Cummins v Demolition Environmental Civil Contractors Pty Ltd
[2017] ACTIC 2
•1 June 2017
INDUSTRIAL COURT OF THE AUSTRALIAN CAPITAL TERRITORY
| Case Title: | CUMMINS v DEMOLITION ENVIRONMENTAL CIVIL CONTRACTORS PTY LTD |
| Citation: | [2017] ACTIC 2 |
| DecisionDate: | 1 June 2017 |
| Before: | Industrial Magistrate Walker |
| Decision: | See [19] |
| Category: | Decision |
Catchwords: | INDUSTRIAL LAW - particulars – description of an offence - defective information – defective charge – amendment out of time |
Legislation Cited: | Magistrates Court Act 1930 (ACT) |
Cases Cited: | AG NSW v Tho Services Limited [2016] NSWCCA 221 |
| Parties: | B Cummins (Informant) |
| Representation: | Informant Defendant |
| File Numbers: | CC 41492 of 2016 CC 41493 of 2016 |
INDUSTRIAL MAGISTRATE WALKER
This matter is a prosecution pursuant to the Work Health and Safety Act 2011 (ACT) (the Act).
The charges before the court
On or about 4 December 2014, Demolition Environmental Civil Contractors Pty Ltd (DECC) committed the following offences in the Australian Capital Territory:
CC16/41493 - Demolition Environmental Civil Contractors Pty Ltd contravened section 32 of the Work Health and Safety Act 2011; they had a health and safety duty (category 2), they failed to comply with that duty; that failure exposed an individual to risk of death or serious injury or illness.
CC16/41492 - Demolition Environmental Civil Contractors Pty Ltd contravened section 33 of the Work Health and Safety Act 2011; they had a health and safety duty (category 3) and they failed to comply with that duty.
Location of both offences: Canberra House, 45 West Row and 40 Marcus Clarke Street, Civic Australian Capital Territory (ACT).
The charges as laid do not address the capacity in which the defendant is alleged to owe a duty nor the duty or duties alleged to have been breached.
The Informations and Summons were sworn before the Deputy Registrar on 2 December 2017. An Affidavit of Service of the Informations and Summons was lodged with the court, together with the Particulars, on 7 February 2017, which is outside of the two year limitation period provided by s 232 of the Work Health and Safety Act 2011.
The Particulars delineate the manner in which it is alleged DECC contravened its duty, and claim that an individual, to whom the duty was owed, sustained injury because of DECC’s alleged contravention.
On the 10 March 2017, being the second mention date, the prosecution amend the charge and the defendant agreed to the proposed amendment.
The amendment relates to charge CC16/41492 only and the proposed amendeded charge reads as follows:
On 4 December 2014 at Canberra House, 45 West Row and 40 Marcus Clarke Street, Canberra City in the Australian Capital Territory, being a site or workplace, Demolition Environmental Civil Contractors Pty Ltd, being a person conducting a business or undertaking, contravened section 32 of the Work Health and Safety Act 2011 in that: they had a health and safety duty (category 2) by virtue of sections 19(1), (3)(a) and (c); they failed to comply with that duty; and that failure exposed an individual, namely David Keena, to risk of death, serious injury or illness.
The proposed amendment, if allowed, addresses the defect in the charge.
However, the preliminary issue now before the court is whether the charge can be corrected by an amendment filed after the expiry of the limitation period?
On this issue, the prosecution, by way of written submissions, seeks leave from the court to amend the charges after the expiry of the limitation period under section 28 of the Magistrates Court Act 1930 (ACT).
Section 28
Power of the court to amend information
(1)If at the hearing of any information or summons any objection is taken to an alleged defect in it in substance or form or if objection is taken to any variance between the information or summons and the evidence adduced at the hearing of it, the court may make any amendment in the information or summons that appears to it to be desirable or to be necessary to enable the real question in dispute to be decided.
(2) The court must not make an amendment under subsection (1) if it considers that the amendment cannot be made without injustice to the defendant.
The prosecution submits that it is within the power of the court to grant leave for the charge to be amended in circumstances where the court found the charge defective, or lacking particularity, and because no new offence is being created by the amendment sought, this would not create injustice to the defendant.
The prosecution relies on the following authorities in making its submissions DPP v Kypri [2011] VSCA 257, [35], [37] and [44] and Willing v Hollobone (No 2) (1975) SASR 118 at 121.
The prosecution submits that the amendment to the defective charge reflects the Particulars served on the defendant together with the Informations and Summons (served 6 Feb 2017), and therefore the defendant has known the nature and terms of the charge since that time. It cannot, therefore, be said that an injustice would be done to the defendant by granting leave to amend the charge as proposed.
In its submissions, the defendant objects to the amended charge because it introduces “breaches of duties owed under sections 19(3)(a) and (c) of the Work Health and Safety Act 2011 (ACT)” as “Additional Duties”.
The defendant submits that, where in the “opening chapeau”, the original particulars refer to a breach of section 19(1) only, the amended charge now alleges a total of three duties were breached. Therefore, the prosecution “seeks to introduce two new and different charges after the expiration of the relevant limitation period”.
The defendant submits that “The proposed amended charge represents an improper avoidance of the limitation period in relation to the Additional Duties which causes a significant injustice to DECC”. Accordingly, pursuant to s 28 of the Magistrates Court Act 1930 (ACT), the Court must not grant leave to the prosecution to amend the charge.
In reply to the defendant’s claim that it is introducing two additional charges, the prosecution submits that sections 19(3)(a) and (c) are pleaded in paragraphs 1.1(g) and (c) of the Particulars served on the defendant on 6 February 2017.
It is, therefore, the prosecution’s ultimate submission that it has “not introduced two new and different duties not previously known to the defendant thereby improperly avoiding the limitation period; causing injustice to the defendant”.
Determination
The charges, brought two days prior to the expiry of the limitation period, are defective in that they fail to identify the duty alleged to have been breached and the capacity in which the Defendant is alleged to have breached it, which are essential elements of the charges.[1] The defects cannot be cured by extraneous material served on the Defendant outside the limitation period as the Defendant was not on noticed as to the true nature of the charges within the limitation period.[2]
[1] see AG NSW v Tho Services Limited [2016] NSWCCA 221; S Kidman & Co Ltd v Dr John Lowndes CM & Anor [2016] NTCA 5; Safe Work NSW v Wollongong Glass P/L [2016] NSWDC 58; Safe Work NSW v Tamex Transport Services P/L [2016] NSWDC 295.
[2] DPP v Kypri [2011] VSCA 257.
Orders:
1. Dismiss the application to amend charge CC16/41492.
2. Dismiss charges CC16/41492 and CC16/41493.
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