Kirk & Anor ats WorkCover Authority of New South Wales [2010] HCA 1 (3 February 2010) .

In its first decision of 2010, the High Court has handed down a very important judgement concerning  the conduct of occupational health and safety prosecutions in New South Wales.  The High Court has rebuked both the WorkCover Authority and the Industrial Court of New South Wales  not only in  the way this case was dealt with, but also in the way others have been handled for many years.  The Appellants before the High Court were a company and its director, Mr Kirk.  The company owned a farm and as Mr Kirk had no farming experience he left the day-to-day operation to a manager.  Whilst so engaged, the manager, rather than use a formed and safe road, drove an off-road vehicle down the side of a hill, it overturned and the manager was killed.  The manager who had far more experience and skill than Mr Kirk had his behaviour described by Justice Heydon as being “inexplicably reckless.” [125]. The reporting of this case has gone beyond the normal legal journals and has been widely reported in the general press.

In the Legal Affairs section of The Australian on the 5 March 2010, it was reported that the conviction rate for Defendants charged under this Act before the Industrial Court of New South Wales has been running at 98.4%.  That rate is said to be well above the conviction rates in other States dealing with comparable workplace safety laws.

The judgment contains a combined decision of their Honours French CJ, Gummow J, Hayne J, Crennan J, Keifel J and Bell J and a single judgment  by Justice Heydon.  The tone of Justice Heydon’s judgment is such that he must have felt compelled to state his own firm views as to how both the Prosecutor and the Court had fundamentally misconstrued their respective obligations.

The combined judgment considered the nature of the offences created by the statute and the charges brought against the Appellants.  A criticism of the charges, perhaps recalling the fate of Josef K in The Trial by Kafka was that “they did not quote or identify the deficiency in the system or the measures that should have been taken to address it.” [28]. The charges lacked the relevant particularity which at common law, was said to be necessary in order to provide a valid summons or information.  What the charges did not provide was the necessary step which was to “identify the measure which the employer should have taken as relevant to the offence.”  An examination of the decision of the Industrial Court is consistent with the cases in that Court which are said to “establish the proposition that a Prosecutor is not required to demonstrate that particular measures should have been taken.” [32].

The problem for the Industrial Court on the issue regarding the provision of particulars started with the single judge decision in WorkCover Authority v Fernz Construction (1999) 91 IR 119 @132 which was more keenly  followed rather  than the more traditional criminal pleading principles  found in  the  Full Bench and trial judge’s  decisions in Boral Gas (NSW) Pty Ltd v Magill (1995) 58 IR 363;(1993) 53 IR 7.

Importantly at paragraph [34] of the combined judgment the following is stated:

“Walton J referred to earlier case law that the duty imposed upon an employer “is to be construed as meaning to guarantee, secure or make certain” and that the duty is directed at obviating “risks” to safety at the workplace.  References to guarantees, an emphasis upon general classes of risks which are to be eliminated, tend to distract attention from the requirements of an offence against ss 15 and 16.  The approach taken by the Industrial Court fails to distinguish between the content of the employer’s duty, which is generally stated, and the fact of the contravention in a particular case.  It is that fact, the act or omission of the employer, which constitutes the offence.  Of course it is necessary for an employer to identify risks present in the workplace and to address them, in order to fulfil the obligations imposed by ss 15 and 16.  It is also necessary for the Prosecutor to identify the measures that should have been taken.  If a risk was or is present, the question is – what action on the part of the employer was or is required to address it?  The answer to that question is the matter properly the subject of the charge.”

The combined judgment further criticised the judge below in that by not requiring the particular measures that should have been taken to have been pleaded, the Defendant company and its director were unable  then to  call upon the operation of the statutory defences.  Rather, the Defendant company and its director was required to show why it was not reasonably practicable to eliminate possible risks associated with the use of the off- road vehicle.

Wrongly, the operation of the statutory defence was confined by the trial judge to the issue of foreseeability [38].

The combined judgment also recognised a further error in that Mr Kirk was called by the Prosecution as a witness even though that course had been agreed by both sides [50].  This problem partly arose out of the fact that Mr Kirk was a competent witness against his company.  The fact that he was called in the case against himself was contrary to the Evidence Act, as against himself he was not competent to give evidence as a  witness for the Prosecution [51].  It was said this departure from the rules of evidence was  substantial.

The combined judgment also dealt with more technical issues dealing with jurisdictional error and the privative provision found in s 179 of the Industrial Relations Act NSW which purportedly protects decisions of the Industrial Court from appellate review.  It was said that such finality or privative provisions have been a prominent feature in the Australian legal landscape for many years; however, they are affected by constitutional considerations [93].  It was said that the supervisory role of State Supreme Courts to control the exercise of State executive and judicial power by persons and bodies other than the Supreme Court was one of the defining characteristics of such courts [98]. If it deprives State Supreme Courts of this power it would be to “create islands of power immune from supervision and restraint” and develop “distorted positions.” [99]. Importantly, legislation that would “take from a State Supreme Court power to grant relief on account of jurisdictional error is beyond State legislative power.” [100].Clearly and loudly it has been stated that  the Industrial Court is a court sub-ordinate and  subject to the supervisory jurisdiction of the Supreme Court of New South Wales. [102].

Justice Heydon agreed with the substance of the reasons stated in the combined judgment but separately provided a  forceful  decision.  Perhaps more accurately he fashioned  two  lightning bolts hurled Thor-like  in the direction of the WorkCover Authority and the Industrial Court.  The fact that the Prosecution called Mr Kirk as its own witness in a criminal case was in defiance of the prohibition to do so in s 17(2) of the Evidence Act , therefore the trial was conducted not in accordance with the rules of evidence  [114]. This failure to follow the rules of evidence amounted to jurisdictional error  [115]. Sub- section 17(2) of the Evidence Act was an absolutely fundamental rule underpinning the whole accusatorial and adversarial system of criminal trial in New South Wales [115].

One of the major attacks he made was on an issue that the trial judge had found as crucial.  That matter was that Mr Kirk “Did not supervise the daily activities of the employees or contractors working on the farm.”  To that Justice Heydon said,

“The suggestion that the owners of farms are obliged to conduct daily supervision of employees and contractors – even the owners of relatively small farms like Mr Kirk’s – is, with respect, an astonishing one.  A great many farms in Australia are owned by natural persons who do not reside on or near them, and a great many other farms are owned by corporations, the chief executive officers of which do not reside on or near them — (it) being offensive to a fundamental aspect to the rule of law on the ground that it imposed obligations which were impossible to comply with and burdens which were impossible to bear.”  [120].

Justice Heydon then went on to describe the next striking aspect of the proceedings before the Full Bench of the Industrial Court.  [121]. The Full Bench described the Appellants’ earlier application to the Court of Appeal as “forum shopping.” He said it was inappropriate to describe the conduct of litigants who, aggrieved by the decision of a court of New South Wales attempted to remedy it by making an application to the Court of Appeal  [121].  This amounted to “an assertion of exclusive dominion over the fields within its jurisdiction and did not recognise that the Industrial Court was controllable by the Court of Appeal and that the Industrial Court was bound, both its trial judges and Full Bench to follow the law as stated by the Court of Appeal.  [121].  ….its merits should not have been the subject of pejorative language.”  [121].  This led in turn to Justice Heydon stating how sometimes the  legislature elects to create separate or specialist courts to determine particular types of litigation.  [122]. He said some specialist courts “tend to lose touch with the traditions, standards and mores of the wider profession and judiciary.”  And, that they become over-enthusiastic about vindicating the purposes for which they were set up and exult that purpose above all other considerations. At [122] He cited Walker on the Rule of Law (1988)( at p 35) as follows:

“History teaches us to be suspicious of specialist courts and tribunals of all descriptions.  They are usually established precisely because proceedings conducted in accordance with normal judicial standards of fairness are not producing the outcomes that the government wants.  From the Court of Star Chamber to the multitude of military courts and revolutionary tribunals in our own century, this lesson has been repeated time and time again.”

This judgment comes at a difficult time for the Industrial Court and provides much guidance to the WorkCover Authority of New South Wales.  The difficult time for the Industrial Court is that it is a court and a tribunal under siege. It has been slowly reduced in its scope by state legislative change and more profoundly  by the Howard government’s WorkChoices Legislation. The effect of which has been enhanced by the State government and the passing late last year of  the Industrial Relations (Commonwealth Powers) Act 2009) which transferred the rest of  NSW employers to the national system save for employers in the public sector and local government. Importantly, the harmonisation of occupational health and safety laws is something which will come about in the next few years. Justice Heydon’s criticism of the Court not being one where people with wide criminal law experience are to be found may be a telling reason why the occupational health and safety jurisdiction may be transferred to one of the ordinary courts such as the District or Supreme Courts or both.  The Industrial Court has at least 12 to 18 months to recognise its position in the hierarchy of courts in New South Wales and to  be of good behaviour should it wish to retain this important part of its jurisdiction .

The WorkCover Authority’s role in the prosecutions and  in turn the Department of Mineral Resources and indeed secretaries of trade  unions   with the advent of harmonisation of occupational health and safety laws  need to be  calmly considered as to  whether it is appropriate  they  continue to have the right to prosecute.  The right to prosecute may better be given to the Director of Public Prosecutions, an independent prosecutorial body perhaps better placed and more used to prosecuting breaches of the criminal law.  Rumour has it that the WorkCover Authority is reviewing all its current investigations and prosecutions . To overcome its past failures and the erroneous application of the safety laws as revealed by the High Court, the  WorkCover Authority  ought have a close consideration of closed files where the have been bad convictions and sentences imposed particularly against individuals .The provisions of the Crimes (Appeal and Review ) Act 2001 , may assist the Authority to show true remorse and provide an avenue for some of the unfairly treated personal defendants to have their convictions quashed and  receive a pardon .