Again, when matters of millimetres may be of consequence, I would not be content to adopt the accuracy of the measurements recorded by the Magistrate in his reasons. 
  3. [87]
    His Honour considered that:

“The variation in the depth of panels can be seen more clearly in Exhibit 2.12, Photograph 81 where a length of timber running along a panel shows a clear gap under the timber or [sic] a considerable length, both ends of the timber reaching into the end of the panel.”[73]

  1. [88]
    Again, with respect, I would not be prepared to draw those conclusions from that photograph.  Because of the angle at which the photograph is taken, the perspective is such that the right hand end of the length of wood is further away.  Shadowing, suggesting some gap can be seen over the entire length of the wood.  It appears less prominent at the right hand end furthest from the camera, but the perspective makes it virtually impossible to tell by how much.  This is not assisted by another matter of perspective.  The photograph was taken from above, so the view of the piece of wood is from a downward angle, again making it very difficult to assess what gap there may be, and more so at the far end.  The gap is evident (apparently) at the near end, but matters of perspective make that difficult to assess too.  Also, on the left hand side much of the length of wood is unable to be seen as it is obscured by two large blue containers.  Added to all of this is the fact that, by design, the top of the panels are manufactured with a rough surface so as to enhance adherence of the topping concrete to the precast panels.  Therefore, by design, a piece of wood is never going to sit flush to the surface of a panel.  The extent to which this factor adds to the appearance of a gap, at any point along the length of wood, is unable to be assessed.  In my view, great care should be taken in drawing conclusions from such a photograph.  For my part, I would not be prepared to draw any conclusion.
  2. [89]
    The next evidence referred to by the Magistrate was that of Mr Kovis Russo, a civil engineering associate who was Thiess’s area manager for the Richlands to Springfield project.  The evidence of Mr Russo referred to by the Magistrate was of his having witnessed both Workplace Health and Safety and Quickcell representatives measure the failed panel on site a few days after the incident.  The evidence recited by the Magistrate was:

“I recall and generally speaking that the perimeter measurements seems to be reasonably close to the actual design thickness… The centre of the panel is something thinner than what is actually specified in the drawings. 

There were quite a few irregularities that was found… Obviously all the strand was found to be in the wrong place, and lots of panels showed to be – yeah – a lot thinner in the centre of the panel, specifically, than what they were meant to be.”[74]

  1. [90]
    Evidence in respect of the failed panel that “generally speaking” perimeter measurements “seemed” to be “reasonably close” to design measurements and that the centre of the panel was “somewhat thinner” than drawing specifications, when that evidence is of a person who himself did not perform any measurements, but was recalling what he saw of measurements taken by others, expressed in such imprecise terms is of little probative value in demonstrating that the panel was manufactured too thin. Nor is that witness’s evidence that other unspecified panels were “a lot thinner” in the centre than they “were meant to be”.
  2. [91]
    The learned Magistrate next turned to a consideration of measurements taken by Professor Dux of the failed panel, observing that Professor Dux had spent considerable time at the incident site over a number of days taking those measurements.  His Honour recorded that Professor Dux’s measurements varied from 95mm at the perimeter down to as low as 70 to 75mm at the bending fracture zone.[75]
  3. [92]
    His Honour then observed:

“There was lengthy cross-examination of Professor Dux on his ability to take accurate measurements and to record details of such measurements, however, Professor Dux was not shaken in his evidence on this point.  He was taken through video recordings and shown a measurement where the tape measure is at an angle, and it was suggested that therefore the measurements were inaccurate.  Professor Dux rejected this.”[76]

  1. [93]
    The observation that Professor Dux was “not shaken” in respect of the accuracy of his measurements is, perhaps, a matter of impression and interpretation of his evidence.  If it were intended to convey that Professor Dux stood steadfastly by the accuracy and precision of each of his measurements, I would not agree with the observation.  In my view, there are a number of passages of his evidence which demonstrated that the accuracy and precision of his measurements as taken and recorded should be approached cautiously.
  2. [94]
    Professor Dux said in his evidence-in-chief, and illustrated by a diagram he produced in the course of that evidence,[77] that spalling occurs along the edge of the concrete surface where it fails.  This results in concrete in that location being shed and spalled off with the result that there is some loss of depth at that point of the surface.  He suggested that vernier callipers, or something similar, would have to be used “to reach in beyond the spalled zone in order to get an idea of the depth in that vicinity”.  The Professor said that one had to search along the surface because the amount of spalling varies, noting that it was a difficult surface from which to get measurements.  Notwithstanding those difficulties, Professor Dux said that he was “quite confident that on that surface I found a number of places where I could reliably measure with a vernier calliper that the depth was of the order, I think, of whatever I’ve said, 70 to 75mm”. 
  3. [95]
    In his first report,[78] Professor Dux had referred to the use of vernier callipers to assist in measurement of section depth along the fracture surface, saying, “the calliper jaws enabling measurement to be made a little in from the irregular fracture surface”.  Two photographs illustrated his point.  Photograph 12 showed the callipers in situ.  They stood perpendicular to the panel surface, their jaws clasping the fractured surface.  Photograph 13 recorded a depth measurement of what is said to have been “less than” 75mm.  Three observations should be made about the suggested measurement.  First, it is not a measurement taken from the scale of the vernier callipers itself.  In the video recording taken on the occasion when the measurements were made,[79] Professor Dux can be heard to refer to the calliper measurements, but they are not otherwise evidenced.  The measurement in evidence is derived from placing a tape measure beside the open jaws of the callipers.  Why the accurate and precise scale of the callipers themselves was not used is not explained.  Vernier callipers are, themselves, a sensitive and precise measuring instrument.  Secondly, in order to effect the measurement with a separate measuring device, the tape measure, the callipers had to be removed. The jaws may have to have been released from the section of concrete in order to do so.  Thirdly, the precise measurement on the tape measure is difficult to assess.  The tape measure is placed a little away from the calliper jaws.  One of the jaws is in shadow.  These matters, perhaps, explain why the measurement is described as “less than 75mm” rather than providing an actual measurement. 
  4. [96]
    In cross-examination, Professor Dux confirmed that a significant number of his measurements made when he first inspected the slab on 30 October 2012 were taken in the vicinity of the fracture zone.[80]  In his report, Professor Dux described the examination of the panel, which he conducted on that occasion when the panel still lay where it fell, as a “brief examination” during which some “quick depth measurements and photographs were taken”.[81] 
  5. [97]
    Professor Dux conducted a further examination of the panel on 8 January 2013.  He was accompanied by Workplace Health and Safety Queensland Inspectors, including the complainant, and TrackStar (Theiss) engineers.  By this time, the panel had been moved from the construction site and had been stored in a skip bin. 
  6. [98]
    In video recordings taken on the day of the inspection, the panel has been removed from the bin, which can be seen, and placed on the ground beside it.  How that occurred is not clear.  However, having viewed Exhibit 2.5[82] the following observations can be made.  The panel is moved using the bucket of an end loader.  The movement of the panel includes folding it out at one stage to better represent a full panel.  The panel when taken from the skip had been folded back on itself along a fracture line.  It is quite evident in the video recordings that the various movements of the panel resulted in breakages to the panel.  Lumps and fragments of fractured concrete can clearly be seen breaking off and splintering away from the main sections.  At one stage, the end loader runs over some of the panel.  From what appear to be subsequent videos, it would seem as though some measurements may have been taken from sections of the panel which may well have been damaged in those movements.
  7. [99]
    Those video recordings having been played to the Court in the course of Professor Dux’s cross-examination, it was put to him that the measurement of 75mm, which he took in the course of the third video in Exhibit 2.5, had been taken directly on the fracture face.  Having referred to the photograph contained in his report which recorded that measurement,[83] he said, “yeah, I did say it was the fracture zone.  So I – so I guess, yes, it was on the fracture face, yep”.[84]
  8. [100]
    Later in the cross-examination it was suggested to Professor Dux that in a number of the recordings there were measurements which he described as being “around 80mm” or “around 90mm” or “around 95mm”.  The Professor’s response to that suggestion was:

“I do use ‘around’, meaning within a millimetre or two.  It’s difficult to – because we are dealing with two plain surfaces.  The – the manufactured surfaced, top surface of the manufactured article is a torn irregular surface, a deliberately buffered surface.  And the bottom surface is a plain surface.  So one will naturally find – because of the surface roughness elements, one is going to find that there is some variation.  So when I say 80 or around 80, I’m meaning it might – could be, you know, 78 to 82, something like that.  But my best estimation of what I am seeing is – is 80.  But I – but the habit I have, and you will see it is carried through my reports, I – I’m not claiming to be giving – giving the, you know, precision that, to these measurements which are – and I noticed it in other reports.  Those measuring techniques also are not particularly precise and I accept that.”

  1. [101]
    When asked about Mr Fordyce having taken measurements away from the fracture surface by cutting through the panel, Professor Dux said that he took the view that he was unable to interfere with the panel as it was the property of the defendant and that he may be accused of “tampering with evidence or something of the like”.  He said that he was satisfied that what he had “sufficed for the purposes of showing that there were very significant variations in thickness significant to the panel”.[85]  Having said that “these panels were extremely sensitive to small variations”, he went on to explain that had he been told that he could cut up the panel, he would have trimmed the areas near the fracture and not measured away from where it had failed as he suggested Mr Fordyce had done.[86]
  2. [102]
    Later, he further explained by reference to photographs 9 and 10 in his report:

“Say Photograph 9.  Photograph shows the strand at about 49, 50 cover.  We can see that from the bottom.  And up there, I’m saying the depth there is about 80.  Because as I proceed along – an edge along there, you don’t pick up everything.  These – these photographs are probably been stills taken out of something or other.  I know of just snapshot things.  But the actual – the actual upper surface is originally up and down, and you can see that on the right.  You can see the elements of roughness.  Now, the fracture plane that we’re measuring on there, that’s a fracture where a tendon has torn out, and that is a split in the direction end to end.  Not side to side, but end to end.  And that’s still very clean.  That hasn’t been affected by – by any of the tumbling and so on.  And the same goes for the one below where I’m measuring depth around 70 – Photograph 10 depth around 75 millimetres at the longitudinal fracture close to the bending [indistinct] surface to the right.  The cover is about 50.  The depth there is about 75.  You know, I’m – I’m not saying it’s 74 or 76; I’m saying it’s about 75 to put it in that category for which I have great concern.  But on that face there, I’m not seeing any particular – any particular damage at all.  The bottom of the tape, or the lip of the tape is able to tuck in on that plane surface and unable to do a measurement against that what is – what would have originally been a vertical surface.  And I think that’s a pretty fair indication then we have about 75 millimetres there.  So while I agree with you that it’s simple to have  some damage to the – to the specimen – to the failed panel, I think there are plenty of clean surfaces like those left which show that this panel did, indeed, taper towards – tape in depth towards the middle.  That’s all I’m saying really.”[87]

  1. [103]
    He later accepted that his measurements were not to the millimetre explaining:

“That’s – that’s a fair statement.  But I’m – what I’m saying in order of, I’m not saying within 10 millimetres and I’m not saying within five millimetres.  I’m saying when I take a spot measurement and say it’s about 80, I’m meaning – you know, if I took it slightly elsewhere it might be 79.  If I took it slightly move [sic] along the other way, it might be 81.  I’m saying that in this vicinity, an average thickness measurement would be about 80.  That’s about as far as we can – that’s about as far as any of us can do – do on this because the original surfaces were not plane.  One – one surface was irregular.”[88]

  1. [104]
    I have earlier referred to conclusions about measurements reached by the learned Magistrate, which accepted the evidence of Professor Dux about what could be seen in photographs, but which conclusions I would not share from my own examination of the photographs.  Later, in his cross-examination, Professor Dux gave evidence which demonstrated the interpretive nature of assessing measurements from photographs.  His evidence in that regard was given in disagreement with what Mr Fordyce had said in his report about the apparent depth of topping concrete which can be seen in particular photographs.  Professor Dux said that he had seen a close up of the particular photograph in which the scale was evident and said that “the scale intersects the scale between about 90 and 95 millimetres.  And, furthermore, the tape is not vertical”.  These would seem to be criticisms or observations validly made about the difficulties in gaining accurate measurements from photographs, but ones which Professor Dux would not accept in respect of his own measurements.
  2. [105]
    The Magistrate noted that Mr Fordyce provided an overall mean measurement of the slab’s thickness of 90 millimetres and that he had measured thicknesses varying from 82 millimetres to 97 millimetres.[89]  His Honour observed that in that regard, “Mr Fordyce’s report was consistent with the prosecution contention that there were considerable deviations in the depth of the panels including within the same panel”.[90]
  3. [106]
    Significantly, his Honour went on to make the following finding:

The reason for this deviation in depth within the panel can be found in the report of Professor Dux as to his attendance at the Quickcell manufacturing plant on 10 January 2013.” (emphasis added).

  1. [107]
    His Honour went on to refer to the inspection of the manufacturing process conducted by Professor Dux.  Part of that inspection is captured in a series of video recordings.[91]  I shall return to discuss those recordings later in these reasons.  For the moment, it is sufficient to observe that his Honour was making a finding that Professor Dux’s evidence as to his attendance at the Quickcell plant on 10 January 2013 provided the reason for variations in the depth of the failed panel.  That is a finding essential to the proof of the prosecution case. It is a finding which, on all the evidence, I would not make. 
  2. [108]
    In my view, his Honour’s observation that Mr Fordyce’s evidence as to variations in panel thickness is consistent with the prosecution contention as to considerable deviations in panel depth is incorrect.  If considered only at a superficial level, there is a consistency:  each found varying depths.  However, when considered more deeply, Mr Fordyce’s variations are, in fact, directly inconsistent with those asserted by Professor Dux upon which the prosecution contention is based.  Even more significantly, Mr Fordyce’s evidence as to the variations in depth is also inconsistent with Professor Dux’s thesis that the panels were manufactured in a way which caused them to be thinner towards the middle than at the edges. 
  3. [109]
    In his first report,[92]  Mr Fordyce said that he had made 19 measurements of the thickness of the failed slab when he inspected it on 24 April 2013.  The measurements were taken “at several locations at random”.  He states that he concluded:

“● Precast slab thickness adjacent edge of slab – ranged 82 to 97 millimetres

  • Precast slab thickness away from edge – ranged 86 to 95 millimetres
  • Overall mean measurements of slab thickness – 90 millimetres

The minimum slab thickness that I detected was 82 millimetres adjacent to the slab edge and 86 millimetres away from the slab edge.

The dimension of 75 millimetres in the Dux report is based on measurements taken adjacent to the bending fracture; however when the slab failed in bending there would be considerable spalling and fracture of the concrete at both the top and bottom surfaces of the slab adjacent to the fracture zone making accurate measurements very difficult – e.g. refer Photograph 8 in the Dux report.” (emphasis added).

  1. [110]
    In his first report,[93] of the “quick depth measurements” which he took on 30 November 2012, when the panel lay where it fell, Professor Dux said that the measurements in the region of the bending failure “indicated the panel was around 80 millimetres deep.  Depth reduced from the panel end towards the failure zone”.  He went on to say “the thickness approaching the bending failure zone was measured at around 80 millimetres, reducing from about 95 millimetres at the panel end.  The reducing thickness of concrete above the strand imprint from right to left along the longitudinal fracture surface is obvious”.
  2. [111]
    Of his detailed inspection conducted on 8 January 2013,[94] Professor Dux said this “confirmed the preliminary indication from the first examination on 30 November 2012 – away from the ends, the local depth of the failed panel gradually reduces.  The preliminary indication was reduction in depth to around 80 millimetres.  The detailed survey shows reduction to be more severe in places”.  I have already expressed my disagreement with what measurements can be seen in photographs in this section of his report.  Professor Dux concluded in this section of his report:

“In summary, the end cross sectional depths of the failed panel were between 90 millimetres and 95 millimetres.  Away from the ends, the depth reduced.  A reasonable estimate of the cross-sectional depth over much of the panel in the vicinity of the bending fracture, based on numerous measurements, is around 75 – 80 millimetres.”

  1. [112]
    In his second report, provided in response to Mr Fordyce’s first report,[95] Professor Dux said of the measurements he took of the panel he saw being manufactured on 10 January 2013:

“Unlike the panel measurements taken by Quickcell, my measurements were taken away from edges.  The reason for this was that the collapsed panel tended to be thicker towards edges (ends and sides) and thinner away from edges.”

  1. [113]
    The reason for the deviation revealed in the report of Professor Dux, to which the Magistrate was referring was the screeding technique which was applied to the concrete in casts from which the panels were made.  From Professor Dux’s reports and oral evidence at the trial, his Honour was correct to conclude that Professor Dux was of the opinion that the panel which failed did so because it was too thin and that it was too thin because of the screeding technique employed in its manufacture.[96]  The question is whether Professor Dux’s opinion should be accepted such that the Court could be satisfied beyond reasonable doubt that Quickcell failed to discharge its duty as alleged.
  2. [114]
    In addressing this issue of screeding, the Magistrate made particular reference to the evidence of Mr Potrzeba, a labourer employed by Quickcell, who was engaged in the manufacture of the panels and who was present for the inspection.  Of Mr Potrzeba’s evidence, the Magistrate said:

“He stated that they were preparing panels in the same way as they did for all of the SSP panels throughout the entire project.”[97]

  1. [115]
    Footnote 93 to his Honour’s reasons cites the Transcript of day 3, 2 September 2015, p 68 at line 18 onwards for that evidence.  The source of that passage of his Honour’s reasons is paragraph 75 of the prosecution’s outline of closing argument.  There, the prosecution submitted “the workers confirmed they were preparing the panels exactly the same way as they did for all SSP panels throughout the entire project”.  The submission[98] cites the same transcript reference.  The submission is simply wrong.  Its acceptance by the Magistrate and its repetition in his reasons is also wrong.  That evidence was not given by Mr Potrzeba, or any other workers.
  2. [116]
    An immediate inaccuracy is apparent from the use of the plural “workers” and “they” in the submission.  Only one passage of evidence is cited in support of the submission.  It could only have been given by one witness, not several.  The substance of the submission is also incorrect. 
  3. [117]
    Mr Potrzeba had given evidence that he was aware of the Trackstar project and that he had been involved in it.  His duties in relation to the project were “screeding concrete”.  The passage of evidence cited was as follows:

“Ok.  Are you able to tell the Court – sorry, your Honour.  Ok.  Are you able to tell the Court how – what the process was when you screed the concrete? --- Get a – get a straight bar and you drag it slowly down the bed.

Ok? --- Make sure it’s level.

Yep.  And is that the process you adopted in 2012? --- Yes.

Ok.  And how – were you involved in all – making all the panels in relation to the Trackstar job? --- Yes.”

  1. [118]
    The following factual contentions and findings were open to be made on that evidence:
  1. The process that was described by Mr Potrzeba was that employed by himself;
  1. Mr Potrzeba was not asked about, and gave no evidence of, the process employed by others;
  1. Mr Potrzeba’s affirmative answer when asked ‘were you involved in making all the panels in relation to the Trackstar job?’ may mean that he was involved in making all the various panel types manufactured for the project or, alternatively, that he was involved in the manufacture of each and every of the individual panels manufactured.  The evidence was not further clarified, although other evidence would suggest the former rather than the latter.
  1. [119]
    His Honour’s reasons next record the following description of the screeding process of which Mr Potrzeba had given evidence:

“The process involved screening [sic] which involved taking a bar and pushing it straight along the panels.  This process was recorded by Professor Dux on the day he visited.”[99]

  1. [120]
    That passage of his Honour’s reasons is, again, a precise adoption of a submission contained in paragraph  75 of the prosecution’s written submissions.  Again, there are difficulties in reconciling the submission and its adoption in his Honour’s reasons with the evidence.  It is true that the screeding process describes that which can be seen in Professor Dux’s recordings; but that is not the extent of the evidence.  The submission and its inclusion by acceptance in the reasons does not in any way address the whole of the evidence of the screeding process utilised by Mr Potrzeba.
  2. [121]
    When asked “do you know what kind of movement was being made with the screeding bar while you were screeding for the Trackstar project?” Mr Potrzeba had said “straight down”.[100]  The several video recordings made by Professor Dux of the manufacture of the panel which he had witnessed on 10 January 2013 were then played to Mr Potrzeba.  He identified himself in the recordings and identified the activity that he was performing as “screeding”.[101]
  3. [122]
    He confirmed that he recalled Professor Dux stopping production.  His recollection was that this occurred “second panel in”.  He remembered that Professor Dux “… wanted us to give it more work to a panel”.  He understood this to mean that “he wanted us to pay a bit more attention to a panel”.  When asked if he recalled what had been said, he answered “get a bit of mud in the panel”.  He described what happened as “so we put a couple of shovel fulls in the panel and re-screeded it”.  When asked what stage the panel was as, he said “about 80% finished”.  He confirmed the coils were already in the panel and the screeding finalised.[102]
  4. [123]
    When asked what happened after Professor Dux said something about the panel he said “we done it”.  When asked how he re-did it, he said “he got us to use the screed like a saw” which he explained as “instead of going straight down, going backwards and forwards with the bar”.  In respect of what was done to the panel which Professor Dux had measured, Mr Potrzeba said “probably got a bit more concrete in it and sawed it down”.  He said he used the sawing method “because Peter Dux wanted us to do it that way”.  When asked how he screeded after that, he said “continued doing it both ways”.[103]
  5. [124]
    At the commencement of his evidence under cross-examination he confirmed that the varying slump between batches of concrete made some batches easier than others to screed.[104]  He confirmed that, depending upon the slump, you may use a straight motion, a sawing motion or both.  He said:

“If it’s – if there’s beautiful mud and it’s not – it’s not too hard to push, it can go down and it’ll level itself out.

Right? --- But if it’s a little – a little bit on the dry side you’ve gotta do both.”[105]

  1. [125]
    In relation to the panel having been about 80% finished, he said that it hadn’t been checked by Barry (the leading hand) who does the final checks.  He said “he’s put his springs and lifters in, then he’s gone to check another panel and he’s coming back to re-check it”.[106]
  2. [126]
    Mr Potrzeba confirmed that he had told Mr Bell (the complainant) in a statement provided to him that “when you pour concrete and you level it out and, then, you go back and fill any holes that you’ve missed”.  He had described the screeding process to Mr Bell as “pour the concrete in then vibrate it, then, you move down to the other end of it and then you double back, and you screed it again”.[107]  He also told Mr Bell that in relation to this particular panel which was observed on 12 January 2013 that “it looks like the concrete might have been a bit dry so they tried to finish it a bit quicker”.[108]  When asked by Mr Bell “is it usual when you’re doing these sorts of things?” he said “No.  Usually we don’t have any bows in the centre”.[109]
  3. [127]
    The cross-examination concluded with Mr Potrzeba confirming that depending on the slump of the concrete, the screeding is usually conducted by using a combination of pushing forward or sawing.[110]
  4. [128]
    There was no re-examination of Mr Potrzeba.
  1. [129]
    Notwithstanding Mr Potrzeba not being challenged in any way about his evidence that, depending on the slump, a sawing motion was used in screeding concrete in the processes of manufacturing at Quickcell prior to Professor Dux’s intervention on 12 January 2013, one may have had some reservation in accepting that evidence given what is seen in Exhibit 7.4, the video recordings of that day.  However, Mr Potrzeba’s evidence did not stand only to be considered in light of Exhibit 7.4.  There was other evidence which supported it. All that evidence was called in the prosecution case and, most tellingly, included evidence from Professor Dux himself.
  2. [130]
    In evidence-in-chief, Mr Doak, Quickcell’s production manager, was asked to explain to the Court what screeding is. He explained in these terms:

“It’s a method of levelling the concrete, so it would be – in this case, it was – because the – the mould was exactly the right height to the height of the panel we needed, it was a pretty simple process. It just involves either a – a steel or aluminium bar that is passed over the – the top of the concrete to strike it off using a combination of a sawing and a forward motion.”[111] (emphasis added).

  1. [131]
    Later, counsel for the prosecution asked Mr Doak to explain the purpose of the screeding. He said that in the case of the panels being constructed for Trackstar it was twofold; it levelled the concrete but also assisted in giving the construction joint that Trackstar required on their panels. When asked what he meant he said:

“Well, as I said before, you could – you can screed a panel where you do more sawing than you do forward motion. --- That would give you a smooth panel, not a construction joint. We had done that with some product earlier in the process – in the manufacturing process and those panels had been – some of those panels have been rejected by Thiess and sent back to us. --- It’s really a ratio of how much you saw and how much you use forward motion as to how well you generate a construction joint.”[112] (emphasis added). 

  1. [132]
    His evidence-in-chief concluded with counsel for the prosecution asking Mr Doak: “Following Professor’s Dux’s visit, did you become aware of any changes in the techniques used by Quickcell in the screeding?”. Mr Doak’s answer was “no”.
  2. [133]
    In cross-examination, Mr Doak was asked about a statement which he had provided to the complainant in which he had discussed screeding. He had told Mr Bell that the method used would vary depending upon the slump of the concrete. He had said that two methods, sawing and dragging, were both used. He went on in his evidence to the Court to explain:

“If we were pouring from a truck that was, say, slump 190, there would have been a lot more sawing motion applied because the concrete just would have been too stiff. If we were pouring it, say, 220, then there would have been more dragging motion applied to try and elevate some of that aggregate, to try and – try and get it from the top surface of the concrete.”[113] (emphasis added).

  1. [134]
    As I have said, most tellingly against the conclusion of the Magistrate as to the screeding process employed was evidence of Professor Dux concerning the very day on which he attended at the Quickcell premises. When it was put to Professor Dux by counsel for Quickcell that the screeding practice adopted by Quickcell varied depending upon the slump of the concrete Professor Dux said:

“I – I observed on major panels – a few panels that I did observe I saw Quickcell push the screed. I didn’t see – on a short, early panel that’s mentioned in one video, I saw bit of sawing motion. After I stopped the work and – and instructed the workers, they proceeded to complete the next panel with a – with a gradual sawing motion, and then broomed it, and got the required effect there, there was no issue with that panel.”[114] (emphasis added).

Later, the following exchange occurred:

“Sorry, Professor. I’m just – well, I’m just – I just want to take you to – you’ve said that you observed in the other slabs a sawing motion occurring? --- I said that – if you go back to the videos, I observed near an end of an earlier panel, I said there’s screeding there. There is a bit of sawing motion, and then with the next panel a couple of people whom – I don’t know if they were there with the first panel – they pushed the bar along, and that’s where I said this is the problem.

The problem with that particular panel? --- the problem with the workplace – the approach to achieving a consistent output. That was the problem. Screeding in that manner led to deficient thickness.

Well, you’ve just seen two other panels made, and you observed a sawing motion occur in those? --- I wasn’t looking at them carefully. I was looking just at the very end of one panel. I said there’s a – there’s screeding. Have a look at the video. So there’s screeding. A bit of sawing motion. That’s good. But then the next panel – I watched the next panel, and I observed that that sawing motion was absent, and I said to Mr Bell that’s the problem. You can see – I say, see, look, the concrete’s not even touching the bar. See, see. And if you’d like to show those, I’m happy to do that. I’m happy – I wouldn’t mind commenting on something as well.

Did you take any measurements of the other two slabs that were made at the same time, Professor? --- No. I took – I took a – I took a sample set from one slab which I believed was of deficient thickness, and with that one sample set, I’m sure that I proved the point to everyone there.”[115] (emphasis added).

  1. [135]
    The observation that there is sawing motion screeding at the end of another panel is a reference to what could be seen and heard in video number 4 in Exhibit 7.14. Professor Dux can be heard to comment that there is “side to side” screeding.
  2. [136]
    This evidence of Professor Dux establishes each of the following matters all of which are consistent with the evidence of both Mr Potrzeba and Mr Doak:
  1. Quickcell workers engaged in the process of screeding concrete precast panels used, at times, a side to side screeding motion;
  1. That sawing motion was being used in the screeding process before any intervention by Professor Dux on 12 January 2013;
  1. The same sawing motion was used in the screeding of the panel immediately prior to the panel in respect of which Professor Dux intervened and stopped work;
  1. He described the use of the sawing motion and on the preceding panel as “good”.
  1. [137]
    The submission made by the prosecution as accepted and adopted as a finding by the Magistrate at paragraph [111] of his reasons, that “the process involved screening (sic) which involved taking a bar and pushing it straight along the panels” is unsupported by the whole of the evidence of Mr Potrzeba. It is unsupported by the evidence of Mr Doak. It is unsupported, and in fact disproved, by the evidence of Professor Dux himself. The prosecution submission and the finding made upon it made no attempt to address the whole of the evidence on the issue.
  2. [138]
    In considering that evidence, and that of Professor Dux in particular, the finding may be open that the screeding methods were employed inconsistently. Professor Dux himself identifies variable factors which might explain inconsistent use of methodology, most notably, as he said, it depends on who is doing it. However, an inconsistent use of methodology could not form the basis for an explanation of why the failed panel was manufactured “too thin” (assuming for the moment that it was). It is only if there was a consistent use of methodology that it could be concluded that what Professor Dux recorded on that day and included in his report provides the reason for depth of variation in the failed panel.
  3. [139]
    The very variability of the process as demonstrated in the evidence and as described by Professor Dux himself exposes the inappropriateness of drawing a conclusion as to an (assumed) defect in one panel from what is observed of the manufacture of another panel. This was not some automated, mechanised process repeated time and again in precisely the same manner from which a conclusion might be drawn that an observed defect in the manufacture process of one panel would explain the same defect in another panel.
  4. [140]
    In his second report. given in response to Mr Fordyce’s first report, Professor Dux’s concluding statement, as set out above, that “the panels on that day were manufactured as described in (his first report) (i.e. with incorrect scouring of upper concrete leading to deficient thickness) until I intervened, however unlikely this might seem to Mr Fordyce. Had he been there, he would have observed the same thing”, is not only somewhat sarcastic, it is inaccurate. It states that “the panels”, without exception, were manufactured on that day using what he identifies as the incorrect method. In fact, and assuming the method he identifies was incorrect, that method was applied to one of only two panels whose manufacture he observed. In the manufacture of the other panel, the correct (as he would have it) method was utilised, which he considered “good”. By his own evidence, the statement in his report is demonstrably incorrect.
  5. [141]
    In the context of Professor Dux’s evidence and its centrality to the prosecution’s case overall, this is of considerable significance. When one considers Professor Dux’s evidence overall it is apparent that his central thesis, that the panel at the project site failed because it was manufactured too thin as a result of an incorrect screeding technique being employed, was, in fact, based upon his observation of two passes of the screed bar on one panel.
  1. [142]
    As has already been observed, on the first panel he had observed some use of the sawing motion which he considers correct which he said was good. The screeding of the second panel in which Professor Dux observed what he considers the incorrect pushing motion of screeding is recorded in video number 5 contained in Exhibit 7.4. The screed is passed over the casting frame twice.  On the first occasion, although the sound quality is not particularly good, Professor Dux can be heard to say, “That’s the issue”.  Then, “it’s the pushing”.  Then, “I think we are shy in the middle.  We are shy in the middle”. 
  2. [143]
    On the second passage of the screeding rod, Professor Dux can be heard to describe it as, “just kissing the top”.  Then, “that’s where we’re losing height – losing thickness in the screeding operation – the pushing of the screed”.  Then, “I’m going to have a bit of a measurement here because I think that’s what the real issue is.  It’s the bow wave effect dragging through”.
  3. [144]
    It is apparent from viewing and listening to the audio-visual recording, considered in the context of Professor Dux’s evidence overall, that those two passings of the screeding rod, are the seminal moment of his central thesis.
  4. [145]
    In my view, when all the evidence in the prosecution case is considered, Professor Dux’s evidence does not provide the explanation or reason for variation in depth in the panels, and particularly the failed panel.  Nor does it provide evidence of a reasonably practical control measure which was not used by Quickcell in the manufacture of panels generally and the failed panel in particular.  To the extent it was a control measure, the evidence, including Professor Dux’s evidence, establishes that it was used in the manufacture of panels.  The highest it could be taken for the prosecution is that it was a control measure not used in the manufacture of one of two panels observed by Professor Dux on 12 January 2013 and that it may not have been used on other panels depending upon the slump of the concrete. 
  5. [146]
    In evidence-in-chief, Mr Potrzeba was also asked at what stage springs are put into the panels.  This evidence was relevant to the issue of the timing of Professor Dux’s intervention in the casting process on 12 January 2013.  Professor Dux intervened to have a panel which he had witnessed being poured, and which he considered to be deficient in thickness in the middle of the panel due to poor and incorrect screeding.  The issue of the timing of the insertion of the springs relative to when the screeding occurred was that Professor Dux considered that the process of manufacturing the panel was complete at that point and that there was to be no addition of more concrete or further screeding.[116]  However, there was evidence to the contrary, including that given by Mr Potrzeba when asked about the timing of the insertion of the springs.
  6. [147]
    Mr Potrzeba said, “It’s just before final checks”.  He was asked, “Okay.  So has screeding taken place when springs in the panels?”  He answered, “Yes, the first screeding has”.  He was then asked what he meant by “the first screeding has” and he replied:

“I – you go over it first to get rid of excess concrete, then you go over it again and put little bits of concrete in front of the screed and then the – then the leading hand, after all the springs and lifters are in, will come back and check the panel.

Okay.  So after the springs are put in the panel what happens to the panel, do you know? ---Well, springs – lifters go in and then after the leading hand has checked it as finished will tarp up”.[117]

  1. [148]
    Later in his evidence-in-chief, Mr Potrzeba was asked the purpose of screeding.  He said, “to get a nice level surface”. 
  2. [149]
    He was next asked, “Okay.  And do you know how many times you would screed a panel?”  His answer was, “Well all depends”.  When asked what it depended on he said “Oh, you – if it – it’s going to be level all the way, sorry across the bar before its – you stop screeding”.
  3. [150]
    He was then asked, “How do you know if it’s level?”  He answered, “Well, we – should be level across the bar and when the leading hand says it’s good…when the leading hand says it’s all good”.[118]
  4. [151]
    This evidence is consistent with his other evidence already referred to above, that the panel with the coils already inserted was “about 80 per cent” finished. 
  5. [152]
    This evidence leaves open the distinct possibility that contrary to Professor Dux’s understanding the panel he witnessed being cast had not been finished at the point at which he intervened.  It was evidence-in-chief given by a prosecution witness, however, the submissions of the prosecution accepted by his Honour failed to address it. 
  6. [153]
    There was further relevant evidence.  Mr Lee Doak, the production manager at the relevant time, was also called as a prosecution witness. 
  7. [154]
    Mr Doak’s evidence on the issue was not as clear as that of Mr Potrzeba, however, it too left open the possibility that Professor Dux was mistaken in his understanding that the panel was finished at the time at which he took his measurement.
  8. [155]
    Mr Doak was asked at what time in the production ancillary items, which would include the reinforcement coils, are placed in the panels.  His answer was, “following the – the passing of the screed normally”.  He said the panel would be screeded then broomed and then the ancillary items would be put in place.[119]
  9. [156]
    He was later asked, again in his evidence-in-chief, about what processes were in place with respect to quality assurance checks.  He said that the leading hand, Barry Fitzgerald, would check the panels when the pour was going on.  He said:

“I think at this stage Barry had been with us for, I think, 11 years.  Barry would do an initial check as the pour went on, and then, prior to covers being placed over the panels, Barry would conduct a second check where he would walk the bed and he would check for things like that side form hadn’t become displaced during the pour. --- He would check to correct surface finish.--- He would check that all the ancillary items had been fitted and he would do a double check for any excessive undulation in the panel.---and then the panels would be deemed to be completed and the covers would be put on.

  1. [157]
    He was asked if any measurements were made at that point and he said that there would be no physical measurements, just a visual check.  He said that following that the panels would be steam cured overnight.[120]
  2. [158]
    Mr Doak’s evidence suggests that a check for “any excessive undulation” in the panels occurs following the placement of the ancillary items.
  3. [159]
    Having accepted that Professor Dux had waited for the process to finish, on the basis that the coils had been inserted,[121] the Magistrate turned to consider the measurement taken by Professor Dux at that time.  In doing so, His Honour observed that:

“The defence did not question whether the measurements taken by Professor Dux during the manufacturing process were accurate but rather submitted that the measurement was taken before the panel was finished.”[122]

This too was a direct acceptance and adoption of a submission made by the prosecution.[123]  In making that submission, the prosecution had submitted that, “this is a peculiar suggestion”.  It had developed that submission by asking, rhetorically, “Why would any business insert coils into a panel they intended to refill and re-screed, it would be counterproductive, expensive and time-wasting”.  That submission was made, however, without any reference to the evidence on the issue; and there was considerable evidence including that of Mr Potrzeba and Mr Doak called in the prosecution case to which I have already referred.  There was also relevant evidence called in the defence case from Mr Mohammed Shamsai, the managing director of Quickcell to which I shall come.  For the moment, it may simply be observed that whilst the question was asked rhetorically in submissions to suggest it would not have occurred, it was not asked of any of the witnesses who had said that, in fact, it did occur.

  1. [160]
    In his reasons, the Magistrate noted that the defence submission, that the measurement taken by Professor Dux was taken before the panel was finished, was inconsistent with the evidence of Mr Palmer to which his Honour had referred at [95] and [96] of his reasons.[124]  However, his Honour’s noting of that inconsistency should be considered in the context of Mr Palmer’s evidence overall, particularly in the absence of any consideration of other relevant evidence from Mr Potrzeba, Mr Doak and Mr Shamsai.  It was not as though the defence submission was made without any evidentiary foundation.
  2. [161]
    Mr Palmer, it is to be recalled, was an engineer employed by Thiess.  The passage of evidence cited by the Magistrate as being inconsistent with the defence submission as to the timing of the intervention by Professor Dux was given in respect of what Mr Palmer remembered seeing on the visit of 12 January 2013.  His earlier evidence had been that he and the site engineer, Sean Young, had attended the Quickcell manufacturing site the day after the incident when the panel failed.[125]  He also said that there were:

“Visits throughout the production time, and there was a visit with myself and the site manager, Brian Todd, in the days – in January, I think it was, in the next year.  And that was when we were starting to get production up and running for the final couple of spans of different panels.  And there was another time with Workplace Health and Safety.”[126] 

The last occasion to which he referred was 12 January 2013 when he attended with Professor Dux and Mr Bell, amongst others.[127]

  1. [162]
    It was when he was asked “now, at any point in what you saw did you see Professor Dux intervene” that he said “so once – once the – on a particular panel, it had been finished with lifting lugs and the springs installed”.[128]  The basis upon which Mr Palmer knew or understood the panel to have been finished because lifting lugs and springs had been installed is not established.  There is no evidence that he had knowledge of the manufacturing process of the panels at Quickcell before it was demonstrated to him on that occasion.  The more probable conclusion, when the evidence of those who were involved in the manufacturing process is considered, is that to the extent that his evidence was inconsistent with the panel having yet to be finished, was that he shared Professor Dux’s misunderstanding. 
  2. [163]
    Indeed, his evidence of what followed suggests the removal of ancillary items, the addition of further concrete, and the completion of the panel were all achieved without difficulty.  He was asked what he saw after the measurement was taken and he said:

“So from there we advised the production manager and Hossein,[129] and they went back to that one, removed the – the items that were in there. 

What items were these? ---

The lifting lugs and the [indistinct] so they removed those.  They gave the concrete a bit more of a – a vibration, to loosen it up again, and poured more concrete on it to fill it back up to the height --- and then completed the process as normal.”[130]

  1. [164]
    Having noted that the defence suggestion that Professor Dux’s measurement was taken before the panel was finished was inconsistent with Mr Palmer’s evidence, the Magistrate went on to refer to Professor Dux’s rejection of that suggestion.  His Honour noted that when that had been put to Professor Dux, he had stated:

“Why on earth would anyone go around later on and say, by the way, we’ll check them now, and get all those inserts out?  Get all those coils out.  We need to top this up by 20 mm.  That’s a ridiculous statement, sorry … that’s an assertion which I can’t support.  I saw the process taken at the stage where the next step would be to cover and apply the steam curing so from my point of view, I honestly believe that panel was completed for all practical purposes when I did my measurements.”[131]

  1. [165]
    Again, it must be observed that in accepting Professor Dux’s vehement rejection of the suggestion, the Magistrate did so by, effectively, accepting a rhetorical question posed by Professor Dux in his assertion that what was suggested was “ridiculous”, but without engaging with and addressing any of the relevant evidence on the issue, much of it called in the prosecution case.
  2. [166]
    In the defence case, Mr Shamsai gave evidence that he had told Professor Dux that the panel was not finished.  He said:

“I walked towards the back of the concrete truck, and Peter (Professor Dux) said – was saying stop the work, you know, to take a few measurements, I said Peter that panel is not finished.  He said yes, it is.  I said what makes you say that.  He said they put the inserts out, they put the coils on and so on.  I said well so be it.  The supervisor is the one who has to clear the casting, then it is finished, and he is with me right on the side of the concrete truck.  He hasn’t released that unit to be finished.  And then I took Peter to one corner of this panel.  I said, Peter, look, this is completely smooth.  They haven’t even broomed it.  Peter looked at it and said, no, that’s good enough for me.  And then he said they should pull these coils out, I want to take a measurement.  I said this is your call, Peter.”[132]

  1. [167]
    He was then asked “why do you say the slab was not finished?” to which he answered:

“The slab was not finished because the supervisor is the one who has to clear the slab to be finished, and the guys who do finishing – the last job is to go, take the concrete shovel and go bring concrete, put it at the places where the slab is shallow, and then they tapping it with the broom, making it practically tight, and then the light brooming going over that parts, and this is practically when the slab get finished.  The main reason for that action is if there is indentation in the slab, you cannot go get the concrete truck come with the shoot, pour concrete in, then you ending up with so much concrete again, and you need only that much concrete so that process in place in order to make the operation feasible, practically feasible for people to do it.  And they do it – hundreds of thousands of square metres I did with it, with no problem and this is a process.”[133]

  1. [168]
    Then he was asked “so if the coils were in the slab, would – why does that not indicate that the slab is finished?”  He answered:

“Some people doing the coils, some people doing the finishes, some people placing the concrete, some people vibrating it, and when I was in front of truck with the supervisor, those people who put the coils in, they put the coils in, there was nothing wrong with it – putting the coils in, putting the lifters in as long as the concrete is soft, because we panelling these inserts in, in the concrete.  If the concrete gets set and hard you cannot panel anything, and the lifters, god forbid, when you’re lifting the panels, lifters going to pull out.  So those people allocated their jobs, they went and did the job, and supervisor who needed to confirm, and surface finishers who needed to practically get the job done, they haven’t done the job.  That’s why the panel was honestly not finished honestly it was not finished.[134]

  1. [169]
    He was asked about other panels and the following evidence was given:

“Were the panels in front of that panel finished? --- No. 

The number one and two ? --- No, the back two of them were finished, where Peter didn’t take any measurements or anything.  He didn’t talk to me about anything, but just the one panel when I was disappearing ---

And why do you say front two were finished? --- I’m sorry?

Those two were finished? --- Yes, yes, the other two were finished, yes.

Okay.  And how – what’s the difference between the first two and the one you say wasn’t finished? Why were they finished and the other one ---? --- the first two was finished with the screeding, with everything, with the patching, with everything.  Our supervisor cleared it.  And went to the second panel.  The second panel done on the same principles, and we went to the third panel, and third panel, those actions which needed to be put in place for finishing and supervising work was not done.

Alright.  So after Professor Dux measured the third panel and you’d had this conversation, what happened then? --- When Peter came to me – actually not to me, he went to Graham Bell, he says, we’re done.  We go.  They didn’t even wait to see how the next panel, SSP13 panel get poured and so on.  They just left.”[135]

  1. [170]
    Mr Shamsai was cross-examined about the issue of whether the panel had been finished at the time that Professor Dux took his measurements.  It was put to him that Professor Dux put a steel ruler into the concrete to demonstrate that there was a deficiency.  Mr Shamsai said, “This is correct. That was after I told him that the panel was not finished”.[136] 
  2. [171]
    It was later suggested to Mr Shamsai that it was Professor Dux who said to him that the panel ought to be filled, to which he responded, “yeah, that is what I said.  That is what I said.  I said the panel is not finished.”[137]  It was again suggested that this was said by Professor Dux to him to which he responded:

“No.  I said to him that the panel was not finished and needs to be filled.  That’s my words to him.  I do recall that once he was finished with is exercise and said, get the guys to practically finish it.  That’s what he said, and that is where they left.”[138]

  1. [172]
    It was suggested to Mr Shamsai that the reason why the spirals had been put in place was because his organisation treated the slab as finished.  His response was:

“Absolutely not.  This is what I told him.  That’s the argument he told me.  The reason he believes it’s finished, because the coils are in there.  I said this is not the case, that does not mean that the slab is finished.  That was the conversation I had with him.  An exact conversation, sir.  I remember exactly what he said, what I said.”[139]

  1. [173]
    When I consider Professor Dux’s dismissive rejection of the suggestion that the panel was not complete as “ridiculous” in the context of all this evidence, I would readily accept that there may be sound practical reasons why Professor Dux might believe that the ancillary items might not be inserted until the panel was finished.  I am, however, certainly not persuaded that their insertion establishes that the panel was finished.  The Magistrate accepted Professor Dux’s belief that the panel had been finished, a belief which he had reached by inference from the presence of ancillary items, the insertion of which prior to finishing the panel he considered illogical.  Professor Dux’s belief as to that fact was accepted without consideration of the evidence of those actually involved in the manufacture of the panels as to what they knew to be the case, not what they believed.  In my view, his Honour erred in doing so.  It is not the case that, enjoying the advantage of having seen and heard the witnesses, the magistrate preferred, for reasons explained, the evidence of Professor Dux over those other witnesses. Their evidence was simply not considered. As I have said, it is not a matter of which I could comfortably be satisfied on all the evidence. 
  2. [174]
    At paragraph [116] his Honour said:

“Quickcell obtained records of the castings of the panels which disclosed depth measurements in the vicinity of 99 millimetres.  These measurements are also taken on a single edge, one on the length and one on the width.  These measurements do not reflect any deviation from the depth away from the ledge [sic].  This can be seen when comparing the casting records with Exhibit 4.73 depicts 12 depth measurements and it demonstrates how significant the deviation measurements can be.  An analysis of Professor Dux’s measurements of the failed panel or for that matter Mr Fordyce’s measurements show how many measurements exhibit differing results and how a single measurement can misrepresent the true depth of the entire panel.”

  1. [175]
    That paragraph, with some minor changes to wording, is also taken directly from the prosecution’s written submissions.[140]  It again refers to Exhibit 4.73, the true evidentiary significance of which I shall address later in these reasons.
  2. [176]
    At paragraph [118] his Honour again referred to the “quick depth measurements” taken by Professor Dux on 30 November 2012, the photographs included in his report “which show a depth of between 70 millimetres and 80 millimetres approaching and along the face of the bending fracture” and the following conclusion at p 20 of his report:

“In summary, the cross sectional depths of the failed panel were between 90 millimetres and 95 millimetres.  Away from the ends, the depth reduced.  A reasonable estimate of the cross sectional depth over much of the panel in the vicinity of the bending fracture, based on numerous measurements, is around 75-80 millimetres.”

  1. [177]
    The Magistrate concluded his analysis of panel depth at paragraphs [119] and [120] as follows:

“The Court accepts those measurements show beyond reasonable doubt that the panel that failed was manufactured to an inadequate depth.  The depth of that panel was at various points along the bending or fracture line between 80 millimetres when allowing for the permissible variation it should not have been less than 90 millimetres deep.  Even allowing for the depth to be no less than 85 millimetres based on the tolerance that Mr Fordyce posited on his measurements the panel was at least at one point no more than 82 millimetres deep.

The observations of Professor Dux at the Quickcell manufacturing on how the panels were manufactured demonstrate how the panel would have been manufactured to an inadequate depth.  The photographs referred to at paras [100] to [103] herein are consistent with the manufacturing failure identified by Professor Dux.” (emphasis added).

  1. [178]
    Having conducted a review of the record and his Honour’s reasons, I respectfully differ in my conclusions.  I do not accept that these measurements show beyond reasonable doubt that the panel was manufactured to an inadequate depth.  For the reasons I have set out above, I have reservations as to the accuracy of those measurements.  I have reservations as to whether the measurements which Professor Dux says can be seen in the photographs can actually be seen.  I have reservations as to whether measurements taken along the fracture line, where spalling of both the top side and bottom side of the panel has occurred, and after the panel has been further damaged in its manipulation, accurately reflect the as manufactured depth of the panel.  On the basis of those measurements, or on Professor Dux’s evidence overall, or on the whole of the evidence, I could not be satisfied beyond reasonable doubt that the panel was manufactured to an inadequate depth. 
  2. [179]
    The evidence to which I have already referred, causes me to have reasonable doubt.  However, there is a further piece of evidence referred to in the Magistrate’s reasons, which adds further still to the doubt which I have:  Exhibit 4.73.  It is convenient now to address what I consider to be the true evidentiary significance of Exhibit 4.73.
  3. [180]
    Very little, if any, attention was paid to Exhibit 4.73 in the course of the trial.  It was tendered, without objection, in the prosecution case through the complainant.  Mr Bell identified that he had served a notice to produce documents upon Thiess pursuant to s 171 of the Work Health and Safety Act 2011.  A folder of documents was tendered which comprised 73 documents extracted from those produced by Thiess.  The folder became Exhibit 4 and each of the documents Exhibits 4.1 to 4.73 respectively.[141]  I have been unable to find any further reference to Exhibit 4.73 in the record thereafter. 
  4. [181]
    The document has a title: “Rejected Quickcell SSP panels (panels not installed and returned to Quickcell)”.  It has columns headed “Panel Number”, “Panel ID” and “Date Stamp”.  There are then columns which record panel thickness at 12 separate locations: North 1, 2 and 3; South 1, 2 and 3; East 1, 2 and 3; and West 1, 2 and 3.  The final column records “Average Thickness”. 
  5. [182]
    As I have already observed, the prosecution submissions referred to 26 of the panels supplied to Thiess having been rejected and returned to Quickcell.  It had been observed that within those rejected panels were measurements as low as 70 millimetres in thickness in certain parts of a single panel.[142]  Exhibit 4.73 provided the evidentiary basis for those submissions.  As also already noted, the finding made by his Honour as set out in paragraph [116] of his reasons, directly adopted a submission made by the prosecution based upon Exhibit 4.73.
  6. [183]
    In written submissions in reply,[143]  the defence had taken issue with the prosecution submissions based upon Exhibit 4.73.  It was submitted that the complainant’s evidence concerning the document did not go beyond identifying it as a document provided by Thiess.  It was observed that, on its face, the document was undated, did not state that it related to the Trackstar project and does not disclose its author. Each of those submissions is repeated in Quickcell’s submissions on the appeal.[144]  All of those observations are, of themselves, correct.  However, given all the evidence of the unique manufacture of these panels by Quickcell for the Trackstar project, inclusion of “Date Stamp” and “Panel ID” columns which correlate with the Quickcell casting records[145] which show panels with these identifying numbers being manufactured on those particular dates by Quickcell as “Trackstar platform panels”, the inference is open to the point of certainty that Exhibit 4.73 relates to the Trackstar project.  That submission is entirely lacking in merit. 
  7. [184]
    The reply submissions went on to observe that Exhibit 4.73 was not put to any witness, so there was no evidence as to the truth or veracity of its contents.  There was no evidence of who took the measurements, or of where, when and how they were taken.  There was no evidence as to why the panels were not installed and returned to Quickcell.  There was, it was submitted, no evidence that the panels were rejected and returned. Those submissions were also repeated on the appeal.[146]
  8. [185]
    Some of those observations are accurate, others are not.  That the document was not put to any witness is accurate, but the submission that there was no truth or veracity of its contents is not.  There may have been a basis to object to the evidence but, as I have observed, no objection was taken to it.  Had it been, in my view, the objection would not have been successful.  It was, in my view, admissible. 
  9. [186]
    The evidence of Mr Bell was that it was one of the documents produced pursuant to a notice issued under s 171 of the Work Health and Safety Act 2011.  Section 171 permits an inspector to require a person to give the inspector a document which the person has custody of, or access to.  A “document” under that Act includes a record.[147] 
  10. [187]
    Section 93 of the Evidence Act 1977 permits any statement contained in a document and tending to establish any fact of which direct oral evidence would be admissible to be admissible in a criminal proceeding in certain circumstances.  It must be or form part of a record relating to any trade or business from information supplied by persons who had, or who may reasonably be supposed to have had, personal knowledge of the matters dealt with in the information which they supplied.[148]  Given that the document was provided to Mr Bell in response to his s 171 notice, one would readily be satisfied that it is a business record of Thiess and that the first condition of its admissibility is established. 
  11. [188]
    The further, relevant condition, for its admissibility is that the person cannot with reasonable diligence be found or identified or cannot reasonably be supposed (having regard to the time which has elapsed since the person supplied the information and to all the circumstances) to have any recollection of the matters dealt with in the information the person supplied.[149]  As Quickcell’s submission accurately states, the author of the document is not identified, so it may have been that they could not, with reasonable diligence, have been found or identified.  Assuming though that they could have been, it would seem entirely reasonable to suppose that when they came to give evidence of measurements they made of the thickness of some 26 panels more than three years earlier, they would not have any recollection of those matters.  In those circumstances, the second condition for the admissibility of the document would also be met. 
  12. [189]
    All of this, though, is beside the point when no objection was taken to its tender.  Once it was admitted it was evidence of the statements contained in it.  Statements include any representation of fact.[150]  Therefore, contrary to the submissions for Quickcell, repeated on the appeal, the various statements contained in the document provided evidence of those matters.  The document provides evidence of what it was a record of; rejected panels not installed and returned.  The document provides evidence of what the measurements of each of the 12 locations were.  The document is consistent with Mr Palmer’s evidence that panels were inspected by Thiess and some rejected.  It is consistent with Mr Murphy’s evidence that slab thickness was measured by Thiess engineers before the slab went up.[151]
  13. [190]
    Most importantly, contrary to Quickcell’s submission, the document does provide evidence of why the panels were not installed and returned to Quickcell.  Exhibit 4.73 contains no record of any quality of the panels other than their thickness recorded as having been measured at 12 separate locations on each panel and an average of those thicknesses.  Inferentially, the only basis for the rejection of the panels as evidenced by Exhibit 4.73 is that upon inspection and measurement by Thiess they were rejected because Thiess was not satisfied with the thickness of the particular panel.  This, though, demonstrates both the true evidentiary significance of Exhibit 4.73 and the misuse of that exhibit in the Magistrate’s reasons.
  14. [191]
    As the Magistrate correctly identified in his reasons at [116], the comparison of the Quickcell casting records with Exhibit 4.73 does demonstrate that the measurements taken by Quickcell on the edge do not reflect any deviation in the depth which may occur away from the edge, and that the 12 measurements in Exhibit 4.73 do show how significant those deviations may be.  However, in considering the issue so central to Professor Dux’s opinion as to why the particular panel failed, that is that it was manufactured too thin, Exhibit 4.73 provides evidence tellingly against such a conclusion, not in favour of it.  In fact, properly understood, Exhibit 4.73 would almost of itself exclude such a conclusion.  When taken with all the other evidence to which I have referred, it must, at least, establish reasonable doubt as to the panel in question having been manufactured too thin.
  15. [192]
    The true evidentiary significance of Exhibit 4.73 is that it evidences a process of thorough measurement of panels by Thiess after their receipt from Quickcell.  It further evidences that panels considered too thin or deficient in depth are rejected by Thiess.  It demonstrates that one SSP13 type panel[152] was rejected when the thinnest measurement was 85 millimetres,[153] with all other 11 measurements exceeding 85 millimetres: two of 89 millimetres; seven of 90 millimetres; one of 91 millimetres; and one of 92 millimetres.  Exhibit 4.73 demonstrates that four SSP12 type panels manufactured on the same date as the failed panel, 14 August 2012, were rejected, but no SSP13 type panels manufactured that day were rejected.  Of the SSP12 type panels cast on that date which were rejected, one[154] was rejected with only one measurement of 86 millimetres,[155]  with all other measurements being 90 millimetres or greater.
  16. [193]
    Exhibit 4.73 also demonstrates that of the SSP panels cast on the next casting date, 16 August 2012, one SSP13 panel[156] was rejected.  That panel had two measurements each of 84 millimetres[157] and 85 millimetres.[158]
  17. [194]
    At paragraph [117] of his reasons, the Magistrate referred to SSP13-14 cast on 2 July 2012 having thickness measurements which varied from 75 millimetres to 90 millimetres.  That is so, but it is to be understood as evidence of a panel manufactured to an deficient thickness having been identified and rejected.  It provides no evidence that the failed panel might have been manufactured with such deficient depth.  It in fact provides compelling evidence to the contrary.  The proper inference which is to be drawn is that had the failed panel been deficient in thickness, particularly to the extent suggest by Professor Dux, the 12 measurements taken by Thiess would have identified that fact. If found by measurement to be deficient in depth, it would have been rejected. 
  18. [195]
    The conclusion one would reach based upon Exhibit 4.73 is that the failed panel was not deficient in thickness.  At the very least, properly considered and understood, Exhibit 4.73 must lead to a reasonable doubt as to the panel having been manufactured too thin. 
  19. [196]
    Mr Fordyce had raised in his report the potential for panels to be rejected.  That suggestion was dismissed by Professor Dux in his second report; Exhibit 7.5, Section 4.4, p 11, Professor Dux said:

“With regard to rejection of panels with deficient thickness, it is extremely difficult to estimate the thickness of the central region of the panel if thicknesses near ends and edges are reasonable.”

  1. [197]
    It would not appear that Professor Dux was aware of Exhibit 4.73. Exhibit 4.73 demonstrates that his opinion, in that regard, is incorrect.
  2. [198]
    In my view, the magistrates finding at paragraph [120] of his reasons, that “the observations of Professor Dux at the Quickcell manufacturing (sic) on how the panels were manufactured demonstrate how the panel would have been manufactured to an inadequate depth”, also cannot stand in light of Exhibit 4.73. Exhibit 4.73, whilst evidencing that some panels were manufactured to an inadequate depth, also demonstrates that many, indeed most, were not. It demonstrates the danger of applying what was observed by Professor Dux of one panel on that occasion to the manufacture of panels more generally. Professor Dux’s reasoning commences with a hypothesis: the panel failed because it was too thin. He then uses what he saw on the visit to the Quickcell manufacturing plant to prove his hypothesis by inferring that the failed panel would have been too thin and providing the explanation for that in the screeding method which he observed on one panel (but not that which he observed on another panel).
  3. [199]
    If Professor Dux’s thesis were correct in respect of the failed panel then one would expect that it would manifest itself in all panels being manufactured to thinly. This is clearly not the case.
  4. [200]
    If his thesis were not correct in respect of the failed panel, one would also expect it to have been included in Exhibit 4.73 as a panel rejected and returned to Quickcell because of inadequate thickness.
  5. [201]
    In my view, the manufacture of the panel so that it was too thin is so central to the prosecution case that a reasonable doubt about that fact must cause one to have a reasonable doubt that the defendant failed to comply with its duty. The centrality of this issue can be seen from the following summary of Professor Dux’s evidence. He expressed his conclusions in his first report as follows:

“It is concluded that:

  1. The SSP13 panel failed in bending due to inadequate structural properties which resulted from incorrect manufacturing practice by Quickcell.
  2. The key manufacturing defects were:
  • Incorrect location of prestressing strands, and
  • Inadequate thickness of concrete above stands due to inadequate concreting practice; specifically, failure to employ good screeding practice that would have resulted in panels of the correct depth and failure to check the depth of concrete achieved with the practice actually employed.
  1. The combination of these defects rendered the failed panel incapable of carrying the expected construction loads.
  2. There is no evidence that indicates the failure resulted from design error.
  3. There is no evidence that indicates the failure resulted from incorrect construction practice by Trackstar at the Springfield Station site.”[159]
  1. [202]
    In his second report provided in response to Mr Fordyce’s first report, Professor Dux said:

“As the Fordyce report states, most failures feature a combination of factors. The compounding error here is the failure to systemically achieve the design panel thickness during manufacture”.[160]

He expresses his conclusions in that report as follows:

“1. The combination of deficient thickness and misplaced strands was sufficient for the panel to collapse without overload.

  1. There is no evidence that the failed panel has been overloaded.
  1. The collapse was not due to a deficiency in the design as expressed in the design drawing of 24 May 2012.
  1. I doubt that a panel design with thickness 95mm and cover to strands of 50mm was properly undertaken (i.e. to AS3600) prior to commencement of manufacture.
  1. I think that the adoption of 50mm covered strands was likely due to one or a combination of poor document control that failed to eliminate a superseded drawing which referred to “50mm cover to stand”, incorrect drilling of holes in foreman’s and decision to simply change the strand cover to 50mm to suit the misplaced holes or to suit some other avoidable manufacturing issue.
  1. The deficient thickness was due to inadequate training and supervision of the workforce at the casting yard.
  1. The Fordyce report is rejected.”[161]
  1. [203]
    In his oral submissions on the appeal, Mr Copley QC submitted that as long as the court was satisfied of at least one of the failures in the particulars, it would be open to be satisfied beyond reasonable doubt of the offence. As a statement of general principle that is undoubtedly correct.[162] As Mr Copley QC conceded, however, whether that was so in this case would depend upon an understanding of the evidence in the prosecution case, particularly of Professor Dux. Mr Copley QC conceded that if the evidence was that particularised failures, for example the positioning of the strands and the thickness of the panel, together caused it to fail, then the court would need to be satisfied of each of those before the court could be satisfied beyond reasonable doubt of the offence.[163]
  2. [204]
    In my view, Professor Dux’s conclusions that it was a combination of failures, of which the thinness of the panel was the compounding factor, which caused the panel to fail, does not permit the court to be satisfied beyond reasonable doubt that Quickcell failed to comply with its duty if the court is unable to be satisfied that the panel which failed was, in fact, manufactured too thin. This is reflected in the Magistrate’s reasons. At paragraph [160] his Honour said:

“The combination of these issues, in particular the manufacture of panels with 50mm cover to the soffit rather than 40mm cover to the soffit together with the panels lacking adequate depth due to poor manufacturing technique has led to the manufacture of panels unable to carry the construction loads present on 26 October 2012.”

  1. [205]
    Then, at [171] to [172] he said:

“In this case a panel failed. Failure of a panel does not necessarily mean that there has been a breach of the Act but it predicates an investigation which may well result in evidence being adduced which would show that there has been a breach of the Act.

In this case there has been such an investigation, and arising from that investigation it is the prosecution’s view that there has been a breach of the Act. The prosecution must establish that Quickcell failed to comply with its manufacturing duty and it made concrete panels that were (sic).”

  1. [206]
    The second sentence of paragraph [172] is incomplete, however, it is readily inferred that his Honour intended to conclude it with words to the effect of “too thin” or “of inadequate depth”. At [173] he went on to say:

“The prosecution case as stated in paragraph 28 is that Quickcell has exposed individuals to serious injury or death by manufacturing thin panels, moving the prestress strands to a level that is high and not ensuring consistent depth of the panels. In reality manufacturing thin panels. The court has accepted the prosecution has proved beyond reasonable (sic) that the panel that failed was manufactured to an inadequate depth i.e. it was too thin in places. As can be seen from the varied depths along the face of the bending fracture.[164]

  1. [207]
    His Honour then went on to find that the prosecution had also proved beyond reasonable doubt that the panel as constructed had the prestressing strands at an inappropriate depth.[165]
  2. [208]
    At [178] his Honour concluded:

“A reasonable person in the position of Quickcell would reasonably have known that a panel which was constructed with inadequate depth or one which was constructed with prestressing strands incorrectly placed would be at risk of collapse.”

  1. [209]
    In my view, that ultimate conclusion that a reasonable person would  reasonably have known that a panel constructed with inadequate depth or with incorrectly prestressing strands would be at risk of collapse is not supported by the evidence, particularly that of Professor Dux already recited as to the combination of factors and the centrality of inadequate panel depth to his opinion. Indeed, it is inconsistent with the Magistrate’s own findings made earlier in his reasons.
  2. [210]
    There is other evidence which, in my view, excludes the conclusion that a reasonable person would have known that the positioning of the prestressing straps would of itself create the risk of collapse of the panels. That evidence can be referred to briefly because of the conclusion I have reached that the failure to prove that the panel was manufactured too thin leads to a failure to prove the offence.
  3. [211]
    The issue concerning the location of the pre-stressing strands is that the design had them positioned with 40 millimetres cover to soffit whereas they were manufactured with 50 millimetres cover to the soffit.  A panel with 50 millimetres cover would have less strength than a panel with 40 millimetres cover.  Mr Palmer, the Thiess engineer, was cross-examined about 50 millimetres cover, he said:

“I accept that there was design work done at 50 millimetres either cover or centre of strand.  There was design work done.”[166]

  1. [212]
    He agreed that design with 50 millimetre cover had been checked by a registered professional engineer.  He agreed that he had been notified of the 50 millimetre cover in an email of 6 September 2012.[167]  Mr Palmer went on to say:

“I agree that yes, there was design work done.  I have no issue with that… I agree that yes, there was design work from the evidence I’ve seen today for 50 millimetre cover.  I have no issue with that.  I’m not going to dispute it.  It’s there… it was approved by an engineer yes, it wasn’t approved formally by our design engineers.”[168]

  1. [213]
    Mr Peter Brown was the engineer who certified the design.  His qualifications include Bachelor of Engineering and Master of Engineering Science.  On 31 August 2012, Mr Shamsai emailed Mr Brown asking that he check Mr Shamsai’s calculations for the manufacture of SSP13 type panels.  His email read:

“As you know we are doing the above job for Trackstar.  I have attached to this email a calculation concerning the floor slabs.  They are 3.8 metres long by 2.5 metres wide and 95 millimetres thick, with 85 millimetre topping concrete.  I have used 7 number of strands, with 50 millimetre cover.  The applicable live load is 7.5 kPa and I allowed for 2 kPa construction load.  As per my calculation, the available Mu is okay for the required Mu.  And also the stresses are in compliance.  Would you please check this calculation for the given span/load requirement so I can pass it on to the designers.”[169]

  1. [214]
    Mr Brown initially wrote on a printed copy of the email “Okay PB”.  He later crossed that out and wrote “See later”.[170]  On 5 September 2012 Mr Brown replied to Mr Shamsai’s email saying “I agree with your design”.[171]  On 13 September 2012 Mr Brown emailed Mr Shamsai saying “there is the same problem with the Trackstar panel.  For the wet concrete case, it needs to be either 100 thick with 7 strands or 95 thick with 8 strands”.[172]
  2. [215]
    Mr Brown gave oral evidence about these communications.  He said:

“Yes.  Mr Shamsai sent me an email – well, there it is.  He sent me an email saying that they were doing these panels, and so I did a quick check and said, yes, it was okay.  I think – I probably scanned that page and sent it back to him, but then when I had more time or for whatever, I went through and – and just checked it again and changed my mind.  That was a couple of weeks later and said, no, instead of 7 strands, I recommended you put 8 --- or make the panel thicker.”[173]

  1. [216]
    He went on to say:

“Well, as I say, I think – I think agreed with the – the email by writing on it okay PB and scanning it and emailing it back to Mr Shamsai.  So that’s what that means.  And then when I had another look and changed my mind, I crossed it out and said see later, because later in the file there’s another email that says, you know, let’s beef it up a bit.”[174]

  1. [217]
    When asked in relation to the email on which the notation “Okay PB” appeared, Mr Brown was asked “what were you okaying? What was the purpose of the email?”.  Mr Brown responded “I was okaying the design”.[175]
  2. [218]
    In relation to the calculations which Mr Shamsai had performed and provided to him to check, Mr Brown said “I generally don’t sort of look much at his calculations.  I do my own”.[176]
  3. [219]
    Mr Brown performed calculations on 13 September 2012 for a 2,500 millimetre wide and 95 millimetre deep panel with a maximum of 85 millimetres of topping concrete.  Those calculations are set out in a document titled “Structural Calculation for Quickcell Panel”.[177]  The calculations were made based upon seven, 12.7 millimetre diameter pre-stressing strands located with the centre line of the strand 50 millimetres from the bottom of the panel, providing 44 millimetres of clear cover to the strand.  Mr Brown performed further calculations on 26 October 2012 which are set out in another document titled “Structure Calculations for Quickcell Panel”.[178]  Those calculations were also made based upon a 2,500 millimetres wide and 95 millimetres deep panel with 85 millimetres of topping concrete.  Those calculations were based upon eight, 12.7 millimetres diameter pre-stressing strands located with the centre line of the strand 55 millimetres from the bottom of the panel. The panel which failed was manufactured with eight pre-stressing strands with 50 millimetres clear cover to strands.  The calculations of Mr Brown were based on a panel with 49 millimetres clear cover.
  4. [220]
    In evidence Mr Brown said of these calculations:

“There seemed to be some uncertainty in my mind as to where the panel – where the panel was, what height it was, whether it was 40, 50 or 55 from the bottom of the pre-stress panel.  So here I was just checking it at 55 just to make sure I – I would say that it still worked which I – I think --- yeah.  Just let me look through.  What was the result?  Yeah.  So it still – still worked at 55 and 85 deep.  Yep.”[179]

  1. [221]
    He confirmed this in cross-examination.[180] Mr Brown, in both evidence-in-chief and cross-examination, said that what gave the panel its strength is the depth between the strand and the top of the panel.[181]
  2. [222]
    Given Mr Brown’s evidence, which was not considered in his Honour’s reasons, I could not conclude that a reasonable person would have known that the positioning of the pre-stressing strands with 50 millimetres cover to soffit would create a risk of the collapse of a panel.  In my view, Mr Brown’s evidence further demonstrates that proof of manufacture of the panel such that it was of inadequate depth and “too thin” is required in order to prove the prosecution case.  The prosecution has not proven this issue essential to that case.
  3. [223]
    For these reasons, I cannot be satisfied beyond reasonable doubt that Quickcell failed to comply with its duty.  The appeal against conviction must be allowed. 

Costs

  1. [224]
    As the appeal against conviction must be allowed and the complaint dismissed, it follows that the costs order below should be set aside.
  2. [225]
    Section 158 of the Justices Act 1886 provides that where a complaint is dismissed the complainant may be ordered to pay to the defendant such costs as seem just and reasonable. Where the complainant is a public officer, however, that power may only be exercised if the court is satisfied that it is proper that the order for costs should be made.[182] All the relevant circumstances must be taken into account[183] in deciding whether it is proper to make the order for costs.
  3. [226]
    The parties have not been heard on those matters in respect of any order for costs which might be made in favour of Quickcell in respect of the proceedings in the Magistrates Court. They should have an opportunity to make submissions on the issue.
  4. [227]
    One thing may be said as to what costs may be awarded. By s 158B, in deciding the costs that are just and reasonable, the costs which may be awarded are limited to those scale items prescribed under a regulation unless the court is satisfied that a higher amount is just and reasonable having regard to the special difficulty, complexity or importance of the case.
  5. [228]
    Central to Quickcell’s appeal against the costs order in the Magistrates Court was its contention that his Honour should not have found that the case was of such special difficulty, complexity or importance as to warrant an award of costs beyond scale items. On the appeal, counsel for Quickcell stated that it was Quickcell’s position that in the event it was successful I would find that the matter was not of such complexity so as to warrant anything other than scale costs.[184]
  6. [229]
    Section 159 requires the sum of costs allowed to be stated in the order. Section 225(3) provides that on the appeal the judge may exercise any power that could have been exercised by whoever made the order appealed against. Those provisions would appear to require that any costs which this court may allow for the proceedings at first instance to be stated in the order.
  7. [230]
    As to the costs of the appeal itself, the court may make any order as to the costs to be paid by the parties as the court may think just.[185] The parties should be heard on that issue.

Disposition

  1. [231]
    The orders I would make are:
  1. Allow the appeal.
  2. Set aside the conviction in the Magistrates Court.
  3. Dismiss the complaint.
  4. Set aside the fine.
  5. Set aside the order for costs.
  6. Direct that the parties file written submissions on costs of both the proceedings in the Magistrates Court and on appeal, limited to five pages (inclusive), within 28 days.

Footnotes

[1]Primary judgment Bell v Quickcell Technology Products Pty Ltd, 5 February 2018 (‘Reasons’).

[2]Supplementary judgment 19 April 2018.

[3]Transcript, 7 December 2015, p 1-24.

[4]This forms part of the grounds of appeal to this Court.

[5]Transcript 13 November 2014, p 1-50 to p 1-51.

[6]Ibid at p 1-54.

[7]Bell v Quickcell, Reasons for Decision, 16 February 2015, p 4.

[8]Transcript 31 August 2015, p 1-7.

[9]Transcript 19 February 2016, p 9-47.

[10]Transcript 19 February 2016, p 9-49.

[11]Transcript 19 February 2016, p 9-49 to p 9-50, l 17.

[12]Transcript 19 February 2016, p 9-50, l 19.

[13]Transcript p 9-50, ll 25-30.

[14]Transcript p 9-51, ll 22-28.

[15]Transcript 19 February 2016, p 9-53.

[16]Transcript 19 February 2016, p 9-53.

[17]Transcript 19 February 2016, p 9-54, l 40 to p 9-55, l 4.

[18]Transcript 19 February 2016, p 9-55, ll 11-15.

[19]Transcript p 9-55, ll 16-21.

[20]Transcript 19 February 2016, p 9-55, ll 27-46.

[21]This appears to be a typographical error and it is most likely that Counsel had referred to “my objection”.

[22]Transcript 19 February 2016, p 9-57, l 42 to p 9-58, l 33.

[23]Respondent’s outline of submissions, paras 17 to 19.

[24](1989) 167 CLR 590.

[25]Appeal transcript, 8 November 2018, p 1-89, ll 20-39.

[26]Ibid, at p 1-89, l 40 to 1-90, l 10.

[27]Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 at 203-204, [14]; Allesch v Maunz (2000) 203 CLR 172 at 180, [23]; CDJ v VAJ (1998) 197 CLR 172 at 201-202.

[28]Supra at [14].

[29](2003) 214 CLR 18 at 126-127, [25].

[30]Ibid at [27] citing Dearman v Dearman (1908) 7 CLR 549 at 564, itself citing The Glannibanta (1867) 1 PD 283 at 287.

[31]At [17].

[32]At [29].

[33][2016] 331 ALR 550 at [43].

[34][2019] 372 ALR 383 at [55].

[35]Citing Warren v Coombes (1979) 142 CLR 531 at 551.

[36](2001) 206 CLR 323 at [41]-[44].

[37](2003) 197 ALR 389 at [24]-[25] per Gummow and Callinan JJ and at [87] per Kirby J.

[38]Craig v South Australia (1995) 184 CLR 163 at 179 per Brennan, Deane, Toohey, Gaudron and McHugh JJ.

[39]Documents marked A, B and C for identification.

[40]Citing paragraph 14 of the prosecution’s written submissions.

[41]Written submissions for the prosecution at paras 2 and 3.

[42]Ibid at para 5.

[43]Paragraphs [31] and [32] of the reasons. The summary and table had been set out at para 16 of the prosecution’s written submissions. The summary and table as set out in the submissions and as adopted by his Honour was said to have been based upon Exhibits 3.3-3.11 and Exhibits 4.58-4.67.

[44]At para [33].

[45]Paragraph [34] of his Honour’s reasons.

[46]Exhibit 8.2.

[47]Exhibit 8.3.

[48]Outline of closing submissions on behalf of the complainant filed 22 December 2016, paras 23 to 28.

[49]Decision paras [44] to [63].  Those paragraphs of the decision adopt paras 29 to 48 of the complainants outline of submissions.

[50]Exhibit 7.16, para 4.3.

[51]Reasons at [70].

[52]Reasons at [71] reciting from Exhibit 8.2; AS3610 clause 1.52.

[53]Reasons at [72].

[54]Reasons at [73].

[55]Reasons at [74]-[75].

[56]Exhibit 4.9 dated 24 May 2012.

[57]Reasons at [78].

[58]Exhibit 7.2.

[59]Exhibit 7.7.

[60]Reasons at [79].

[61]Exhibit 4.74.

[62]Reasons at [80].

[63]Reasons at [81] citing Exhibit 4.8, Exhibit 7.2, p 2.  Defence submissions, para 52(g) and (h), Exhibit 7.7, p 5 and Exhibit 7.8.

[64]Reasons at [82]-[83].

[65]Reasons at [84].

[66]Reasons at [85]-[87].

[67]Reasons at [88]-[98].

[68]Exhibit 4.36.

[69]Reasons at [90].

[70]Reasons at [100].

[71]Immediately within the same paragraph.

[72]Reasons at [102].

[73]Reasons at [104].

[74]Reasons at [105]-[106].

[75]Reasons, para [107].

[76]Reasons, at [108].

[77]T1-70, l 25 to T1-71, l 25.

[78]Exhibit 7.2 pp 18-20.

[79]Exhibit 7.3.

[80]T2-41, l 29.

[81]Exhibit 7.2, p 13.

[82]Otherwise referred to as Quickcell 7.3.

[83]Photographs 10 and 11 each record measurements of 75mm. It is unclear which photograph Professor Dux referred to.

[84]Transcript, 8 December 2015, p2-61, ll 1-5.

[85]Transcript, 8 December 2015, p 2-72, ll 1-20.

[86]Transcript, 8 December 2015, p 2-72, ll 28-45. 

[87]Transcript, 8 December 2015, p 2-74, ll 20-42.

[88]Transcript, 8 December 2015, p 2-75, ll 32-40.

[89]Reasons at [109].

[90]Reasons at [110].

[91]Exhibit 7.4.

[92]Exhibit 7.7, pp 7-8.  This is the evidence upon which his Honour based his observation about consistency.  Reasons [109], Footnote 92.

[93]Exhibit 7.2, Section 5.1, pp 13-14.

[94]Exhibit 7.2, Section 5.2, pp 16-19.

[95]Exhibit 7.5, Section 3, p 7.

[96]Exhibit 7.2, Professor Dux first report, pp 22-26; Exhibit 7.5, Professor Dux second report, pp 6, 8 and 20; Transcript 9 December 2015, p 3-24, ll 12-15 and 3-59, l 30 to 3060, l 5.

[97]Reasons at [111].

[98]At Footnote 71.

[99]Reasons at [111].

[100] Transcript 2 September 2015, p 3-70, l 45.

[101]Ibid p 3-71 to p 3-73.

[102]Ibid p 3-73, ll 5-30.

[103]Ibid p 3-74, ll 3-27.

[104]Ibid p 3-74, ll 39-45.

[105]Ibid p 3-75, ll 1-8.

[106]Ibid p 3-75, ll 25-35.

[107]Ibid p 3-76, ll 5-20.

[108]Ibid p 3-76, l 40.

[109]Ibid p 3-77, l 3.

[110]Ibid p 3-77, ll 15-20.

[111]Transcript 2 September 2015 p 3-49, ll 2-6.

[112]Ibid p 3-57, ll 14-24.

[113]Ibid p 3-9, ll 43-48.

[114]Ibid at p 3-57, l 42 to p 3-58, l 2.

[115]Ibid at p 3-59, l 30 to p 3-60, l 5.

[116]Exhibit 7.2, First Report, s 6, p 24, third paragraph; Exhibit 7.5, Second Report, s 3, p 7, sixth paragraph; Transcript 9 December 2015, p 3-61, ll 25-44.

[117]Transcript 2 September 2015, p 3-69, ll 1-15.

[118]Ibid p 3-70, ll 19-30.

[119]Transcript 2 September 2015, p 3-49, ll 18-26.

[120]Ibid, p 3-52, ll 15-38.

[121]Reasons at [112].

[122]Reasons at [113].

[123][77] of the Prosecution’s outline of closing submissions.

[124]Reasons at [113].

[125]Transcript 1 September 2015, p 2-65, ll 39-45.

[126]Ibid, p 2-67, ll 37-42.

[127]Ibid p 2-68, ll 14-17.

[128]Ibid p 2-69, ll 10-14.

[129]Mr Shamsai.

[130]Ibid p 2-69, ll 24-33.

[131]Reasons at [114] citing transcript 9 December 2015, p 26, ll 19-29.  It was in fact, at p 64 of the transcript for that day.

[132]Transcript 5 September 2016, p 1-101, ll 19-28.

[133]Ibid p 1-101, l 42 to p 1-102, l 7.

[134]Ibid, p 1-102, ll 9-20.

[135]Ibid, ll 21-41.

[136]Transcript 6 June 2016, p 1-41, ll 1-5.

[137]Ibid ll 6-19.

[138]Ibid ll 35-40.

[139]Transcript 6 September 2016, p 1-42, ll 10-14.

[140]Prosecution’s outline, para 80.  The submissions refer to “edge” not “ledge” as it is incorrectly referred to in the reasons. 

[141]Transcript 31 August 2015, p 1-20 to 1-22.

[142]Prosecution’s outline of submissions, paras 17, 18 and 69.

[143]Filed on 17 January 2017.

[144]Appellants outline of argument paragraph 46(f).

[145]Exhibit 3.1 to 3.11.

[146]Appellant’s outline of submissions paragraph 46(g).

[147]Dictionary, Schedule 5.

[148]Section 93(1)(a).

[149]Section 93(1)(b)(iii) and (iv).

[150]Section 3 Evidence Act 1977.

[151]Transcript 1 September 2015, p 2-53.

[152]Panel No. 13, SSP13-21 date stamp 9 July.

[153]East 3 measurement, 85 millimetres.

[154]Panel No. 8, SSP12-96.

[155]South 2 measurement.

[156]SSP13-39.

[157]North 2 and South 1.

[158]North 1 and South 2.

[159]Exhibit 7.2, Section 7, p 28.

[160]Exhibit 7.5, Section 2.2 p 6.

[161]Exhibit 7.5, Section 7, p 20.

[162]Coleman v Kinbacher & Anor (Qld Police) [2003] QCA 575 at [14] per Chesterman J, McMurdo P and Davies JA concurring.

[163]Appeal Transcript 8 November 2018 pp 1-99 ll4-35.

[164]See paragraph 118 and 119.

[165]Reasons at paragraphs [174] – [176].

[166]Transcript 1 September 2015, p 2-98, l 43 to 2-99, l 2.

[167]Exhibit 4.25.

[168]Transcript 1 September 2015, p 2-99, ll 13-23.

[169]Exhibit 5.1.

[170]Exhibit 5.1 and Transcript 2 September 2015, p 3-23, ll 33-34.

[171]Exhibit 4.25.

[172]Exhibit 5.2.

[173]Transcript 2 September 2015, p 3-23, ll 22-30.

[174]Ibid at ll 36-42.

[175]Ibid at ll 44-45.

[176]Transcript 2 September 2015, p 3-24, l 7.

[177]Exhibit 5.3.

[178]Exhibit 5.4.

[179]Transcript 2 September 2015, p 3-27, ll 5-22.

[180]Ibid at p 3-42, l 43.

[181]Ibid at p 3-32, l 47 and p 3-44, l 27.

[182]Section 158A(1).

[183]Section 158A(2).

[184]Appeal transcript 8 November 2018 p 1-77 l 45.

[185]Section 226.

Close

Editorial Notes

  • Published Case Name:

    Quickcell Technology Products Pty Ltd v Bell

  • Shortened Case Name:

    Quickcell Technology Products Pty Ltd v Bell

  • MNC:

    [2020] QDC 181

  • Court:

    QDC

  • Judge(s):

    Horneman-Wren SC DCJ

  • Date:

    07 Aug 2020

Appeal Status

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

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.