John Holland Pty Ltd v Industrial Court of New South Wales & Anor [2011] HCATrans 95
[2011] HCATrans 95
[2011] HCATrans 095
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Sydney No S315 of 2010
B e t w e e n -
JOHN HOLLAND PTY LTD ACN 004 282 268
Applicant
and
INDUSTRIAL COURT OF NEW SOUTH WALES
First Respondent
INSPECTOR NATHAN HAMILTON
Second Respondent
Application for special leave to appeal
FRENCH CJ
GUMMOW J
CRENNAN J
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON FRIDAY, 8 APRIL 2011, AT 9.48 AM
Copyright in the High Court of Australia
MR G.J. HATCHER, SC: If it please the Court, I appear with my learned friend, MR G.W. McGRATH, SC, for the applicant. (instructed by Herbert Geer Lawyers)
MR J.V. AGIUS, SC: May it please the Court, I appear with my learned friend, MR B.G. DOCKING, for the second respondent. (instructed by Workcover Authority)
FRENCH CJ: Thank you. There is a submitting appearance for the first respondent. Yes, Mr Hatcher.
MR HATCHER: If it please the Court, this Court gave judgment in Kirk just over 12 months ago and in that case explained the way the nature of the offence created by section 8 of the Occupational Health and Safety Act 2000 (NSW). In short it found it was an act or omission offence as opposed to a state of affairs offence. The pleadings in this case had been filed by the prosecutor prior to the Court’s judgment, and it pleaded that the prohibited state of affairs existed and then particularised the way in which it said the state of affairs existed. Our client complained that no offence known to law was charged.
We were charged with failing to provide or to prevent a particular state of affairs and that the legislation, properly understood, did not prohibit the state of affairs but rather required our client to take specific measures to overcome identified risks. The matter went by way of a reference of questions of law to the Full Court of the Industrial Court of New South Wales, and that court found, and it might be said to be somewhat equivocal, but on our reading on what that Court found it appears to be that it was, on their understanding of this Court’s judgment in Kirk, that the offence was a state of affairs offence but it was necessary to prove an act or omission in order to establish the state of affairs.
CRENNAN J: In essence, they answered question 2 in a way which indicated their Honour’s view that the charges were valid.
MR HATCHER: Well, yes, your Honour.
CRENNAN J: Accordingly, jurisdiction was attracted.
MR HATCHER: Yes.
CRENNAN J: You seem to take from Kirk, and I am happy to be disabused of this if I have got it wrong, you seem to take from Kirk the statements that a statement of offence must identify the act or omission said the constitute the contravention of sections 8(1) and (2), as standing for the proposition that you cannot leave it to the particulars to deal with the detail of the acts or omissions, but in Kirk, it is quite clear that that statement of principle was always directed to charges which were particularised and what was found wanting in Kirk was the particulars. Have I got that right that you seem to have taken from Kirk that some statement of principle that really excludes the ability to particularise the acts or omissions?
MR HATCHER: Not at all, your Honour.
CRENNAN J: What do you take from Kirk?
MR HATCHER: What we take from Kirk is that the offence, properly understood, is by failing to take a specified measure the defendant has given rise to an identified risk. So the offence is not simply a failure to ensure the safety, health and welfare at work of the employee. One reads section 8 of the legislation with section 12, which provides that there must be an act or omission to give rise to ‑ ‑ ‑
CRENNAN J: Here you have got charges which follow the section and then give particulars in relation to the relevant charges.
MR HATCHER: They follow section 8, but not section 12, your Honour, they do not recognise that it is by act or omission that the state of affairs has arisen and what flows from that is we are faced with a pleading which rather than identifying the act or omission as the offence, and perhaps by virtue of section 31, to which we will come, dealing with more than act or omission in the one charge, it rather treats the state of affairs as the offence and so pleads a number of very different facts and circumstances which puts us back into the Johnson v Miller type of inquiry that Justice Evatt was concerned with.
CRENNAN J: Yes. That is the section 31 point.
MR HATCHER: Yes, your Honour, but it is more than the section 31 point in that it flows from a failure to appreciate what we are being charged with. What we are being charged with, that is, the offence is not the state of affairs but the act or omission which gives rise to the state of affairs. That is why we complain about the nature of the charge. The charge does not disclose the offence. In the same was as your Honour will recall in Walsh v Tattersall, there were a series of payments that were made and it was alleged in the charge that there were payments made and in the joint judgment it was pointed out the Act did not deal with payments but dealt with a payment.
CRENNAN J: Well, how do you say a Johnson v Miller point arises here?
MR HATCHER: Because, your Honour, rather than having a specific act or omission, a specified measure, identified risk, that we are to deal with we are faced with a number of disparate acts or omissions that inevitably result in an inquiry. Because the evidence is dictated by the particulars all evidence in relation to anything that can be said to have been raised in the course of those particulars must be admissible and so one ends up with, as in this case, 76 volumes of materials that the prosecutor says is relevant to the proceedings on what should be an inquiry into whether there was a specified measure that gave rise to identifiable risk, and what our client would say as to the practicability of putting that measure in place, something that would have, one might have though, would not result in 76 volumes of materials. That is the importance, in our submission, of identifying what is the offence that we are there to deal with, and then if it ‑ ‑ ‑
CRENNAN J: In the charge?
MR HATCHER: In the charge, and if it is, and we acknowledge that section 31 must have a role to play, and as I say, we want to address that, if there are to be multiple charges, they should be clearly identified as multiple charges. We should not be in the position where the Court of Appeal can say, well, we look at this bundle and we think that represents just one act or omission with a series of particulars, and then we look at this bundle and we cannot conveniently put them into one bundle so we will characterise them as separate acts or omissions.
CRENNAN J: Is it going to give rise to problems in respect of convictions at another Johnson v Miller point?
MR HATCHER: Yes, your Honour, particularly when one of the stand‑alone particulars in paragraph (c) is also said to be part of the cumulative particulars in paragraph (b), so we can be convicted of an offence by a particular arising.
FRENCH CJ: Is this necessarily a matter that goes to jurisdiction, or is it some other principle that makes the charge bad?
MR HATCHER: We say, your Honour, that the starting point is you have got to identify what the offence is, and ‑ ‑ ‑
FRENCH CJ: So you say the legal nature of the offence is disclosed?
MR HATCHER: Yes.
FRENCH CJ: Where do you go from there?
MR HATCHER: Once the legal nature of the offence is disclosed they have jurisdiction.
FRENCH CJ: They have got jurisdiction?
MR HATCHER: They have got jurisdiction.
FRENCH CJ: But let us say the factual elements are not disclosed and you are left guessing.
MR HATCHER: Yes.
FRENCH CJ: Or facing 76 volumes. What the legal principle that says the charges are bad?
MR HATCHER: We would concede if the charge is a charge known to law then the charge becomes defective rather than invalid, that is, the charge would afford jurisdiction.
CRENNAN J: Then it would be a matter for the trial judge to deal with issues of duplicity or whatever. Is your complaint really about the multiplicity of particulars?
MR HATCHER: It is the multiplicity of particulars that certainly gives rise to our complaint, but we say that the multiplicity arises from a failure to understand the offence. If the offence were properly understood one might then deal with the charges. Part of the difficulty is we have the Court of Appeal apparently understanding the correct legal nature of the offence - they say, it is the specified act that gives rise to identified risk that is the offence but they say it is sufficient that the particulars provide that detail, but if you have got a pleading that has been cast against a charge and then particularised you end up with particulars of the state of affairs rather than the particulars of the acts or omissions that are said to give rise to the state of affairs. You inevitably end up in this, if we might be permitted to say, moras that our client finds itself.
GUMMOW J: Did the Court of Appeal enter upon this question the Chief Justice was raising with you about jurisdictional error? It is pretty critical.
MR HATCHER: The Court of Appeal found that there was no jurisdictional error because it was sufficient that the offence was disclosed in the particulars.
GUMMOW J: Where do they say that?
MR AGIUS: Application book 45 at paragraph 72, I think.
MR HATCHER: I think that is in the Industrial Court judgment.
MR AGIUS: It is.
CRENNAN J: It is at 111 paragraph 73 onwards, I think.
MR HATCHER: I am indebted to your Honour.
CRENNAN J: Paragraph 74 seems to pick up the way in which the argument was put.
MR HATCHER: Yes, 75 is a different point.
FRENCH CJ: You are saying you are having an array of disparate matters thrown up at you in the particulars, one of which could constitute an offence, if made out, when read together with the chapeau?
MR HATCHER: Yes.
FRENCH CJ: Is that a matter that goes to jurisdiction or is that just a matter of procedural fairness which invokes common law principles?
MR HATCHER: Multiplicity of – or even vexatious particulars is not a matter of jurisdiction.
FRENCH CJ: Yes. I am just trying to pin down precisely what the point is that you are taking when I look at the grounds in the draft notice of appeal which do seem to be directed to jurisdiction. This is 134 and 135. There is jurisdiction and there jurisdictional error.
MR HATCHER: Yes. Well the point that we are picking up is that we say that the charge must identify an offence known to law, that is, what you are called upon to answer must identify the offence, and the offence ‑ ‑ ‑
FRENCH CJ: You are talking in 3(b) about “jurisdictional error in the charge”. What does that mean?
MR HATCHER: In that the charge does not disclose an offence known to law, your Honour. We accept that the charge can identify the offence in shorthand terms. The difficulty is it must identify the offence and if it simply alleges a state of affairs it is not identifying the offence.
FRENCH CJ: When you say identifies a state of affairs - let me just pin that down a little more, if one goes to the charge in Annexure A:
FAILED TO ensure the health, safety and welfare at work of all its employees . . . contrary to –
There is a date range in the earlier part of the charge. We are not talking about a state of affairs there are we?
MR HATCHER: We are, with respect your Honour, because what they are saying is during that date range we failed to ensure ‑ ‑ ‑
FRENCH CJ: You failed to do certain things. There is some kind of unspecified omission.
MR HATCHER: All that is alleged is we failed to ensure that these people were safe. It is not an unspecified omission, your Honour, it is an allegation that the state of affairs did not exist. We had not ensured that that state of affairs did not exist. It is important in a number of respects, not least of which is the Act says that time commences to run from the date of the act or omission. If the offence is that as charged, that is the failure to ensure the safety, health and welfare at work of the employees, then the offence runs from the time that the risk arises, whereas, if it is the act or omission, that is, the failure to adopt to a specified measure, the time must commence to run from the time that specified measure has failed.
If it was something like a design, a poor design, if the failure is in the design, it is a failure from some time ago, I may well be out of time. Your Honour, we say it is that confusion as to the offence which gives rise to the difficulties we identify in the charge that we face with this multiplicity. It could hardly be said to be precise.
CRENNAN J: But the multiplicity is in the particulars.
MR HATCHER: Because, your Honour, they are particularising what gave rise to the state of affairs rather than identifying acts or omissions.
CRENNAN J: They could be amended of course.
MR HATCHER: If there is a valid charge to commence with. That is the question, your Honour.
CRENNAN J: Yes.
MR HATCHER: Certainly, if it is just a multiplicity of particulars problem, they can be amended, we accept that. The question is, is there a valid charge to start with? If there is no valid charge, jurisdiction is not enlivened, and it cannot be amended. Can I deal then with the section 31 point. In our respectful submission, both the Industrial Court and the Court of Appeal have read section 31, which is the section - and there are equivalent provisions. There is section 29 of the Criminal Procedure Act (NSW).
There are similar provisions in criminal procedural legislation around the country now allowing a number of contraventions to be pleaded in the one charge where they arise out of the same factual circumstances. We contended in proceedings before the Court that those same factual circumstances must have regard to the conservatism one takes when statute law is attempting to modify long‑established common law principle, and to the ‑ ‑ ‑
FRENCH CJ: You are invoking the duplicity principle to interpret the statute?
MR HATCHER: Yes, and to the words, Justice Evatt in Johnson v Miller, because what his Honour was there saying was duplicity is more than just a concern in the procedural fairness difficulties it creates for defendants, it actually creates a constitutional problem for Federal Courts at the very least, in that it takes them out of adversarial litigation and puts them into an inquiry. If the same factual circumstances means what one might have thought it is well‑capable of meaning, that is, the evidence in relation to one is the evidence in relation to the other, so it is the same factual circumstances, that question of inquiry does not come up.
FRENCH CJ: This is all encompassed in your ground 4, is that right? At page 134 of the application book.
MR HATCHER: It is encompassed, your Honour, in ground ‑ ‑ ‑
FRENCH CJ: This is the draft notice?
MR HATCHER: Yes, it is, your Honour. If it please the Court, in our respectful submission, when approaching provisions such as section 31, bearing in mind what Justice Evatt said in Johnson v Miller, one looks for offences or charges that arise from the same evidence, the same factual circumstances, and if that be the case, the concerns of Justice Evatt do not arise, because you are not now dealing with a wide‑ranging inquiry, you are just dealing with the legal consequences that might flow from particular conduct, whereas, of course, it was found against us that it can mean something as broad as his Honour the Chief Justice found as it all being involved in the construction of a tunnel, which seems to give little scope for the words “same factual circumstances” when one is focusing upon specified measures in relation to identified risks. If it please the Court, that is the basis upon which we say ‑ ‑ ‑
FRENCH CJ: Yes, all right, thank you, Mr Hatcher. Yes, Mr Agius.
MR AGIUS: Your Honours, it is our submission that the expression “the statement of the offence” is an expression of clear meaning. It was used so by this Court in Kirk, and there is no reason to read it down so that allegations described as particulars do not form part of the charge for the purpose of grounding jurisdiction. This part of the case concerns jurisdiction. The applicant’s argument really amounts to no more than this, that the Court should rule a line immediately above the word “particulars” and have no regard to the specification of the risk, or the specification of the measures, which the prosecutor alleges the application could and should have implemented to address the risk.
There is no sense in this; it is not mandated by anything this Court said in Kirk, indeed it is contrary to what this Court said in Kirk. It is not supported by any authority. It is not to the point to say that there are 76 volumes of evidence. If one goes to the charge which is set out, the application for order at page 62 of the application book - this is the section 8(1) charge which deals with risks to employees - one sees that it follows a sensible and rational form of pleading. It pleads the inspector, his authorisation, his empowerment to institute proceedings and then it pleads the allegation against the corporation properly identified that the corporation is an employer.
Importantly, it pleads the date of the offence which is confined to a period of about five days leading up to the collapse of this tunnel on 2 November 2005 and then it defines the portion of the tunnel where it is alleged that the acts or omissions occurred. The portions of the tunnel are at a particular intersection. It then follows the words of the section which creates the offence - section 8 - and indicates by repeating those words, a failure –
TO ensure the health, safety and welfare at work –
another specific allegation –
of all its employees –
who are particularised. What follows are the statements of acts or omissions which make out the allegation of the failure to ensure health. If it stopped above “The particulars of the charge are” then my friend might have more substance to his argument, arguing that this was a statement of affairs offence, but it does not. It goes on in a very logical way looking at section 8 of the Act, which I think your Honours can conveniently find in the judgment.
GUMMOW J: Page 93.
MR AGIUS: Thank you, your Honour. It then goes on to follow the subsections of the Act, and it deals with, firstly, the risk, and here the risk is a very simple one, because what happened was that a huge section of roof collapsed, that put people who were working in that section of the tunnel, or who would otherwise be expected to work there, at risk of injury, and it put people who were above the tunnel at that point at risk of injury when their apartment block disappeared down the hole that was created by the tunnel collapse, and other non‑employees that is the substance of allegation of risk.
The risk is very confined. It is confined to a risk beyond those five days. Then subparagraph (b) deals with ensuring that:
Premises, controlled by the [employer] where its employees worked were safe and without risks to health –
It goes on to specify the particular measures or failures that support that allegation. They are set out in (i) to (iv). Proof of any one of those measures is enough to make out the offence under section 8(1).
FRENCH CJ: Mr Agius, do you accept that the particulars, on the premise that one does not, as it were, draw a line above the line which says, “The particulars of the charge are that” that the particulars go to defining the conditions necessary for the Court to exercise its jurisdiction?
MR AGIUS: Yes, and here the presence of these particulars ground jurisdiction.
FRENCH CJ: Yes.
MR AGIUS: This not a case like Kirk where there were some particulars, but as this Court held, they were in fact, not particulars of any Act or omission, or not so sufficiently defined. Here the particulars of acts and omissions are defined, perhaps with too much particularity, if one accepts what my friend is saying.
FRENCH CJ: If there was some fundamental deficiency with the particulars, that would be a matter you would accept that goes jurisdiction?
MR AGIUS: If there were no particulars, that would go to jurisdiction.
FRENCH CJ: There were none. That is the extreme case, yes.
MR AGIUS: But if there was a defect in the way in which a particular was expressed, that could be cured by amendment, so a defect in the way in which a particular is expressed would not deprive the Court of dealing with an application to amend the particular.
FRENCH CJ: It is under the general defect in form or substance?
MR AGIUS: Yes. But here, as I have submitted, proof of any one of these particulars, (b)(i), would be enough to make out the offence. Deviation from “design intent as expressed in design drawings” does not mean fail to design the tunnel properly. There is no allegation in this charge of a failure to properly design the tunnel, such as to engage any argument about the operation of the statute of limitations. The limitation period is engaged because of the dates alleged in the charge, 27 October 2005 to 2 November 2005.
That is when the risk was present, and that is when the applicant failed to address that risk. One way in which the applicant failed to address the risk was a failure to ensure the premises were safe, and one way in which it failed to ensure the premises were safe was that it “deviated from design intent as expressed in design drawings” and what the applicant knows is that that means that you had a set of construction drawings, which were issued by the constructor, that is, the applicant, which said, “You shall construct the tunnel in this particular way” and the allegation is that it deviated from that instruction, the design intent, which was expressed in those drawings.
That is just one way of proving a failure to ensure that the premises were safe. That is one measure. The second measure that is alleged is a failure to ensure that the ground support was not reduced below that which was expressed in the design drawings. The design drawings said the tunnel shall be no wider than this width, at this point, and at this point it should have certain roof support, at this point there, in effect, should be no benching; you should not cut out part of the wall. That is allegation 2. Then allegation 3, another way in which the premises were not made safe was because there was an absence of shotcrete which is understood to be concrete mixed with metal et cetera, and so on.
FRENCH CJ: Do I understand from your submissions correctly that each of these matters can constitute a separate contravention, and its inclusion is justified by reference to section 31.
MR AGIUS: That is the point, yes. Section 31. That is what section 31 does. In this jurisdiction, where risks can be addressed in any number of ways, and where a failure to address a risk in a particular way which is alleged, can of itself, support an offence section 31 is facultative. In many ways it assists the defendant because only one penalty can be imposed even though five or six omissions might be proved.
FRENCH CJ: Is there some limiting principle on the application of section 31 that it may charge such a disparate – at least that pursuant to section 31, one cannot charge such a disparate range of contraventions that the matter in respect of which the Court is exercising its jurisdiction is left somewhat up in the air? I mean Mr Hatcher is basically saying it has to be read down in some way. Is that a matter which ultimately feeds into the jurisdictional question, or is it something else?
MR AGIUS: It would not feed into jurisdiction, your Honour, it is a matter for management of the trial. If this was a trial on indictment for a more usual offence, the Crown would not plead 87 charges, or indeed, in the old days the Crown might, but now it would be greatly discouraged from doing that.
CRENNAN J: It is not inconceivable, I suppose, that some issue of fairness may arise out of the multiplicity of particulars, but that would be a matter for the trial judge would it not?
MR AGIUS: Yes, and, with respect, your Honours, it does not go to jurisdiction. What it goes to in this case is that it really alerts one to this; that some factual circumstances, for example, the collapse of a tunnel, can involve breaches at a number of different levels, any one of which addressed the risk. Some breaches may be more serious than others and the prosecutor alleges a range of breaches. It may be that if some case is made that it is just impossible to meet this because of the multiplicity of charges, the trial judge will have to deal with that, but it does not mean that the trial judge is denied jurisdiction to deal with it and that is the point my friend’s argument has to reach before it can even invite this Court to interfere, in our respectful submission, particularly at such an early stage of these proceedings.
FRENCH CJ: Yes, ground 4 in his draft notice of appeal does not seem to depend on a jurisdictional issue, does it?
MR AGIUS: No, ground 4 does not raise the question of jurisdiction at all.
FRENCH CJ: It raises a question of construction and application of 31, I would think.
MR AGIUS: Which the Court of Appeal has dealt with and in our respectful submission this Court would - that it does not raise a matter of general importance, nor is this Court an appropriate vehicle to deal with the
general application of section 31. We are dealing with incidents which arise in an industrial context where risks can arise for a number of complex reasons. We are not dealing with a single instance offence such as robbery where you might be concerned about a number of armed robbery counts being added to an indictment and so for that reason this Court ought not to entertain any review of the findings concerning section 31 and how it operates.
The whole point of section 31 was to avoid a situation where the prosecutor would charge 15 offences where it could charge one offence; subject a defendant to one penalty, but acting responsibly, charge a number of contraventions within the umbrella of that offence. That is how the jurisdiction works and that is why section 31 or its forebear was brought into the Act, because that was the very problem that the Court could not deal with before section 31 was in the Act, or the section that existed before it, but was in much the same terms. We would submit then, for two reasons, one, that this pleading does not fall foul of Kirk and, two, because it does satisfy the requirements of the IRC rules that there is nothing about this section which indicates a failure to ground jurisdiction in the Court.
Closely examined, this pleading alleges a series of measures. It may be that some of the measures are repeated but that would be because they are on the one hand perhaps a particular of a failure to ensure the premises were safe but also they might survive to prove a failure to ensure that systems of work were safe. That does not mean that the particular cannot be alleged twice. It means that it has, perhaps by proof of that particular - may in fact prove two breaches of the Act. In our respectful suif one looks carefully at the particular pleadings one will see the defendant is not disadvantaged because by looking at the pleading, the defendant can then go to which of the volumes of the 76 volumes relate to that omission and identify what the case is against it in relation to that omission.
If it cannot do that, it can ask. At the end of the day, this case depends upon expert evidence and an expert report to cover each of these allegations. It is not a question of trawling through a weight of 76 volumes to discover the relevant material. For those reasons, in our respectful submission, special leave ought to be refused in this case, this matter not being appropriate matter raising a matter of general importance. On the question of merits, my friend just cannot demonstrate that any of the matters he points to go to jurisdiction.
FRENCH CJ: Thank you, Mr Agius. Yes, Mr Hatcher.
MR HATCHER: May it please the Court. My friend suggests that the charge is restricted to portions of the tunnel. That is not what the charge says. In fact, it says including portions of the tunnel –
in the MCAA including its intersection with MC5B of the Lane Cover Tunnel at Sydney –
That just demonstrates, again, that what this charge was designed to do, intended to do, and did, was charge a state of affairs offence. What is attempted to be done is to reconstruct it after the judgment in Kirk to plead something else. That is the nature of our complaint. We say when you read it, when you see the way in which various matters are put in as said to be to particulars, not said to separate counts, not said to be contraventions, but particulars of the state of affairs, it is plain that this charge is a charge pleading an offence not known to law.
Part of the difficulty that we face flows again from something my friend said in relation to paragraph (b) of the particulars which his Honour the Chief Justice in the Court of Appeal said was one act or omission that was particularised, and yet my friend says, each of the sub‑particulars from (i) through, any one of those is a separate act or omission constituting a contravention. This is a pleading that simply does not tell us what it is we are meant to meet. My friend says, any one of the sub‑particulars is an act or omission, the Industrial Court said, any one of the sub‑particulars to be is an act or omission, the Court of Appeal said, it is paragraph (b) which is the act or omission, and the sub‑particulars are simply particulars of that act or omission, and the Industrial Court, by its President in his article in last week’s Australian, tells us that its judgment was endorsed by the Court of Appeal.
It puts our client in a position where it is in no way to meet a charge because the charge has not been enunciated against the law. What we have been charged with is a state of affairs. It is apparent from the particulars what has been done is an attempt reformulate the particulars to squeeze them into a different offence and, in our respectful submission, it cannot be done as a matter of jurisdiction. If it please the Court.
FRENCH CJ: All right. Thank you, Mr Hatcher. The Court will adjourn briefly to consider what course it should take.
AT 10.26 AM SHORT ADJOURNMENT
UPON RESUMING AT 10.33 AM:
FRENCH CJ: This application concerns the validity of charges laid under section 8(1) and (2) of the Occupational Health and Safety Act 2000 (NSW). The Court of Appeal of New South Wales dismissed an application for a declaration and orders in the nature of prerogative relief directed to the Full Court of the Industrial Court of New South Wales. The Industrial Court had unanimously determined that the charges were valid.
In Kirk v The Industrial Court of New South Wales (2010) 239 CLR 531 at paragraphs 14 and 28, when dealing with statements of offences as particularised, a majority of this Court said that a statement of offence under predecessor legislation, must identify the act or omission which constitutes an offence.
We are not satisfied on the submissions that have been put that there is any ground going to jurisdiction that would warrant the grant of special leave. There may be questions about the construction and application of section 31 of the Occupational Health and Safety Act which are best left to the trial judge to rule upon. Special leave will be refused with costs.
AT 10.34 AM THE MATTER WAS CONCLUDED
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