Inspector Moore v Blacktown City Council [2003] NSWIRComm 47 (9 April 2003)

Last Updated: 22 May 2003

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Inspector Moore v Blacktown City Council [2003] NSWIRComm 47

FILE NUMBER(S): IRC 2089

HEARING DATE(S): 25/10/2002

DECISION DATE: 09/04/2003

PARTIES:

APPELLANT

Inspector James Moore

RESPONDENT

Blacktown City Council

JUDGMENT OF: Walton J Vice-President Boland J Haylen J

LEGAL REPRESENTATIVES

APPELLANT

Mr R Reitano of counsel

Solicitor: Ms R Parmegiani

WorkCover Legal Services Branch

RESPONDENT

Mr N J Williams SC

Solicitor: Mr W Murphy

Bartier Perry Solicitors

CASES CITED: ABB Power Transmission Pty Ltd v WorkCover Authority (New South Wales) (Inspector Wilson) (unreported, Fisher P, Bauer and Hungerford JJ, CT96/1215, 2 May 1997)

Abdullah Al-Shennag v Bankstown City Council Civic Services Group (2002) 118 IR 138

Abigroup Contractors Pty Limited v WorkCover Authority of New South Wales (Inspector Maltby) (2001) 112 IR 139

Bultitude v Grice Constructions Pty Ltd [2002] 115 IR 59

Coffey Engineering Pty Ltd v Legge (2001) 105 IR 234

Commission for Children and Young People v "A" [2003] NSWIRComm 6

Construction, Forestry, Mining and Energy Union and ors v Australian Industrial Relations Commission and anor (1998) 89 FCR 200

D & R Commercial Pty Ltd v Flood (2002) 113 IR 344

De Simone Consulting Pty Ltd v Ison (No 2) [2000] NSWIRComm 269

Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority (NSW) (Inspector Ch'ng) (1999) 90 IR 432

Electric Light and Power Supply Corp. Ltd v Electricity Commission of NSW (1956) 94 CLR 554

Green v Brown (2002) 116 IR 21

Hilton Hotels of Australia Limited v Pasovska [2003] NSWIRComm 17

Hornsby Shire Council v Hunt (2002) 115 IR 461

Inspector Davies v Prospect Electricity (unreported, Fisher P, CT747, 9 Nov 1992)

Integral Energy v Allen (2001) 107 IR 456

King v State Bank of New South Wales [2002] NSWIRComm 353

Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380

Little v Commissioner of Police (No 2) (2002) 112 IR 212

Llandilo Staircases Pty Ltd v WorkCover Authority of New South Wales (Inspector Parsons (2001) 104 IR 204

Mitchforce v Starkey and anor [2002] 117 IR 122

Moore v Newcastle City Council (1997) 77 IR 210

Ozwide Real Estate Pty Ltd v Department of Industrial Relations (Inspector Gibson) (2000) 103 IR 177

Perrott v Xcellenet Australia Limited (1998) 84 IR 255

Ridge Consolidated Pty Ltd v WorkCover Authority of New South Wales (Inspector Mauger) (2000) 100 IR 156

Riley v Australian Grader Hire Pty Ltd (2001) 103 IR 143

State Rail Authority Firefighters Award 2001, Re [2002] NSWIRComm 159

Strathfield Group Ltd v Hall [2002] NSWIRComm 373

Weisser v Spur Group Pty Limited [2003] NSWIRComm 79

WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Limited [2002] NSWIRComm 316

WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Limited (1995) 100 IR 248

WorkCover Authority of New South Wales v Coffey Engineering Pty Ltd (No 2) 110 IR 447

WorkCover Authority of New South Wales v TRW [2001] NSWIRComm 52

WorkCover Authority of NSW (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 49 NSWLR 700

LEGISLATION CITED: Industrial Relations Act 1996 s188 s191 s197 s197A

Industrial Relations Commission Rules 1996 r 89(5)

Occupational Health and Safety Act 1983 s16(1) s53(a)

Supreme Court Rules 1970 Part 51 Rule 21(1)

JUDGMENT:

- 1 -

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

IN COURT SESSION

CORAM: Walton J, Vice-President

Boland J

Haylen J

Wednesday, 9 April 2003

Matter No IRC 2089 of 2002

INSPECTOR JAMES MOORE v BLACKTOWN CITY COUNCIL

Application by WorkCover Authority for leave to appeal and appeal against a decision of Chief Industrial Magistrate Miller given on 25.3.02 in CIM Matter No. 0001211/01/02

JUDGMENT OF WALTON, J AND BOLAND, J

[2003] NSWIRComm 47

1 This is an application for leave to appeal and appeal pursuant to s 197A of the Industrial Relations Act 1996 against a decision of Chief Industrial Magistrate Mr G Miller ("the CIM") given on 25 March 2002.

2 At first instance Blacktown City Council ("the defendant") was charged with one offence involving a breach of section 16(1) of the Occupational Health and Safety Act 1983. The charge was that the defendant, on 22 December 1998 at Aquilina Reserve, Eastern Road, Doonside in the State of New South Wales, being an employer, failed to ensure that persons not in its employment were not exposed to risks to their health and safety arising from the conduct of its undertaking whilst they were at its place of work.

3 The Information and Summons stated that:

On the said date, at the said site, the defendant, being an employer, failed to ensure that persons not in its employment were not exposed to risks to their health and safety arising from the conduct of its undertaking at its place of work, in that,

1. the defendant failed to provide and maintain a safe system of work, to persons not in its employment, for the removal of concrete modules at its place of work.

2. the defendant failed to formulate a work method statement to address the risks, to persons not in its employment, in the removal of concrete modules at its place of work.

3. the defendant failed to provide adequate instructions to persons not in its employment, for the removal of concrete modules at its place of work.

4. the defendant failed to provide adequate supervision, to persons not in its employment, for the removal of concrete modules at its place of work.

The decision under appeal

4 The defendant had entered into a contract with Graham Edward Kirk, trading as Graham’s Towing Service to have concrete modules at Aquilina Reserve removed in preparation for work relating to the construction of the baseball and softball centre for the Sydney Olympics. Mr Kirk employed Bernard Geerdink, a 20 year old tilt truck driver and operator who worked at Aquilina Reserve on the day in question. The events leading to the prosecution of the defendant were described by the CIM as follows:

On 22 December 1998 Mr Geerdink was seriously injured when he was struck on the head by a steel chain which snapped as he was attempting to place a concrete module, being a water tank, approximately 3 metres in diameter by 3 metres in height weighing approximately 8 tonnes at the site onto the back of a tilt tow truck. Mr Geerdink had attached a chain to 2 metal lugs located on either side at the base of the water tank. He then attempted to load the tank onto the tilt tray tow truck. Unfortunately, where Mr Geerdink had backed the truck the base was below ground level.

Mr Geerdink was injured when the lug, on the south eastern side of the tank, broke, causing the chain to whip and strike Mr Geerdink on the head. As a direct result of this accident Mr Geerdink received severe brain damage. He has no independent recollection of the incident or events leading up to the incident.

Mr Geerdink commenced employment with Mr Kirk on 21 October 1998 as a truck and tilt tray driver/operator. In his application for employment he indicated that he had tilt tray experience. Upon commencement of employment with Mr Kirk, Mr Geerdink operated the tilt truck with Mr Kirk supervising for a week. At the conclusion of the week Mr Kirk deemed Mr Geerdink competent to operate the truck unsupervised.

Mr Kim Johnson the defendant's Parks Improvement Officer, requested by telephone on 18 December 1998 Mr Kirk to remove the concrete modules at the site on 22 December 1998. Mr Kirk had previously done similar work for the council. Accordingly, according to Mr Kirk he gave Mr Geerdink the job details. Mr Geerdink had never previously attempted this task. Mr Kirk said he discussed the job with Mr Geerdink on a number of occasions and advised him to put a long chain completely around the tank at the base, run the chain through 4D shackles located on the base of the tanks and to keep the chains low at the base of the tank to prevent the chain riding up and attached the D shackles to lugs protruding from the base and to dig a trench across the front of the module so the tail gate of the truck was below the base of the module. Mr Kirk said it was basic that the thing to be moved had to clear the base of the truck's tilt tray.

Mr Kirk said he advised the defendant that Mr Geerdink was new on the job and requested the council to give Mr Geerdink assistance. Mr Kirk said his understanding was that Mr Geerdink was to be supervised by employees of the council. He said he was assured by Kim Johnson that Mr Geerdink would be alright as other fellows were on the job. Mr Kirk said he assumed that Mr Geerdink would be supervised.

When Mr Geerdink arrived at the site he was asked by Mr Johnson to remove the four modules, being 3 toilets and a water tank. Mr Johnson said he showed Mr Geerdink the modules to be moved and Mr Geerdink backup up to the first toilet module in order to load it. This module was rectangular and had a lug on each of the four sides located centrally on each side. When removing the first module Mr Johnson advised Mr Geerdink that the tilt truck tray was a metre short from the base of the tank and had to moved (sic) it closer. Mr Geerdink moved the tray closer. Mr Johnson said that Mr Geerdink attached a chain to two of the lugs one on each side of this module. Mr Johnson stayed with Mr Geerdink whilst he loaded the first module, secured it in place, and drove it to the location where it was to be unloaded. Mr Johnson watched Mr Geerdink unload the first module.

Mr Johnson said at the completion of the moving of the first module he showed Mr Geerdink the water tank and the location to which it was to be moved. Mr Johnson said he showed Mr Geerdink the angle to reverse the truck into to load the water module, an angle at which the tilt tray would be below the base of the water tank.

Mr Johnson said he did not give Mr Geerdink direct instructions on how to move the modules or the water tank because Graham's Towing Service had moved these types of modules in the past. Mr Johnson was not aware that Mr Geerdink was a new employee of Graham's Towing Service or whether Mr Geerdink had done this type of work before.

Prior to leaving the site Mr Johnson advised Mr Geerdink that if he required any assistance in backing of the truck to the tanks to seek assistance from other contractors on site. Mr Johnson said before commencement of the work he had insured that all tanks were clear of any rubbish and that there was clear access to each of the tanks. He had stripped the toilet blocks and drained the water tanks in question to make them lighter.

5 The CIM found:

The cause of the accident was the tilt tray catching the base of the tank and with the pressure applied against the tank created by the winch and the failure of the tank to slide one of the lugs failed. Mr Johnson said his observations of Mr Geerdink was he appeared to be competent and knew what he was doing. Mr Johnson said he had selected Graham’s Towing Service before and based on their experience in moving these modules was one of the reasons why he had selected them. Mr Johnson added in his conversation with Mr Kirk that nothing was said to him concerning the operator. He said the method of connecting the chains to the lugs adopted on the day was the method shown to him. Mr Johnson added he conducted no risk assessment because he only did the Council’s course on risk management in 1997 and that was the first he had become aware of risk assessments.

With the benefit of hindsight if the recommendations of the risk assessment carried out after the accident were in place prior to the accident the accident would not have occurred. But that does not necessarily mean that the system in use on the day in question was an unsafe system.

The operator used the lugs for the purpose intended by the manufacturer. There was no evidence that it was safer to use the chain around the tank rather than apply the chain to the lug as the chain or linkages may equally have failed with the pressure applied to the chain by the base of the tank being caught below the tilt tray. The direct failure in this case appears to be operator error in that if accepting Mr Kirk’s evidence that no trench was dug in front of the base of the tank and if accepting Mr Johnson’s evidence the driver bought the tray in at an angle contrary to that indicated to him by Mr Johnson.

...

As indicated before the cause of the accident in my view was “operator failure”, as Mr Kirk stated it is so obvious to be basic that if moving an object without wheels that the object clears the lip of the tray. It is not a breach of the Act for the defendant to rely on a contractor operating its specialist equipment. It creates hazards when non-specialists give specialists advice.

In regard to the absence of a helmet certainly in the circumstances (with the benefit of hindsight) the presence of a helmet may well have prevented the severity of the injuries to Mr Geerdink. But at the same time the task at hand did not involve overhead work, there was no one working above. There was no machinery working nearby requiring the wearing of a helmet, there is no industry standard or guideline requiring helmets to be worn by tow truck operators.

In regard to the particular concerning instructions and supervision, no doubt the accident would not have occurred if Mr Johnson had not left to do other tasks and stayed and directly supervised Mr Geerdink but this raises questions of practicability of a supervisor standing over a worker full-time with a supervisor supervising a supervisor. Mr Johnson was there for the initial implementation of the job and watched Mr Geerdink and when satisfied that Mr Geerdink appeared confident, advising him of the angle to approach the water tank and making available assistance if required in reversing the truck Mr Johnson left the site. It was not a complex method required for the performance of the work at hand.

6 The CIM concluded as follows:

It seems to me that in all the circumstances that the prosecutor has discharged its onus in establishing failure as particularised but equally the defendant has discharged its civil onus in establishing a defence under section 53 of the Act paragraph (a) that it was not reasonably practicable for the defendant to comply with the provisions of this Act the breach of which constituted the offence.

The relevant legislation

7 The prosecution was brought pursuant to s 16(1) of the Occupational Health and Safety Act which provides:

16. Employers and self-employed persons to ensure health and safety of persons other than employees at places of work

(1) Every employer shall ensure that persons not in the employer's employment 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.

8 Section 53 of the statute provides as follows:

53. Defence

It shall be a defence to any proceedings against a person for an offence against this Act or the regulations for the person to prove that:

(a) it was not reasonably practicable for the person to comply with the provision of this Act or the regulations the breach of which constituted the offence, or

(b) the commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision.

9 This appeal is brought pursuant to s 197A of the Industrial Relations Act which relevantly states:

197A. Appeals against acquittals in proceedings for offences against occupational health and safety legislation

(1) This section applies to the decision of a member of the Commission or of a Local Court constituted by an Industrial or other Magistrate to acquit a person of an offence against the occupational health and safety legislation.

(2) This section applies to such a decision only if proceedings for the offence were instituted by an inspector appointed under that legislation or with the consent of the Minister or other officer authorised by that legislation to give such a consent.

(3) An appeal lies to the Full Bench of the Commission in Court Session against a decision to which this section applies. The appeal is not limited to a question of law.

(4) The appeal may be made by the Attorney General, the Minister, the Director of Public Prosecutions or the prosecutor in the proceedings in which the decision appealed against was made.

...

(6) Section 191 applies to an appeal under this section.

(7) On an appeal under this section, the Full Bench may:

(a) dismiss the appeal, or

(b) set aside the decision appealed against and make a decision in the matter in accordance with law (including the conviction and sentence of the defendant for the offence charged).

(8) If the Full Bench on appeal convicts the defendant of the offence, the maximum penalty that the Full Bench may impose for the offence is the maximum penalty that the court that acquitted the defendant could have imposed for the offence.

(9) This section has effect despite anything to the contrary in section 196 or 197.

(10) In this section:

"occupational health and safety legislation" means the Occupational Health and Safety Act 2000, the regulations under that Act and the associated occupational health and safety legislation within the meaning of that Act.

...

10 Sections 188 and 191 of the Industrial Relations Act are also relevant. Section 188 provides:

188. Appeals to Full Bench by leave only

(1) An appeal to a Full Bench of the Commission under this Part may be made only with the leave of the Full Bench.

(2) The Full Bench is to grant leave to appeal if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted.

(3) The Full Bench may deal with an application for leave to appeal separately and without conducting a hearing into the merits of the appeal.

(4) This section does not apply to an appeal made by the Minister.

11 Section 191 of the Industrial Relations Act expressly applies to an appeal by the prosecution by virtue of s 197A(6). Section 191 is in these terms:

191. Nature of appeal

(1) An appeal to a Full Bench of the Commission under this Part is not by way of a new hearing and is to be determined on the evidence and material adduced in relation to the decision appealed against.

(2) However, the Full Bench may, by leave, receive further evidence if it considers that special grounds exist or if the evidence concerns matters occurring after the decision appealed against.

(3) To avoid doubt, the Full Bench cannot merely substitute its decision on the matter, but must follow the principles applying to appeals from discretionary decisions, whether or not further evidence is received.

Grounds of appeal

12 The grounds of appeal were stated to be as follows:

1) His Worship erred in the application of section 53, OHS Act, in finding that it was not reasonably practicable for the defendant to comply with the provisions of the OHS Act the breach of which constituted the offence.

2) His Worship erred in finding that the requirements of section 53 of the OHS Act had been made out.

3) His Worship erred in finding that it was not reasonably practicable for the defendant to provide adequate supervision to persons not in its employ for the removal of concrete modules at its place of work.

4) His Worship erred in finding that it was not reasonably practicable for the defendant to provide adequate instructions to persons not in its employment for the removal of concrete modules at its place of work.

5) His Worship erred in finding that it was not reasonably practicable for the defendant to provide and maintain a safe system of work to persons not in its employment for the removal of concrete modules at its place of work.

6) His Worship erred in finding that it was not reasonably practicable for the defendant to formulate a work method statement to assess the risk to persons not in its employment in the removal of concrete modules at its place of work.

7) His Worship’s finding, that a defence was made out pursuant to section 53 of the OHS Act, was, in all the circumstances, unreasonable.

8) His Worship erred in finding that the evidence and circumstances before him raised the question of practicability of a supervisor standing over a worker full-time with a supervisor supervising a supervisor.

Leave to appeal

13 The question of leave to appeal may be dealt with in relatively short compass. The principles applicable to the granting of leave to appeal were considered in detail in Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 at 381-382. Knowles has since been followed or referred to with approval in many appeal judgments and decisions. See, for example, De Simone Consulting Pty Ltd v Ison (No 2) [2000] NSWIRComm 269 at [5]; Ridge Consolidated Pty Ltd v WorkCover Authority of New South Wales (Inspector Mauger) (2000) 100 IR 156 at 164; Ozwide Real Estate Pty Ltd v Department of Industrial Relations (Inspector Gibson) (2000) 103 IR 177 at 181; Riley v Australian Grader Hire Pty Ltd (2001) 103 IR 143 at 144; Llandilo Staircases Pty Ltd v WorkCover Authority of New South Wales (Inspector Parsons (2001) 104 IR 204 at 206; Coffey Engineering Pty Ltd v Legge (2001) 105 IR 234 at 234; Integral Energy v Allen (2001) 107 IR 456 at 461; Abigroup Contractors Pty Limited v WorkCover Authority of New South Wales (Inspector Maltby) (2001) 112 IR 139 at 139; Little v Commissioner of Police (No 2) (2002) 112 IR 212 at 235; D & R Commercial Pty Ltd v Flood (2002) 113 IR 344; Hornsby Shire Council v Hunt (2002) 115 IR 461 at 468; Green v Brown (2002) 116 IR 21 at 48; WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Limited [2002] NSWIRComm 316; Mitchforce v Starkey (2002) 117 IR 122 at 132; Strathfield Group Ltd v Hall [2002] NSWIRComm 373 at [36]; Abdullah Al-Shennag v Bankstown City Council Civic Services Group (2002) 118 IR 138 at 139; State Rail Authority Firefighters Award 2001, Re [2002] NSWIRComm 159 at [12]; King v State Bank of New South Wales [2002] NSWIRComm 353 at [52] - [55]; Commission for Children and Young People v "A" [2003] NSWIRComm 6 at [43]; Hilton Hotels of Australia Limited v Pasovska [2003] NSWIRComm 17 at [28]. The principles laid down in Knowles have thus been well settled for some years.

14 In Knowles the Full Bench said, at 381-382:

We have determined that the Commission should not grant leave to appeal pursuant to s188 of the Act. In doing so we do not propose to depart from the general policy and practice of the Commission not to give reasons for the refusal of leave. However, we do propose to make some observations as to the conduct of appeals where the grant of leave is required which are apposite in the present matter.

Firstly, as a Full Bench of this Commission noted in Perrott v Xcellenet Australia Limited (1998) 84 IR 255 at 265, leave will not lightly or automatically be granted. The statutory scheme makes clear that the legislature intended to restrict access to appeals to appropriate cases meeting the public interest test stated in s188(2). These principles are also applicable to cases involving questions of jurisdiction. The raising of a jurisdictional issue by an appellant does not, of itself, establish a basis for the grant of leave; each case having to be judged against the statutory criterion. The Commission should have regard to the nature of the jurisdictional issue and whether there is a demonstrable case that the Commission has exceeded or failed to exercise its jurisdiction. Clearly, this consideration will involve a question as to whether the decision appealed from was inconsistent with established law and principle.

Secondly, it will be relevant to the grant of leave to consider, amongst other factors, whether the appellant has brought, as in this matter, a substantially different case in the appeal. This is not to say that the admission of new evidence per se would have this result, but that the bringing of, in substance, a new or materially different case on appeal may constitute a basis for the refusal of an application for leave to appeal.

In Caltex Petroleum Pty Ltd v Harmer (unreported, Matter No. IRC 2576 of 1999, 16 November 1999), the Full Bench stated:

As to the second matter averted to above, we consider that leave would ordinarily, in the absence of changed circumstances, be refused where an appellant raises arguments or presses issues on the appeal which were not squarely raised at first instance; irrespective of whether the relief sought or the outcome contended for by the appellant remains the same or substantially the same...

We agree with the principle so stated.

Thirdly, it will be relevant to consider whether an appeal raises substantial and important considerations. The issues raised by an appellant as to the public interest considerations under s188(2) need to be evaluated in the light of the nature of the issues raised in the appeal, including whether the appeal raises substantial issues of principle or law or has wider implications for the jurisprudence of this Commission, including whether the decision has widespread practical application.

15 The present case raises the important questions of the nature of the defence available to a defendant under s 53 of the Occupational Health and Safety Act. We have concluded that the CIM committed appellable error in finding that the respondent had satisfied the burden imposed by s 53(a). The erroneous findings of the CIM raise issues of general importance. Accordingly, leave to appeal is granted. We would add that the nature of an appeal under section 197A of the Industrial Relations Act, being an appeal from an acquittal to a charge brought under the Occupational Health and Safety Act, amply demonstrates why a public interest test is appropriate when considering whether leave to appeal should be granted in such cases pursuant to s188 of the Industrial Relations Act. We note, however, that leave to appeal would usually be granted where an offence has been held to be made out under ss15 or 16 of the Occupational Health and Safety Act and an acquittal is granted as a result of a misapplication of s53 of that Act: see the decision of Wright J, President in WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Limited [2002] NSWIRComm 316 at [4].

16 The appellant submitted that s 188(2) of the Act required the Full Bench to grant leave to appeal where the matter is of such importance that in the public interest leave should be granted but "does not limit that to the only basis upon which leave can or should be granted." In this respect reliance was placed upon the decision of the Full Federal Court in Construction, Forestry, Mining and Energy Union and Others v Australian Industrial Relations Commission (1998) 89 FCR 200.

17 Upon proper analysis, this submission represents an alternative basis for the grant of leave. However, it is unnecessary to further consider that submission as we have concluded that leave should be granted in accordance with the principles in Knowles which, as we have previously observed, states the principles applicable to the consideration of applications for leave to appeal in this jurisdiction (although the decision does not, of itself, exhaustively deal with the scope of 'public interest' issues which may be relevant to the determination of applications under s 188 of the Industrial Relations Act, 1996).

Consideration

18 As we have already observed, this appeal involves the question of whether the Chief Industrial Magistrate erred in holding that the statutory defence under s 53(a) of the Act had been made out. In his decision the CIM said "the defendant has discharged its civil onus in establishing a defence under section 53 of the Act paragraph (a) that it was not reasonably practicable for the defendant to comply with the provisions of this Act the breach of which constituted the offence."

19 However, the matter is complicated somewhat by an alternative submission by the respondent. On the one hand, the respondent made submissions supporting the correctness of the CIM's decision relating to s 53, but in the alternative contended that his Worship did not find that the offence had been made out. It was submitted that when read in context, his Worship's decision should more properly be seen as an acceptance that the defence was made out, and it was not, therefore, strictly necessary to reach a concluded view that the offence had been made out.

20 It is impossible to accept this proposition in the light of the clear statement by the CIM that "the prosecutor has discharged its onus in establishing failure as particularised". Moreover, a s 53 defence does not come into play unless and until the prosecutor establishes to the requisite standard that an offence as charged has been made out: see ABB Power Transmission Pty Ltd v WorkCover Authority (New South Wales) (Inspector Wilson) (unreported, Fisher P, Bauer and Hungerford JJ, CT96/1215, 2 May 1997 at 7); WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Limited [2002] NSWIRComm 316 at par[38] per Walton J, Vice President (with whom Wright J, President agreed). His Worship could not have considered s 53(a) unless, firstly, he had concluded that the offence had been made out.

21 However, by way of a notice of contention the respondent contended that, if his Worship did conclude that the offence had been made out (subject to the defence in s 53), then his Worship fell into error in light of the findings that he had made.

22 We note that the respondent was required to file a notice of contention having regard to the combined operation of rule 89(5) of the Industrial Relations Commission Rules 1996 and Part 51 rule 21 of the Supreme Court Rules 1970: Weisser v Spur Group Pty Limited [2003] NSWIRComm 79 at [51].

23 Part 51 rule 21(1) of the Supreme Court Rules 1970 provides:

21. Notice of contention

(1) Where a respondent to an appeal wishes to contend that the decision of the court below should be affirmed on grounds other than those relied upon by the court below, but does not seek a discharge or variation of any part of the decision of the court below, the respondent need not file a notice of cross-appeal but he or she must, within 14 days after service on him or her of the notice of appeal with or without appointment, file and serve on each other interested party notice of that contention stating briefly but specifically, the grounds relied upon in support of the contention.

24 Given the respondent's notice of contention, it is appropriate to firstly consider whether the offence was made out. If so, consideration then needs to be given to the CIM's findings regarding s 53(a) of the Act. The first particular of the charge was that:

the defendant failed to provide and maintain a safe system of work, to persons not in its employment, for the removal of concrete modules at its place of work.

25 The CIM did not make any specific finding regarding the alleged failure to provide and maintain a safe system of work, except to say "the prosecutor had discharged its onus in establishing failure as particularised ...". His Worship did say, however:

With the benefit of hindsight if the recommendations of the risk assessment carried out after the accident were in place prior to the accident the accident would not have occurred. But that does not necessarily mean that the system in use on the day in question was an unsafe system.

26 His Worship went on to say in his decision that the cause of the accident was "operator failure".

27 Whilst the CIM's findings in relation to the failure to provide and maintain a safe system of work give rise to some degree of confusion, we consider there was such a failure. The system of work in re-locating the concrete modules involved reversing the truck up to the module, lowering the rear of the tilt tray to the ground close to the tank, attaching chains to two steel lugs at each side of the module and winching the tank onto the tray.

28 Winching a wheeled vehicle onto the tilt tray of the truck - which appears to be what the truck and its winching apparatus are designed to do - is one thing. An unsupervised, one-person operation that involves winching an 8 tonne concrete water tank onto the truck seems to us to be another thing altogether. A concrete water tank may have been in the one location for years in a position that may well have become waterlogged. It is reasonably foreseeable that the condition of the lugs might deteriorate and/or that the tank in some way might become embedded in the ground. We note that there were four lugs at the base of the tanks and these were to be used when the tank is to be lifted by crane, which seems to us to be a far safer method of loading than being dragged onto a truck by winch. We note this operation appears to have been undertaken on about 20 occasions in the past although there was no detail in the evidence about the truck used or the load that was winched. We also note the manufacturer of the concrete tank was not aware of any incident where the lugs had snapped. None of this, however, makes the operation safe.

29 Turning to what occurred on 22 December 1998, the evidence was that Mr Johnson insisted he was not told by Mr Kirk, the truck owner, that Mr Geerdink was inexperienced and required supervision and his Worship accepted that evidence. However, although Mr Johnson said that Mr Geerdink appeared to be competent when Mr Geerdink began the task of removing the first toilet module, Mr Johnson said in his evidence that the tilt tray was a metre short from the base of the tank and Mr Johnson had to advise him to move it closer.

30 This should have rung the alarm bells for Mr Johnson about the extent of Mr Geerdink's experience, which was non-existent in relation to the loading of concrete modules. There being such a gap between the bottom of the toilet module and the edge of the truck's tilt tray it was likely that the bottom of the module would dig into the dirt and become caught on the edge of the tilt tray as the module was dragged by the winch.

31 Nevertheless, Mr Johnson did not inquire of Mr Geerdink whether he had previous experience in loading concrete modules and there is no evidence that Mr Johnson explained why the tilt tray had to be placed as close as possible and at a point lower than the bottom of the module. Moreover, there was no evidence, even before the loading of the toilet modules commenced, that Mr Johnson had satisfied himself that the equipment Mr Geerdink was to use was in good working condition and appropriate for the task at hand. In this regard the CIM said, "It is not a breach of the Act for the defendant to rely on a contractor operating its specialist equipment. It creates hazards when non-specialists give specialists advice." In the context of an employer's obligations under s 16(1) of the Act, we consider it is unhelpful and inappropriate to draw a distinction between specialists and non-specialists. We consider that it is incumbent on employers, regardless of the extent of their specialist knowledge or skill, to satisfy themselves as far as reasonably possible that, indeed, the contractor had the necessary skill and experience to carry out the work for which he or she had been contracted and the tools and equipment to be used were up to the task.

32 Whilst Mr Johnson said in his evidence that the procedure for loading the water tank was the same as the toilet modules, we do not consider this was so. From the photographs in evidence it is apparent that the toilet modules were sitting on a raised bed of sand and there was no indication of any trench having to be dug to ensure the bottom of the modules did not catch on the edge of the tilt tray. Thus the toilet modules slid off the raised bed of sand onto the tilt tray with there being sufficient clearance to avoid the bottom of the modules digging into the ground and catching on the edge of the tilt tray.

33 In relation to the concrete water tank, however, Mr Johnson said he had told Mr Geerdink to reverse his truck into the tank at a certain angle. The reason for this was because at that particular angle the bottom of the tank was clear of the surrounding ground whereas at the angle Mr Geerdink had reversed the truck, the bottom of the tank was below ground. There was no evidence that Mr Geerdink was told the reason why the truck had to be reversed at a given angle or that if he reversed at a different angle he was to ensure the bottom of the tank cleared the edge of the tilt tray by digging a trench across the length of the diameter of the tank. It is apparent that, not knowing why he should reverse at a particular angle, Mr Geerdink simply reversed at an angle that suited him and then adopted the procedure he had followed in relation to the toilet modules. The problem was that unlike the toilet modules, at the angle presented by the tilt tray, the bottom of the water tank was below ground level. There was no other person present to advise Mr Geerdink of this as he operated the winch controls. Consequently, the tank became caught on the edge of the tilt tray and caused the lug to snap off, releasing the chain which flew back and hit Mr Geerdink in the head.

34 Against the background of the respondent's duty to ensure persons not in its employment are not exposed to risks to their health and safety, it is evident that the system of work for re-locating the concrete water tank was unsafe.

35 The second particular was that:

the defendant failed to formulate a work method statement to address the risks, to persons not in its employment, in the removal of concrete modules at its place of work.

36 The CIM found that Mr Johnson had not conducted a risk assessment "because he only did the Council's course on risk management in 1997 and that was the first he had become aware of risk assessments." His Worship also found that "With the benefit of hindsight if the recommendations of the risk assessment carried out after the accident were in place prior to the accident the accident would not have occurred."

37 In fact, Mr Johnson had carried out an inspection of the concrete modules on the morning of the accident and in doing so had emptied the water tank, disconnected the power, checked the lugs and obviously determined the angle at which Mr Geerdink's truck needed to be reversed into the tank so that the bottom of the tank was above the edge of the tilt tray. Thus, it could not be said that Mr Johnson made no assessment of risk or failed to formulate a plan to avoid risk. What can be said, however, is that the plan to avoid the risk was inadequate in its content and in its carrying out. Had there been an adequate risk assessment undertaken the risk to safety could have been avoided.

38 The third and fourth particulars were that:

the defendant failed to provide adequate instructions to persons not in its employment, for the removal of concrete modules at its place of work.

and

the defendant failed to provide adequate supervision, to persons not in its employment, for the removal of concrete modules at its place of work.

39 In relation to these particulars the CIM found that, "no doubt the accident would not have occurred if Mr Johnson had not left to do other tasks and stayed and directly supervised Mr Geerdink." We consider his Worship was correct. If Mr Johnson had been present he would have undoubtedly seen the risk to safety and instructed Mr Geerdink how to avoid it.

40 The respondent submitted that Mr Geerdink had been instructed to reverse into the water tank at a particular angle. This was so the bottom of the tank would be above the edge of the tilt tray once it was positioned on the ground. Mr Geerdink did not adhere to that simple instruction and it was submitted, therefore, the respondent should not be held accountable. Mr Geerdink, however, was not told the reason for backing up at a particular angle and it is apparent the rationale for so doing escaped him. The instruction was not adequate in the circumstances. If a person is told to do something in a certain way but they are not told why and it is not obvious to them why a particular method has to be adopted, there is the very real risk they will not follow the instruction. We consider this was the case here; it was not obvious to Mr Geerdink why he should approach the water tank from a particular angle when that was not an issue in relation to the toilet modules.

41 Even if it could be said that Mr Geerdink was aware of the reason for backing up to the water tank at a particular angle but disobeyed that instruction out of haste, carelessness or lack of common sense, that does not relieve the respondent of liability: see Riley v Australian Grader Hire Pty Ltd (2001) 103 IR 143 [at 15]; WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Limited (1995) 100 IR 248 at 257; WorkCover Authority of NSW (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 49 NSWLR 700 at 722; WorkCover Authority of New South Wales v TRW [2001] NSWIRComm 52 at pars [13] and [14].

42 As to the issue of supervision, Mr Johnson left Mr Geerdink to complete the task of re-locating the other three toilet modules and the water tank and said to him that if he needed any assistance in backing up the truck he could seek assistance from other contractors on the site. Did the failure to supervise create a risk to health and safety? Clearly it did. In the absence of supervision, coupled with a lack of instruction and experience, the bottom of the tank became caught on the edge of the tilt tray of the truck creating a risk to the winch operator.

Section 53 Defence

43 The offence, as the CIM found, was made out against the respondent. The question now arises on appeal whether the statutory defence under s 53(a) of the Act was made out. The principles to be applied in relation to s 53(a) were set out in the judgment of the Full Bench in Bultitude v Grice Constructions Pty Ltd [2002] NSWIRComm 20 and more recently in WorkCover Authority of New South Wales (Inspector Patton) v Fletcher Constructions Australia Limited. The test in this case, therefore, is what was reasonably practicable in order to comply with s 16(1) of the Occupational Health and Safety Act so as to avoid the risk to health and safety?

44 The onus, on the civil standard, is on the respondent to prove that it was not reasonably practicable to comply with s 16(1). We consider that the respondent failed to discharge this onus and in holding that it did, the CIM erred.

45 As to providing and maintaining a safe system of work, there was no evidence that it was not reasonably practicable to do so. The safe system could have been to use a truck with a crane to lift the module on to the tray of the vehicle or to adopt a system based on the risk assessment carried out after the incident. There is nothing impracticable about either. The respondent submitted this was all well and good in hindsight. But it was reasonably foreseeable, in our opinion, that in the absence of an adequate risk assessment, adequate instructions and adequate supervision that a system of work involving one person without previous experience winching an 8 tonne concrete tank along the ground where it was necessary to ensure the bottom of the tank was above the edge of the tilt tray, could create a risk to safety. It is no answer to say that the respondent was not aware of Mr Geerdink's lack of experience. That should have been apparent on his first approach to the toilet module and, in any event, an adequate risk assessment would have prompted an inquiry from the respondent.

46 As to the risk assessment, it was again contended by the respondent that because a risk assessment undertaken after an accident identifies means by which it could have been avoided, it was wrong to assert that it was reasonably practicable to avoid the risk that led to the accident. This it was submitted, was a flawed use of hindsight. Again, however, the particular having been made out, namely, that the risk assessment was inadequate, the question is whether an adequate risk assessment was reasonably practicable? There was no evidence that it was not reasonably practicable.

47 As to instruction and supervision, it was submitted for the respondent that it was "impossible" or uneconomical" to have a supervisor supervising each contractor 24 hours a day, seven days a week. If, in circumstances to which s 16(1) may apply, a person is not to be directly supervised, the employer must ensure that person has adequate knowledge, skill and training to perform the task at hand and is properly briefed and trained on the risks to health and safety that may arise. In Inspector Davies v Prospect Electricity (unreported, Fisher P, CT747, 9 Nov 1992), where a linesman and lineworker were affected by an electrical explosion, one fatally, when they worked on high voltage wires without awaiting the issue of an access permit signifying that the job was isolated, Fisher CJ said in response the prosecution's allegation as to lack of supervision:

It is a version of the infinite regression of supervision argument, which if accepted would mean that every well trained tradesman should be supervised or observed by a superior trained tradesman, and he seemingly in turn should be supervised himself by someone even higher.

The 'lack of instruction' submission relied upon founders on the same practical argument. No fully trained and experienced tradesman needs to be told to cross the road safely, or to be accompanied by a supervisor to ensure that he does so. Similarly, a thoroughly trained and qualified tradesman, employed after extensive instruction, the adequacy of which again is not criticised, does not need to be advised not to grasp an unprotected wire energised by 11KCV, nor in the real world, should supervisors be on stand by in case he does.

...

... that the sole cause of the accident was that through some inexplicable inadvertence the two men did not attend to a safe system of work which they had undoubtedly been thoroughly taught and for many years had consistently followed, which failure led directly to a fatal accident which was in the full sense of the word, an accident. No other explanation would appear to be available.

48 This was not the case here. Mr Geerdink had no previous experience loading concrete modules; he was not adequately instructed on how the tilt tray was to be placed vis a vis the water tank and why this was important; he was not briefed on the risks to his health and safety; and, in the absence of that lack of instruction and briefing he was not supervised. We note the evidence that Mr Johnson informed Mr Geerdink that if he needed any assistance in backing up the truck he could seek assistance from other contractors on the site. Apart from the fact that this was an inadequate arrangement in relation to supervision given the responsibility on the Council under s 16(1), it reveals that Mr Johnson had, in fact, recognised the possibility that Mr Geerdink might require assistance because he might not be able to carry out the task single-handedly. This serves to underline the failure in respect of the provision of a safe system of work.

49 As we have already observed, it was submitted for the respondent that it was impracticable to have contractors under constant supervision. But if Mr Geerdink had the necessary experience and was properly instructed, it may not have been necessary to have him under constant supervision. However, in the absence of experience and instruction and a proper awareness of the risks to health and safety it was clearly necessary for Mr Geerdink to have been under supervision. The respondent has failed to discharge the onus upon it that, in circumstances where it was necessary for there to have been direct supervision of Mr Geerdink, it was not reasonably practicable to provide that supervision.

50 We conclude that his Worship incorrectly applied the provisions of s 53(a). We accordingly make the following orders:

1. Leave to appeal is granted.

2. The appeal is upheld.

3. His Worship's decision dismissing the information is set aside.

4. We find the charge brought against the respondent proven.

5. The proceedings are stood over to a date to be fixed for the

parties to make submissions with respect to penalty.

JUDGMENT OF HAYLEN J

51 I have had the benefit of reading the reasons for judgment prepared by the Vice-President, Walton J and Boland J and I agree that the appeal should be allowed for the reasons they state and I concur in the orders they propose.

In view of a particular issue raised in relation to the question of leave to appeal and the construction of s 188 of the Act, I propose to address these matters separately.

52 It was common ground that the appellant required leave to proceed with its appeal (WorkCover Authority of New South Wales v Coffey Engineering Pty Ltd (No 2) [2001] NSWIRComm 319; 110 IR 447 at [13]; Bultitude v Grice Constructions Pty Ltd [2002] 115 IR 59 at paras [59 ] - [65]).

I accept and concur with the approach to the construction and operation of s 197A set out in Bultitude.

53 The respondent submitted that the exceptional nature of an appeal against an acquittal on the merits was reflected in the high threshold the applicant must satisfy for the grant of leave. Leave is to be granted if, in the opinion of the Full Bench, "the matter is of such importance that, in the public interest, leave should be granted" (s 188(2)).

54 During the course of the argument on appeal an issue arose as to the construction and application of s 188, Industrial Relations Act 1996. Section 188, insofar as it is relevant, provides as follows:

(1) An appeal to the Full Bench of the Commission under this Part may be made only with the leave of the Full Bench.

(2) The Full Bench is to grant leave to appeal if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted.

55 The respondent submits that the principles applicable to the granting of leave were referred to by a Full Bench in D & R Commercial Pty Ltd v Flood (2002) 113 IR 344 at [31], as being "settled by the Full Bench in Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 at 381".

56 The Full Bench in Flood, stated:

[32] In Knowles the Full Bench (at 381) held:

... First, as a Full Bench of this Commission noted in Perrott v Excellenet Australia Ltd (1998) 84 IR 255 at 265, leave will not lightly or automatically be granted. The statutory scheme makes clear the legislature intended to restrict access to appeal to appropriate cases meeting the public interest test stated in Section 188(2). These principles are also applicable to cases involving questions of jurisdiction. The raising of a jurisdictional issue by an appellant does not, of itself, establish a basis for the grant of leave; each case having to be judged against the statutory criterion ...

Secondly, it will be relevant to the grant of leave to consider, amongst other factors, whether the appellant has brought, as in this matter, a substantially different case in the appeal. ...

Thirdly, it will be relevant to consider whether an appeal raises substantial and important considerations. The issues raised by an appellant as to the public interest considerations under Section 188(2) need to be evaluated in the light of the nature of the issues raised in the appeal, including whether the appeal raises substantial issues of principle or law or has wider implications for the jurisprudence of this Commission, including whether the decision has widespread practical application

57 In summary, the position for the respondent was that in order to obtain leave to appeal the test of importance and public interest required by s 188(2) must be met. It was submitted that there was no other, separate, power to grant leave. This was said to be settled and beyond doubt in light of the judgments in Flood and Knowles.

58 In the course of argument, attention was drawn to the judgment of the Full Federal Court in Construction, Forestry, Mining and Energy Union and ors v Australian Industrial Relations Commission and anor (1998) 89 FCR 200. The ultimate orders in that case were overturned in the High Court, however, the approach to the appeals provision of the Workplace Relations Act 1996 (s 45) was unaffected by that decision. The Federal Court judgment traced the history of Commonwealth appeal provisions under the Conciliation and Arbitration Act, the Industrial Relations Act and finally the Workplace Relations Act. For many years s 35 of the Conciliation and Arbitration Act 1904 provided that an appeal did not lie unless, in the opinion of the Commission, the matter was of such importance that, in the public interest, an appeal should lie. The appeal provisions of the Industrial Relations Act 1988 in s 45 were continued in 1996 under the renamed Workplace Relations Act. Under both statutory regimes s 45, relevantly, provided:

(1) Subject to this Act, an appeal lies to a Full Bench, with the leave of the Full Bench, against: (a variety of decisions and orders are then nominated).

(2) A Full Bench shall grant leave to appeal under sub-section (1), if, in its opinion, the matter is of such importance that, in the public interest, leave should be granted.

In relation to this provision the Full Court, in CFMEU at p 220, stated:

It can be seen from Section 45(1) that an appeal lies to a Full Bench only with the leave of the Full Bench. Section 45(1) confers a power on the Full Bench to grant leave and Section 45(2) requires a Full Bench to grant leave if it forms the opinion that the matter is of such importance that in the public interest leave should be granted. The formation of that opinion dictates that leave be granted. Section 45(2) does not prescribe the test for the grant of leave. It requires the Full Bench to grant leave, if the Full Bench forms the requisite opinion. The conventional considerations for the granting of leave, including whether, in all the circumstances, the decision is attended with sufficient doubt to warrant it being reconsidered by the Full Bench, or whether substantial injustice would result if leave were refused, supposing the decision to be wrong, are not replaced by a different test: rather, Section 45(2) provides a further, and obligatory, basis for the grant of leave.

59 The provisions of s 45(1) and (2) of the Workplace Relations Act 1996 are strikingly similar to the provisions found in s 188(1) and (2) of the New South Wales Industrial Relations Act 1996. On their face, both require leave to appeal and both provisions require that leave be granted if the test of importance is met.

60 It is of interest to consider the statutory predecessors to the present

s 188 of the New South Wales Act. Under the Industrial Arbitration Act 1940, for many years, s 14(8)(b) provided as follows:

From an order, award, ruling, decision or contract determination made by a Member of the Commission sitting alone, an appeal shall only lie to the Commission in Court Session -

(i) where any question of jurisdiction is involved; or

(ii) by leave of the Commission in Court Session, where the Commission in Court Session is of the opinion that the matter raised on appeal is of such importance that an appeal should lie.

This is a distinctly different and, in some respects, narrower appeal provision to that found in s 188.

61 The enactment of the Industrial Relations Act 1991 (NSW) introduced a wholesale review and alteration to the structure and approach of the 1940 Act. The appeal provisions in Chapter 4, Part 4, effectively gave a right of appeal in specified circumstances. The structure and terms of the appeal provisions of the 1940 Act requiring leave were removed.

62 In my view the structure of s 188 is such that, on its proper construction, it is to be approached in a similar way to that expounded by the Federal Court in CFMEU, notwithstanding the relatively minor differences in language between the Commonwealth and State statutes. Having regard to the substance of each section, both provisions require leave to appeal and both provisions require that leave be granted if the test of importance is met. Neither provision restricts the granting of leave to questions of such importance that, in the public interest, leave should be granted. This approach is the result, ultimately, of the application of accepted canons of statutory construction and giving the words used their proper meaning: the terms of the legislation is clear and so, therefore, is the duty of the Court: Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority (NSW) (Inspector Ch'ng) (1999) 90 IR 432 at 445).

63 In the 1940 Act, an appeal would "only" lie to the Commission in Court Session by leave (other than questions involving jurisdiction) if the matter was of such importance that an appeal should lie. The 1996 Act provides that an appeal may be made "only" with the leave of the Full Bench: moreover, the 1996 Act does not make importance and public interest the "only" test but, rather, requires leave to be granted if importance and public interest are established.

That is not to say that leave will be granted lightly. That point has been emphasised in numerous cases including Flood and Knowles. For example, an issue of jurisdiction alone may not be sufficient. Further, nothing in this approach detracts in any way from the analysis of Federal and State industrial legislation conducted by the Full Bench in Moore v Newcastle City Council (1997) 77 IR 210.

64 The conclusions just expressed do not, on a proper understanding of the cases, overturn what has been so recently said by Full Benches in Flood and Knowles. The Full Bench in Knowles specifically adopted Perrott v Excellenet in relation to the limitation on appeals. It is instructive to return to that judgment. Perrott involved a consideration of extra-territoriality in the context of an application made under s 106 of the Act. On appeal, the respondent submitted that leave to appeal should not be granted. Decisions of the Federal Commission, made over a number of years, were cited for the following propositions:

(a) the mere fact that a question of jurisdiction was raised on appeal did not lead, necessarily, to the conclusion that leave should be granted;

(b) the test was whether the matter was of such importance that, in the public interest, leave should be granted;

(c) leave was not a formality and should be considered rigorously to ensure the standing and purpose of first instance proceedings were not diminished by unwarranted access to a Full Bench.

Those general approaches were supported by an analysis of the case on appeal designed to demonstrate: that the appeal concerned the contract of only one person; that the appeal essentially concerned questions of fact by applying settled law and principle; and, the conclusions reached at first instance were proper and reasonably open on the evidence.

65 In dealing with the submission that leave could only be granted where importance and public interest were established, the Full Bench at (265 - 266) stated:

We reject the approach urged by the respondents to the matter of leave to appeal. The authorities relied upon concerned the question of leave under other legislation. We are by no means persuaded that the approach adopted in the Act to the matter of leave is conceptually consistent with that other legislation, legislation which, in any event, was that of the Commonwealth Parliament. That distinctions exist between the Commonwealth and the New South Wales State system is clear: see Moore v Newcastle City Council; Re the Civic Theatre Newcastle (1997) 77 IR 210 at 219 at 225; it cannot therefore be said that the Act is relevantly in pari materia with the Commonwealth legislation as to leave to appeal.

Were we to adopt the respondents' approach, it would rarely be open for an appeal to be pursued in a case brought under section 106 of the Act. The section is, after all, concerned, inter alia, with the rights of individuals under contracts which require the performance of work. Such applications typically involve limited parties. If the test to permit an appeal required the factual circumstances to involve more than the individuals concerned in a particular contractual arrangement then a right of appeal would rarely arise. In our view, that is not how the question of leave to appeal under the Act should be approached. That is not to say that leave will lightly or automatically be granted by the Full Bench; a proper case must be made out. We are of the view, for the reasons which follow, that this is a case in which leave to appeal should be granted.

It is apparent that the Full Bench rejected the proposition that in order to obtain leave to appeal, the applicant had to demonstrate that the matter was of such importance that in the public interest, leave should be granted.

Further, it is to be noted that the propositions relied on by the respondents in Perrott referred to decisions made under both the Conciliation and Arbitration Act and the Industrial Relations Act, without distinction: the different statutory provisions were not referred to. It is also significant that the Federal Court decided the CFMEU case just under a month after judgment was delivered in Perrott. The approach in both cases is consistent, although there is no suggestion that the Federal Court considered, or was aware of, the decision in Perrott.

66 It is also relevant that s 188 is a general appeal provision which governs a variety of decisions, orders and determinations. The unlikelihood that an appeal provision would now be limited to circumstances where only issues of general importance would enable leave to be granted is clearly demonstrated by the analysis of the Full Bench in Perrott. Reaching this conclusion as to the proper construction of s 188(1) and (2) does not mean, that in relation to appeals, a less rigorous approach to leave must operate. As the Full Federal Court stated in the CFMEU case, the conventional considerations for the granting of leave, include whether, in all the circumstances, the decision is attended with sufficient doubt to warrant it being considered by the Full Bench, or whether substantial injustice would result if leave were refused, remain as important considerations properly limiting the availability of appeal. Similarly, in relation to appeals from discretionary judgments, the principles laid down in House v King remain relevant and operate as a significant obstacle to appellate review. The search for error in a material respect will remain the touchstone in many cases for the grant of leave. As noted by the Full Bench in Mitchforce v Starkey and anor [2002] 117 IR 122 at [27] the appellant bears the burden of making out a proper case for leave.

67 The respondent submitted, as noted earlier, that the exceptional nature of an appeal against an acquittal on the merits was reflected in the high threshold provided by s 188(2).

However, as pointed out by the Full Bench in Bultitude, the provision of an appeal in s 197A against an acquittal in proceedings for an offence against occupational health and safety legislation is nevertheless subject to the general appeal provisions of the Act, including s 188. Such an approach is not unusual and where adopted the legislature is taken to have accepted the appeal jurisdiction of the nominated Court with all its usual incidents (Electric Light and Power Supply Corp. Ltd v Electricity Commission of NSW (1956) 94 CLR 554). Section 188 not only applies to s 197A appeals, but a variety of other decisions and determinations - it is therefore not appropriate to construe its provisions by reference to only one aspect of the types of appeals to which it applies.

68 Applying this construction of s 188 to the present appeal, I am of the opinion that the CIM committed appellable error in finding that the respondent had satisfied the burden imposed by s 53(a). In Bultitude the Full Court, at [67] stated:

The requirements for a successful s 53 defence was set out in Kellogg (No 1) as follows (at 259):

To establish a defence under s 53, the defendant must prove, to a civil standard, either that it was not reasonably practicable to comply with the Act or that the commission of the offence was due to causes over which the defendant had no control and against the happening of which it was impracticable to make provision; see Drake at 48-49; Sydney City Council v Coulson (1987) 21 IR 477 at 487; and Italo Australian Construction Pty Ltd v Parkes (1988) 24 IR 428 at 431.

69 The CIM found that the prosecution had discharged its criminal onus in establishing failure as particularised but proceeded to find that the defendant had discharged its civil onus of establishing a defence under s 53(a). There was no evidence referred to by the CIM proving that it was not reasonably practicable for the defendant to comply with the provisions of the Act - the CIM conducted no analysis and referred to no evidence by which this defence was established but merely asserted the conclusion. This approach constitutes demonstrable error. The CIM failed to apply the provisions of s 53(a). On this basis, in my view, leave to appeal should be granted.

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LAST UPDATED: 10/04/2003