Citation: Orr v Hunter Quarries Pty Ltd (No. 5) [2021] NSWDC 171
Court: District Court of New South Wales
Date: 13 May 2021
Judge(s): Russell SC DCJ
Background
A worker died in September 2014 when an excavator he was operating rolled over on an uneven slope at a hard rock quarry. The prosecutor charged the defendant quarry operator with an offence under ss 19(1) and 32 of the Work Health and Safety Act 2011 (NSW). After a 41-day hearing, the trial judge found the prosecution had not proved all elements of the offence beyond reasonable doubt.
Rather than entering final orders immediately, the court gave the prosecutor an opportunity to apply for a Stated Case under s 5AE of the Criminal Appeal Act 1912 (NSW). That mechanism allows a judge to refer questions of law to the Court of Criminal Appeal for determination. The prosecutor applied, and 17 questions were submitted to the Court of Criminal Appeal in June 2020.
After the Stated Case was finalised, the Court of Criminal Appeal decided a related matter, Orr v Cobar Management Pty Ltd [2020] NSWCCA 220. That decision held that most questions of a similar kind were not questions of law within the meaning of s 5AE, making them inappropriate to answer. The prosecutor in this matter then applied to withdraw 13 of the 17 questions already submitted and substitute a revised set of questions.
Legal Issues
- Whether the District Court has power under s 5AE of the Criminal Appeal Act 1912 (NSW) to withdraw questions already submitted to the Court of Criminal Appeal by way of Stated Case.
- Whether the District Court has power to add or substitute new questions to a Stated Case after the original Stated Case has already been sent to the Court of Criminal Appeal.
- Whether, if both powers exist, they should be exercised in the circumstances of this case.
- Whether the proposed new questions are properly characterised as questions of law within the meaning of s 5AE.
Decision
The court found that s 5AE of the Criminal Appeal Act contains no language prohibiting the withdrawal of questions once submitted, nor any language suggesting that only one referral can be made. Accordingly, the court held that it possesses the power both to withdraw existing questions and to refer additional or replacement questions to the Court of Criminal Appeal.
On the question of whether to exercise those powers, the court accepted the prosecutor's position that 13 of the original 17 questions were not questions of law, consistent with the approach taken by the Court of Criminal Appeal in Cobar Management. The court agreed those questions should be withdrawn.
The court then considered whether the proposed replacement questions were genuinely questions of law. It was satisfied that the new questions, which focussed on the proper construction of provisions including ss 17, 18 and 19 of the WHS Act, met that threshold. These questions addressed matters such as the role of reasonable foreseeability in assessing a breach of the health and safety duty, and the proper interpretation of "reasonably practicable."
The court directed the prosecutor to engross an amended Stated Case incorporating the revised questions, along with the original "Facts" and "Appendices" sections, for submission to the Court of Criminal Appeal.
Orders Made
- Questions 1, 3, 4, 5, 6, 7, 8, 9, 10, 12, 13, 14 and 15 of the original Stated Case are withdrawn.
- The prosecutor is directed to engross an amended Stated Case in the appropriate form, incorporating the replacement questions, for submission to the Court of Criminal Appeal.
- The amended Stated Case is to be provided to the judge's associate by 4:00pm on 20 May 2021.
- Costs of the motion are costs in the proceeding.
Key Takeaways
- Section 5AE of the Criminal Appeal Act 1912 (NSW) does not limit a judge to a single referral or prohibit the withdrawal of questions already submitted: the District Court found both powers exist by reason of the section's silence on those points.
- The decision in Orr v Cobar Management Pty Ltd [2020] NSWCCA 220 had significant practical consequences in this matter, prompting the withdrawal of 13 of 17 questions that had already been referred to the Court of Criminal Appeal as not being questions of law.
- Under s 5AE, only genuine questions of law can properly be submitted to the Court of Criminal Appeal: questions going to factual findings or the weighing of evidence do not qualify.
- The replacement questions approved in this matter focused on statutory construction issues under the WHS Act, including whether reasonable foreseeability of worker conduct is relevant to the assessment of a breach of duty under s 19(1), and how the phrase "so far as is reasonably practicable" in s 17 should be applied.
- Where intervening appellate authority indicates that questions already stated are not questions of law, a prosecutor may apply to the originating court to withdraw and substitute those questions rather than proceed before the Court of Criminal Appeal on an improperly framed Stated Case.
Legislation and Cases Referenced
Legislation
- Criminal Appeal Act 1912 (NSW), s 5AE
- Work Health and Safety Act 2011 (NSW), ss 17, 18, 19, 32
- Occupational Health and Safety Act 2000 (NSW)
- Interpretation Act 1987 (NSW), s 43
Cases
- Orr v Cobar Management Pty Ltd [2020] NSWCCA 220
- Orr v Hunter Quarries Pty Ltd [2019] NSWDC 634 (Primary Judgment)
- Orr v Hunter Quarries Pty Ltd (No. 2) [2020] NSWDC 307 (Stated Case Judgment)
- Environment Protection Authority v Grafil Pty Ltd [2019] NSWCCA 174
- Morrison v Chevalley [2010] NSWIRComm 116
- Nash v Glennies Creek Coal Management Pty Ltd (No. 5) [2013] NSWIRComm 99