Area Concrete Pumping Pty Limited & Anor v Inspector Barry Childs & Anor; Serena & Anor v Inspector Barry Childs & Anor

[2012] HCATrans 359

[2012] HCATrans 359

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S209 of 2012

B e t w e e n -

AREA CONCRETE PUMPING PTY LIMITED (ACN 093 209 824)

First Applicant

CHRISTOPHER ANTHONY WOODS

Second Applicant

and

INSPECTOR BARRY CHILDS

First Respondent

INDUSTRIAL COURT OF
NEW SOUTH WALES

Second Respondent

Office of the Registry
  Sydney  No S210 of 2012

B e t w e e n -

PAUL BORTOLO SERENA

First Applicant

WALTER JOHN ANZOLIN

Second Applicant

and

INSPECTOR BARRY CHILDS

First Respondent

INDUSTRIAL COURT OF
NEW SOUTH WALES

Second Respondent

Applications for special leave to appeal

FRENCH CJ
GAGELER J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 DECEMBER 2012, AT 11.04 AM

Copyright in the High Court of Australia

____________________

MR J.K. KIRK, SC:   May it please the Court, I appear for the applicants in both matters.  (instructed by John F Morrissey & Co Lawyers)

MR J.V. AGIUS, SC:   May it please the Court, I appear with my learned friend, MR M.P. CAHILL, for the first respondent in both matters.  (instructed by Workcover Authority)

FRENCH CJ:   Thank you and I note that submitting appearances have been filed by the second respondent in each matter.  Yes, Mr Kirk.

MR KIRK:   May it please the Court.  Your Honours, this case concerns the prosecution under the Occupational Health and Safety Act 2000 (NSW) in the Industrial Court of New South Wales. To give your Honours a very brief taste of the facts, it relates to the collapse of some scaffolding and framework at a construction site some 10 years ago at Lake Cargelligo in this State. My four clients are sought to be prosecuted under sections 81 and/or 82 of the 2000 Act ‑ ‑ ‑

FRENCH CJ:   Now as I understand it, just to as it were cut to the chase, they pleaded guilty and that was before Kirk, and then post Kirk the prosecutor was seeking further particularisation and your clients were, as it were, challenging the jurisdiction on the basis that the charges to which they pleaded were, in effect, nullities.

MR KIRK:   Nullities, yes, that is right.  Furthermore, although this prosecution is under the 2000 Act, whereas Kirk concerned the 1983 Act of the same name, there is no dispute between the parties, I do not think. The provisions, although differently numbered, are materially identical.  Three issues arise.  First, were the particulars provided for the charge adequate to identify the charge?  Second, if not ‑ ‑ ‑

FRENCH CJ:   Now, in that respect you have a finding against you in respect to particular g), did you not?

MR KIRK:   Correct, we have a finding against us ‑ ‑ ‑

FRENCH CJ:   That was good enough to save everything?

MR KIRK:   That is right.  We have a finding against us in the Court of Appeal, although Justice Haylen in the Industrial Court thought that everything had a Kirk problem, but could be otherwise solved.  That leads to the second issue, which is whether or not it goes to the Court’s jurisdiction.  In other words, if there is a Kirk problem does it mean that the charges are nullities, or are they capable of being cured, especially in light of the Jervis’ Act provisions.  That leads in turn to the third issue that if the applicable Jervis’ Act provisions by their terms speak to that issue, and we say they do not, do they do so validly.

Now, of those three issues the first one is not a special leave question, it is just what I have to get through to get to the second and third questions.  But each of the second and third questions are, in our respectful submission, matters appropriate for determination by the Court. 

GAGELER J:   How do you get through the first one?

MR KIRK:   Can I turn straight to that?  Can I take your Honours to the statutory provisions to set out the foundation for where the argument must begin?  Can I take your Honours to page 78 of the application book?  This is within his Honour the Chief Justice’s judgment where his Honour conveniently sets out the provisions, and this is by way of background before I come to deal with your Honour Justice Gageler’s question.  On page 78 your Honours will find section 246.  This is of the Criminal Procedure Act, which was relevantly applicable.

FRENCH CJ:   An order was made under that section?

MR KIRK:   Correct, and your Honours would see in 246(1)(a) that it enables an order to be made and we would emphasise the words in (a):

in the order to answer to the offence charged in the order –

So that is the statutory foundation of the Kirk argument, namely that there needs to be in the order an identification of the offence charged. It is also relevant to note if your Honours look at page 79, there is an extract from then applicable rule 217B(1) of the IRC rules. Then in subsection (2)(e) it says:

The application must state:

. . . 

(e)      the nature of the offence that is alleged.

So that is the statutory foundation.  Can I then turn again by way of context ‑ ‑ ‑

GAGELER J:   Are the other paragraphs of subsection (2) jurisdictional?

MR KIRK:   It is not necessary for me to deal with that, your Honour.  One could have an interesting argument about each one no doubt, but as to the nature of the offence, yes.  To make good that proposition and to distinguish that from issues such as name and address and still by way of context can I take your Honours to Kirk to remind your Honours how this sort of issue was approached in that case.  Kirk is in – I hope your Honours have a bundle of authorities from us and it is in tab 6 of our bundle of authorities. It is, of course, 239 CLR 531.

Can I take your Honours first to – I am sorry, your Honours – if I could take your Honours first to paragraph 34, which is on page 561, relevantly at the top of the page.  If I just could ask your Honours to cast your eyes over paragraph 34 as a reminder of what Kirk required.  So we would draw from that that to be an identification of the offence charged ‑ ‑ ‑

FRENCH CJ:   It is not the offence, it is the nature of the offence.  Is that different?

MR KIRK:   Not really, I would suggest, your Honour, because first that rule speaks about the nature of the offence.  Secondly, it is a matter of actually identifying what the gravamen of the charge is and as it is said in the fourth line:

It is that fact, the act or omission of the employer, which constitutes the offence.

Can I also briefly remind your Honours if you go back to page 556 of what the particulars were in Kirk at paragraph 22, and without getting bogged in detail and this is for the Kirk company offence, your Honours will see that there were five particulars given, in relation to a charge under an equivalent offence. Generic statutory language used of “safe and without risks”, albeit with some reference to particular things; the quad bike, the Polaris ATV, talking about:

ii.        provide such information, instruction . . . as may be necessary –

Three, talking about “adequate information”; four, talking about “appropriate training” and five, talking about adequately identifying, assessing and risk.  So it is not as though there was simply a recitation of the statutory formula.  There was some detail there.  The point is it was substantially question‑begging detail.  It did not identify with any specificity what risks there were and what acts or omissions were required to respond to those risks.  Now, can I come to the particulars in this case, which your Honours will find conveniently starting at page 79 of the application book?

FRENCH CJ:   What do you say to the proposition that Kirk was about a trial and this is about a plea of guilty?

MR KIRK:   As to the plea of guilty, there are two points implicit in what your Honour has raised.  One is the plea of guilty.  The plea of guilty does not solve a jurisdictional problem.  If there is a jurisdictional problem my clients cannot have given the court jurisdiction by pleading guilty.  The second point, the major one with respect raised by what your Honour says is there is a difference between Kirk because Kirk was at the end following convictions of a trial; here we are at the beginning.  But that is really my second topic and I come to deal with that.  As for the particulars here, and turning straight to g), which your Honours will find at page 80 between lines 20 and 30, I will let your Honours remind yourselves of what is said there.

Now, his Honour the Chief Justice and the other two members of the court were of similar view, dealt with this at page 99 through to 101, and could I draw to your Honours’ attention page 101, paragraph 67.  So there his Honour is raising a point about severance and back on page 99, paragraph 62, first sentence his Honour indicates:

Particular g) charges an omission –

So his Honour is in effect saying there is some detail there, it “charges an omission” and then the last six lines –

Particular g) cites the specific act of sighting a copy of a certificate prepared by a formwork engineer and refers to the specific regulations and standards governing formwork for concrete.

But if I could go back to what the particular g) was on page 80, we would direct the following criticisms at the particular and, with respect, the court’s analysis of it.  Your Honours will see in g) that the one specific thing required in all of these seven particulars is just in the last half of particular g):

including obtaining or sighting a copy of a certificate prepared by a formwork engineer –

We accept there is a degree of specificity there, but it is an inclusive example.  It is a species within a genus and what is charged in particular g) is a genus, namely “failed to provide Mr Abel” – all the particulars were relevantly the same, I note:

with any proper training and/or instruction with respect to the requirements –

unspecified –

that needed to be met before he could commence pouring concrete, including –

So we have the same sort of question‑begging language of any or any proper training or instruction, unspecified requirements, save for one.  Now, the effect of what the Court of Appeal did in saying that that is enough and raising an issue of severance, is that implicit in what the court said is that six and a half out of seven particulars might be severed, leaving this tail at the end.  That tail then wags the dog of the proceedings to enable it to be said this was sufficient to open the door.  To then have a terribly mixed metaphor, once that door is open a crack it is said to be enough to say right, well, the door is open a crack, we can continue on with these proceedings, including potentially relying on the Jervis’ Act provisions to remedy the other problems.

GAGELER J:   So the essential problem that you identify is the word “including” instead of the word “by”?

MR KIRK:   That is one problem.  The other problem is that one has to look at this.  This is “a” charge and one has to the look at the charge as a whole.  The charge, in effect, raises broad generic questions about every aspect of how my clients manage that work site.  About the supervision, about what was done there and so forth, and this is one very specific little thing.  So it is not just about the word “by”.  It is that you have got these seven very generic allegations, and this arose in a context too where the prosecutor, post Kirk, sought to apply to provide further and better particulars.  In other words, to put meat on the skeleton that is set out in the preceding six and a half particulars.

Now, in our respectful submission, we have got half of seven which is inclusive and illustrative and to say that that is enough to found jurisdiction and now the meat can be put back on the bones for the other seven is to undermine the Kirk requirement.  The Kirk requirement goes to a deeper principle, not just of meeting statutory terms, but to articulate what the case is that a defendant has to meet.  This Court emphasised in Kirk that part of what is relevant is that one has to know whether one can rely on the defence, the defence being whether it was reasonably practicable to comply with the provision.  Well, how could my clients make an informed choice as to whether to rely on the defence when six and a half out of seven is generic, broad and all‑encompassing and full of potential to include any number of sins, which we cannot deal with.  So in terms of the ‑ ‑ ‑

FRENCH CJ:   How would things differ – not your argument – but how would things differ if they had not pleaded guilty?  Would you say that the application was a fatal and incurably flawed purported invocation of the court’s jurisdiction?

MR KIRK:   There are again a couple of issues there, your Honour.  First, the Industrial Court is designated as a superior court of record, so an issue arises about the status of any orders made.  But secondly, yes, it would have been a nullity and there would have been a plea to a wholly flawed charge.  But that is not such a surprising conclusion ‑ ‑ ‑

FRENCH CJ:   That is to say, if they had pleaded not guilty and particulars were later supplied, that would not cure the original defect?

MR KIRK:   Yes, that goes to my argument, and it is always subject, of course, to an underlying premise about limitation periods.  Here there is a limitation period and this is outside of it.  That brings me to what this Court said in John L.  If I could take your Honours to that and that is at tab 5 of our bundle.  That was, in some ways, a similar case, in that this was a prosecution under a consumer protection statute.  It was dealt with at a summary judgment level.  There had been no trial.  If I could take your Honours to page 519 within 163 CLR, and this is in the majority judgment of Chief Justice Mason and Justices Deane and Dawson.  On page 519 there is a reference to what underlies the requirement for provision of information.  Your Honours will see at about point 5 it says:

The rationale of that requirement has, in more recent times, commonly been seen as lying both in the necessity of informing the court of the identity of the offence . . . and in providing the accused with the substance of the charge which he is called upon to meet –

I know that is consistent with what I put to your Honours a minute ago, reference to overcoming technical objection.  Can then I note the last six lines:

One can point to statements of authority which lend support for the view that that legislation did not go so far as to abrogate the requirement that a valid information must at least identify the essential factual ingredients of the actual offence . . . It is, however, unnecessary to pursue that particular question here since, putting to one side s. 6 –

which I will explain in a second – it is not suggested there was otherwise error.  Now, that question is the very question we seek to raise here.  Their Honours have raised it, noted there is authority suggesting that it may be necessary for a valid information.  We say it is and it is not capable of being cured.  Over the page at page 521, their Honours say at about point 6, the line beginning “McTiernan J”:

In the result, the information was defective and insufficient to found proceedings . . . in respect of the alleged offence unless its failure to identify the “material particular” . . . was cured or overcome by some applicable statutory provision.

Their Honours went on to hold that the relevant Jervis’ Act provision there did not apply for reasons of statutory construction, and thus their Honours upheld the strikeout.  Necessarily implicit in that is that this type of failure goes to jurisdiction.  There was a similar limitation period there.  I note that Justice Brennan took the view that the Jervis’ Act provision did apply or was capable of applying and did solve the problem.  So I recognise that Justice Brennan is one of the hurdles in my path.

But in answer to that I simply refer your Honours back to what the majority raised as a question at the bottom of page 519.  Can I then take your Honours back to Kirk and show your Honours what was said or remind your Honours what was said about this in Kirk.  At page 559 of Kirk in paragraph 30 it says in the first line:

No application was made to the Court of Appeal for an order in the nature of certiorari quashing the orders made . . . that required Mr Kirk . . . to appear to answer the offences charged.

Then about halfway through the paragraph it says –

Because no application was made to quash the orders requiring appearance to answer the charges, it is neither necessary nor appropriate to examine whether those orders were made upon an application made “in accordance with the rules”, or to consider whether or how s 6 of the [another Jervis’Act provision] might affect the availability of an order in the nature of certiorari.

Once again this Court thus has flagged a question and it is that very question that we seek to raise.  It is a question which is an important one and which is one of national importance.  Now, put against us is that there is a line of New South Wales authority, which says in effect all this can be cured it is not a nullity, and we recognise there is a line of New South Wales authority.  But first that line of authority involves looking through the entrails of John L and an earlier case, Johnson v Miller, where – it is a bit unclear, with great respect – but there is some support for my argument to be found there, and trying to figure out how that fits within a post Kirk environment.

What has happened at this Court’s level is that the question has been noted, expressly in John L and fairly implicitly in Kirk.  So the fact that it is settled at New South Wales level does not mean it is settled at this level, with respect.  As to the constitutional issue, insofar as it is said that the Jervis’ Act provisions solve things, and for the reasons I put we say they do not and that there is a good argument about that, if they do could I just take your Honours to the Jervis’ Act provisions and they, your Honours will find, the most relevant one – sorry, your Honours. 

GAGELER J:   Page 75?

MR KIRK:   Yes, thank you, and then over to page 76.  This is within the Criminal Procedure Act subsection (2):

No objection may be taken, or allowed, to any indictment by which criminal proceedings . . . summarily are commenced . . . on the grounds of:

(a)      any alleged defect in it in substance or in form –

They are the relevant words.  Now, that speaks to all courts in relation to any indictment.  To speak in that way cannot be valid, because it speaks to the Supreme Court in relation to jurisdictional error.  Furthermore, it is well accepted that that provision has to be read down somewhat.  For example, it is accepted that you cannot, through use of that provision, amend the charge so as to in substance create a new charge.  That is referred to by the Court of Appeal in GPI, which is one of the authorities in my friend’s bundle.

There must be limits.  In light of Kirk, there must be a constitutional limit and we say that means it has to be read down so as not to apply with respect to jurisdiction error.  My very argument is that this was jurisdictional error, that the original orders making the charges were nullities.  So even if this applied to cure by its terms, we say that would not be a valid application because it would be brought in to cure jurisdictional error.  Now I accept, your Honours, one might seek to read it as a kind of futurist clause of some implication that it is a no invalidity clause, but that is not the terms of it. 

It is much more directly to saying no defect in substance or form shall lead to invalidity of an indictment.  For those reasons, your Honours, we suggest as to the three issues, first particular g) was insufficient.  Secondly, there is a very live and real question, an important question as to nullity and third similarly as to the constitutional aspect.

FRENCH CJ:   Thank you, Mr Kirk.  The Court will adjourn briefly to consider what course it should take.

AT 11.26 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.28 AM:

FRENCH CJ:   We will not need to trouble you, Mr Agius.

The applicants in these two applications seek special leave to appeal from decisions of the Court of Appeal of New South Wales refusing their applications for orders in the nature of certiorari and prohibition against the Industrial Court of New South Wales and a prosecutor who laid charges against them in that Court for breaches of the Occupational Health and Safety Act 2000 (NSW). The applicants pleaded guilty to the charges but subsequently, following the decision of this Court in Kirk v Industrial Relations Court of New South Wales (2010) 239 CLR 531, challenged the sufficiency, and thereby the validity, of the charges as particularised, and the jurisdiction of the Industrial Relations Court to determine those charges.

The Court of Appeal, in refusing the applicants’ summonses for prerogative orders, did so on the basis that the charges, as particularised, were valid and that any deficiencies could be cured by amendment. 

The primary conclusion does not raise any general question of principle which warrants the grant of special leave.  Special leave will be refused with costs.

AT 11.29 AM THE MATTERS WERE CONCLUDED