Lessons From History

Summary of interesting cases

The Kirk Appeal

Changing the landscape of OHS prosecutions in NSW  

Legal commentary following the 'Kirk' High Court appeal decision now confirms the scale of the ruling's significance for both New South Wales and Australia. 

The appellant company, Kirk Group Holdings Pty Ltd, was the owner of a farm near Picton, New South Wales. Mr Kirk was a director of that company, but did not take an active part in the running of the farm. He had no farming experience and was not in good health. He left the day to day operation of the farm to Mr Graham Palmer, who was employed by the Kirk company as a farm manager. Mr Palmer had run a large property of his own and Mr Kirk considered him to be a very competent person. 

The company had recently purchased an "All Terrain Vehicle" ("ATV") on Mr Palmer's recommendation. Mr Palmer used the ATV to deliver three lengths of steel to fencing contractors who were working in the far back paddock of the farm. A formed road led to the area where the contractors were working, however, Mr Palmer left that road and proceeded on the ATV down the side of a steep hill where there was no formed road. The vehicle overturned and Mr Palmer was killed. It was unnecessary for Mr Palmer to take this route given the existence of the proper road. 

Under the Occupational Health and Safety Act 1983 (NSW), the employer has a duty to "ensure the health, safety and welfare at work of all the employer's employees" and that "persons not in the employer's employment are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking". (The fencing contractors) 

The outcome of the judgment in the High Court was to quash the original conviction against Mr Kirk and the employing entity. The penalty imposed against Mr Kirk (fines totalling $121,000) was similarly dismissed and the High Court made an order that the matter not be reheard in the Industrial Court of New South Wales. The High Court also ordered WorkCover NSW to pay Mr Kirk's legal costs. 

The decision was made on a number of bases, some of which have specific application to the way in which the New South Wales occupational health and safety regime (including under the current legislation) is administered. The High Court also made a number of comments which are of important general application to the prosecution of offences under occupational health and safety legislation in all jurisdictions, and will doubtlessly be closely examined by regulators in New South Wales and throughout Australia. 

Right of appeal:- One of the characteristics of the New South Wales occupational health and safety regime is to limit the rights of appeal of parties convicted by the Industrial Court of NSW of OHS offences. Read in conjunction with the Industrial Relations Act 1996 (NSW), parties are prohibited from seeking a review of decisions in relation to OHS liability, except by reference to the Full Bench of the Industrial Court of NSW. Appeals to the Supreme Court are prohibited. The High Court was critical of this approach because the residual constitutional role of the Supreme Court in each state and territory is to review the exercise of jurisdictions conferred on lower courts, such as the Industrial Court of NSW, which operate beneath it. 

In reaching the Kirk decision the High Court said there is a line of judicial authority guaranteed under the constitution. This ensures that every person has a right to have decisions against them reviewed by superior courts. That is, through the Supreme Courts in the states and the Federal Court at the Commonwealth level, and ultimately to the High Court. 

The High Court said that any government or tribunal/quasi-court that thinks it can create statute or legal argument that can prevent review of decisions (as in NSW) is wrong and has misinterpreted the law of Australia under the constitution. 

Obligation of prosecution to identify means of compliance:- One of the other grounds of appeal brought by Mr Kirk was in relation to a failure of WorkCover NSW to properly identify ways in which Mr Kirk and his company had failed to ensure health and safety so far as reasonably practicable. The High Court accepted Mr Kirk's argument in confirming that it is inadequate to commence an OHS charge on the basis that a failure to ensure health and safety has occurred. Following workplace incidents, and with the benefit of hindsight, prosecutors can identify that a failure to ensure safety has in fact occurred. The obligation then rests with the prosecution to properly identify and plead the ways in which the defendant ought to have acted to manage health and safety. 

This is an important clarification from the High Court and relevant when assessing the strength of any health and safety prosecution. When defendants ask how it is they failed to take reasonably practicable steps to ensure health and safety of their employees, WorkCover NSW will now be required to respond. 

The significant implications of this decision will relate to: 

* the way in which charges are drafted by WorkCover NSW and other bodies who have the statutory right to prosecute OHS matters in New South Wales   

* the approach which the Industrial Court of NSW must now adopt when adjudicating those charges both in terms of their interpretation of the law and also compliance with legal procedure 

* the way in which prosecutors and the judiciary administer and interpret legislation in other states and territories which have similar legislation 

* the question of appeal rights arising from a decision of the Industrial Court of NSW, and 

* an increased awareness of what matters might offer scope for appeal because of jurisdictional error in courts and tribunals, particularly New South Wales courts and tribunals. 

More details:- 

http://www.austlii. edu.au/au/cases/cth/HCA/2010/1.html 

http://www.lex ology.com/library/detail.aspx?g=c4b4c34b-e5e1-40fa-a1cc-ecfb8ee1ac21