Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: The GEO Group Australia Pty Limited t/as Junee Correctional Centre v WorkCover Authority of New South Wales [2012] NSWCA 150
• Hearing dates: 17 May 2012
• Decision date: 24 May 2012
• Before: Beazley JA at [1]; Whealy JA at [2]; Meagher JA at [3]

Decision

(1) Further amended summons dismissed.

(2) The applicant to pay the costs of the first respondent.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: INDUSTRIAL LAW - industrial safety - statutory duty of manager of correctional centre to protect inmate from exposure to risks - breach of duty - Occupational Health and Safety Act 2000, s 8(2); ADMINISTRATIVE LAW - jurisdictional error - adequacy of charge in court attendance notice - whether sufficiently identified act or omission which constituted offence
• Legislation Cited: Industrial Relations Act 1996; Occupational Health and Safety Act 1983; Occupational Health and Safety Act 2000; Supreme Court Act 1970
• Cases Cited: Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; (2012) 86 ALJR 459; John Holland Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 338; (2010) 202 IR 82; John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42; (1987) 163 CLR 508; Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531; Knaggs v Director of Public Prosecutions (NSW) [2007] NSWCA 83; (2007) 170 A Crim R 366; Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672; Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117; Thiess Pty Ltd and Hochtief AG v Industrial Court of New South Wales [2010] NSWCA 252; (2010) 78 NSWLR 94
• Category: Principal judgment
• Parties: The GEO Group Australia Pty Limited t/as Junee Correctional Centre (Applicant); WorkCover Authority of New South Wales (First Respondent); Industrial Court of New South Wales (Second Respondent); Local Court of New South Wales (Third Respondent)
• Representation: Counsel: A Moses SC, Y Shariff (Applicant); S Crawshaw SC, D B O'Neil (First Respondent); Submitting appearance (Second Respondent); Submitting appearance (Third Respondent); Solicitors: Berry Buddle Wilkins Lawyers (Applicant); DLA Piper (First Respondent); I V Knight, Crown Solicitor (Second Respondent); I V Knight, Crown Solicitor (Third Respondent)
• File Number(s): 2011/247966

Decision under appeal

• Before: Magistrate G J T Hart; Boland P, Walton VP, Staff J
• File Number(s): 20173945/06/2; IRC 267 of 2008

Judgment

1 BEAZLEY JA: I agree with Meagher JA.

2 WHEALY JA: I agree with Meagher JA.

3 MEAGHER JA: The applicant (GEO Group) is responsible for the management of the Junee Correctional Centre. On 7 December 2004 an inmate of that centre was using a machine called a Chalmers and Corners Brake Press to bend sheets of metal. In the course of operating the machine, the inmate inadvertently activated the die of the Press whilst his right hand was in the vicinity of its strike zone, causing an amputation injury to his right thumb. That injury would not have occurred if a guard, which had previously been on the machine, had not been removed.

4 Following that incident, the applicant was convicted and fined by the Chief Industrial Magistrate's Court for a contravention of s 8(2) of the Occupational Health and Safety Act 2000 (the 2000 OH&S Act). The issue in this proceeding is whether the court attendance notice, in providing particulars of that offence, sufficiently identified the act or omission alleged to constitute the contravening conduct.

5 The applicant contends that it did not and that in dealing with the charge in the absence of that having occurred, the Chief Industrial Magistrate's Court acted beyond jurisdiction, having made a jurisdictional error of the same kind as the first of the errors identified in Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 at [74]. The first respondent (the WorkCover Authority) maintains that a fair and sensible reading of that notice identifies the omission alleged as the failure to replace the guard which had been removed.

6 The Brake Press was supplied to the applicant by a partnership conducted by a Mr and Mrs Suggate under the name Durabuilt. The arrangement between the applicant and Durabuilt was that Durabuilt would provide the Brake Press and other machinery and sheet metal to be used in the manufacture of garden sheds and the applicant would supply labour to operate that machinery. Under those arrangements Durabuilt was required to supply and maintain machinery that was compliant with relevant occupational health and safety standards.

7 Section 8(2) provides:

"8(2) An employer must ensure that people (other than the employees of the employer) are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work."

A person who contravenes that provision, "whether by act or omission", is guilty of an offence: s 12.

8 The proceedings prosecuting the offence in the Chief Industrial Magistrate's Court were required to be commenced by the issue and filing of a court attendance notice: the relevant statutory provisions are set out in Knaggs v Director of Public Prosecutions (NSW) [2007] NSWCA 83; (2007) 170 A Crim R 366 at [17]-[24]. The notice was issued in May 2006. Its description of the offence followed the terms of s 8(2). In addition, it gave a time, date and place for the offence and in its "short particulars" stated:

"[At approximately 1.30pm on 7 December 2004], the Defendant, being an employer, failed to ensure that people not in its employment, including [the injured person], were not exposed to risks to their health and safety arising from the conduct of the Defendant's undertaking whilst at the Defendant's place of work in that whilst the injured worker was in the process of bending sheets of steel using a Chalmers and Corners Brake Press (Press) in the course of his normal duties, he inadvertently activated the Press, causing the tip of his right thumb to be severed by the dies of the Press, by reason that:

1. The Defendant failed to maintain adequate guarding of the Press in that the guarding was removed and not replaced on the Press;"

9 The first particular alleged a separate contravention of s 8(2). There were two other particulars which alleged separate contraventions. The inclusion of more than one contravention in the charge of a single offence is permitted by s 31 of the 2000 OH&S Act: John Holland Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 338; (2010) 202 IR 82 at [67].

10 On 7 February 2008 the applicant was found guilty of a contravention of s 8(2) and on 11 August 2009 was fined $55,000.

11 The applicant appealed on a number of grounds to the Full Bench of the Industrial Court under s 105(3) of the OH&S Act and s 197 of the Industrial Relations Act 1996. On 3 March 2011 that appeal was allowed in part: [2011] NSWIRComm 14. However, the ground contending that the first particular given in relation to the offence charged was bad at law was rejected. The matter was referred back to the Chief Industrial Magistrate's Court for re-sentencing in the light of that decision. On 18 November 2011 that court reimposed a fine of $55,000. The applicant appealed from that decision. On 27 April 2012, that appeal was dismissed: [2012] NSWIRComm 34.

12 The applicant invokes the supervisory jurisdiction of this Court under s 69 of the Supreme Court Act 1970. It seeks orders in the nature of certiorari quashing the conviction and sentencing orders of the Chief Industrial Magistrate's Court and the orders of the Full Bench of the Industrial Court upholding the conviction and sentence. Orders of the latter kind were made in Kirk: at [108], [110]. It was not argued by the first respondent that if we conclude that there was jurisdictional error on the part of the Chief Industrial Magistrate's Court, orders should not also be made quashing the orders of the Full Bench. The basis upon which such orders might be made is discussed in Thiess Pty Ltd and Hochtief AG v Industrial Court of New South Wales [2010] NSWCA 252; (2010) 78 NSWLR 94 at [71]-[77], [79], [81]-[84].

13 Section 8(2) is contravened when an employer fails by some act or omission to ensure that a person other than an employee of the employer is not exposed to risks to his or her health or safety arising from specified conduct at the employer's place of work. Section 12 provides that a person who contravenes "whether by act or omission" a provision such as s 8(2) is guilty of an offence and s 107(1) provides that, except when a notifiable work incident occurs, the time for instituting proceedings to prosecute such an offence is fixed by reference to the time that the "act or omission alleged to constitute the offence" occurred. The equivalent provisions in the Occupational Health and Safety Act 1983 (the 1983 Act) are discussed in Kirk at [12].

14 As was also noted in Kirk at [10], the obligation imposed on the employer by a provision such as s 8(2) is expressed in terms personal to the employer and not expressed in terms of a standard to take reasonable care or to do what is reasonably practicable. That obligation is non-delegable in the sense that it is not sufficient compliance with it to delegate performance to a competent contractor or other third party: Kirk at [10] referring to Kondis v State Transport Authority [1984] HCA 61; (1984) 154 CLR 672 at 680, 694. Subsections 8(1) and 8(2) of the 2000 OH&S Act and ss 15 and 16 of the 1983 Act were in different terms from those in occupational health and safety legislation in other States directed to implementing measures for the health and safety of employees: Kirk at [16]. That other legislation typically imposes obligations upon an employer which are limited to doing what is "reasonably practicable" or "practicable". Legislation in those terms was considered in two cases referred to by the applicant in support of its argument, Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; (2012) 86 ALJR 459 and Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117.

15 In Kirk it was held that a statement of the charge in respect of an offence of contravening a provision such as s 8(2) must specify the act or omission said to constitute the contravention. In relation to such a provision, the act or omission is one which it is alleged should have been taken to obviate an identified risk to a person's health or safety. In the case of an omission, what must be identified is the measure or measures which it is alleged should have been taken: Kirk at [14], [15], [19], [28], [34]; John Holland at [32], [33].

16 The document which invokes the jurisdiction of the Chief Magistrate's Court is the court attendance notice which must be considered as a whole. It specifies the date of the offence as 7 December 2004. The risk of injury to which it alleges the inmate was exposed by reason of the applicant's alleged failure is the risk of injury whilst operating the Press. That risk materialised. It is alleged that the worker was exposed to that risk because the applicant "failed to maintain adequate guarding of the Press". The respect in which it so failed is alleged to be that the guarding "was removed and not replaced". At the time the offence was alleged to have been committed the guarding had been removed. It follows that the respect in which the notice alleged that the applicant had failed to maintain adequate guarding was that the removed guarding had not been "replaced". Thus, the measure which the offence charged was a failure or omission to replace "the guarding".

17 Looked at more broadly, the court attendance notice charges that the applicant failed to maintain adequate guarding of the Press for reason that it omitted to replace the guarding after it had been removed. The fact that the guarding to be replaced was only described in terms of being "adequate" and not otherwise specified did not mean that the measure which was required to be taken was not sufficiently identified: John Holland at [77]-[79], [118].

18 The applicant puts its argument that the notice does not identify any relevant act or omission in two ways. First, it says that when formulating the particulars of the charge, the Prosecutor was required to take into account the circumstances in which the alleged offence occurred which here relevantly included the applicant's arrangements with Mr Suggate of Durabuilt that he would supply and maintain machinery compliant with the relevant safety standards. Accordingly, it says that the Prosecutor had to identify the measures which the applicant should have taken to "avoid the risk" of Mr Suggate removing the guarding of the Press.

19 That argument ignores the terms of the charge and the risk of injury to which it alleges the inmate was exposed by reason of the applicant's alleged failure. That risk was the risk of injury whilst using the Press. It was not the risk that someone such as Mr Suggate might authorise modifications to the Press with the result that the guarding would be removed. The measures which the applicant contends should have been identified are not directed to the risk described in the charge and for that reason there was no requirement to identify them. Furthermore, this first argument does not take account of the absolute terms in which the personal obligation of the employer is expressed. The measures to be identified are respects in which there was a failure to comply with the absolute obligation to ensure that the identified risk did not eventuate. The matters to which the applicant refers are circumstances which do not address that subject but which may have been relevant to whether the applicant had a defence under s 28.

20 Secondly, the applicant says that the measures identified as necessary to undertake must, in the circumstances, be reasonably practicable. In support of that proposition it refers to what is said in Kirk at [16]-[19]. Nothing that is said in those paragraphs supports that proposition. Reference is made in [16] to the scheme of the legislation under the 1983 Act which is similar to the scheme of the 2000 OH&S Act. Section 53(a) provided that it was a defence to an alleged contravention of a provision in similar terms to s 8(2) if the employer proved that it was not reasonably practicable to comply with that provision. As is pointed out in Kirk at [18], the measures which may be identified in the charge are measures which may have guaranteed against the risk in question eventuating, notwithstanding that they may not have been reasonably practicable. All that is required is that the act or omission be identified so that the availability of the defences may then be evaluated by reference to the alleged acts or omissions. In support of this second argument, the applicant made reference to statements in the judgments in Baiada Poultry and Laing O'Rourke. Those statements, however, address legislation which required that, as part of its case, the Prosecutor establish that identified measures, which it was "reasonably practicable" or "practicable" to take, were not taken. Section 8(2) is not in those terms.

21 The only question for this Court is whether the court attendance notice sufficiently identified the act or omission which was the foundation of the charge of a contravention of s 8(2): John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42; (1987) 163 CLR 508 at 519-520; Kirk at [29]. In my view it did. The omission charged by the first particular was the failure to replace the guard on the Press which had earlier been removed.

22 For these reasons, the amended summons should be dismissed and the applicant ordered to pay the costs of the first respondent.

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Decision last updated: 25 May 2012