Newman v TJV Electrical Pty Ltd
[2011] QMC 16
•2 March 2011
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Newman v TJV Electrical P/L [2011] QMC 16
PARTIES:
CLIVE JOHN NEWMAN
(respondent)
v
TJV ELECTRICAL PTY LTD
(applicant)
FILE NO/S:
MAG262372/09(0)
DIVISION:
Industrial Magistrates Court
PROCEEDING:
Application to strike out complaint
ORIGINATING COURT:
Industrial Magistrates Court at Brisbane
DELIVERED ON:
2 March 2011
DELIVERED AT:
Brisbane
HEARING DATE:
15 February 2011
MAGISTRATE:
Lee G
ORDER:
Application to strike out complaint is allowed
CATCHWORDS:
INDUSTRIAL LAW - WORKPLACE HEALTH AND SAFETY – PROSECUTION - Application to strike out complaint – whether lack of pleading essential factual ingredients of offence – whether this amounts to denying jurisdiction in this court – whether complaint should be struck out – whether curable by ordering further and better particulars
Electrical Safety Act 2002(Qld), s 5(a), s 10, s 14, s 18, s 19, s 21, s 22, s 26, s 27, s 30, s 41, s 42, s 44, s 46, s 47, s 137(1)(d) & (e), s 186(1) & (3), s 187
Electrical Safety Regulation 2002
Electrical Safety (Codes of Practice) Notice 2002
Industrial Relations Act 1999(Qld), s 683(2)
Justices Act 1886 (Qld), s 47, s 48,
Occupational Health and Safety Act 1983 (NSW)
Workplace Health and Safety Act 1995 (Qld), s 3A, s 9, s 24, s 28, s 29, s 37
Australian Meat Industry Employees Union v Sunland Enterprises Pty Ltd (1987) 36 A Crim R 418, cited
Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531; (2010) HCA 1, followed
Hayes v Wilson, ex parte Hayes [1984] 2 Qd R 114 cited
John L Pty Ltd v Attorney General (NSW) (1987) 163 CLR 508, cited
Johnson v Miller (1937) 59 CLR 467, cited
NK Collins Industries Pty Ltd v President of the Industrial Court of Queensland [2010] QSC 373, considered
COUNSEL:
J Hunter SC for the respondent
R Perry SC for the applicant
SOLICITORS:
Legal and Prosecution Services, Fair and Safe Work Queensland for the respondent
Norton Rose Australia for the applicant
On 16 November 2009, the complaint of Clive John Newman (the complainant), an Inspector appointed under the Electrical Safety Act 2002 (the ES Act), charging TJV Electrical Pty Ltd (TJV) with an offence under the ES Act was filed. The relevant wording of the complaint is as follows:
..that on 17th day of November 2008 at Eagle Farm …TJV Electrical Pty Ltd being a person on whom an electricity safety obligation prescribed by section 30(2) of the Electrical Safety Act 2002 is imposed did fail to discharge that obligation contrary to section 27 of the said Act
Particulars
Failure: It is alleged that, being an employer, TJV Electrical Pty Ltd failed to ensure that its business or undertaking was conducted in a way that was electrically safe [s 30(2) and (3)]
Worker: Michael Joseph Laffey
Workplace:External main switchboard number 1.07 at [address]
Business or Undertaking: Electrical contracting
AND IT IS ALLEGED that the breach caused the death of Michael Joseph Laffey. ……
The matter comes before the court on a preliminary basis by application on behalf of TJV seeking the complaint be quashed because it has not pleaded the essential factual ingredients of the offence so as to found jurisdiction in this court. On 3 June 2010 I made orders by consent providing for the filing and serving of written submissions and authorities. That material has been received but the matter was adjourned pending the outcome of judicial review proceedings in the Supreme Court on a similar issue in another case.
On 14 October 2010 Boddice J. delivered judgement in NK Collins Industries Pty Ltd v. President of the Industrial Court of Queensland et al [2010] QSC 373 (Collins). Among other things, Collins considered the application of Kirk v. Industrial Relations Commission of New South Wales et al (2010) 239 CLR 531; (2010) HCA 1 (Kirk) on the question of whether essential factual ingredients for an offence under the Workplace Health and Safety Act 1995 (Qld)(WHSA) were pleaded so as to vest jurisdiction in the court. Kirk was concerned with this question in relation to a charge under the Occupational Health and Safety Act 1983 (the NSW Act) concluding, inter alia, that essential factual ingredients were not pleaded so that the court lacked jurisdiction. In concluding that “there are significant material differences between those schemes”[1] i.e. the WHSA and the NSW Act, and contrary to the outcome in Kirk, Boddice J. in Collins found that essential factual ingredients for the offence under the WHSA were pleaded although particulars were required. This was because under the WHSA, the offence was complete once there was a failure to discharge the mandatory obligations specified in the WHSA[2] resulting in workplace injury although subject to a statutory defence[3]. On the other hand the NSW Act imposed obligations identifying measures that may be employed to obviate risks and that not all measures specified therein had to be taken but only those that were reasonably practicable requiring the complainant to plead the measures that should have been taken by the employer in support of the charge[4].
[1] Paragraph [14] of judgment in Collins – see full discussion at paragraphs [13] to [16];
[2] Section 29 WHSA;
[3] Section 37 WHSA – defence to be proven by the defendant ;
[4] Paragraph [16] of judgement in Collins;
In summary, I have the following written submissions:
· TJV’s submissions dated 23 June 2010;
· Complainant’s submissions dated 8 July 2010;
· TJV’s additional submissions dated 3 December 2010;
· Complainant’s further submissions dated 6 January 2011;
· TJV’s response to complainant’s further submissions filed 20 January 2011.
In addition, I heard oral submissions on 15 February 2011. Mr R. Perry SC appeared for TJV and Mr J. Hunter SC appeared for the complainant. The application is understandably opposed because if the application is successful, the complainant may be statute barred from instituting fresh proceedings. Section 187 of the ES Act, as in force at the date of the alleged offence (17 November 2008)[5], provided for a limitation period of one year after the commission of the offence (paragraph (a)) or six months after the offence comes to the knowledge of the chief executive but no later than three years after the commission of the offence (paragraph (b)). Here the complaint was filed 16 November 2009. On the other hand, if the complainant’s submissions are accepted that any defect in the complaint can be cured by providing particulars, it is open to do so despite the expiration of the limitation period provided that the particulars do not create a fresh charge: see for example Australian Meat Industry Employees Union v. Sunland Enterprises Pty Ltd & Others (1987) 36 A. Crim R 418 at 422 (per Gray J of the Federal Court) and Hayes v. Wilson, ex parte Hayes [1984] 2 Qd R 114 (Full Court).
[5] Section 187 was amended by s 33 of the Workplace Health and Safety and other Legislation Amendment Act 2008 by inserting paragraph (c) – two years from when a Coroner makes findings in relation to a death resulting from a breach of an obligation: commenced 1 January 2009;
The Justices Act 1886 (Qld) (the JA) applies to proceedings for offences under the ES Act with necessary adaptations by the combined effect of subsections 186(1) & (3) ES Act[6] and section 683(2) of the Industrial Relations Act 1999 (IR Act) [7] so that a prosecution for an offence under the ES Act is by way of summary proceedings under the JA before an industrial magistrate.
[6] In Division 2 (Other matters about proceedings) in Part 13 (Proceedings and offences) of the ES Act; these procedural provisions are the same as section 164(1) & (4) of the Workplace Health and Safety Act 1995 (Qld);
[7] In Chapter 14 (Legal Proceedings) of the IR Act;
Divisions 1, 2 & 3 in Part 4 of the JA are provisions relating to complaints[8]. Of some relevance is section 47(1) JA which provides:
The description of any offence in the words of the Act, order, by-law, regulation, or other instrument creating the offence, or in similar words, shall be sufficient in law.
[8] Sections 42 to 51;
This provision was not the subject of detailed submissions[9]. Suffice it to say that that provision does not abrogate from the common law requirement to plead essential factual ingredients. This was dealt with in Kirk in relation to a cognate provision in New South Wales at paragraph [29] of the joint majority judgment (footnotes omitted)[10]:
[29] Section 11 of the Criminal Procedure Act 1986 (NSW) provided that the description of any offence in the words of an Act creating the offence “is sufficient in law”. In Smith v. Moody, it was held that such a provision did not dispense with the common law rule … a statutory provision like that made by s. 11 of the Criminal Procedure Act 1986 “relates only to the nature of the offence and does not dispense with the necessity of specifying the time, place and manner of the defendant’s acts or omissions”.
[9] Paragraph [23] submissions for TJV dated 23 June 2010;
[10] Smith v. Moody [1903] 1 KB 56; the high court preferred the view of Dixon J. in Johnson v. Miller (1937) 59 CLR 467 to that of Jordan C.J. in Ex parte Lovell; Re Buckley (1938) 38 SR (NSW) 153;
It is useful to first consider the legislative provisions creating the offence under the ES Act.
Statutory Scheme for an Offence under the Electrical Safety Act 2002
Relevantly, one way in which the objectives of the ES Act are achieved is the imposition of “obligations on persons who may affect the electrical safety of others by their acts or omissions”: section 5(a).
Section 26[11] of the ES Act (Obligations for electrical safety) imposes obligations on various classes of individuals or entities including employers. Generally, section 21 defines “employer” as a person who conducts a business or undertaking and engages others to do certain work for the person or at the direction of the person. “Worker” is defined in section 22 and includes a person who does work for or at the direction of an employer[12]. By the pleaded particulars, the complaint charges TJV in its capacity as an employer describing its business or undertaking as “electrical contracting” the affected worker being “Michael Joseph Laffey”.
[11] In Division 1 (Preliminary) Part 2 (Electrical safety obligations) of the ES Act;
[12] Other than a person who does work under a contract for services;
It is not clear what the relevance of the use of the term “workplace” is in these proceedings for an offence under the ES Act other than the complaint identifying a particular switchboard at a location where, in a practical sense, work may have been carried out. For the purposes of the ES Act, schedule 2 thereof imports the definition of “workplace” in section 9 of the WHSA i.e. any place where work is, or is to be, performed by a worker or a person conducting a business or undertaking. Unlike the offence creating provision of section 27 in the ES Act which refers to “A person on whom an electrical safety obligation is imposed” (cited at [13] herein), the gravamen of an offence under section 24 of the WHSA relates to “A person on whom a workplace health and safety obligation is imposed”. Both legislative schemes perpetuate this difference. In creating obligations for employers, section 30 of the ES Act refers to “electrically safe” and “electrical safety” (cited at [15] herein) whereas section 28 in the WHSA refers to “workplace health and safety” in creating an obligation. Sections 27 & 30 of the ES Act do not utilise the concept of “workplace” although, as will be seen later it may incorporate work being undertaken. “Workplace” is used elsewhere in the ES Act, for example, section 137(1)(d) & (e) regarding the powers of entry by inspectors. Further, I note section 3A of the WHSA to the effect that the WHSA does not apply where the ES Act applies.
Section 27 of the ES Act[13] creates the offence of failing to discharge an obligation as follows:
[13] In Division 1 Part 2 of the ES Act;
27 Obligation offence provision
A person on whom an electrical safety obligation is imposed
must discharge the obligation.
Maximum penalty—(a) if the breach causes multiple deaths—2000 penalty units
or 3 years imprisonment; or
(b) if the breach causes death or grievous bodily
harm—1000 penalty units or 2 years imprisonment; or
(c) if the breach causes bodily harm—750 penalty units or 1
year’s imprisonment; or
(d) otherwise—500 penalty units or 6 months imprisonment.
In this case “death” of a named worker is alleged in the complaint so that paragraph (b) has potential application.
Then, Division 2 (Electrical safety obligations) in Part 2 (Electrical safety obligations) provides the various obligations that apply to those categories of individuals upon whom an obligation is imposed under section 26. In this case, for employers, section 30 applies:
30 Obligation of employer or self-employed person
(1) This section applies to an employer or self-employed person.
(2) A person to whom this section applies has an obligation to
ensure that the person’s business or undertaking is conducted
in a way that is electrically safe.
(3) Without limiting subsection (2), the obligation includes—(a) ensuring that all electrical equipment used in the
conduct of the person’s business or undertaking is
electrically safe; and
(b) if the person’s business or undertaking includes the
performance of electrical work, ensuring the electrical
safety of all persons and property likely to be affected
by the electrical work; and
(c) if the person’s business or undertaking includes the
performance of work, whether or not electrical work,
involving contact with, or being near to, exposed parts,
ensuring persons performing the work are electrically safe.
(my emphasis)
“Electrically safe” is defined in section 10(2):
Electrically safe means—
(a) for a person or property, that the person or property isfree from electrical risk; and
(b) for electrical equipment or an electrical installation, that
all persons and property are free from electrical risk
from the equipment or installation; and
(c) for the way electrical equipment, an electrical
installation or the works of an electricity entity are
operated or used, that all persons and property are free
from electrical risk from the operation or use of the
equipment, installation or works; and
(d) for the way electrical work is performed, that all persons
are free from electrical risk from the performance of the
work; and
(e) for the way a business or undertaking is conducted, that
all persons are free from electrical risk from the conduct
of the business or undertaking; and
(f) for the way electrical equipment or an electrical
installation is installed or repaired, that all persons are
free from electrical risk from the installing or repairing
of the equipment or installation.(my emphasis)
“Electrical safety” is defined in section 10(3):
Electrical safety, for a person or property, means the person or
property is electrically safe.“Electrical risk” and “free from electrical risk” used in the definition of “electrically safe” is defined in subsections 10(1) & (4) respectively:
Electrical risk means—
(a) in relation to a person, the risk to the person of death,shock or injury caused directly by electricity or
originating from electricity; or
(b) in relation to property, the risk to the property of—
(i) damage caused by a cathodic protection system; or
(ii) loss or damage caused directly by electricity or
originating from electricity.
In this section—
free from electrical risk, for a person or property, means that
the electrical risk to the person or property is as low as
reasonably achievable, having regard to—(a) likelihood of harm; and
(b) likely severity of harm.
The obligation creating provision of subsection 30(3) (a) refers to “electrical equipment” which is defined in section 14(1) of the ES Act (s 14(2) exclusions relating to vehicles appear not relevant on their face)[14]:
[14] “Extra low voltage” is defined in Schedule 2 ES Act - “means voltage of 50V or less AC RMS, or 120V or less ripple-free DC.
14 Meaning of electrical equipment
(1) Electrical equipment is any apparatus, appliance, cable,
conductor, fitting, insulator, material, meter or wire—(a) used for controlling, generating, supplying,
transforming or transmitting electricity at a voltage
greater than extra low voltage; or
(b) operated by electricity at a voltage greater than extra low
voltage; or
(c) operated by electricity at an extra low voltage, if the
equipment forms part of an electrical installation located
in a hazardous area; or
(d) that is, or that forms part of, a cathodic protection system.
Subsections 30(3)(b) & (c) refer to “electrical work” which involves a complex array of definitions in sections 18 & 19 of the ES Act. The starting point is section 18(1) of the ES Act:
18 Meaning of electrical work
(1) Electrical work is the manufacturing, constructing, installing,
testing, maintaining, repairing, altering, removing, or
replacing of electrical equipment.Examples of electrical work—
• installing low voltage electrical wiring in a building
• installing electrical equipment into an installation coupler or
interconnecter
• replacing a low voltage electrical component of a washing machine
• maintaining an electricity entity’s overhead distribution system
However, section 18(2)(a) to (n) of the ES Act provides for a whole host of exceptions to the general definition in section 18(1). Section 19 (Types of electrical work for this act) provides for three broad categories (1) electrical installation work (2) electric line work, and (3) electrical equipment work.
Next, Division 3 (Regulations, ministerial notices and codes of practice relating to electrical safety obligations) Part 2 (Electrical safety obligations) of the legislative scheme has to be considered. Section 41 applies where there exists a regulation prescribing a way for discharging a person’s electrical safety obligation. I note a range of provisions in the Electrical Safety Regulation 2002[15] prescribing various ways in discharging an employer’s electrical safety obligation to ensure the employer’s business is conducted in a way that is electrically safe. Examples include those provisions in Part 2 (Electrical work), Part 4 (Work around electrical parts) and Part 5 (Electrical installation). It should be noted that s 41(2) & (3) of the ES Act recognises that the requirements in the regulations are not exhaustive but contravening a regulation is sufficient in applying the obligation offence provision.
[15] Commenced 1 October 2002;
Section 42 applies where the relevant Minister identifies circumstances of electrical risk for persons or property requiring urgent action by prescribing in a notice ways of discharging a person’s electrical safety obligation in relation to that risk. By section 44, the Minister may make a code of practice stating a way of discharging a person’s electrical safety obligation[16].
[16] These provisions are canvassed at paragraphs [30] to [34] in submissions for TJV dated 23 June 2010; there exists an Electrical Safety (Codes of Practice) Notice 2002 as amended from time to time;
On its face, the complaint does not plead any regulation, ministerial notice or a code of practice. While the regulations do not limit those things an employer can do in discharging an electrical safety obligation, it is sufficient for the purposes of an offence that there has been a failure to comply with the regulations: s 41(2) & (3). Nothing has been pleaded in this respect. On the other hand, if the regulations do not cover the field and the complainant is relying on other acts or omissions, then those acts or omissions have not been pleaded. In my view this is essential to enable TJV to consider defences under sections 46 and 47 below. In view of my ultimate findings, it is not necessary for me to consider whether this in itself is sufficient to render the complaint incurably defective or whether that can be cured by the provision of particulars. However, it contributes to overall deficiency in the pleadings adding to the extent or degree of that deficiency.
The ES Act provides for defences in Division 4 (Defences) Part 2. Section 46(1) provides:
46 Defence in proceeding for offence against obligation
offence provision
(1) It is a defence in a proceeding against a person for an offence
against the obligation offence provision for the person to
prove that the commission of the offence was due to causes
over which the person had no control.Then, section 47 in Division 4 (Defences) Part 2 provides:
47 Further defence if no regulation, ministerial notice or
code of practice
(1) This section applies to a person if—(a) the person is proceeded against for an offence against
the obligation offence provision; and
(b) at the time of the alleged offence, there was no
regulation, ministerial notice or code of practice
prescribing or stating a way of discharging the person’s
electrical safety obligation in the circumstances of the
alleged offence.
(2) It is a defence in the proceeding for the person to prove that
the person chose an appropriate way, and took reasonable
precautions and exercised proper diligence, to discharge the
person’s electrical safety obligation.Discussion
The general principles stated in Collins and Kirk reflect the common law requirement to plead essential factual ingredients. It is not disputed that Kirk simply affirmed the common law in this respect and did not change the law. The issue in this case is the application of those principles to the legislation and facts of this case[17].
[17] For a recent example regarding offences under the Food Act 2010 (Qld) see Brisbane City Council v. Red Rooster Foods Pty Ltd [2011] QMC 6, per Judge Butler CM (2 February 2011); and for offences under the Integrated Planning Act 1997 and Environmental Protection Act 1994 see Bell & Gordon v. Unimin Australia Limited [2010] QMC 1, per Lee M (23 December 2010).
In considering Kirk, Collins at [17] conveniently summarises the statements of principle (footnotes omitted):
[17] A defendant to any prosecution is entitled to be apprised, not only of the legal nature of the offence charged, but also of the particular act, matter or thing alleged as the foundation of the charge. Essential particulars include “the time, place and manner of the defendant’s acts or omissions”. This requirement is consistent with the definition of “offence” in the Criminal Code (Qld) as it is the “act or omission which renders the person doing the act or omission liable to punishment” which is “an offence”.
The reference to the Criminal Code (Qld) is to section 2.
And later at [24] & [25] of Collins (footnotes omitted):
[24] There is a distinction between a complaint which is so equivocal as to make it impossible to identify the occasion, transaction or occurrence to which it refers and a complaint which identifies the “essential factual ingredients” of the offence but requires further particularisation so as to ensure that a defendant can properly prepare a defence. The former is defective and liable to be struck out as being insufficient in law. The latter is a valid complaint but may be subject to further particularisation.
[25] To be valid, a complaint must at least condescend to identify the essential factual ingredients of the actual offence, although practical difficulties result from the fact that there is no “technical verbal formula of precise application which constitutes an easy guide, in the circumstances of any given case, as to whether the common law has been infringed to such an extent … to save the information”.
Collins was concerned with an offence under sections 24(1) and 28(1) of the Workplace Health and Safety Act 1995 (Qld) (WHSA). At [18] Boddice J. noted that the complaint there disclosed the legal elements of the offence as well as the essential factual ingredients so as not to render the complaint incurably defective. In coming to that view, in adopting the principles in Kirk, Boddice J. concluded that the legislative scheme of the WHSA materially differed from the Occupational Health and Safety Act 1983 (the NSW Act) with which Kirk was concerned. This emphasises the point that each case must be determined on the particular legislative scheme creating the offence.
The above remarks in Collins reflect statements made by the majority judgement[18] in Kirk. For example, in referring to Johnson v. Miller (1937) 59 CLR 467 and John L Pty Ltd v. Attorney General (NSW) (1987) 163 CLR 508 at [26] in Kirk (footnotes omitted):
[26] The common law requires that a defendant is entitled to be told not only of the legal nature of the offence with which he or she is charged, but also of the particular act, matter or thing alleged as the foundation of the charge. In John L Pty Ltd v. Attorney General (NSW) .., it was explained that the older cases established that an information could be quashed as insufficient in law if it failed to inform the justices of both the nature of the offence and the manner in which it had been committed. In more recent times the rationale of that requirement has been seen as lying in the necessity of informing the court of the identity of the offence with which it is required to deal and in providing the accused with the substance of the charge which he or she is called upon to meet. The common law requirement is that an information …”must at the least condescend to identifying the essential factual ingredients of the actual offence”. These facts need not be as extensive as those which a defendant might obtain on an application for particulars. In Johnson v. Miller, Dixon J considered that an information must specify “the time, place and manner of the defendant’s acts or omissions”. McTiernan J referred to the requirements of “fair information and reasonable particularity as to the nature of the offence charged”.
[27] The acts or omissions the subject of the charges here in question had to be identified if Mr Kirk and the Kirk company were to be able to rely upon a defence under s 53. The defendant in Johnson v Miller was placed in a similar position. The statute in question provided that a licensee of licensed premises would be liable to a penalty if a person was present on the premises during certain prohibited hours, unless the licensee could establish one of the justifications or excuses relating to that person's presence provided for in the statute. Dixon J observed that each of the justifications depended upon some feature pertaining to the person found in, or seen leaving, the premises and that no licensee could succeed in bringing the case within any of the grounds of excuse unless the person or persons were identified and their presence on a distinct occasion alleged.
[28] The statements of the offences as particularised do not identify what measures the Kirk company could have taken but did not take. 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.
[18] French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.;
It was submitted for TJV that the complaint fails to plead the essential factual ingredients for the offence under section 27 of the ES Act rendering it incurably defective thus denying jurisdiction in this court. This is to be contrasted with a valid complaint pleading essential factual ingredients although further particulars may be required. On the other hand, it was submitted for the complainant that this question revolves around to what extent or degree the pleading fails to properly inform a defendant the case to be met and that in this case the pleading is curable by the provision of particulars which the complainant has offered to give. For reasons that follow, I agree that the complaint fails to plead the essential factual ingredients for an offence under section 27 of the ES Act with the consequence that it is incurable thus denying this court jurisdiction.
The complaint in this case simply pleads, in reliance on subsections 30(2) & (3) of the ES Act that, as an employer, TJV failed to ensure that its business or undertaking was conducted in a way that was electrically safe. It was submitted for TJV that there is a poverty of pleading because the essential factual ingredients have not been pleaded. The pleading simply asserts that TJV breached its obligations as an employer and this resulted in the death of a named worker. The description of TJV’s business or undertaking and the particular describing the “workplace” take the matter no further. The pleading fails to make a connection between the alleged failure and the consequent death. It fails to plead the acts or omissions constituting the failure by TJV in discharging its obligation under section 30 resulting in death.
In acknowledging the full force and effect of Kirk, submissions for TJV continue to the effect that the legislative scheme of the ES Act is similar to the legislative scheme of the NSW Act that was considered in Kirk. This much was conceded on behalf of the complainant during oral submissions. Submissions for TJV continued that a similar result should follow in this application. While Collins applied the principles expressed in Kirk, there was a different outcome because the particular legislation under consideration, the WHSA, was materially different. Boddice J. expressed the differences in the following way (footnotes omitted):
[14] Whilst the applicant contends there is no relevant distinction between the scheme of the WH&S Act and the NSW Act considered in Kirk, there are significant material differences between those schemes.
[15] The WH&S Act provides that a person on whom a workplace health and safety obligation is imposed must discharge the obligation, that a person has an obligation to ensure the workplace health and safety of the person, that that obligation is discharged if persons are not exposed to risks to their health and safety arising out of the conduct of the relevant person’s business or undertaking, and that discharging the obligation under s 28 includes doing all of the matters specified in s 29 of the Act. The WH&S Act does not give a range of measures that may be undertaken in discharging the obligation. All of the matters specified in s 29 must be complied with by the defendant. Further, the WH&S Act does not impose an obligation based on practicability. Under the WH&S Act, the offence of a failure to discharge the obligation is complete when a person suffers an injury to their health and safety in the workplace subject to any defence which may be proven by the defendant pursuant to s 37 of the Act.
[16] The NSW Act provides for a different statutory scheme. Sections 15 and 16 of the NSW Act, whilst imposing obligations to ensure health, safety and welfare at work, and identifying types of measures an employer may take to obviate those risks, comprehend that the generally stated duty is contravened when a measure should have been taken by an employer to obviate an identifiable risk. The fact that any number of measures may or may not have been taken to obviate that risk necessitates that the prosecutor give the defendant particulars of the measures the prosecution contends should have been taken by the defendant. This is particularly so where s 53(a) of the NSW Act made it a defence for a person charged with an offence to prove that it was not reasonably practicable to comply with the provision of the Act the breach of which constituted the offence. This defence allows that not all measures which may have guaranteed against the risk have to be taken – only those measures which are reasonably practicable.
Having regard to the provisions of the ES Act cited above, while it imposes obligations on employers to ensure that the employer’s business or undertaking is conducted in a way that is electrically safe (s 30(2)), it goes on in s 30(3) to include as obligations a range of other matters having various meanings (paragraphs (a), (b) & (c)). Those matters are not exhaustive. “Electrically safe” in s 30(2) & (3) has a range of definitions in paragraphs (a) to (f) in s 10(2). Then, in each of those definitions, there are other phrases “electrical risk” and “free from electrical risk” with a range of defined meanings; there is a range of meanings for “electrical equipment” in section 14; there is a range of meanings for “electrical work” in sections 18 & 19. None of these have been identified in the pleading.
“Electrical risk” is the risk of death caused by electricity. “Free from electrical risk” in the definition of “electrically safe” imports the notion of practicability where the definition provides “electrical risk to the person …is as low as reasonably achievable having regard to (a) likelihood of harm; and (b) likely severity of harm: s 10(4).
The pleading as it currently stands, is incurably deficient. First, in respect of subsections 30(2) & (3), it does not identify which category of activity or activities that constitute the obligation in s 30(3)(a) to (c) alleged to have been breached. Paragraph (a) refers to use of electrical equipment. Paragraph (b) refers to performance of electrical work and paragraph (c) refers to performance of work (whether electrical or not) involving, among other things, contact with exposed parts. These three activities are wide and varied but the pleading does not identify any. Simply pleading “External main switchboard number 1.07 at [address]” does not address this. Is TJV charged on the basis that the switchboard is “electrical equipment” (paragraph (a)), or on the basis that electrical work or work that is not electrical work was being carried out on or around it?
I note subsection 30(3) is merely an inclusive definition. It is not exhaustive and it expressly provides that it does not limit subsection 30(2). If the complainant is not in fact relying on any of the obligations in subsection 30(3), then equally the pleading has failed to identify the nature of the obligation being relied on. It has not identified the source and nature of the risk in which it is alleged TJV has failed in its obligation nor has it identified the acts or omissions in respect of that risk that constitute the breach of obligation.
Further, even assuming that that was not enough to render the complaint incurably defective, the pleading does not identify at all in which respect the conduct of TJV’s business was not “electrically safe”, a pivotal term used throughout section 30. “Electrically safe” is exhaustively defined in subsection 10(2)(a) to (f) constituting a wide range of circumstances. Paragraph (a) seems to be a general one i.e. persons being free from electrical risk. More specific circumstances include the operation of electrical equipment (paragraph (c)) and the way electrical work is performed (paragraph (d)). The circumstances are wide and varied and yet the relevant circumstances have not been identified at all in the pleading. TJV is left completely in the dark.
Finally, “free from electrical risk” imports practicability as to whether there has been a failure to discharge an obligation.
I agree that the scheme of the ES Act materially differs from the WHSA with which Collins was concerned. In my view, it does not follow that because Collins did not find the complaint incurably defective for an offence under the WHSA, that that should be the outcome in this case while having regard to the common law requirement of pleading essential factual ingredients endorsed in Kirk. Each case is to be determined on the particular legislation and facts. I agree with submissions for TJV that a greater degree of particularisation is required for an offence under the ES Act than one under the WHSA. However, I note that even in Collins where the requirements of particularisation are not as demanding as a pleading for an offence under the ES Act, the complaint pleaded the source of risk which is absent in the present case. In Collins, the complaint pleaded (from page 3 of the judgment in Collins):
The source of risk emanates from:
· Falling dead cypress trees, and /or
· System of work for the felling of dead cypress trees.
The Risk is the risk of death or injury including the risk of crush injuries to [a named worker]
The source of risk and nature of the risk are essential factual ingredients and they have not been pleaded in this case to identify a connection between the alleged breach and resultant death[19]. Further, there is a failure to plead the acts or omissions constituting the failure by TJV in discharging its obligation under section 30 resulting in death.
[19] Paragraphs [5] to [11] submissions for TJV filed 20 January 2011;
Further, for a defence to be mounted under section 46 of the ES Act, the prosecution would be required to plead facts that gave rise to the breach of obligation. Without that, it would be impossible for a defendant to consider a defence of proving the commission of the offence was due to causes beyond control. Likewise, for a defence under section 47, a defendant must prove that he or she “chose an appropriate way, and took all reasonable precautions and exercised proper diligence, to discharge the person’s electrical safety obligation”. That obligation imports considerations of “likelihood of harm” and “likely severity of harm”: see s 10(4) – definition of “free from electrical risk”. Again, it is incumbent on the prosecution to plead facts as to the circumstances relied on i.e. the source and nature of the risk and the acts or omissions in relation to that risk. The analysis of the NSW Act and reasoning by Boddice J. in my view applies to the ES Act in this case.
In relying on certain passages in Kirk (paragraphs [30] & [74]) and Johnson v. Miller (1937) 59 CLR 467 at 486 (per Dixon J.), it was submitted for the complainant that deficient pleadings are capable of being salvaged particularly at an early stage in proceedings by the provision of particulars and that the passages relied on support the proposition that this is possible. It was submitted it is a question of extent or degree to which a pleading is deficient.
For example, in Kirk at paragraph [30] under the heading “The charges” (footnotes omitted):
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. Those orders of the Industrial Court were expressed as being made pursuant to s 4(1) of the Summary Jurisdiction Act as applied by s 168 of the IR Act. Section 4(1) of the Summary Jurisdiction Act permitted the making of an order "[u]pon an application being made ... in accordance with the rules" and the relevant rules required that the nature of the offence be stated. Section 6(1) of the Summary Jurisdiction Act provided, in effect, that no objection was to be taken or allowed to any order made under s 4 by reason of any alleged defect in it in substance or in form. 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. Without that particularisation, the Industrial Court would be placed in the position to which Evatt J referred in Johnson v Miller where it would act as "an administrative commission of inquiry" rather than undertake a judicial function. Proceeding without further particularisation of the acts and omissions said to found the charges reflected views as to the nature and extent of the duty cast upon an employer by ss 15 and 16 and the limited operation to be given to the s 53 defences.
And at paragraph [74] of Kirk under the heading “Jurisdictional error – this case” (footnotes omitted):
The first of the errors in question in this case – the errors of construction of s 15 of the OH&S Act – can be identified as a jurisdictional error of the third kind identified in Craig. That is, it can be identified as the Industrial Court misapprehending the limits of its functions and powers. Misconstruction of s 15 of the OH&S Act led the Industrial Court to make orders convicting and sentencing Mr Kirk and the Kirk company where it had no power to do so. It had no power to do that because no particular act or omission, or set of acts or omissions, was identified at any point in the proceedings, up to and including the passing of sentence, as constituting the offences of which Mr Kirk and the Kirk company were convicted and for which they were sentenced. And the failure to identify the particular act or omission, or set of acts or omissions, alleged to constitute the contravening conduct followed from the misconstruction of s 15. By misconstruing s 15 of the OH&S Act, the Industrial Court convicted Mr Kirk and the Kirk company of offences when what was alleged and what was established did not identify offending conduct.
Those passages appear to be general discussion in parts of the judgment other than those parts embarking on the exercise of considering whether the pleading in that case was in fact defective. Even if those passages support the proposition contended for by the complainant, the clear outcome in Kirk was that the complaint was incurably defective in relation to an offence under the NSW Act the scheme of which is similar to the scheme under the ES Act. In my view, the complaint in this case is incurably defective in the circumstances of this case because, contrary to the common law requirement confirmed in Kirk, the essential factual ingredients have not been pleaded.
The complainant contended that if the complaint before this court is held incurably defective, then most other charges that come before this court would also be defective. One example given is a charge of public nuisance where the act constituting the public nuisance is not particularised. This example and other examples given during oral submissions of course relate to charges under different legislation. It is true that a complaint for a public nuisance offence may not plead the particular act that constitutes the public nuisance but all other matters constituting the offence generally are. However, I agree with oral submissions for TJV that one should not hypothesise about whether pleadings in other cases are or are not deficient. The thrust of the complainant’s submissions, as I understand them, is that deficiency in pleading is a matter of extent and degree and that the deficiencies in this case are not so great as to render the complaint incurably defective. For the reasons identified above, I respectfully do not agree.
Conclusion
The application to strike out the complaint on the basis that it is incurably defective so as to deny jurisdiction in this court is granted. I will hear the parties if other orders are sought including the question of costs if the parties cannot agree.
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