Dowling v Bournelis & Bedrock Constructions (NSW)Pty Ltd [2003] NSWIRComm 88

Dowling v Bournelis & Bedrock Constructions (NSW)Pty Ltd [2003] NSWIRComm 88

The Chief Industrial Magistrate made an appealable error by applying the s 53 defence without first identifying the manner in which Bedrock breached s 15(1), and leave to appeal was therefore granted. Although there was a proper basis for finding the offence proven and the s 53 defence could not have been made out, the respondents had already faced lengthy proceedings and the significant element of double jeopardy justified the Full Bench exercising its residual discretion not to disturb the acquittals. Because there was otherwise a proper basis for finding the offence proven at first instance, the costs order at first instance was reversed.

Jurisdiction
Australia
Judgment Date
30 April 2003
Procedural Posture
Occupational Health and Safety Prosecution Appeal From Acquittal / Application for Leave to Appeal and Appeal Against Decisions of the Chief Industrial Magistrate Given on 25 June 2002
Outcome
Leave to appeal granted; appeals upheld only as to the Chief Industrial Magistrate's orders as to costs; appeals otherwise dismissed; no order as to costs of the appeals.
Legal Topics
['s 15(1) Employer Duty' 's 50(1) Director Liability' 's 53 Statutory Defence' 'appeal Against Acquittal' 'double Jeopardy' 'residual Appellate Discretion' 'costs at First Instance and on Appeal']
['occupational Health and Safety' 'industrial Relations' 'criminal Procedure' 'costs'] ['s 15(1) Employer Duty' 's 50(1) Director Liability' 's 53 Statutory Defence' 'appeal Against Acquittal' 'double Jeopardy' 'residual Appellate Discretion' 'costs at First Instance and on Appeal']

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Procedural Posture

Occupational Health and Safety Prosecution Appeal From Acquittal / Application for Leave to Appeal and Appeal Against Decisions of the Chief Industrial Magistrate Given on 25 June 2002

Legal Issues

  1. 1 ['Whether the Chief Industrial Magistrate made an appealable error by applying a defence under s 53 of the Occupational Health and Safety Act 1983 without first identifying whether and how Bedrock breached s 15(1).' 'Whether, on an appeal against acquittal under s 197A of the Industrial Relations Act 1996, the Full Bench should set aside the acquittals and convict and sentence the respondents.' 'Whether double jeopardy and residual discretion justified leaving the acquittals undisturbed despite appealable error.' "Whether the Chief Industrial Magistrate's costs orders should be reversed."]

Ratio Decidendi

The Chief Industrial Magistrate made an appealable error by applying the s 53 defence without first identifying the manner in which Bedrock breached s 15(1), and leave to appeal was therefore granted. Although there was a proper basis for finding the offence proven and the s 53 defence could not have been made out, the respondents had already faced lengthy proceedings and the significant element of double jeopardy justified the Full Bench exercising its residual discretion not to disturb the acquittals. Because there was otherwise a proper basis for finding the offence proven at first instance, the costs order at first instance was reversed.

Court Disposition

Leave to appeal granted; appeals upheld only as to the Chief Industrial Magistrate's orders as to costs; appeals otherwise dismissed; no order as to costs of the appeals.

Orders

  • ['Leave to appeal is granted.' "The appeals are upheld as to the Chief Industrial Magistrate's orders as to costs." "The respondents shall pay the appellant's costs of the proceedings at first instance." 'The appeals are otherwise dismissed.' 'There shall be no order as to the costs of the appeals.']