Bauer Foundations Australia Pty Ltd v President of the Industrial Court of Qld & Anor [2011] QSC 103

SUPREME COURT OF QUEENSLAND CITATION: Bauer Foundations Australia Pty Ltd v President of the Industrial Court of Qld & Anor [2011] QSC 103 PARTIES: BAUER FOUNDATIONS AUSTRALIA PTY LTD ACN 108 981 022 (applicant) v PRESIDENT OF THE INDUSTRIAL COURT OF QUEENSLAND (first respondent) JUANITA SALTMER (second respondent) FILE NO: SC No 10757 of 2010 DIVISION: Trial Division PROCEEDING: Application ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 6 May 2011 DELIVERED AT: Brisbane HEARING DATE: 3 May 2011 JUDGE: Chief Justice ORDER: 1. The application is dismissed; 2. The applicant is to pay the second respondents’ costs of and incidental to the application to be assessed on the standard basis; and 3. No order as to the first respondents’ costs. CATCHWORDS: ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – JURISDICTIONAL MATTERS – where the applicant pleaded guilty to contravention of s 24 Workplace Health and Safety Act 1995 with circumstance of aggravation – where the applicant was fined $200,000 and this sentence was upheld on appeal by the President of the Industrial Court of Queensland – where the applicant seeks review of that decision under the Judicial Review Act 1991 (Qld) on the grounds of jurisdictional error – whether the President’s treatment of two factual errors made by the Magistrate amounted to jurisdictional error – whether the President misconceived the extent of the guilty plea entered by the applicant – whether the sentencing discretion could extend to having regard to all steps taken or not taken to avoid the risk -- 1 of 5 -- 2 Industrial Relations Act 1999 (Qld), s 349 Judicial Review Act 1991 (Qld) Penalties and Sentences Act 1992 (Qld), s 9 Workplace Health and Safety Act 1995 (Qld), s 24, s 28 Craig v South Australia (1995) 184 CLR 163, cited House v The King (1936) 55 CLR 499, cited Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531, cited Thiess Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 252, cited COUNSEL: R Douglas SC for the applicant No appearance for the first respondent S Keim SC with P Matthews for the second respondent SOLICITORS: Freehills for the applicant No appearance for the first respondent Legal and Prosecution Services WHSQ for the second respondent CHIEF JUSTICE: Introduction [1] The applicant pleaded guilty before an Industrial Magistrate to contravening s 24 of the Workplace Health and Safety Act 1995 (Qld) by failing to discharge its obligation under s 28 of that Act. The complaint alleged that the applicant’s workers were exposed to risks to their health and safety, being “the risk of death or injury” to workers. The source of the risk was identified as an “inadequately secured counterweight” and “the system of work for [its] removal … from … [a] drilling rig”. The complaint further alleged what is under s 24(1)(b) a circumstance of aggravation, namely the resultant death of Mr Bowden. That meant that the maximum penalty was increased to 1,000 penalty units or two years imprisonment. [2] The Industrial Magistrate convicted the applicant and imposed a fine of $200,000. The applicant appealed to the Industrial Court of Queensland against the amount of the fine. The President of the Industrial Court dismissed the appeal. The applicant seeks the review of that decision under the Judicial Review Act 1991 (Qld). Section 349 of the Industrial Relations Act 1999 (Qld) is a privative clause. The applicant contends, however, that the President fell into jurisdictional error (Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531, 574; Craig v South Australia (1995) 184 CLR 163, 176-180), and that the President’s decision should therefore be quashed. First ground of challenge [3] The first ground of challenge to that decision concerns the President’s treatment of two factual errors made by the Magistrate. The President concluded that the Magistrate erred: (a) by saying that a previous accident in Malaysia, involving a related company, had involved a consequent death; and -- 2 of 5 -- 3 (b) by saying that an “alert” email from that related company, drawing attention to the risk and advocating the revision of safety manuals, had been “sent” to the applicant’s General Manager, whereas he had been “copied” into the email when it was sent to the applicant’s relevant Yard Manager. First error: no death in Malaysia [4] As to (a), the President described it as a “mere slip”, because the Magistrate had earlier, in his reasons for judgment (delivered ex tempore), set out the content of the email which confirmed that nobody had been killed in the Malaysian incident. The President identified as the significant point that “the Malaysian incident had revealed a hazard creating a risk of death”. [5] Mr Douglas SC, who appeared for the applicant, submitted that the President erred in characterizing that error as a “mere slip”, and that the President erred in “speculating” about the impact the error may or may not have had upon the Magistrate’s judgment, especially where he confronted a case with the aggravating feature of the death. [6] The President extracted the well-known passage from House v The King (1936) 55 CLR 499, 504-505 where, as a ground for appellate review of a discretionary judgment, reference is made to mistake of fact. The mistake must have materially contributed to the decision made. If this was merely a slip, one would ordinarily conclude that no such material contribution followed. [7] Carrying out the process of evaluation committed to him as an appellate body, it was open (indeed compelling) for the President to conclude as he did. In any event, if he erred in the conclusion he drew, he did so in the course of exercising the jurisdiction committed to him. “Jurisdictional error” was not established with respect to mistake (a). Second error: sending of email [8] As to (b), the President again concluded that the Magistrate’s statement that the email was sent to the General Manager (where the General Manager has only been “copied” into it) was a slip. The General Manager had noticed the email but had not read it. The President took the view that the significant point was that the applicant had not acted on the advice contained in the email prior to this incident. If the Magistrate erred in saying that the email had been “sent” to the General Manager (rather than having been copied to him), it was an error with no consequence, for the obviously important consideration would be that the General Manager received it (by whatever means). I accept the submission made by Mr Keim SC, who appeared for the second respondent (the complainant), that this suggested inadequacy in the Magistrate’s reasons was “quite technical and immaterial”. Second ground of challenge [9] I turn now to the second ground of challenge to the President’s decision. The applicant contends that the President misconceived the extent of the contravention to which the applicant pleaded guilty, in upholding the Magistrate’s reference to the applicant’s failure to make the appropriate amendment to the instruction manual as -- 3 of 5 -- 4 relevant to penalty. The deceased and a co-worker had taken it upon themselves to attempt to remove the counterweight from the rig. Doing so did not fall within their area of responsibility. That was part of the role of the mechanics. (The deceased and his co-worker had contacted one of those mechanics, but he had been unable to assist because he was otherwise engaged.) [10] The President concluded that the applicant’s culpability was not reduced because of the circumstance that the deceased and his co-worker acted outside their area of responsibility, “in the absence of any evidence of the steps taken by the [applicant] to prohibit [them] from attempting to remove counterweights”. That view was plainly open. Relevance to penalty of failure to amend manual [11] The complaint concerns the President’s treatment of the applicant’s failure to amend the instruction manual. The President said that it was “not…irrelevant”. He pointed out that had the mechanic been able to attend to the matter, as had been requested by the deceased and his co-worker, then that mechanic would himself have been placed at risk. Yet Mr Douglas submitted that the particular risk to which the deceased was exposed (under s 28 Workplace Health and Safety Act 1995) arose solely because the deceased chose to do something which he should not have done, and that amending the instruction manual would not have reduced or removed that risk. (He referred to the analysis of the question when exposure to risk occurs contained in Thiess Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 252, paras 63-70.) [12] An immediate difficulty facing the applicant in relation to this contention arises from the form of the complaint, which did not confine the exposed victims to the deceased, but alleges risk to “workers” in the plural, hence the finding in relation to the mechanic had he been able to intervene. Apart from anything else, failure to amend the instruction manual bore on that potential risk and therefore upon penalty. [13] Mr Keim took me to s 9 of the Penalties and Sentences Act 1992 (Qld) for a submission that the sentencing discretion was not in any case as constrained as Mr Douglas submitted. In particular, an assessment of blame under sub-section 2(d) would embrace all steps taken, or not taken, to avoid the risk. As he submitted in writing, “the applicant who, albeit vainly, moved heaven and earth in response to the warning [contained in the email] is in a much more favoured position to receive leniency than one who took no steps at all”. One such step, apart from amending the manual as such, would have been to alert all employees at once to the potential danger. [14] The Magistrate referred to the applicant’s inaction, having received the email, as rendering the applicant more culpable than otherwise. As I have said, the nature of the alleged contravention, to which the applicant pleaded guilty, meant that it was open to the Magistrate to do so. I accept the additional submission for the second respondent that the sentencing discretion was not in any event as constrained as contended for by Mr Douglas. And as just pointed out, one fairly obvious response to the email, on the assumption that processing an amendment to the instruction manual might take a little while, would have been to alert all employees without delay in relation to the danger which had come to light in Malaysia, and to -- 4 of 5 -- 5 emphasize that no employee to whom this sort of task was not committed should enter upon that field. [15] Dealing with this aspect, the President, in the passage already mentioned, concluded that the failure to amend the manual was “not…irrelevant”. In other words, that feature could be regarded as relevant to penalty. He went on to conclude that the quantum of the fine was “reasonably open” and did not suggest error of principle. The President thereby exercised the appellate jurisdiction committed to him. I do not consider that he erred in that approach, but that even if he did, he committed error in the course of exercising his jurisdiction, such that his decision is unassailable in light of the privative clause. Orders [16] I order accordingly that the application be dismissed, and that the applicant pay the second respondent’s costs of and incidental to the application, to be assessed on the standard basis. There will be no order as to the first respondent’s costs. -- 5 of 5 --