John Holland Pty Ltd v Inspector Nathan Hamilton & Anor [2009] HCATrans 132 (11 June 2009)

Last Updated: 16 June 2009

[2009] HCATrans 132

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S121 of 2009
No S122 of 2009

B e t w e e n -

JOHN HOLLAND PTY LTD

Applicant

and

INSPECTOR NATHAN HAMILTON

First Respondent

ATTORNEY-GENERAL FOR NEW SOUTH WALES

Second Respondent

Summons for Directions

HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO SYDNEY

ON THURSDAY, 11 JUNE 2009, AT 9.43 AM

Copyright in the High Court of Australia

MR D.F. JACKSON, QC: If it please your Honour, I appear with MR S.P. DONAGHUE for the applicant in each matter. (instructed by Harris & Company)

MR J.V. AGIUS, SC: May it please the Court, I appear with my learned friend, MR R. REITANO, for the first respondent in each matter. (instructed by Workcover Authority)

MR M.G. SEXTON, SC, Solicitor-General for the State of New South Wales: If your Honour pleases, I appear with my learned friend, MS A.M. MITCHELMORE, for the second respondent in each matter. (instructed by Crown Solicitor (NSW))

HIS HONOUR: Mr Jackson, you are moving on the summons of 2 June, is it?

MR JACKSON: Yes, your Honour. The summons in each matter and there is an affidavit of Mr Smith of 2 June in each matter. Your Honour should have a set of submissions from us and a set, I think, also from Mr Agius.

HIS HONOUR: Yes, I have those and I have looked at them.

MR JACKSON: Thank you, your Honour. Your Honour, may I just say these things. We have been asked to provide submissions on the two issues that are the subject of our submissions. The position, of course, is that we now have a matter which will be before the Full Court in the form of the case stated which raises an issue similar to that which is sought to be removed to the court from the two proceedings in New South Wales.

The two proceedings in New South Wales are two only because, as we understand the position, one is brought under one provision – section 8(1) of the relevant Act – the other under section 8(2). In relation to those proceedings the current situation of them is that there are really, I suppose, three temporal elements. One is the fact that there was a motion brought to the Full Bench to have this issue and another issue, the second issue being described as “the mines issue” dealt with by that court. The argument on those matters took place on 2 February. A decision adverse to us on the mines issue was given. That is not a matter with which we would seek to trouble this Court. A decision has not been given on the other issue and there is no present indication of a particular time.

The second aspect in relation to temporal matters is that we have an application to stay the proceedings pending the resolution of the case stated and the application for a stay has been listed for hearing on 7 August this year. The third aspect of it is that there is a date which has been set for hearing of the proceedings in which we are not the only defendant and that has been listed for hearing on 26 October 2009.

So far as the other defendants in the proceedings are concerned, none of them has taken the advantage, if I can use that expression, of the Commonwealth enactment so that none of the other parties is a party which might obtain some advantage from the resolution of the constitutional issue as we have described it.

Now, your Honour, could I just say a couple of things about the matter. The first is that it does involve an issue which is similar to that raised in the case stated proceedings. It is similar. The legislation is different, but underlying it is the same question. That question is one which it would be undesirable, in our submission, to have, in a sense, hanging around in circumstances where a trial is to come up and we do not know whether, so far as we are concerned, the trial is one which can take place correctly or not.

It is not a matter where it is a short trial, we are told, and there is material to this effect in Mr Smith’s affidavit. There are 77 volumes of material to be put and a trial likely to go for some months. Now, really, in effect, what is said in the submissions against us is, well, it would be helpful to have the decision of the Full Bench on this issue. Well, maybe, maybe not, with respect, your Honour. I do not mean that any way offensively to that court. What I am saying, though, is that if you have a situation where it is held, so far as that court is concerned, that the prosecution can go ahead against us but this Court were to take a different view in the case stated matter, then we would have a situation where we would again be seeking to have the matter come to the Court.

Your Honour, what then is said in our learned friend’s written submission is that it is inconvenient to have a trial go ahead in which we are not a party, perhaps because one side will attempt to pot the other, if I can put it that way, and that may be to some advantage. But the reality, we would submit, is that if there is a case where there is no right to bring the proceedings against us, then we have a situation where we should not, we would submit with respect, be put to the time and expense of the trial in circumstances where there are proceedings in this Court which will effectively decide one way or another whether the proceedings may be brought.

HIS HONOUR: Can I just understand better than I do the degree of similarity of issue that would arise or that has already been agitated but not decided in the Full Bench?

MR JACKSON: Yes. Could I take your Honour to the document which is exhibit IS2 to Mr Smith’s affidavit and it commences, I think, at the page which is page 19.

HIS HONOUR: Yes, I have that.

MR JACKSON: What we are seeking to do, your Honour, is to have removed to the court – and this appears from the application for removal – effectively paragraphs 1 and 2 on page 19 and paragraph 4 on page 20 together with consequential relief. Your Honour can see that if one goes to the application for removal document and you will see the orders sought on the second page of that document.

HIS HONOUR: Yes, I see that.

MR JACKSON: I have spoken of that as a matter of form. I could take your Honour to the relevant provisions on the underlying enactments if your Honour wanted me to, but it is fundamentally the same question where a prosecution is being brought against us in respect of events that took place before we came under the Commonwealth Act.

HIS HONOUR: Can I just be sure that my understanding of the chronology is right, Mr Jackson? As I understand it, the conduct which is the subject of the proceedings in New South Wales is alleged to have occurred between 27 October and 2 November 2005, I think?

MR JACKSON: Yes. Your Honour will see that in paragraph 6 of Mr Smith’s affidavit.

HIS HONOUR: Yes. The prosecutions are instituted in October 2007?

MR JACKSON: Well, your Honour, could I just say there are two aspects to it. You will see in paragraph 6 of the affidavit that the – I am sorry, your Honour. What your Honour puts to me is correct. There was an application by the Inspector on 26 October purporting to institute the prosecutions.

HIS HONOUR: Yes. Now, just following the Commonwealth legislation through, I would understand that a deal may turn on section 4 of the Occupational Health and Safety Act 1991 (Cth), is that right?

MR JACKSON: Yes, your Honour.

HIS HONOUR: Section 4 came into the form that we find it now in Reprint 4 of the Act by Act 98 of 2006 to which assent was given in September 2006 but which came into operation on 14 March 2007, I think.

MR JACKSON: May I just check that, your Honour. That is so, your Honour, yes.

HIS HONOUR: Yes. The applicant was granted a licence under the Commonwealth legislation in December 2006 with effect from January 2007 to June 2008 and subsequently extended June 2008 to June or December, I am not sure – June, I think, 2012, is that right?

MR JACKSON: Yes, your Honour.

HIS HONOUR: Yes. Is there anything about the provisions of the New South Wales legislation which are relied upon as, or likely relied on as authorising a proceeding which set those provisions markedly apart from the provisions of the Victorian legislation that are relied on in the Victorian proceeding?

MR JACKSON: No, your Honour. Could I just summarise them very briefly?

HIS HONOUR: Please.

MR JACKSON: The relevant enactment is the Occupational Health and Safety Act 2000. The provisions which create the general duties of employers are contained relevantly in section 8(1) that says:

An employer must ensure the health, safety and welfare at work of all the employees of the employer.

That is expanded upon by the paragraphs of section 8(1). Section 8(2) says:

An employer must ensure that people (other than the employees of the employer) are not exposed to risks to their health or safety arising from the conduct of the employer’s undertaking –

et cetera. You will see then section 12 which creates the liability for penalties, and then if one goes to section 32B, there is provision for prosecutions for offences under the Act and they are to:

be dealt with summarily before the Industrial Relations Commission in Court Session –

Section 106, your Honour, in one sense authorises those who may prosecute. In another sense it limits those who might institute proceedings.

HIS HONOUR: Yes.

MR JACKSON: Your Honour, if I can answer the question your Honour asked me, in our submission, there is no material difference between the provisions.

HIS HONOUR: Would there be in the New South Wales proceeding the question which is question 3 in the Victorian proceeding, namely, if there is a section 109, the proceedings are nonetheless validly instituted according to other applicable provisions? The proceedings remain competent even if there is a section 109, that is as I understand question 3 in the Victorian proceedings.

MR JACKSON: Well, your Honour, the answer I think is yes. My hesitation in answering that is that the Victorian proceedings seem to involve a two-stage thing whereby there has to be an application for an authorisation and then the actual institution.

HIS HONOUR: Yes. What you are seeking from me today - - -

MR JACKSON: I am sorry, your Honour, I should have said, if your Honour looks again at the notice of motion in the industrial proceedings - - -

HIS HONOUR: That is exhibit 2, I think, is it?

MR JACKSON: Yes, it is, your Honour. You will see question 4 - paragraph 4 is one of the declarations that is sought to be brought before the Court and that covers, I think, a little more generally the point your Honour was just making.

HIS HONOUR: Yes. What you are asking from me is an order referring the application for removal to a Full Court to be heard at the same time as the case stated?

MR JACKSON: Yes, your Honour.

HIS HONOUR: Yes, thank you, Mr Jackson. Is there anything you need to add?

MR JACKSON: No, your Honour.

HIS HONOUR: Thank you. Yes, Mr Agius.

MR AGIUS: Your Honour, only this morning we sent to the Registry in Melbourne a copy of our written submissions.

HIS HONOUR: I have those, thank you, Mr Agius, and I have looked at them.

MR AGIUS: Thank you. Your Honour, essentially our argument is this, that it is really inappropriate at this time that the applicants move to remove these aspects of the proceedings into the High Court given what has occurred. The applicants appeared and argued the matter before the Full Bench. They then appeared before the trial judge in March of this year and submitted to the trial judge that all defendants should be tried at the same time, that there should be a joint trial. They submitted to the trial judge that they wanted the Full Bench to deliver its judgment and that they were hopeful that that judgment would be delivered before the stated case was dealt with by the High Court and that it would be of assistance to the High Court on one view.

Then they bring an application to remove these aspects of the proceedings to this Court which will have the effect of, in effect, nullifying the process before the Full Bench and taking control of the proceedings out of the hands of the trial judge. In a sense, it is as though the applicants are approbating and reprobating, but the effect of removal will deny an opportunity for the Full Bench to deliver a considered judgment in relation to the matters and likely do one of two things: either force a joint trial to be conducted separately as against some defendants on the one hand and as against the applicant on the other if the applicant is not successful in this Court; or, postpone all of the trial.

Now, if the trial against all defendants is postponed, we are probably looking at a delay of a further six months in relation to a matter which will be four years old in October of this year. If the trials are split and if this matter is removed to the High Court, there will be no prospect of bringing the first applicant to trial in October, we would think. If the trials are split, there is a real risk of inconsistent verdicts, because the central prosecution relates to risks to health and safety associated with the collapse of a tunnel. The defendants are the constructors on the one hand, the designers on the other and another party who was retained to give geotechnical advice.

It is a clear-cut case where one could reasonably expect the defendants to be pointing the finger at each other, if I can use that expression. If all the defendants are not together in the same proceedings, justice could be brought into disrepute in the sense that there might never be a true finding as to liability if inconsistent defences are run and the only way to control that is to have a joint trial.

HIS HONOUR: Let it be assumed for the purpose of argument that a joint trial is more than desirable, it may even be necessary. Let us put it as high as that. Given that John Holland has applied for removal into this Court, what should I do now? I am not called on to determine the application for removal, I am asked to put it in for consideration by the Full Court at the same time as the case stated. Given the fact of application which you may say what you have already about that, what should I do?

MR AGIUS: It is difficult to find an argument to resist, in effect, deferring this argument until a later date when it can be before the Full Court.

HIS HONOUR: Mr Agius, it is that which was crossing my mind. What is against my referring it in?

MR AGIUS: Yes. We came here anxious to avoid a situation where the prosecution against this defendant in New South Wales in relation to the outstanding proceedings would be stayed and also to avoid a situation where, in effect, the Full Bench would be prevented from delivering a judgment in relation to the matter that is being argued. Now, it appears to me, quite frankly, that if all that happens today is a reference of this matter for consideration by the Full Bench in a date later this year, in effect, the mischief that we were seeking to guard against will not arise.

HIS HONOUR: Would you not be in the position where, if the Full Bench gave its decision at a time before the case stated came on for hearing in this Court, the losing party in the Full Bench may, perhaps even likely would, seek leave, would leave go from a Full Bench of the Industrial Court into this Court or does it have to go via other destinations?

MR AGIUS: That is a question that is presently before the High Court in a matter of Kirk. There may be an argument that if the Full Bench was exercising federal jurisdiction in the course of delivering its judgment, I dare say there would be an application for special leave to the High Court.

HIS HONOUR: And thus would we not be back in the position we would be anyway if I were to refer it in? The question is a question. It is not an interrogative statement, Mr Agius. I am looking to tease out the issue.

MR AGIUS: I think it is obvious from the proceedings to us that if the applicants were to, in effect, lose before the Full Bench, they would want to do something about that judgment.

HIS HONOUR: But that would be an exercise of federal jurisdiction, I would have thought, given that there is a constitutional issue in play and 73 would seem, at least on its face, to give a right to come here.

MR AGIUS: We would not be surprised if those arguments were run against us, your Honour.

HIS HONOUR: Yes, nor would I.

MR AGIUS: Even if the applicant chose to go to the Court of Appeal, there would then still be an avenue of appeal to the High Court. So there is really no argument I can find against the logic of that process.

HIS HONOUR: Can I just see if I understand where we have got to. You point to desirability, even necessity of joint trial. You point to undesirability of fragmenting criminal process. You point to the fact that already a deal of time has elapsed. You point to the past participation in the processes in the New South Wales courts by John Holland as standing against them now being heard to say bring it into this Court. Do I capture the essence of at least part of what you have said to me, Mr Agius?

MR AGIUS: Yes, your Honour, and the subliminal message of forum shopping which is part and parcel of our submissions that, in a sense, the applicants have had the benefit of testing the water before the Full Bench and really, in our submission, it could only be to the advantage of the High Court to have the benefit of the judgment from the Full Bench in any event. But beyond that, your Honour, there is nothing more I can put.

HIS HONOUR: Yes, thank you, Mr Agius. Mr Solicitor.

MR SEXTON: If your Honour pleases. We do not have a submission to make in relation to the removal question. Although we seem to have acquired the status of a party, we were an intervener below and we still really retain that role at the moment. So on that removal question, we do not want to make a submission.

HIS HONOUR: Do you seek to be heard against or in favour of my making an order directing the removal application for hearing by a Full Court at the same as the case stated in the Victorian matter?

MR SEXTON: No, we do not, your Honour, although I wonder whether there would be any question then of the substance of the matter being heard at the same time as the Victorian case or whether it would be just the removal application?

HIS HONOUR: It would be my intention that if there were a reference that the parties should be in a position to argue the merits of the matter, that is, it would be my intention to make an order of reference of the same kind as is sometimes made when application for leave is referred in a Full Court for hearing as on an appeal. The parties would in these events be expected to be in a position and to have made written submissions apposite to

argument of not simply the question of removal, but on the issues that would be tendered if that part of the cause were removed into the Court.

MR SEXTON: We understand, your Honour, and if that were to occur, then we would still be there in the capacity of an intervener and we do not make a submission as to whether that should happen or not.

HIS HONOUR: Yes, thank you, Mr Solicitor. Mr Jackson.

MR JACKSON: Your Honour, first, one does not always go back to the founders of the Constitution but they might be a little surprised to hear that section 73 and the abilities given under that amounted to forum shopping in view of the function contemplated for the Court. The second thing, your Honour, is that the observations that were made in relation to the course that should be followed were made on 23 March this year at a time when the hearing before the Full Bench was much closer in time and had been heard in February. Indeed, what was suggested at that time on behalf of those for whom Mr Agius is now appearing was that – I am referring to page 3 of the transcript of that day – was that:

What we have suggested in the case of John Holland is that your Honour –

that is the judge hearing the matter –

provisionally, if your Honour is with us, your Honour provisionally list that matter for hearing in October, but subject to giving the parties liberty to restore the matter should the outcome of the Full Bench require an additional course to be taken, or alternatively there should be some other course taken by John Holland given that the matter cannot proceed with the other three. At the worst the prosecutor says at least three of the four matters should be in a position where they proceed at the end of the year.

Could I just say, your Honour, of course that is 23 March and since then orders have been made, but there is currently an application in the Industrial Court for there to be a stay of proceedings pending the resolution of the case stated.

HIS HONOUR: Mr Jackson, just as to one matter I should perhaps have noted earlier, I see that you have supplied draft minutes of order which I assume have been distributed to opposite parties.

MR JACKSON: Yes, your Honour.

HIS HONOUR: I see that you seek vacating of the operation of Part 26 of the Rules, that simply being the Part that would fix the procedural elements, is it not? There is nothing more to it than that? It is to provide for the substitution you propose in paragraphs 3 and following of your draft orders, is it?

MR JACKSON: Yes, that is so, your Honour. That is the only purpose of referring to that.

HIS HONOUR: Yes.

MR JACKSON: Could I just say, your Honour, in relation to the undated dates, as it were, in paragraphs 4, 5 and 6, those are matters that could be worked out with the Registry. They all relate to preparing books.

HIS HONOUR: Do you have anything to say against my making a direction in form requiring the parties to be in a position to argue the issue that would be removed if your application for removal were to succeed?

MR JACKSON: No, not at all, your Honour. We would support the making of such an order.

HIS HONOUR: Yes, thank you, Mr Jackson.

In each of these matters, John Holland Pty Ltd seeks orders that the application for removal into this Court of part of proceedings pending in the Industrial Court of New South Wales be listed before a Full Court for hearing together with proceedings in matter M16 of 2009.

Matter M16 of 2009 is a proceeding instituted by John Holland Pty Ltd against Victorian Workcover Authority in the original jurisdiction of the court, in which John Holland seeks, among other things, declarations that certain provisions of the Occupational Health and Safety Act 2004 (Vic) are invalid pursuant to section 109 of the Constitution by reason of the operation of provisions of the Occupational Health and Safety Act 1991 (Cth).

In matter M16 of 2009, I have indicated to the parties that if they submit to me a stated case in the form of a draft that has been filed I will state a case pursuant to section 18 of the Judiciary Act 1903 (Cth) asking a number of questions for the opinion of the Full Court. The issues which it is said would arise were part of the causes pending in the Industrial Court of New South Wales in two matters which underlie the applications with which I am now dealing are issues which it is said are closely related to the issues the subject of the case stated in matter M16 of 2009. As I have noted, John Holland asks that its application for removal in each of these matters be listed before a Full Court for hearing together with the case stated in proceeding M16.

The first respondent in each of the present proceedings opposes the application for reference to a Full Court. In that regard the respondent points to the course of proceedings that has taken place in the Industrial Court of New South Wales. The respondent points out that those proceedings in the Industrial Court of New South Wales are criminal prosecutions and refers to the often stated proposition that the Court is reluctant to interrupt the course of criminal justice at interlocutory stages. As the respondent points out, John Holland is not the only defendant to the proceedings in the Industrial Court. The proceedings in that court have been fixed for trial. On the face of things there is evident advantage in any trial of defendants proceeding as a joint trial rather than as several trials. The respondent further points to the fact that the full Bench of the Industrial Court presently stands reserved on questions which are those which it is said should be removed into this Court.

Nonetheless, as emerged in the course of debate this morning, it is evident that the more efficient method of dealing with the application for removal that has been instituted by John Holland in each of these matters is to refer that application for removal for listing before a Full Court together with the proceeding by case stated in matter M16 of 2009.

If the applications for removal are to be listed before a Full Court at the same time as the case stated in proceeding M16 of 2009, as in my opinion should be done, it is obvious that the parties to the application for removal should be in a position to argue the issues that would be removed into this Court if an order for removal were to be made.

In all the circumstances, I consider that it is desirable that the applications for removal in each of matters S121 of 2009 and S122 of 2009 be listed before a Full Court for hearing at the same time as the case stated in matter M16 of 2009. The parties should be in a position to argue the issues that would arise if an order for removal were to be made. It will be necessary for directions to be made setting a timetable for the preparation, filing and serving of written submissions by the parties to the application and any further interveners. It is necessary also, of course, to set about the preparation of an application book.

Rather than my embark on the task of giving directions now, I would propose to do no more than order that the applications for removal in each of the two matters I have identified be listed before a Full Court for hearing together with the case stated in proceeding M16 of 2009 and to adjourn the applicant’s summons in each matter to a date to be fixed in the confident expectation that the parties will be able to reach at least a measure of agreement about the timetable that should be followed. If there remain matters in issue between them, the summons can be relisted for hearing before me and I can determine any issue that is outstanding.

Subject to anything that counsel may say, it would seem to me that I should order that the costs of this application be costs in the cause. I should reserve liberty to any party to apply on not less than three days notice in writing.

Subject to orders being made in those terms, is there anything that counsel on either side would wish to say about the form or content of those orders? Mr Jackson?

MR JACKSON: Nothing, your Honour.

HIS HONOUR: Yes. Mr Agius or Mr Solicitor?

MR AGIUS: No, thank you, your Honour.

MR SEXTON: No, your Honour.

HIS HONOUR: Yes. There will be orders in those terms. Adjourn the Court.

AT 10.24 AM THE MATTER WAS CONCLUDED