Orr v Hunter Quarries Pty Ltd [2022] NSWCCA 39

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Orr v Hunter Quarries Pty Ltd [2022] NSWCCA 39 Hearing dates: 15 November 2021 Date of orders: 2 March 2022 Decision date: 02 March 2022 Before: Beech-Jones CJ at CL at [1] Walton J at [65] Price J at [66] Decision: The questions posed by Russell SC DCJ on 13 May 2021 be answered as follows: Q1: Does the proper construction of the Criminal Appeal Act 1912 (NSW) permit me to withdraw questions which I have previously submitted to the Court of Criminal Appeal pursuant to s 5AE of that Act? A: The Court declines to answer. Q2: Does the proper construction of the Criminal Appeal Act 1912 (NSW) permit me to submit additional questions to those previously submitted to the Court of Criminal Appeal pursuant to s 5AE of that Act? A: Yes. Q3: Does the proper construction of the Act require the Court to determine (in the following order): (a) whether the pleaded risk to health and safety existed at the date of the alleged offence; (b) whether the pleaded measures were reasonably practicable within the meaning of s 18 of the Act; (c) whether the pleaded measures would have eliminated the risk to health and safety, or if not, minimised the risk to health and safety from the pleaded risk within the meaning of s 17 of the Act; (d) whether the failure by the Defendant to take those reasonably practicable measures was a significant or substantial cause of a worker being exposed to the risk of death or serious injury or illness? A: No. Q4: In respect of question 3(b) above, is the Court required to take into account and weigh up all of the matters listed in s 18 of the Act? A: Does not arise. Q5: In respect of question 3(c) above, does the proper construction of the phrase "so far as is reasonably practicable" in s 17 of the Act require the Court to assess whether the pleaded measures would have minimised the pleaded risk to health and safety to a greater degree than the measures (if any) that the duty holder had in place as at the date of the alleged offence? A: Does not arise. Q6: Is the reasonable foreseeability of an incident in which the pleaded risk to health and safety manifested, relevant to assessment of the breach of the duty under s 19(1) of the Act? A: Yes, but it is not necessarily determinative. Q7: Is the reasonable foreseeability of the pleaded risk to health and safety to the duty holder relevant to the assessment of whether pleaded measures were "reasonably practicable" having regard to the provisions of s 18 of the Act? A: Yes, but it is not necessarily determinative. Q8: Does the Act permit the Court to take into account whether the duty holder could reasonably foresee the conduct of the worker(s) exposed to the pleaded risk, prior to considering whether the pleaded measures were reasonably practicable having regard to the provisions of s 18 of the Act? A: The Court declines to answer. Q9: Does the Act permit the Court, in circumstances where it finds that the duty holder could not reasonably foresee the conduct of the worker(s) exposed to the pleaded risk, to not consider whether the pleaded measures were reasonably practicable having regard to the provisions of s 18 of the Act? A: The Court declines to answer. To the extent that the questions posed by Russell DCJ as referred to in Orr v Hunter Quarries Pty Ltd (No 2) [2020] NSWDC 307 are before the Court, then the Court declines to answer. Catchwords: STATED CASE – prosecution under Work Health and Safety Act 2011 – primary judge published reasons but not final orders – utility of stated case procedure – necessity to identify "pure question of law" – not a means to address or consider whether alleged finding of mixed fact and law affected by legal error – primary judge has power to submit question or multiple questions prior to making final orders – question as to power of primary judge to withdraw properly submitted questions – does not arise – question posed contending that primary judge had obligation to address components of an element of the offence in a specified order – no such requirement – questions asked concerning relevance of the reasonable foreseeability of the relevant risk and the accident in which the risk manifested – Court limited to strictly answering question posed – questions answered "yes, but not necessarily determinative" – balance of questions posed do not arise or not appropriate to answer Legislation Cited: Crimes (Appeal and Review) Act 2001 Criminal Appeal Act 1912 Occupational Health and Safety Act 1983 Work Health and Safety (Mines and Petroleum Sites) Act 2013 Work Health and Safety Act 2011 Cases Cited: Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37 Drake Personnel Ltd t/a Drake Industrial v Workcover Authority of New South Wales (1999) 90 IR 432 Duarte v Director of Public Prosecutions [2020] NSWCCA 351 Environment Protection Authority of NSW v Goulburn Wool Scour Pty Ltd (2004) 137 LGERA 289; [2004] NSWCCA 439 Grasso Consulting Engineers Pty Ltd v SafeWork NSW; Grasso v SafeWork NSW [2021] NSWCCA 288 Kirk v Industrial Court of New South Wales and Another (2010) 239 CLR 531; [2010] HCA 1 Lavorato v R (2012) 82 NSWLR 568; [2012] NSWCCA 61 Nash v Silver City Drilling (NSW) Pty Ltd; Attorney General for New South Wales v Silver City Drilling (NSW) Pty Ltd [2017] NSWCCA 96 NSW Food Authority v Nutricia Australia Pty Ltd [2008] NSWCCA 252 NSW Industrial Relations Commission v Kirk Group Holdings Pty Ltd [2004] NSWIRComm 207; (2004) 135 IR 166 Orr v Cobar Management Pty Ltd [2020] NSWCCA 220 Orr v Hunter Quarries Pty Ltd [2019] NSWDC 634 Orr v Hunter Quarries Pty Ltd (No 2) [2020] NSWDC 307 Orr v Hunter Quarries Pty Ltd (No 5) [2021] NSWDC 171 R v Jessop [1974] Tas SR 64 R v PL [2009] NSWCCA 256 Rockdale Beef Pty Limited v Industrial Relations Commission of NSW and Anor [2007] NSWCA 128 Tame v New South Wales; Annetts v Australian Stations Pty Ltd (2002) 211 CLR 317; [2002] HCA 35 Williams v R (1986) 161 CLR 278; [1986] HCA 88 Work Health Authority v Outback Ballooning Pty Ltd (2019) 266 CLR 428; [2019] HCA 2 WorkCover Authority of NSW v Kellogg (Aust) (1999) 101 IR 239; [1999] NSWIRComm 453 Category: Principal judgment Parties: Stephen James Orr (Applicant) Hunter Quarries Pty Ltd (Respondent) Representation: Counsel: K Nomchong SC, C Magee (Applicant) J Glissan QC, D Nagle (Respondent)