Kirk
v. Industrial Relations Commission (NSW)

Judges: French CJ
Gummow J
Hayne J

Heydon JCrennan J
Kiefel J
Bell J

Judgment by:
Heydon J

[113] I dissent from the orders proposed by the majority. I agree with the substance of the reasoning stated in the reasons for judgment of the majority, subject to one question.

Defendant called as witness by the prosecution

[114] The law required the hearing to be conducted in accordance with the rules of evidence. That follows from s 163(2) of the Industrial Relations Act 1996 (NSW) ("the IR Act"). It also follows from the Evidence Act 1995 (NSW) ("the Evidence Act"): see s 4(1) read with the definition in Pt 1 of the Dictionary of "NSW court". In defiance of the prohibition in s 17(2) of the Evidence Act, the prosecution called Mr Kirk as its own witness in a criminal case. It was not open to the Industrial Court to dispense with s 17(2) pursuant to s 190, even with the consent of the parties. That error was not sinister in that it arose by reason of an oversight by the parties and the judge. But it was a jurisdictional error. The trial judge had jurisdiction to decide whether to fine the appellants after a trial conducted in accordance with the rules of evidence. He did not have jurisdiction to decide whether to fine the appellants after a trial which was not conducted in accordance with the rules of evidence. The jurisdictional error appeared on the face of the record, being mentioned at least twice in the trial judge's reasons for judgment. Will every error in applying those of the numerous rules of evidence which cannot be dispensed with pursuant to the fairly strict requirements of s 190 or bypassed by agreeing facts pursuant to s 191 or outflanked by making admissions be a jurisdictional error? That question should be reserved for consideration from case to case. It is possible that there may be instances of failure to comply with the rules of evidence which are of insufficient significance to cause the court making them to move outside jurisdiction. It is also possible, as the majority suggest, that even insignificant failures would be jurisdictional errors, but not jurisdictional errors of a type justifying the exercise of an appellate court's discretion in favour of granting relief. ^[145]

[115] But the error involved here in the prosecution calling a personal defendant as its witness to give a substantial quantity of testimony is within neither of these two categories. On any view it was a jurisdictional error, and there was no discretionary reason for refusing relief. For a long time it was controversial whether, and on what conditions, the accused should be made a competent witness. ^[146] The position adopted by the Imperial and Australian legislatures in the late 19th century was that the accused was not to be a competent or compellable prosecution witness, but was to be a competent witness for the defence. That position has been continued in s 17(2) of the Evidence Act. It is an absolutely fundamental rule underpinning the whole accusatorial and adversarial system of criminal trial in New South Wales. A sign, and a cause, of its fundamental character is the provision in s 190(1)(a) that the court cannot make an order dispensing with that rule, even with the consent of the parties.

[116] I agree with the reasons of the majority for rejecting the proposition that even if Mr Kirk was not competent to give evidence in the case against him he was competent to give evidence as a witness against the Kirk company. ^[147]

[117] It would be wrong to do what the prosecution in this court did not do -- to treat the fact that Mr Kirk was called by the prosecution as a mere technicality of which the appellants have been able to take an adventitious and unmeritorious advantage at a late stage in these proceedings. The credibility of a witness in the position of Mr Kirk in relation to the defence under s 53 of the Occupational Health and Safety Act 1983 (NSW) ("the OH & S Act") is capable of being affected by the manner in which the testimony is elicited. The law grants considerable power to a cross-examiner to employ leading questions and otherwise to operate free from some of the constraints on an advocate examining in chief. It does so for particular reasons. In New South Wales at least, ^[148] normally in a criminal case an advocate cross-examining an accused person will have had no contact with the witness being cross-examined before the trial, and will have no instructions about what that witness will say, apart from whatever the witness said to investigating officials acting on behalf of the State or to other persons to be called as witnesses in the prosecution case or in documents to be tendered in that case. But a cross-examiner's ordinary powers are, in a practical sense, much diminished when the witness being cross-examined is the client of the advocate conducting the cross-examination. The cross-examiner who persistently asks leading questions of a witness in total sympathy with the interests of the cross-examiner's client is employing a radically flawed technique. The technique is the more flawed when the witness is not merely in total sympathy with the client, but actually is the client. For an inevitable appearance of collusion between an advocate and a client who had many opportunities for pre-trial conferences is suggested by the persistent use of leading questions in these circumstances. It is an appearance which is likely to be ineradicable, and which is likely to cause the value of the evidence to be severely discounted. This risk is avoided if the client is giving the evidence in chief rather than under cross-examination, for the client's advocate is severely restricted in the capacity to ask leading questions in chief. Judging the credibility of a witness in the box can depend on the trier of fact making an assessment of that witness's whole character. It is a process assisted by knowing as much about the witness's character as possible. The credibility of testimony is often enhanced, and the assessment of credibility is assisted, when the testimony is given in answer to non-leading questions. Testimony given in answer to non-leading questions is the witness's own testimony, resting on the witness's own perceptions, and moulded by the witness's own values. It is not something created by the narrow, specific and carefully crafted leading questions of an advocate concerned to shield the witness's character as much as possible. On some issues in the trial in this case the prosecution bore the legal burden of proof, but on the vital s 53 issue Mr Kirk and the Kirk company bore the legal burden of proof. It would have been asking too much of human nature to have expected counsel for the prosecution to have elicited evidence from Mr Kirk on issues exclusive to the s 53 defence. That task thus lay with counsel for Mr Kirk and the Kirk company. It is a task one would expect to have been more satisfactorily accomplished from the defendants' point of view if it were done by an advocate not able to make extensive use of leading questions. There are many reasons for the legislative choice made in ss 17(2) and 190, but this particular consideration alone indicates that there is nothing irrational about it, and nothing trivial about the failure to comply with s 17(2) in this case.

[118] The calling by the prosecution of a defendant as its own witness is not the only curious feature of the present case.

[119] Another curious feature is that apart from some concerns which the trial judge, to his credit, revealed about that course, it was adopted by the parties without apparent attention to its legality.

[120] Yet another curious feature is found in a section of his reasons for judgment recording various facts which he evidently saw as crucial. The trial judge there concluded that Mr Kirk "did not supervise the daily activities of employees or contractors working on the Farm". ^[149] The suggestion that the owners of farms are obliged to conduct daily supervision of employees and contractors -- even the owners of relatively small farms like Mr Kirk's -- is, with respect, an astonishing one. A great many farms in Australia are owned by natural persons who do not reside on or near them, and a great many other farms are owned by corporations the chief executive officers of which do not reside on or near them. The suggestion reflects a view of the legislation which, if it were correct, would justify many of the criticisms to which counsel for the appellants subjected it as being offensive to a fundamental aspect of the rule of law on the ground that it imposed obligations which were impossible to comply with and burdens which were impossible to bear.

[121] The next striking aspect of the proceedings relates to some of the reasons why the Full Bench of the Industrial Court only extended the time within which the appellants could appeal in relation to one ground. This was inconsistent with the contemplation of the Court of Appeal, for Spigelman CJ ^[150] and Basten JA ^[151] both appeared to assume that the full range of the appellants' jurisdictional arguments would be considered by the Full Bench. One ground which the Full Bench assigned for not making a wider grant of leave was that the appellants' first application to the Court of Appeal, which caused the delay in the application to the Full Bench, was "forum shopping". That is an expression which the Full Bench used several times and which it borrowed from the submissions of counsel for the prosecution. The expression "forum shopping" is commonly used to describe the conduct of litigants who seek to choose among different jurisdictions, whether the courts of different nations (for example, France or New Zealand) or different states or provinces (for example, New South Wales or Victoria) or different law-districts (for example, England or Scotland) or, in a federation, a federal court exercising federal jurisdiction rather than a State court exercising State jurisdiction (for example, the Federal Court of Australia or a State court). It seems inappropriate so to describe the conduct of litigants who, aggrieved by the decision of a court of New South Wales, attempted to remedy their grievance by making an application to the highest courts in New South Wales, the Court of Appeal and the Court of Criminal Appeal. Provided there was not in place any valid legislation precluding that application, the course does not seem to be correctly describable as "forum shopping". To describe it as "forum shopping" is to treat the Court of Appeal as if it were akin to a weak early feudal monarch whose writ does not run to the demesne of a powerful territorial magnate, and to treat the Full Bench as that magnate. It is to treat the Full Bench as if it were the only proper forum, and to treat the Court of Appeal as a court which, if it has jurisdiction at all, is a most unworthy receptacle of it. It approaches an assertion of exclusive dominion over the fields within its jurisdiction. A court below the Court of Appeal in the appellate hierarchy of New South Wales courts is not in a different "forum" from the Court of Appeal. Nor is a court controllable by that court through orders in the nature of prohibition, mandamus and certiorari on grounds of jurisdictional error. In submissions advanced by the prosecution to the Court of Appeal, which the Full Bench quoted, it was contended that the appellants' conduct would "lead to the risk of the establishment of two separate bodies of jurisprudence, which ... is not in the interests of justice". The submission was repeated to the Full Bench. Had the Court of Appeal dealt with the matter on the merits in accordance with the approach to the construction of ss 15, 16 and 53 of the OH & S Act adopted by the majority judgment in this court, there would not have been "two separate bodies of jurisprudence". It would have been the duty of the Industrial Court, both its trial judges and the Full Bench, thereafter to follow the law as stated by the Court of Appeal. The Full Bench thus appears to have operated, or accepted submissions which operated, under a misconception about the structure of the courts which sit in New South Wales. For just as this court sits at the pinnacle of a single integrated system of courts, the Court of Appeal (or, depending on the subject-matter, the Court of Criminal Appeal) sits at the pinnacle of the system of courts in New South Wales. This misconception in relation to "forum shopping" underlies the expressions that the Full Bench employed when it spoke of the appellants' attack on s 179 of the IR Act as "merely a device to circumvent the likelihood of the Court of Appeal declining to hear the [appellants] from the outset" and when it said the appellants "felt" that "they had a better chance in another forum." ^[152] The Full Bench also gave as a ground for its refusal to extend time the "settled" nature of the case law in the Industrial Court applied by the trial judge. Whether settled in that court or not, an attempt to have a court with power to control the Industrial Court examine its merits should not have been the subject of pejorative language. The attempt was not appropriately described as "forum shopping", or as tainted by the use of "devices", or as an appeal to "chances".

[122] Our legal system has often had to balance the advantages of creating specialisation over the disadvantages of doing so. It is commonly thought better, for example, that allegations of crimes be tried by judges expert in criminal law and procedure. The same is true, mutatis mutandis, of company work, bankruptcy, personal injury claims, planning law and many other categories of litigation. Sometimes the legislature elects to create separate courts for the particular litigation. Sometimes it creates separate divisions within a court. Sometimes it leaves it to the courts themselves to create appropriate lists, the precise nature of which may readily be changed from time to time. A writer in the late 20th century said: ^[153]

History teaches us to be suspicious of specialist courts and tribunals of all descriptions. They are usually established precisely because proceedings conducted in accordance with normal judicial standards of fairness are not producing the outcomes that the government wants. From the Court of Star Chamber to the multitude of military courts and revolutionary tribunals in our own century, this lesson has been repeated time and time again.

However that may be, the appellants referred in submissions to the danger of conferring jurisdiction to hear criminal proceedings on courts the practitioners in which are unfamiliar with all the relevant rules. There is a related danger in that course in that the courts on which the jurisdiction has been conferred, while in some sense specialist, are not familiar with all the relevant rules. Thus a major difficulty in setting up a particular court, like the Industrial Court, to deal with specific categories of work, one of which is a criminal jurisdiction in relation to a very important matter like industrial safety, is that the separate court tends to lose touch with the traditions, standards and mores of the wider profession and judiciary. It thus forgets fundamental matters like the incapacity of the prosecution to call the accused as a witness even if the accused consents. Another difficulty in setting up specialist courts is that they tend to become over-enthusiastic about vindicating the purposes for which they were set up. Medical students usually detect in themselves at a particular time symptoms of the diseases they happen to be studying at that time. Academic lawyers interested in a particular doctrine can too often see it as almost universally operative. So too courts set up for the purpose of dealing with a particular mischief can tend to exalt that purpose above all other considerations, and pursue it in too absolute a way. They tend to feel that they are not fulfilling their duty unless all, or almost all, complaints that that mischief has arisen are accepted. Courts which are "preoccupied with special problems", like tribunals or administrative bodies of that kind, are "likely to develop distorted positions." ^[154] Thus Jaffe said, discussing the factual position illustrated by R v Bradford: ^[155] "[R]oad-maintenance authorities sorely pressed to find gravel within the parish will not place a high value on the amenities of the gentry's parks." ^[156] It may be that something like this underlay the process by which the Industrial Court adopted the construction of ss 15, 16 and 53 of the OH & S Act which the majority have rejected, and failed to notice the closely related difficulty of the unsatisfactory way the charges were pleaded. To say that is not to negate the importance of increased industrial safety, or the importance of giving full effect to the statutory language, properly construed, which creates methods of increasing it. Nor is it necessarily to question whether creating specialist courts devoted to the fulfilment of that and other vital public goals is the best way of increasing industrial safety. It is merely to raise a caveat about accepting too readily the validity of what specialist courts do -- for there are general and fundamental legal principles which it can be even more important to apply than specialist skills.

Orders

[123] Uncontroversial orders. It is not controversial that the title of the proceeding should be amended, that the appeal should be allowed, that the second respondent should pay the appellants' costs of the appeal, that the orders of the Court of Appeal of 3 July 2008 should be set aside, that the second respondent should pay the appellants' costs of those proceedings in the Court of Appeal, that the orders of the Industrial Court at trial be quashed, that the orders of the Full Bench of the Industrial Court be quashed and that the two special leave applications be dismissed.

[124] Two controversial questions. There are, however, two controversial questions. One is whether any order should be made in relation to the future of the Industrial Court proceedings. The other concerns the costs of the trial, of the first Court of Appeal and the Court of Criminal Appeal proceedings, of the Full Bench proceedings and of the two special leave applications which are to be dismissed on the ground that it is not necessary to deal with them in view of the appellants' success in the appeal. The starting point of an endeavour to answer them must be that this is a highly unusual case, in which the appellants have been treated very unjustly and in a manner causing them much harm. The substantive outcome in this court is the quashing of fines totalling $121,000. But if the appellants do not enjoy significant success in obtaining costs orders in their favour in relation to proceedings in the courts below, the financial aspect of their substantive success will be dwarfed by what they will have spent in costs in order to secure that success. That would be a paradoxical result.

[125] Dismissal of applications. No order for a new trial should be made. Rather, there should be an order that the applications in the Industrial Court be dismissed. That is so for the following reasons. First, the second respondent does not seek an order for a new trial and it is desirable to make it plain that there will be no new trial. Secondly, the proceedings should have never been instituted. That is perhaps a statement the truth of which can be seen more clearly now, in hindsight, than it could be seen before the proceedings were instituted. But it remains a statement which is and was true at all times. It is absurd to have prosecuted the owner of a farm and its principal on the ground that the principal had failed properly to ensure the health, safety and welfare of his manager, who was a man of optimum skill and experience -- skill and experience much greater than his own -- and a man whose conduct in driving straight down the side of a hill instead of on a formed and safe road was inexplicably reckless. The absurdity is the greater in view of the trial judge's acceptance of the propositions that Mr Kirk was "a 'scrupulous and dedicated professional'", that when "'Mr Kirk is operating something in a business mode we know he will be attending to it or causing others to attend to it with the full discretion that he can'", ^[157] that for 20 years he had "operated as a good industrial citizen", ^[158] that he was extremely remorseful because of the death of a good friend, ^[159] and that in various other respects he had "paid a high price". ^[160] Thirdly, even if the proceedings were not misconceived from the outset, they were conducted unsatisfactorily: the form of the applications rendered them liable to be struck out, the actual hearing was not conducted within jurisdiction or according to law because the prosecution called Mr Kirk as its own witness, and the reasons for judgment of the trial judge proceeded on an erroneous construction of the legislation. Fourthly, the accident which led to the prosecution took place on 28 March 2001. The prosecution tarried until the end of the limitation period before filing the applications on 27 March 2003. The hearing took place on 10 and 11 February and 5 April 2004. The trial judge's reasons for finding the offences proven were delivered on 9 August 2004. His reasons for imposing fines were delivered on 24 January 2005. There followed proceedings in the Court of Appeal and Court of Criminal Appeal (commenced in 2005, concluded on 30 June 2006), the Full Bench application to extend time to appeal (concluded on 15 November 2006), the Full Bench appeal (concluded on 8 May 2007), proceedings again in the Court of Appeal (concluded on 3 July 2008), the special leave applications to this court (heard on 1 May 2009) and the hearing in this court (from 29 September to 1 October 2009). No-one is to be blamed for any of these delays after 27 March 2003, taken in isolation. But the cumulative effect on the appellants is oppressive. It is time for the WorkCover Authority of New South Wales to finish its sport with Mr Kirk. The applications in the Industrial Court should be dismissed.

[126] A wide claim for costs. The trial judge ordered the appellants to pay the second respondent's costs of the trial. The appellants seek in this court an order to the effect that the second respondent pay the costs of the proceedings in this court and of all the proceedings below in the Court of Appeal and the Industrial Court.

[127] This raises three questions. First, are the appellants entitled to an order that the second respondent pay their costs of the trial in the Industrial Court? Secondly, are the appellants entitled to an order that the second respondent pay the costs of the proceedings before the Court of Appeal and the Court of Criminal Appeal which led to the orders of 30 June 2006? Thirdly, are the appellants entitled to an order that the second respondent pay the appellants' costs of the proceedings leading to the Full Bench orders of 15 November 2006 and 8 May 2007?

[128] Costs of the trial. In relation to the first question, it is common ground that on 9 August 2004, when the trial judge found the allegations proved, s 253(1A) of the Criminal Procedure Act 1986 (NSW), which operated by virtue of s 168(2) of the IR Act, gave power to the trial judge to award costs to the appellants had he made an order dismissing the proceedings. ^[161] There being no application to amend the charges, the order he ought to have made was an order dismissing the proceedings. The orders he actually made were orders that the appellants pay fines totalling $121,000 and that they pay the prosecution's costs. Not only should those orders be quashed, but the second respondent should be ordered to pay the appellants' costs of the proceedings before the trial judge. It is true that, as the second respondent submitted, one point on which the appellants have succeeded in establishing error arose from the fact that the appellants consented to the prosecution calling Mr Kirk as its own witness. The second respondent also submitted that the point was not relied on by the appellants in the court below. ^[162] Indeed, it was only relied on in this court after the bench drew it to the attention of counsel for the appellants. However, this does not debar the court from making the costs order which the appellants seek, because they succeeded on other points unaffected by this difficulty.

[129] The appellants applied to the Court of Appeal in the proceedings determined on 3 July 2008 for the costs order they now seek. The second respondent neither urged nor cited any authority for the proposition that even if the appellants had been successful in obtaining from the Court of Appeal an order of certiorari quashing the trial judge's orders, they would not have been entitled to an order that the second respondent pay the costs of those proceedings. It thus in substance consented to the costs order that was sought by the appellants.

[130] The second respondent did not submit that the more appropriate course is for this court to remit to the Industrial Court the question of what costs order should be made in relation to the trial. In proceedings which took a less oppressive course than these have done, that may be the correct approach. But since the proceedings have been so oppressive that, for reasons given above, they should be dismissed, it is desirable for this court to bring complete finality by dealing with the appellants' costs of them as well by ordering that the second respondent pay them.

[131] Costs of the Court of Appeal proceedings terminating on 30 June 2006. In relation to the second question, no argument was put to suggest that any distinction should be drawn between the costs of the proceedings before the Court of Appeal which led to its orders of 30 June 2006 and the costs of the Court of Criminal Appeal proceedings. They were heard with the application to the Court of Appeal in a single day, dealt with in the same judgment and dismissed by an order made on the same day. Those costs should be paid by the second respondent. The Court of Appeal followed its normal approach of "restraint" towards the Industrial Court -- an approach by which the Court of Appeal permits the Full Bench to determine jurisdictional questions before examining them for itself. There is no doubt that the course adopted by the Court of Appeal was encouraged by the second respondent. Before the Full Bench it admitted that "we did submit before the Court of Appeal that the [appellants] could still come back to this court and bring [their] appeal". In the Court of Appeal the view was expressed that it would not be futile to allow the Full Bench to consider an appeal despite the state of the authorities in the Industrial Court. ^[163] That expectation was dashed when the second respondent opposed the grant by the Full Bench of an extension of time and the Full Bench, before extending time only in relation to one ground of appeal, accepted the submissions of the second respondent in the following words: ^[164]

Whilst it may be accepted that it was open to the [appellants] in February 2005 to choose to pursue their relief through the Court of Appeal rather than via an appeal to the Full Bench ... , the [appellants] made a calculated, informed choice in that respect and having failed in their endeavour to achieve relief in the Court of Appeal it is difficult to see why they should be provided with an opportunity to re-run the whole of their argument in another place.

Whether or not the appellants can be said to have "run the whole of their argument" in the Court of Appeal, they did not have the benefit of a considered decision by the Court of Appeal on the merits of the arguments they ran, because the Court of Appeal took the view that it was the Full Bench which should, at least in the first instance, consider the merits of the argument. The effect of the Full Bench's substantial acceptance of the second respondent's submissions was to preclude that court from considering the merits of the appellants' arguments apart from one. The second respondent also advocated that the Court of Appeal make the orders adverse to the appellants which it made on 3 July 2008. When tactical decisions by the second respondent of that kind enjoy several successes but eventually fail, as they did in this court, it is just that the second respondent should pay the appellants' costs of the entire series of proceedings. The fact that the appellants have never applied for special leave to appeal against the orders made is not an obstacle to ordering that the second respondent pay the appellants' costs of the proceedings before the Court of Appeal and the Court of Criminal Appeal determined on 30 June 2006. The reasoning of the majority indicates that the orders made by the trial judge rest on several injustices. The various pieces of litigation which the appellants have instituted since the trial judge fined them have been directed to overcoming those injustices. The pieces of litigation amount to attempts to exhaust all remedies legitimately available to the appellants. Among the consequences of those injustices have been several adverse costs orders. Now that the reasoning of the majority has revealed those injustices, the appellants ought to be rendered free of the detriments flowing from them in the form of costs orders suffered in the course of attempts to remedy the injustices.

[132] Costs of the Full Bench hearings. The third question should be answered in the affirmative. The costs of the hearings which led to the orders made by the Full Bench on 15 November 2006 and 8 May 2007 were only incurred because of the course which the Court of Appeal took on 30 June 2006. The course taken by the Court of Appeal on that date was a course which the prosecution urged on the Court of Appeal, and it was an outcome which the prosecution defended and attempted to rely on at all later stages. For similar reasons to those stated in relation to the second question, it is not an obstacle to ordering that the second respondent pay the appellants' costs of the proceedings before the Full Bench that, though the appellants have filed special leave applications in relation to them, those applications have not been granted. The appellants, in their application disposed of by the Court of Appeal on 3 July 2008, sought an order that the second respondent pay their costs before the Full Bench. The second respondent did not argue that, and cited no authority to the effect that, if the appellants had been otherwise successful in obtaining the order of certiorari sought in relation to the Full Bench decisions, the appellants would not be entitled to costs before the Full Bench.

[133] In the circumstances the costs order which the appellants seek in this court is a just one.

[134] Costs of the two special leave applications. The outstanding special leave applications, too, were only made necessary by the decision of the Court of Appeal of 30 June 2006, and by the conduct of the second respondent in seeking it. Although those two applications must be dismissed because it is unnecessary to consider them, the second respondent should pay the appellants' costs of each of them.