Greater Shepparton CC v Jones (Victorian WorkCover Authority)
[2024] VSC 282
•4 June 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2023 04047
BETWEEN:
| GREATER SHEPPARTON CITY COUNCIL | Plaintiff |
| and | |
| MAGISTRATES’ COURT OF VICTORIA | First Defendant |
| RHYS HOWELL JONES (VICTORIAN WORKCOVER AUTHORITY) | Second Defendant |
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JUDGE: | Watson J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 16 May 2024 |
DATE OF JUDGMENT: | 4 June 2024 |
CASE MAY BE CITED AS: | Greater Shepparton CC v Jones (Victorian WorkCover Authority) & Anor |
MEDIUM NEUTRAL CITATION: | [2024] VSC 282 |
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OCCUPATIONAL HEALTH AND SAFETY – Plaintiff charged with offence under s 23(1) Occupational Health and Safety Act 2004 (Vic) – Magistrate rejected application to strike out charge – Judicial review of decision of Magistrate – Whether charge was valid – Whether, if invalid, charge was capable of amendment – Charge was valid – Appeal dismissed – Kirk v Industrial Court (NSW) (2010) 239 CLR 531; Baiada Poultry v Victorian WorkCover Authority (2015) 257 IR 204; Criminal Procedure Act 2009 (Vic) s 8(4).
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms C Currie | Maddocks |
| For the First Defendant | No appearance | |
| For the Second Defendant | Ms J Gullaci SC | Victorian WorkCover Authority |
HIS HONOUR:
On 7 February 2022, the second defendant, Mr Jones, charged Greater Shepparton City Council (‘GSCC’) with an offence under s 23(1) of the Occupational Health and Safety Act 2004 (Vic) (‘the Act’). GSCC applied to the Magistrates’ Court to have the charge struck out because it was deficient and could not be cured by amendment. On 2 August 2023, the Magistrates’ Court rejected GSCC’s application and found that the charge was valid. GSCC now seeks to quash the Magistrates’ Court decision together with various consequential orders, including an order dismissing the charge and the proceedings below.
For the reasons that follow, I agree with the Magistrate that the charge was valid and so would dismiss GSCC’s application.
The charge
Section 23(1) of the Act provides as follows:
23 Duties of employers to other persons
(1)An employer must ensure, so far as is reasonably practicable, that persons other than employees of the employer are not exposed to risks to their health or safety arising from the conduct of the undertaking of the employer.
The charge is as follows:
Charge 1
On or about 10 February 2020 at Shepparton in the State of Victoria, pursuant to section 23(1) of the Occupational Health and Safety Act 2004, you were guilty of an offence in that, as an employer, you failed to ensure, so far as was reasonably practicable, that persons other than your employees were not exposed to risks to their health or safety arising from the conduct of your undertaking.
PARTICULARS
1. Greater Shepparton City Council (ABN 59 835 329 843) (GSCC) was at all material times, a body corporate within the meaning of the Occupational Health and Safety Act 2004 (the Act).
2. At all material times GSCC:
a. operated premises at 315 Doyles Road Shepparton in the State of Victoria, known as the Doyles Road Complex (DRC) at which kettles storing bitumen were situated; and
b. was an employer within the meaning of the Act employing persons including Rex Lodding.
3. On 10 February 2020 at the DRC:
a. GSCC had a site rule prohibiting the use of sources of ignition within 15 metres of vehicles filling or circulating bitumen;
b. Mr Allen Barry (Mr Barry), a person employed by Willow's Bitumen Haulage Pty Ltd, delivered Hot Bitumen Product (HBP);
c. The HBP in Mr Barry's tanker was heated to a temperature of approximately 195 degrees;
d. Pipework was connected to Mr Barry's vehicle to transfer HBP from the tanker to GSCC's kettle;
e. Mr Barry used kerosene to aid in flushing the pipework during the delivery of the HBP; and
f. Mr Barry subsequently used a propane gas torch, a source of ignition, to heat pipework connected to his vehicle, during attempts to remove a blockage caused by a 'slug' of bitumen stuck in the pipework.
4. By reason of the matters referred to in Particular 3, there was a risk of injury to Mr Barry in the event that the HBP or kerosene product ignited.
5. GSCC failed, so far as was reasonably practicable, to ensure that persons other than employees were not exposed to risks to their health and safety, arising from GSCC's undertaking as an employer, associated with the risks of ignition.
6. It was reasonably practicable for GSCC to, in the event of a blockage in the pipework, to reduce the risk to health and safety, by ensuring that a gas torch was not used to melt a slug in pipework when:
a. the pipe was connected to a bulk vessel; or
b. the vehicle was in the bitumen transfer area of the DRC.
7. On 10 February 2020:
a. GSCC failed to implement the above risk control measures;
b. Persons other than GSCC employees, such as Mr Barry, were undertaking the task; and
c. The risk eventuated when Mr Barry used the propane gas torch.
8. Persons exposed to risks to their health and safety by GSCC's undertaking include, but are not limited to, Mr Barry.
Why does GSCC say the charge is deficient?
GSCC says the charge is deficient because:
(a) it is an essential element of the offence under s 23(1) of the Act that the charge specify reasonably practicable measures by which GSCC could have ensured that persons other than employees were not exposed to risks to their health and safety;
(b) a charge which only specifies a failure to ensure an outcome is not sufficient; and
(c) the charge did not describe reasonably practicable measures but only outcomes.
In the event that the Court were to find that the charge was deficient, GSCC argues that it could not be amended in accordance with s 8 of the Criminal Procedure Act 2009 (Vic) (‘CPA’). GSCC accepts that a charge which is deficient because it fails to satisfy sch 1 cl 1 of the CPA can be amended after the expiry of the limitation period (as is the case here) but says that the charge would not satisfy the requirements of s 8(4)(a) of the CPA because the charge-sheet did not sufficiently disclose ‘the nature of the offence’ with which GSCC was charged.
Relevant law
GSCC’s argument rests essentially on its contention regarding the effect of two authorities:
(a) Kirk v Industrial Court (NSW) (‘Kirk’);[1] and
(b) Baiada Poultry v Victorian WorkCover Authority (‘Baiada v VWA’).[2]
[1](2010) 239 CLR 531 (‘Kirk’).
[2](2015) 257 IR 204 (‘Baiada v VWA’).
In Kirk, the appellants (‘the Kirk parties’) had been charged and convicted by the Industrial Court (New South Wales) of offences against ss 15 and 16 of the Occupational Health and Safety Act 1983 (NSW) (‘OH&S Act (NSW)’).
Section 15 of the OH&S Act (NSW) provided:
(1)Every employer shall ensure the health, safety and welfare at work of all the employer’s employees.
(2)Without prejudice to the generality of subsection (1), an employer contravenes that subsection if the employer fails:
(a)to provide or maintain the plant and systems of work that are safe and without risks to health,
(b)to make arrangements for ensuring safety and absence of risks to health in connection with the use, handling, storage or transport of plant and substances,
(c)to provide such information, instruction, training and supervision as may be necessary to ensure the health and safety at work of the employer’s employees,
(d) as regards any place of work under the employer’s control:
(i)to maintain it in a condition that is safe and without risks to health, or
(ii)to provide or maintain means of access to and egress from it that are safe and without any such risks,
(e)to provide or maintain a working environment for the employer’s employees that is safe and without risks to health and adequate as regards facilities for their welfare at work, or
(f)to take such steps as are necessary to make available in connection with the use of any plant or substance at the place of work adequate information:
(i)about the use for which the plant is designed and about any conditions necessary to ensure that, when put to that use, the plant will be safe and without risks to health, or
(ii)about any research, or the results of any relevant tests which have been carried out, on or in connection with the substance and about any conditions necessary to ensure that the substance will be safe and without risk to health when properly used.
Section 16(1) of the OH&S Act (NSW) provided as follows:
(1)Every employer shall ensure that persons not in the employer’s employment 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.
The Kirk parties were charged with offences against ss 15(1) and 16(1) of the OH&S Act (NSW).
The offence against s15(1) of the OH&S Act (NSW) was described as follows:
That the Defendant, on 28 March 2001, at ‘Mount Hercules Farm’ … a workplace operated by the Defendant failed to ensure the health, safety and welfare at work of its employees, … , contrary to section 15(1) [of the OH&S Act (NSW)].[3]
[3]Kirk, 556 [22] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
The offence against s 15(1) of the OH&S Act (NSW) was accompanied by the following particulars:
The particulars of the offence is that the Defendant failed to:
(i)provide or maintain systems of work that were safe and without risks to health in relation to the operation of the Polaris All Terrain Vehicle (ATV);
(ii)provide such information, instructions, training and supervision as may be necessary to ensure the health and safety at work of its employees in relation to the operation of the Polaris All Terrain Vehicle (ATV);
(iii)to take such steps as are necessary to make available in connection with the use of any plant (namely the ATV) at the place of work adequate information about the use for which the plant is designed and about any conditions necessary to ensure that, when put to use, the plant is safe and without risks to health;
(iv)ensure that the Polaris All Terrain Vehicle (ATV) was only operated by persons with appropriate training;
(v)adequately identify, assess and control risks and hazards in relation to the operation of the ATV on the farm.[4]
[4]Kirk, 556 [22].
The charge for the offence against s 16(1) of the OH&S Act (NSW) read:
That the Defendant, being an employer, on 28 March 2001, at ‘Mount Hercules Farm’ … a workplace operated by the Defendant failed to ensure that non-employees … were not exposed to risk of injury arising from the conduct of its undertaking while they were at ‘Mount Hercules Farm’, contrary to section 16(1) [of the OH&S Act (NSW)].[5]
[5]Kirk, 556 [23].
The particulars of the offence against s 16(1) were as follows:
The particulars of the charge are that the Defendant failed to:
(i)ensure that persons not in the employer’s employment were 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 in relation to the operation of the Polaris All Terrain Vehicle (ATV);
(ii)ensure that the Polaris All Terrain Vehicle (ATV) was only operated by persons with appropriate training; and
(iii)adequately identify, assess and control risks and hazards in relation to the operation of the ATV on the farm.[6]
[6]Kirk, 556 [23].
The plurality in the High Court emphasised that it was necessary to specify the measures which should have been taken by an employer in the statement of an offence:
A statement of an offence must identify the act or omission said to constitute a contravention of s 15 or s 16. It may be expected that in many instances the specification of the measure which should have been or should be taken will itself identify the risk which is being addressed. … But it is the measures which assume importance to any charges brought. Sections 15 and 16 are contravened where there has been a failure, on the part of the employer, to take particular measures to prevent an identifiable risk eventuating. That is the relevant act or omission which gives rise to the offence.[7]
[7]Kirk, 553 [14].
The High Court quashed the convictions of the Kirk parties because it said that the charges as particularised did not identify what measures could have been taken to ensure health and safety. In that context, the plurality said of the charges:
They do not identify an act or omission which constitutes a contravention of ss 15(1) and 16(1). The first particular of the s 15(1) offence suggests that the Kirk company had some systems relating to the operation of the ATV in place, but that they were not sufficient. It does not identify the deficiency in the system or the measures which should have been taken to address it. The second particular does not identify what information, instruction or training was necessary to be given to Mr Palmer or the other employee of the Kirk company. The particulars of the s 16(1) offence say nothing about what should have been done to avoid exposing the contractors to risk to their health and safety from the use of the ATV. Needless to say, the appellants could not have known what measures they were required to prove were not reasonably practicable.[8]
[8]Kirk, 558 [28].
In Baiada v VWA, the appellant (‘Baiada’) was charged in the following terms:
On 12 August 2010 at [workplace] pursuant to section [26(1)] of the Occupational Health and Safety Act 2004 you were guilty of an offence in that as a person who had, to any extent, the management or control of a workplace you failed to ensure, so far as was reasonably practicable, that the workplace and the means of entering and leaving it were safe and without risks to health.
Particulars:
(a)[Baiada] failed to ensure that an adequate system was in place that ensured that when persons including [deceased] were cleaning the chicken processing chain line including associated sprockets, shackles and wash boxes, the chicken processing chain line was not operating.
(b)[Baiada] failed to ensure that an adequate system was in place that prevented persons including [deceased], coming in contact with the chicken processing chain line including associated sprockets, shackles and wash boxes, when it was being cleaned.[9]
[9]Baiada v VWA, 207 [4] (Ferguson and McLeish JJA).
The relevant section under which Baiada was charged read as follows:
A person who (whether as an owner or otherwise) has, to any extent, the management or control of a workplace must ensure so far as is reasonably practicable that the workplace and the means of entering and leaving it are safe and without risks to health.[10]
[10]Baiada v VWA, 208 [7].
Baiada argued that the charge was invalid because it ‘prescribed a result rather than specifying what steps or measures should have been taken by it’.[11]
[11]Baiada v VWA, 218 [46].
The Court of Appeal upheld the charge (Ferguson and McLeish JJA; Robson AJA dissenting).
In the majority judgment of Ferguson and McLeish JJA, they state:
It is plain that a charge under s 26(1) of the OHS Act must identify the act or omission which constitutes a contravention of the section. In our opinion, the reasoning in Kirk does not support the proposition that this requires specification of the detailed actions which it was reasonably practicable for the defendant to take. Kirk concerned a trial that had been heard and determined on the basis of charges which were particularised almost entirely in terms of the words of the statute, in circumstances where the onus of proof on the question of reasonable practicability lay on the defendant. Such particulars, as well as failing to inform the defendant of the substance of the charge, amounted in effect to little more than a statement of the statutory offence.
References in the plurality’s judgment to ‘particular measures’ need to be read in that light. The fundamental requirement is that the act or omission that constituted the contravention be specified. Analysis of a failure to do so in terms of the need to specify a ‘measure’ or a ‘particular measure’ does not say anything as to the degree of particularity required. It serves, instead, to emphasize what is the relevant act or omission which gives rise to the offence, namely the measure or measures which the defendant has failed to take to prevent an identifiable risk eventuating. The convictions in Kirk stemmed from charges which wholly failed to identify any such measure. That sufficed to require the convictions to be set aside. Baiada’s submissions sought to attribute too much significance to the plurality’s use of the word ‘measure’.
Equally, to characterize the act or omission constituting the offence as a ‘measure’ does not deny the possibility, in an appropriate case, of specifying the act or omission by reference to a standard described as ‘adequate’. A failure to ensure an adequate system or step to achieve a particular outcome can also be described as a failure to have in place measures sufficient to achieve that outcome. If the outcome is sufficiently particularised, then it will be clear what was the act or omission alleged to constitute the offence. In contrast, if the specified outcome is no more than a recitation of the statute, as in Kirk, describing the required system or step as ‘adequate’ or ‘appropriate’ will add nothing.[12]
[12]Baiada v VWA, 219 [48]–[50].
The charge here is valid
In essence, GSCC sought to characterise the charge here as akin to the charge in Kirk and distinguish it from the charge in Baiada v VWA. Of course the charge here is expressed in language which is different in form to the charges in both of those cases.
The charge is not like the charge in Kirk.
First, the particulars do not simply recite the provisions of the statute – they specify a site rule, they specify a type of risk and they specify a measure to minimise or avoid that risk.
Secondly, I do not accept that it is correct to describe the charge as identifying only an ‘outcome’ rather than a ‘measure’. Had the charge simply described the consequence of applying the gas torch to the pipe, e.g. a fire or an explosion, that might sensibly have been described as an outcome but the charge does not do that. The particulars of the charge specify that GSCC had a site rule which prohibited the use of sources of ignition within 15 metres of vehicles filling or circulating bitumen. Paragraph 4 identifies the risk of injury should hot bitumen product or kerosene ignite. Paragraph 6 alleges that it was reasonably practicable to reduce the risk of ignition by not using a gas torch in the event of a blockage to a pipe connecting Mr Barry’s vehicle to GSCC’s bitumen kettle. Even if one were focused on the distinction between outcomes and measures, it does not strain the language at all to describe the particulars in paragraph 6, when read in the context of the overall particulars, as describing a measure which could have been taken to avoid the risk.
Thirdly, and in any event, as the decision in Baiada v VWA makes clear, too much significance should not be placed on the use of the word ‘measure’ in the judgment of the plurality in Kirk. Even if the particulars in paragraph 6 were to be characterised as an ‘outcome’, the charge is sufficiently particularised that it is clear what was the act or omission alleged to constitute the offence.
GSCC emphasised that Mr Barry was a contractor and says in that circumstance the charge is deficient because it does not specify whether the informant is alleging for example, that GSCC should have put up signage regarding the use of ignition sources near vehicles or should have provided site induction training or should have had an onsite employee supervising Mr Barry whilst he worked. I do not regard either Kirk or Baiada v VWA as standing for the proposition that the charge has to descend to that level of detail, spelling out the specific detailed implementation steps necessary to give effect to the ‘measure’. In Baiada v VWA there might have been various ways in which the employer might have implemented an adequate system but it was enough that the charge alleged the failure to have one.
That is not to say that here, as in Baiada v VWA, before a hearing it will not be incumbent upon the informant to provide greater particularity of the manner in which the GSCC is said to have contravened the statutory provision, but the particulars which have been supplied are enough to ensure that the charge is not deficient in the way in which the charge in Kirk was held to be deficient. Indeed, on a fair reading they give greater particularity of the offence and the ‘measures’ which GSCC should have taken than those in Baiada v VWA.
In these circumstances, GSCC’s application for certiorari and consequential orders should be dismissed.
Amending the charge
In the event that I had upheld GSCC’s argument that the charge was invalid, GSCC sought a declaration that the charge could not be amended because the statutory limitation period had expired and the requirements of s 8(4) of the CPA could not be met.
Section 8 of the CPA provides as follows:
8 Order for amendment of charge-sheet
(1)The Magistrates’ Court at any time may order that a charge-sheet be amended in any manner that the court thinks necessary, unless the required amendment cannot be made without injustice to the accused.
(2)If a charge-sheet is amended by order under this section, the charge-sheet is to be treated as having been filed in the amended form for the purposes of the hearing and all proceedings connected with the hearing.
(3)An amendment of a charge-sheet that has the effect of charging a new offence cannot be made after the expiry of the period, if any, within which a proceeding for the offence may be commenced.
(4)If a limitation period applies to the offence charged in the charge-sheet, the charge-sheet may be amended after the expiry of the limitation period if—
(a)the charge-sheet before the amendment sufficiently disclosed the nature of the offence; and
(b)the amendment does not amount to the commencement of a proceeding for a new offence; and
(c)the amendment will not cause injustice to the accused.
Mr Jones did not make a formal application for an amendment of the charge before the Magistrate but had foreshadowed that in the event that the Magistrate held that the charge was deficient he would seek an amendment in a particular form. The Magistrate indicated in her decision that whilst she had found that the charge was not deficient, had she been wrong, she would have allowed an amendment in the form which Mr Jones had indicated.
There not having been a formal application to amend the charges, there is some procedural difficulty associated with the notion that I should dismiss the charges based simply on my view as to whether or not the foreshadowed amendment would have been allowed. Recognising this difficulty, GSCC went further and alleged that the charge simply could not be amended at all because in its current form the charge-sheet did not sufficiently disclose the nature of the offence and so, the limitation period having expired, the requirements of s 8(4)(a) could not be met.
In light of my finding in relation to the validity of the charge, it is unnecessary to consider this issue but, for completeness, I indicate that I would not have accepted GSCC’s argument in this regard.
On this aspect of GSCC’s argument both parties agreed:
(a) that the relevant limitation period had expired prior to any putative amendment;
(b) that it is the ‘charge-sheet’ and not any other document or documents which must sufficiently disclose the offence in order for the requirement in s 8(4)(a) of the CPA to be met;[13] and
(c) that a charge-sheet which is deficient at common law may nonetheless sufficiently disclose the nature of the offence for the purposes of s 8(4)(a).[14]
[13]Fox v DPP (2022) 66 VR 223, 244 [73] (Kennedy, Walker, Whelan JJA).
[14]Ibid.
If, contrary to the views I have expressed above, I had held that the charge was deficient because it did not sufficiently indicate the reasonably practicable measures which might have been taken by GSCC to ameliorate the risk, I would nonetheless have found that, in the circumstances, the charge-sheet sufficiently disclosed the nature of the offence such that it was capable of amendment.
It is apparent that the particulars allege:
(a) the fact of a site rule prohibiting sources of ignition within 15 metres of vehicles filling or circulating bitumen;
(b) that there was a specific risk if hot bitumen product or kerosene ignited;
(c) that the specific risk could be reduced by ensuring a source of ignition being a gas torch was not used in circumstances where his vehicle was in the transfer area and a pipe was connected to his vehicle;
(d) that Mr Barry came on site; and
(e) that he applied a gas torch to a pipe that was connected to his vehicle.
In the circumstances, even if, as GSCC would contend, the charge was deficient for having failed to specify further matters, such as the training and supervision which should be given to contractors or the signage which should be placed at the site, it is my view that the nature of the offence is sufficiently specified in the charge-sheet such that it would be capable of amendment.
Conclusion
In light of my finding that the charge is not deficient in the way for which GSCC contends, the appropriate order is that its application be dismissed with costs.
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