Industrial Relations Commission New South Wales Medium Neutral Citation: Chevalley v Inspector Morrison [2012] NSWIRComm 10 Hearing dates: 28 February 2012 Decision date: 29 February 2012 Jurisdiction: Industrial Court of NSW Before: Boland J, President Decision: The Court finds it has no power to make an order that the proceedings before Backman J in Matter Nos IRC 956 of 2007 and IRC 957 of 2007 be stayed pending the determination of the applicants' application for declaratory relief. The Court orders that costs are reserved. Catchwords: OCCUPATIONAL HEALTH AND SAFETY - Interlocutory proceedings - Application for declaratory relief - Declarations sought regarding refusal of trial judge to recuse herself or otherwise be disqualified from hearing and determining pending charges against the defendants - Stay sought pending determination of application for declaratory relief - Power to order a stay - Held no power to order stay Legislation Cited: Criminal Appeal Act 1912 Industrial Relations Act 1996 Occupational Health and Safety Act 2000 Supreme Court Act 1970 Cases Cited: Bacon v Rose (1972) 2 NSWLR 793 Barakat v Goritsas [2012] NSWCA 8 Barton v R (1980) 147 CLR 75 Barton v Walker [1979] 2 NSWLR 740 British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283 Cain v Glass (No 2) (1985) 3 NSWLR 230 Chevalley v Industrial Court of NSW [2011] NSWCA 357 Country Energy v Malone [2005] NSWIRComm 78; (2005) 138 IR 221 GEO Group Australia Pty Ltd (t/as Junee Correctional Centre) v WorkCover Authority of New South Wales [2009] NSWIRComm 15; (2009) 181 IR 390 Gough & Gilmour Holdings Pty Ltd v Caterpillar of Australia Ltd (No 9) [2001] NSWIRComm 260 Howitt v Retec Limited (No 2) (1995) 60 IR 93 Kirk v Industrial Relations Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1; (2010) 239 CLR 531 Lamb v Morris (1983) 76 FLR 296 Morrison v Chevalley [2010] NSWIRComm 116; (2010) 198 IR 30 Rodney Morrison v Hunter Quarries Pty Limited and Another [2009] NSWIRComm 179 Morrison v Joy Manufacturing Co Pty Ltd [2004] NSWIRComm 107; (2004) 137 IR 8 Sankey v Whitlam (1978) 142 CLR 1 at 797 Category: Interlocutory applications Parties: Grahame Anthony Chevalley (First applicant) Hilton Ross Grugeon (Second applicant) Inspector Rodney Morrison (Respondent) Representation: Mr A Moses SC with Mr D Mahendra of counsel (Applicants) Mr R Burbidge QC with Mr I Taylor of counsel (Respondent) McDonald Johnson Lawyers (Applicants) Crown Solicitor's Office (Respondent) File Number(s): IRC 362 of 2012 Judgment 1This matter concerns an application by Grahame Anthony Chevalley and Hilton Ross Grugeon for declaratory relief pursuant to s 154 of the Industrial Relations Act 1996. The orders sought by the applicants are in the following terms: 1. A declaration that her Honour Justice Backman erred in determining that she should not recuse herself or otherwise be disqualified from hearing and determining the pending charges against the Defendant as laid in these proceedings under s.8(1) by virtue of s.26 of the (now repealed) Occupational Health & Safety Act 2000 (NSW). 2. A declaration that her Honour Justice Backman was required by law to recuse herself or otherwise be disqualified from hearing and determining the pending charges against the Defendant as laid in these proceedings under s.8(1) by virtue of s.26 of the (now repealed) Occupational Health & Safety Act 2000 (NSW) ("the Proceedings"). 3. An order that her Honour Justice Backman not hear or determine the Proceedings. 4. An order that the Hearing dates in the Proceedings commencing on 5 March 2012 be vacated. 5. An order that the Proceedings be stayed pending the determination of this Application. 6. An order that the Prosecutor pay the Defendant's costs of and incidental to this Application. 7. Such further or other orders the Court deems fit. 2The application came before the Court as presently constituted for the purpose of directions and the issue of whether a stay should be granted in the terms of Order 5. 3Briefly, regarding the background to the application, the applicants are directors of Hunter Quarries Pty Limited. That company was prosecuted, along with another director, Mr Richard Badior, for alleged contravention of the Occupational Health and Safety Act 2000 ("OHS Act") in respect of an incident involving the death of an employee on 14 June 2005. The applicants were also charged in relation to the same incident. Proceedings against the four defendants commenced in October 2008. The corporate defendant and Mr Badior entered pleas of guilty to amended charges. Messrs Chevalley and Grugeon chose to defend the charges based on the defences under s 26 of the OHS Act. 4On 14 October 2008 the applicants requested the sentencing hearing in relation to Mr Badior and the corporate defendant go first so that the factual matters to which the corporate defendant had pleaded guilty were finalised before the applicants' defended case was heard. On 16 October 2008, in the course of a directions hearing, the applicants made clear that they would be bound by findings of fact made in the sentencing hearing. 5Backman J delivered judgment in the sentencing proceedings on 30 October 2009: Rodney Morrison v Hunter Quarries Pty Limited and Another [2009] NSWIRComm 179 ("sentencing judgment"). In the course of her judgment Backman J referred to a document headed "Agreed Facts". Her Honour extracted from the Agreed Facts the matters relevant to each of the allegations particularised in the two charges. Her Honour also determined a number of facts in respect of which there was no agreement (see [222]) and made other findings about matters in dispute (see [223]). There was also expert evidence, in particular, the evidence of Mr Peter Sunol, an inspector of mechanical engineering employed by the NSW Department of Primary Industries who provided a mechanical engineering report into the incident at the request of the prosecutor. Her Honour accepted Mr Sunol's evidence in important respects. The defendants were convicted and fined. 6On 3 February 2010, the High Court delivered its judgment in Kirk v Industrial Relations Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1; (2010) 239 CLR 531. There followed proceedings before a Full Bench of the Industrial Court ( Morrison v Chevalley [2010] NSWIRComm 116; (2010) 198 IR 30, 24 August 2010 and the NSW Court of Appeal ( Chevalley v Industrial Court of NSW [2011] NSWCA 357, 24 November 2011)) in which the applicants unsuccessfully challenged the validity of the charges against them. Special leave to appeal to the High Court was refused (10 February 2012). 7On 24 June 2011 Backman J made directions setting the applicants' matters down for defended hearing from 27 February 2012 to 15 March 2012. Those dates were later pushed back by one week. 8On 9 December 2011 the applicants indicated to the prosecutor, Inspector Rodney Morrison, that they no longer considered themselves bound by the findings of fact in the sentencing judgment. On 6 February 2012 Backman J ruled that the applicants did not require leave to withdraw from the agreement to be bound by the findings of fact made in the sentencing hearing. 9On 8 February 2012 the applicants filed a motion to vacate the hearing dates and to have her Honour recuse herself on the ground of apprehended bias. On 17 February 2012 Backman J heard the motion to vacate dates and recuse herself. On 22 February, her Honour indicated to the parties that she had decided not to recuse herself and refused the application to vacate the hearing dates. In doing so, her Honour indicated she would give reasons at the end of the week or early the following week. On 23 February, the applicants filed an application for declaratory relief that is the subject of these proceedings. At the time of hearing the stay application Backman J had not delivered her reasons for judgment. 10The explanation for the form of relief sought being declaratory rather than an appeal, which might be the normal expectation, lies in the fact that in Morrison v Joy Manufacturing Co Pty Ltd [2004] NSWIRComm 107; (2004) 137 IR 8, the Full Bench determined the Industrial Court does not have jurisdiction under the combined operation of s 196 of the Industrial Relations Act 1996 and s 5F of the Criminal Appeal Act 1912 to hear and determine an appeal against an interlocutory judgment or order made in proceedings to which s 168 of the Industrial Relations Act applies. It is clearly the case that Backman J's decision declining to recuse herself and her Honour's refusal of the application to vacate the hearing dates were interlocutory. 11In Country Energy v Malone [2005] NSWIRComm 78; (2005) 138 IR 221 the Full Bench addressed the question of whether declaratory relief was available in the absence of jurisdiction to hear appeals from interlocutory judgments or orders (reference being made to the decision in Joy Manufacturing ). In the particular circumstances of that case the Full Bench held that it was appropriate for declaratory relief to be considered and if relevant circumstances existed for such relief to be granted (see [54]-[63]). 12The question immediately arises as to the power of the Court as presently constituted, to grant a stay in the terms of Order 5. The respondent submitted there was no power. The applicants submitted power did exist and relied on the decision of Basten JA in Barakat v Goritsas [2012] NSWCA 8 and on the implied power of the Court. In relation to Barakat , which involved an application for a stay in civil proceedings pending determination of the proceedings in the Court of Appeal, Basten JA assumed that a judge of appeal may make an order pursuant to s 46(2) of the Supreme Court Act 1970 to preserve the status quo pending the hearing of an appeal. His Honour continued at [31]: [31] ... In relation to an appeal against an interlocutory order, that may involve, in an appropriate case, directing that the trial not proceed, pending determination of the appeal, or ordering a stay of proceedings in the Court below, having a similar effect. 13The circumstances in Barakat were quite different to those in the present proceedings. Barakat involved civil proceedings and the question of whether a stay ought be granted pending determination of an appeal. The present proceedings are criminal proceedings involving an application to a single judge for a stay of proceedings before another single judge pending a hearing before a Full Bench for declaratory relief. The powers relied upon by Basten JA have no application to the Court as presently constituted. 14The Industrial Relations Act grants power to a single judge to order a stay of a decision in the case of an appeal. Section 190 provides: 190 Stay of decision appealed against If an appeal is made under this Part to a Full Bench of the Commission, the Full Bench or the Commission constituted by a Presidential Member may, on such terms as it considers appropriate, order that the decision concerned be wholly or partly stayed pending determination of the appeal or until further order of the Full Bench or Commission. 15No equivalent provision exists in relation to applications for declaratory relief and there is nothing in s 153 of that Act or elsewhere that would indicate a general power to order a stay of decisions or orders. 16The applicants, nevertheless, submitted in addition and in the alternative, there was an implied power in the Court to grant the stay. Reliance was placed on the decision of Marks J in Howitt v Retec Limited (No 2) (1995) 60 IR 93 and my decision in Gough & Gilmour Holdings Pty Ltd v Caterpillar of Australia Ltd (No 9) [2001] NSWIRComm 260. 17Howitt concerned an application to stay proceedings on a cross-claim. I would consider his Honour's decision unexceptional in respect of the Court's power to order a stay in the circumstances of that case, which concerned a question of alleged unfairness due to delay in filing a cross-claim. In Gough & Gilmour (No 9) the issue was whether the Court possessed an implied power to grant interim injunctive relief in the proceedings before the Court. 18Whilst the Industrial Court is a superior court of record it does not have unlimited implied powers. An implied power is one derived from the enabling statute and I am unable to identify an implied power from the Industrial Relations Act that would permit the Court to order a stay in the circumstances of this matter. The fact that the power to order a stay is limited in the Act to appeal proceedings would suggest no such implied power exists. 19Neither Howitt nor Gough & Gilmour (No 9) suggests that the Court's implied power extends to the ordering of a stay in respect of decisions or orders of another judge of the Court of equal jurisdiction and status. In this respect, in Barton v Walker [1979] 2 NSWLR 740 at 756, Samuels JA (with whom Reynolds and Glass JJA agreed) stated: The proposition that one judge of this Court has authority to declare that another is disqualified from sitting in particular proceedings seems to me, if I may say so, quite absurd. Such an order would fall far beyond the scope of the declaratory power. It is necessary only to point out that no judge of this Court, or of any other court, is bound by the orders or decisions of a colleague of equal jurisdiction and status. 20The Court is not being asked to declare that another judge is disqualified from sitting, but the point is what Samuels JA said in the second sentence: "It is necessary only to point out that no judge of this Court or of any other court , is bound by the orders or decisions of a colleague of equal jurisdiction and status." In the absence of a provision such as s 190 of the Industrial Relations Act , what Samuels JA said must be correct, with respect. 21It seems to me that the decision in Joy Manufacturing has led to the somewhat anomalous situation that prevents appeals in criminal matters against an interlocutory judgment or order. The Full Bench in J oy Manufacturing recognised the anomaly, stating at [69], "[T]his judgment demonstrates the need for urgent reform in the statutory scheme of appeals from judgments in this Court's criminal jurisdiction. Such reform would be in the interests of both prosecutors and defendants." 22Whilst Country Energy has facilitated access to declaratory relief where Joy Manufacturing applies, the decision in Country Energy does not go so far as to permit a single member of the Court to order a stay as though the proceedings were an appeal. 23I would conclude that I have no power to order the stay of the proceedings before Backman J pending the determination of the applicants' claim for declaratory relief. 24Even if I had found the necessary power existed I have doubts about whether as a matter of discretion I would grant the stay in any event. First, in the absence of any reasons having been published by her Honour in refusing to vacate the hearing dates, I have limited means of making any assessment about the applicants' prospects of success. The evidence in that respect is limited to a very brief affidavit of the applicants' solicitor, Mr Matthew Bryan, which is merely a chronology of certain events. 25Secondly, as the Full Bench observed in GEO Group Australia Pty Ltd (t/as Junee Correctional Centre) v WorkCover Authority of New South Wales [2009] NSWIRComm 15; (2009) 181 IR 390, there is the undesirability of interference - whether by declaration or otherwise - in the conduct of criminal proceedings. Such interference, it was noted, is reserved to exceptional or special cases: see Sankey v Whitlam (1978) 142 CLR 1 at 22-24; Barton v R (1980) 147 CLR 75 at 104; Lamb v Morris (1983) 76 FLR 296 at 307-308; Bacon v Rose (1972) 2 NSWLR 793 at 797; Cain v Glass (No 2) (1985) 3 NSWLR 230 at 235. 26Thirdly, whilst Backman J made adverse findings in respect of evidence in the proceedings involving the corporate defendant and Mr Badior and that evidence will form part of the prosecutor's case against the applicants, it is evidence that will have to be proved beyond reasonable doubt in fresh proceedings. Moreover, apart from pointing out in general terms that Backman J accepted evidence adverse to the defendants and rejected evidence favourable to them the Court was not taken with any specificity to material in the sentencing judgment that was said to activate concerns about bias. 27Fourthly, reference was made to the High Court's decision in British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283. In that case the majority (Heydon, Kiefel and Bell JJ, French CJ and Gummow J dissenting) held that there was a reasonable apprehension of bias on the ground of pre-judgment. At [145] the majority stated: [145] Whenever a judge is asked to try an issue which he or she has previously determined, whether in the same proceedings or in different proceedings, and whether between the same parties or different parties, the judge will be aware that different evidence may be led at the later trial. Judge Curtis's express acknowledgment of that circumstance does not remove the impression created by reading the judgment that the clear views there stated might influence his determination of the same issue in the Laurie proceedings. Allsop P's conclusion was correct. In addition to the possibility of the evidentiary position changing, a reasonable observer would note that the trial judge's finding of fraud was otherwise expressed without qualification or doubt, that it was based on actual persuasion of the correctness of that conclusion, that while the judge did not use violent language, he did express himself in terms indicating extreme scepticism about BATAS's denials and strong doubt about the possibility of different materials explaining the difficulties experienced by the judge, and that the nature of the fraud about which the judge had been persuaded was extremely serious. In the circumstances of this unusual case, a reasonable observer might possibly apprehend that at the trial the court might not move its mind from the position reached on one set of materials even if different materials were presented at the trial - that is, bring an impartial mind to the issues relating to the fraud finding. Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488 is distinguishable. 28The applicants did not point to any "extreme scepticism" or "strong doubt" expressed by Backman J in her Honour's sentencing judgment regarding the applicants' evidence or credit in that case. Her Honour's language seemed to be appropriately temperate and fitting the facts as she found them to be. There was no indication, so far as I could see, of the prospect of partiality or bias on the part of the judge in the proceedings involving the applicants or that "at the trial the court might not move its mind from the position reached on one set of materials ..." Conclusion 29The Court finds it has no power to make an order that the proceedings before Backman J in Matter Nos IRC 956 of 2007 and IRC 957 of 2007 be stayed pending the determination of the applicants' application for declaratory relief. 30The Court orders that costs are reserved. ********** 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. Decision last updated: 01 March 2012