Gelzinis v T & R (Murray Bridge) Pty Ltd
[2009] SASC 61
•6 March 2009
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
GELZINIS v T & R (MURRAY BRIDGE) PTY LTD
[2009] SASC 61
Judgment of The Full Court
(The Honourable Justice Gray, The Honourable Justice Sulan and The Honourable Justice David)
6 March 2009
INDUSTRIAL LAW - SOUTH AUSTRALIA - PROCEDURAL AND EVIDENTIARY MATTERS RELATING TO COURT AND COMMISSION - EXTENSION OF TIME
Appeal from decision of Full Industrial Court - complaint laid against respondent alleging it breached section 19 of the Occupational, Health, Safety and Welfare Act 1986 (SA) in that it failed to ensure, so far as reasonably practicable that its employee was safe to injury and risks to health - asserted by complainant that Director had by written instrument extended two year time limit for laying of complaint to 20 July 2007 - asserted by the appellant this was done relying on section 58(6a) of the Occupational, Health, Safety and Welfare Act 1986 (SA), which authorises an extension in certain circumstances - attached to complaint was document signed by Acting Director of Public Prosecutions purporting to extend time within section 58 (6a) of the Act - whether Acting Director’s written instrument valid and compliant with section 58 (6a) of the Act - whether complaint had been issued within time such that the jurisdiction of the Court had been correctly invoked.
Held: appeal dismissed - Director was obliged in written instrument to identify precondition or preconditions he considered gave rise to the relevant satisfaction - written instrument failed to identify precondition said to exist - burden of proof remains on complainant to establish that time was extended and properly understood.
Occupational Health, Safety and Welfare Act 1986 (SA) s 19, s 58, s 58(6a) and 58(6b); Director of Public Prosecutions Act 1991 (SA) s 5, referred to.
Project Blue Sky v ABA (1998) 194 CLR 355; Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292; Herron v McGregor (1986) 6 NSWLR 246; Brisbane South Regional Authority v Taylor (1996) 186 CLR 541; Karounos v Flavel (1984) 75 FLR 46; R v Lawrence [1982] AC 510; Thompson v The Queen (1988) 169 CLR 1; Pearson v Rizos [2008] SASC 98; K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4; R v Secretary of State for the Home Department; Ex parte Simms [2000] 2 AC 115; Electrolux Home Products Pty Ltd v The Australian Workers Union (2004) 221 CLR 309; Deputy Commissioner of Taxation v Clark (2003) 57 NSWLR 113; Oates v Williams (1998) 84 FCR 348, considered.
GELZINIS v T & R (MURRAY BRIDGE) PTY LTD
[2009] SASC 61Full Court Gray, Sulan and David JJ
GRAY J.
This is an appeal from a decision of the Full Industrial Court.[1]
[1] Permission was granted by Doyle CJ, White and Kelly JJ, 7 November 2008.
On 17 July 2007 a complaint was laid against the respondent, T & R (Murray Bridge) Pty Ltd, alleging that on 28 April 2004 at Murray Bridge, it breached section 19 of the Occupational Health, Safety and Welfare Act 1986 (SA) in that it failed to ensure so far as was reasonably practicable that its employee, James Feast, was, while at work, safe from injury and risks to health. Particulars of the alleged breach were set out on the face of the complaint.[2]
[2] The complaint was in the following terms:
1.On 28 April 2004 at Murray Bridge in the State of South Australia, the defendant, being an employer, failed to ensure so far as was reasonably practicable that its employee, namely JAMES FEAST, was, whilst at work, safe from injury and risks to health.
Contrary to section 19(1) of the Occupational Health Safety and Welfare Act 1986.
Particulars
1.1 At all times the defendant carried on the business of an abattoir.
1.2 At all material times James Feast (‘the employee’) was employed or engaged by the defendant as an abattoir worker.
1.3 The employee was exposed to a risk of injury, and was injured, when operating a netting machine used for loading nets onto a metal tube (‘the plant’).
1.4 The defendant failed to provide plant in a safe condition in that it failed to prevent access by the employee to nip and trap points on the plant while it was in operation.
1.5 The defendant failed to provide a safe system of work in that it failed to:
(a)adequately perform a hazard identification and risk assessment in relation to the plant; and
(b)ensure there was a safe operating procedure for the use of the plant.
It was asserted by the complainant that the Acting Director of Public Prosecutions had by written instrument dated 6 July 2007 extended to 20 July 2007 the two-year time limit for the laying of the complaint that would otherwise apply. It was said this was done in reliance upon section 58(6a) of the Occupational Health, Safety and Welfare Act 1986 (SA), which authorises an extension in certain circumstances.
Attached to the complaint was a document signed by the Acting Director of Public Prosecutions[3] purporting to extend time to bring the complaint pursuant to section 58(6a) of the Act.
[3] The acting DPP was appropriately authorised in accordance with section 5 of the Director of Public Prosecutions Act 1991 (SA).
EXTENSION OF TIME PURSUANT TO SECTION 58(6a) OF THE OCCUPATIONAL HEALTH, SAFETY AND WELFARE ACT 1986
I, Peter Robert Brebner QC, Acting Director of Public Prosecutions, being satisfied that a prosecution of an alleged breach of section 19 of the Occupational Health, Safety and Welfare Act 1986, could not reasonably be commenced within the relevant period as against:
T & R (Murray Bridge) Pty Ltd
hereby extend the time limit that would otherwise apply to that prosecution to a date being:
Friday 20th July 2007
Signed
P.R. Brebner QC 6th July 2007
Acting Director of Public Prosecutions Dated
Before proceeding to discuss issues arising on this appeal it is convenient to set out the relevant statutory provisions under consideration. Section 58 of the Occupational Health, Safety and Welfare Act 1986 (SA) relevantly provides:
(6)Subject to subsection (6a), proceedings for a summary offence against this Act must be commenced—
(a) in the case of an expiable offence—within the time limits prescribed for expiable offences by the Summary Procedure Act 1921;
(b) in any other case—within 2 years of the date on which the offence is alleged to have been committed.
(6a)The Director of Public Prosecutions may, by instrument in writing, extend a time limit that would otherwise apply under subsection (6) in a particular case if the Director of Public Prosecutions is satisfied that a prosecution could not reasonably be commenced within the relevant period due to a delay in the onset or manifestation of an injury or disease, a condition or defect of any kind, or any other relevant factor or circumstance.
(6b)An apparently genuine document purporting to be signed by the Director of Public Prosecutions and to be an extension under subsection (6) will be accepted in any legal proceedings, in the absence of proof to the contrary, as proof of an extension in a particular case.
When the complaint came before the Industrial Magistrate, T & R (Murray Bridge) Pty Ltd raised a preliminary objection to the validity of the complaint. It was said that the Acting Director of Public Prosecutions’ written instrument failed to comply with section 58(6a) of the Act. The Industrial Magistrate dismissed the application and confirmed the validity of the complaint.
T & R (Murray Bridge) Pty Ltd appealed from the decision of the Industrial Magistrate to a Judge of the Industrial Court, Judge Parsons, who upheld the appeal. The Judge concluded:[4]
A consideration of s 58(6a), as an extension provision, supports the conclusion that Parliament intended that, in fulfilling the assigned administrative function, the DPP is not exercising the usual unfettered prosecutorial responsibility of deciding whether to commence a prosecution but is exercising a discretion which cannot be exercised outside the parameters of subsection (6a). As the relevant satisfaction cannot be achieved without reference to the prescribed critera [sic] it is incumbent upon the DPP to provide a written instrument which declares the relevant satisfaction and states the appropriate prescribed criterion upon which that satisfaction is based. This is not a requirement for reasons but a requirement for a statement as a condition of the exercise of the discretion.
Such a construction is also consistent with a reading of the Act as a whole. This Act was passed for the beneficial purpose of protecting employees and others from the risk of injury. Such beneficial legislation should be interpreted liberally to achieve that end, however when a beneficial Act contains penal provisions, a balance is required to ensure that the beneficial purpose of the legislation operates within the conditions declared by Parliament and this includes giving meaningful effect to a limitation provision and any associated discretionary extension provision.
...
In Project Blue Sky v ABA [1998] HCA 29; (1998) 194 CLR 355[5] the High Court said whether an act done in breach of a provision is invalid and of no effect “depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects and the consequences for the parties of holding void every act done in breach of the condition”. As to this, the Court said that there is no decisive rule that can be applied.
The Court also discarded the earlier approach of identifying whether an act is mandatory or directory as a means of determining whether it is void or voidable and preferred to determine the issue of validity by asking “whether it was a purpose of the legislation that an act done in breach of the provision should be invalid” and reiterated that the question of purpose is determined by having regard to “the language of the relevant provision and the scope and object of the whole statute”.[6]
I rely on the reasons I have already given as to the purpose of the legislation, the importance of the limitation period and the scope and function of the discretion contained in the extension provision to support the conclusion that it is a purpose of the legislation that an act done in breach of the provision should be invalid.
[4] T & R Murray Bridge Pty Ltd v Gelzinis [2008] SAIRC 35 at [44] – [45].
[5] Project Blue Sky v ABA (1998) 194 CLR 355 at 389.
[6] Project Blue Sky v ABA (1998) 194 CLR 355 at 388-389.
The complainant then appealed to the Full Industrial Court which unanimously dismissed the appeal. However, the Court, in its joint judgment, considered that Judge Parsons was in error in her approach. The Court concluded:[7]
Those terms do not on their face impose an obligation upon the DPP to disclose within the written instrument the facts or circumstances that have been relied upon in reaching the satisfaction that the prosecution could not reasonably have be [sic] commenced within the relevant period. Whilst it is legally permissible to read words into a legislative provision it can only be done in exceptional circumstances when the court can be confident that Parliament has used or failed to use words inadvertently and is certain what words Parliament would have used to overcome the omission or misdrafting if its attention had been drawn to the defect.[8] In our view these exceptional circumstances do not exist because we cannot with confidence say that Parliament has inadvertently failed to use words that it must have intended to use. Or, to put it another way, it has not stipulated that the facts or circumstances that have been relied upon by the DPP in granting the extension of time and it cannot be assumed it did not do so inadvertently.
However, the Full Industrial Court reached the conclusion that the appeal should be dismissed on other grounds. In that respect the Court concluded:[9]
That conclusion does not, however, dispose of the appeal. A careful examination of the instrument that was relied upon by the complainant in this case reveals that it does not refer to a particular case. On its face, it purports to grant an extension of time until 20 July 2007 in respect of any prosecution under section 19 of the Act in respect of any case against T & R (Murray Bridge) Pty Ltd provided the complaint is lodged before 20 July 2007.
The extension of time that s 58(6a) permits can only be granted in a particular case. In our view the instrument must identify the particular case in respect of which the extension is granted. It has failed to do that.
The issue on appeal is whether the complaint had been issued within time such that the jurisdiction of the Court had been correctly invoked.
[7] Gelzinis v T & R (Murray Bridge) Pty Ltd [2008] SAIRC 62 at [38].
[8] See Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292, 302 (McHugh JA).
[9] Gelzinis v T & R (Murray Bridge) Pty Ltd [2008] SAIRC 62 at [41].
The complainant on the appeal to this Court contended that the Industrial Magistrate’s determination was correct, that the single Judge was in error in her reasoning and that the Full Court was in error in its alternative reasoning.
Ultimately the Court is concerned with the proper construction of the relevant provisions of section 58 of the Occupational Health, Safety and Welfare Act 1986 (SA). Also in question is the construction of the written instrument signed by the Acting Director of Public Prosecutions. However, before coming to discuss the questions of construction, it is relevant to make a number of preliminary observations.
Preliminary Observations
Time Limits
The rationale for the enacting of limitation periods in summary criminal cases and civil cases is that the limitation period represents the legislature’s judgment as to what the public interest requires after taking into account the relevant factors including the prejudice which delay may create.
McHugh J relevantly observed in Herron v McGregor:[10]
Since the passing of the Statute of Limitations 1625, the institution of most civil proceedings has been subject to time limitations. Even before that time many actions were subject to time limitations: see 4 Bacon's Abridgment, 5th ed at 461 et seq. And criminal proceedings heard summarily are also invariably subject to time limitations. In civil and summary criminal cases, therefore, it hardly seems possible for a court to say that an action brought within the limitation period is oppressive because mere delay in commencing the proceeding has prejudiced the defendant or accused person: cf Birkett v James (at 322). The limitation period represents the legislature's judgment as to what the public interest requires after taking into account the relevant factors including the prejudice which delay may create. In respect of criminal charges triable on indictment, limitation periods are rarely enacted.
McHugh J further noted in Brisbane South Regional Health Authority v Taylor:[11]
The enactment of time limitations has been driven by the general perception that “[w]here there is delay the whole quality of justice deteriorates”.
[10] Herron v McGregor (1986) 6 NSWLR 246 at 253.
[11] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 551 (McHugh J); R v Lawrence [1982] AC 510, 517 (Lord Hailsham of St Marylebone LC).
It may be said that the limitation period is the general rule and that an extension provision is the exception to it. When speaking of extension provisions generally, McHugh J added:
The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case.[12]
[12] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 553 (McHugh J).
Although the above observations were made in the context of the exercise of a judicial discretion to extend time, the underlying rationale has, it is suggested, equal applicability to the discretion created by section 58(6a). The discretion operates to override the applicable limitation period in a particular case where relevant circumstances have prevented the laying of a complaint within a specified time limit.
The entitlement of T & R (Murray Bridge) Pty Ltd
The alleged incident, the subject of the complaint, as earlier observed was said to have occurred on 28 April 2004. Sections 58(6a) and (6b) were introduced by amendment and took effect from 25 August 2005. As at that date T & R (Murray Bridge) Pty Ltd faced the prospect of a complaint being laid within the statutory time limit of two years. At that time it had not acquired a vested right. Authority indicates[13] that, in this circumstance, the introduction of subsection (6a) is properly characterised as within the rubric of procedure and hence having retrospective effect. Accordingly, the power of the Director to extend time was available in respect of the laying of a complaint against T & R (Murray Bridge) Pty Ltd in respect of the particular incident said to have occurred on 28 April 2004.
[13] Karounos v Flavel (1984) 75 FLR 46.
The Role of the Director
The Director of Public Prosecutions Act 1991 (SA) establishes the office of the Director of Public Prosecutions. By section 7(1)(h) the Director has the following power:
to carry out any other function assigned to the Director by any other Act or by regulation under this Act.
Section 5 of the Act addresses the position of Acting Director and provides:
(1)If the Director is temporarily absent, or the Director's position is temporarily vacant, the Attorney-General may assign a suitable person to act in the Director's position during the temporary absence or vacancy.
(2)A person is not eligible to act in the Director's position unless he or she is a legal practitioner of at least seven years standing.
(3)The terms on which a person is assigned to act in the Director's position will be as determined by the Attorney-General.
In the present case there was no challenge to Mr Brebner as Acting Director holding the power referred to in section 58(6a).
It is relevant and in my view important to point out that the powers of the Director also include the power to prosecute summary offences against the laws of the State. Accordingly, the Director and, in the present proceedings, the Acting Director, had the power to prosecute T & R (Murray Bridge) Pty Ltd with respect to the intended complaint. In a very real sense section 58(6a) reposed the power to extend time to one party to the litigation so as to affect the rights of another party. This circumstance in my view is of relevance to the proper construction of section 58(6a) and the obligations of the Director.
A further factual matter
During the course of this appeal information was placed before the Court by consent, providing some insight into the problem that led to the purported extension of time in the present case. Following the incident, a complaint was issued against a different corporate entity, T & R (Pastoral) Pty Ltd. The complaint was relevantly in identical terms to the complaint the subject of the present proceedings. It would appear that there had been a misnaming of the defendant and the extension of time was to address a time problem consequent on that issue. To be more particular, there is nothing in the information before this Court that would suggest that the prosecution could not reasonably be commenced within two years due to a delay in the onset or manifestation of an injury or disease, or a conditional defect of any kind.
This Court was also informed that at a time prior to the Acting Director exercising his power to extend time he had received submissions both from the intended complainant and the intended defendant as to whether he should extend time. The material put before this Court included a statement by counsel for the complainant to the Industrial Magistrate that no reasons as such had been prepared by the Acting Director.
Judicial Review Collateral Challenge
The challenge in the present case was a collateral challenge taken at the outset of the proceedings. It was made plain by counsel appearing for T & R (Murray Bridge) Pty Ltd that the challenge was of a substantive nature to the jurisdiction of the Court to hear and determine the complaint. The parties agreed that on such a collateral challenge the onus laid on the complainant to establish that the time for the laying of the complaint had been extended and that that was to be established on the balance of probabilities.[14]
[14] Thompson v The Queen (1988) 169 CLR 1 at [12]-[13]. See also Pearson v Rizos [2008] SASC 98 at [23].
It was accepted that an alternative approach that could have been taken was to seek judicial review in the Supreme Court of the Director’s decision to extend time. However, that course has not been followed. As a consequence the factual material before this Court is limited.
There was no dispute that the instrument in writing said to extend time was in the form of the document attached to the complaint earlier referred to in these reasons.
The Appeal
As earlier observed, limitations of time with respect to the issue of proceedings has a long history. There has been clear recognition of the injustices that may be caused by delay. However, as McHugh J observed in Taylor, it may be appropriate in particular contexts to allow for extensions of time. In the present case, there is no period specified during which the Director must exercise his powers. Decades could pass and the section would still empower the Director to extend time. As the power to extend time arises with respect to vested or substantive rights, equivalent to common law rights, it is clear that the courts will prefer where possible a conservative construction. As French CJ observed in K-Generation:[15]
There is also a well established and conservative principle of interpretation that statutes are construed, where constructional choices are open, so that they do not encroach upon fundamental rights and freedoms at common law. That is to say, there is a presumption against a parliamentary intention to infringe upon such rights and freedoms. That presumption has been described in the United Kingdom as an aspect of a "principle of legality" governing the relationship between parliament, the executive and the courts. It was explained by Lord Hoffmann in R v Secretary of State for the Home Department; Ex parte Simms[16]:
[T]he principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual.
Gleeson CJ described the presumption as "a working hypothesis, the existence of which is known both to Parliament and the courts, upon which statutory language will be interpreted". He added, "[t]he hypothesis is an aspect of the rule of law"[17].
[15] K-Generation Pty Ltd v Liquor Licensing Court [2009] HCA 4 at [47].
[16] R v Secretary of State for the Home Department; Ex parte Simms [2000] 2 AC 115, 131
[17] Electrolux Home Products Pty Ltd v The Australian Workers’ Union (2004) 221 CLR 309,329.
There is a further reason for a conservative construction with respect to the legislative provisions under consideration in this appeal. As earlier discussed, the Director of Public Prosecutions has the power to prosecute the intended complaint and also has been granted the power to extend time. Because of the potential for conflict that might arise from one party to litigation having the power to take away the vested right of another, it is my view that a conservative approach should be adopted.
The scope of the power to extend
It is to be observed that the power of the Director to extend time is in respect of a particular case if the Director is satisfied that a prosecution could not reasonably commence within the relevant period for a stipulated reason. The precondition to the exercise of the power is the satisfaction of the Director that the prosecution could not reasonably be commenced due to a delay in the onset or manifestation of injury or disease, a conditional defect of any kind or any other relevant factor or circumstance. Counsel for the complainant submitted that the phrase “any other relevant factor or circumstance” was so broad as to empower an extension of time to overcome, for example, negligence in an investigation, or a lack of resources available for investigation, or simply prosecutorial error. In my view this submission should be rejected.
Section 58(6a) and (6b) were introduced by amendment in 2005 into the Occupational Health, Safety and Welfare Act. In the course of the second reading speech the member representing the Minister observed:
Time Limitation to Institute a Prosecution
The Bill contains amendments that will allow the Director of Public Prosecutions to extend the statutory time limit to initiate prosecutions. Examples where this may be appropriate include exposure to a hazardous substance that leads to an occupational disease of long latency, and the design, manufacture or supply of unsafe plant and buildings.
The observations of the Minister included advising the House that the amendments had been developed in response to recommendations contained in the Stanley Report into the Workers Compensation and Occupational Health, Safety and Welfare Systems in South Australia. The recommendation in that Report dealing with extensions of time included the following:[18]
This recommendation limits the extension of time to commence a prosecution to three specific areas only: to occupational diseases of long latency; the duties of designers, manufacturers, importers and suppliers of plant; and the duties of designers and owners of buildings. In all other matters in the legislation, the time limit to commence a prosecution remains the same.
[18] Stanley, Brian, Meredith, Frances and Bishop, Rod, ‘Review of Workers Compensation and Occupational Health, Safety and Welfare Systems in South Australia’, (2002) Vol 1, page 10.
Having regard to the terms in the second reading speech and of the Stanley Report, it is evident that the powers of the Director were intended to be limited to the particular circumstances identified earlier.
In Deputy Commissioner of Taxation v Clark,[19] Spigelman CJ discussed the phrase “other good reason” and in particular the application of the ejusdem generis rule of statutory interpretation[20]:
[19] Deputy Commissioner of Taxation v Clark (2003) 57 NSWLR 113.
[20] Deputy Commissioner of Taxation v Clark (2003) 57 NSWLR 113 at 142-143, 144.
The interpretation of the words "other good reason" proposed by the appellant adopts a context that is too narrow. The appellant submits that these words should be limited to unavoidable matters. This interpretation gives determinative weight to the word "illness". In substance this approach applies the ejusdem generis rule of statutory interpretation, identifying the genus as a reason which was, as a practical matter, unavoidable.
It is essential for the application of the ejusdem generis rule that some common characteristic capable of being described as a genus is able to be identified. (See, eg, R v Regos and Morgan (1947) 74 CLR 613 at 624; Cody v J H Nelson Pty Ltd (1947) 74 CLR 629 at 648.) I agree with Lord Diplock that unless at least two different species are identified it is not possible to determine a relevant genus which may be used to read down the general words which follow. (See Quazi v Quazi [1980] AC 744 at 807–808.) Some have left open the possibility, however unusual its application may be, that a genus may appear from a statutory provision where only one word precedes the general formulation. (See, eg, Lake Macquarie Shire Council v Ades [1977] 1 NSWLR 126 at 129; Director of Public Prosecutions v Williams (1998) 104 A Crim R 65 at 73 and 75; F A R Bennion, Statutory Interpretation, 4th ed (2002) London, Butterworths, at 1060.) In the field of statutory interpretation it may be best never to say "never".
The process of reading down general words in a statute is a frequently recurring issue in statutory interpretation. (See, for example, the authorities I referred to in R v Young (1999) 46 NSWLR 681 at 689 [23]–[29].) Application of the ejusdem generis rule is a specific example of this process. The application of this rule, in substance, gives the immediate verbal context determinative weight in the process of construing general words. In my opinion, this is rarely justified. Whether or not general words ought be read down is to be determined by the whole of the relevant context, including other provisions of the statute and the scope and purpose of the statute.
As Dixon J said in Cody v J H Nelson (at 649):
"But the truth is that it is wrong to use the rule for an ejusdem generis construction as a piece of abstract or mechanical reasoning. It must be applied not simpliciter but secundum quid. It should be used as a guide in a process of interpretation which takes into account the whole instrument and the subject matter."
As Lord Diplock said in Quazi v Quazi (at 808):
"The fact that the ejusdem generis rule is not applicable does not, however, necessarily mean that where the expression 'other' appears in a statute preceded by only one expression of greater specificity its generality may not be cut down if to give it its wide prima facie meaning would lead to results that would be contrary to the manifest policy of the Act looked at as a whole or would conflict with the evident purpose for which it was enacted."
...
What can be regarded as "good reason" in one statute will not necessarily be acceptable as "good reason" in another statute. The context provides the relevant limitation. For this reason I do not agree with Palmer J that the words in s 588H and s 588FGB(5) are "as wide as they could be in order that the court may determine each case on its own particular facts".
In my view the phrase “or any other relevant factor or circumstance” should be read down to accord with the genus identified in the earlier provision of the subsection; that is, concerned with the manifestation of an injury, disease, condition or defect that developed over some time such that the prosecution could not reasonably be commenced within the two-year period. In the present case, as earlier observed it is evident that the extension of time granted by the Acting Director was to address the identification of what was said to be the wrong defendant. It is evident that this was not within the power of the Director. It follows that the purported exercise of power to extend time was a nullity and beyond power.
In a particular case
The instrument in writing said to record the extension of time granted by the Director relevantly does no more than identify the name of T & R (Murray Bridge) Pty Ltd and a reference to section 19 of the Occupational Health, Safety and Welfare Act. It does not condescend to any particularity as to the incident the subject of the complaint either by description or date. It does not extend the time from a certain date. Theoretically the extension could purport to operate from a date well prior to 2004.
In my view, a proper exercise of the power of the Director involved, as the statute stipulates, an extension in a particular case. The document evidenced in the purported extension does not either expressly or impliedly identify a particular case.
This was a reasoning that the Full Industrial Court advanced to support its conclusion that time had not been extended. In this respect I agree with the conclusions reached by the Full Industrial Court.
The preconditions
As earlier observed, Judge Parsons reasoned that the purported extension of time was invalid because the Acting Director did not identify in the instrument of writing any precondition of which he was said to be satisfied so as to warrant an extension of time.
There are many provisions in statutes granting power to extend time to ministers or other government officials. There are also many examples of the need for a ministerial consent before proceedings can be issued. The authorities discussing such legislation are many, and, depending on the particular legislation, differ as to the way in which any particular extension or consent is to be evidenced or documented.
In Oates v Williams,[21] the Court was concerned with the interpretation of section 1316 of the Corporations Act, which provided:
Despite anything in any other law, proceedings for an offence against this Act may be instituted within the period of 5 years after the act or omission alleged to constitute the offence or, with the Minister’s consent, at any later time.
[21] Oates v Williams (1998) 84 FCR 348.
The Full Federal Court in respect to this section commented:[22]
A decision taken under s 1316 has little in common with a decision to commence a prosecution or a decision to consent to the commencement of a prosecution. In the first place the effect of a decision under s 1316 is to take away from an accused the ability to plead an absolute answer to a criminal prosecution. It is a defence that was described as a vested right by Zelling J in Karounos at 70 and as an immunity by Jenkinson J in Bond v Minister for Justice (1992) 72 FCR 505 at 512. But howsoever it is to be described, from the point of view of the accused it is a very important right or immunity. On the other hand, a decision to commence a prosecution or to consent to the commencement of a prosecution does not affect any right of the accused.
Secondly, the matters that fall for consideration when making these decisions are different. In the case of a decision to prosecute the decision-maker must decide whether there is a prima facie case. When a consent to a prosecution is required the decision-maker is only concerned to determine whether the proposed prosecution is frivolous or vexatious but is not otherwise concerned with the merits of the case.
[22] Oates v Williams (1998) 84 FCR 348, 354-355.
Having regard to my earlier observations about the reasons for adopting a conservative construction to section 58(6a), it is my view that the Director was obliged in the instrument in writing to identify the precondition or preconditions that he considered gave rise to the relevant satisfaction. In so concluding I have had particular regard to the fact that a party to the particular proposed proceeding was making a decision that addressed a substantive right of the other party and that there is no limit in time at which the Director might exercise his power. In my view the Director in these circumstances was constrained by the legislation to identify the precondition through which he asserted his power had been enlivened. In the present case the written instrument failed to identify the precondition said to exist.
The evidentiary presumption
As earlier observed, section 58(6b) creates an evidentiary presumption in regard to the acceptance into evidence of an apparently genuine document. Although subsection (6b) refers in its terms to subsection (6), this would appear to be a reference to subsection (6a). Having regard to the foregoing reasons, the document attached to the complaint is not a written instrument extending time under section 58(6a).
The evident purpose of subsection (6b) is to avoid the need to present the Director as a witness to prove a written instrument. In any event, in the criminal context, the burden of proof remains on the complainant to establish that time was extended and properly understood. Subsection (6b) is an aid to that proof. It has no application in the present case.
Conclusion
For these reasons I would dismiss this appeal.
SULAN J: I would dismiss the appeal. I agree with the reasons of Gray J.
DAVID J. I agree with the reasons of Gray J. I would dismiss the appeal.
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