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Sun Metals Corporation Pty Ltd v Craig Allen (Deputy Director-General, Office of Industrial Relations)[2020] QSC 304

Sun Metals Corporation Pty Ltd v Craig Allen (Deputy Director-General, Office of Industrial Relations)[2020] QSC 304

SUPREME COURT OF QUEENSLAND

CITATION:

Sun Metals Corporation Pty Ltd v Craig Allen (Deputy Director-General, Office of Industrial Relations) [2020] QSC 304

PARTIES:

SUN METALS CORPORATION PTY LTD

ACN 074 241 982

(applicant)

v

CRAIG ALLEN (DEPUTY DIRECTOR-GENERAL, OFFICE OF INDUSTRIAL RELATIONS AS REGULATOR UNDER THE WORK HEALTH AND SAFETY ACT 2011 (QLD))

(respondent)

FILE NO/S:

BS No 33 of 2020

DIVISION:

Civil

PROCEEDING:

Originating application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

9 September 2020, ex tempore

DELIVERED AT:

Brisbane

HEARING DATE:

Wednesday 9 September 2020

JUDGE:

Callaghan J

ORDER:

  1. The decision of the respondent dated 6 December 2019 to reject the applicant’s written undertaking dated 19 October 2018 be quashed.
  2. The question as to whether the undertaking should be accepted or rejected be reconsidered by the regulator according to law.
  3. The respondent pay the applicant’s costs on the standard basis.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – REVIEWABLE DECISIONS AND CONDUCT – REVIEW OF PARTICUALR DECISIONS – where incident at zinc refinery caused death of worker – where prosecution commenced by the respondent against the applicant for an alleged breach of a duty under section 19 of the Work Health and Safety Act 2011 (Qld) – where applicant proposed to the respondent a written undertaking under section 216 of the Work Health and Safety Act 2011 (Qld)  in response to prosecution – where respondent rejected undertaking – where responsibility of respondent to give reasons pursuant to section 217 of the Work Health and Safety Act 2011 (Qld) – where applicant seeks judicial review of decision to reject undertaking – whether breach of the rules of natural justice – whether respondent took into account irrelevant considerations in making decision – whether respondent failed to take into account relevant considerations in making the decision – whether respondent failed to engage actively in consideration of objective gravity of incident

COUNSEL:

AL Wheatley QC and A Psaltis for the applicant

SA McLeod QC for the respondent

SOLICITORS:

Clayton Utz for the applicant

Crown Law for the respondent

  1. [1]
    The applicant operates a zinc refinery in Townsville.  It uses zinc concentrate that is transported by train from the Townsville seaport to the refinery.  Unloading concentrate is a two-phase task, initially manual, then automatic. 
  2. [2]
    On 16 May 2015 a fault occurred during the manual process.  In order to address this fault, Mr Kevin Harney entered the area where the zinc was being unloaded.  He succeeded in remedying the fault and the unloading of the train continued.  However, another fault occurred soon thereafter.  Upon investigation Mr Harney was located in the unloading area.  He had been crushed by some of the equipment used during the automatic phase of the unloading process.  The injuries suffered to his head and upper body were fatal.
  3. [3]
    The Work Health and Safety Act 2011 (Qld) (“the Act”) creates, in s 19, a duty which is placed upon a company like the applicant to ensure, so far as is reasonably practicable, the health and the safety of workers such as Mr Harney.  S 32 criminalises a failure to comply with that duty if that failure exposes an individual to the risk of death. I note at this point that there have been significant amendments to this legislation, but the provisions to which I will refer are those that are agreed by the parties to have been in force at the relevant times and are agreed to be applicable to the circumstances of this case.
  4. [4]
    The Act also creates a scheme by which prosecutions for an offence against ss 19 and 32 may be commenced by an individual who is entitled (“the regulator,” – see schedule 2 part 1 and s 152 of the Act). On 29 November 2016, that discretion was exercised by a person who held the authorisation of the regulator and a prosecution was commenced against the applicant. 
  5. [5]
    It is not uncommon, when any sort of criminal proceedings are instituted, for there to be negotiations between the prosecutor and the defendant.  These may take the form of a submission that the prosecution should not proceed at all.  The Act has created a formal regime within which such negotiations might occur.  This regime incorporates the notion of an “enforceable undertaking”. That is, it is open for any person who is alleged to have contravened the Act to offer to the regulator a written undertaking.  Such an undertaking has been said to operate as a “sanction”, which is an alternative to a court-imposed sanction. 
  6. [6]
    The regulator was, at the relevant time - and I reiterate that the Act has been amended - empowered by s 216 of the Act to accept such an undertaking.  If that had happened, the consequences would have been profound. They would have included a requirement that all reasonable steps be taken to have the prosecution proceedings discontinued as soon as possible.  In that way, the decision to accept an undertaking can be compared to an exercise of the prosecutorial discretion.  The rejection of an undertaking amounts to a decision to continue with a prosecution; its acceptance compels a decision not to prosecute.
  7. [7]
    Appropriately, given the potential importance of such a decision, a rather elaborate process has developed under which someone in the applicant’s position can make representations to the respondent.  In these representations they might foreshadow the nature of the undertaking that they are willing to provide.  The respondent convenes a “panel” which considers such requests and provides feedback in the form of “draft” reasons for its decision. 
  8. [8]
    The whole process is scheduled by reference to a document headed “OIR EU Program Timeframes/Service Standards” which is exhibited at page 33 in the affidavit of Ms Logan and headed “Annexure B.”  A copy of that document is attached to these reasons, and I propose to describe the whole process of submission, comment, correspondence and associated feedback as the “Annexure B process.”  The objectives of this exercise include, clearly, the facilitation of procedural fairness.
  9. [9]
    As I have mentioned, the prosecution commenced on 29 November 2016.  The Annexure B process began on 6 February 2017 (when the applicant notified the Office of Industrial Relations of its intention to propose an undertaking) and continued for some time.  Between April 2019 and August 2019, the applicant and the regulator engaged in correspondence in respect of a “draft decision.”  In this correspondence, the applicant requested copies of documents which were relied upon for the purposes of making the decision, including one which is called the “director’s statement.”  Some of the requested documents were provided, although the director’s statement was not one of them.  The regulator then provided revised draft reasons in response to which the applicant, on 16 August 2019, made further and final submissions. 
  10. [10]
    On 6 December 2019 the regulator made and gave reasons for a decision to reject the applicant’s undertaking.  Pursuant to Part 3 of the Judicial Review Act 1991 (Qld), the applicant seeks to review that decision. 
  11. [11]
    Notwithstanding the apparent applicability of observations made by the High Court in cases like R v Barton [1980] 147 CLR 75 and R v Maxwell [1995-96] 184 CLR 501, it is accepted by the respondent that the decision is amenable to review.  The case of QUBE Ports Pty Ltd v Chief Executive Department of Justice and Leahy [2012] QCA 285 decides that for my purposes.  It was noted in that case, at [52], that the consequences of a decision to reject or accept an undertaking did not stamp upon such a decision the character of a decision to commence or continue a prosecution - even though it might be thought that is precisely the effect that it does have.  If thought to be slightly anomalous, the tension between the general observations of the High Court and the specific decision of the Court of the Appeal is not so pronounced as to have warranted the attention of Parliament.  And the terms of the Act do suggest that the decision to accept or reject an undertaking is not precisely comparable with the exercise of a prosecutorial discretion.
  12. [12]
    The review is sought on four grounds, which really incorporate six different arguments. 
  13. [13]
    It is said first that the decision is affected by a breach of the rules of natural justice, in that the regulator failed to provide the applicant with copies of documents that were referred to or relied upon in the decision.  Under this heading, the argument focused first upon the failure by the respondent to provide the applicant with a copy of the “Director’s Statement”.  The applicant was, initially, disadvantaged in making submissions under this heading because, even as at the time written submissions were filed, it had not seen the document.  It was known to exist because it was listed in the material that the regulator identified as having been considered for the purposes of making his decision.  Its production was, however, resisted on the basis of legal professional privilege.  That assertion was understandable in circumstances where the document was, in effect, an advice prepared by the Director of Legal and Prosecution Services within the Office of Industrial Relations.  Privilege has, however, now been waived, so I was able to receive submissions about the significance of the fact that the applicant was not provided with this document before it concluded its submissions as part of the Annexure B process. 
  14. [14]
    There is, perhaps, an interesting question as to whether this is in any case the type of document that someone in the applicant’s position could reasonably be expected to receive during such a process.  It can be accepted that it was something that influenced the decision.  However, the ambit of that which will be required by the rules of natural justice is something which is to be determined by reference to the totality of the circumstances, and specifically with regard to the legal framework within which the decision is to be made.
  15. [15]
    Whilst allowing, as I have, that the situation is not precisely analogous to the exercise of a prosecutorial discretion, this report is, in effect, a legal opinion of a staff member of the Office of Industrial Relations.  And even apart from the question of privilege, an opinion of that nature might not be thought to be a document that the applicant could ordinarily be expected to have received.  In any case, it does not seem to me that in these circumstances the applicant was relevantly disadvantaged by the fact that the document was withheld.  It seems to me that there is little in the report that was not disclosed during the Annexure B process. 
  16. [16]
    In argument, the applicant was invited to identify the matters contained in the director’s report which were not revealed during that process.  In essence, I find that they are reduced to matters that were either directly canvassed during that process, or which must have been known by the applicant to have been relevant, or matters which had no functional effect.  Given the conclusions that I have reached, the availability of a transcript and the helpful precision of counsel in argument, I do not find it necessary in these reasons, delivered ex tempore, to go into more detail than that.  I do find under this ground that, as the respondent has submitted, there was “no practical injustice” arising from the fact that the director’s statement was not provided to the applicant at some stage during the decision-making process.
  17. [17]
    The second complaint made under this heading concerns the fact that the applicant was not provided with a document called the “Regional Director’s Statement of Compliance History”.  This document, which again did form part of the material upon which the respondent’s decision was made, contained a summary of the applicant’s history of compliance with the Act.  It also, it should be noted, referred to some improvements made by the applicant in the area of workplace safety.  It did not contain much by way of detail substantiating contraventions of the Act, but some such information was included.  The applicant asserts that it should have been provided with an opportunity to be heard in relation to the documents “underlying” this “Regional Director’s statement”. 
  18. [18]
    At this point I note the effect of s 230(3) of the Act.  This provision creates an obligation for the regulator to issue and publish guidelines in relation to the acceptance of undertakings under the Act.  The regulator has done that and a copy of those guidelines is in evidence.  They provide that, when deciding whether to accept an undertaking, the regulator will consider a number of factors.  These include the applicant’s past performance and history of compliance with the safety Acts.  Both parties agreed that these guidelines were applicable and, as the respondent notes, they are published.  They advertise the fact that the regulator must have regard to the applicant’s past history and history of compliance with the safety Acts. 
  19. [19]
    The applicant, therefore, knew that these were things which were going to be taken into account and in those circumstances, I do not think it can be said that it was deprived of an opportunity to make submissions about them.  It is not suggested that the director’s information was inaccurate, nor did the applicant claim that, for any reason, it did not have awareness of its own compliance history.  Again, the Annexure B process involved reference, by both parties, to that history.  It cannot be thought that the applicant was not on notice as to the matters that the respondent considered relevant in this context.  It is not open to find that the failure to provide the documents identified amounted to a breach of the requirements of natural justice.
  20. [20]
    The third complaint under the heading of natural justice relates to the regulator’s reliance upon the effect of reg 208 of the Workplace Health and Safety Regulation 2011 (Qld).  In his decision, the regulator said: 

“I find it unacceptable that the control measures relied upon by (the applicant) were not sufficient to prevent workers so easily circumventing them, particularly having regard to … the guidance provided on specific and trial measures for guarding plant in the Managing Risks of Plant in the Workplace Code of Practice [2013] and the requirements of section 208 (sic) of the Work Health Safety Regulations.”

  1. [21]
    Reg 208 applies if, “guarding” is used as a measure to control risk associated with plant at a workplace.  It contemplates that which is required when a workplace system engages barriers or obstacles to movement, so as to keep people away from certain areas.  When the circumstances of the alleged contravention of duty are considered, I think it can be contemplated that reg 208 may, have had application.  And it was not suggested by the applicant that, necessarily, it was an irrelevant consideration.  The difficulty for the respondent is that nowhere in the Annexure B cycle of correspondence was it suggested that this provision may have applied.  Rather, the pronounced focus of the dialogue was on reg 222, which applies to a person with management or control of an industrial robot, or other remotely or automatically energised plant at a workplace.  I note, in passing, that reg 222 was not mentioned in the final decision.
  2. [22]
    It may also have had application - I do not need to reach any conclusion about that.  The point is that the two provisions, 208 and 222, read very differently.  It cannot be thought that anyone addressing a submission as to the adequacy of control measures that might have been required by reg 222 would necessarily cover all of the issues raised by reg 208.  The respondent pointed out that the applicant did, in the Annexure B process, make a forceful submission as to the adequacy of the measures that it did have in place and submitted that as a result, the applicant was not disadvantaged by the respondent’s reliance upon reg 208.  I was taken to parts of that correspondence which do address some issues which would, apparently, be relevant to considerations under that regulation. 
  3. [23]
    Again, the combined effect of counsel’s precision and the availability of a transcript make it unnecessary for me to detail this further.  It is also true that, as with the need for the applicant’s submission to address its compliance history, the need to address reg 208 was something about which the applicant could have informed itself.  That is, the regulation is publicly available and there is a legitimate expectation that those who are making submissions of this nature should know and understand the relevant legal provisions.
  4. [24]
    That said, it must also be allowed that this legislation can contain more than one provision that may be applicable to any given situation.  The applicant was entitled, in all of the circumstances, to focus upon the provisions identified by the regulator in correspondence and in the Annexure B process, and to focus on them to the exclusion of other provisions which might also be thought to have been relevant.
  5. [25]
    In my view, it has to be allowed that the conclusion reached by the regulator could, I emphasise, not necessarily would, but could have been different had he received submissions that directly addressed the very provisions which are now known to have had an operative effect on his decision. 
  6. [26]
    It should be said that it seems that both parties entered, what I have called the Annexure B process with energy and apparent good faith in an effort to focus attention upon the issues that would be functionally relevant.  The failure during this process to draw attention to reg 208 may well have been inadvertent, but it was an error of the kind which did rather leave the applicant wrong-footed.  The application should succeed on this basis. 
  7. [27]
    It should succeed also on the basis made under the heading of ground 2(a).  That is, complaint is made that the applicant took into account an irrelevant consideration in the making of its decision.  The aforementioned guidelines directed the regulator, when considering whether to accept the applicant’s undertaking, to consider a number of factors.  These are itemised in paragraph 6 of the guidelines which contains five distinct subparagraphs.  The first directs the regulator to consider the objective gravity of the contravention.  Another directs the regulator to consider the applicant’s past performance and history of compliance with the safety Acts.  The others do not matter for current purposes, save for a “catch-all” provision which allows the regulator to take into account any other matter which he considers relevant.  In his decision, the regulator said:

“I find the objective gravity of the matter has been assessed as a “medium/high” level which takes into consideration the nature and circumstances of the incident, the culpability of the company, the presence of any aggravating or mitigating factors relevant to the alleged offence and any prior prosecution action by the state against the company.” 

  1. [28]
    In this passage the regulator explicitly identified the things that he took into consideration when assessing the objective gravity of the matter.  These things included the “prior prosecution action by the state against the company.”  The details do not matter, but I note that there was evidence of some such action.
  2. [29]
    On no sensible construction can an assessment of “objective gravity” incorporate reference to the subjective circumstance of an individual’s prior prosecution record.  Indeed, the guidelines contemplate that the relevant concepts be the subject of distinct consideration.  There is obvious and good reason for this.  It is easy to postulate a situation in which the objective gravity of an offence might be thought low, but the contumacious nature of the offending compelled the regulator to reject the offer of an undertaking.  Conversely, it might be decided that a serious breach committed by a company or an individual with an exemplary record could appropriately be sanctioned with an acceptable - and accepted - undertaking.
  3. [30]
    To conflate the notions of objective gravity with the subjective circumstances of the alleged offender is to distort the process contemplated by the guidelines.  I do not think that the inclusion of the catch-all provision, which allows the regulator to consider any other matter thought to be relevant, relaxes the ostensible need for the items to receive separate and distinct consideration.  The plain words used by the regulator indicate that they did not receive that in this case.  It is not known how the gravity of the applicant’s alleged misconduct might have otherwise been assessed.  There are perhaps, and I emphasise perhaps, some indications in the material that it might not have been assessed as being “medium/high” but there is no reason for any conclusion to be drawn about that.  It is sufficient to note that the error of conflation that I have identified is another reason why the decision must be set aside.
  4. [31]
    Ground 3, which avers a failure to take into account a relevant consideration and ground 4, which asserts that the decision was contrary to law both complain, in different ways, that the regulator’s reasons for decision do not disclose “active engagement” with the decision-making process.  In particular, concern is expressed that it is not possible to discern real engagement with cl 2 of the guidelines.
  5. [32]
    One measure of the applicant’s argument under these grounds can be discerned from its submission that the regulator did not provide:

“Any analysis or basis for the findings (that supported)” his conclusion that the incident had an objective gravity of “medium/high.””

  1. [33]
    A man died.  I do not feel that, as the applicant would have it, I am “left to guess” at the basis for the conclusion.  The reasons also included an acknowledgement as to the quantum and the significance of the commitment reflected in the undertaking.  They accepted the applicant was willing to commit to a standard which was higher than that which was “recognised” for the purpose of compliance.  I do not think that these conclusions could have been reached in the absence of engagement with the applicant’s submissions.  Of course, the reasons could have been expressed differently and a greater degree of engagement could have been demonstrated.  There is also some infelicity of expression.  However, whilst it might not be articulated explicitly in every material particular, the basis for the decision is just clear enough, and some things can reasonably be inferred without the need for prolix explanation.
  2. [34]
    To be fair, the applicant acknowledges the danger that such an argument, as is raised under these headings, will descend in the merits review and that is what would be happening if much further consideration was given to these grounds.  It was not submitted that the decision was manifestly unreasonable.
  3. [35]
    Although in the result I have found against the applicant on these grounds, the argument was perhaps more finely balanced than my reasons to this point have indicated.  The dismissal of these grounds should not be interpreted as an invitation for obscurity to infect decisions of this nature.  There is a statutory expectation that reasons will be provided in circumstances which, as I have observed, are at least analogous to the exercise of a prosecutorial discretion and in which such reasons would not usually be provided.  It follows that the provision of reasons, pursuant to s 217 of the Act, is a solemn responsibility which is to be discharged with diligence and thoroughness.  The effect of this decision is no more than a finding that, in the particular circumstances of this case and subject to the errors found, their reasons were adequate - even if barely so. 
  4. [36]
    I have, however, found those other errors to which I have already referred and, because of them, the application must succeed.  I order that the decision of the respondent dated 6 December 2019 to reject the applicant’s written undertaking dated 19 October 2018 be quashed. 
  5. [37]
    I order that the question as to whether the undertaking should be accepted or rejected be reconsidered by the regulator according to law.
  6. [38]
    Finally, whilst I know what I am about to say is acknowledged by the lawyers, it should also be understood by Mr Harney’s family that the effect of my order is confined to the plain words in which it is expressed.  It is understood that any litigation concerning this matter might be distressing for them and this is clearly a significant matter for all involved.    It can never be guaranteed that any legal process will be free from error but it is essential, particularly when a matter is as significant as this, that to the extent that it is possible to ensure it, there should be no mistakes involved at any point in the process.  That is the sole purpose and effect of these proceedings and of the order which concludes them. 
  7. [39]
    I order that the respondent pay the applicant’s costs on the standard basis.

“A”

Annexure B

OIR EU Program Timeframes/Service Standards

The following timeframes/service standards table has been provided as a guide for the Office of Industrial Relations (OIR), the person giving an undertaking and/or their representative to ensure each phase of the EU Program is progressed and completed in a timely manner. There is an expectation that if the following timeframes/service standards cannot be met the responsible party will contact and seek to renegotiate a timeframe/service standard suitable to all parties.

EU Timeframe/Service Standards

Event

Person/Representative

OIR

Initial request for EU advisory service

After an alleged contravention or complaint and summons.

 

Introductory email regarding EU process and EU advisory service

 

7 days from initial request

Meeting between person/representative and EU Unit (EUU)

 

14 days from initial request

Notification of interest to give an undertaking

7 days from meeting with EUU

 

Acknowledge receipt of notification

 

7 days from receipt of notification of interest

Injured person(s)/Next of Kin letter

 

7 days from receipt of the notification of interest

Draft undertaking (undertaking) (Version 1) (template example at Annexure A)

21 days from receipt of the notification of interest

 

EUU review and initial feedback of undertaking (Version 1)

 

14 days from receipt of undertaking (Version 1)

Resubmission of revised undertaking (Version 2)

14 days from receipt of initial feedback

 

EUU feedback of Version 2 and any subsequent versions of undertaking

7 days from feedback

7 days from resubmission

Final version of undertaking for evaluation by EU Panel (EUP)

7 days from EUU feedback on resubmission/s

 

EUP meeting to evaluate final undertaking

 

28 days from receipt of final undertaking

EUP evaluation feedback or recommendation to accept or reject

 

7 days from EUP evaluation meeting

Re-submission of final undertaking for EUP return evaluation

14 days from receipt of EUP feedback

 

EUP return evaluation feedback or recommendation to accept or reject

 

7 days from resubmission

Submission of signed final undertaking for decision by regulator

7 days from receipt of EUP recommendation

 

Request for a decision by the regulator

 

14 days from submission of signed final undertaking

Regulator makes a decision* on whether to accept or reject

 

28 days from request of decision

Letter advising of decision and reasons for decision

 

7 days from decision being made

Publication of EU and reason for decision if accepted

 

28 days from decision

Decision* - If the regulator intends to reject, the person giving the undertaking will be provided an opportunity to make  a final submission addressing the regulators reasons for decision prior to a final decision being made. Timeframes for this process will be negotiated between OIR and the person or representative.

Close

Editorial Notes

  • Published Case Name:

    Sun Metals Corporation Pty Ltd v Craig Allen (Deputy Director-General, Office of Industrial Relations)

  • Shortened Case Name:

    Sun Metals Corporation Pty Ltd v Craig Allen (Deputy Director-General, Office of Industrial Relations)

  • MNC:

    [2020] QSC 304

  • Court:

    QSC

  • Judge(s):

    Callaghan J

  • Date:

    09 Sep 2020

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Barton v R (1980) 147 CLR 75
1 citation
Jump To
Cite 1 - (1980) 147 CLR 75
Maxwell v The Queen (1996) 184 CLR 501
1 citation
Jump To
Cite 1 - (1996) 184 CLR 501
QUBE Ports Pty Ltd v Chief Executive Department of Justice and Attorney-General[2013] 2 Qd R 260; [2012] QCA 285
1 citation
Jump To
Cite 1 - [2012] QCA 285

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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