Crucial High Court decision on OHS appeal

Tuesday, 18 November, 2008

The High Court, sitting in Adelaide, has effectively allowed two high-profile prosecutions to proceed, by refusing leave to appeal in a matter concerning a key element of workplace safety prosecutions in South Australia.

After hearing submissions, Chief Justice Robert French and Justice Kenneth Hayne refused to grant special leave to appeal to Santos Limited and Diemould Tooling Services Pty Ltd.

Both parties had earlier lost appeals in the South Australian Industrial Relations Court and the Supreme Court. The High Court decision closed their last avenue for appeal. Each has been charged with breaches of the Occupational Health, Safety and Welfare Act 1986 and is yet to plead. However, they appealed jointly on a legal technicality, based on the way in which the prosecution had drafted the charges in the complaints filed against them.

The High Court decision means that the charges pending against both parties can now proceed before an Industrial Magistrate.

Diemould faces one charge of breaching section 19(1) of the Occupational Health, Safety and Welfare Act 1986 over the death of an 18-year-old apprentice in June 2004, who was fatally injured when caught in the spinning shaft of a horizontal borer at the company’s premises.

Santos faces eight counts of breaching section 19(1) and five counts of breaching section 22(2) of the Act following the Moomba gas facility incident in January 2004. Santos also faces a charge under the Dangerous Substances Act 1979 as a result of this incident.

SafeWork SA executive director Michele Patterson said the decision confirms a significant element about the system for prosecuting breaches of workplace safety laws: “This lengthy appeal process had caused considerable doubt and delay in the industrial court system.

“SafeWork SA is pleased that the highest legal authority in Australia chose not to interfere with the decision made by the SA Supreme Court. We look forward to resolving these and a number of other matters before the court more promptly as a result of today’s important decision.”