Industrial Court of New South Wales CITATION: Bros Bins Systems Pty Ltd v Inspector Ching (No. 2) [2007] NSWIRComm 184 APPELLANT: Bros Bins Systems Pty Ltd PARTIES: RESPONDENT: Inspector Barnabas Ching FILE NUMBER(S): IRC 4243 of 2005 CORAM: Wright J President; Boland J; Backman J CATCHWORDS: Appeal - Occupational health and safety - Statutory interpretation - Whether Full Bench has power to remit proceedings under s 197A(7) - Whether, if Full Bench lacks power to remit proceedings under s 197A, subsequent proceedings invalid - Whether s 170(3) results in any alleged lack of power to remit as a mere irregularity - Appeal dismissed - Orders made Criminal Appeal Act 1912 LEGISLATION CITED: Criminal Procedure Act 1986 Industrial Relations Act 1996 Occupational Health and Safety Act 1983 Bros Bins Systems Pty Ltd v Inspector Ching [2006] NSWIRComm 287 Crampton v The Queen (2000) 206 CLR 16 Inspector Green v The Crown in Right of the State of New South Wales (Department of Commerce) [2006] NSWIRComm 368 CASES CITED: Morrison v Powercoal Pty Ltd & Anor. (No. 3) (2005) 147 IR 117 R v Dobos (1984) 13 ACrimR 306 R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598 R v Perry (1990) 29 NSWLR 589 HEARING DATES: 1 February 2007 DATE OF JUDGMENT: 31 July 2007 APPELLANT: Mr P Kintominas of counsel Castrission & Co., Solicitors LEGAL REPRESENTATIVES: RESPONDENT: Mr R Reitano of counsel WorkCover Authority of New South Wales JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES FULL BENCH CORAM: WRIGHT J, President BOLAND J BACKMAN J Tuesday 31 July 2007 Matter No IRC 4243 of 2005 Bros Bins Systems Pty Ltd v Inspector Barnabas Ching Application by Bros Bins Systems Pty Ltd for leave to appeal and appeal against judgments of Justice Marks given on 9 September 2004 and 27 July 2005 in matter no IRC 5012 of 2001 JUDGMENT OF THE COURT [2007] NSWIRComm 184 1 Judgment was delivered on 7 September 2006 by the Full Bench in Bros Bins Systems Pty Ltd v Inspector Ching [2006] NSWIRComm 287 when the Court dismissed the appeal filed in those proceedings, and confirmed the orders earlier made including the fine imposed by Marks J on 22 July 2005 in Matter No IRC 5012 of 2001. Liberty to apply as to the form of the orders made was granted, provided the leave was exercised within 14 days of the date of judgment. 2 At the request of the appellant to have the matter re-listed on the grounds of an alleged "irregularity" raised in the judgment, the Full Bench has heard the arguments of both parties so as to resolve the issues now raised by the appellant. The reason why the Full Bench took that approach was set in the judgment in these terms: [33] It will be observed that s 197A(7) empowers the Full Bench, on appeal, to either dismiss the appeal or (where the Full Bench upholds the appeal) to "set aside the decision appealed against and make a decision in the matter in accordance with law (including the conviction and sentence of the defendant for the offence charged)"; and that s 197A(8) refers to the possibility in upholding an appeal that the Full Bench may convict the defendant of the offence charged. In the light of the terms of these subsections, there must be substantial doubt whether it was open to the Full Bench, having upheld the appeal in 2003, to remit the matter for further hearing and determination before the earlier trial judge. [34] The Full Bench having done so, a question then arises as to whether it is open to the Full Bench to hear the present appeal. Notwithstanding the possible irregularity that occurred by the remitter of the matter to Marks J, we consider that his Honour having re-heard the case and having instructed himself correctly on the relevant legal issues having regard to the decision of the Full Bench, the subsequent finding of guilt, conviction and fine imposed on the appellant were valid. However, to ensure that any possible irregularity is cured, the appropriate course to be taken, since we as the Full Bench have concluded that the decision of Marks J was correct, is to confirm formally the conviction recorded by his Honour and the penalty imposed. The orders we [will] make will do that. Nevertheless, should either party consider that there is any remaining irregularity in respect of the conviction and penalty then the parties have liberty to apply within 14 days for orders to be made to deal with any difficulty they consider might still exist. 3 The primary ground upon which the appellant relies for its present application is whether the conviction imposed by Marks J was a nullity as his Honour was functus officio and had no jurisdiction to continue the hearing of the matter after he had acquitted the appellant on 5 November 2002. Reliance on this ground requires reference to additional aspects of the history of the proceedings. 4 The proceedings decided by Marks J on 22 July 2005 again came before his Honour as a result of the decision of the Full Bench on 12 December 2003, when the Full Bench set aside his Honour's acquittal of the appellant and made an order in the following terms: "[T]he matter is remitted to Marks J to be dealt with according to law." 5 The proceedings before the Full Bench had of course been brought pursuant to s 197A of the Industrial Relations Act 1996 ('the Act'), which relevantly provides: 197A Appeals against acquittals in proceedings for offences against occupational health and safety legislation (1) This section applies to the decision of a member of the Commission or of a Local Court constituted by an Industrial or other Magistrate to acquit a person of an offence against the occupational health and safety legislation. (2) This section applies to such a decision only if proceedings for the offence were instituted by an inspector appointed under that legislation or with the consent of the Minister or other officer authorised by that legislation to give such a consent. (3) An appeal lies to the Full Bench of the Commission in Court Session against a decision to which this section applies. The appeal is not limited to a question of law. … (5) An appeal may be made within 21 days after the date of the decision appealed against or within such further time (not exceeding 3 months after that date) as the Full Bench or the Commission constituted by a Presidential Member allows. Further time may be allowed, either before or after the end of that 21-day period. (6) Section 191 applies to an appeal under this section. (7) On an appeal under this section, the Full Bench may: (a) dismiss the appeal, or (b) set aside the decision appealed against and make a decision in the matter in accordance with law (including the conviction and sentence of the defendant for the offence charged). (8) If the Full Bench on appeal convicts the defendant of the offence, the maximum penalty that the Full Bench may impose for the offence is the maximum penalty that the court that acquitted the defendant could have imposed for the offence. (9) This section has effect despite anything to the contrary in section 196 or 197. … 6 No party raised any objection to the remitter of the matter to Marks J either before the Full Bench in 2003, nor in the subsequent proceedings before Marks J which culminated in the conviction of the appellant and the imposition of the fine upon it. 7 Similarly, no issue was raised during the second set of proceedings before the Full Bench in 2006 by any party to the earlier remitter to Marks J, and his Honour's further dealing with the matter. Appellant's Submissions 8 In support of this additional appeal ground so described by the appellant, the appellant made submissions, which may be briefly summarised as follows: (a) The provisions of s 197A of the Act, under which the prosecution appealed the first instance acquittal to the Full Bench, contain no provision for the Full Bench to remit the matter back to a single Judge of the Court either for a re-hearing, or to re-open and resume the original hearing. (b) This contention is reinforced by the operation of s 197A(7) which should be read to limit the power of the Full Bench in regard to an appeal against an acquittal. Moreover, explicit reference to s 191 in s 197A(6) coupled with the lack of specific reference to s 192, should provide adequate grounds to construe an intention by the legislature to restrict the scope of s 197A of the Act. (c) Whilst the appellant did not object to the order remitting the matter when it was made, the appellant notes that neither non-objection nor compliance can confer jurisdiction upon a Court which has no jurisdiction to hear a matter: R v Perry (1990) 29 NSWLR 589. 9 Although the appellant correctly concedes that the Court of Criminal Appeal described the point in Perry as unmeritorious and lacking factual merit, it stressed that such considerations did not preclude the appeal being upheld, and that the position of the present appellant is in any event not as unmeritorious as the factual circumstances referred to in Perry. The present case involves alleged error due to the course initiated and the orders sought by the prosecution. 10 The appellant further argues that where there is an incurable flaw in the prosecution's case, it is never too late to take an objection to it, at least as long as there is an appeal process on foot: Crampton v The Queen (2000) 206 CLR 161; and absence of jurisdiction is such an incurable flaw. A failure to take early objection can never amount to waiver or estoppel so as to prevent an appellant taking such a point belatedly while an appeal is still on foot; where a court proceeds without jurisdiction the proceedings are coram non judice: R v Dobos (1984) 13 ACrimR 306; orders and findings purportedly made as a consequence of proceedings conducted without jurisdiction are null and void: R v Hickman; ex parte Fox and Clinton (1945) 70 CLR 598. 11 The appellant accordingly submits that as Marks J had no jurisdiction to resume the hearing of the charge, he had no power to make a finding of guilt or enter a conviction or impose a fine and the conviction of the appellant in the circumstances was a nullity. 12 The appellant contends further that the appeal should be upheld and there should be an order for costs in its favour. 13 Finally it is submitted that the present Full Bench has no power to direct that the hearing of the charge be remitted to the previous Full Bench for two reasons, being first, that there is no power under s 197A(7) to do so, and second, that in any event, the previous Full Bench delivered its decision on 12 December 2003, which was entered and perfected, leaving that Court now functus officio and without jurisdiction to resume and further continue the hearing of the appeal against the acquittal which was instituted by the prosecution. Respondent's Submissions 14 The respondent contends that the appellant's narrow interpretation of s 197A of the Act is plainly wrong. Further, the appellant's approach on s 196 is also misguided, according to the respondent, who states that the provision is not merely procedural in nature but has the effect of applying the provisions of the Criminal Appeal Act 1912 so that rights of appeal additional to those found in section 197 and 197A are created. 15 Furthermore, the respondent puts that appeals under section 197A are governed by the ordinary or general provisions relating to appeals under Part 7 of Chapter 4, and the reference in s 197A(6) to the application of s 191 does no violence to this proposition. This is confirmed by the Full Bench analysis of s 197A in the judgment of Morrison v Powercoal Pty Ltd & Anor. (No. 3) (2005) 147 IR 117: [149] It was submitted that ordinary tenets of statutory construction should be adopted as appropriate to the issue of whether s 181 applies to appeals under s 197A and that the language of s 197A in the context of Parts 5 - 7 of Ch 4 of the Industrial Relations Act does not disclose an intention to exclude the section from the operation of other relevant provisions of those Parts. [150] The respondents submitted that s 197A of the Industrial Relations Act does not make any provision for costs and, importantly for the present purposes, s 197A does not import the provisions of s 181 of the Industrial Relations Act such that the Court does not have the power to order costs in respect of an appeal under s 197A. The respondents further submitted that s 197A is an extensive provision and relates only to an appeal of a decision to acquit and not to, say, a costs order made at the same time. [151] We consider that the Court has the power to award costs in respect of appeals under s 197A of the Industrial Relations Act for the following reasons. [152] We agree with both the appellant and respondents that the ordinary tenets of statutory construction should apply in interpreting s 197A. The Full Bench considered an analogous issue in Workcover Authority of New South Wales (Inspector Bultitude) v Grice Constructions Pty Limited (No 1) (2002) 115 IR 59. In that case the Full Bench considered whether leave to appeal is required in appeals under s 197A. After referring with approval to the approach of the Full Bench in Drake Personnel Ltd t/a Drake Industrial v Workcover Authority of New South Wales (Inspector Ch'Ng) (1999) 90 IR 432, the Full Bench concluded as follows: Section 197A, as do s 196 and s 197, provides an avenue of appeal in respect of occupational health and safety prosecutions, although the two last-mentioned sections also provide appeal rights in a broader range of proceedings. Section 197A, like s 197, is to be contrasted with s 196 which, although all three provisions are found in Pt 7 of Ch 4, expressly excludes the operation of ss 188 and 191. Although the terms of s 197A(6) specifically refer to and apply s 191 but do not likewise specifically refer to or apply s 188, we do not consider on balance that that, of itself, results in a different situation as between ss 197 and 197A as to leave. Therefore, prima face , appeals under s 197A are governed by the ordinary or general provisions as to appeals under Pt 7 of Ch 4, other than s 196, including the requirement in s 188 as to leave. If the leave requirement in s 188 were not to apply to appeals pursuant to s 197A it would have been open to the legislature to expressly exclude its operation as has occurred in s 197A(9) which specifically provides the "section has effect despite anything to the contrary in section 196 or 197". [153] We consider that this reasoning applies equally to s 181 found in Part 5 of Ch 4 and that it would have been open to the legislature to expressly exclude the operation of s 181 in s 197A if that was the intention. [154]Counsel for the appellant, in their written submission on costs, also contrasted the terms of s 197A with s 17 of the Criminal Appeal Act 1912 (CA Act) observing that the legislature did not include any provision regarding costs in s 197A whereas s 17 of the CA Act expressly limited the right to costs orders for appeals under that Act. We agree that this supports the proposition that it was open to the legislature to deal with costs in s 197A if the general position was not to apply. [155] Counsel for the appellant, in their written submission on costs, also referred us to the decision of the Full Bench in Workcover Authority of New South Wales (Inspector Keenan) v Lucon (Australia) Pty Limited (No 2) (2003) 124 IR 459 ( Lucon) in which the Full Bench observed: The legal basis for such orders is that costs in relation to appeals and references under s 196 are not dealt with under the Criminal Appeal Act but, because of the terms of s 196(4), are dealt with in accordance with the normal costs provisions applicable to this Court under, for example, s 181, of the Industrial Relations Act . [156] Again, we consider that this supports our conclusion that s 181 applies to appeals under s 197A of the Industrial Relations Act , just as the Full Bench determined in Lucon that s 181 applies to appeals under s 196 . [157] We note finally that, whilst we agree with counsel for the respondents that s 197A is an extensive provision, we do not consider that its operation should be limited to the actual decision to acquit. Such a construction places an inappropriately narrow interpretation on the provisions of ss 197A(1) and (7)(b). See also Inspector Green v The Crown in Right of the State of New South Wales (Department of Commerce) [2006] NSWIRComm 368. 16 Also of significance is that s 192 and s 197A of the Act do not overlap or contain provisions that suggest the two sections cannot be read together. The use of the word "may" in ss 192 and 197A is permissive as to the things that may be done in disposing of an appeal. 17 In the alternative, the respondent submits that there can be no issue that the Full Bench that originally heard the appeal had power to set aside the decision appealed against, and, having done that, made the original order of Marks J acquitting the appellant of no effect. The proceedings before Marks J were incomplete as his original order acquitting the appellant was a nullity. Marks J at that point was required to deal with the charge. The validity or power of the Full Bench to remit the matter in that light is irrelevant. It cannot be contended, according to the respondent, that s 197A(7)(b) did not empower the Full Bench to set aside the decision of Marks J acquitting the defendant. 18 Additionally the powers available to this Full Bench arise under ss 5AA and 6 of the Criminal Appeal Act 1912. The respondent notes that s 6 permits the Court notwithstanding that it might decide the appeal in favour of the appellant to dismiss the appeal if it considers there would be no miscarriage of justice. Section 5AA(4) of the Criminal Appeal Act 1912 permits the Court to stand in the position of the trial judge and make such determination "on the evidence heard on appeal". That evidence here concerns all of the evidence before Marks J as well as that evidence before the first Full Bench. The approach by the appellant, states the respondent, is completely technical and, would if upheld, having regard to the Court's earlier observations at [34] cited above, lead to an entirely futile outcome – the setting aside of Marks J's determination and another hearing by another Full Bench that would arrive at exactly the same conclusions. This strongly supports orders confirmatory of the determination made by Marks J, or alternatively, a determination consistent with that of Marks J based on the evidence on appeal. There is certainly no substantial miscarriage of justice occasioned by such an approach. 19 Furthermore, the aforementioned approach is consistent with s 170 which operates so as to permit the current Full Bench to correct any irregularity that may be discerned in the history of the proceedings. The respondent asserts that the Court's findings and conclusions at para [34] of the 2006 judgment were correct and the respondent is thus entitled to its costs. Consideration 20 Although we consider it appropriate to grant the implicit application made by the appellant to add an additional ground of appeal to its appeal in the proceedings we, nevertheless, consider that ground of appeal should be rejected and that it is appropriate to do so generally on the basis of the respondent's alternative submission. In taking that approach we note that we may be thought to have assumed the correctness of the appellant's submission that the 2003 Full Bench lacked power to remit the proceedings to Marks J. We, however, make it clear that we do not determine that issue in these proceedings because it is unnecessary to do so. There is nevertheless a reasonable basis to conclude that the powers given to the Full Bench under s 197A(7) are sufficiently wide to empower the Full Bench to remit the proceedings to be dealt with to conclusion, as the consideration that the legislature was at pains to expressly confer on the Full Bench power to convict and sentence the defendant does not, in our view, detract from the width of the power to "make a decision in the matter in accordance with law" as set out in the preceding words in s 197A(7). We, however, base our decision on the consideration that even if the contention of the appellant as to s 197A(7) is correct it does not affect the validity of the proceedings before Marks J or that of the subsequent proceedings on appeal before the Full Bench last year. 21 The present proceedings are distinguishable from those in the Court of Criminal Appeal in Perry. In that case the Court of Criminal Appeal held that an essential precondition that must be met before a judge could validly hear a trial without a jury was that specified in s 32(4) of the Criminal Procedure Act 1986 (which stated that "[a]n election must be made before the date fixed for the person's trial in the Supreme Court or District Court") and that, since that precondition was not met, the election had no operative legal effect, rendering the trial without a jury as no trial at all. 22 The situation here is tangibly different. The Full Bench in 2003 had the power to set aside the order made by Marks J dismissing the charge against the appellant and it did so in terms. 23 Once that occurred the charge against the appellant was on foot and was yet to be heard to finality. Undoubtedly Marks J had power to hear prosecution proceedings under the Occupational Health and Safety Act 1983 which had not been determined and which met other procedural and legal requirements (such as having been commenced within the requisite limitation period, etc): see s 168 of the Act. 24 It could not be, therefore, held, as was held in Perry, that the trial of the appellant was "no trial at all", or that it was heard by a judge not authorised to do so, or that it was a proceeding coram non judice. 25 Although these conclusions are sufficient to dispose of these proceedings we also consider that s 170(3) of the Act has the effect of validating the proceedings even if the appellant's submission was held to be correct. On the hypothesis put forward by the appellant, the order of the Full Bench in 2003 remitting the proceedings to Marks J to be "dealt with according to law" was beyond power and, as such, part of the Act (namely the relevant part of s 197A) had not been complied with. However, it is precisely that kind of situation which s 170(3) was enacted to deal with. 26 Section s 170(3) provides that if, inter alia, a provision of the Act is not complied with in relation to, for example, "the conduct of proceedings before the Commission [or the Court], the failure to comply is to be treated as an irregularity and does not nullify the proceedings, any step taken in the proceedings, or any decision in the proceedings". Thus, any supposed lack of power in the Full Bench to remit the proceedings is, because of the terms and effect of s 170(3), to be treated as a mere irregularity and does not nullify the proceedings before Marks J. 27 Although in proceedings to which s 170(3) applies the Court has power to wholly or partly set aside the proceedings, there would need to be a proper basis (for example, a denial of procedural fairness) for such a step to be taken. There is no basis shown in this matter which could justify that occurring. 28 In conclusion, we reject the appellant's additional grounds of appeal and confirm the original Orders 1 and 2 made by the Full Bench in the judgment of 7 September 2006, dismissing the appeal and confirming the conviction recorded and penalty imposed by Marks J on 22 July 2005 in Matter No IRC 5012 of 2001. In addition we order that the appellant pay the respondent's costs of the appeal in a sum as agreed or, in default of agreement, as assessed. __________________________ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision 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 or Tribunal in which it was generated.