GPI (General) Pty Ltd v Industrial Court of New South Wales
[2011] NSWCA 157
•26 May 2011
This decision has been amended. Please see the end of the decision for a list of the amendments.
Court of Appeal
New South Wales
Case Title: G.P.I. (General) Pty Ltd v Industrial Court of New South Wales Medium Neutral Citation: [2011] NSWCA 157 Hearing Date(s): 26 May 2011 Decision Date: 26 May 2011 Jurisdiction: Before: Allsop P at 1; Hodgson JA at 6; Basten JA at 46
Decision: Orders made 26 May 2011; Reasons given 24 June 2011
Summons dismissed with costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]Catchwords: INDUSTRIAL LAW - Occupational health and safety - Charges of offences - Deficiency in particularisation - Whether particulars could subsequently be supplied - Whether jurisdictional error occurred in failure to quash or permanently stay charges.
Legislation Cited: Australian Constitution Ch III
Criminal Appeal Act 1912 s 5
Criminal Procedure Act 1986 (NSW), ss 11, 15, 16, 20, 21, 246
Industrial Relations Act 1996 (NSW) ss 151A, 168, 170, 179, 196
Industrial Relations Commission Rules 1996, r 217B
Interpretation Act 1987 (NSW) s 68
Occupational Health and Safety Act 2000 ss 8, 10, 26, 105, 107
Supreme Court (Summary Jurisdiction) Act 1967 (NSW) s 6, 168Cases Cited: Boral Gas NSW Pty Limited v Magill (1993) 32 NSWLR 501
Inspector McGrath v GPI (General) Pty Ltd [2009] NSWIRComm 194
John L Pty Limited v Attorney-General (NSW) [1987] HCA 42; (1987) 163 CLR 508
Johnson v Miller [1937] HCA 37; 59 CLR 467
Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1; 239 CLR 531
Kirk Group Holdings Pty Ltd & Anor v WorkCover Authority NSW & Anor [2006] NSWCA 172; (2006) 66 NSWLR 151
Knaggs v Director of Public Prosecutions [2007] NSWCA 83; 170 A Crim R 366
Rockdale Beef Pty Ltd v Industrial Relations Commission (NSW) [2007] NSWCA 128; 165 IR 7
Solution 6 Holdings Ltd v Industrial Relations Commission of NSW [2004] NSWCA 200; 60 NSWLR 558Texts Cited: Category: Principal judgment Parties: G.P.I. (GENERAL) PTY LTD (ACN 010 761 136) (first applicant)
Grahamme Douglas McDOUGALL (second applicant)
INDUSTRIAL COURT OF NSW (first respondent)
Inspector Cherie McGRATH (WorkCover Authority of NSW) (second respondent)Representation - Counsel: P M Skinner/ Ms B Obradovic (applicants)
submitting appearance (first respondent)
J V Agius SC/ R Reitano (second respondent)- Solicitors: Acclaim Legal (applicants)
I V Knight, Crown Solicitor (submitting appearance) (first respondent)
Legal Group WorkCover Authority of NSW (second respondent)File number(s): 2010/209569 Decision Under Appeal - Court / Tribunal: - Before: Haylen J; Marks J - Date of Decision: - Citation: Inspector McGrath v GPI (General) Pty Ltd [2009] NSWIRComm 194 - Court File Number(s) IRC 536/09; IRC 537/09; IRC 538/09 Publication Restriction:
JUDGMENT
ALLSOP P: I have read the reasons to be published of both Hodgson JA and Basten JA. Subject to the following, I agree with both.
Whilst there may be circumstances in which it is appropriate or necessary to entertain an attack on the form of a charge, as was intimated by the joint judgment in Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1; 239 CLR 531 at 559 [30] (first sentence), in the face of the Criminal Procedure Act 1986 (NSW), s 11 and the later opportunity to give particulars (cf Johnson v Miller [1937] HCA 37; 59 CLR 467) it is not to be concluded that the charges here necessarily had to be quashed or stayed by Haylen J or Marks J if jurisdictional error by them were to be avoided. Their Honours may have taken a different course had they had available to them the reasons of the High Court in Kirk ; they may have been wrong in the courses they took. That does not, however, make their decisions vulnerable to attack on the basis of jurisdictional error.
I would also prefer to reserve my comments as to the relevance of any evidence as to the assessment of the adequacy of particulars to another occasion. Likewise, I would not make any comment upon the adequacy of the proposed amended particulars to cure any defect that may exist in the existing charges.
The willingness, or not, of this Court to interfere at an interlocutory stage in proceedings in the Industrial Court can be seen to be related to the extent of operation of s 179 of the Industrial Relations Act 1996 (NSW), and the place of jurisdictional error. Kirk has clarified the existence of a supervisory jurisdiction in this Court founded on aspects of Ch III of the Australian Constitution . In the light of the reasons of Hodgson JA and Basten JA, this is not the appropriate occasion to deal with the extent of such authority.
The above reflects my reasons for joining in the making of orders on 26 May 2011.
HODGSON JA: This application concerns three proceedings commenced on 17 April 2009 in the first respondent, the Industrial Court of New South Wales (IRC), namely:
(1) Proceedings IRC 536 of 2009 brought by the second respondent (Inspector McGrath) against the first applicant (GPI).
(2) Proceedings IRC 537 of 2009 brought by Inspector McGrath against the second applicant (Mr McDougall).
(3) Proceedings IRC 538 of 2009 brought by Inspector McGrath against Mr McDougall.
By the application, the applicants seek orders quashing orders dated 17 April 2009 of Haylen J of the IRC, made pursuant to s 246(1) of the Criminal Procedure Act 1986 ( CP Act ) as applied by s 168 of the Industrial Relations Act 1996 ( IR Act ), that the defendant in each proceeding appear before the IRC to answer a certain charge; an order quashing a judgment dated 19 November 2009 of Marks J of IRC concerning the proceedings; and in the alternative, an order permanently staying the proceedings.
At the conclusion of the hearing of this application, the Court ordered that the summons be dismissed with costs, with reasons to be provided in due course. These are my reasons for joining in the order made by the Court.
Statutory provisions
The charges involved in the proceedings were of offences under ss 8 and 10 of the Occupational Health and Safety Act 2000 ( OHS Act ), which relevantly provide as follows:
8 Duties of employers
...
(2) Others at workplace
An employer must ensure that people (other than the employees of the employer) are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work.
Note . See section 12 for the penalty for an offence against this section and other provisions of this Division. Division 4 makes ancillary provision with respect to those offences, including:
(a) section 26-liability of directors and managers of corporations,
(b) section 28-defence that compliance not reasonably practicable etc.
See also Division 2 for duty of employer to consult employees.
...
10 Duties of controllers of work premises, plant or substances
(1) A person who has control of premises used by people as a place of work must ensure that the premises are safe and without risks to health.
(2) A person who has control of any plant or substance used by people at work must ensure that the plant or substance is safe and without risks to health when properly used.
(3) The duties of a person under this section:
(a) do not apply to premises, plant or substances used only by employees of the person, and
(b) do not apply to premises occupied only as a private dwelling or to plant or substances used in any such premises, and
(c) extend to the means of access to or exit from a place of work, and
(d) apply only if the premises, plant or substances are controlled in the course of a trade, business or other undertaking (whether for profit or not) of the person.
(4) In this section, a person who has control of premises, plant or substances includes:
(a) a person who has only limited control of the premises, plant or substances (in which case any duty under this section applies only to the matters over which the person has control), and
(b) a person who has, under any contract or lease, an obligation to maintain or repair the premises, plant or substances (in which case any duty under this section applies only to the matters covered by the contract or lease).
The bringing of proceedings for such offences is relevantly regulated by ss 105 and 107 of OHS Act :
105 Summary procedure for offences
(1) Proceedings for an offence against this Act or the regulations are to be dealt with summarily:
(a) before the Local Court, or
(b) before the Industrial Relations Commission in Court Session.
(2) The maximum monetary penalty that may be imposed in those proceedings by the Local Court is 500 penalty units, despite any higher maximum monetary penalty provided in respect of the offence.
(3) The provisions of the Industrial Relations Act 1996 , and of the regulations under that Act, relating to appeals from the Local Court to the Industrial Relations Commission in Court Session in connection with offences against that Act apply to proceedings before the Local Court for offences against this Act or the regulations.
Note . Section 197 of the Industrial Relations Act 1996 deals with appeals against convictions or penalties in connection with offences against that Act. Section 197A of the Industrial Relations Act 1996 provides a right of appeal to the Full Bench of the Industrial Relations Commission in Court Session against a decision of a member of the Commission or the Local Court to acquit a person of an offence against this Act or the regulations.
107 Time for instituting proceedings for offences
(1) Proceedings for an offence against this Act or the regulations may be instituted within the period of 2 years after the act or omission alleged to constitute the offence, except as otherwise provided by this section or section 107A.
...
(3) If a coronial inquest or inquiry is held and it appears from the coroner's report or proceedings at the inquest or inquiry that an offence has been committed against this Act or the regulations (whether or not the offender is identified), proceedings in respect of that offence may be instituted within 2 years after the date the report was made or the inquest or inquiry was concluded.
(4) This section applies despite anything in any other Act.
Where, as in this case, the proceedings are brought before the IRC, ss 168 and 170 of the IR Act become relevant:
168 Criminal procedure
(1) Proceedings for any offence in respect of which proceedings are taken before the Commission in Court Session are to be dealt with summarily by the Commission.
(2) Part 5 of Chapter 4 of the Criminal Procedure Act 1986 applies to proceedings for an offence taken before the Commission in Court Session.
(3) Nothing in subsection (2) affects the operation of section 170.
(4) The provisions applied by this section prevail over any other provisions of this Part for the purposes of proceedings for an offence.
Note . See section 196 with respect to the procedure on appeal to the Full Bench in criminal proceedings.
170 Amendments and irregularities
(1) The Commission may, in any proceedings before it, make any amendments to the proceedings that the Commission considers to be necessary in the interests of justice.
(2) Any such amendment may be made:
(a) at any stage of the proceedings, and
(b) on such terms as the Commission thinks fit (including, if it can award costs in the proceedings, terms as to costs).
(3) If this Act, the regulations or a rule of the Commission is not complied with in relation to the institution or conduct of proceedings before the Commission, the failure to comply is to be treated as an irregularity and does not nullify the proceedings, any step taken in the proceedings, or any decision in the proceedings.
(4) For the purposes of subsection (3), the Commission may wholly or partly set aside the proceedings, a step taken in the proceedings, or a decision in the proceedings.
Also relevant are ss 11, 15, 16, 20, 21 and 246 of the CP Act :
11 Description of offences
The description of any offence in the words of an Act or statutory rule or other document creating the offence, or in similar words, is sufficient in law.
Part 2 Indictments and other matters
15 Application of Part
(1) This Part applies, to the extent that it is capable of being applied, to all offences, however arising (whether under an Act or at common law), whenever committed and in whatever court dealt with.
(2) In this Part:
indictment includes a court attendance notice or any other process or document by which criminal proceedings are commenced.
16 Certain defects do not affect indictment
(1) An indictment is not bad, insufficient, void, erroneous or defective on any of the following grounds:
(a) for the improper insertion or omission of the words "as appears by the record", "with force and arms", "against the peace", "against the form of the statute" or "feloniously",
(b) for want of an averment of any matter unnecessary to be proved or necessarily implied,
(c) for want of a proper or perfect venue or a proper or formal conclusion,
(d) for want of any additional accused person or for any imperfection relating to any additional accused person,
(e) for want of any statement of the value or price of any matter or thing, or the amount of damage or injury, if such value, price or amount is not of the essence of the offence,
(f) for designating any person by the name of his or her office, or other descriptive appellation, instead of by his or her proper name,
(g) except where time is an essential ingredient, for omitting to state the time at which an offence was committed, for stating the time wrongly or for stating the time imperfectly,
(h) for stating an offence to have been committed on a day subsequent to the finding of the indictment, on an impossible day or on a day that never happened,
(i) if the indictment was signed by an Australian legal practitioner who has been instructed to prosecute the proceedings to which the indictment relates on behalf of the Director of Public Prosecutions-for failure by the Director to authorise the Australian legal practitioner by order in writing under section 126 (2) to sign indictments for and on behalf of the Director.
(2) No objection may be taken, or allowed, to any indictment by which criminal proceedings (including committal proceedings) in the Local Court or for any other offence that is to be dealt with summarily are commenced, or to any warrant issued for the purposes of any such proceedings, on the grounds of:
(a) any alleged defect in it in substance or in form, or
(b) any variance between it and the evidence adduced at the proceedings for the offence charged in the indictment or warrant.
Note . An adjournment may be obtained under section 40 where there is a variance between the evidence adduced and the offence charged in the application or order.
...
20 Amendment of indictment
(1) An indictment may not be amended after it is presented, except by the prosecutor:
(a) with the leave of the court, or
(b) with the consent of the accused.
(2) This section does not affect the powers of the court under section 21.
(3) For the purposes of this section, an amendment of an indictment includes the substitution of an indictment.
21 Orders for amendment of indictment, separate trial and postponement of trial
(1) If of the opinion that an indictment is defective but, having regard to the merits of the case, can be amended without injustice, the court may make such order for the amendment of the indictment as it thinks necessary to meet the circumstances of the case.
(2) If of the opinion:
(a) that an accused person may be prejudiced or embarrassed in his or her defence by reason of being charged with more than one offence in the same indictment, or
(b) that for any other reason it is desirable to direct that an accused person be tried separately for any one or more offences charged in an indictment,
the court may order a separate trial of any count or counts of the indictment.
(3) If of the opinion that the postponement of an accused person's trial is expedient as a consequence of it having amended an indictment or ordered a separate trial of a count, the court may make such order as appears necessary.
(4) An order under this section may be made either before trial or at any stage during the trial.
(5) The following provisions apply if an order is made under this section for a separate trial or for the postponement of a trial:
(a) if the order is made during the trial, the court may order that the jury be discharged from giving a verdict:
(i) on the count or counts in respect of which the trial is postponed, or
(ii) on the indictment,
as the case may be,
(b) the procedure on the separate trial of a count, and the procedure on the postponed trial, are to be the same in all respects (if the jury has been discharged) as if the trial had not commenced,
(c) subject to the Bail Act 1978 , the court may commit the accused person to a correctional centre.
(6) Any power of the court under this section is in addition to and not in derogation of any other power of the court for the same or similar purposes.
...
246 Orders for appearance or apprehension of accused persons
(1) A prosecutor may apply for an order:
(a) that a person alleged in the application to have committed an offence that may be dealt with summarily by the court must appear at a time and place specified in the order to answer to the offence charged in the order, or
(b) for the apprehension of any such person for the purpose of being brought before a Judge to answer to the offence charged in the order.
(2) The application must be in accordance with the rules.
(3) The order may be made in the absence of one or both parties.
(4) An order for the apprehension of a person may be made whether or not an order has been made under subsection (1) (a).
(5) An order for the apprehension of a person:
(a) must be addressed to all police officers, and
(b) may be addressed to any other person specified in the order, and
(c) may be executed by any police officer or by any person to whom it is addressed at any place at which, had the offence specified in the order been committed at that place, that offence would be triable in the court.
(6) A Judge before whom a person apprehended under an order made under this section is brought may, if bail is not dispensed with or granted, issue a warrant:
(a) committing the person to a correctional centre or other place of security, and
(b) ordering the person to be brought before a court at the date, time and place specified in the order.
Circumstances
The charges arose out of an accident that occurred on 20 April 2007 at premises in Villawood, in which a forklift truck overturned killing its driver.
On 17 April 2009, Inspector McGrath made three applications to the IRC for orders under s 246(1) of the CP Act , in respect of charges which may be broadly (though not completely) described as follows:
(1) A charge that GPI on 20 April 2007, having control (or limited control) of the Villawood premises, failed to ensure that the premises were safe and without risks to health, contrary to s 10(1) of the OHS Act ; and in the alternative, that GPI on 20 April 2007, having control (or limited control) of plant (the forklift truck), failed to ensure that the plant was safe and without risks to health when properly used, contrary to s 10(2) of the OHS Act (IRC 536 of 2009).
(2) That Mr McDougall, being a director or a person concerned in the management of Personalised Freight Management (NSW) Pty Ltd (PFM) is by virtue of s 26(1) of the OHS Act taken to have contravened s 8(2) of the OHS Act in that PFM, an employer, on 20 April 2007 at the Villawood premises, failed to ensure that persons other than PFM's employees were not exposed to risks to their health and safety arising from the conduct of PFM's undertaking while they were at PFM's place of work, contrary to s 8(2) of the OHS Act (IRC 537 of 2009).
(3) A charge that Mr McDougall, being a director of GPI, is by virtue of s 26(1) of the OHS Act taken to have contravened s 10(1) of the OHS Act , and in the alternative s 10(2) of that Act, in that GPI committed the offences charged against GPI in IRC 536 of 2009 (IRC 538 of 2009).
The first of those charges was set out as follows in the application for the s 246 order:
I, Inspector Cherie McGrath, of the WorkCover Authority of New South Wales, Level 2, 12 Butler Road, Hurstville, in the State of New South Wales an Inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 ('the Act') and empowered under Section 106(1)(c) of the said Act to institute proceedings in this matter allege that G.P.I. (General) Pty Ltd [ACN 010 761 136] a corporation with its registered office situated at c/o Barry A Helton & Co, 3/36 Windsor Road, Red Hill in the State of Queensland ('the defendant'), on 20 April 2007, having control, or alternatively, only limited control, in the course of its trade, business or undertaking of premises located at 82 Marple Avenue Villawood, in the State of New South Wales ('the premises'), being premises not occupied as a private dwelling, and used by people not in the defendant's employment as a place of work
FAILED TO
Ensure that the premises were safe and without risks to health contrary to section 10(1) of the Occupational Health and Safety Act 2000.
The particulars of the charge are that:
a. At all material times the defendant subleased the premises from PFM Labour Hire Pty Ltd [ACN 105 244 915]
b. At all material times the defendant had control, or alternatively, only limited control of the premises.
c. The defendant failed to ensure that adequate markings and collision protection were in place at the premises for the safe operation and use of forklifts so as to ensure that the premises were safe and without risks to health.
d. The defendant failed to provide and maintain a safe system of work for the use and operation of forklifts at the premises so as to ensure that the premises were safe and without risks to health.
e. The defendant failed to ensure that people operating forklifts at the premises had appropriate skills, training and qualifications in the safe operation and use of forklifts so as to ensure that the premises were safe and without risks to health;
f. The defendant failed to provide adequate induction (in particular about the operation and use of forklifts) to people working at the premises so as to ensure that the premises were safe and without risks to health.
g. The defendant failed to provide adequate supervision to people operating forklifts at the premises so as to ensure that the premises were safe and without risks to health.
As a result of the defendant's failures Michael Scott Annetts and Stephen Mamuti, and other people working at the premises, were placed at risk of injury.
IN THE ALTERNATIVE to the charge pursuant to section 10(1) of the Occupational Health and Safety Act 2000, I allege that:
G.P.I (General) Pty Ltd [ACN 010 761 136], a corporation with its registered office situated at c/o Barry A Helton & Co, 3/36 Windsor Road, Red Hill in the State of Queensland ('the defendant'), on 20 April 2007, having control, or alternatively, only limited control, in the course of its trade, business or other undertaking at premises located at 82 Marple Avenue Villawood in the State of New South Wales, of plant used by persons not in the defendant's employment, and not being used in premises that were a private dwelling
FAILED TO
ensure that the plant was safe and without risks to health when properly used, contrary to section 10(2) of the Occupational Health and Safety Act 2000.
The particulars of the charge are that:
a. At all material times the defendant leased from Hystandard Handling Equipment a Hyster H200.DX forklift and two others [sic] forklifts used at the site ('plant').
b. At all material times the defendant had control, or alternatively, only limited control of the plant.
c. The defendant failed to ensure that plant was safe and without risks to health when properly used in that it failed to provide and maintain a safe system of work for the proper use and operation of forklifts.
d. The defendant failed to ensure that plant was safe and without risks to health when properly used in that it failed to ensure that people who were using the forklifts at the premises had appropriate skills, training and qualifications in relation to the safe operation and use of forklifts.
e. The defendant failed to ensure that plant was safe and without risks to health when properly used in that it failed to provide adequate induction (in relation the safe operation and use of forklifts) to people working at the premises.
f. The defendant failed to ensure that plant was safe and without risks to health when properly used in that it failed to provide adequate supervision to people operating forklifts at the premises.
As a result of the defendant's failures Michael Scott Annetts and Stephen Mamuti, and other people working at the premises, were placed at risk of injury.
On 17 April 2009, Haylen J made the orders sought.
On 12 October 2009, the applicants filed notices of motion in the IRC seeking orders that the orders of Haylen J be quashed or that the proceedings be permanently stayed as abuses of process.
These notices of motion were heard by Marks J on 4 November 2009, and he gave his decision on 19 November 2009.
In that decision, Marks J noted as follows the grounds relied on in relation to proceedings IRC 536 of 2009 and IRC 538 of 2009:
13 The defendants relied upon two "grounds and reasons" in support of the orders sought in their motion. These were:
1. Neither of the offences charged in the alternative for the application for order, filed in these proceedings on 17 April 2009, and as particularised therein, and in the Affidavit in Support of the Application, sworn by Inspector Cherie McGrath on 16 April 2009 are within s 10 of the Occupational Health and Safety Act 2000 and are therefore unknown to law.
2. In the alternative, the offences as charged and so particularised are incapable of compliance, and as such it is an abuse of the process of this Honourable Court to seek that the Defendant answer to them.
Marks J gave the following reasons for rejecting the first ground:
14 In support of the motion, the defendants sought to rely upon such evidentiary material as was contained in the affidavit in support sworn by the prosecutor. It was said that this established a certain factual matrix which applied to the proceedings and a consideration of which would enable the Court to determine that the charges were "unknown to law." Put shortly, the defendants submitted that s 10(1) should be construed so that its provisions were directed only to the physical state of premises or some characteristic inherent in the nature or condition of the premises without reference to any activity that was being undertaken by anyone on the premises. Accordingly, it was said that the particulars of the charge could not, as a matter of law, be sustained.
15 In my opinion, there are a number of answers to this submission. The first is that particular c) asserts a failure to ensure that adequate markings and collision protection were in place. Arguably, these might go to the physical nature of the premises. Furthermore, with respect to d), e), f) and g), the prosecutor submitted that it would be argued that, as a matter of law, the state, condition or nature of premises would be affected by whatever activities were being conducted upon or in them and to this extent those activities would impact upon and affect the safety of the premises themselves. A consideration as to whether or not the premises were "without risks to health" is, presumably, a reference to a state of affairs.
16 These matters, that is the construction of the provisions of the section, cannot be considered in a factual vacuum. This would require some factual hypothesis to be erected against which the construction of the provision would need to be determined given the fundamentally opposed positions of the defendants and the prosecutor. Such a matter could only properly and appropriately be considered, in my opinion, at an appropriate time in the proceedings, namely when all of the evidence has been adduced in the proceedings that is relevant to a determination of these issues.
In relation to the second ground, Marks J referred to John L Pty Limited v Attorney-General (NSW) [1987] HCA 42; (1987) 163 CLR 508, to ss 15 and 16 of the CP Act , and to the judgment of Basten JA in Kirk Group Holdings Pty Ltd & Anor v WorkCover Authority NSW & Anor [2006] NSWCA 172; (2006) 66 NSWLR 151; and he concluded:
49 In my opinion, the charges as particularised satisfy the requirements imposed both by statute and at common law in that they set out what are the essential ingredients of the statutory offence and the essential factual ingredients of the actual offence and cannot therefore be regarded as being invalid so as to found any determination that the proceedings should either be struck out or permanently stayed.
50 If I were incorrect in this conclusion I would nevertheless apply the provisions of s 16(2) of the Criminal Procedure Act because that sub-section prohibits an objection of the kind brought by these defendants in these interlocutory proceedings.
Marks J then said that the same reasoning applied to proceedings IRC 537 of 2009.
On 3 February 2010, the High Court of Australia gave its judgment in Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1; (2010) 239 CLR 531.
On 10 March 2010, the applicants filed further notices of motion in the three proceedings in the IRC, each seeking the following orders and giving the following grounds:
A . the Defendant will on 15 March 2010 move this Honourable Court at Sydney for the following orders:
1. That there [sic] proceedings be dismissed.
2. In the alternative , that these proceedings be permanently stayed as an abuse of process.
3. Such consequential or other orders, as this Honourable Court seem fit.
4. Costs.
B. Grounds and reasons:
1. The Application for Order, filed in these proceedings on 17 April 2009, does not charge any offence known to law.
2. Despite the Defendant's several requests for particulars of the charges against it, the Prosecutor has not provided sufficient particulars as to enable the Defendant an opportunity to consider any defence available to it.
On 6 May 2010, Inspector McGrath filed notices of motion in the proceedings in the IRC, each seeking the following order and giving the following grounds:
A. The Applicant on this Notice of Motion will, on a date to be fixed, move the Industrial Court of New South Wales ("Court") to make the following orders:
1) That leave be granted to the Applicant to amend the particulars of the Application for Order in accordance with Annexure A hereto.
B. Grounds and reasons:
1) Following the recent decision of Kirk v Industrial Relations Commission of New South Wales, Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1 ("Kirk") the Applicant seeks to add greater particularity in referring to the alleged acts of omissions which constitute the offence as set out in the Amended Application for Order
The Annexure A referred to the notice of motion in IRC 536 of 2009 was entitled "Amended Application for Order"; and it included the following material:
I, Inspector Cherie McGrath, of the WorkCover Authority of New South Wales, Level 2, 12 Butler Road, Hurstville, in the State of New South Wales an Inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 ('the Act') and empowered under Section 106(1)(c) of the said Act to institute proceedings in this matter allege that G.P.I. (General) Pty Ltd [ACN 010 761 136] a corporation with its registered office situated at c/o Barry A Helton & Co, 3/36 Windsor Road, Red Hill in the State of Queensland ('the defendant'), on 20 April 2007, having control, or alternatively, only limited control, in the course of its trade, business or undertaking of premises located at 82 Marple Avenue Villawood, in the State of New South Wales ('the premises'), being premises not occupied as a private dwelling, and used by people not in the defendant's employment as a place of work
FAILED TO
ensure, by its acts or omissions as particularised below, that the premises were safe and without risks to health contrary to section 10(1) of the Occupational Health and Safety Act 2000.
The particulars of the charge are that:
a. At all material times the defendant subleased the premises from PFM Labour Hire Pty Ltd [ACN 105 244 915]
b. At all material times the defendant had control, or alternatively, only limited control of the premises because it was the occupier of the premises.
c. The 'risk' was the risk of forklifts hitting people or tipping over and crushing people while in use at the premises.
d. The defendant failed to ensure that the premises were safe and without risk to health because of the acts or omissions set out in particulars (e) to (o) below.
e. The defendant failed to ensure that adequate markings and collision protection were in place at the premises for the safe use of forklifts.
f. The defendant failed to ensure that a safe distance was maintained at the premises between people who were working and forklifts that were in use.
g. The defendant failed to ensure that seatbelts were worn at all times by people who used forklifts at the premises.
h. The defendant failed to ensure that people at the premises who were not trained or qualified in the use of forklifts did not use forklifts at the premises.
i. The defendant failed to ensure that people at the premises who were not trained or qualified in the use of forklifts were not given permission to use forklifts at the premises.
j. The defendant failed to maintain a record at the premises of the use of forklifts so as to ensure that forklifts were only being used by people who were trained or qualified in the safe use of forklifts.
k. The defendant failed to place keys to forklifts in a locked box or a restricted area so as to limit access to and the use of forklifts by people at the premises.
I. The defendant failed to ensure that keys were removed from unattended forklifts so as to prevent the unauthorised use of forklifts.
m. The defendant failed to ensure that people who used forklifts at the premises had skills, training and qualifications in the safe use of forklifts.
n. The defendant failed to provide an induction to people working at the premises about the safe use of forklifts at which people were told:
i) they must not use forklifts unless authorised and qualified to do so; and
ii) they must remain a safe distance away from forklifts when in use.
o. The defendant failed to provide direct supervision to people who were working at the premises so as to ensure that forklifts were used in safe manner and only by people who were trained or qualified in the safe use of forklifts.
As a result of the defendant's failures Michael Scott Annetts and Stephen Mamuti, and other people working at the premises, were exposed to the risk.
IN THE ALTERNATIVE to the charge pursuant to section 10(1) of the Occupational Health and Safety Act 2000, I allege that:
G.P.I (General) Pty Ltd [ACN 010 761 136], a corporation with its registered office situated at c/o Barry A Helton & Co, 3/36 Windsor Road, Red Hill in the State of Queensland ('the defendant'), on 20 April 2007, having control, or alternatively, only limited control, in the course of its trade, business or other undertaking at premises located at 82 Marple Avenue Villawood in the State of New South Wales, of plant used by persons not in the defendant's employment, and not being used in premises that were a private dwelling
FAILED TO
ensure, by its acts or omissions as particularised below, that the plant was safe and without risks to health when properly used, contrary to section 10(2) of the Occupational Health and Safety Act 2000.
The particulars of the charge are that:
a. At all material times the defendant leased from Hystandard Handling Equipment a Hyster H200.DX forklift and two others [sic] forklifts used at the site ('plant').
b. At all material times the defendant had control, or alternatively, only limited control of the plant.
c. The 'risk' was the risk of plant hitting people or tipping over and crushing people while in use at the premises.
d. The 'plant' referred to in these particulars refers to forklifts used by people working at the premises.
e. The defendant failed to ensure that plant was safe and without risk to health when properly used because of the acts or omissions set out in particulars (f) to (o) below.
f. The defendant failed to ensure that a safe distance was maintained between people who were working and plant that was in use.
g. The defendant failed to ensure that seatbelts were worn at all times by people who used plant.
h. The defendant failed to ensure that people who were not trained or qualified in the safe use of plant did not use plant.
i. The defendant failed to ensure that people who were not trained or qualified in the safe use of plant were not given permission to use plant.
j. The defendant failed to maintain a record of the use of plant so as to ensure that plant was only being used by people who were trained or qualified to do so.
k. The defendant failed to place keys to plant in a locked box or a restricted area so as to limit access to and the use of plant.
I. The defendant failed to ensure that keys were removed from unattended plant so as to prevent the unauthorised use of plant.
m. The defendant failed to ensure that people who used plant had skills, training and qualifications in relation to the safe use of plant.
n. The defendant failed to provide an induction to people about the safe use of plant at which people were told:
i) they must not use plant unless authorised and qualified to do so; and
ii) they must at all times remain a safe distance away from plant in use.
o. The defendant failed to provide direct supervision to people who were working so as to ensure that plant was used in a safe manner and was only used by people who were trained or qualified in the use of plant.
As a result of the defendant's failures Michael Scott Annetts and Stephen Mamuti, and other people working at the premises, were exposed to the risk.
AND I hereby apply for the issue of an order under section 170(3)(b) and section 246(1)(a) of the Criminal Procedure Act 1986 and section 168 of the Industrial Relations Act 1996 requiring the said defendant to appear before the Industrial Court of New South Wales in answer to the said charge.
This application was commenced by summons filed on 29 June 2010.
Submissions
The written submissions for the applicants made the following points:
(1) The charges against each applicant breached the principles established in the High Court decision in Kirk , particularly the requirement that it is necessary that a statement of the offence identify the act or omission of the defendant said to constitute the offence, and that in the case of omission this requires identification of the means that should have been taken to address the relevant risks.
(2) Accordingly, Haylen J fell into jurisdictional error in making the orders he did on 17 April 2009, and Marks J fell into jurisdictional error in making the orders he made on 19 November 2009; and in those circumstances, s 179 of the IR Act does not prevent relief being given by the Supreme Court.
(3) Marks J denied procedural fairness in declining to consider the contents of the commencing affidavits relied on by the prosecution.
(4) The prosecution has declined to answer requests of the applicants for further particulars of the charges, including a letter dated 30 November 2009 making the following request:
Would you please provide to us ... an outline of what it is that the prosecution says the defendants could have or should have done to remedy any failures on their part, so that our clients can properly assess whether a defence of "reasonable practicability" under s 28(a) of the Occupational Health and Safety Act 2000 is available to them.
(5) No appeal lies from the decision of Marks J: see s 196 IR Act , s 5F Criminal Appeal Act 1912 ( CA Act ).
(6) Inspector McGrath has applied for orders commencing new proceedings, after expiry of the statutory time limit in s 107 of the OHS Act .
The written submissions concluded as follows:
31. It is submitted that the defect in the pleadings alleging criminal offences by the Applicants in this case should be categorised by this Honourable Court as going to the validity of the proceedings, particularly when it is noted that:
a. it is arguable that the Second Applicant is at risk as to his liberty [see subs 12(c) of the OHAS Act]
b. Parliament has prescribed summary trial for these offences, with no option for trial by jury (in the Second Applicant's case, by his peers), and with jurisdiction in the trial court to award costs to a successful prosecutor against a convicted defendant;
c. the standard practice of the Industrial Court is to order a convicted defendant to pay the prosecution's costs, in addition to any fine imposed;
d. Parliament prescribed a statutory time limit for the bringing of proceedings for offences under the OHAS Act of two years [which expired in the instant case on 19 April 2009, two days after proceedings were commenced], which would be subverted if after the time limit expires charges substantially different to those laid within time are allowed to be substituted;
e. the pleadings suffer squarely from the same defects as criticised by the High Court in Kirk - they are incapable of defence;
f. the prosecution has declined to even be confined as to its case by the material in the affidavits filed with the applications for orders;
g. the prosecution has declined several requests for appropriate particularisation; and
h. if the Industrial Court allows the re-commencement of the proceedings in the terms sought by the prosecution in the motions of 10 May 2010, there are no interlocutory remedies available to the Applicants to prevent the proceedings then going to a long and expensive trial, before they could exercise any appeal rights.
In oral submissions, Mr Skinner for the applicants submitted that the orders sought in Inspector McGrath's notices of motion on 6 May 2010 were not amendments within ss 20 or 21 of the CP Act or s 170 of the IR Act , because they sought new orders initiating the proceedings outside the time limits for initiating proceedings (and technicalities are not to be disregarded in criminal proceedings), and because they sought to bring different charges.
Mr Skinner submitted the jurisdictional error of law by Marks J was disclosed in par [49] of his judgment; and he accepted that, while he maintained that s 5F of the CA Act (incorporated by s 196 of the IR Act ) did not give any appeal from that interlocutory judgment, the applicants could have applied to Marks J under s 5AE of the CA Act to state a case on a question of law.
Decision
The High Court decision in Kirk does establish that it is necessary that a statement of the offence identify the act or omission of the defendant said to constitute the offence, and that in the case of omission this requires identification of the measures that should have been taken to address the relevant risks.
However, it did not decide that this requirement displaced ss 11 and 16(2) of the CP Act , which relevantly restricted objections that may be taken to the form of charges, noting the extended definition of "indictment" given by s 15 of the CP Act . Rather, the High Court in Kirk held that s 11 did not dispense with the necessity for the defendant not only to be told of the legal nature of the offence but also of the particular act, matter and thing alleged as the foundation of the charge: see Kirk at [26] - [30]. The High Court did not rule that this particularisation had to occur at the time the charge was first brought, but based its decision on the point that the matter should not have proceeded without further particularisation.
It is true that in John L , a majority of the High Court held that a lack of particularity in a charge as originally brought was fatal, but it also held that provisions of the nature of ss 11 and 16(2) of the CP Act did not apply. In Johnson v Miller (1937) 59 CLR 467, it was plainly contemplated that the common law requirement of particularisation could be satisfied by various means, not limited to full particularisation in the complaint or charge itself: see at 490 per Dixon J, at 497-8 per Evatt J, and at 501 per McTiernan J.
Accordingly, in the present case, if the particulars of the charges as given in the original charges were deficient, particulars could be provided in other ways.
Further, in this case there is an outstanding application to amend the charges. It seems clear that such an amendment can be granted, at least unless it were to substantially change the nature of the charge: see CP Act ss 20 and 21 (read with the definition of "indictment" in s 15(2), IR Act s 170.)
In my opinion, there is no substance in Mr Skinner's submission that because of the terms of the orders sought in the notices of motion dated 6 May 2010 and the wording of Annexure A, what is being sought is not an amendment but commencement of new proceedings. What ss 20 and 21 of the CP Act permit is the amendment of indictments, and "indictment" is defined in s 15 of the CP Act to include "any other process or document by which criminal proceedings are commenced". It is the application for an order under s 246 of the CP Act that is the process by which criminal proceedings of this kind are commenced, so that an amended application for order falls squarely within the concept of amendment of an indictment used in ss 20 and 21 of the CP Act . And when such an amendment is made, there is nothing in the statutory provisions to displace the ordinary rule that amendment takes effect as at the date of the process that is amended. Thus, amendment would not amount to commencement of proceedings outside the two year time limit, although of course delay could be relevant to the exercise of the Court's discretion whether to allow the amendment.
On the question whether the amendment now sought is so substantial as to amount to the bringing of different charges, that question would normally be one for consideration by the court dealing with the application for amendment. However, prima facie it would appear that the additional particulars given in the amended charge do no more than further particularise the earlier particulars, notably particulars d. and e. in the original charge, in the case of proceedings IRC 536 of 2009.
It was submitted that even with the additional particulars proposed to be added by the amendments, the requirements of Kirk would still not be satisfied. It is not necessary to rule on this. However, I note that, in my opinion, the question of adequacy of particulars in a case like this may need to be addressed having some awareness of the evidence that has been supplied to the defendant by the prosecution. It is true that the admissibility of evidence depends upon the terms of the charge and the particulars; but this may not necessarily preclude regard being had to the context provided by the evidence in order to assess whether the particulars are sufficient to inform a defendant of the case to be made out.
It may possibly be that Marks J was in error, therefore, in having no regard to the prosecution's initiating affidavits; but such an error would not in my view be a jurisdictional error or a denial of procedural fairness. In any event, to quash the decision of Marks J on that basis would not give the applicants any useful relief.
In my opinion, no jurisdictional error has been shown in the orders made by Haylen J, because even if there were deficiencies in the particulars, ss 11 and 16 of the CP Act have the result that the charges could go forward.
In my opinion, there was no jurisdictional error by Marks J, because even if the particulars were inadequate at that time further particulars could be given.
It may be that if it were shown to this Court that a prosecutor had steadfastly refused to supply necessary particulars and that the IRC would not require the prosecutor to do so, grounds for the exercise of supervisory jurisdiction could be made out, notwithstanding the restraint urged by cases such as Boral Gas NSW Pty Limited v Magill (1993) 32 NSWLR 501. It is not necessary to express a concluded view on this.
It is also not necessary to express any concluded view on whether this application is in any event precluded by s 179 of the IR Act , and whether any appeal was available from the decision of Marks J under either s 5AE or s 5F of the CA Act .
Conclusion
For those reasons, in my opinion, the summons was appropriately dismissed with costs.
BASTEN JA : The background to this matter has been set out by Hodgson JA and need not be repeated. The order of the Court, delivered at the conclusion of the hearing, was that the application should be dismissed with costs.
The application had three limbs. The first sought to set aside orders made by Haylen J on 17 April 2009, requiring the applicants to answer charges under the Occupational Health and Safety Act 2000 (NSW). The second sought to set aside "the judgment" of Marks J delivered on 19 November 2009: Inspector McGrath v GPI (General) Pty Ltd [2009] NSWIRComm 194. That would not have achieved any substantive result favourable to the applicant; the only orders made by his Honour were to dismiss motions filed by the applicants seeking to have the proceedings "quashed" or "permanently stayed", as they constituted an abuse of process. The third limb sought, "in the alternative" an order permanently staying the proceedings.
In support of the first order, the applicant called in aid the following statement in the joint judgment in Kirk v Industrial Court (NSW) [2010] HCA 1; 239 CLR 531 at [30]:
"No application was made to the Court of Appeal for an order in the nature of certiorari quashing the orders made by the Industrial Court that required Mr Kirk and the Kirk company to appear to answer the offences charged. ... 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 Summary Jurisdiction Act might affect the availability of an order in the nature of certiorari. However, it may be said that the matter should not have proceeded without further particularisation of the acts and omissions said to found the charges."
There are a number of aspects of Kirk which need to be borne in mind in applying its principles to the present circumstances.
First, the offences considered in Kirk arose under the predecessor to the Occupational Health and Safety Act 2000 . Secondly, although the procedural steps in respect of the laying of a charge were identified in s 168 of the Industrial Relations Act 1996 (NSW), which is still in force, the procedures were then found in the Supreme Court (Summary Jurisdiction) Act 1967 (NSW) ("the Summary Jurisdiction Act "), which has since been repealed and replaced by the Criminal Procedure Act 1986 (NSW), Ch 4, Pt 5. While there was provision in s 170 of the Industrial Act permitting amendments of proceedings, and dealing with irregularities, the provisions of the Summary Jurisdiction Act were said to prevail: s 168(4). Section 168 now has a different operation, which is by no means free from doubt. Thirdly, Kirk was not concerned with any interlocutory challenge to the procedure adopted in the Commission: it involved challenges to the convictions and sentences imposed when the charges were finally determined in the Industrial Court.
No doubt there are circumstances in which a procedure by which criminal proceedings are commenced may be challenged and set aside. However, Kirk says nothing as to when such steps will be taken. In particular, it does not say, as the applicant appeared to submit, that the failure adequately to particularise the charge as initially laid should necessarily lead to the charge being rejected or an order based upon it being set aside.
The starting point requires identification of the relevant statutory regime for prosecutions under the Occupational Health and Safety Act , as in force when the proceedings were commenced on 17 April 2009. Relevant provisions in Pt 7 of the Act provide that proceedings for an offence are to be dealt with summarily (s 105(1)), identify the persons authorised to prosecute (s 106) and fix the time for commencing proceedings (s 107). Relevantly for present purposes, s 105(1) provides that proceedings for an offence may be dealt with summarily before the Industrial Relations Commission in Court Session, known as the Industrial Court: Industrial Relations Act, s 151A.
Section 168 of the Industrial Relations Act supplies the relevant procedure:
" 168 Criminal procedure
(1) Proceedings for any offence in respect of which proceedings are taken before the Commission in Court Session are to be dealt with summarily by the Commission.
(2) Part 5 of Chapter 4 of the Criminal Procedure Act 1986 applies to proceedings for an offence taken before the Commission in Court Session.
(3) Nothing in subsection (2) affects the operation of section 170.
(4) The provisions applied by this section prevail over any other provisions of this Part for the purposes of proceedings for an offence."Section 170 of the Industrial Relations Act , which appears in the same Part as s 168, is important for present purposes:
" 170 Amendments and irregularities
(1) The Commission may, in any proceedings before it, make any amendments to the proceedings that the Commission considers to be necessary in the interests of justice.
(2) Any such amendment may be made:
(a) at any stage of the proceedings, and
(b) on such terms as the Commission thinks fit (including, if it can award costs in the proceedings, terms as to costs).(3) If this Act, the regulations or a rule of the Commission is not complied with in relation to the institution or conduct of proceedings before the Commission, the failure to comply is to be treated as an irregularity and does not nullify the proceedings, any step taken in the proceedings, or any decision in the proceedings.
(4) For the purposes of subsection (3), the Commission may wholly or partly set aside the proceedings, a step taken in the proceedings, or a decision in the proceedings."
To understand the inter-relationship of these two provisions, it is necessary to determine the order in which the subsections of s 168 operate. In the order they appear, taking sub-s (3) before sub-s (4), so far as the procedures in the Criminal Procedure Act are picked up and applied to the Industrial Court, those procedures will prevail to the extent that they are inconsistent with s 170. Thus, because there is no inconsistent provision picked up by sub-s (2), there is nothing which can prevail over s 170, pursuant to sub-s 168 (4).
There is a further question of construction which arises from the "irregularity" provision in s 170(3). In its terms, it only operates (relevantly) in respect of failure to comply with the Industrial Relations Act : there is no reference to non-compliance with other legislation, such as the Criminal Procedure Act . The question is, therefore, whether the Criminal Procedure Act , so far as picked up by s 168(2), is to be treated as part of "this Act" for the purposes of s 170(3).
Whether that is so need not be finally determined, because the only part of the Criminal Procedure Act picked up by s 168, Pt 5 of Ch 4, contains no provisions in respect of amendment or irregularity. Indeed, the only relevant provision for present purposes is the requirement that an application for an order that a person appear to answer an offence charged "must be in accordance with the rules": s 246(2). According to the definition in s 3(1), " rules means rules made for the purposes of a court to which the relevant provisions applies". This Court was not taken to the Industrial Relations Commission Rules in operation at the date of commencement of the proceedings, namely 17 April 2009. Nor was it alleged that there was any non-compliance with any particular rule. Accordingly, the only basis upon which "jurisdictional error" could be asserted was a failure to comply with s 246(1)(a) of the Criminal Procedure Act (set out at [12] above), namely that the order sought by the prosecutor failed to charge an "offence".
In the alternative, it is possible that reference was intended to be made to the Industrial Relations Commission Rules 1996, which were repealed only on 1 February 2010. Before Marks J, reliance appears to have been placed upon r 217B, which relevantly provided as follows:
" 217B Prosecutions
(1) Proceedings before the Commission in Court Session for an offence ... must, unless otherwise provided, be commenced by an application for an order under section 4(1) of the Supreme Court (Summary Jurisdiction) Act 1967 (as applied to the Commission by section 168 of the Industrial Relations Act 1996 ).
(2) The application must state:
...
(d) the Act and the section under which the defendant is alleged to have committed an offence, and
(e) the nature of the offence that is alleged."By April 2009, the Industrial Relations Act , s 168, had already been amended to refer to the Criminal Procedure Act , rather than the Summary Jurisdiction Act . Not having been advised of the amendment, Marks J thought it was necessary to construe s 168 of the Industrial Relations Act to refer to the Criminal Procedure Act and that s 68 of the Interpretation Act 1987 (NSW) permitted that to be done: [2009] NSWIRComm 194 at [10]. Whilst that was not necessary in relation to the Industrial Relations Act , there is a question as to whether the same course should be taken in relation to the rules. Section 68 of the Interpretation Act relevantly provides:
" 68 References to amended Acts and instruments
...
(3) Notwithstanding subsection (1), in any Act or instrument:(a) a reference to an Act that has been repealed and re-enacted, with or without modification, extends to the re-enacted Act, as in force for the time being ...."
The rules undoubtedly constitute an "instrument" for the purposes of this provision. Whether or not it is appropriate to describe the Summary Jurisdiction Act as having been "re-enacted' in Ch 4, Pt 5 of the Criminal Procedure Act was not raised in the present proceedings, but it may be assumed that the section operates. Accordingly, r 217B applied at the time the proceedings in the Industrial Court commenced. It followed that the application was required to state "the nature of the offence" alleged. Whether that imposed a greater obligation than that implicit in s 246(1)(a) of the Criminal Procedure Act may be doubted. No discussion was directed to this issue on the hearing of the application.
The manner in which the relevant offences were identified in the applications for orders, as originally filed, appears at [14] above. The applications were supported by affidavits in support which identified, in some detail, the factual circumstances which were said to give rise to the offences. In some circumstances, an offence may be particularised by way of an affidavit: that was not, as it appears, the way in which the affidavits were relied upon in the present case. Indeed, it was the defendants who sought to rely upon the affidavits, and not the prosecutor. The argument that the affidavits restricted the scope of available particulars was addressed by Marks J at [14]-[18] and does not bear on the issues raised in this Court.
The second complaint before Marks J, which was reiterated in this Court, was that the application failed adequately to particularise the acts or omissions constituting the relevant offences. There was, the applicants contended, a failure to "identify an essential factual ingredient of the actual offence", a phrase derived from the judgments of the High Court in John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42; 163 CLR 508. (It will be necessary to return to this decision below.)
In the course of addressing this question, Marks J referred to sections of the Criminal Procedure Act , including s 11 (description of offences), s 16 (certain defects do not affect indictment) and s 15 (dealing with the application of the Part). His Honour considered (at [34]-[35]) that Part 2 (ss 15-27) applied, in its own terms, to proceedings for offences in the Industrial Court: see s 15(1). Those provisions did not apply by virtue of s 168 of the Industrial Relations Act and, therefore, there is an issue, not addressed before his Honour or in this Court, as to whether and to what extent those provisions were consistent with s 170 of the Industrial Relations Act .
At [44] Marks J, having set out the particulars contained in the applications, stated:
"44 Without descending to any greater level of examination, it may be immediately observed that each and every ingredient of the offence created by the provisions of s 10(1) has been included in the charge and in the particulars of the charge. There is no essential ingredient that has been omitted, nor did the defendants contend otherwise.
45 The only question for determination is whether or not all of the 'essential factual ingredients of the actual offence' have been sufficiently identified."
The substance of the complaint, both before Marks J and in this Court, was that the complaints with respect to the use and operation of fork lift vehicles at the premises, whilst complaining that people were put "at risk of injury", failed to specify the precise nature of the risk and, to the extent that they alleged a failure to provide and maintain a safe system of work, failed to particularise that which was required in order to provide a safe system of work. (Similar complaints were made of other elements of the charges.)
The challenge having been argued before the decision of the High Court in Kirk , the applicants had sought to rely upon remarks made in my judgment in this Court in Kirk Group Holdings Pty Ltd v WorkCover Authority (NSW) [2006] NSWCA 172; 66 NSWLR 151 at [100]-[102], including a passage at [101]:
"To speak of a failure to provide 'systems of work' that were safe and without risks to health is of no assistance in identifying particular actions which should have been taken and were not. ... The failure to identify the relevant omissions with precision is likely to be of particular importance in circumstances where ... the opportunity for a defendant to escape conviction will be largely dependent upon establishing a defence under s 53 of the Occupational Health and Safety Act 1983 , which, at least in part, required the identification of steps which might have been taken in order to comply with the absolute obligation, but are said not to be reasonably practicable."
Marks J did not dissent from those observations, but noted that there was a distinction between "the essential ingredients of the offence and the essential factual ingredients which apply to the charge [and] a consideration of what are appropriate particulars that a prosecutor might properly be required to disclose to a defendant": at [48].
The comments in Kirk were not part of the ratio of the decision, it being determined that the supervisory jurisdiction of this Court should not be exercised until the Full Bench of the Industrial Court had been given an opportunity to address the issues raised: at [150]-[156]. Nevertheless, it is troubling that those comments, made with the agreement of Beazley JA, were apparently disregarded by the WorkCover Authority in April 2009, in formulating the charges in the present case, although the relevant judgment in Kirk had been delivered on 30 June 2006.
These concerns were central to the reasoning of the High Court in Kirk . For example, the joint judgment stated at:
"16 ... Where reliance is placed by the employer on s 53(a), it would be necessary for the employer to satisfy the Industrial Court, to the civil standard of proof, that it was not reasonably practicable to take the measure in question. Such a defence can only address particular measures identified as necessary to have been taken in the statement of offence.
17 Section 53(a), in the context of proceedings for offences against ss 15 and 16, referred to the situation where it is not reasonably practicable for an employer to comply 'with the provision of this Act'. It is not to be understood as requiring an employer to negative the general provisions of ss 15 and 16 and to establish that every possible risk was obviated. It requires that regard be had to the breach of the provision which it is alleged constituted the offences. A breach or contravention of s 15 or s 16 is the measure not taken, the act or omission of the employer."
The assumption of the applicants was that the reasoning of the High Court in Kirk had effectively elevated the specified requirements, missing from the present particulars, into essential elements of the offence charged. That may be accepted, but it does not follow that the omissions cannot be rectified in this case, or that Marks J was incorrect in rejecting the challenge to the proceedings as they stood before him. In concluding that the concerns raised did not "go to the validity of the charge", his Honour also noted that "there may well be a need for greater particularity, as was conceded by counsel for the prosecutor": at [59]-[60].
The application to particularise in further detail was not filed until 6 May 2010, three months after the judgment of the High Court in Kirk . The delay was not sought to be justified, despite the fact that it would clearly be inappropriate for a prosecuting authority to decline to follow guidance given by this Court for four years, in the hope that the High Court might give other guidance, more favourable from its perspective.
On the other hand, the applicants commenced proceedings in this Court one month after the application had been made to amend, with the result that that application has not been considered by the Industrial Court. Accordingly, the application in this Court must be addressed on the basis that if particulars adequate to comply with the requirements identified by the High Court in Kirk were given, they could not save the present proceedings from invalidity. It is necessary to consider what the result would be of the application of the relevant provisions of the Criminal Procedure Act and s 170 of the Industrial Relations Act .
Before undertaking that task, it is convenient to identify that aspect of "jurisdictional error" which may be relied upon by the applicants. Reference to "the supervisory jurisdiction" tends to obscure an important distinction between separate functions exercised by the Court, albeit in each case in its original, and not its appellate, jurisdiction. Review for "jurisdictional error" frequently involves the identification of a decision of the court or tribunal under review and a claim for relief in the nature of certiorari, quashing or setting aside that decision. That step will require identification of an operative decision affecting the rights or interests of a party: interlocutory, procedural orders may not qualify.
The second function involves this Court reaching a decision itself as to whether the court or tribunal has jurisdiction to deal with a particular matter. That may occur before any decision has been made which might be reviewed. The usual form of relief in such a case will be a restraining order in the nature of prohibition, or an injunction. Except in unusual circumstances, such relief will not be granted in respect of proceedings in a court which has power to determine its own jurisdiction. Where the court below has not been given an opportunity to decide the issue as to its jurisdiction, relief may well be refused as premature. A different approach was taken in relation to proceedings in the Industrial Court when a strong privative clause appeared to preclude any form of review of a decision, once made: see, eg, Solution 6 Holdings Ltd v Industrial Relations Commission of NSW [2004] NSWCA 200; 60 NSWLR 558. That departure from usual principles of restraint, as appears from the reasoning of the High Court in Kirk, was based on an erroneous assumption as to the legislative power of the State to prevent review for jurisdictional error.
The only operative orders, those of Haylen J, were made ex parte. The present proceedings are not directed so much to discerning "error" on his Honour's part, but invited this Court to determine on its own view that the orders made exceeded the jurisdiction of the Industrial Court. That exercise is available in principle.
It may be accepted that convictions based on the charges as set out in the orders of Haylen J (and as currently particularised) would be invalid, in accordance with the principles established in Kirk in the High Court. Accepting that the Industrial Court could not validly proceed to convict without further particulars, the applicant invites this Court to proceed on the basis that particulars adequate to comply with Kirk could not save the proceedings, despite the powers of the prosecutor to "amend" the charges at any stage, pursuant to s 170 of the Industrial Relations Act . The applicants' argument must be that, because the statutory time limit precludes the prosecutor filing fresh charges, the power of amendment does not extend to the addition of essential factual allegations.
The only authority relied on by the applicant in support of its claims was John L (above at [62]). However, this case was decided by the majority on the basis that there was no statutory or general power to amend the charge, or require the supply of necessary particulars. Thus Mason CJ, Deane and Dawson JJ stated (pp 519-520):
"The traditional function of an information was to found jurisdiction to deal with an alleged offence. Disregarding the effect of statutory provisions curing or precluding reliance upon a defect, the old authorities established that an information should be quashed as insufficient in law and invalid if it failed to inform the justices before whom it was laid of the nature of the offence and the manner in which it had been committed. ... The nineteenth century United Kingdom legislation which was enacted to render summary proceedings before justices less open to technical objection ... was substantially adopted in New South Wales: see the discussion in Ex parte Lovell; Re Buckley [(1938) 38 SR(NSW) 153 at 167-174] .... 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 of the Summary Jurisdiction Act ..., it is not suggested that Yeldham J was in error in holding that such of those legislative provisions which might have operated to cure the defect in the information in the present case were not applicable in respect of an information laid before, or to proceedings in, the Supreme Court in its summary jurisdiction. That being so, the common law requirement remains that an information must at the least condescend to identifying the essential factual ingredients of the actual offence."
Section 6 of the Summary Jurisdiction Act , now repealed, is reflected in s 16 of the Criminal Procedure Act . However, the majority held that it did not apply to proceedings commenced under the Consumer Protection Act 1969 (NSW), with which their Honours were there dealing. Brennan J dissented because he held that s 6 could apply. Toohey J also dissented, on the basis that whether or not s 6 operated, particulars could have been supplied under general law principles. Brennan J agreed with that view and continued (p 529-530):
"But in any event, s 6(1) of the Summary Jurisdiction Act is conclusive. That sub-section operates not to deem defective applications to be sufficient, but to avoid the consequences of defects in applications."
Once it is understood that the majority in John L expressly determined that case without reference to the statutory curative provisions, which operate in the present case, it is apparent that John L does not govern the present proceedings. Its operation in relation to prosecutions in the Industrial Court was discussed in Rockdale Beef Pty Ltd v Industrial Relations Commission (NSW) [2007] NSWCA 128; 165 IR 7 at [110]-[123]. See also Knaggs v Director of Public Prosecutions [2007] NSWCA 83; 170 A Crim R 366 at [82] (Campbell JA, Mason P and Tobias JA agreeing).
In circumstances where no irreparable procedural unfairness has been suffered by the applicants (they not having faced trial or yet pleaded to the charges) and where that which constitutes an essential factual allegation, as opposed to a desirable degree of particularisation of facts alleged, is a distinction involving matters of evaluative judgment, the contention should be rejected. The underlying and important premise of criminal pleading is that no person should be convicted without procedural fairness, nor for an offence not known to the law. Neither principle will necessarily be breached: the orders by which the proceedings were commenced were not invalid.
If this conclusion were wrong, the validity of criminal proceedings would be at risk of being returned to pre-Jervis's Acts technicalities, despite the clear intention of s 16 of the Criminal Procedure Act . It may be noted that the principal mischief to which Jervis's Acts were devoted was not the inadequate commencement of proceedings, but convictions based on technical irregularities.
It must also be noted that not all the arguments addressed above were raised, or at least raised in those terms, by the applicant. However, one lesson from Kirk is that this Court may be obliged to consider arguments going to the jurisdiction of a court subject to jurisdictional limitations, even if those matters were not raised by either party before it.
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Amendments
30 Jun 2011 "Jarvis" amended to "Jervis". Paragraphs: 81
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