Case: Director of Public Prosecutions v Esso Australia Pty Ltd [2001] VSC 103
Outcome: cited
Telstra also referred to the decision of Cummins J in Director of Public Prosecutions v Esso Australia Pty Ltd [2001] VSC 103 in support of the contention that Mr Smith was obliged to state with particularity the reasonably practicable steps that should have been undertaken by Telstra. 72 The purpose of the requirement for reasons in this case, Telstra argued, was to enable the person the subject of an adverse finding to be informed of the basis for the reaching of the conclusion that s 17 of the Act had been breached and to enable a Court on review to determine if proper principle has been applied in reaching such a conclusion. Telstra then contended that this obligation necessarily required Mr Smith to set out the relevant evidence, material findings of fact and conclusions, and his reasons for making the relevant findings of fact and conclusions. 73 Telstra contended that in this case the investigator asserted that Telstra breached s 17 of the Act but gave no reasons to permit an understanding as to how the conclusion was reached. In particular, the investigator asserted the existence of each of the essential elements required to be established for a breach of s 17 but gave no reasons to justify such findings. There were no reasons given for the findings that the incident occurred at a workplace , under the control of Telstra, that the incident occurred as a result of Telstra's undertaking and that there were reasonably practicable measures that were available to Telstra. There was, it was said, on the face of the report, an obvious and fundamental failure to comply with s 53(2) of the Act. 74 It was submitted that the legislature chose to make the provision of reasons for any conclusions in a report a mandatory requirement for a valid report. The type of response required by s 53(4) of the Act, particularly when read in light of the objects of the Act as specified in s 3(b) of the Act regarding encouraging and assisting persons to comply with their obligations under the Act, required the provision of proper reasons. 75 Telstra contended that the finding that Telstra breached s 17 was a serious one. If the legislature required the investigator to make such a finding, it would be hardly surprising that the legislature would require the investigator to record the evidence relied on, and the reasons giving rise to a finding that each element of s 17 was breached and was established by the evidence. 76 Moreover, it was contended by Telstra that the requirement that the investigator expose his reasons for such a serious finding and the investigator's failure to do so supports the contention of Telstra that not only did the investigator fail to comply with s 53(2), he erred in law by failing to address and make findings about matters essential to the consideration of whether a breach of s 17 had occurred. 77 I start from the proposition that the obligation to give reasons is to be assessed in light of the statutory context in which the obligation appears. Section 53(2)(a) of the Act provides that the report prepared by the investigator must include the investigator's conclusions from conducting the investigation and the reasons for those conclusions. I accept that, by reason of the application of s 25D of the Acts Interpretation Act 1901 (Cth), s 53(2)(a) is to be construed as requiring an investigator to set out his or her material findings of facts and to refer to the evidence on which those findings are based. 81 As I have alluded to previously, the investigator's role must be looked at in the overall context of the regulation of occupational health and safety issues as provided for in the Act. An investigator's report is not to be seen as a final and binding determination of whether an employer has breached, or is in possible breach of, s 17 of the Act. The investigator does not need to go through the exercise indicated by Cummins J in Esso [2001] VSC 103. Esso involved a trial process leading to a potential fine, which obviously required particularisation of each element of the alleged offence said to have been committed by the defendant. However, this does not mean that the report did not need to include 'conclusions' which could properly inform the employer of the investigator's view, but rather, that the obligation to include the conclusions is to be viewed in light of the objective of the giving of the report. The report is certainly not to be equated with the particulars of a criminal offence.