Regulatory and environment insight vicarious liability

Issued: 1 October 2021

'Clear the site, but...': vicarious liability for actions of an independent contractor

Chia v Ku-ring-gai Council [2021] NSWCCA 189

Key points

• An accused may be vicariously liable for the act of an independent contractor where he or she has directly authorised the independent contractor to do that act.
• The nature of the direction actually given by the accused, and any qualification to that instruction, is critical to the issue of whether liability arises.

Background

Mr Chia, a landowner in Ku-ring-gai, was charged by summons with causing injury to 74 protected trees the subject of the Ku-ring-gai Council Tree Preservation Order, contrary to s. 125(1) of the Environmental Planning and Assessment Act 1979. The prosecution case was that Mr Chia was vicariously liable for the removal of the trees by independent contractors 'because he directed them to carry out the works'. 

At the trial, the only element of the offence in dispute was whether Mr Chia directed the contractors to carry out the tree clearing the subject of the charge (at [71]). Mr Chia asserted that he directed the contractors to comply with all relevant regulations and legislation, including the '10/50 Vegetation Clearing Code of Practice for NSW', and that the contractors exceeded those instructions (the '10/50 Code defence') (at [38]).

The trial judge was satisfied beyond reasonable doubt that Mr Chia directed the contractors to do the act which constituted the offence, and convicted Mr Chia (at [27]).

Appeal against conviction

The respondent submitted that it was not necessary to a finding that Mr Chia had directed the tree removal that the trial judge also make a finding as to the terms in which the direction was given (at [53]).

The CCA found:

• It was not open to the trial judge to conclude that Mr Chia directed the contractors to carry out the tree clearing, thereby committing the offence charged, without disposing of Mr Chia’s contention that his instructions were qualified by the requirement that the 10/50 Code should be followed (at [71]).
• The trial judge failed to address Mr Chia’s 10/50 Code defence (at [72]).

'[I]f Mr Chia gave a particular instruction to comply with the 10/50 Code, it would necessarily operate as a constraint or limitation upon the width of his instructions in general, if not something that fundamentally informed or qualified the terms of the instruction that was given. An instruction or direction to comply with the 10/50 Code, if given, is in effect an instruction not to fell trees that are not within the 10/50 zone. Mr Chia could not be liable, vicariously or otherwise, if he did not instruct or direct the offending work to be performed' (at [74]).

Implications for prosecutors

Where the prosecutor relies upon 'direct authorisation' to establish vicarious liability for a criminal offence, it is essential for the tribunal of fact to make a finding as to the terms of the direction given by the accused to the independent contractor, taking into consideration any qualification to that instruction.

Contacts

Jonathan Vasiliou, A/Director
jonathan.vasiliou@cso.nsw.gov.au
02 9474 9227

Jessica Wardle, Principal Solicitor
jessica.wardle@cso.nsw.gov.au
02 9474 9585

Katrina Frearson, Senior Solicitor
katrina.frearson@cso.nsw.gov.au
02 9474 9558

The CSO’s Regulatory & Environment practice group specialises in advising and representing agencies in relation to regulatory compliance and prosecutions, statutory interpretation advice in the environment and natural resources context, as well as criminal law, evidence and procedure.