CLEANAWAY OPERATIONS PTY LTD v PHILIP HANEL [2025] SASCA 112

On Appeal from SUPREME COURT OF SOUTH AUSTRALIA (THE HONOURABLE CHIEF JUSTICE KOURAKIS) SCCRM-21-167 Appellant: CLEANAWAY OPERATIONS PTY LTD Counsel: MR A YOUNG KC WITH MR G LIVERMORE SC AND MR D OLDFIELD - Solicitor: WORLDSAFE LAWYERS Respondent: PHILIP HANEL Counsel: MR M HOWARD SC WITH MR J HANNEBERY KC AND MS J POOLE - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (CTH) Hearing Date/s: 17/11/2022, further submissions delivered on 28 and 30 November 2022, and on 10 and 31 May 2024 File No/s: SCCRM-22-228 A SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. CLEANAWAY OPERATIONS PTY LTD v HANEL [2025] SASCA 112 Judgment of the Court of Appeal (The Honourable President Livesey, the Honourable Justice Lovell and the Honourable Justice Bleby) 2 October 2025 INDUSTRIAL LAW - WORK HEALTH AND SAFETY - DUTIES AND LIABILITIES INDUSTRIAL LAW - WORK HEALTH AND SAFETY - GENERALLY - APPEAL AND REVIEW MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT Appeal against conviction. On 18 August 2014, a vacuum truck owned by the appellant, Cleanaway Operations Pty Ltd (Cleanaway), collided with vehicles at the intersection at the bottom of the South Eastern Freeway, where Cross Road, Glen Osmond Road and Portrush Road meet at Myrtle Bank. The collision caused the death of two people and serious injuries to the driver Mr Hicks, an employee of Cleanaway, and another person. The respondent, an inspector employed by Comcare, commenced a prosecution against Cleanaway, raising eight counts. Each concerned breaches of duties under the Work Health and Safety Act 2011 (Cth) (the WHS Act) which it was said were owed by Cleanaway to its employees or to others. Following a trial before a magistrate, Cleanaway was convicted on all eight counts. On appeal to a single judge, six of the eight convictions were set aside. -- 1 of 75 -- Cleanaway appealed against the two remaining convictions, being counts 1 and 2. Count 1 concerned breaches of duties owed by Cleanaway to its employees. Count 2 concerned breaches of duties owed by Cleanaway to persons other than its employees. Cleanaway broadly contended that: 1. The Magistrates Court of South Australia did not have jurisdiction to hear and determine the charges laid against Cleanaway by the respondent because the respondent lacked lawful authority to issue the Complaint commencing the criminal proceeding. 2. The appeal judge erred in upholding the convictions on charges 1 and 2 on a basis not alleged in the charge sheet or opened. 3. The prosecution failed to prove the allegation that Mr Hicks’ competence to drive all vehicles he might be called upon to drive had not been properly determined. 4. The finding of guilt on charges 1 and 2 was based on an alleged reasonably practicable measure that was not alleged in the charges and on a basis that was not, in any event, open on the evidence. 5. The appeal judge erred in failing to apply the test of causation imposed by s 32(c) of the WHS Act. Held (the Court), granting leave to appeal and dismissing the appeal: 1. Whether one views the case as depending on the combination of the function identified in s 152(h) of the WHS Act supported by the powers conferred by ss 153 and 230(1)(b), and in addition or alternatively on the function in s 230 supported by the power in s 153, in each case read together with the power of delegation in s 154, the respondent was authorised in writing to commence these proceedings. [128] 2. It has not been demonstrated that the appeal judge erred in his approach to the pleaded counts or his appreciation of the course of the trial, including that Cleanaway was not relevantly prejudiced in any material way by the convictions based on the risks posed by traveling in a vacuum truck with manual transmission down the South Eastern Freeway. [180] 3. It was open to the appeal judge to find that Mr Hicks’ competence had not been properly determined. [195]-[199] 4. The measures pleaded against Cleanaway were not taken and, on the evidence, it was reasonably practicable for them to have been taken. [246]-[247] 5. In the circumstances of this case, it has not been shown that the appeal judge erred in fact or law concerning the “exposure element” in s 32(c) of the WHS Act. [307]-[310] Acts Interpretation Act 1901 (Cth) ss 13, 15AA, 34AA, 34AB, 46; Australian Securities Commission Act 1989 (Cth) s 11; Corporations Law s 597; Crimes Act 1914 (Cth) ss 4H, 13; Criminal Procedure Act 1921 (SA) s 158; Independent Commissioner Against Corruption Act 2012 (SA) s 7; Judiciary Act 1903 (Cth) s 68; Magistrates Court Act 1991 (SA) s 42; Occupational Health and Safety Act 2004 (Vic) (Vic); Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 68, 70, 73B, 74; Supreme Court Act 1935 (SA) s 50; Work Health and Safety Act 2011 (Cth) ss 3, 4, 14, 15, 16, 17, 18, 19, 20, 31, 32, 33, 152, 153, 154, 155, 156, 163, 165, 171, 230; Work Health and Safety Act 2011 (NSW) (NSW); Work Health and Safety Bill 2011 (Cth), referred to. Bunnings Forest Products Pty Ltd v Shepherd [1998] WASCA 119; Burns Philp & Co Ltd v Murphy (1993) 29 NSWLR 723; Carmichael v Commonwealth of Australia [2022] VSC 364; Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676; Grasso Consulting Engineers Pty Ltd v SafeWork NSW [2021] NSWCCA 288; HD Projects Pty Ltd v SafeWork NSW [2022] NSWCCA 212; John Holland Pty Ltd v Wallis [2022] WASC 358; Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; Mercantile Mutual Life Insurance Co v Australian Securities Commission (1993) 40 FCR 409; Wallis v John Holland Pty Ltd [2024] WASCA 26; Work Health Authority v Outback Ballooning Pty Ltd (2019) 266 CLR 428, discussed. -- 2 of 75 -- AB (a pseudonym) v Independent Broad-based Anti-corruption Commission (2024) 278 CLR 300; Australian Broadcasting Tribunal & Actors Equity of Australia Ltd v Saatchi & Saatchi Compton (Vic) Pty Ltd (1985) 10 FCR 1; Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485; A v Maughan (2016) 50 WAR 263; Baiada Poultry Pty Ltd v Glenister (2015) 257 IR 204; Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92; Bell v The Queen (2020) 286 A Crim R 501; Berry v Federal Commissioner of Taxation (1953) 89 CLR 653; Berwin v Donohoe (1915) 21 CLR 1; Biochem Pharma Inc v Commissioner of Patents (1998) 82 FCR 87; Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1; Brebner v Bruce (1950) 82 CLR 161; Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; CAL No 14 Pty Ltd v Motor Accidents Insurance Board (2009) 239 CLR 390; Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378; Cheung v R (2001) 209 CLR 1; Cleanaway Operations Pty Ltd v Philip Hanel (Commonwealth: Comcare) [2022] SASC 52; Commonwealth: Comcare v Cleanaway Operations Pty Ltd (ACN 010 745 383) Transpacific Industries Pty Ltd [2021] SAMC 54; Contract Control Services Pty Ltd v Brown [2012] VSC 369; Director of Public Prosecutions (Cth) v Haddad [2019] NSWCA 55; Director of Public Prosecutions (DPP) v Frewstal Pty Ltd (2015) 47 VR 660; Director of Public Prosecutions v Phillips (2018) VSC 447; Director, Transport Safety v Metro Trains Melbourne Pty Ltd (2019) 58 VR 355; Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317; DPP Reference No 2 of 2001 [2001] VSCA 114; Edelsten v Health Insurance Commission (1990) 27 FCR 56; Ex parte Smith (1918) 35 WN (NSW) 54; Ex parte Stuart; Re Mead; Ex parte Anderson; Re Mead (1930) 47 WN (NSW) 60; Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; Gilmour v Midways Springwood Pty Ltd (1980) 33 ALR 605; Hamilton Island Enterprises Pty Ltd v Federal Commissioner of Taxation [1982] 1 NSWLR 113; Hill v Zuda Pty Ltd (2022) 275 CLR 24; Hird v Chief Executive Officer of Australian Sports Anti-Doping Authority (2015) 227 FCR 95; Hongkong Bank of Australia v Australian Securities Commission (1992) 40 FCR 402; Huth v Clarke (1890) 25 QBD 391; John Holland Pty Ltd v Hanel [2016] SASC 192; John Holland Pty Ltd v Industrial Court of NSW [2010] NSWCA 338; Johnson v Miller (1937) 59 CLR 467; Libke v The Queen (2007) 230 CLR 559; Luxton v Vines (1952) 85 CLR 352; Majar v Northern Land Council (1991) 37 FCR 117; Maxwell v The Queen (1996) 184 CLR 501; M v The Queen (1994) 181 CLR 487; New South Wales v Cahill (No 2) (2011) 210 IR 112; Oatley v The Commonwealth Director of Public Prosecutions [2021] SASCA 108; O’Sullivan v Truth and Sportsman Ltd [1955] SASR 85; Parks Holdings Pty Ltd v Chief Executive Officer of Customs (2004) 81 ALD 365; Police (SA) v Mahon (2022) 141 SASR 374; Raymond v Attorney-General [1982] QB 839; Re Day (2017) 91 ALJR 262; Reedy v O’Sullivan [1953] SASR 114; Re Warden Calder; Ex parte Lee (2007) 34 WAR 289; Royall v The Queen (1991) 172 CLR 378; R v Bates [1911] 1 KB 964; R v Parker [1977] VR 22; R v Radic (2001) 122 A Crim R 70; SafeWork NSW v Grasso Consulting [2022] HCATrans 132; Simpson Design Associates Pty Ltd v Industrial Court of New South Wales (2013) 213 A Crim R 340; S Kidman & Co Ltd v Lowndes CM (2016) 314 FLR 358; State of New South Wales (NSW Police) v Inspector Covi [2005] NSWIR Comm 303; SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; Taylor v Attorney-General (2019) 268 CLR 224; Thiess Pty Limited v Industrial Court of New South Wales (2010) 78 NSWLR 94; Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266; Vairy v Wyong Shire Council (2005) 223 CLR 422; Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515; Wyong Shire Council v Shirt (1980) 146 CLR 40; X7 v Australian Crime Commission (2013) 248 CLR 92, considered. -- 3 of 75 -- -- 4 of 75 -- CLEANAWAY OPERATIONS PTY LTD v HANEL [2025] SASCA 112 Court of Appeal – Criminal: Livesey P, Lovell and Bleby JJA THE COURT: Introduction 1 On 18 August 2014, a vacuum truck owned by the appellant, Cleanaway Operations Pty Ltd (Cleanaway), collided with vehicles at the intersection at the bottom of the South Eastern Freeway, where Cross Road, Glen Osmond Road and Portrush Road meet at Myrtle Bank. The collision caused the death of two people and serious injuries to the driver Mr Hicks, an employee of Cleanaway, and another person. 2 Mr Philip Hanel (the respondent) is an inspector employed by Comcare, a statutory corporation with responsibility, amongst other matters, for securing the health and safety of workers and workplaces, including by securing compliance with the Work Health and Safety Act 2011 (Cth) (the WHS Act) “through effective and appropriate compliance and enforcement measures”.1 3 The respondent commenced a prosecution against Cleanaway by a Complaint and Summons dated 15 August 2016, raising eight counts. Each concerned breaches of duties under the WHS Act which it was said were owed by Cleanaway to its employees or to others. 4 Following a trial before a magistrate, Cleanaway was convicted on all eight counts.2 On appeal to a single judge, six of the eight convictions were set aside.3 5 Cleanaway has appealed against the two remaining convictions, being counts 1 and 2. Count 1 concerned breaches of duties owed by Cleanaway to its employees. Count 2 concerned breaches of duties owed by Cleanaway to persons other than its employees. 6 Although the parties proceeded as if the matter was governed by the terms of s 158 of the Criminal Procedure Act 1921 (SA), the common form criminal appeal provision, the appeal to the appeal judge was properly governed by s 42(2)(b) of the Magistrates Court Act 1991 (SA): 42—Appeals (1) A party to a criminal action may, subject to this section and in accordance with the rules of the appellate court, appeal against any judgment given in the action 1 WHS Act, s 3(1)(e). 2 Commonwealth: Comcare v Cleanaway Operations Pty Ltd (CAN 010 745 383) Transpacific Industries Pty Ltd [2021] SAMC 54 (Magistrate Smart) (the magistrate). 3 Cleanaway Operations Pty Ltd v Philip Hanel (Commonwealth: Comcare) [2022] SASC 52 (Kourakis CJ) (the appeal judge). -- 5 of 75 -- [2025] SASCA 112 The Court 2 (including a judgment dismissing a charge of a summary or minor indictable offence but not any judgment arising from committal proceedings). … (2) The appeal lies— (ab) in the case of a sentence passed on the conviction of a person of an offence that is, or offences that include, a major indictable offence—to the Court of Appeal with the permission of the Court of Appeal; or (b) in any other case—to the Supreme Court constituted of a single Judge (but the Judge may, if he or she thinks fit, refer the appeal for hearing and determination by the Court of Appeal). 7 There are recognised differences between these appeal provisions.4 As it turns out, little turns on these differences in the circumstances of this case. 8 There is also an issue about permission to appeal.5 The appeal is governed by s 50(4)(a)(ii) of the Supreme Court Act 1935 (SA) and permission to pursue a second appeal is required: 50—Appeals (1) Subject to this section— (a) an appeal lies to the Court of Appeal against a judgment of the court constituted of a single judge; … (4) An appeal lies only with the permission of the court— (a) from a judgment of any of the following classes: … (ii) a judgment given by a single judge on appeal from a judgment of the Magistrates Court; … 9 Whilst the respondent conceded permission to appeal ground 4, permission should be granted for all grounds. For the following reasons, the appeal should be dismissed. 4 Police (SA) v Mahon (2022) 141 SASR 374, [81]-[84] (Livesey P, Lovell and Doyle JJA). 5 Oatley v The Commonwealth Director of Public Prosecutions [2021] SASCA 108, [36] (Livesey P, Lovell JA and Stanley AJA). -- 6 of 75 -- [2025] SASCA 112 The Court 3 10 These reasons are set out as follows: The relevant statutory provisions – duty and breach ..................................................................... 3 The Complaint and Summons ........................................................................................................ 6 Factual background ........................................................................................................................ 7 Cleanaway’s grounds of appeal ................................................................................................... 10 Appeal ground 5 – invalid authorisation ...................................................................................... 12 Cleanaway’s contentions on invalid authorisation ........................................................... 16 The respondent’s contentions on authorisation ................................................................. 20 The determination of the authorisation issue .................................................................... 23 Appeal ground 1: the scope of the prosecution case .................................................................... 30 The determination of appeal ground 1 .............................................................................. 33 Appeal ground 2 – proof of Mr Hicks’ competence .................................................................... 41 The determination of appeal ground 2 .............................................................................. 43 Appeal ground 3 – a finding of guilt on a basis not alleged and not open ................................... 46 The determination of appeal ground 3 .............................................................................. 52 Appeal ground 4 – the question of causation ............................................................................... 56 The determination of appeal ground 4 .............................................................................. 65 Conclusion ................................................................................................................................... 71 The relevant statutory provisions – duty and breach 11 Before outlining Cleanaway’s grounds of appeal, it is appropriate to address certain of the relevant statutory provisions. 12 Section 14 of the WHS Act provides that an employer’s duty cannot be transferred to another person. Section 15 declares that a person may owe more than one duty by virtue of being in more than one class of duty holder. Section 16 provides that two or more persons can concurrently owe the same duty. Section 17 of the WHS Act provides: 17 Management of risks A duty imposed on a person to ensure health and safety requires the person: (a) to eliminate risks to health and safety, so far as is reasonably practicable; and (b) if it is not reasonably practicable to eliminate risks to health and safety, minimise those risks so far as is reasonably practicable. -- 7 of 75 -- [2025] SASCA 112 The Court 4 13 Section 18 of the WHS Act reflects what is sometimes described as the “Shirt calculus”, addressing what is reasonably practicable at the time of any alleged breach:6 18 What is reasonably practicable in ensuring health and safety In this Act, reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including: (a) the likelihood of the hazard or the risk concerned occurring; and (b) the degree of harm that might result from the hazard or the risk; and (c) what the person concerned knows, or ought reasonably to know, about: (i) the hazard or the risk; and (ii) ways of eliminating or minimising the risk; and (d) the availability and suitability of ways to eliminate or minimise the risk; and (e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk. 14 Section 19(1) of the WHS Act imposes the duty, described in the heading to that section as the “Primary duty of care”, on a person conducting a business or undertaking. In this case, that person is Cleanaway. Section 19(1) of the WHS Act provides: 19 Primary duty of care (1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of: (a) workers engaged, or caused to be engaged by the person; and (b) workers whose activities in carrying out work are influenced or directed by the person; while the workers are at work in the business or undertaking. 15 Separately, s 19(2) of the WHS Act concerns the health and safety of others. Section 19(2) provides: (2) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at 6 Wyong Shire Council v Shirt (1980) 146 CLR 40. -- 8 of 75 -- [2025] SASCA 112 The Court 5 risk from work carried out as part of the conduct of the business or undertaking. 16 It is in the context of ss 19(1) and 19(2) that s 19(3) of the WHS Act addresses what must be provided by a person such as Cleanaway “so far as is reasonably practicable”: (3) Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable— (a) the provision and maintenance of a work environment without risks to health and safety; and (b) the provision and maintenance of safe plant and structures; and (c) the provision and maintenance of safe systems of work; and (d) the safe use, handling and storage of plant, structures and substances; and (e) the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities; and (f) the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking; and (g) that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking. 17 In this case, having regard to the duties set out in s 19, the consequences of breach are addressed by ss 32 and 33 of the WHS Act: 32 Failure to comply with health and safety duty—Category 2 A person commits a Category 2 offence if: (a) the person has a health and safety duty; (b) the person fails to comply with that duty; and (c) the failure exposes an individual to a risk of death or serious injury or illness. Penalty: (a) In the case of an offence committed by an individual (other than as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking)—$150 000. -- 9 of 75 -- [2025] SASCA 112 The Court 6 (b) In the case of an offence committed by an individual as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking—$300 000. (c) In the case of an offence committed by a body corporate—$1 500 000. 33 Failure to comply with health and safety duty—Category 3 A person commits a Category 3 offence if: (a) the person has a health and safety duty; and (b) the person fails to comply with that duty. Penalty: (a) In the case of an offence committed by an individual (other than as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking)—$50 000. (b) In the case of an offence committed by an individual as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking—$100 000. (c) In the case of an offence committed by a body corporate—$500 000. 18 The maximum penalty in s 32 is three times the maximum penalty in s 33. One key difference is the presence of s 32(c) and the requirement that the relevant failure has exposed “an individual to a risk of death or serious injury or illness”. 19 This case does not concern s 31 of the WHS Act, which creates the offence of what is, in effect, a reckless breach of s 32. The Complaint and Summons 20 By the Complaint and Summons dated 15 August 2016, issued by the respondent against Cleanaway, charge 1 provided: Charge 1 On or about 18 August 2014 at Adelaide in the State of South Australia pursuant to section 32, section 19(1) and section 19(3)(c) of the Work Health and Safety Act 2011 (Cth) (“the Act”) Cleanaway Operations Pty Ltd (ACN 010 745 383) (also known as Transpacific Industries Pty. Ltd.) failed to comply with a health and safety duty in that as a person conducting a business or undertaking Transpacific Industries Pty. Ltd. failed to ensure, so far as was reasonably practicable, the health and safety of workers engaged or caused to be engaged by Transpacific Industries Pty. Ltd. while the workers were at work in that business of undertaking. Particulars 1. The defendant, Cleanaway Operations Pty Ltd (ACN 010 745 383) (also known as Transpacific Industries Pty. Ltd.) (“TPI”), was at all material times a body corporate. -- 10 of 75 -- [2025] SASCA 112 The Court 7 2. TPI was at all material times a non-Commonwealth licensee and as such subject to the jurisdiction of the Act. 3. The acts and omissions of the defendant took place at workplaces including the TPI depot at Wingfield, South Australia, the South Eastern Freeway in Adelaide and various other places. 4. The undertaking of the defendant included the collection and transport of septic waste pursuant to a contract with Adelaide Hills Council. 5. There was a hazard in the workplace, namely the use of large vacuum trucks travelling on public roads generally and the South Eastern Freeway in particular. 6. The defendant had a health and safety duty pursuant to s. 19(1)(a) and s. 19(3)(c) of the Act to provide and maintain a safe system of work to ensure, so far as was reasonably practicable, the health and safety of workers engaged, or caused to be engaged by the defendant. 7. The defendant failed to comply with that duty in that it exposed a worker, namely Darren Hicks, to risk of death or serious injury. 8. The health and safety risk to which Darren Hicks was exposed was serious injury or death as a result of: • Collision between vacuum trucks and other road users. 9. There were reasonably practicable measures available to the defendant to control the risks arising from the defendant’s undertaking. The defendant: Failed to maintain a system of work whereby Darren Hicks was prevented from driving vacuum trucks without supervision until his competence to drive all vehicles he may be required to drive in the course of his work was properly determined by the defendant, including the assessment by the defendant of Darren Hicks’ competence in the task of driving a truck with a manual gearbox. 21 Charge 2 was in identical terms, as were the particulars, save that the relevant failure by Cleanaway was pleaded in the chapeau as one which was concerned with a duty owed to “other persons” as follows: … failed to comply with a health and safety duty in that as a person conducting a business or undertaking [Cleanaway] failed to ensure, so far as was reasonably practicable, the health and safety of other persons was not put at risk from work carried out as part of the conduct of the business or undertaking. 22 The six other charges were in similar terms and need not be addressed. As mentioned, the convictions on those were set aside by the appeal judge. Factual background 23 The evidence was that Mr Hicks had been recruited by Cleanaway on 11 August 2014 to work as a vacuum truck operator in the liquid division at Wingfield. 24 Mr Hicks had obtained his unrestricted HR class heavy vehicle driver’s licence on 3 July 2014, following the completion of 15 hours of heavy vehicle -- 11 of 75 -- [2025] SASCA 112 The Court 8 training with G&L Heavy Vehicle Driving Centre. That training was conducted in a truck which had a manual transmission.7 25 On the first two days Mr Hicks worked for Cleanaway, 12 and 13 August 2014, he drove Truck 349 which was a vacuum truck with an automatic transmission. On both days, an experienced driver sat with Mr Hicks in the passenger seat as part of a “buddy system”, but did not give Mr Hicks any guidance on his driving.8 26 On 14 August 2014, Mr Hicks drove Truck 349 alone. The Fleet Supervisor for Cleanaway was not aware of any policy or procedure for how long a driver was to be part of the buddy system, nor when the decision would be made that a new driver would drive alone.9 27 Cleanaway employed Mr Gregory Skinner as a Driver Trainer/Driver Assessor.10 Mr Skinner said in evidence that, usually, the buddy system took place for a period of two to four weeks and, the less experienced the driver, the longer the period of buddy accompaniment.11 Other Cleanaway drivers had been accompanied by a buddy for a period of between one and four weeks when they commenced employment with Cleanaway.12 28 On 14 August 2014, Mr Hicks undertook a Heavy Vehicle General Driving Assessment with Mr Skinner. The assessment was undertaken using the same truck, Truck 349, which had an automatic transmission.13 Mr Skinner had no control over the truck the drivers were assessed in, nor was he aware of any procedure for choosing the vehicle used in the driver assessment.14 29 The assessment was undertaken by reference to a form different to that which applied for a new driver.15 Mr Skinner wrote on the form that Mr Hicks was competent in “all tasks” although he had not assessed him in a number of the tasks set out on the form including “Gear lever in gear”, “Gear changing clutch operation” and “uses low gear”.16 30 On 18 August 2014, Mr Hicks and a colleague, Mr Melbourne, were allocated the “Adelaide Hills run”.17 Mr Melbourne was not required to mentor or buddy Mr Hicks. They drove separate trucks.18 7 See exhibit P4. 8 Exhibit P4; Transcript, pp 226-227. 9 Transcript, p 264. 10 Exhibit P4, paragraph 41 and the appeal judge, [91]. 11 Transcript, pp 325-326. 12 Transcript, pp 98-99, 220. 13 Exhibit P4, [40]-[41], document 45, pp 1, 8; Transcript p 331 and onwards, p 422. 14 Transcript, pp 310, 337. 15 Exhibit P4, document 34. Exhibit P9. See Transcript, pp 329, 331, 333-334, 342. 16 Exhibit P4, document 34. Transcript, pp 333-338, 342-343. 17 Transcript, pp 101, 103. 18 Transcript, p 103. -- 12 of 75 -- [2025] SASCA 112 The Court 9 31 Mr Hicks was allocated Truck 105, a vacuum truck with a manual transmission.19 Cleanaway had not assessed Mr Hicks in a vehicle with a manual transmission before he was allocated Truck 105, and the dispatcher responsible for allocating trucks and drivers to particular runs was not subject to any requirement to consider the driver’s level of training or experience when allocating a truck or run.20 32 On 18 August, Mr Hicks’ seventh day driving a heavy vehicle on a road, and fifth day working at Cleanaway,21 Mr Hicks and Mr Melbourne drove to Woodside in their respective trucks via the South Eastern Freeway.22 It was the first time Mr Hicks had driven a heavy vehicle on the South Eastern Freeway.23 33 During the ascent, Mr Hicks drove Truck 105 in first or second gear.24 This was the second full day Mr Hicks had driven a heavy vehicle without direct supervision.25 It was Mr Hicks’ first day driving a truck with a manual synchromesh gearbox.26 34 Once the trucks driven by Mr Hicks and Mr Melbourne were at capacity, Mr Melbourne proceeded to Heathfield via the South Eastern Freeway. After he arrived at Heathfield, the gates were closed and Mr Melbourne called Mr Hicks and told him to turn around and proceed to Bolivar via Portrush Road.27 35 At the start of the descent on the South Eastern Freeway, Mr Hicks had the seven gear vacuum truck in fifth gear. He was travelling at between 60 and 70 kph. The truck increased in speed to no more than 80 kph. The exhaust brake was on. 36 Mr Hicks used the foot brakes to slow the truck down but was unable to slow it sufficiently to change the truck into a lower gear. His use of the foot brake was ineffective to slow the vehicle, and it continued to gain speed. The truck became uncontrollable, and the collision followed.28 37 As a result of the collision, two drivers of vehicles were killed and a third was seriously injured. Mr Hicks suffered serious injuries, and his right leg was amputated above the knee. 38 Following the collision, Cleanaway drafted guides and procedures addressing the risks associated with using trucks with manual gearboxes down steep descents. These included: 19 Exhibit P4, [43]; Transcript, pp 102, 104, 311. 20 Transcript, pp 308, 210. 21 Exhibit P4, [23], [36] and [43]. 22 Transcript, p 106. 23 Transcript, pp 415, 425-427, 449. 24 Transcript, p 430. 25 Transcript, p 413. 26 Transcript, pp 414, 423, 425-427. 27 Transcript, p 106. 28 Transcript, pp 430-435, 450-451. -- 13 of 75 -- [2025] SASCA 112 The Court 10 1. “Transpacific Toolbox Talk – New Heavy Vehicle Laws on the South Eastern Freeway”, which instructed employees that the signs on the South Eastern Freeway about the use of low gear meant that “a gear that is low enough to limit the speed of the truck or bus without the need to use the primary brake” and about the proper use of arrester beds and that the “use of the right gear avoids the need to use an arrester bed”.29 2. The draft document “Quick Reference Guide TTS Wingfield Liquid Fleet Manual” provided that “[n]ew fleet drivers must not drive heavy vehicles unsupervised until they have been assessed as competent … which must include South Eastern Freeway driving”.30 Cleanaway’s grounds of appeal 39 Cleanaway’s grounds of appeal are as follows: Ground 1: Failure to hold the prosecution to its case as pleaded and opened 1. 1. The learned Chief Justice erred in upholding the convictions on charges 1 and 2 on a basis not alleged in the charge sheet or opened. 2. Having found at [10] that the particulars to the charges alleged that the Appellant was required to properly determine Hicks’ competence to drive all vehicles he may be called upon to drive, including a manual vehicle, and having held at [42] that the Prosecution had not proved the allegations as particularised in the charges, the learned Chief Justice erred in failing to uphold the appeal and dismiss charges 1 and 2. (Judgment at [10], [42].) Ground 2: Failure of the prosecution to prove the allegation that Hicks’ competence to drive all vehicles he might be called upon to drive had not been properly determined. 2. The learned Chief Justice erred in failing to hold that that the Prosecution was required to prove in respect of both charges 1 and 2, pursuant to its allegations at particular [9] of both charges, and did not prove, that Hicks’ competence to drive all vehicles that he might be called upon to drive, including manual vehicles, had not been properly determined where the uncontested evidence was that such competence had been determined and certified by authorised assessors under the statutory scheme for determining such competence in the State of South Australia. (Judgment [16], [124]) Ground 3: Finding of guilt on charges 1 and 2 based on an alleged reasonably practicable measure that was not alleged in the charges and on a basis that was not, in any event, open on the evidence. 3.1 The learned Chief Justice erred in finding that the Appellant was, to satisfy its duty, required to discreetly assess Hicks’ competence in gear selection for a descent on the South Eastern Freeway, when such an allegation was not made in the charge sheet for either charge 1 or 2. Further or alternatively, it was not open on the evidence to 29 Exhibit P4, document 35. 30 Exhibit P8, p 3; Transcript, pp 296-297. -- 14 of 75 -- [2025] SASCA 112 The Court 11 find that it was a reasonably practicable measure that would have minimised the risk. (Judgment at [16]) 3.2 The learned Chief Justice erred in finding that the Appellant was guilty of charges 1 and 2 because it had failed to discreetly assess Hicks’ competence in gear selection on descent of the South Eastern Freeway when such act or omission was not specified as a reasonably practicable measure the subject of charges 1 and 2. (Judgment at [16]) 3.3 The learned Chief Justice erred in holding that an onus rested on the Appellant to prove that it was not reasonably practicable to assess Hicks’ competence in gear selection on descent of the South Eastern Freeway. (Judgment at [14], [16] and [123]) 3.4 The learned Chief Justice’s finding that the truck’s brake failure was exacerbated by Hicks’ failure to use gears effectively was against the evidence and not open to find, beyond reasonable doubt. (Judgment at [54]) 3.5 The learned Chief Justice’s finding that Hicks had attempted to change down from 5th gear when it was too late was against the evidence and not open to find beyond reasonable doubt. (Judgment at [96]) 3.6 Having been conceded by the prosecution and on the basis of the evidence, it was not open to the learned Chief Justice to find other than that Hicks was a competent driver who had driven competently down the South Eastern Freeway on 18 August 2014. Ground 4: Causation 4.1 The learned Chief Justice erred in failing to apply the test of causation imposed by s32(c) of the Work Health and Safety Act 2011, as most recently explained by the New South Wales Court of Criminal Appeal in the decision of Grasso. (Judgment [56]-[65]) 4.2 The learned Chief Justice erred in finding that the New South Wales provision the subject of the decision in Grasso must be different to s32(c) of the Work Health and Safety Act 2011, when the provisions are identical and part of a National harmonised scheme, and his Honour was bound to follow and apply Grasso unless finding that it was clearly wrong. (Judgment [61]) 4.3 Applying the correct test of the element of causation, as explained in Grasso, it was not open on the evidence to find the s32(c) element proved, beyond reasonable doubt. Reasons at [64], [67]) Ground 5: Authorisation 5.1 The Magistrates Court of South Australia did not have jurisdiction to hear and determine the charges laid against the Appellant by the Respondent because the Respondent lacked lawful authority to issue the Complaint commencing the criminal proceeding AMC-16-11227. 40 Whilst appeal ground 5 concerned a point not taken before the magistrate or the appeal judge, it was common ground that it was open to be taken before this Court. It is convenient to commence with that ground. -- 15 of 75 -- [2025] SASCA 112 The Court 12 Appeal ground 5 – invalid authorisation 41 There was no dispute between the parties that the charges comprised “summary offences” within s 4H of the Crimes Act 1914 (Cth) (Crimes Act), nor that the Magistrates Court had jurisdiction over these Commonwealth offences by the conferral of federal jurisdiction under s 68(2) of the Judiciary Act 1903 (Cth). 42 Page six of the Complaint and Summons nominated the Commonwealth Director of Public Prosecutions (the CDPP) as the prosecutor, and there was no dispute between the parties that the CDPP could prosecute this case. 43 Whilst there was no dispute that the respondent was appointed an inspector under s 156 of the WHS Act, Cleanaway contended that he was not properly authorised in writing to commence this proceeding and, without that authority, the Complaint and Summons signed by him on 15 August 2006 was, and remains, invalid. 44 Cleanaway contended that because a valid Complaint and Summons was an essential pre-condition to the Magistrates Court of South Australia having and exercising jurisdiction to hear and determine the charges against Cleanaway, there was no jurisdiction to hear the matter, enter convictions or impose any penalty. 45 Because the proceedings were beyond the jurisdiction of the Magistrates Court, they comprised a nullity with the result that the proceedings and purported convictions must be set aside. 46 There was no dispute between the parties that s 13 of the Crimes Act empowered any person to institute a prosecution for an offence against a Commonwealth Act unless the contrary intention appeared in the Act or Regulation creating the offence.31 Section 13 provided: 13 Institution of proceedings in respect of offences Unless the contrary intention appears in the Act or regulation creating the offence, any person may: ... (b) institute proceedings for the summary conviction of any person in respect of any offence against the law of the Commonwealth punishable on summary conviction. 47 There was no dispute between the parties that s 230 of the WHS Act, at the least, evinced a contrary intention, so as to restrict the class of people at liberty to bring proceedings for an offence against the WHS Act. Section 230 relevantly provided: 31 See, generally, Brebner v Bruce (1950) 82 CLR 161; Taylor v Attorney-General (2019) 268 CLR 224, [18]-[36] (Kiefel CJ, Bell, Gageler and Keane JJ). -- 16 of 75 -- [2025] SASCA 112 The Court 13 230 Prosecutions (1) Subject to subsection (4), proceedings for an offence against this Act may only be brought by: (a) the regulator; or (b) an inspector with the written authorisation of the regulator (either generally or in a particular case). (2) An authorisation under subsection (1)(b) is sufficient authority to continue proceedings in any case where a court amends the charge, warrant or summons. ... (4) Nothing in this section affects the ability of the Director of Public Prosecutions to bring proceedings for an offence against this Act. 48 The Explanatory Memorandum concerning the Work Health and Safety Bill 2011 (Cth) relevantly provided:32 Clause 230 Prosecutions 769. Subclause 230(1) provides that proceedings for an offence against the Bill can only be brought by the regulator or an inspector authorised in writing (generally or in a particular case) by the regulator. 49 It can be seen that the effect of s 230 of the WHS Act was to permit the following people to exercise the power to bring proceedings for an offence against the WHS Act: 1. the regulator (s 230(1)(a)); 2. an inspector with the written authorisation of the regulator (s 230(1)(b)); and 3. the CDPP (s 230(4)). 50 Under the WHS Act, the regulator is “Comcare”,33 a statutory corporation established under s 68 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) (the SRC Act). By s 74(1A) of the SRC Act, Comcare is constituted by a Chief Executive Officer appointed by the Governor-General.34 51 By reason of s 13 of the Crimes Act (and s 230), ss 152(h) and 153 of the WHS Act, Comcare had relevant functions and power concerning proceedings for an offence against the WHS Act. By s 154(1)(b) of the WHS Act it was also 32 Explanatory Memorandum to the Work Health and Safety Bill 2011 (Cth), pp 81-82. 33 WHS Act, s 4. 34 Comcare is also a body corporate with perpetual succession, SRC Act, s 74(1)(a). -- 17 of 75 -- [2025] SASCA 112 The Court 14 authorised to delegate in writing functions and powers to an inspector. Relevantly, ss 152(h), 153 and 154 of the WHS Act provided: 152 Functions of regulator The regulator has the following functions: … (h) to conduct and defend proceedings under this Act before a court or tribunal; … 153 Powers of regulator (1) Subject to this Act, the regulator has the power to do all things necessary or convenient to be done for or in connection with the performance of its functions. (2) Without limiting subsection (1), the regulator has all the powers and functions that an inspector has under this Act. 154 Delegation by regulator (1) The regulator may, by instrument in writing, delegate a power or function under this Act other than this power of delegation to: (a) a member of the staff of the regulator who is an SES employee or an acting SES employee; or (b) an inspector; or (c) a member of the staff of the regulator prescribed by regulations. (2) A delegation under this section may be made subject to such conditions as the regulator thinks fit. Note: For further provisions relating to delegations and the revocation of delegations, see the Acts Interpretation Act 1901. 52 In circumstances where the respondent was an inspector under the WHS Act, the question is whether he had written authorisation to bring proceedings for an offence against the WHS Act. 53 This part of the case featured conflicting approaches to what is a function as distinct from a power, as well as the source of any relevant function or power. Key to the case was the Instrument of Delegation dated 19 November 2015, addressed below. 54 On 22 July 2014, Ms Jennifer Taylor was appointed the Chief Executive Officer of Comcare for a term of five years commencing on 24 August 2014.35 35 AB, p 283. -- 18 of 75 -- [2025] SASCA 112 The Court 15 55 By a Comcare “Instrument of Appointment – Inspector” dated 15 August 2014, issued under the WHS Act, the respondent was appointed an inspector pursuant to s 156 of the WHS Act.36 56 The appointment of Mr Justin Napier as the “General Manager Regulatory Operations at Comcare” was approved by letters and notices of appointment and assignment dated 14 May 2015,37 and 15 May 2015,38 and these were accepted by Mr Napier on 21 May 2015.39 57 By an Instrument of Delegation dated 19 November 2015, Ms Taylor purported to make a number of delegations pursuant to s 154 of the WHS Act. These were made in the following terms:40 DELEGATE to each person, meeting the criteria specified in sub-section 154(1) of the WHS Act,41 from time to time occupying or performing the duties of a position in Comcare specified in Part 1 of each schedule to this Instrument to perform the functions or exercise the powers of the WHS Act and Work Health and Safety Regulations 2011 (Cth) (WHS Regulations) which have been specified in Part 2 of that Schedule. 58 The instrument also provided that, in accordance with s 46 of the Acts Interpretation Act 1901 (Cth), that Act applied to the instrument and to the provisions of the instrument “as if they were an Act and the provisions of an Act”.42 One of the schedules to that instrument concerned the General Manager of the Regulatory Operations Group of Comcare. That schedule addressed “the powers and functions” under various sections of the WHS Act, including under s 230, “Prosecutions”. A similar instrument dated 24 October 2017 made a similar delegation concerning similar powers and functions.43 59 As foreshadowed, it is the effect of this Instrument of Delegation in the context of the WHS Act provisions already mentioned which is in issue. 60 On 10 August 2016, Mr Napier purported to authorise the respondent to bring proceedings against Cleanaway for offences against the WHS Act, which occurred on 18 August 2014 in relation to a Cleanaway vacuum truck colliding with three cars at the intersection of the South Eastern Freeway, Portrush Road and Cross Road, Adelaide, South Australia. Reference was made in this instrument to s 32 36 AB, p 351. 37 AB, p 352. 38 AB, p 353. 39 AB, p 354. 40 AB, p 285. 41 Subsection 154(1) of the WHS Act states: The regulator may, by instrument in writing, delegate a power or function under this Act other than this power of delegation to: (a) a member of the staff of the regulator who is an SES employee or acting SES employee; or (b) an inspector; or (c) a member of the staff of the regulator prescribed by the regulations. 42 AB, p 285. 43 AB 301. -- 19 of 75 -- [2025] SASCA 112 The Court 16 of the WHS Act and the authorisation was purportedly given under s 230(1)(b) of the WHS Act.44 61 Cleanaway targeted the instrument dated 19 November 2015, and the purported delegation to the General Manager of the Regulatory Operations Group of Comcare of the powers conferred on Comcare under the specified sections of the WHS Act which, as has been seen, relevantly only included s 230. 62 In support of its primary case on invalid authorisation, Cleanaway relied upon the decision of Archer J in John Holland Pty Ltd v Wallis, where her Honour held that a delegation in similar terms to this case was not effective to authorise a prosecution.45 63 As will be seen, after judgment was reserved, the Court of Appeal of Western Australia overruled the decision of Archer J and, in further submissions, Cleanaway invited this Court to disagree with and depart from that decision, whereas the respondent invited this Court to follow it.46 Cleanaway’s contentions on invalid authorisation 64 On the case of Cleanaway, s 230(1) of the WHS Act did not confer any power on anyone. It merely limited and restricted the class of persons who, but for the contrary intention it evinced, would otherwise be both empowered and authorised to bring proceedings for an offence against the WHS Act. 65 Cleanaway drew a distinction between having the power to bring proceedings and being authorised to do so. It submitted that no inspector required the power to bring proceedings for an offence against the WHS Act. However, no inspector could exercise that power without first obtaining the written authorisation of the Chief Executive Officer of Comcare to bring proceedings. 66 Cleanaway contended that Comcare’s functions were described in s 152 and its plenary power was conferred by s 153 of the WHS Act. Other provisions of the WHS Act conferred other, discrete powers on Comcare. In some instances, these included the conferral of discrete powers on inspectors. For example: 1. Comcare was conferred powers to obtain information by s 155 of the WHS Act; 2. Comcare was conferred powers to appoint inspectors by s 156 of the WHS Act; and 3. Comcare and its inspectors were conferred powers of entry, as well as various powers following entry, by ss 163, 165 and 171 of the WHS Act. 44 AB, p 317. 45 John Holland Pty Ltd v Wallis [2022] WASC 358. 46 Wallis v John Holland Pty Ltd [2024] WASCA 26 (Wallis v John Holland). -- 20 of 75 -- [2025] SASCA 112 The Court 17 67 In this context, Cleanaway contended that Comcare’s power to give an inspector written authority to bring proceedings for an offence against the WHS Act was derived from its plenary power conferred by s 153(1) of the WHS Act.47 68 Whilst Cleanaway allowed for the possibility that there was a further plenary power conferred by s 70 of the SRC Act, s 73B of the SRC Act provided that the functions and powers of Comcare under the WHS Act may not be delegated. By contrast, the Note 2 to s 73B of the SRC Act provided that “the delegation of Comcare’s functions and powers under the [WHS Act] is dealt with in s 154 of that Act”. 69 Apart from drawing a distinction over the source of Comcare’s plenary power, Cleanaway addressed the writing by which the respondent was said to have been authorised to bring proceedings for offences under the WHS Act. As will be seen, particular emphasis was given to the fact the relevant instrument referred only to s 230 and not to ss 152 or 153 of the WHS Act. 70 Cleanaway contended that none of the specified sections in the instrument dated 19 November 2015 conferred any power to give a written authorisation to bring proceedings. Accordingly, said Cleanaway, the instrument was not effective to confer any power on Mr Napier to give the respondent written authorisation to bring proceedings against Cleanaway concerning an offence against the WHS Act. 71 In those circumstances, because the Chief Executive had not given written authorisation to Mr Napier, and because the Chief Executive’s instrument did not confer any power to give written authorisation to the respondent to bring proceedings, there was no valid written authorisation given to the respondent at any time to bring proceeding against Cleanaway. 72 As for Comcare’s power of delegation under s 154(1) of the WHS Act, Cleanaway relied upon the following observations of Goldberg J in Parks Holdings Pty Ltd v Chief Executive Officer of Customs:48 A provision which requires an act to be in writing must be considered by reference to the context in which it appears. The notion that something be done in writing is designed to provide a measure of formality and official identification. In the present context the reason for the delegation to be in writing is no doubt to ensure that any official act carried out pursuant to the instrument of delegation which affects the rights of persons, or impinges upon commercial or personal activities, is seen to be within power and authorised. One can readily appreciate the issues of proof of authority which would arise in the context where the power to delegate acts which impinged upon the rights of individuals was given with no permanent recorded proof of such delegation. As Miles CJ noted in Perpetual Trustee Co (Canberra) Ltd v Lewis (as Delegate for the Commissioner for ACT Revenue) (1994) 119 FLR 38 at 45; 123 ACTR 17 at 24: The power to issue notices like those issues pursuant to section 18(2) of the Taxation (Administration) Act is a power “whose exercise will be likely adversely to affect 47 And not by s 230 of the WHS Act. 48 Parks Holdings Pty Ltd v Chief Executive Officer of Customs (2004) 81 ALD 365, [99] (Goldberg J). -- 21 of 75 -- [2025] SASCA 112 The Court 18 rights of the individuals”: O’Reilly v Commissioners of State Bank of Victoria (1982) 153 CLR 1 at 12 per Gibbs CJ. Therefore an instrument which delegates such a power or part of it should not be construed loosely”. 73 Cleanaway also relied on what it contended was a long line of cases where criminal convictions had been quashed due to the absence of the requisite authority or approval to bring proceedings.49 74 Alternatively, Cleanaway contended that the terms of the instrument dated 19 November 2015 were wholly ineffective to confer on Mr Napier, or anyone else occupying the position of General Manager of the Regulatory Operations Group of Comcare, the power to authorise the respondent to commence proceedings against it for any contravention of the WHS Act. 75 Following the decision of the Court of Appeal of Western Australia in Wallis v John Holland,50 Cleanaway made further written submissions. Cleanaway commenced with the propositions that the Court of Appeal decided only that the relevant statutory power to authorise a prosecution under the WHS Act is found in s 153(1) and not s 230 of the WHS Act and, in addition, the decision did not otherwise engage the rule obliging this Court to follow the decision of another intermediate appellate court. In particular, insofar as the Court of Appeal drew any conclusion about the effect of the particular instrument in this case, this Court was not obliged to follow that ruling. 76 Whilst Cleanaway acknowledged that Wallis v John Holland involved a decision of an intermediate appellate court on a similar question arising in relation to the same Commonwealth legislation, on similar but not identical instruments of purported delegation and authorisation, it was necessary to observe the difference between the holding of the decision and its ratio. Only the ratio, insofar as it concerned federal or uniform legislation, bound this Court.51 Cleanaway relied on the following explanation given by McHugh J in Woolcock Street Investments Pty Ltd v CDG Pty Ltd:52 The common law distinguishes between the holding of a case, the rule of the case and its ratio decidendi. The holding of a case is the decision of the court on the precise point in 49 R v Bates [1911] 1 KB 964, 965 (Lord Alverstone CJ, Lawrance and Pickford JJ); Berwin v Donohoe (1915) 21 CLR 1, 25 (Isaacs J, with whom Powers J agreed),27 (Higgins J, with whom Powers J agreed); Ex parte Smith (1918) 35 WN (NSW) 54 (Ferguson J); Ex parte Stuart; Re Mead; Ex parte Anderson; Re Mead (1930) 47 WN (NSW) 60, 61 (Halse Rogers J); O’Sullivan v Truth and Sportsman Ltd [1955] SASR 85, 87 (Ross J); R v Parker [1977] VR 22, 29 (Young CJ). Recently, this statement was referred to and applied in Director of Public Prosecutions v Phillips (2018) VSC 447, 639 [13]-[16] (Ginnane J); Gilmour v Midways Springwood Pty Ltd (1980) 33 ALR 605, 607 (Brennan J); A v Maughan (2016) 50 WAR 263, [152] (McLure P, with whom Corboy J agreed); Director, Transport Safety v Metro Trains Melbourne Pty Ltd (2019) 58 VR 355, [3]-[53] (Garde J); Director of Public Prosecutions (Cth) v Haddad [2019] NSWCA 55, [12]-[13] (Bell P, White and Brereton JJA). 50 Wallis v John Holland [2024] WASCA 26. 51 Hill v Zuda Pty Ltd (2022) 275 CLR 24, [26] (Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ); CAL No 14 Pty Ltd v Motor Accidents Insurance Board (2009) 239 CLR 390, [49] (Gummow, Heydon and Crennan JJ). 52 Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515, [59] (McHugh J). -- 22 of 75 -- [2025] SASCA 112 The Court 19 issue — for the plaintiff or the defendant. The rule of the case is the principle for which the case stands — although sometimes judges describe the rule of the case as its holding. The ratio decidendi of the case is the general rule of law that the court propounded as its reason for the decision. 77 Whilst the holding of the Court of Appeal was clear enough, namely that the prosecution was authorised, Cleanaway submitted that the ratio of the decision was not clear. Cleanaway described the reasoning of the three members of the Court as “opaque and contradictory”. 78 President Buss considered that s 153(1) was not the only available source of power. Buss P construed s 230(1)(b) as having two aspects, comprising both a restriction on standing as well as an empowerment to authorise an inspector to bring proceedings.53 79 By contrast, Vaughan JA held that the general power in s 153(1) was the material source of power and,54 contrary to the ruling of Buss P, s 230 was not a source of power but merely “a ‘standing’ provision”.55 His Honour held that it was a “matter of necessary implication” that s 230 contemplated that the regulator may authorise an inspector to bring proceedings.56 80 Justice Vaughan held that the relevant function was not to be found in s 152(h) but emerged by necessary implication from the terms of s 230.57 Vaughan JA gave particular emphasis and a wide meaning to the use of the word “under” in the relevant instrument, and explained that this best achieved the purpose of the delegation, with the result that the relevant power in s 153 could be said to arise “under” s 230 despite not having been mentioned in the instrument.58 81 The third member of the Court, Solomon J, held that the function of authorising inspectors to bring a prosecution was contained in s 230(1) and it was not merely a standing provision.59 Cleanaway submitted that this appeared to be contrary to the view of Vaughan JA. 82 In addition, Solomon J took the view that the relevant plenary power in s 153 was the source of power that attached to the function conferred by s 230.60 Though his Honour allowed that the construction of the instrument adopted by Archer J was “open and available”,61 having regard to the object of the instrument, the intertwined nature of the power conferred by s 153, and the function contained in s 230(1), the use of the word “under” in the instrument should be given a wide 53 Wallis v John Holland [2024] WASCA 26, [51], [64] (Buss P). 54 Wallis v John Holland [2024] WASCA 26, [96] (Vaughan JA). 55 Wallis v John Holland [2024] WASCA 26, [117] (Vaughan JA). 56 Wallis v John Holland [2024] WASCA 26, [120] (Vaughan JA). 57 Wallis v John Holland [2024] WASCA 26, [121]-[123] (Vaughan JA). 58 Wallis v John Holland [2024] WASCA 26, [152], [156]-[157] (Vaughan JA). 59 Wallis v John Holland [2024] WASCA 26, [237], [249] (Solomon J). 60 Wallis v John Holland [2024] WASCA 26, [238] (Solomon J). 61 Wallis v John Holland [2024] WASCA 26, [250] (Solomon J). -- 23 of 75 -- [2025] SASCA 112 The Court 20 meaning.62 Solomon J held that the delegation was capable of conveying an intention to delegate the function and any necessary attaching power to enable the authorisation of inspectors to bring proceedings.63 83 Cleanaway contended that there were compelling reasons for this Court not to follow the decision in Wallis v John Holland, particularly as, on the question of the ruling about the Commonwealth legislation, the decision was plainly wrong. 84 In these circumstances, Cleanaway contended that the respondent was not authorised to sign, nor to cause or permit to be filed in the Magistrates Court, any Complaint and Summons commencing any criminal proceeding against Cleanaway for alleged breaches of s 32 of the WHS Act. The respondent’s contentions on authorisation 85 The respondent countered that he was authorised to bring proceedings within the meaning of s 230(1)(b) of the WHS Act by reason of the written authorisation given by Mr Napier on 10 August 2016.64 86 At the time of his written authorisation, Mr Napier was the General Manager of the Regulatory Operations Group of Comcare,65 and authorised by the Instrument of Delegation given by the regulator, the Chief Executive Ms Taylor, dated 19 November 2015.66 According to the respondent, that instrument did not need to name Mr Napier,67 and could be made generally and by reference to the relevant section of the WHS Act, s 230.68 87 The respondent contended that the essential question under this ground of appeal was whether the Instrument of Delegation had to expressly refer to s 153, as well as s 230, of the WHS Act in order to be effective. That is to say, the only link in the chain of authorisation which appeared to be under challenge by Cleanaway was whether the Instrument of Delegation from the Chief Executive to Mr Napier was effective to allow Mr Napier to authorise the respondent to bring the proceedings. 88 On the case of the respondent, the Instrument of Delegation expressly delegated to Mr Napier the function of bringing proceedings under s 230(1)(b) of the WHS Act and, by its terms, also delegated to him the power to perform that function, being the power to make an effective authorisation to an inspector. 89 The respondent highlighted that the instrument delegated and authorised Mr Napier “to perform the functions or exercise the powers of the WHS Act … 62 Wallis v John Holland [2024] WASCA 26, [253] (Solomon J). 63 Wallis v John Holland [2024] WASCA 26, [253] (Solomon J). 64 AB, p 317. 65 Instrument of Appointment dated 14 May 2015, AB, p 352. 66 AB, p 285. 67 Acts Interpretation Act 1901 (Cth), s 34AA. 68 Acts Interpretation Act 1901 (Cth), s 34AB(1)(a). -- 24 of 75 -- [2025] SASCA 112 The Court 21 which have been specified in Part 2 of that Schedule”.69 Under that part, s 230 “Prosecutions” was listed as both a power and function.70 90 The respondent acknowledged that statutes may draw a distinction between powers and functions.71 Nonetheless, the expressions define what it is that the body can do.72 Whilst ss 152 and 153 of the WHS Act refer separately to “functions” and to “powers”, they come under the heading to Division 1 of Part 8, “Functions of Regulator”, and the heading formed part of the statute.73 91 Accordingly, the respondent contended that as s 230(1)(b) of the WHS Act conferred a function on the regulator to authorise inspectors to bring proceedings, the effect was similar to the way in which the Full Court of the Federal Court had evaluated s 597 of the Corporations Law in Mercantile Mutual. That is to say, that s 597 conferred a function, but not the power, on the Australian Securities Commission to authorise a person to make a relevant application.74 92 In addition, as the relevant function was not separately provided for, the respondent submitted that, in consequence, it remained a function of the regulator as described by s 152(i) of the WHS Act. 93 This contention was rejected by Archer J in John Holland Pty Ltd v Wallis.75 The respondent contended that Archer J was wrong to conclude that authorising another, such as an inspector, to institute proceedings fitted within the ordinary meaning of the words in s 152(h) of the WHS Act and could be described as “to conduct” proceedings. On the approach of Archer J, the delegation had to expressly delegate the function under s 152(h) before anyone other than the Chief Executive could authorise an inspector to institute a proceeding for a contravention against the WHS Act. 94 The respondent took issue with this approach, contending that the regulator could delegate “a power or function” under s 154 of the WHS Act. 95 The respondent noted that in John Holland Pty Ltd v Wallis, Archer J correctly identified the finding made by the Full Court of the Federal Court in Mercantile Mutual,76 but disagreed with what followed:77 69 AB, p 285. 70 AB, p 287. 71 Edelsten v Health Insurance Commission (1990) 27 FCR 56, 62-63 (Northrop and Lockhart JJ); Mercantile Mutual Life Insurance Co v Australian Securities Commission (1993) 40 FCR 409 (Mercantile Mutual), 422 (Lockhart J), 72 D Pearce, Statutory Interpretation in Australia, (9th ed), [12.31]. 73 Acts Interpretation Act 1901 (Cth), s 13. 74 See Hongkong Bank of Australia v Australian Securities Commission (1992) 40 FCR 402; Mercantile Mutual (1993) 40 FCR 409, 422 (Lockhart J). 75 John Holland Pty Ltd v Wallis [2022] WASC 358, [64] (Archer J). 76 John Holland Pty Ltd v Wallis [2022] WASC 358, [112] (Archer J). 77 John Holland Pty Ltd v Wallis [2022] WASC 358, [113] (Archer J). -- 25 of 75 -- [2025] SASCA 112 The Court 22 Section 597(2) sets out who may make an Examination Application. Section 597(2) does not expressly confer on the ASC the function of authorising a person to make Examination Applications, nor the power to authorise. Rather, it is simply that it can be discerned from s 597(2) that the ASC was intended to have this function. 96 The respondent contended that, other than by s 230(1)(b), there was no other express conferral of the function to commence proceedings on the regulator, and this had been accepted by Archer J.78 97 The respondent relied on the terms of the Instrument of Delegation and the references made to the performance of functions, as well as to powers and functions, as indicating that the regulator had delegated any powers necessary for Mr Napier to perform the functions nominated, including that under s 230(1)(b) of the WHS Act. Accordingly, the respondent submitted that the Instrument of Delegation intended to, and gave, Mr Napier power to give a written authorisation to an inspector to bring proceedings under s 230(1)(b) of the WHS Act. This, contended the respondent, was consistent with a fair reading of the Instrument of Delegation.79 98 The respondent also contended that though the wording of the delegations was different, the reasoning of the plurality in Mercantile Mutual assisted the conclusion that the Instrument of Delegation effectively delegated both the function under s 230 and the power necessary under s 153 of the WHS Act, even though only the former was expressly cited in the document.80 In particular, in Mercantile Mutual, the two instruments of delegation referred to “powers and functions conferred or expressed to be conferred on the [ASC] by or under the following provisions” of the Corporations Law, without making reference to s 11(4) of the ASC Law which the Full Court held was the relevant “power provision”. Even though the instrument only referred to the “function provision” of s 597 of the Corporations Act, this was nonetheless held to effectively delegate the power to perform the function. That was so notwithstanding that the “power provision” was not mentioned and appeared in a different statute. 99 Accordingly, the respondent drew an analogy with the Instrument of Delegation in this case, which referred only to the “function provision” of s 230 of the WHS Act, but not the “power provision” of s 153 of the WHS Act. 100 Insofar as Archer J rejected this approach in John Holland Pty Ltd v Wallis,81 the respondent invited this Court to reject it. The respondent acknowledged that the delegation before Archer J in John Holland Pty Ltd v Wallis was in materially the same terms as the Instrument of Delegation before this Court, and that her 78 John Holland Pty Ltd v Wallis [2022] WASC 358, [64]. 79 And not an overly generous construction of it, Mercantile Mutual (1993) 40 FCR 409, 441 (Gummow J). 80 Mercantile Mutual (1993) 40 FCR 409. 81 John Holland Pty Ltd v Wallis [2022] WASC 358, [120]-[130] (Archer J). -- 26 of 75 -- [2025] SASCA 112 The Court 23 Honour considered and construed the same provisions of the WHS Act as are raised for consideration by this Court. 101 Nonetheless, the respondent contended that what was before this Court was not a pure question of statutory construction but a requirement to construe the effect of the Instrument of Delegation in circumstances where this Court is not bound by the decision of Archer J and may reach its own view. In particular, the respondent contended that those decisions which required that interstate courts follow intermediate appellate decisions on Commonwealth legislation, or the Australian common law, had no application.82 102 By contrast, in his further written submissions on the effect of the decision of the Court of Appeal in Wallis v John Holland, the respondent contended that this Court should not depart from a decision of another intermediate appellate court on the interpretation of Commonwealth legislation, uniform national legislation or the common law of Australia unless convinced that the interpretation is plainly wrong or there is a compelling reason not to do so. Whilst intermediate appellate courts and trial judges are not bound to follow obiter dicta of other intermediate appellate courts, they would ordinarily be expected to give them great weight.83 103 Though the respondent acknowledged that there were differences in reasoning between the Court of Appeal judgments in Wallis v John Holland, all three judges rejected the same argument advanced by Cleanaway. No member of the Court of Appeal considered that s 230 of the WHS Act conferred neither a function nor a power. Rejecting the approach of Cleanaway, the respondent contended that the conclusion that the delegation was effective was reached by the Court of Appeal applying orthodox principles of statutory construction, including those in s 15AA of the Acts Interpretation Act 1901 (Cth), which applied to the Instrument of Delegation by force of s 46 of that Act. The determination of the authorisation issue 104 This Court must consider the statutory text having regard to the evident context and purpose of the provisions under consideration. The determination of meaning cannot be considered without regard to the context, including the general purpose and policy of the relevant provisions.84 When considering the purpose of 82 Cf, Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485, 492 (Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ); Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89, [135] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ); Hill v Zuda Pty Ltd (2022) 275 CLR 24, [25]-[26] (Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ). Obviously, there is no need for this Court to follow the approach which requires single judges to follow other single judges of co-ordinate authority when interpreting Commonwealth legislation unless the second court takes the view that the first court was clearly wrong, cf Hamilton Island Enterprises Pty Ltd v Federal Commissioner of Taxation [1982] 1 NSWLR 113, 119 (Rogers J). 83 Hill v Zuda Pty Ltd (2022) 275 CLR 24, [25]-[26] (Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward and Gleeson JJ). See also Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89, [134]-[135] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ). 84 SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362, [14] (Kiefel CJ, Nettle and Gordon JJ); AB (a pseudonym) v Independent Broad-based Anti-corruption Commission (2024) 278 CLR 300, [21] (Gageler CJ, Gordon, Edelman, Steward, Gleeson, Jagot and Beech-Jones JJ). -- 27 of 75 -- [2025] SASCA 112 The Court 24 legislation, this must be derived from the statutory text rather than from any assumption made about the desired operation of the relevant provisions.85 105 The WHS Act and a long line of authorities recognise a distinction between the functions of a statutory body and its powers. Typically, the purposes or activities of the body are described as its functions, whereas it is separately conferred the powers to perform those functions.86 106 In Mercantile Mutual, the Full Court of the Federal Court addressed a challenge to examination orders made under s 597 of the Corporations Law, and held that there had been an effective delegation, relying on the general plenary power in s 11(4) of the Australian Securities Commission Act 1989 (Cth). 87 In so doing, the Court followed earlier Full Court decisions. The Court held that if the phrase in the authorisations was to be construed as indicating (erroneously) that the only relevant head of power was s 597(1), then nevertheless the authorisations were supported under the statutory power conferred by s 11(4). Section 597(1) identified the relevant function to which the conferral of power in s 11(4) applied. 107 Black CJ observed that the relevant instrument mistakenly viewed s 597 as the relevant source of power, but that this was not fatal:88 … As Lockhart J points out, it is clear from the material before the court that the second respondent assumed that the source of his power to authorise the third respondents to apply to the court under s 597 was that section itself. I consider that the instrument of authorisation reflects the ASC’s mistaken assumption, but this conclusion is not fatal to the valid exercise of the power that the ASC had by reason of the combination of s 11(4) of the ASC Act and s 597 of the Corporations Law: see Brown v West (1990) 169 CLR 195 at 203. This case is quite different from Australian Broadcasting Tribunal v Saatchi & Saatchi Compton (Vic) Pty Ltd (1985) 10 FCR 1. There must of course be limits to the general principle that an act purporting to be done under one statutory power may be supported under another statutory power. … 108 Lockhart J considered the issue from the perspective of the Australian Securities Commission (ASC) and who may be authorised by the ASC to make application to a court under s 597 of the Corporations Law to seek an examination order:89 The ASC Act draws a distinction between the functions and powers of the ASC, a distinction well recognised in the law with respect to the functions and powers of administrative bodies. The distinction is between functions or purposes or activities of an administrative body on the one hand, and the powers conferred upon it to perform or 85 Certain Lloyd’s Underwriters v Cross (2012) 248 CLR 378, [26] (French CJ and Hayne J). 86 Australian Broadcasting Tribunal & Actors Equity of Australia Ltd v Saatchi & Saatchi Compton (Vic) Pty Ltd (1985) 10 FCR 1, 4-8 (Bowen CJ); Majar v Northern Land Council (1991) 37 FCR 117, 136 (Olney J). 87 Mercantile Mutual (1993) 40 FCR 409. 88 Mercantile Mutual (1993) 40 FCR 409, 412 (Black CJ). 89 Mercantile Mutual (1993) 40 FCR 409, 422 (Lockhart J, with whom Black CJ agreed). -- 28 of 75 -- [2025] SASCA 112 The Court 25 execute those functions, purposes and activities on the other. As Northrop J and I observed in Edelsten v Health Insurance Commission (1990) 27 FCR 56 at 63: “The types of statutory contexts in which the expressions ‘functions’ and ‘powers’ of such bodies appear to differ considerably. Sometimes the two expressions are treated interchangeably or with blurred dividing lines; whilst some statutory definitions of ‘functions’ provide that ‘functions include powers and duties’: see the definition of function in Stroud’s Judicial Dictionary of Words’ and Phrases (5th ed, 1986) and Kathleen Investments (Australia) Ltd v Australian Atomic Energy Commission (1977) 139 CLR 117 at 130; Leon Fink Holdings Pty Ltd v Australian Film Commission (1979) 141 CLR 672 at 677-678; Committee of Direction of Fruit Marketing v Australian Postal Commission (1979) 37 FLR 457.” See also Australian Broadcasting Tribunal v Saatchi & Saatchi Compton (Vic) Pty Ltd (1985) 10 FCR 1 per Bowen CJ at 4 and 8. Since the ASC has many diverse functions conferred on it from various statutory sources, obviously there is a need for it to be invested with incidental powers, the logical repository of which is the ASC Act itself. … It is clear from the language of s 597(1), (2) and (3) of the Corporations Law that the Parliament envisaged that the functions, purposes or activities of the ASC would include the authorisation of persons, other than an official manager, liquidator or provisional liquidator of a corporation, to make application to a court under s 597 in relation to that corporation. … In my opinion these considerations lead to the conclusion that s 597 itself confers the function upon the ASC of authorising persons to apply to a court for an order under s 597. 109 Soon after this decision, the New South Wales Court of Appeal took a different view regarding the same legislation in Burns Philp & Co Ltd v Murphy,90 albeit agreeing that the authorisation given by the ASC was valid. 110 In his reasons, Mahoney JA took the view that the State law – then relevantly s 597 of the Corporations Law – could not in combination with the plenary power provision in the Commonwealth Act – s 11(4) of the Australian Securities Commission Act 1989 (Cth) – be relied on to confer power on a Commonwealth authority to effect the relevant delegation:91 But the Commonwealth and the various State Corporation Laws are drawn in terms which assume that ASC will do, and be able to do, what the terms of those laws assume it to do. Thus, they assume that it will, within s 597, be able to “authorise” a person to make a s 597 application. It is therefore necessary to see how the legislative scheme operates to confer that power on ASC. Two things have been suggested: that the power granted to ASC by s 11(4) of the Australian Securities Commission Act (“to do whatever is necessary for or in connection with, and reasonably incidental to, the performance of its functions”); and that the power granted to it by s 11(7) (“the Commission has any functions and powers that are expressed to be conferred on it by a national scheme law of another jurisdiction”), operate in this way. 90 Burns Philp & Co Ltd v Murphy (1993) 29 NSWLR 723. 91 Burns Philp & Co Ltd v Murphy (1993) 29 NSWLR 723, 726 (Mahoney JA). -- 29 of 75 -- [2025] SASCA 112 The Court 26 Judges of the Federal Court, in the cases to which I have referred, have concluded that ASC has power to act under the New South Wales Act to authorise a person to make a s 597 application because such a power is, within s 11(4) of the Australian Securities Commission Act, necessary or incidental to the performance of its functions within that paragraph. With appropriate hesitation, I have come to a different conclusion. What is involved is the doing of something which a State Act purports to empower it to do or assumes it may do. But the “functions” of a Commonwealth authority prima facie cannot be conferred on it, as such, by a State; consequently, the power to grant an authority under s 597 of a State Act prima facie cannot be one of the “functions” of the ASC. I am of the opinion that the power to grant an authority under s 597 is conferred by s 11(7) of the Australian Securities Commission Act. The Australian Securities Commission Act, as a Commonwealth Act, confers on a Commonwealth authority “functions and powers that are expressed to be conferred on it by” a State Act. Section 597(1), I think, operates to do that. 111 In separate reasons, Clarke and Handley JJA explained the context in which the issue arose:92 … Section 597(1) appears to be an interpretation provision which defines “prescribed person” as including “any other person authorised by the Commission”. Mr Bathurst QC submitted that this assumes but does not confer the power to authorise others, which must be found elsewhere. The principal issue thus became whether s 597(1) conferred or was expressed to confer any power or function on the ASC in relation to the grant of such authorities. If it did there was no dispute that it had been delegated to Mr Braham and validly exercised by him in favour of the new trustees. Mr Bathurst QC submitted that the source of the ASC’s power to grant an authority under s 597(1) was s 11(4) of the Australian Securities Commission Act 1989 (Cth) which provides: “The Commission has power to do whatever is necessary for or in connection with, or reasonably incidental to, the performance of its functions.” Section 11(7) further provides: “The Commission has any functions and powers that are expressed to be conferred on it by a national scheme law of another jurisdiction.” Section 11(7) applies to functions and powers which cannot, for constitutional reasons, be conferred by State law alone on the ASC as a Federal corporation. As a Federal law it authorises the ASC to receive and exercise functions and powers which are “expressed to be conferred” on it by State law: see Re Cram; Ex parte NSW Colliery Proprietors' Association Ltd (1987) 163 CLR 117 at 126-127. The States have passed national scheme laws such as the Corporations Law (NSW) which, despite their terms, do not of their own force confer functions and powers on the ASC but are only expressed to do so. Such functions and powers are picked up and vested in the ASC by s 11(7). The claimants’ point is that s 597(1) is a mere definition section which is not expressed to confer any function or power. The issue thus became whether s 11(4) was the source of the ASC’s function or power to grant an authority for the purposes of s 597 or whether that function or power was expressed to be conferred by s 597(1) and actually conferred by s 11(7). 92 Burns Philp v Murphy (1993) 29 NSWLR 723, 729 (Clarke and Handley JJA). -- 30 of 75 -- [2025] SASCA 112 The Court 27 112 Their Honours explained why the general plenary power in s 11(4) did not assist:93 … If s 11(4) was the source of the ASC’s power the claimants would succeed in relation to the instrument of 21 March 1991 because the powers under s 11(4) were not delegated by that instrument. It would then be necessary to consider the later instruments of delegation by the ASC which were relied upon by the new trustees. If the matter were free of authority we would have concluded that the power was derived by implication from s 597(1), was expressed to be conferred by that section, and was delegated by the instrument of 21 March 1991. Section 11(4) confers on the ASC powers which are necessary for or reasonably incidental to the performance of its functions. Such a provision is frequently inserted in a statute for more abundant caution but any grant of power statutory or otherwise carries with it by implication all incidental powers necessary for its effective exercise. Section 11(4) therefore adds nothing to the express powers and functions otherwise conferred on the ASC: see D’Emden v Pedder (1904) 1 CLR 91 at 110, Ex parte Walsh and Johnson; In re Yates (1925) 37 CLR 36 at 120, 121 and Philip Morris Inc v Adam P Brown Male Fashions Pty Ltd (1981) 148 CLR 457 at 496; see also McCarthy & Stone (Development) Ltd v Richmond upon Thames London Borough Council [1992] 2 AC 48 at 68. 113 Justices Clarke and Handley took a similar approach to Mahoney JA, although, as has been seen, they would have been prepared to find that the requisite power could be derived by implication from s 597(1):94 Section 11(4) only applies where it is possible to identify a function of the Commission. It does not apply in terms to the Commission’s powers. The distinction between a function and a power is not clear and in some contexts may be illusory but it is drawn in several places in s 11. … Nothing of significance for present purposes ought to turn on any distinction between function and power, and in particular on whether s 597(1) is expressed to confer on the ASC a power to authorise others to act as prescribed persons or only a function of doing so. If nevertheless it is necessary to know whether s 597(1) is expressed to confer this function, and the Court should conclude that it does then s 597(1) is the source of the function and by necessary implication confers all powers necessary for its effective exercise. On the other hand if s 597(1) does not confer that function s 11(4) has nothing to operate on and cannot be the source of the power. In the result we have reached the firm conclusion that this function or power is, by necessary implication, expressed to be conferred by s 597(1), and is actually vested in the ASC by s 11(7). The challenge to the appointment of the new trustees as prescribed persons therefore fails. 114 Their Honours then referred to Mercantile Mutual, explaining why they declined to follow it:95 Since preparing the substance of the foregoing reasons the Federal Court has given judgment in Mercantile Mutual Life Insurance Co Ltd v Australian Securities Commission (1993) 11 ACLC 235 and has decided to follow its previous decision in Hongkong Bank of Australia Ltd v Australian Securities Commission. We have carefully considered the reasons for judgment of the Court but have not been persuaded that we should come to a 93 Burns Philp v Murphy (1993) 29 NSWLR 723, 730 (Clarke and Handley JJA). 94 Burns Philp v Murphy (1993) 29 NSWLR 723, 730-731 (Clarke and Handley JJA). 95 Burns Philp v Murphy (1993) 29 NSWLR 723, 731-732 (Clarke and Handley JJA). -- 31 of 75 -- [2025] SASCA 112 The Court 28 different conclusion, or that we should follow the Federal Court decisions despite our own view. In the present case our decision will have the merit of achieving consistency of result in that the challenges to the status of the new trustees as “prescribed persons” in this Court and the Federal Court will all have failed, although for differing reasons. 115 Of course, the complicating interaction between State and Federal legislation is not an issue in this case. This debate between the Federal Court and the Court of Appeal tends however to demonstrate the artificiality of drawing firm distinctions between functions and powers, as well as the difficulties that can arise when identifying a source of power which may or may not be express, and which may or may not correspond with the way in which an Instrument of Delegation has been drawn. 116 In this case, the functions and powers of the regulator are expressly addressed in ss 152 and 153 of the WHS Act. And, as has been seen, s 152 of the WHS Act prescribes a number of functions, including the function of conducting and defending proceedings under the WHS Act before a court or tribunal.96 117 It is necessary to construe that function having regard to the statutory context. That context is that the word “proceedings” necessarily includes proceedings for an offence against the WHS Act as well as proceedings for a contravention of a civil penalty provision. The expression “to conduct” is necessarily broader than merely “carrying on” those proceedings, and it is sufficiently broad in meaning to encompass the bringing of proceedings for an offence against the WHS Act.97 118 Having identified a relevant function of the regulator, it is necessary then to consider s 153(1) of the WHS Act, which provides that the regulator “has the power to do all things necessary or convenient to be done for or in connection with the performance of its functions”. 119 Whilst this is a very broad grant of power, it is necessarily constrained by the legislative context and, in particular, the functions conferred by the statute.98 The phrase “for or in connection with” is broad, encompassing powers which it may be necessary or convenient to exercise rather than merely those powers required “for” the performance of the specified function.99 Indeed, the expression “in connection with” spans a spectrum of connections, ranging between those which are direct and immediate, to those which are tenuous and remote.100 120 Accordingly, these provisions of the WHS Act indicate that the regulator is conferred the powers necessary or convenient to be exercised in connection with 96 See WHS Act, s 152(h). 97 Wallis v John Holland [2024] WASCA 26, [41] (Buss P), citing Raymond v Attorney-General [1982] QB 839, 846-847 (Sir Sebag Shaw); Biochem Pharma Inc v Commissioner of Patents (1998) 82 FCR 87, 92 (Hill J). 98 Hird v Chief Executive Officer of Australian Sports Anti-Doping Authority (2015) 227 FCR 95, [210] (Kenny, Besanko and White JJ). 99 Berry v Federal Commissioner of Taxation (1953) 89 CLR 653, 658-659 (Kitto J). 100 Berry v Federal Commissioner of Taxation (1953) 89 CLR 653, 658-659 (Kitto J); Re Warden Calder; Ex parte Lee (2007) 34 WAR 289, [36]-[38] (McLure JA, with whom Pullin and Buss JJA agreed). -- 32 of 75 -- [2025] SASCA 112 The Court 29 the performance of the function of bringing proceedings for an offence against the WHS Act. This conclusion appears to accord with the views expressed by Buss P in Wallis v John Holland.101 121 Section 154(1) authorises the regulator to delegate a power or function. The delegation of a statutory function or power confers authority on another to do things which otherwise the delegator would have to do for itself.102 No strict or narrow view of the Instrument of Delegation should be taken.103 Its meaning and effect in this case is clear. Each person specified in Schedule 1 is delegated the functions and powers specified in Schedule 2, including those “under” s 230 of the WHS Act. 122 In this case, the regulator relevantly purported to delegate to Mr Napier the powers and functions “under” s 230 of the WHS Act. Section 230(1)(b) explicitly recognises that proceedings for an offence may be brought by an inspector with the written authorisation of the regulator, or here its delegate. 123 Whilst it is not in dispute that one purpose of s 230(1) was to narrow the class of persons who may commence prosecutions for offences under the WHS Act, it is doubtful whether that is the full extent of the operation of s 230(1). Insofar as is relevant to this case, s 230(1)(b) assumes that proceedings for an offence can be brought by an inspector with the written authorisation of the regulator. Here, that means an inspector with the written authorisation of the regulator’s delegate, Mr Napier. 124 When one looks at s 230 as a whole, including s 230(2), s 230(1)(b) does more than identify a member of the class authorised to bring proceedings for an offence against the WHS Act. In a manner similar to other legislation,104 s 230(1)(b) should also be seen as a source of the power to authorise and implement the function of bringing proceedings for a prosecution under the WHS Act. Here, the power is a matter of implication having regard to the whole of the provision, when read in context. By implication, s 230 should therefore be seen as a provision which incorporates both a function and a power. 125 The regulator, through Mr Napier, therefore authorised the respondent to commence proceedings under s 230. The instrument recognised that the written authorisation of the regulator, through Mr Napier, was both necessary and had the effect of conferring on the respondent the power to commence proceedings. This conclusion is, to an extent, reinforced by the text of s 230(2), which recognises that 101 Wallis v John Holland [2024] WASCA 26, [47] (Buss P). 102 Huth v Clarke (1890) 25 QBD 391, 395 (Wills J). 103 Mercantile Mutual (1993) 40 FCR 409, 440 (Gummow J); Parks Holdings Pty Ltd v Chief Executive Officer of Customs (2004) 81 ALD 365, [87] (Goldberg J). 104 Burns Philp & Co Ltd v Murphy (1993) 29 NSWLR 723, 729-730 (Clarke and Handley JJA); Bell v The Queen (2020) 286 A Crim R 501, [152]-[168] (Kourakis CJ, Peek and Blue JJ) regarding the “functions” provision in s 7(1)(a) of the Independent Commissioner Against Corruption Act 2012 (SA). As to the last case, see the discussion by Solomon J in Wallis v John Holland [2024] WASCA 26, [229]-[234]. -- 33 of 75 -- [2025] SASCA 112 The Court 30 the written authorisation given under s 230(1)(b) is a “sufficient authority” to continue proceedings in the event of amendment. 126 This conclusion accords with the view of Buss P in Wallis v John Holland,105 as well as the tentative view expressed by Solomon J in that case.106 127 Having said that, both Vaughan JA and Solomon J in Wallis v John Holland preferred the view that s 230 identified the relevant function and was backed by the broad conferral of power under s 153.107 For the purposes of determining this part of Cleanaway’s appeal, this would represent yet another available avenue by which the relevant function of the regulator, to provide a written authorisation of an inspector to bring a prosecution, had been effectively delegated. 128 Accordingly, and whether one views the case as depending on the combination of the function identified in s 152(h) supported by the powers conferred by ss 153 and 230(1)(b), and in addition or alternatively on the function in s 230 supported by the power in s 153, in each case read together with the power of delegation in s 154, the respondent was authorised in writing to commence these proceedings. 129 It follows that appeal ground 5 should be dismissed. Appeal ground 1: the scope of the prosecution case 130 Cleanaway contended that this ground concerned the fundamental principle that the prosecutor must properly articulate the basis of a charge and, subject only to amendment, be held to that charge.108 131 Cleanaway contended that this principle is of particular significance in work health and safety prosecutions where the physical element of the offence is that the accused failed to implement a reasonably practicable measure that would have eliminated or minimised the specified risk. A valid charge requires the clear specification of the measure relied on by the prosecution.109 Cleanaway relied upon the following statement of the principle in Grasso Consulting Engineers Pty Ltd v SafeWork NSW:110 In a prosecution such as this the identification of the particulars of breach is critical. The prosecution must provide particulars of the acts or omissions said to give rise to the failure to comply with a health and safety duty.111 An accused person could only be convicted if 105 Wallis v John Holland [2024] WASCA 26, [51]-[52] (Buss P). 106 Wallis v John Holland [2024] WASCA 26, [238] (Solomon J). 107 Wallis v John Holland [2024] WASCA 26, [129]-[130] (Vaughan JA), [238] (Solomon J). 108 Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531, (Kirk), [5], [12]-[19], [26]-[37] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). 109 Bunnings Forest Products Pty Ltd v Shepherd [1998] WASCA 119 (Bunnings Forest Products) (Anderson J, with whom Franklyn and Ipp JJ agreed); S Kidman & Co Ltd v Lowndes CM (2016) 314 FLR 358, [66], [99]-[103] (Grant CJ, Kelly and Hiley JJ). 110 Grasso Consulting Engineers Pty Ltd v SafeWork NSW [2021] NSWCCA 288 (Grasso v SafeWork), [54] (Cavanagh J). 111 Kirk (2010) 239 CLR 531, [16] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). -- 34 of 75 -- [2025] SASCA 112 The Court 31 the prosecution establishes beyond reasonable doubt that the person failed to comply with the duty in one of the ways particularised. (Citations in original.) 132 Under charges 1 and 2, Cleanaway pointed to particulars 6 to 9 as identifying the alleged risk to health and safety, together with the failure to implement specified reasonably practical measures that would have eliminated or minimised that risk. 133 Cleanaway submitted that the prosecutor was obliged to prove all of the measures specified in particular 9, together with proof that the measure was reasonably practicable (having regard to s 18 of the WHS Act) and that, if implemented, the measure would have eliminated or minimised the risk particularised at paragraph 6 (having regard to s 17 of the WHS Act). The relevant measure was particularised as follows in sub-paragraph 9: … to maintain a system of work whereby Darren Hicks was prevented from driving vacuum trucks without supervision until his competence to drive all vehicles he may be required to drive in the course of his work was properly determined by the defendant, including the assessment by the defendant of Darren Hicks’ competence in the task of driving a truck with a manual gearbox … 134 Cleanaway contended that the prosecutor abandoned a significant part of its case at the stage of Cleanaway’s “no case” submission and did not seek to amend. Rather, the prosecutor maintained that all of the charges were proved to the requisite standard because it was reasonably practicable for Cleanaway to “competency assess” Mr Hicks in relation to the vehicle being driven on 18 August 2014 along the South Eastern Freeway. 135 It was on this basis, said Cleanaway, that the magistrate found the appellant guilty by inference,112 without regard to the well-known principle that the criminal standard of proof must exclude reasonably hypotheses consistent with innocence, as distinct from proof of circumstances raising the more probable inference in favour of what is alleged.113 136 Cleanaway contended that the appeal judge recognised that the charges as pleaded and particularised could not on the evidence succeed.114 Cleanaway complained that rather than concluding that the charges should therefore be dismissed, and the relevant convictions quashed, the appeal judge treated the charges as if they alleged a failure to instruct Mr Hicks about which gears to use and when to change gears when travelling down the South Eastern Freeway in the particular truck he was driving on the day of the collision.115 This, said Cleanaway, 112 Magistrate, [297], [321], [345] and [365]. 113 Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1, 5 (Dixon, Williams, Webb, Fullagar and Kitto JJ); Luxton v Vines (1952) 85 CLR 352, 358 (Dixon, Fullagar and Kitto JJ); Re Day (2017) 91 ALJR 262, [18] (Gordon J). 114 Appeal judge, [42]. 115 Appeal judge, [16], [41], [54], [96]-[97] and [119]. -- 35 of 75 -- [2025] SASCA 112 The Court 32 was a fundamentally different case from the prosecution case advanced in the charges. 137 Moreover, it required that the appeal judge embark on a reasoning process that was not the subject of submissions or argument, and conflicted with fundamental principles of the criminal law, which included that it is for the prosecution to prefer the charges it sees fit and the accused has no say in the form of the charges brought against it.116 138 This approach was adopted, Cleanaway contended, despite the appeal judge reasoning that the inclusion of the “all vehicles” and “all routes” allegations were unnecessary and embarrassing, and that it would have been open to Cleanaway to have those particulars struck out. The appeal judge held that the unduly broad pleading “could not have caused the appellant any prejudice”.117 139 Cleanaway attacked that particular conclusion. Cleanaway relied on the following statement of principle:118 … a defendant is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge. 140 Cleanaway contended that the allegations in charges 1 and 2 were clear and were not embarrassing, though they became embarrassing for the prosecution when they could not be proved. Cleanaway contended that there was no basis nor right for it to have the “all vehicles” reference, nor any other parts of the charges, struck out. 141 Although the appeal judge held that it was not necessary for the prosecutor to have alleged the “duty” so widely,119 whether a different prosecutor may have brought different or more narrowly formulated charges did not relieve the prosecution of the burden of proving the charges in fact preferred in this case beyond reasonable doubt. 142 Contrary to the suggestion made by the appeal judge, Cleanaway contended that the bulk of the evidence in the case went to proving the measures that it did not have in place to “properly determine” the competence of Mr Hicks to drive all vehicles and all routes and that it did not have in place the measure alleged in the 116 X7 v Australian Crime Commission (2013) 248 CLR 92, [99]-[101] (Hayne and Bell JJ); Cheung v R (2001) 209 CLR 1, [47] (Gleeson CJ, Gummow and Hayne JJ); Maxwell v The Queen (1996) 184 CLR 501, [27] (Gaudron and Gummow JJ). 117 Appeal judge, [44]. 118 Johnson v Miller (1937) 59 CLR 467, 489 (Dixon J). 119 Conflicting with the principle that relevant risk should not be defined narrowly and with undue focus on any particular accident, Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676 (Vibro-Pile), [86] (Maxwell P, Redlich and Whelan JJA). -- 36 of 75 -- [2025] SASCA 112 The Court 33 charge sheet. As for the incident itself, the prosecution had repeatedly asserted that it was relevant only to the fact and magnitude of the pleaded risk.120 143 In these circumstances, Cleanaway contended that the failure to prove all that was alleged should have resulted in findings of not guilty on charges 1 and 2. By failing to proceed in that way, the appeal judge erred and fell into jurisdictional error by upholding the appellant’s conviction on the basis of a perceived failure to implement a measure other than that specified in the charges which had not been alleged. 144 For the respondent, it was contended that the case pleaded was clear and the trial was conducted in a manner consistent with the way in which the case was pleaded.121 The respondent contended that the particulars were drafted with the necessary precision and specificity.122 145 The respondent acknowledged that the appeal judge held that paragraph 9 was unnecessarily broad,123 but that the prosecution case was otherwise clear from particulars 5 and 8.124 The respondent placed particular emphasis on the finding of the appeal judge that the trial was conducted in such a way that the magistrate was left in no doubt that the prosecution case was confined to the vacuum truck and the descent on the freeway.125 146 The respondent acknowledged that particulars must be sufficiently clear that a defendant understands the case it is required to meet. However, the respondent relied on the principle stated in HD Projects Pty Ltd v SafeWork NSW that, unless the case is run on a different basis or a particular is in some way integral to the offence, it is not necessary that the prosecution establish each of the particulars of breach in order to secure a conviction.126 147 The respondent criticised the approach of Cleanaway as inviting an artificial and erroneous application of the principles regarding the importance of specificity in a pleading, and that when the case against Cleanaway was considered by reference to the entire pleading and the case as opened and thereafter conducted, the appeal judge did not err in upholding the convictions on charges 1 and 2. The determination of appeal ground 1 148 Justice Peek adopted the following propositions regarding the pleading of charges in a work safety prosecution in John Holland Pty Ltd v Hanel:127 120 Vibro-Pile (2016) 49 VR 676, [91] (Maxwell P, Redlich and Whelan JJA). 121 Appeal judge, [10], [42]. 122 John Holland Pty Ltd v Hanel [2016] SASC 192, [23] (Peek J). 123 Appeal judge, [41]. 124 Appeal judge, [42]. 125 Appeal judge, [43]. 126 HD Projects Pty Ltd v SafeWork NSW [2022] NSWCCA 212, [81] (Cavanagh J, with whom Hamill J agreed). 127 John Holland Pty Ltd v Hanel [2016] SASC 192, [23] (Peek J). -- 37 of 75 -- [2025] SASCA 112 The Court 34 The complainant states of a passage in his outline of argument that “the following principles of general application emerge from the case law and appear to be uncontroversial”. The defendant agreed with that statement, as do I, and the passage appears thus: a. ‘…a charge should be interpreted in the manner a reasonable defendant would understand it, giving reasonable consideration to the words of the charge in their context’.128 b. In assessing the validity of a charge, a court is ‘entitled-and the defendant must be expected-to use common sense in drawing any inference that is apparent on the face of the document’.129 c. The common law requires that a defendant is entitled to be told not only of the legal nature of the offence with which he or she is charged, but also of the particular act, matter or thing alleged as the foundation of the charge.130 d. ‘The question that arises…is whether the… charge contained the particulars necessary to give reasonable information as to the nature of the charge. The “nature of the charge” involves the conduct making up the actual ingredients of the offending’.131 e. The common law requirement is that an information, or an application containing a statement of offences, “must at the least condescend to identifying the essential factual ingredients of the actual offence”.132 f. These facts need not be as extensive as those which a defendant might obtain on an application for further and better particulars.133 (Citations in original.) 149 In HD Projects Pty Ltd v SafeWork NSW,134 the Court relied on the following extract from R v Radic, concerning the need to prove essential facts rather than inessential facts or particulars:135 There can be no doubt that a charge under s 112(1) of the Crimes Act, which relies upon stealing as the indictable offence, must identify specific property which is alleged to have been stolen. The importance of this requirement is evident from a number of cases, discussed in Archbold, Criminal Evidence and Practice (2001) at [21]-[56]. Reference may be made to Lacis v Cashmarts [1969] 2 QB 400; [1969] 2 WLR 329; Tideswell [1905] 2 KB 273 and Pilgram v Rice-Smith [1977] 2 All ER 658; [1977] 1 WLR 671; (1977) 65 Cr App R 142. 128 DPP Reference No 2 of 2001 [2001] VSCA 114, [40]; cited by Kyrou J in Contract Control Services Pty Ltd v Brown [2012] VSC 369, [33]. 129 Reedy v O’Sullivan [1953] SASR 114, 129. 130 Johnson v Miller (1937) 59 CLR 467, 486 and 501; Kirk (2010) 239 CLR 531, [26]. 131 Baiada Poultry Pty Ltd v Glenister (2015) 257 IR 204, [16]. 132 Kirk (2010) 239 CLR 531, [26]. 133 Kirk (2010) 239 CLR 531, [26]; see also John Holland Pty Ltd v Industrial Court of NSW [2010] NSWCA 338, [78]-[79], [123], [141]; Baiada Poultry Pty Ltd v Glenister (2015) 257 IR 204, [52]. 134 HD Projects Pty Ltd v SafeWork NSW [2022] NSWCCA 212. 135 R v Radic (2001) 122 A Crim R 70, [32]-[33] (Carruthers AJ, with whom Hidden J and Badgery-Parker AJ agreed). -- 38 of 75 -- [2025] SASCA 112 The Court 35 A helpful statement of general principle is to be found in VHP (unreported, Court of Criminal Appeal, NSW, No 60773 of 1996, 7 July 1997) where this Court was concerned with whether the Crown had made the date of the alleged offence in a charge of sexual assault of the essence, or to put it another way, an essential ingredient of the offence. Gleeson CJ (with whom Handley JA and Studdert J agree) stated: “As a general rule, what the Crown needs to establish in order to obtain a conviction are the essential facts alleged in the indictment, and if the Crown fails to establish an inessential fact, or a particular which has been provided before the trial, or which emerged form the evidence of Crown witnesses, that is not fatal. However, that generalisation may, in any given case need to be qualified. Two examples of possible qualifications are of present relevance. First, in some circumstances the requirements of procedural or substantive fairness may restrict the capacity of the Crown to depart from particulars. Second, the evidence in a case may be such that it would not be open to a jury, acting reasonably, to treat one part of the Crown case as reliable, and another part as unreliable. The general rule was stated by Atkin J in Dossi (1918) 13 Cr App R 158 in the following terms (at 159-160): ‘From time immemorial a date specified in an indictment has never been a material matter unless it is actually an essential part of the alleged offence … Thus, though the date of the offence should be alleged in the indictment, it has never been necessary that it should be laid according to truth unless time is of the essence of the offence.’ There are, however, many examples of cases in which it has been held that time has been made of the offence of the offence, or, to use another expression adopted by judges, has been made vital, by reason of circumstances which give rise to qualifications of the kind mentioned above (eg Dean [1932] NZLR 753, Kringle [1953] Tas SR 52, Pfitzner (1976) 15 SASR 171, Macdonald (1995) 65 SASR 322; 84 A Crim R 508, Westerman (1991) 55 A Crim R 353).” 150 In HD Projects v SafeWork NSW, the Court of Criminal Appeal emphasised the basis upon which the case was run as well as whether a particular “is in some way integral to the offence”.136 The Court held that it was not necessary for the purposes of that workplace prosecution to establish each and every of the particulars of breach in order to secure a conviction. It was only necessary for the prosecution to establish that the defendant had failed to comply with a relevant duty arising under the WHS Act. 151 If this matter was approached from the perspective of the particulars, it is clear that the case was pleaded in a much broader manner than was ultimately pressed or established. The allegations concerning “all vehicles” and “all routes” were not pressed, and the question is whether the manner in which the case was run, and ultimately upheld by the magistrate and the appeal judge, caused Cleanaway relevant prejudice. 136 HD Projects Pty Ltd v SafeWork NSW [2022] NSWCCA 212, [81] (Cavanagh J, with whom Hamill J agreed). -- 39 of 75 -- [2025] SASCA 112 The Court 36 152 When one has regard to the ways in which the prosecution case was opened and closed, and the attention given to the evidence, it is clear that despite some occasional references to “all vehicles” and “all routes”, the case concentrated on what it was that Mr Hicks was required to do on the South Eastern Freeway descent on 18 August 2014 before the loss of control and collision. 153 The case for the respondent was opened with an explanation that Cleanaway operated a liquid and hazardous waste and recycling site at George Street, Wingfield, and had been declared eligible to be granted a licence under Part 8 of the SRC Act which was, from time to time, extended and, in that way, became subject to the Commonwealth jurisdiction of the WHS Act.137 154 The prosecutor explained that Truck 105 was being driven by Mr Hicks. It was being operated at Woodside in the Adelaide Hills desludging septic tanks under a long-term contract between Cleanaway and the Adelaide Hills Council. 155 After the collision, and following an investigation by Comcare, allegations were made against Cleanaway. The prosecutor explained the essence of those allegations:138 It’s alleged that there was a hazard in the workplace, namely, the fact that truck 105, a large vacuum truck was travelling at speed on public roads and specifically the South Eastern Freeway, that there was a risk that existed in the workplace, namely, that the truck could collide with pedestrians or other road users, that if this risk eventuated it could result in serious injuries or death to a worker. In this situation Darren Hicks, and/or other persons including but not limited to Thomas [Spiers], Jacqueline [Byrne] … and Louise Compton, that it said that [Cleanaway] owed a duty pursuant to s 19(1)(b) of the Act to eliminate or reduce this risk … so far as was reasonably practicable, that Cleanaway owed a duty pursuant to s 19(2) of the Act to eliminate or reduce this risk to [Spiers], Byrne and Compton so far as was reasonably practicable … 156 The prosecutor went on to explain that the existence of the risk, and the degree of harm that might result, was realised by Cleanaway and that this was apparent from the way in which it had been addressed by Cleanaway after the collision.139 157 The prosecutor opened that Cleanaway failed to comply with a health and safety duty by failing to maintain a system of work whereby Mr Darren Hicks was prevented from driving vacuum trucks without supervision until he was competent to drive all vehicles he may be required to drive in the course of his employment, and until his competence was properly determined by Cleanaway, including by the assessment of his competence in the task of driving a truck with a manual gearbox.140 These, said the prosecutor, were the allegations covered by charges 1 137 Prosecution opening, p 12. 138 Prosecution opening, pp 13-14. 139 Prosecution opening, p 14. 140 Prosecution opening, pp 14-15. -- 40 of 75 -- [2025] SASCA 112 The Court 37 and 2.141 The prosecutor explained that these charges 1 and 2 concerned “a system of work charge”.142 158 The prosecutor told the magistrate that there would be expert evidence as well as evidence from Mr Hicks.143 159 The prosecutor then explained that the collision occurred on the first day Mr Hicks was driving a heavy vehicle with a manual synchro-mesh gearbox down the South Eastern Freeway. The prosecutor explained that the case was not about the causation of the incident but about the management of the risk that existed in the workplace and that there was a reasonably practicable step for Cleanaway to have taken that would have reduced that risk, that would have better managed that risk, that was not taken.144 The evidence about the collision went to the nature and scope of the risk and what might be gleaned as to the ways that a reasonable employer might have addressed those matters as compared with what Cleanaway in fact did.145 160 The prosecutor referred to the evidence of Dr Rechnitzer and what was required in order to identify for the driver the risks and correct driving practice. This evidence would address the risk control measures for what was a well-known, high risk downhill route and would have included the stipulation and specification of the correct low gear to be used at the start of the downhill run and the use of the arrester beds in an emergency situation.146 161 The prosecutor explained that Dr Rechnitzer would say that there were a number of factors which contributed to the risk of collision and that these included Cleanaway failing to provide the required instruction, training and supervision.147 This was especially so for Mr Hicks on his first drive travelling down the steep descent of the South Eastern Freeway which was known to be hazardous.148 The prosecutor explained:149 It would have been appropriate and necessary for Cleanaway to ensure the competence of the novice heavy vehicle driver, Mr Hicks, by first arranging training in the form of Mr Hicks being a passenger with a competent and experienced drive[r] in the Isuzu travelling down the subject route to be shown the correct and safe practice. 162 In answer to questions from the magistrate, the prosecutor anticipated that there would be an issue as to whether the steps outlined by the prosecution were 141 Prosecution opening, pp 14-15. 142 Prosecution opening, p 15. 143 Prosecution opening, pp 16-17. 144 Prosecution opening, p 18. 145 Prosecution opening, pp 18-19. 146 Prosecution opening, p 19. 147 Prosecution opening, p 19. 148 Prosecution opening, p 19. 149 Prosecution opening, p 19. -- 41 of 75 -- [2025] SASCA 112 The Court 38 in fact reasonably practicable having regard to the criteria under the Act and having regard to whether they would have reduced the risk.150 163 The prosecutor opened that there would be lay evidence explaining the assessment of Mr Hicks in an automatic truck for two days and from which it would be inferred that there was no system in place to make sure that Mr Hicks was assessed in a truck with a manual gearbox.151 164 Cleanaway declined to open.152 165 The first witness was Dr George Rechnitzer, a forensic and safety engineer from Victoria.153 His evidence was initially called in connection with a voir dire to determine his expertise. In the course of his evidence, he spoke about his inspection of the rear brakes and his observation that the brake shoes were very worn and that it was very evident that these were through to the rivets and that the drums themselves appeared overheated.154 In that connection, Dr Rechnitzer spoke about his 50 years of engineering experience understanding how brakes work. 166 Dr Rechnitzer was asked about his opinion that the truck was in a high gear, fifth out of six forward gears, which offered little retardation from engine exhaust braking.155 In the course of being asked about the observations he made about the long downhill run on the South Eastern Freeway, he explained his experience 30 years previously when he was with the Accident Research Centre and his research involved investigating crashes of heavy vehicles with other road users.156 167 During the course of his voir dire evidence, Dr Rechnitzer was essentially taken through the terms of his pre-trial report. Dr Rechnitzer was then cross-examined by Mr Griffin QC, who was then counsel for Cleanaway. The cross-examiner asked Dr Rechnitzer about the brakes being in a poor condition and whether brake fade can reduce the braking power and stopping power of the vehicle. Dr Rechnitzer answered that that was so, but it could also occur even if the brakes were in good condition.157 168 Later, during the cross-examination of another of the witnesses, an objection was taken by the prosecution to cross-examination on the topic of the cause of the collision. In the course of that debate, the prosecution relied upon the decisions of the High Court in Kirk v Industrial Court of New South Wales,158 and of the Victorian Court of Appeal in Vibro-Pile,159 emphasising that the cause of the 150 Prosecution opening, pp 20-21. 151 Prosecution opening, pp 21-22. 152 Prosecution opening, p 23. 153 Transcript, p 25. 154 Transcript, p 28. 155 Transcript, p 29. 156 Transcript, p 31. 157 Transcript, p 51. 158 Kirk (2010) 239 CLR 531. 159 Vibro-Pile (2016) 49 VR 676. -- 42 of 75 -- [2025] SASCA 112 The Court 39 collision was not the issue because the case was concerned with exposure to the relevant risk.160 169 In response, the submissions from Cleanaway addressed how the accident might shed light on whether the postulated risk management would have avoided the risk. As it was put by counsel, appropriate instruction and the like would not have mattered because, assuming a competent driver, the issue that created the risk was the poor brakes and there could be no liability on the defendant.161 170 According to counsel for the respondent, counsel for Cleanaway “backed off” from the submission earlier made that there had to be a causal connection between the breach and the accident.162 Ultimately, the magistrate determined to address the issue on a question-by-question basis. 171 What emerges from these and other passages of the transcript, including the arguments about the relevance of Dr Rechnitzer’s evidence,163 is that considerable attention was devoted to the particular manual transmission truck being driven by Mr Hicks and the particular task of driving that truck down the Freeway. It was in the context of Mr Hicks’ competency to do that, that there was debate about the relevance of the poor braking system on the truck. 172 When it later came time to lead Dr Rechnitzer’s evidence, a redacted version of his report dated 10 August 2016 was adopted, together with his CV, as his evidence-in-chief. The redactions were intended to reflect the ruling earlier given by the magistrate about what was admissible. Dr Rechnitzer’s evidence was that the long and steep downhill route was clearly a problem concerning heavy trucks and the risk of brake fade.164 173 Dr Rechnitzer gave evidence that the assessment of Mr Hicks for “all vehicles” was not so onerous as to not be practicable because it did not require that he be assessed individually on every different hill that he might encounter.165 He gave evidence that if there were similar hazards and risks in different environments it was not necessary to identify each one as being different because there was a way of handling that.166 174 Dr Rechnitzer also gave evidence that it would have been appropriate and necessary for Cleanaway to ensure the competence of a novice heavy vehicle driver such as Mr Hicks by first arranging training in the form of Mr Hicks being a passenger with a competent and experienced Cleanaway driver in the vacuum truck, travelling down the subject route, to be shown the correct, safe driving 160 Transcript, p 201. 161 Transcript, p 212. 162 Transcript, p 213. 163 See, for example, the debate about the licensing and certification of Mr Hicks, transcript p 556. 164 Exhibit P13, p 19. 165 Transcript, p 793. 166 Transcript, p 793. -- 43 of 75 -- [2025] SASCA 112 The Court 40 practice. That is to say, the correct low gear and no braking to slow the vehicle except in an emergency.167 As Dr Rechnitzer explained it in his report:168 Reasonably practicable steps would have included: ensuring the roadworthy condition of the heavy vehicle and in particular the brakes; instruction and training to the driver on how to travel safely down the route including low gear selection without need of brakes except in an emergency; and emergency use of the runoff safety ramp. Preferably such training should have been with an experienced driver … … It would have been practical, and indeed appropriate as part of the competency assessment of a new driver for Mr Skinner to not confine his assessment just to the ad hoc unplanned assessment and include (and on the next days as necessary): i. test Mr Hicks … in a manual gear-box vehicle, … 175 Dr Rechnitzer gave evidence that the assessment undertaken by Mr Skinner should have included an assessment of Mr Hicks using different types of gearboxes.169 176 A consideration of the evidence led from Mr Hicks and other lay witnesses tended to demonstrate the attention given to the risks associated with driving a vacuum truck with a manual gearbox down the South Eastern Freeway.170 177 In closing, the respondent relied on various parts of the evidence to demonstrate that a truck driver should not have to use the foot brakes to control the speed of the truck and that a driver could select an appropriate gear before descending a hill.171 An appropriate gear was one low enough that the primary foot brakes did not need to be used and the speed of the truck could be retarded by the engine brake.172 178 This concentration on driving a manual truck down the South Eastern Freeway continued during the final addresses and enabled the magistrate to conclude:173 … it is plain from the evidence led by the Crown that the allegations were specific. The trial was focussed on the driving by Darren Hicks of a manual truck (Truck 105), down the South Eastern Freeway which culminated in a collision at the bottom of that freeway on 18 August 2014. 167 Exhibit P13, p 42. 168 Exhibit P13, pp 57-60. 169 Exhibit P13, p 60. 170 See Mr Darren Hicks, transcript p 407 onwards; Mr Darryn Cleary, transcript p 217 onwards; Mr Gregory Skinner, transcript p 313 onwards. 171 See Exhibit P15, the forensic mechanical engineering report from Dr White. 172 Exhibit P15, transcript pp 224-225, 230-231, 367-368. 173 Magistrate, [86]-[87]. -- 44 of 75 -- [2025] SASCA 112 The Court 41 The contrary construction suggested by the defendant and said to have been adopted by the prosecution would make little sense. How could it be said for instance that a failure to properly determine Hicks’ competence to drive a different type of vehicle or to drive a different route would have exposed the specific individuals alleged to a risk of death or serious injury on 18 August 2014. In my view, the construction suggested by the defendant is not only not available but illogical. I am of the view the allegations of failure contained in Particular 9 of each charge have been specific from the outset of the trial. I do not accept the defendant’s argument. 179 This approach to rejecting the proposition that the respondent had adopted a case different from that set out in the Summons and Complaint during the course of the trial was accepted by the appeal judge as well. As the appeal judge described it:174 By ground one of its notice of appeal Cleanaway complains that the Magistrate erred in holding that the prosecution was not required to prove those particulars of the charges alleging a failure by Cleanaway to discharge its duties in respect of Mr Hick’s competence to drive all vehicles on all routes. I would dismiss this ground of appeal for the reason that the trial was clearly conducted on the basis that Cleanaway breached its duties under the Act in respect of Mr [Hicks’] competence to drive the vacuum truck on the descent of the Freeway. Indeed, the gravamen of the offences charged against s 32 of the Act was the exposure of Cleanaway’s employees, and others to the risk of injury from a collision between the vacuum truck and others on that descent. The extension of the particulars to all routes and all vehicles was unnecessary and embarrassing and ought, if an application had been made by Cleanaway, to have been struck out. Cleanaway did not so apply and there was therefore no prejudice to it, other than, perhaps, as to costs. However, it is a consequence of my conclusion that offences against s 32 are anchored in the particular risk to which others were exposed, and that a separate offence is not committed for each act or omission in breach of the duties imposed, that Cleanaway is entitled to a defence by way of a plea in bar to all counts but the first two. (Emphasis in original.) 180 It has not been demonstrated that the appeal judge erred in his approach to the pleaded counts or his appreciation of the course of the trial. It has not been demonstrated that Cleanaway was relevantly prejudiced in any material way by the convictions based on the risks posed by traveling in a vacuum truck with manual transmission down the South Eastern Freeway. 181 Appeal ground 1 should be dismissed. Appeal ground 2 – proof of Mr Hicks’ competence 182 Here, Cleanaway challenged the factual finding that Mr Hicks’ competence to drive had not been “properly determined”. Cleanaway invoked the same fundamental principle as it relied on under appeal ground 1. 174 Appeal judge, [9]-[10]. See also [43]-[46]. -- 45 of 75 -- [2025] SASCA 112 The Court 42 183 As Cleanaway put it, the prosecution alleged, and was required to prove, that Mr Hicks’ competence to drive all vehicles he might be required to drive in the course of his employment, had not been “properly determined”. That needed to be established according to the statutory scheme in place in South Australia concerning licensing and certification for driving heavy vehicles. 184 Cleanaway contended that where the imposition of a general duty is alleged to arise in circumstances where a coherent statutory scheme exists regulating the area of controversy, the existence and content of the alleged duty must be construed in light of the statutory scheme.175 185 According to Cleanaway, it is inconsistent with and subverts the coherent operation of the statutory scheme for determining the competence of heavy vehicle drivers to find that the determination and certification of competency under the statutory scheme was not a “proper determination”. 186 Cleanaway relied on the decision in Bunnings Forest Products.176 In Bunnings Forest Products, the charge required the prosecutor to prove that the worker had been “instructed” to perform certain work. That was not done.177 187 In this case, the charges required that the prosecution prove that Cleanaway had not properly determined the competence of Mr Hicks to drive “all vehicles” and “all routes”. Cleanaway contended that the appeal judge failed to grapple with this issue “properly or at all”. Cleanaway contended that without addressing the comprehensive and detailed evidence regarding the requirement to obtain a licence and certificate of competency, the appeal judge had simply observed, without any evidentiary foundation, that obtaining a heavy vehicle licence was a regulatory requirement which ensured a minimum, but not always sufficient, standard of competence.178 188 Cleanaway contended that it was inapt to correlate learner drivers with a competency-based assessment of heavy vehicle drivers without regard to the evidence. On this basis, Cleanaway contended that to deny that the assessment under the statutory scheme constituted a proper determination of competence was “not compatible with proper recognition of the detailed legislative scheme enacted precisely for that purpose”.179 189 The respondent contended that the appeal judge was right to find that the statutory scheme ensured a minimum but not always sufficient standard of 175 CAL No 14 Pty Ltd v Motor Accidents Insurance Board (2009) 239 CLR 390, [41]-[42] (Gummow, Heydon and Crennan JJ). 176 Bunnings Forest Products [1998] WASCA 119. 177 Bunnings Forest Products [1998] WASCA 119, 24-25 (Anderson J, with whom Ipp and Franklin JJ agreed). 178 Appeal judge, [16] and [124]. 179 Appellant’s written submission, [26]. -- 46 of 75 -- [2025] SASCA 112 The Court 43 competence, especially where the regulatory licensing requirement was insufficient to mitigate the identified risk. 190 The respondent pointed to the evidence before the appeal judge from which he could be satisfied that Cleanaway well knew that something more than reliance on the statutory scheme was required to mitigate the relevant risk. That included the fact that Cleanaway employed a person to assess the competence of the drivers it employed.180 The respondent pointed to the following additional evidence: 1. There were risk assessments dated 20 May 2014 recording the probability of pedestrian/vehicle interaction as “likely” and the result as “significant” and that the implemented control measures were identified as being “Training, licensing and assessment of drivers”.181 2. Exhibit P5, dated 2012, similarly recorded a control measure for “interaction with vehicle and pedestrian traffic” as including “regular driving assessments where hazard awareness and distraction avoidance are assessed”.182 3. As earlier mentioned, the employment of Mr Gregory Skinner as a Driver Trainer/Driver Assessor.183 The determination of appeal ground 2 191 The particular passages in the reasons of the appeal judge which are criticised by Cleanaway are as follows:184 By ground four Cleanaway contends that the Magistrate erred in finding that there was sufficient evidence to prove that it was reasonably practicable to assess the competence of Mr Hicks to drive down the Freeway: • when there was no evidence that Hicks was not competent; • when Mr Hicks had been assessed as competent to hold a driver’s licence; • in the absence of an industry standard or practice as to assessment of a truck driver’s competence; • when it was not put to Hicks that he had driven down the Freeway other than in accordance with correct driving practices; • when it was not suggested to any relevant witness that the procedures that Cleanaway had in place were deficient; 180 Appeal judge, [16]. 181 Exhibits P6 and P7; Appeal judge, [87]. 182 Exhibit P5; Appeal judge, [86]. 183 Exhibit P4, [41]; Appeal judge, [86]. 184 Appeal judge, [15]-[16]. -- 47 of 75 -- [2025] SASCA 112 The Court 44 • when there was no evidence that a reasonable person conducting Cleanaway’s business would have regarded an assessment of competence to drive down the Freeway as warranting a discrete assessment. I would dismiss the appeal on this ground. The risks of a collision between a heavy vehicle like the vacuum truck and other road users arising from a failure to control its speed on the steep descent along the Freeway into a busy suburban intersection was obvious and unusual. Driver competence in effecting appropriate gear changes was an important safeguard against that risk. Holding a heavy vehicle licence is a regulatory requirement which ensures a minimum, but not always sufficient, standard of competence. So much was recognised by Cleanaway because it employed a person to assess the competence of the drivers it employed. There was no practical reason for not assessing Mr Hicks competence in gear selection for a descent of the Freeway before he was directed to drive the vacuum truck down the Freeway. 192 Later, the appeal judge returned to the issue, observing that the magistrate concluded that the training and instruction which Dr Rechnitzer had testified should have been given, and which had been particularised in the charge, was reasonably practicable.185 The appeal judge cited the following passages from the reasons of the magistrate:186 [309] I have taken this factor into account. There is no evidence regards the cost of the suggested measures. However given the findings I have already made in relation to each charge I am satisfied beyond reasonable doubt the associated costs would not be grossly disproportionate to the magnitude of the risk. There was a genuine possibility of the risk as evidenced by the incident itself. The degree of harm that might result was extreme. The defendant company new or ought to have known of the risk and [k]new or ought reasonably to have known that the driver Hicks although the holder of an unrestricted heavy vehicle licence under the statutory scheme had only recently obtained that licence and lacked practical experience in the driving of a manual heavy vehicle in particular and the driving of heavy vehicle on the South Eastern Freeway. Furthermore the defendant company had in place resources to undertake the measures which would have minimised the risk. [310] Taking all of these matters into account I am satisfied beyond reasonable doubt the suggested measure in relation to each count was one that a reasonable PCBU in the position of the defendant would have taken. They were obvious, rudimentary and necessary before the driver Hicks was assigned his tasks on 18 August 2014. They are in my view steps that any reasonably PCBU would have taken. [311] In coming to this conclusion I have taken into account the defendant’s argument concerning ‘industry standards’ and specifically whether other PCBUs have been shown to have taken the measures alleged. There is no evidence on this topic. However the absence of that evidence does not cause me to alter my finding that the measure was ‘reasonably practicable’ applying the criteria contained in s.18 of the Act. 193 The magistrate explained that he was satisfied beyond reasonable doubt that the suggested measure in relation to each count was one that a reasonable employer in the position of Cleanaway should have taken. He described these as “obvious, 185 Appeal judge, [122]. 186 Magistrate, [309]-[311]. -- 48 of 75 -- [2025] SASCA 112 The Court 45 rudimentary and necessary” before Mr Hicks was assigned his tasks on 18 August 2014.187 194 The magistrate did not lose sight of the fact that there was no evidence regarding “industry standards”. Notwithstanding the absence of that evidence, the magistrate found that that did not cause him to alter his finding that the relevant measures were “reasonably practicable” applying the criteria contained in s 18 of the WHS Act.188 After reviewing these findings, the appeal judge concluded:189 The evidence of the appellant’s own employees as to the systems which were in place demonstrate the reasonable practicability of providing training of the kind described by Dr Rechnitzer. The Freeway was not just any other road in the greater Adelaide metropolitan area. It has its unique challenges and risks which are well known to motorists who have used it and were described in the evidence of Dr Rechnitzer. The appellant had trainers and assessors available to it. If there was some reason why it was not reasonably practicable to engage one or more of them to give instructions to Mr Hicks on proper gear selection at some time from his employment up until the morning of the 18th, it was for the appellant to adduce that evidence. The appellant interweaves within many of its submissions reliance on the fact that Mr Hicks had been granted a heavy vehicle licence. The effect of the grant of that licence was to permit him, in the sense that it was not a criminal offence, to drive heavy vehicles unaccompanied by a more experienced driver. In that sense licensing is a minimum requirement. It is everyday experience of those who have learnt to drive, or who have played any part in teaching others to drive that, licensing marks the commencement of a period of honing skills and amassing experience as an unsupervised driver. It is a minimum requirement. 195 It may be accepted that where there has been an assessment made under a statutory driving scheme, associated with licensing and certification, that will provide some assurance about a driver’s level of competence. However, there is an obvious difference between being properly licensed and certified, and being competent to perform particular tasks in a range of settings, when not all of these may necessarily have been assessed in the course of licensing and certification. That problem is reinforced in a case such as the present where the relevant driver lacked both experience and expertise in connection with a hazardous downhill stretch of the Freeway. 196 Whilst it may be true to say that Mr Hicks was not truly a “learner”, it was equally clear that his competence to drive a vacuum truck with a manual gearbox down a steep decline which was notoriously accident prone had not been evaluated or assessed by Cleanaway. 197 In a loose, and admittedly broad way, some analogy might be drawn between the statutory duties of the driver of a motor vehicle to be licensed and to obey the rules of the road, on the one hand and, on the other, the various common law and statutory duties which require the exercise of reasonable care for the safety of 187 Magistrate, [310]. 188 Magistrate, [311]. 189 Appeal judge, [123]-[124]. -- 49 of 75 -- [2025] SASCA 112 The Court 46 others in connection with the operation of a motor vehicle in different settings. Whilst these are not in conflict and are complementary,190 merely being licensed and obeying the rules of the road does not necessarily equate to observance of the common law and statutory duties imposed in the exercise of reasonable care. More may be required by the circumstances confronting the driver. 198 That, indeed, is reflected in the very fact that Mr Skinner was employed to evaluate the competence of Cleanaway drivers who, it may be surmised, each held requisite licensing and certification. 199 In circumstances where there was evidence available to the appeal judge to demonstrate that Cleanaway recognised that the statutory licensing and certification scheme could and should be supplemented, it was ultimately a question of fact as to whether the competence of Mr Hicks had been “properly determined” having regard to the case before the court. Once that case was recognised as concentrating on the South Eastern Freeway descent in a vacuum truck with a manual gearbox, it was open to the appeal judge to find that competence had not been properly determined.191 200 Appeal ground 2 should be dismissed. Appeal ground 3 – a finding of guilt on a basis not alleged and not open 201 Cleanaway contended that the fact-finding by the appeal judge was affected by two “critical errors”, and, in addition, the appeal judge failed to correctly apply legal principle when determining “the essential element of reasonable practicability”. 202 The first error in primary fact finding contended for by Cleanaway was that the appeal judge said in his reasons “repeatedly” that Mr Hicks had used “the wrong gear” when descending the South Eastern Freeway. 203 Cleanaway contended that the only evidence to support that hypothesis was Dr Rechnitzer’s evidence that Cleanaway should have instructed Mr Hicks to have the truck in a gear that kept its speed at 60 kph or less until he was required to apply the brakes when approaching the reduced speed zone and traffic lights at the bottom of the descent. Cleanaway maintained that this hypothesis was discredited in cross-examination and “expressly abandoned” by the prosecution at trial.192 Cleanaway contended that the appeal judge’s finding at [104] of his reasons portrayed a misunderstanding of the evidence and the practicalities of changing down gears in a vacuum sealed truck. The appeal judge had said:193 It is obvious enough from that evidence that the gear selected at any point in a descent must be able to hold the vehicle not only at a speed appropriate to that part of the descent but 190 Work Health Authority v Outback Ballooning Pty Ltd (2019) 266 CLR 428, [89] (Gageler J). 191 Appeal judge, [16], [123]-[124]; Magistrate, [309]-[311]. 192 Appeal judge, [96]-[98], [104], [107], [113], [118]-[119]. 193 Appeal judge, [104]. -- 50 of 75 -- [2025] SASCA 112 The Court 47 also of a speed which will allow a change into a lower gear, without using the foot brake, when it becomes necessary or appropriate to do so. No evidence contradicting Dr Rechnitzer on this topic was adduced by Cleanaway. 204 According to Cleanaway, the application of the clutch to change gears, as in the case of a manual synchro-mesh gearbox, involved the release of the restraint applied by the gears and, especially when travelling downhill, made it necessary for the driver to slow the vehicle by applying the brakes so that the speed was appropriate for the selection of a lower gear. 205 Cleanaway contended that where a driver has descended a decline “appropriately”, as it claimed Mr Hicks had, the vehicle will have “ample brakes” to slow for the purposes of changing down gears. This process is repeated as the vehicle is required to slow and stop. 206 Cleanaway contended that it was plain enough that the appropriate time to change down gears was when the speed limit changed down, and the use of the brakes was required. Cleanaway contended that Mr Hicks’ change down of gears was “entirely orthodox and appropriate”. Contrary to the finding made by the appeal judge,194 the brake defects detected after the collision did not merely contribute to the inability of Mr Hicks to change down gears as the speed limit reduced and the traffic lights approached. According to Cleanaway, the brake defects “prevented a competent driver from doing so”. 207 The second primary factual finding which was attacked was the conclusion by the appeal judge that an appropriate way to drive down the South Eastern Freeway was to have the vacuum truck in a gear that did not involve using the brakes at all. Cleanaway referred to the recitation by the appeal judge of Dr Rechnitzer’s evidence:195 It is a true and necessary implication of that direction and Dr Rechnitzer’s opinion that the gear selected must be low enough to control the vehicle within safe speeds throughout the descent. Dr Rechnitzer explained why in the passages of his cross examination set out in the following paragraphs of the Magistrate’s reasons: [205] Your Honour, the whole principle is one, you’ve got the exhaust brake, which gives you a certain retardation, and then you need to be in a low enough gear - so 60 - so whichever speed you pick, whether it’s 40 or 60 the whole idea is you don’t use your primary brake at all, that's the whole idea so you don’t run the risk of brake fade and losing control if you have to stop for example in a hurry-’ [206] ‘… that they can travel down a hill like that in a gear that will maintain the speed without using the service brakes. The whole point is to maintain control without using the service brakes. That’ s why it says ‘use low gear’. [208] ‘… The whole point was that it had to hold the vehicle for all the distance, so I’m not sure whether I'm inferring too much from mishearing the question, but 194 Appeal judge, [98]. 195 Appeal judge, [103]. -- 51 of 75 -- [2025] SASCA 112 The Court 48 the point is, it’s not whether it held it for 6 km and then didn’t after that. The point is it has got to hold it for all the distance. You can’t lose the brakes at all at any time, so I’m not sure whether the question was holistic or limited, that’s my point. That’s why I wanted to rehear it because I might have misheard it, but that’s the critical point. It's no use saying ‘Okay, held it for 6 km, then thereafter sped up because it wouldn't hold it for, you know, a different gradient’. So that’s my only caveat that I want to make. It’s an important one, though. 208 According to Cleanaway, it was of course “impossible” not to use the brakes at all. Cleanaway referred to the opinion of Dr Rechnitzer that Mr Hicks should have been instructed to select a lower gear (suggested by Dr Rechnitzer to be the fourth gear) which would have held the truck at 40-60 kph until the brakes needed to be applied. Cleanaway contended that this opinion was both discredited and abandoned. 209 According to Cleanaway, the real aim was to have the truck in a gear that would hold it under the speed limit until the point is reached towards the bottom of the descent when the brakes were needed to be applied to change down and slow as the speed limits reduced and, eventually, to stop at the traffic lights at the bottom of the descent.196 This, claimed Cleanaway, was precisely what Mr Hicks was doing but the brakes were in such poor repair that they failed almost immediately, leaving Mr Hicks in “Angel gear” with no way of slowing. 210 Cleanaway contended that Dr Rechnitzer’s opinion that Mr Hicks should have been told to put the truck in fourth gear when he had it in fifth gear would have made no difference at all to the risk or the outcome. Cleanaway pointed to the evidence that Mr Hicks had the vacuum truck in fifth gear which held the truck steadily and well under the speed limit until Mr Hicks was required to apply the brakes and slow at the bottom. 211 According to Cleanaway, whether Mr Hicks travelled in fourth gear or fifth gear he, and any other competent driver, would have been required to apply the brakes when Mr Hicks did, with the same resulting failure because of their poor mechanical condition. 212 As for the question of the correct legal principle to be applied when determining the essential element of reasonable practicability, Cleanaway contended that in respect of each charge the court was required to determine if the measure alleged had been proved to have been not in place, that the measure would have eliminated or minimised the risk had it been in place, and that it was reasonably practicable to have had that measure in place. 213 Cleanaway contended that this required an assessment of all of the evidence, particularly the matters set out in s 18 of the WHS Act. These reflected the “Shirt calculus”.197 These have been described as requiring the tribunal of fact to place 196 Referring to the evidence of the prosecution expert, Dr White, Exhibit P15, [27]. 197 Wyong Shire Council v Shirt (1980) 146 CLR 40. -- 52 of 75 -- [2025] SASCA 112 The Court 49 itself in a point of time before the incident the subject of the investigation and ask whether it has been proved beyond reasonable doubt that a reasonable person conducting a business or undertaking in the position and circumstances of Cleanaway would, looking forward, have had the specified measure in place.198 214 In developing its contention that the appeal judge failed to apply the applicable legal principles, Cleanaway submitted: 1. The appeal judge did not determine the issue of reasonable practicability based on the measure specified in the charge sheet but, rather, determined that issue having regard to another, uncharged measure.199 2. The appeal judge wrongly reversed, and therefore failed to correctly apply, the onus of proof.200 More particularly, in the absence of any evidence from the prosecution that it was reasonably practicable to assess Mr Hicks’ driving on the South Eastern Freeway (as opposed to the “all routes” allegation) the appeal judge held that it was for Cleanaway to lead evidence that doing so was not reasonably practicable.201 3. Although the appeal judge recited the matters requiring consideration under s 18 of the WHS Act,202 he did not otherwise refer to the matters requiring consideration and wrongly regarded this element as proved because “there was no practical reason for not assessing Mr Hicks’ competence in gear selection for a descent of the freeway”.203 In addition, the appeal judge erroneously held that Cleanaway had not disproved this allegation.204 4. The appeal judge failed to give any consideration or weight to the fact that the prosecution did not adduce any evidence of industry practice or industry standards, which evidence is central to the consideration of the criteria under s 18.205 215 Cleanaway was particularly critical of the following portion of the appeal judge’s reasons:206 Mr Hicks received a heavy vehicle licence training from G&L heavy vehicle driving centre in June 2014. He enrolled for the training on 22 June 2014 and was trained on 23 and 24 June over roads which included descents but there was no evidence that they approximated the descent on the Freeway. His training was on an Isuzu tipper truck of three axles with a road ranger gear box of 15 speeds. He was instructed on the need to give 198 Vairy v Wyong Shire Council (2005) 223 CLR 422, [126], [128] (Hayne J). 199 Appeal judge, [16]. 200 Appeal judge, [14], [16], [121] and [123]. 201 Appeal judge, [123], see also [14]. On the failure of the appeal judge to approach the assessment of reasonable practicability in the appropriate manner, Cleanaway relied on Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92, [55] (Heydon J). 202 Appeal judge, [22]. 203 Appeal judge, [16]. 204 Appeal judge, [123]. 205 See, for example, Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317, [34] (McHugh J). 206 Appeal judge, [67]. -- 53 of 75 -- [2025] SASCA 112 The Court 50 attention to the appropriate gearing. In particular, he was instructed on how to use lower gears when on a descent but, not on the use of brakes when travelling downhill. The trainer described Mr Hicks as a very good candidate for a heavy vehicle licence. 216 Cleanaway contended that this did not accurately reflect the state of the evidence. There was no evidence disproving that the testing and competency assessment under the legislative scheme did not involve a demonstrated capacity to understand and implement the basic procedure of having the vehicle in a gear which would have retarded speed under the speed limit without using the primary brake until the need came to apply the brakes at the bottom of the descent. 217 The respondent contended that Cleanaway’s complaints were without substance. 218 As for the factual findings concerning the “wrong gear”, the respondent contended that the prosecution case at trial was that Mr Hicks was inexperienced and in the wrong gear at the commencement of the descent.207 Dr Rechnitzer’s evidence to this effect was neither discredited in cross-examination, abandoned by the prosecution, nor acknowledged as having been abandoned by the appeal judge. The respondent submitted that, in fact, the appeal judge:208 1. considered the evidence about the appropriate gear for the descent and the basis for the magistrate’s findings about that; and 2. formed an assessment, open on the evidence, that the magistrate’s conclusion about the effect of the gear selection made by Mr Hicks was correct.209 219 The respondent contended that Cleanaway’s criticism sought to revive an issue in circumstances where it had adduced no evidence contradicting the opinion of Dr Rechnitzer. Because of the evidence that was led, the finding was open and not in error. 220 As for the findings made concerning “no brakes”, the respondent contended that the same position applied. In fact, the appeal judge found that “the gear selected must be low enough to control the vehicle within a safe speed throughout the descent”.210 The appeal judge did not conclude that it was appropriate to drive down the South Eastern Freeway by selecting a gear that did not involve using the brakes at all. The appeal judge’s finding on this topic was “obvious enough” based on the evidence of Dr Rechnitzer given in cross-examination.211 In circumstances where there was no evidence led to contradict the opinion of Dr Rechnitzer, the 207 AB, p 125, “Written submissions of the respondent” dated 23 June 2021, [42]. 208 Appeal judge, [94]-[108]. 209 Appeal judge, [109]. 210 Appeal judge, [103]. 211 Appeal judge, [103]-[104]. -- 54 of 75 -- [2025] SASCA 112 The Court 51 appeal judge made no error in making a finding which was open on the evidence that was adduced.212 221 On the question of what was “reasonably practicable”, the respondent emphasised that the finding made by the appeal judge was that there was “no practical reason for not assessing Hicks’ competence in gear selection for a descent of the Freeway”.213 222 The respondent acknowledged that the complaint made by Cleanaway was that this differed from the reasonably practicable control measure specified in particular 9 involving driving “all vehicles” on “all routes” with a manual gearbox. 223 However, the respondent contended that, considered in context, the finding made by the appeal judge did not amount to a finding that Cleanaway was required to separately assess the competence of Mr Hicks to make appropriate gear selection for a descent on the South Eastern Freeway. Rather, the appeal judge gave consideration to whether competence testing in a manual vehicle was capable of controlling the identified risk. 224 The finding made by the appeal judge was primarily directed to whether competence testing was capable of controlling the relevant risk. Gear selection, a fundamental aspect of driving a manual truck, formed part of that. For example, the appeal judge said that:214 … The risks of a collision between a heavy vehicle like the vacuum truck and other road users arising from a failure to control its speed on the steep descent along the Freeway into a busy suburban intersection was obvious and unusual. Driver competence in effecting appropriate gear changes was an important safeguard against that risk. Holding a heavy vehicle licence is a regulatory requirement which ensures a minimum, but not always sufficient, standard of competence. … 225 Later, the appeal judge accepted that the relevant risk could have been minimised in any one or a number of ways, namely, as alleged:215 … providing a supervisor, not allowing Mr Hicks to drive, properly training Mr Hicks on manual gearboxes, or properly training Mr Hicks on driving down the Freeway. 226 In addition, the appeal judge found that the failure to train Mr Hicks “on how and at what point on the descent to engage a sufficiently low gear” exposed Mr Hicks and others to a risk of injury from collision.216 227 It is in these circumstances that the respondent contended that there was ample evidence before the appeal judge to conclude that appropriate gear selection 212 Appeal judge, [104]. 213 Appeal judge, [16]. 214 Appeal judge, [16]. 215 Appeal judge, [45]. 216 Appeal judge, [107]. -- 55 of 75 -- [2025] SASCA 112 The Court 52 was a relevant and material part of assessing the competence in Mr Hicks to drive a manual truck, which was one of the reasonably practicable measures alleged. 228 The respondent rejected the proposition that the appeal judge found that there was an onus on Cleanaway to prove that it was not reasonably practicable to assess the competence of Mr Hicks in gear selection on a descent down the South Eastern Freeway. Rather, the appeal judge found that the respondent had proved that the control measures were reasonably practicable.217 The passage relied on by Cleanaway in fact demonstrated that the appeal judge recognised that there was no evidence led by Cleanaway which impacted on that finding. 229 As for industry practice or standards, the appeal judge was aware that the prosecution had not adduced evidence of these. 218 The appeal judge referred to the passage in the reasons of the magistrate about the absence of evidence concerning “industry standards”, together with the magistrate’s conclusion that the absence of that evidence did not cause him to alter his finding that the alleged measure was “reasonably practicable”, applying the criteria in s 18 of the WHS Act. The appeal judge adopted the same approach. That is to say, the appeal judge found that the absence of evidence of industry standards was not determinative of the issue of reasonable practicability. 230 The respondent challenged the assertion by Cleanaway that an aspect of the reasons of the appeal judge did not accurately reflect the state of the evidence. That passage was earlier set out.219 231 The respondent submitted that the basis for the complaint by Cleanaway was unclear and, insofar as Cleanaway submitted that the findings of guilt were unreasonable or unsupported by the evidence, it was necessary for this Court to determine whether it was open to the decision-maker to be satisfied of guilt beyond reasonable doubt.220 The respondent submitted that because there was ample evidence on which it was open to the appeal judge to be satisfied about the appellant’s guilt beyond reasonable doubt, it had not been demonstrated that the appeal judge must, as distinct from might, have had doubt about the guilt of Cleanaway. The determination of appeal ground 3 232 The case of Cleanaway under this ground was that it was necessary to keep the vacuum truck in a gear that would hold it under the speed limit until the point was reached towards the bottom of the descent when the brakes were needed to be applied. Cleanaway pressed this view of the management of the risk, criticising 217 Appeal judge, [123]. 218 Appeal judge, [122]. 219 Appeal judge, [67]. 220 Relying upon M v The Queen (1994) 181 CLR 487; Libke v The Queen (2007) 230 CLR 559. AB 125, “Written submissions of the respondent”, [61]-[65]. -- 56 of 75 -- [2025] SASCA 112 The Court 53 the idea that it was necessary to keep the vacuum truck in a gear that did not involve using the brakes at all. 233 It is at once apparent that there is little difference between this case and the prosecution case, for both recognised that the gearing must control the truck’s speed until the point was reached toward the bottom of the descent when the brakes must be applied in order to change down. 234 What is apparent from the evidence of Mr Hicks was that the loss of control occurred well after the arrester beds and at a time when the vacuum truck was travelling too quickly to enable the gears to be used. It was at that point that the use of the brakes was attempted. 235 The case of the respondent was that Mr Hicks’ selection of the wrong gear at the commencement of the descent was consistent with his inexperience in driving a vacuum truck with a manual gearbox down a steep descent, leading to a loss of control. That is consistent with the approach taken by the appeal judge after his review of the findings made by the magistrate. For example, as the appeal judge explained:221 The following salient aspect of that account should be noted. First, Mr Hicks descended the Freeway in a much higher gear (5 of 7) than the gears engaged on his ascent. Secondly, on his unsuccessful attempt to change down a gear the truck speed had already increased from between 60-70km/h to about 80km/h and he had passed the second arrester bed. At that time he was fast approaching the 80km/h zone. He found it necessary to apply the footbrake to allow the change to a lower gear but the brake was less effective than he had hoped. The truck slowed only a little and sounded an alarm. Thirdly, the decline then steepened, the truck speed increased and the braking had no effect. As I earlier observed, knowing in advance at what point during a descent gears should be changed down, so that the truck can slow as it enters lower speed zones and can, when necessary, safely come to a complete stop, requires experience or training. Plainly Mr Hicks had attempted to change down from 5th gear when it was too late to do so and 5th gear was too high a gear to limit the trucks speed to 60km/ hour. There was evidence in the form of the concerns of other drivers, the evidence of Dr Rechnitzer and the location of the two arrester beds that the descent on that part of the Freeway was particularly long and steep relative to other major Adelaide roads. Mr Hicks did not have the experience, nor any instruction or training tailored to the vacuum truck he was driving on the Freeway, to assess at what points along the descent he should progressively engage lower gears. On Mr Hicks’ own evidence, it was not possible to change from the 5th gear to a lower gear when the truck was travelling between 60 kph to 70 kph. Cleanaway did not adduce evidence or suggest that that was due to a latent defect or was, for any other reason, unexpected. 236 The appeal judge recognised that there was evidence available to the magistrate to permit the finding that was made by the magistrate, and this was upheld by the appeal judge. Indeed, these conclusions were consistent with the evidence earlier reviewed by the appeal judge concerning Mr Hicks’ understanding 221 Appeal judge, [95]-[97]. -- 57 of 75 -- [2025] SASCA 112 The Court 54 of the task and what Cleanaway had done in order to properly apprise and train him about that task:222 In cross-examination Hicks agreed that, as part of his training, he had been provided a ‘vehicle awareness document’. He was asked, whether he understood what was meant by the heading ‘trucks and buses must use low gear signage’ Q. In any event can I suggest to this to you, by the time you finished your training with G&L you fully understood that that sign ‘Trucks and buses must use low gear’ signage meant that the driver was to put the truck in a gear that would restrain the truck at a lower applicable speed limit without the need to use the primary brake. A. Yes’. I pause here to make the perhaps trite observation that it is one thing to know the objective which must be achieved, i.e. the selection of a gear which will keep the speed of a heavy vehicle with the application speed limit, but it is another to know practically how to do so by selecting the gear before entering that speed zone which will allow a gear change or changes which will keep the vehicle within the speed limit having regard to the steepness of the descent. Mr Hicks testified that he could not recall Cleanaway asking about his heavy vehicle driving experience, or his experience driving on the Freeway before the accident. It is experience of that kind which a driver must have to meet the objective stated in the vehicle awareness document on a descent such as the Freeway as it approaches the intersection where the collision occurred. 237 A fair reading of the transcript and the reasons below demonstrates that Dr Rechnitzer’s evidence concerning the prosecution case, and the “wrong gear”, was neither discredited nor abandoned. It was never suggested, whether by the expert, the magistrate or the appeal judge, that no brakes should ever be used. 238 Rather, and consistently with Cleanaway’s preferred case, the relevant gear selection had to be low enough to control the vehicle within a safe speed, and under the speed limit throughout the descent until the brakes needed to be applied.223 239 Whilst the question of a brake defect was an important issue, that issue was recognised both by the magistrate and the appeal judge. For example, as the appeal judge explained:224 True it is that the brake defect contributed to the inability to engage a lower gear but it will be remembered that at the apex of the descent there were signs warning truck drivers to use low gears, which were understood by Mr Hicks to mean gears low enough to keep the truck within the applicable speed limit without using the brakes. 240 Whilst Dr Rechnitzer was subjected to a searching cross-examination, and not all of his views were accepted, his views about the key matters bearing on this 222 Appeal judge, [69]-[71]. 223 Appeal judge, [103]. 224 Appeal judge, [98]. -- 58 of 75 -- [2025] SASCA 112 The Court 55 issue were accepted, as the reasons of the appeal judge demonstrate. For example, both the magistrate and the appeal judge accepted the following expressions of opinion by Dr Rechnitzer:225 Manual synchromesh gearbox Transmission: A general guide for selecting the appropriate low gear is usually the same gear (or lower) that would be used to travel up the hill. This is also noted in the post incident SA video ‘How to descen[d] the South Eastern Freeway Safely’. The correct gear should hold the truck at below the specified speed limit, and not speed up going down the hill without using the brakes at all. If the driver finds he has not selected the right low gear (i.e. the vehicle is speeding up), he should then use the brakes to come to a stop, and re start in a lower gear. In an emergency the driver should still try to change down gears, and have the training to do so (e.g. by matching engine and road speeds; and / or using double de-clutching). 241 These views were supported by a footnoted reference to the “USA 2005 Model Commercial Drivers Licence Manual” extract:226 Before Starting Down a Hill. Slow down and shift down to a speed that you can control without using the brakes hard. Otherwise the brakes can overheat and lose their braking power. Downshift before starting down the hill. Make sure you are in a low enough gear, usually lower than the gear required to climb the same hill. 242 Ultimately, the appeal judge found no error in the approach of the magistrate and upheld the case based on Dr Rechnitzer’s evidence:227 … the point of Dr Rechnitzer’s evidence was that the gear should generally be no higher than the gear used on the ascent, and that it should be low enough to constrain the speed within safe limits throughout the descent. Mr Hick’s did not adhere to these rules because he was not trained on how to do so. Dr Rechnitzer’s opinion on those rules of safe gear selection was not contradicted. That evidence, and the evidence of Mr Hicks’ inability to change down a gear, in the absence of evidence providing an alternative explanation for the inability to engage a lower gear (other than the brake failure which was the very risk which the low gear is calculated to guard against) strongly supported an inference that the 5th gear selected by Mr Hicks was too high a gear in which to commence the descent. The failure to train Mr [Hicks] on how and at what point on the descend to engage a sufficiently low gear therefore exposed Mr Hicks, and others, to a risk of injury from a collision because the braking power of the truck might not be adequate to slow or stop the truck. 243 The appeal judge found that the magistrate was correct to conclude in the following terms:228 I accept the evidence of Dr Rechnitzer regarding the circumstances of the incident of 18 August 2014. In particular that the vehicles reduced braking capacity due to defective brakes was ‘exacerbated’ by the fact that the vehicle was in fifth of seven gears resulting in little retardation from engine braking meaning the vehicle could ‘run away’ and reach 225 Appeal judge, [101]. 226 Appeal judge, [102]. 227 Appeal judge, [107]. 228 Appeal judge, [108]; Magistrate, [241]. -- 59 of 75 -- [2025] SASCA 112 The Court 56 high speeds. This conclusion accords with Dr Rechnitzer’s observations of the condition of the brakes and the account given by Hicks. It is apparent from Hicks’ evidence that despite the fact he had selected fifth gear which had initially held the speed of the vehicle, once the gradient increased the speed of the vehicle was not constrained but increased. This caused Hicks to apply the brakes along with the fact the 80km/h zone was approaching. After this the brakes failed and the vehicle was then unrestrained (both by brakes and gears). It became out of control. 244 Having regard to the matters addressed in connection with appeal grounds 1 and 2, Cleanaway’s criticisms regarding the approach taken by the appeal judge to the evidence, particularly the suggested “wrong gear” and “no brakes” evidence and findings, must be rejected. 245 This was a case where it had been demonstrated that Cleanaway had not assessed the competence of Mr Hicks to drive a heavy vacuum truck with a manual gearbox down a steep descent, particularly one that was notoriously dangerous. 246 The measures pleaded against Cleanaway were not taken and, on the evidence, it was reasonably practicable for them to have been taken. Had they been taken, there was a basis for the finding made by the magistrate and the appeal judge that the risk of collision on the freeway caused by a truck travelling too fast would have been, at the least, minimised if not also eliminated. It could not be said that these difficulties were displaced by the difficulties associated with the braking system. 247 To find that there was no practical reason for not assessing Mr Hicks’ competence in gear selection using a manual gearbox in a vacuum truck down a descent like the freeway did not reverse the onus of proof. It merely reflected the state of the evidence in circumstances where it was otherwise reasonably practicable to have undertaken that assessment. 248 Appeal ground 3 should be dismissed. Appeal ground 4 – the question of causation 249 Cleanaway contended that the appeal judge erred in law by failing to apply the correct “causation test” in accordance with the requirements of s 32(c) of the WHS Act and binding authority. The appeal judge wrongly found that all that was required to satisfy s 32(c) was that there were reasonably practicable measures which, if adopted by Cleanaway, would have materially reduced the risk to which employees or others were exposed, even if the risk substantially arose out of circumstances for which Cleanaway was not responsible.229 250 Cleanaway contended that there was no basis to read down the clear words of s 32(c) of the WHS Act to have a meaning other than what they say, imposing the requirement for the prosecution to prove that the failure to have in place the 229 Appeal judge, [18], [51]-[53]. -- 60 of 75 -- [2025] SASCA 112 The Court 57 specified reasonably practicable measures caused the people nominated to be exposed to death or serious injury. 251 Cleanaway also contended that the appeal judge should have found that the prosecution was required but failed to prove beyond reasonable doubt that the failure to have in place the reasonably practical measures alleged caused those nominated to be exposed to death or serious injury on the occasion nominated. This had to be done by way of a counter-factual analysis to determine if it had been established that the alleged failure actually had the impact of causing the exposure to risk, applying established criminal law principles of causation.230 252 Cleanaway next contended that the appeal judge was wrong to rely on observations made by the Victorian Court of Appeal in Vibro-Pile.231 According to Cleanaway, Victoria did not implement the harmonised WHS laws and the structure and content of the s 21 Victorian offence is different to s 32 of the WHS Act. Not the least difference is that there is no equivalent under the Victorian Act to s 32(c) of the WHS Act and other harmonised laws. 253 Cleanaway criticised the approach of the appeal judge, contending that on his test concerning satisfaction of s 32(c) he merely repeated what was required to be proved to establish the breach of duty element under s 32(b). This approach, as explained in Grasso v SafeWork by Cavanagh J,232 conflated two distinct and different elements of the s 32 offence. 254 Contrary to the criticism made by the appeal judge that the interpretation in Grasso v SafeWork conflated the Commonwealth approach to causation with a statutory duty to eliminate or minimise risk,233 Cleanaway contended that it was in fact the appeal judge’s approach that conflated the s 32(b) obligation to satisfy the duty by taking the specified reasonably practicable measure to obviate risk, with a separate and distinct additional causation element prescribed by s 32(c). In so doing, it was overlooked that it is necessary to demonstrate that it is the failure under s 32(b) to eliminate or minimise risk in a general sense that must be proved under s 32(c) to actually cause the nominated people to be exposed to the risk of death or serious injury on the nominated occasion. This, according to Cleanaway, helped to explain why the penalty is three times greater than for the offending under s 33 which is complete upon proof only of the s 32(b) element. 255 Cleanaway contended that the appeal judge was bound to follow the decision of the New South Wales Court of Criminal Appeal in Grasso v SafeWork unless he was convinced that it was plainly wrong.234 According to Cleanaway, the appeal 230 Grasso v SafeWork [2021] NSWCCA 288, [2] (Simpson AJA), [12], [15], [26]-[29], [37]-[38] (Walton J), [99] (regarding conflation of the duty element and the causation element), [101], [224]-[235], [241]-[251] and [262]-[263] (Cavanagh J). 231 Vibro-Pile (2016) 49 VR 676. 232 Grasso v SafeWork [2021] NSWCCA 288, [99] (Cavanagh J). 233 Appeal judge, [53]. 234 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89, [135] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ). -- 61 of 75 -- [2025] SASCA 112 The Court 58 judge clearly disagreed with the decision but failed to apply it because he erroneously believed that the underlying legislation must have been different. 256 Cleanaway also contended that, on the proper application of Grasso v SafeWork, the essential element of causation prescribed by s 32(c) of the WHS Act had not been made out on both charges 1 and 2. This was required because Grasso v SafeWork is plainly correct having regard to existing authority and the structure of the s 32 offence. 257 Cleanaway continued that there was no evidence, nor any attempt to prove, that a failure to have in place the measures specified in charges 1 and 2 had an impact on the exposure to the risk of the people nominated on 18 August 2014 sufficient to establish the element of causation. 258 Cleanaway contended that the s 32(c) element, as explained in Grasso v SafeWork, must be proved by way of the application of well recognised and understood criminal law principles of causation. It required proof of causation not between a duty failure and the incident or injury, but rather by the duty failure causing, on a specified occasion, a person to be exposed to the risk of death or serious injury, whether or not death or serious injury actually eventuated. 259 The statutory term “exposure to risk” required that on the nominated occasion, the person be sufficiently proximate for the risk to “come home”. Cleanaway contended that, in this case, there was no dispute that when the brakes failed, the people who were killed or suffered serious injury were relevantly exposed to the risk of death or serious injury whether or not the accident had actually happened.235 260 According to Cleanaway, the issue requiring determination in this case was whether the failure to have in place the measure in the charge sheet caused the specified exposure to risk on 18 August 2014. 261 For many years, said Cleanaway, the authorities that have been applied make it clear that the relevant question on causation is whether the act or omission of the defendant was a significant or substantial cause of the employee being exposed to the risk of death or serious injury on a nominated occasion.236 262 Cleanaway submitted that the concept of the failure being the cause of the exposure to risk applied to the New South Wales legislation preceded the introduction of the Work Health and Safety Act 2011 (NSW). The 2011 New South Wales Act is relevantly identical to the WHS Act. The leading authorities which explain the meaning of exposure to risk, apart from Bulga Underground Operations Pty Ltd v Nash,237 include Thiess Pty Limited v Industrial Court of New 235 Thiess Pty Limited v Industrial Court of New South Wales (2010) 78 NSWLR 94, [67], [69] (Spigelman CJ, with whom Beazley and Basten JJA agreed). 236 Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338, [127] (Bathhurst CJ, Hidden and Davies JJ). 237 Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338. -- 62 of 75 -- [2025] SASCA 112 The Court 59 South Wales.238 The causation question must be determined by the application of common sense to the facts, bearing in mind that the purpose of the inquiry is to attribute legal responsibility in a criminal matter.239 263 Accordingly, Cleanaway submitted that Grasso v SafeWork was required to be applied by the appeal judge and by this Court unless this Court was convinced that it is plainly wrong. 264 Cleanaway contended that it was explained to the appeal judge that the prosecution case was conducted from the outset by ignoring the existence of the causation element and then, when pressed, by the prosecutor leading the appeal judge into error by conflating the test for the duty element with a different and distinct test for the essential element of causation. 265 Accordingly, by rejecting Grasso v SafeWork, the appeal judge fell into error in holding: 1. The New South Wales provision under consideration in Grasso v SafeWork was different to the Commonwealth provision in the WHS Act, when they are in fact identical. They form part of the national harmonious scheme for work, health and safety legislation. 2. Vibro-Pile provided assistance and authority when construing s 32(c) of the WHS Act even though Victoria is not part of the harmonised legislative scheme, and the provisions of the Occupational Health and Safety Act 2004 (Vic) are materially different. In particular, the Victorian provisions do not contain the causation element imposed upon an alleged contravention of s 32 of the WHS Act as represented by s 32(c). 266 Cleanaway contended, after citing passages of the judgment of Cavanagh J in Grasso v SafeWork, that the appeal judge had observed, in apparent disagreement, that the reasoning assumed the application of a causation element that treats the exposure to risk in the same way as an actual injury or incident.240 267 Cleanaway contended that this was precisely the test that the appeal judge was required to apply. In particular, the appeal judge was required to apply established principles of causation under the criminal law – not to the actual cause of the incident or injury – but to the point in time preceding any incident or injury when the nominated people were exposed to the death or serious injury in the sense 238 Thiess Pty Limited v Industrial Court of New South Wales (2010) 78 NSWLR 94. These authorities have regularly and routinely been applied in many cases under the 2011 New South Wales Act and under identical legislation in Queensland. 239 Royall v The Queen (1991) 172 CLR 378. 240 Appeal judge, [61]. -- 63 of 75 -- [2025] SASCA 112 The Court 60 of being sufficiently proximate to suffer death or serious injury should the risk come home.241 268 Cleanaway criticised the approach of the appeal judge when addressing Grasso v SafeWork. Cleanaway submitted that in the following passage, the appeal judge was considering the reasons of Grasso v SafeWork which was directed towards the “tolerably clear proposition” that the prosecution was required to prove that it was the alleged failure to undertake the computer modelling that caused the specified workers to be exposed to the risk whilst undertaking demolition work:242 With respect, it is difficult to see why the element described in the second sentence raises a question of causation at all. If the second sentence is reframed to state that the prosecution must establish that the workers were exposed to a risk which GCE could reasonably have eliminated or minimised by performing computer modelling, any question of causation is removed. The only connection which need be proved is between the risk to which a worker is exposed and the reasonably practicable measures which would have reduced that risk. The trial Judge did not find that GCE failed to take a reasonable practicable measure which would have reduced that risk and for that reason the prosecution for a breach of s 32 was bound to fail. Cavanagh J continued: 242 It is conceptually difficult to understand how this could be when the demolition workers were not following GCE advice and there is no evidence as what the computer modelling of the GCE sequencing advice would have shown. 243 In my view, in accepting the causal connection between the failure to undertake computer modelling and the workers being exposed to a risk to their health and safety, the trial judge erred in considering the causation question through the prism of what GCE did at the time of breach rather than how its work exposed the workers to a risk at the time they were doing the demolition work. 244 This is evident from his Honour’s findings as follows at [344]: ‘The creation of a computer model was a reasonably practicable measure that would have allowed GCE’s advice to be tested, thereby eliminating or minimising the risk of an unplanned structural collapse. In the absence of the computer model, GCE’s advice did not eliminate or minimise the risk of an unplanned structural collapse. The exercise of Mr Grasso’s engineering judgement was fallible, resulting in the potential for the risk to come home during the course of the demolition.’ 245 It is correct to say that in the absence of computer modelling GCE’s advice did not eliminate or minimise the risk and thus did not ensure the health and safety as required by s 19(2) but that does not answer the question as to how or why the failure to undertake computer modelling at the time of giving the advice was a substantial cause of the risk to which the workers were exposed 241 Thiess Pty Limited v Industrial Court of New South Wales (2010) 78 NSWLR 94, [67], [69] (Spigelman CJ, with whom Beazley and Basten JJA agreed). 242 Appeal judge, [63], referring to Grasso v SafeWork [2021] NSWCCA 288, [241]. -- 64 of 75 -- [2025] SASCA 112 The Court 61 at the time they were doing their work, especially in circumstances in which they were not following that advice. 246 Further, it is correct to say that the exercise of engineering judgment by GCE was fallible resulting in the potential for the risk to come home during the course of the demolition but there was no potential for that risk to come home whilst the workers were demolishing the roof as a result of the advice given when the workers were not following the GCE advice. 269 The question on breach, however, was different and it required addressing whether the measure would have eliminated or minimised the risk in a general sense (s 32(b)). By contrast, the question on causation required determining whether the failure caused the nominated people to be exposed to the risk of death or serious injury on the nominated occasion, in the sense of being sufficiently proximate to the risk for it to come home, whether or not the risk actually crystallised and death or serious injury actually resulted. 270 According to Cleanaway, this was not a complex issue or distinction. In some cases, in a practical sense, establishing causation concerning the exposure to risk will involve a similar, if not identical, reasoning process to causation of the incident or injury on the nominated occasion.243 Cleanaway contended that the following finding by the appeal judge must be rejected:244 If, contrary to my construction of s 32, I were to consider the element of exposure through the prism of causation in this case, then I would find that notwithstanding the brake defects, the failure to instruct Mr Hicks, on the effective use of gears to retard the speed of the truck when descending the Freeway, was a significant cause of the risk of collision, between the vacuum truck and other road users, arising from an inability to stop the truck, notwithstanding the brake defects. 271 Here, said Cleanaway, the appeal judge failed to apply the approach in Grasso v SafeWork and there was no evidence before the court capable of satisfying that test. Cleanaway contended that it was unclear what the appeal judge took the test in Grasso v SafeWork to mean or what the appeal judge meant by saying that he looked at the “element of exposure through the prism of causation”. 272 Cleanaway contended that the appeal judge did not undertake the process of looking at what happened on the day and determining whether it had been proved that implementation of the pleaded measure would have had any impact upon what, immediately before the collision, caused the nominated people to be exposed to the relevant risk, let alone whether the alleged failure was a substantial or significant cause of the exposure to the risk. 273 Even if the failure to instruct Mr Hicks on the effective use of gears to retard the speed of the truck down the Freeway was the failure alleged, there was no evidence that it would have had any impact on the way Mr Hicks drove down the 243 See, for example, Simpson Design Associates Pty Ltd v Industrial Court of New South Wales (2013) 213 A Crim R 340. 244 Appeal judge, [65]. -- 65 of 75 -- [2025] SASCA 112 The Court 62 South Eastern Freeway on the day and, therefore, no impact upon the exposure to risk. This, said Cleanaway, was in a context where it was plain that the condition of the brakes caused the exposure to risk and it would have made no difference if Mr Hicks had commenced the descent in fourth gear (as suggested by Dr Rechnitzer) rather than fifth gear. 274 There was no evidence that, had Cleanaway implemented the charged measure, or the uncharged measure relied on by the appeal judge, it would have made any difference at all to what happened on the day and therefore would not have had any impact upon the exposure of the nominated people to the relevant risk. 275 The respondent commenced with what he contended were the relevant elements of the offence under s 32 of the WHS Act, relying upon the Victorian authority of Carmichael v Commonwealth of Australia:245 1. The existence of a health and safety duty (the “duty element”); 2. The failure to comply with that duty (the “breach element”); and 3. Exposure of an individual to the risk of death or serious injury or illness resulting from the failure to comply with the duty (the “exposure element”). 276 The respondent contended that the apparent judicial disagreement over the “exposure element” derived from “causation” having such a well-defined meaning and associated body of jurisprudence in other areas of the law.246 The respondent relied on the following explanation provided by Incerti J in Carmichael v Commonwealth of Australia:247 Whereas the New South Wales Court of Criminal Appeal [in Grasso v SafeWork] was comfortable describing the relationship as a ‘causal’ one, Kourakis CJ [in Cleanaway] preferred the language of a ‘connection’ between the breach and exposure in order to avoid ‘[conflating] the common law approach to causation of an event or injury with the statutory duty to eliminate or minimise risks which may never eventuate’. … (Citations omitted.) 277 The respondent also relied upon Carmichael v Commonwealth of Australia for the proposition that the different expressions used regarding the application of the exposure element in Grasso v SafeWork and in Cleanaway Operations Pty Ltd v Hanel (by the appeal judge) were not inconsistent:248 Clearly, the offence created by s 32 of the WHS Act does not require proof of any harm or damage. However, that does not mean that the exposure element cannot be discussed or understood by reference to a causal relationship of some kind. In its broadest sense, 245 Carmichael v Commonwealth of Australia [2022] VSC 364, [26] (Incerti J). 246 Carmichael v Commonwealth of Australia [2022] VSC 364, [31] (Incerti J). 247 Carmichael v Commonwealth of Australia [2022] VSC 364, [33] (Incerti J). 248 Carmichael v Commonwealth of Australia [2022] VSC 364, [32] (Incerti J). -- 66 of 75 -- [2025] SASCA 112 The Court 63 ‘causation’ is simply the ‘relation of cause to effect’. Both Grasso and Cleanaway make clear that, for the purposes of s 32 (when applied to the duty in s 19(1)): (a) the relevant ‘cause’ is the failure to eliminate or minimise risks to health and safety ‘so far as is reasonably practicable’; and (b) the relevant ‘effect’ is the exposure of a person to a risk of death or serious injury or illness – and not the actual occurrence of such death, injury or illness. (Citations omitted.) 278 Later in her Honour’s reasons, Incerti J explained:249 In my view, the fundamental difficulty presented by the exposure element of the offence created by s 32 of the WHS Act is not labelling the relationship between breach and exposure to risk (whether that label be ‘causation’, a ‘nexus’ or some other ‘connection’), but rather defining the risk to which a person was actually exposed, and the strength of the relationship between the breach and exposure required to found criminal liability: (a) in relation to defining the risk, I note Walton J’s observation in Grasso that the exposure element of the offence is concerned with the ‘risk as pleaded in the particular circumstances at a particular time when a person is exposed to risk’ (emphasis added). As noted by Cavanagh J, this requires a retrospective assessment by reference to the particularised measures and the relevant events that actually occurred; and (b) in relation to the strength of the relationship, I note that: (i) Walton and Cavanagh JJ in Grasso each separately required a ‘significant or substantial’ relationship between the breach and exposure to risk (applying Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338), Walton J further noting that the connection ‘must be sufficiently substantial to permit a conclusion of criminal responsibility’; whereas (ii) Kourakis CJ in Cleanaway formulated the relevant test as whether compliance with the duty (to take all reasonably practicable measures) ‘would have materially reduced the risk to which workers or others were exposed even if the risk substantially arose out of circumstances for which the PCBU [person conducting a business or undertaking] was not responsible’. (Citations omitted.) 279 On this basis, the respondent argued that there was no substantive difference between the approaches taken in Grasso v SafeWork and by the appeal judge because they involved differences of expression which ultimately led to the same outcome. 280 The respondent referred to the application for special leave to appeal to the High Court in the matter of Grasso v SafeWork, where it was submitted that any difference between that case and the appeal judge’s decision was “linguistic rather 249 Carmichael v Commonwealth of Australia [2022] VSC 364, [35] (Incerti J). -- 67 of 75 -- [2025] SASCA 112 The Court 64 than substantive”.250 Whilst the language of causation was used in Grasso v SafeWork, both decisions “correctly identify the need for there to be in fact a connection between the breach of duty on the one hand and the exposure of an individual to risk on the other”.251 281 Accordingly, submitted the respondent, it was of no consequence whether the appeal judge followed Grasso v SafeWork. The respondent submitted that the language used by the appeal judge was to be preferred because using “causation-based language” was undesirable: 1. It had a different legal meaning in other established legal contexts, such as in the law of negligence; 2. It was liable to suggest, wrongly, that the statutory offences required proof of a causal link between the employer’s conduct and any accident or injury.252 In other words, using that language was liable to suggest, incorrectly, that the cause of the collision must be proved. 282 The respondent contended that the appeal judge did not conflate the different elements of the offence under s 32 of the WHS Act. Rather, the appeal judge expressly distinguished s 32 from the basic offence under s 33 and described the effect as being the “critical additional element of s 32”, being the exposure element.253 283 Moreover, the appeal judge did not err in concluding that the proper construction to s 32 of the WHS Act was that the connection which must be proved between the alleged failure to comply with the duty, and the exposure to the identified risk resulting from the failure to comply with the duty, was that there were reasonably practicable measures available to Cleanaway which, if adopted, would have materially reduced the risk.254 284 The respondent relied on the proposition that even if it were concluded that the causation test expressed in Grasso v SafeWork was in some way different to the test applied by the appeal judge, the appeal judge specifically contemplated that different test and determined that the “exposure element” was still made out.255 285 Accordingly, the respondent contended that there could be no substantial miscarriage of justice. 250 SafeWork NSW v Grasso Consulting [2022] HCATrans 132 (12 August 2022) (Gageler, Steward and Gleeson JJ), p 12. 251 SafeWork NSW v Grasso Consulting [2022] HCATrans 132 (12 August 2022) (Gageler, Steward and Gleeson JJ), p 12. 252 Vibro-Pile (2016) 49 VR 676, [83] (Maxwell P, Redlich and Whelan JJA). 253 Appeal judge, [36]. 254 Appeal judge, [18]. 255 Appeal judge, [65]. -- 68 of 75 -- [2025] SASCA 112 The Court 65 The determination of appeal ground 4 286 The form of s 32 of the WHS Act relied on in this case corresponds with the harmonised provisions, including the provision considered in Grasso v SafeWork.256 An offence under s 32 of the WHS Act comprises the following elements: 1. The existence of a health and safety duty (the “duty element”); 2. The failure to comply with that duty (the “breach element”); and 3. The exposure of an individual to the risk of death or serious injury or illness resulting from the failure to comply with the duty (the “exposure element”). 287 Respectfully, it is preferable to describe the third limb as the “exposure element” rather than a test of causation.257 That better reflects the text of the provision and avoids the potential for confusion with the use of the concept of causation in other contexts. The question in this case, however, is not whether Grasso v SafeWork or Vibro-Pile should be followed, but whether the appeal judge relevantly erred in fact or law when considering the exposure element, s 32(c) in this case, and whether it had been established that the exposure resulted from the breach of duty. 288 Grasso v SafeWork was a case where the defendant and its director had been convicted after a roof collapsed during the demolition of the old Sydney Entertainment Centre, narrowly missing two workers. They succeeded in setting aside those convictions on appeal because, on the evidence, the engineering advice they gave had not been followed. 289 Had the advice been followed and had the roof collapsed, they may have been liable for the exposure of workers to the risk of death or serious injury. As it was, no failing by them exposed demolition workers to the risk of death or serious injury,258 and the expert analysis on the breach issue (the failure to adopt computer modelling) did not assist the determination of the exposure element.259 As this issue was explained by Walton J:260 … the appeal should be upheld with respect to the issue of causation, essentially upon the basis of the conclusions reached by Cavanagh J that there were too many intervening events or factors to permit the finding that the way in which Mr Grasso depicted his advice diagrammatically without additional words was a substantial and significant cause to the demolition workers being exposed to a risk of death or injury whilst they were undertaking demolition work. Further, there was an absence of evidence as to how and why a failure to 256 Grasso v SafeWork [2021] NSWCCA 288, [15]-[17] (Walton J). 257 Vibro-Pile (2016) 49 VR 676, [84]-[86] (Maxwell P, Redlich and Whelan JJA); Carmichael v Commonwealth of Australia [2022] VSC 364, [26] (Incerti J). 258 Grasso v SafeWork [2021] NSWCCA 288, [2] (Simpson AJA). 259 Grasso v SafeWork [2021] NSWCCA 288, [7] (Simpson AJA). 260 Grasso v SafeWork [2021] NSWCCA 288, [12] (Walton J). -- 69 of 75 -- [2025] SASCA 112 The Court 66 undertake computer modelling constituted a substantial cause of the risk to which the workers were exposed at the time the risk materialised. 290 In the same case, Cavanagh J explained:261 … it is important not to conflate non-compliance with a health and safety duty with the issue of causation which is an essential element of the offence. Breach must be assessed prospectively but causation must be assessed having regard to what actually occurred. In Bulga this Court said: “[I]t was necessary to establish whether the failure to appoint an SAC was causally related to the risk of the employee’s safety which occurred on the evening in question. That question is to be determined by the application of common sense to the facts in question, appreciating that the purpose of the inquiry is to attribute legal responsibility in a criminal matter”.262 The causation question which arises in this matter is how or whether the conduct of GCE as particularised by the respondent was causally related to the risk to the safety of the demolition workers that occurred at the time when they were working under the roof. 291 In Work Health Authority v Outback Ballooning Pty Ltd, the High Court explained that, under the harmonised system of work health laws, s 19(2) requires that a person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of persons “is not put at risk from work carried out as part of the conduct of the business or undertaking”.263 Section 19(3) provides that, without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as reasonably practicable, various matters directed to the protection of employees and others from risks to their health and safety from work carried out as part of the conduct of the business or undertaking.264 292 The WHS Act is contravened when there is a failure by the person conducting a business or undertaking to take particularised measures to prevent exposure to an identifiable risk.265 At the heart of any prosecution for offending under s 32 for a breach of the duty under s 19 is the exposure of workers and others to the risk of death or serious injury, and that does not require proof that there has been the manifestation of that risk, still less that a relevant accident or incident has actually 261 Grasso v SafeWork [2021] NSWCCA 288, [99]-[101] (Cavanagh J). 262 Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338, [128] (Bathurst CJ, Hidden and Davies JJ). 263 Work Health Authority v Outback Ballooning Pty Ltd (2019) 266 CLR 428, [2] (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ). 264 Work Health Authority v Outback Ballooning Pty Ltd (2019) 266 CLR 428, [2] (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ). 265 Kirk (2010) 239 CLR 531, [12]-[13] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338, [11] and [123] (Bathurst CJ, Hidden and Davies JJ), concerning predecessor legislation. -- 70 of 75 -- [2025] SASCA 112 The Court 67 caused death or serious injury. As the Victorian Court of Appeal explained in Vibro-Pile:266 As has been repeatedly pointed out in the authorities, proof of breach is independent of any link with injury or death.267 Thus, the High Court in Kirk said: It is not necessary that harm has already befallen an employee for an offence to have been committed. Where an inspector authorised under the OH&S Act identifies a risk to the health, safety or welfare of employees present at a workplace, which an employer has not addressed, [the general duty] may be contravened. An obvious example would be the failure to guard dangerous machinery. In many instances, as the plurality judgment in Kirk268 pointed out, the specification in the charge of the measure which the employer should have taken will identify the risk being addressed. Proof that the specified measure would have eliminated or reduced that risk establishes the requisite nexus between the employer’s omission and the risk. There is no necessity to introduce notions of causation. As we have suggested, such notions are likely to lead to misunderstanding, as occurred in this case. Moreover, undue focus on the accident is likely to lead to an inappropriately narrow definition of the risk the subject of the charges. This point has been succinctly expressed, in terms approved by the New South Wales Industrial Court, as follows: [C]areful attention must be paid to the correct identification of the risk the subject of the charges … [I]t is inappropriate to seek to artificially confine the risk to one narrowly defined by reference to an accident with the benefit of hindsight: it is the general class of risk which matters. The danger repeatedly cautioned against of focussing too much attention on an accident is twofold: such a misguided focus can obscure the relevant risk, and it can also misdirect an analysis of causation.269 293 A portion of this passage was cited with approval in Grasso v SafeWork.270 294 Granted, whilst workplace prosecutions are usually commenced in the wake of death or serious injury, that should not be permitted to obscure what are the elements of a charge under s 32 of the WHS Act.271 That is consistent with what was observed by the Court of Criminal Appeal in Unity Pty Ltd v SafeWork NSW:272 While prosecutions for breach of occupational safety laws are rarely, if ever, brought where there has not been a serious injury or death, the test of breach of duty nevertheless remains prospective. However, there are different levels of particularity at which risks can be assessed. Prospectively, a reasonably broad approach may be appropriate; by contrast, a 266 Vibro-Pile (2016) 49 VR 676, [84]-[86] (Maxwell P, Redlich and Whelan JJA). 267 Kirk (2010) 239 CLR 531, 553 [13] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Director of Public Prosecutions (DPP) v Frewstal Pty Ltd (2015) 47 VR 660, [41] (Maxwell P), [126]-[127] (Priest and Kaye JJA). 268 Kirk (2010) 239 CLR 531, [14] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ). 269 State of New South Wales (NSW Police) v Inspector Covi [2005] NSWIR Comm 303, [26], cited in New South Wales v Cahill (No 2) (2011) 210 IR 112, [39], [45] (Boland P, Walton VP and Staff J). 270 Grasso v SafeWork [2021] NSWCCA 288, [21] (Walton J). 271 Vibro-Pile (2016) 49 VR 676, [1] (Maxwell P, Redlich and Whelan JJA). 272 Unity Pty Ltd v SafeWork NSW [2018] NSWCCA 266, [55] (Basten JA, with whom Beazley P and Wilson J agreed). -- 71 of 75 -- [2025] SASCA 112 The Court 68 retrospective analysis of the precise circumstances of an injury or fatality may lead to a narrow description of the risk which materialised. … 295 In Vibro-Pile, the convictions concerned offences under s 21 of the Occupational Health and Safety Act 2004 (Vic). The Court of Appeal explained that the prosecution in that case needed only to establish that:273 (a) there was a risk to employee health and safety; (b) the measures identified as necessary would have eliminated or reduced the risk (as the case may be); and (c) it was ‘reasonably practicable’ in the circumstances for the employer to have taken those measures. 296 Clearly, the third limb in s 32 of the WHS Act, the “exposure element”, did not form part of the prosecution case in Vibro-Pile. 297 When looking at the third limb of s 32, the exposure element under s 32(c), it may be accepted that it is necessary to look at the issue having regard to the context in which it arises, namely, a criminal prosecution, but that does not mean that it is necessary to use the language of causation. Some care should therefore be exercised when considering passages such as the following:274 Causation is to be viewed in a common sense and a practical way, appreciating that the purpose of the inquiry is to attribute legal responsibility in a criminal matter: Royall v The Queen (1991) 172 CLR 378; [1991] HCA 27 (“Royall”) at [17] (per Mason CJ), [19] (per Deane and Dawson JJ) and [15] and [21] (per Toohey and Gaudron JJ). As Allsop P stated in Whelan, Heath Andrew v R [2012] NSWCCA 147 at [2], whilst causation is an issue that has been the subject of much debate in some legislation in the civil sphere, in crime, it remains, in many contexts a jury question and is governed by the test in Royall. The question is one of fact, dealt with by common sense, appreciating that the purpose of the inquiry is to attribute legal responsibility in a criminal matter and so the causal connection must be sufficiently substantial to permit a conclusion of criminal responsibility. One further observation may be made with respect to causation. The question of causation will necessarily be impacted by the manner in which the charges are framed but, as a foundational proposition, the question excited by causation is whether the duty holder’s acts or omissions cause the risk as pleaded in the particular circumstances at a particular time when a person is exposed to the risk: The Crown in the Right of the State of New South Wales (Department of Education and Training) v Maurice O’Sullivan (2005) 143 IR 57; [2005] NSWIRComm 198 at [45]. 298 In this case, the appeal judge was aware of the “exposure element” but preferred to avoid using the language of causation. The appeal judge explained his conclusion on the exposure element in the following way:275 273 Vibro-Pile (2016) 49 VR 676, [6] (Maxwell P, Redlich and Whelan JJA). 274 Grasso v SafeWork [2021] NSWCCA 288, [28]-[29] (Walton J). 275 Appeal judge, [17]-[18]. -- 72 of 75 -- [2025] SASCA 112 The Court 69 By ground five Cleanaway contends that the Magistrate erred in finding that the ‘causation’ element of the offences was satisfied by proof that the alleged measures would have reduced the risk. Cleanaway submits that the Magistrate should have found that, the prosecution was required to prove that the omission to put in place the alleged measures was a significant or substantial cause of the nominated people being exposed to the specified risk of serious injury or death. I would dismiss ground five because on a proper construction of s 32 of the Act the only connection which must be proved between the exposure to risk and the alleged breach of duty is that there were reasonably practicable measures which, if adopted by [Cleanaway], would have materially reduced the risk to which workers or others were exposed even if the risk substantially arose out of circumstances for which [Cleanaway] was not responsible. 299 At the core of Cleanaway’s complaints are two propositions. The first is that the relevant risk was caused by the failure of the brakes rather than by the failure to properly evaluate and instruct Mr Hicks regarding the appropriate means of traveling down steep descents, such as the Freeway, in a fully laden vacuum truck using a manual transmission. The second is that the appeal judge ignored the third limb, eliding the breach and exposure elements. 300 To a significant extent the first proposition is answered by various of the reasons given concerning the earlier grounds. 301 There was evidence to support the findings made by the magistrate and upheld by the appeal judge that a cause of the loss of control, and by inference the risk of death or serious injury, was the failure to evaluate and instruct Mr Hicks regarding appropriate manual gear selection. The weight of the expert and lay evidence led by the respondent was accepted as demonstrating that a significant and material cause of the exposure of Cleanaway’s workers and others to death or serious injury was the failure to implement reasonably practicable measures which would have ensured that Mr Hicks’ driving ability was properly evaluated before he got onto the Freeway, or at the least Mr Hicks was instructed about how to make an appropriate gear selection in circumstances such as those applying on 18 August 2014. 302 It ought not be overlooked that there was no opinion evidence called in opposition to those of Dr Rechnitzer’s opinions that were accepted. 303 Cleanaway had no clear system for evaluating Mr Hicks’ competence and it could have kept him in trucks with automatic transmission, or operating with the assistance of a buddy, until his competence to drive a vacuum truck with a manual transmission on his own down a descent such as the Freeway had been properly evaluated. In any event, it was open to find that it was by reason of his inexperience that Mr Hicks selected the wrong gear at the start of his descent and was unable to control the speed of the truck and keep it at a safe speed until it was necessary to apply the brakes and bring the truck to a stop at the bottom of the Freeway. -- 73 of 75 -- [2025] SASCA 112 The Court 70 304 Mr Hicks lost control well before that stage, and was travelling at around 80 km/h and unable to change down or effectively apply the footbrake as the alarm sounded when the decline steepened, after he had passed the two arrester beds.276 305 As for the suggested misapplication by the appeal judge of the third element concerning the exposure to risk, the appeal judge was well aware of the need for this to be separately established:277 The critical additional element of s 32 of the Act, which distinguishes it from the basic offence enacted by s 33, is that a person is exposed to a risk of death or serious injury or illness in respect of which all reasonably practicable measures to eliminate or minimise the risk have not been taken. The metes and bounds of a discrete offence against s 32 of the Act are therefore subject to the further, narrowing filter, that a person has been exposed to the risk which the employer has failed to eliminate or minimise. It follows even more strongly, therefore, that an offence against s 33 is delineated by the particular risk to which a person has been exposed. A charge which alleged that a person was exposed to a multiplicity of risks, would necessarily be bad for duplicity. The conclusion in respect of s 32 supports the taking of a symmetrical approach to s 33 of the Act even though exposure to a risk is not an element of the basic offence. There can be no offence against s 32 of the Act if the only risk flowing from the failure to take all reasonably practical measures to minimise or eliminate it, is of minor harm. However, the concept of exposure requires something more than simply the failure to minimise risk. There is a distinction between failing to eliminate or minimise risks to health and safety (to use the language of s 17 of the Act) and putting a person at risk (to use the language of s 19(2)) on the one hand, and that element of s 32(c) of the Act which is exposing an individual to risk on the other. Some examples may help to illuminate that distinction. 306 The appeal judge then gave two relevant examples:278 A PCBU conducting an enterprise who fails to check the brakes of heavy vehicles as often as it is reasonably practicable to do so fails to minimise the risk of a collision caused by a brake failure. That PCBU does not ensure the safety of the enterprise’s workers and puts others at risk. The PCBU, therefore, breaches the duty and commits an offence against s 33 of the [WHS Act] even if the vehicle has not left the garage after the last inspection was due. So too if the vehicle is driven well after a scheduled inspection even though the brakes are nevertheless found to be in proper working order. However, if the truck is driven out of the garage, and the brakes are then found to have a latent fault which might have resulted in a catastrophic brake failure, and the basic offence been committed, but in addition, persons in the vehicle’s path have also been exposed to risk. An offence against s 32 of the Act will therefore have been committed. So too, with respect to a failure to assess the competence of a newly engaged driver. A failure to make an assessment when it is reasonably practicable to do so, will result in a breach of the duty and a failure to minimise risk and the commission of a s 33 offence. If the driver is found, in fact, to be perfectly competent to drive the vehicle on the route it took, no one will have been exposed to a risk. On the other hand, if the driver is shown not to have the necessary competencies to control the speed of the truck and manage a brake 276 Appeal judge, [94]-[95]; Magistrate, [236]-[238]. 277 Appeal judge, [36]-[37]. 278 Appeal judge, [38]-[39]. -- 74 of 75 -- [2025] SASCA 112 The Court 71 failure down the steep route on which the truck was driven, the PCBU commits a s 32 offence. 307 Whilst the appeal judge expressed a preference for the approach taken in Vibro-Pile rather than the approach taken in Grasso v SafeWork, and whether or not he had a misunderstanding about the respective statutory tests, his preference was clearly in connection with avoiding the language of “causation” and adhering to the statutory test.279 The question was whether the exposure to the risk of death or serious injury or illness resulted from the failure of Cleanaway to comply with the duty element. 308 To a significant extent, the criticisms made by Cleanaway have been answered by Incerti J in Carmichael v Commonwealth of Australia in the passages earlier set out.280 The appeal judge did not misunderstand or elide the exposure element when upholding the finding that it had been proved that the exposure to death or serious injury resulted from the breach of duty. 309 However, it is in any event significant that, even on the approach favoured by Cleanaway, the appeal judge found that “causation” was established:281 If, contrary to my construction of s 32, I were to consider the element of exposure through the prism of causation in this case, then I would find that notwithstanding the brake defects, the failure to instruct Mr Hicks, on the effective use of gears to retard the speed of the truck when descending the Freeway, was a significant cause of the risk of collision, between the vacuum truck and other road users, arising from an inability to stop the truck, notwithstanding the brake defects. 310 In the circumstances of this case, these findings were open on the evidence, and it has not been shown that the appeal judge erred in fact or law concerning the exposure element. Appeal ground 4 should be dismissed. Conclusion 311 Permission to appeal should be granted. The appeal should be dismissed. 279 Appeal judge, [53]-[55], [63]-[65]. 280 Carmichael v Commonwealth of Australia [2022] VSC 364, [31]-[35] (Incerti J). 281 Appeal judge, [65]. -- 75 of 75 --