Patrick Stevedores Holdings Pty Ltd v Director of Public Prosecutions

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

No. S CI 2011 06028

PATRICK STEVEDORES HOLDINGS PTY LTD

Plaintiff

v

THE DIRECTOR OF PUBLIC PROSECUTIONS

THE VICTORIAN WORKCOVER AUTHORITY

First Defendant

Second Defendant

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JUDGE:	ROBSON J
WHERE HELD:	Melbourne
DATE OF HEARING:	12 December 2011
DATE OF JUDGMENT:	9 February 2012
CASE MAY BE CITED AS:	Patrick Stevedores Holdings Pty Ltd v DPP & Anor
MEDIUM NEUTRAL CITATION:	[2012] VSC 31

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ADMINISTRATIVE LAW – Rules of natural justice – Authorisation sought by the Victorian WorkCover Authority under s 132 Occupational Health and Safety Act 2004 from the Director of Public Prosecutions to bring proceedings after expiration of two year limitation period – Director of Public Prosecution’s function under s 132 Occupational Health and Safety Act 2004 - Whether accused is entitled to natural justice by the DPP in exercising power to authorise proceedings – Accused entitled to be heard – Section 132 Occupational Health and Safety Act 2004.

PRACTICE AND PROCEDURE – Conflicting decisions of Full Court of the Supreme Court of Victoria and the Full Federal Court of Australia on a question of common law – Full Federal Court disagreed with the earlier Victorian decision – Whether trial judge of the Supreme Court of Victoria bound to follow the decision of the Full Federal Court – Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 considered – Whether doctrine of ‘considered dicta’ applies to decisions of intermediate appellate courts.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Dr D J Neal SC with Mr R W Taylor	Freehills
For the First Defendant	Mr P N Rose SC with Mr G J Maloney	Craig Hyland
For the Second Defendant	Mr P J Hanks QC with Mr C W Beale	Mary-Ann Cooper

TABLE OF CONTENTS

Introduction............................................................................................................................... 2
Factual background.................................................................................................................... 2
The issues................................................................................................................................... 4
The relevant authorities.............................................................................................................. 5
Natural justice.......................................................................................................................... 15
The relevant legislation............................................................................................................. 16
The legislative history............................................................................................................... 19
Discussion of s 130-132............................................................................................................ 21
Is Nicol binding on this Court?............................................................................................... 27
Stare decisis.............................................................................................................................. 27
Conclusion............................................................................................................................... 34

HIS HONOUR:

Introduction

On 11 November 2011, Patrick Stevedores Holdings Pty Ltd (PSH) issued an originating motion against the Director of Public Prosecutions (DPP) seeking:

(1)A declaration that the DPP is obliged to accord PSH procedural fairness in relation to the application by the Victorian WorkCover Authority (VWA) for the DPP to authorise proceedings against PSH in respect of events occurring at Patrick’s workplace at Hastings occurring on or about 11 and 12 March 2009 (the application) outside the time limit imposed by s 132 of the Occupational Health and Safety Act 2004 (OHS Act).
(2)Orders in the nature of certiorari with respect to the decision of the DPP to refuse to provide PSH copies of the application and supporting material to the DPP by the VWA.
(3)An order in the nature of prohibition restraining the DPP from proceeding further with the authorisation unless it accords PSH procedural fairness, specifically by:
(i) providing the plaintiff with a copy of the application and supporting material;
(ii) allowing PSH to make submissions and file supporting material;
(iii) providing reasons for his decision.

Factual background

On 10 March 2011, Inspector David Fletcher of the VWA filed charges under s 76 of the OHS Act alleging that on or about 11 and or 12 March 2009, PSH (at its premises at Westernport, Hastings) engaged in the conduct of threatening to dismiss from its employment Tony Longley, John McCuskey, Steven Cave and Dean Unger because each of those employees had raised an issue or concern about health and safety to PSH, and in respect of Longley because he was at that time a health and safety representative in the workplace. Inspector Fletcher was not authorised to file the charges. Rather, Inspector Ross Clayton had been authorised to file the charges.

On 10 November 2011, the VWA conceded that the charges had not been authorised in accordance with s 130 of the OHS Act and they were struck out.

Previously, on 26 October 2011, the VWA advised that it had applied to the DPP for an extension of time to commence proceedings under s 132(b) of the OHS Act. PSH’s solicitors wrote to the DPP requesting a copy of the VWA’s application, claiming the right to make submissions to the DPP, and seeking reasons for any decision.

By letter of 4 November 2011 from the DPP to PSH’s solicitors, the DPP refused to provide a copy of the VWA application, failed to respond to the request for an opportunity to be heard, and referred to the position the DPP had adopted in the matter of Stephen Zmak (VWA) and TBC Trans Pty Ltd and Buildcorp Commercial Pty Ltd. That case has been argued in the Magistrates’ Court and his Honour Magistrate Mealey has reserved his decision. In that case, counsel for the DPP and counsel for VWA argued that the rules of procedural fairness do not apply to the authorisation process under s 132(b).

On 10 November 2011, the DPP advised the solicitors for PSH:

Our position is as set out in my letter to you dated 4 November 2011, and remains unchanged. A decision has not been made regarding Worksafe’s application for authorisation to [sic] Patrick Stevedores Holdings Pty Ltd out of time. The matter is currently being considered by a Senior Crown Prosecutor and a decision will be made in due course.

As a consequence, PSH sought an undertaking from both the DPP and the VWA to refrain from taking any further action in relation to the authorisation of charges under s 132 pending resolution of proceedings in this Court to obtain a declaration if the rules of procedure of fairness apply to s 132. The undertaking was not given.

On 11 November 2011, the matter came on before Habersberger J in the Practice Court. Consent orders were made that the VSA be joined as a defendant to the proceeding. The matter then came on before me for hearing on 12 December 2011.[1]
[1]The VWA filed a notice of appearance on 22 November 2011. An appearance was filed on behalf of the DPP on 24 November 2011.

The issues

PSH contends that s 132 of the OHS Act gives it a right of immunity from prosecution after the expiration of the time limit prescribed in s 132(a). PSH says that the power of the DPP to authorise a proceeding under s 132(b) confers a power to destroy or prejudice PSH’s right of immunity and thus procedural fairness applies to the exercise of that power. In other words, the DPP must afford PSH procedural fairness before exercising its power to authorise proceedings for an indictable offence against the OHS Act under s 132(b). Alternatively, PSH says that it has a legitimate expectation that the decision will be dealt with fairly, both under the common law and pursuant to s 24 of the Public Prosecutions Act 1994 (the PP Act). Hence, PSH is entitled to procedural fairness in relation to the authorisation process.

PSH says that procedural fairness in this instance includes:

(i)The opportunity to receive a copy of the application, submissions and supporting materials relied on by the VWA.
(ii)The opportunity to make submissions (including oral submissions in the event that the VWA has been afforded that opportunity) and file supporting materials in reply.

(iii) Reasons for the decision.

On the other hand, the DPP and the VWA contend that the expiration of the limitation period specified in s 130(a) does not confer a right of immunity for two reasons. First, they say that at all times the DPP maintains the right to institute proceedings for an indictable offence under s 159 of the Criminal Procedure Act 2009 (the CP Act). Section 159 relevantly provides that subject to the PP Act the DPP may file an indictment at any time, ‘except where otherwise provided by or under this or any other Act.’ The DPP and VWA contend that s 132 of the OHS Act does not otherwise provide.

Secondly, they say that under the proper construction of s 132, PSH is always liable to be subject to proceedings under the OHS Act. They say that properly construed, s 132 provides that proceedings for an indictable offence may be brought at any time by the VWA or a properly authorised inspector. During the period specified in s 132(a) such proceedings may be instituted without any third party authority and after that period with the written authorisation of the DPP.

After reviewing the relevant authorities that are discussed below, I have decided that PSH is entitled to be accorded procedural fairness in relation to the DPP’s decision whether or not to authorise an extension of time in which a proceeding may be instituted against PSH. I have not, at this stage, ruled on the content of the procedural fairness that should be accorded to PSH save to rule that at a minimum PSH has the right to be heard.

The relevant authorities

Several cases have considered the issue of whether or not an administrative decision to extend the time for bringing a proceeding beyond the otherwise specified limitation statutory period imposes an obligation on the decision maker to accord procedural fairness to the person alleged to have committed the offence.

The VWA and the DPP place great reliance on Nicol v AG for Victoria.[2] In that case the appellant, a director of a company, contended that he had been denied natural justice where the Attorney General had consented to proceedings against the director under the Companies Act 1961. The relevant provision, s 381(2), provided that ‘Notwithstanding anything in any Act proceedings for an offence against this Act may be brought within the period of three years after the commission of the alleged offence, or with the consent of the Minister, at any later time.’
[2][1982] VR 353 (Nicol).

The appellant took proceedings under the Administrative Law Act1978. Under that Act, the court was required to decide whether a decision to consent to a prosecution under s 381(2) was a decision that could be reviewed under s 3 of the Administrative Law Act 1978 that provided:

Any person affected by a decision of a tribunal may make application… to the Supreme Court or a judge thereof for an order calling on the tribunal or the members thereof… to show cause why the same should not be reviewed.

The appellant contended that when three years had passed ‘after the commission of an alleged offence’ the appellant by reason of the terms of the relevant section of the Companies Act 1961 acquired a legitimate expectation that he would not be prosecuted, which legitimate expectation ought not to be taken from him without giving him the right to be heard. The appellant did not contend that the relevant section gave him any right, or conferred any immunity upon him, after the three years had expired.

Murphy J (with whom Starke and Marks JJ agreed) sitting as the Full Court of the Supreme Court of Victoria examined the relevant authorities on ‘legitimate expectation’. After considering the English authorities his Honour said:[3]

It is made clear in these English cases that the phrase ‘legitimate expectation’ is to be understood in this confined way, namely that from what has gone before the applicant may legitimately expect that his application will not be refused out of hand, will be dealt with fairly, and that, it if is contemplated that it may be refused, he will be given the opportunity to be heard after knowing what he has to meet.

[3]Ibid at 357.

His Honour then canvassed the Australian High Court authorities of Salemi v Mackellar(No 2)[4] and Heatley v Tasmanian Racing and Gaming Commission.[5] His Honour said that Salemi’s case gave little comfort to the appellant as the appellant was given no assurance by anyone. His Honour said ‘[the appellant’s] subjective hope may been heightened by the fact that proceedings were not instituted against him within three years. It cannot, I think, be put higher than that. He did not have any ‘legitimate expectation’ as that phrase was originally intended to be understood, nor yet as it was interpreted by Stephen J in Salemi’s case.’[6] His Honour said of Heatley v Tasmanian Racing and Gaming Commission[7] that ‘the very exercise of the power itself affected the rights of the individual concerned or his legitimate expectation that he would like others to be able to exercise those rights.’[8]
[4](1977) 137 CLR 396.
[5](1977) 137 CLR 487.
[6][1982] VR 353 at 359.
[7](1977) 137 CLR 487.
[8][1982] VR 353 at 360.

His Honour contrasted that position with that of the appellant. He said that s 381(2) was a both limiting and empowering section. He said that it entitled ‘the Commissioner, or any other person with the Minister’s written consent, to bring proceedings within three years or any later time, with the consent of the Minister.’ He concluded that the only right which the section impliedly gave was the right to object to a prosecution if, after three years, an information was laid without the Minister’s consent.[9]
[9]Ibid at 360.

Murphy J addressed the contention that the section gave an alleged offender an expectation that three years after commission of the alleged offence he will not be proceeded against. His Honour said that ‘the notion that the consent of the Minister to the bringing of such proceedings cannot be given before extending to an alleged offender the opportunity to be heard does not fit readily into the pattern of matters which in the past have been held to attract the principles of natural justice.’[10] The court rejected the appeal.
[10]Ibid.

The VWA contends that to its knowledge neither the Full Court or the Court of Appeal of this Court has disapproved of Nicol. Nicol, however, was distinguished by Gobbo J in this Court in SEC v Commissioner for Equal Opportunity.[11]
[11][1992] 1 VR 79.

In that case, the complainants had lodged complaints alleging, inter alia, victimisation in their employments. Under the Equal Opportunity Act 1984, complaints were required to be lodged within 12 months of the act of discrimination. The Commissioner for Equal Opportunity had power to extend time for a complainant to lodge a complaint of discrimination whether or not the ‘that time has expired.’ The Commissioner extended time within which complaints could be lodged by the complainants. The complainants’ employer, the SEC sought to review the decision of the Commissioner under the Administrative Law Act 1978.

Gobbo J held that the decision of the Commissioner was a reviewable ‘decision’ under the Act. Decision was defined to mean ‘a decision operating in law to determine a question affecting the rights of any person or to grant, deny, terminate, suspend or alter a privilege or licence and includes a refusal or failure to perform a duty or to exercise a power to make a decision.’

His Honour considered the decision of the Commissioner from two points of view. He held that the decision affected the right of the complainants and also affected the rights of the SEC. As to the complainants, his Honour said that the decision of the Commissioner to extend the time ‘so as to enable a complaint to be lodged that would otherwise be barred from being pursued under the Act was the determination of a question affecting the right of the complainant to lodge and purse a complaint under the Act that may result in substantial relief including an order for damage.’[12]
[12]Ibid at 82.

His Honour also found that the SEC’s rights were affected by the extension. His Honour said ‘I am of the opinion the determination did affect the SEC’s rights in that the SEC was now exposed to the full range of procedures and remedies as a result of the decision. This decision deprived it of an immunity from these processes that it otherwise would have enjoyed.’[13] His Honour said that the SEC was a person ‘affected’ by the decision and thus had standing to make the application for review under the Administrative Law Act 1978.
[13]Ibid 82-83.

The complainants relied on Nicol. Gobbo J distinguished Nicol.[14] He said:

It was not argued or decided in that case that any legal right was created or made out. but that there was a legitimate expectation that the defendant would not be prosecuted. Dicta in Cody v Joseph Pease Pty Ltd [1945] St R Qd 81, at p. 91, were referred to which spoke of the consent of the Attorney General not in any way determining a right or liability. It was said that the commissioner’s decision here was not finally determinative of any right or liability, and that that would only occur when the board came to resolve the complaint. It is not, however, necessary that the determination be finally determinative of a right. Indeed, the determination need only relate to a question affecting a right.
In my view, the decision in Nicol’s case turned largely on whether there was a legitimate expectation that consent would not be given without a hearing. The court found, at p. 361, that the discretionary power granted by s381(2) of the Companies Act was not examinable and was ‘to be exercised... without supervision limitation or control’. It may also be said that the act of the Attorney General in giving his consent was not a determination of a question at all. It was part of a process of authorisation and decided no controversy. The Attorney General’s role was thus quite different in character to that of the commissioner who is called upon to deal with complaints in accordance with a range of provisions in the Equal Opportunity Act. Moreover, the commissioner may only extend the time ‘if the Commissioner is satisfied that there is good cause for so doing’.

[14]Ibid 83.

In my opinion, SEC v Commissioner is authority for the proposition that the decision to grant the extension affected SEC’s rights and deprived it of immunity from proceedings and to that extent supports the case of PSH.

A different conclusion to that in Nicol, in similar circumstances, was reached in Oates v Williams,[15] a decision of the Full Court of the Federal Court of Australia (Foster, von Doussa and Finkelstein JJ). PSH places great reliance on this case. In that case, the appellant challenged a decision of the Minister to consent to the institution of proceedings against him under the Corporations Law. The Minister exercised the power given in s 1316 of the Corporations Law that provided:

Despite anything in any other law, proceedings for an offence against this law maybe instituted within the period of 5 years after the act or omission alleged to constitute the offence or, with the Minister’s consent, at any later time.

[15](1998) 84 FCR 348 (Oates v Williams).

Their Honours accepted that generally at common law the decision to commence criminal proceedings is not a reviewable decision.[16] Their Honours identified several factors that had led to this position. They said:[17]

A criminal proceeding will commence upon the preferring of an indictment or the laying of an information against or on the arrest of an accused person; James v Robinson; R v Rogerson. It is generally accepted that a decision to commence a criminal proceeding is not a reviewable decision: Wiseman v Borneman; Gouriet v Union of Post Office Workers. The reasons for this were explained by the High Court in Barton v R where the court was required to consider whether the decision by the Attorney-General to present an ex officio indictment was reviewable. First, the function of the Attorney-General in commencing a prosecution is one that otherwise was performed by the grand jury whose decisions were not subject to review. Second, it is undesirable that a court whose ultimate function is to determine the accused’s guilt should become too closely involved in the question whether the prosecution should be commenced. Third, the court has inherent power to prevent an abuse of process and thus can consider whether a prosecution should be permitted to continue. Finally, the administration of justice does not require such a decision to be reviewable because the court has power to ensure that an accused person is fairly treated. (citations omitted)

[16]Ibid at 353.

[17]Ibid.

Their Honours held, however, that the decision to commence a prosecution has little in common with a decision to authorise proceedings under s 1316. The court held that upon the expiration of five years the appellant had acquired a right or immunity that gave the appellant a complete defence to proceedings. The court said that the decision of the Minister to consent to proceedings was to take away a defence that was conferred by statute.[18]
[18]Ibid 359.

The court distinguished the factors relevant to a decision to allow a prosecution to proceed out of time on the one hand and a decision to commence or consent to the commencement of proceedings on the other. Their Honours said that in the case of the decision to prosecute the decision maker must decide whether there is a prima facie case. They said that in the case of consenting to prosecute, the decision maker is only concerned to determine whether the proposed prosecution is frivolous or vexations but is not otherwise concerned with the merits of the case.[19] They said that when a decision is made to allow a prosecution to proceed out of time, the decision maker must consider why the prosecution was not commenced within time and whether the accused will be unfairly prejudiced. In the case of the decision to allow a prosecution out of time the court held that the Minister was obliged to afford the accused procedural fairness.
[19]Ibid at 355.

The court accepted that the conclusion they had reached was inconsistent with certain of the reasoning of the court in Nicol. They said that Nicol had concluded that s 381(2) of the Companies Act 1961 did not give any right or confer any immunity upon a person after the time had passed within which such a prosecution for an offence against the Companies Act 1961 may be instituted. Their Honours said no reason was given for that proposition and that they disagreed with it. They said that in their view, s 1316 of the Corporations Law (and s 381(2) of the Companies Act 1961 before it) plainly confers an immunity from prosecution albeit a conditional immunity.

The Full Court in Oates v Williams also disagreed with Nicol on whether the accused had a legitimate expectation to be heard before consent to a prosecution was given. They said:[20]

The Full Court also held that an accused did not have a legitimate expectation to be heard before a consent to a prosecution was given. The Full Court reached this conclusion after a review of the cases that considered the circumstances in which an ‘expectation’ would arise and concluded that those cases were
‘to be understood in this confined way, namely that from what has gone before the applicant may legitimately expect that his application will not be refused out of hand, will be dealt with fairly, and that, if it is to be contemplated that it may be refused, he will be given an opportunity to be heard after knowing what he has to meet.’: see [1982] VR at 357.

Whether that statement represented a correct summary of the law when Nicol was decided need not be determined. What is clear is that it no longer can be regarded as correct. The circumstances in which a legitimate expectation that a person will be heard can arise are many and varied and need not arise from the past conduct of the decision-maker. So much is clear from the judgment of Mason CJ in Quin (AG (NSW) v Quin (1990) 170 CLR 1) referred to above: see also de Smith, Woolf and Jowell, ‘Judicial Review of Administrative Action’ (5th ed) at paras 8-042 to 8-044; Save the Showgrounds for Sydney Inc. v The Minister for Urban Affairs and Planning (1997) 95 LGERA 33.

[20]Ibid at 359-360.

Oates v Williams went on appeal to the High Court of Australia, as Attorney-General (Commonwealth) v Oates,[21] where the appeal was decided without the necessity of considering the issue of procedural fairness.[22] In AG v Oates, the High Court allowed the appeal against the Full Federal Court’s decision in Oates v Williams on the ground that, contrary to the assumption of the Federal Court, s 1316 of the Corporations Law was facultative, not restrictive. The Court said the section authorised the commencement of proceedings (for example in respect of summary offences) which otherwise would be barred by reason of a time limitation imposed in another statute. As there was no limit on the commencement of proceedings for an indictable offence, the section did not limit such a proceeding being instituted. As Mr Oates had been charged with indictable offences, the consent of the Attorney General was not required. The orders and declarations of the Full Federal Court were set aside.
[21](1999) 198 CLR 162 (AG v Oates).
[22]AG v Oates at 178.

The construction issue on s 1316 of the Corporations Law dealt with by the High Court in AG v Oates does not arise in this case. As PSH says in its submissions, the OHS Act relates to indictable offences. Further, s 132 is expressly headed ‘Limitations Period for Prosecutions’ and is directed to preventing delay in bringing prosecutions. Nevertheless, the High Court’s decision in AG v Oates may have relevance to the authority of Oates v Williams, under the principles of stare decisis, as I canvass below.

The Full Court of the Supreme Court of South Australia in Gelzinis v T&R (Murray Bridge)[23] cited with approval the acceptance in Oates v Williams that the decision to authorise proceedings after the limitation period had expired amounted to taking away an accrued defence.[24]
[23](2009) 103 SASR 194 (Gray, Sulan and David JJ).
[24]Ibid at 205.

In Gelzinis v T&R (Murray Bridge)[25] the appellant had laid a complaint against the respondent alleging a breach of the Occupational Health and Safety and Welfare Act 1986 (SA). In reliance on an amendment to the Act the Acting Director of Public Prosecutions had extended the two year time limit for the laying of the complaint that would otherwise apply. The accused challenged the extension of time. The Full Industrial Court held that the extension decision was invalid as the decision maker had not followed the required procedure. The complainant appealed to the Full Court of the Supreme Court. The Court held that the purported exercise of the power to extend was a nullity and beyond power and dismissed the appeal. The Court held that the Acting Director of Public Prosecutions was obliged to identify the relevant preconditions to his exercise of power.
[25](2009) 103 SASR 194 (Gray, Sulan and David JJ).

The Court held that at the time the amendment was made to permit an extension of time, T&R (Murray Bridge) had not acquired a vested right by the effluxion of the limitation period. They held that the introduction of the amendment was thus procedural.[26] The Court held that if the right had vested then the normal rule of construction would apply and that the retrospective amendment would be treated as not intending to infringe that accrued right. Their Honours held that accordingly the power of the Director to extend time was available in respect of the particular incident involving T&R (Murray Bridge). In doing so, the Court examined the rationale for enacting time limits. They said:[27]
[26]They cited Karounos v Favel (1984) 14 A Crim R 18 which I will discuss below.
[27]Gelzinis v T&R (Murray Bridge) [2009] SASC 61; (2009) 103 SASR 194 at [11]-[14].

[11] The rationale for the enacting of limitation periods in summary criminal cases and civil cases is that the limitation period represents the legislature’s judgment as to what the public interest requires after taking into account the relevant factors including the prejudice which delay may create.
[12] McHugh J relevantly observed in Herron v McGregor:[28]
[28]Herron v McGregor (1986) 6 NSWLR 246 at 253.
Since the passing of the Statute of Limitations 1625, the institution of most civil proceedings has been subject to time limitations. Even before that time many actions were subject to time limitations: see 4 Bacon's Abridgment, 5^th ed at 461 et seq. And criminal proceedings heard summarily are also invariably subject to time limitations. In civil and summary criminal cases, therefore, it hardly seems possible for a court to say that an action brought within the limitation period is oppressive because mere delay in commencing the proceeding has prejudiced the defendant or accused person: cf Birkett v James (at 322). The limitation period represents the legislature's judgment as to what the public interest requires after taking into account the relevant factors including the prejudice which delay may create. In respect of criminal charges triable on indictment, limitation periods are rarely enacted.

McHugh J further noted in Brisbane South Regional Health Authority v Taylor:[29]
[29]Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 551 (McHugh J); R v Lawrence [1982] AC 510, 517 (Lord Hailsham of St Marylebone LC).
The enactment of time limitations has been driven by the general perception that ’[w]here there is delay the whole quality of justice deteriorates’.

[13] It may be said that the limitation period is the general rule and that an extension provision is the exception to it. When speaking of extension provisions generally, McHugh J added:
The extension provision is a legislative recognition that general conceptions of what justice requires in particular categories of cases may sometimes be overridden by the facts of an individual case.[30]

[14] Although the above observations were made in the context of the exercise of a judicial discretion to extend time, the underlying rationale has, it is suggested, equal applicability to the discretion created by section 58(6a). The discretion operates to override the applicable limitation period in a particular case where relevant circumstances have prevented the laying of a complaint within a specified time limit.

[30]Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 553 (McHugh J).

Importantly for the case before me, the Full Court of the Supreme Court of South Australia accepted that if the limitation period had expired the respondent would have acquired a vested right that would not be lost by the retrospective legislation.

In Karounos v Flavel,[31] the Full Court of the Supreme Court of South Australia considered, inter alia, the validity of a complaint laid under the Companies Act 1962 (SA). Zelling J (with whom Wells J agreed on this issue) held that an amending Act permitting an extension of time to lay a complaint under the Companies Act had retrospective operation in relation to the accused as the vested right or defence arising from the expiration of the limitation had not accrued. Zelling J said:

The distinction made by the authorities is that if the time for prosecution had expired before the instigation of proceedings a vested right or defence is lost where the amending Act is held to be retrospective whereas if the right to prosecute has not expired no right or defence is lost.

[31](1984) 75 FLR 47 (Zelling J.

The important element for the case at hand, is the recognition that the expiration of a limitation period gives rise to a vested right or defence. This case was cited with approval in Oates v Williams[32] on this point.
[32](1998) 84 FCR 348 at 354.

Natural justice

PSH contends that the authorities on procedural fairness also support its submission that it ought be accorded procedural fairness by the DPP. In Kioa v West[33] Mason J said that the law in relation to administrative decisions:[34]

…. has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention.

[33](1985) 159 CLR 550.

[34]Ibid at 584.

In Haoucher v The Minister for Immigration and Ethnic Affairs,[35] Deane J said that the law seemed to him ‘to be moving towards a conceptually more satisfying position where common law requirements of procedural fairness will, in the absence of a clear contrary legislative intent, be recognised as applying generally to governmental executive decision-making.’[36] (citations omitted)
[35](1990) 169 CLR 648.
[36]Ibid at 653.

These principles have recently been affirmed and amplified by the High Court of Australia in Saeed v Minister for Immigration and Citizenship[37] where the plurality said:[38]
[37](2010) 241 CLR 252.
[38]Ibid at [11]-[15] (French CJ, Gummow, Hayne, Crennan and Kieffel JJ).

[11] In Annetts v McCann it was said that it could now be taken as settled that when a statute confers power to destroy or prejudice a person’s rights or interests, principles of natural justice regulate the exercise of that power. Brennan J in Kioa v West explained that all statutes are construed against a background of common law notions of justice and fairness. His Honour said:
When the statute does not expressly require that the principles of natural justice be observed, the court construes the statute on the footing that ‘the justice of the common law will supply the omission of the legislature’. The true intention of the legislation is thus ascertained.

[12] The implication of the principles of natural justice in a statute is therefore arrived at by a process of construction. It proceeds upon the assumption that the legislature, being aware of the common law principles, would have intended that they apply to the exercise of a power of the kind referred to in Annetts v McCann.
[13] Observance of the principles of natural justice is a condition attached to such a statutory power and governs its exercise, as Brennan J further explained in Kioa v West. A failure to fulfil that condition means that the exercise of the power is inefficacious. A decision arrived at without fulfilling the condition cannot be said to be authorised by the statute and for that reason is invalid.
[14] In Annetts v McCann Mason CJ, Deane and McHugh JJ said that the principles of natural justice could be excluded only by ‘plain words of necessary intendment.’ And in Commissioner of Police v Tanos Dixon CJ and Webb J said that an intention to exclude was not to be assumed or spelled out from ‘indirect references, uncertain inferences or equivocal considerations’. Their Honours in Annetts v McCann added that such an intention was not to be inferred from the mere presence in the statute of rights consistent with some natural justice principles.
[15] The presumption that it is highly improbable that Parliament would overthrow fundamental principles or depart from the general system of law, without expressing its intention with irresistible clearness, derives from the principle of legality which, as Gleeson CJ observed in Electrolux Home Products Pty Ltd v Australian Workers’ Union , ‘governs the relations between Parliament, the executive and the courts’. His Honour said:
The presumption is not merely a common sense guide to what a Parliament in a liberal democracy is likely to have intended; it is a working hypothesis, the existence of which is known both to Parliament and the courts, upon which statutory language will be interpreted. The hypothesis is an aspect of the rule of law.[39]

(citations omitted).
[39](2010) CLR 252 at [11] – [15].

The relevant legislation

The relevant provisions of the OHS Act provide:

Part 11—Legal Proceedings
Division 1—General matters
130    Proceedings may be brought by the Authority or inspectors
(1)     Proceedings for an offence against this Act may be brought only by—
(a)     the Authority; or
(b)     an inspector with the written authorisation of the Authority (either generally or in a particular case).
(2)     An authorisation under subsection (1)(b) is sufficient authority to continue proceedings in any case where the court amends the charge-sheet, warrant or summons.
(3)     An inspector who brings proceedings may conduct the proceedings before the court.
(4)     The Authority must issue, and publish in the Government Gazette, general guidelines for or with respect to the prosecution of offences under this Act.
(5)     Nothing in this section affects the ability of the Director of Public Prosecutions to bring proceedings for an indictable offence against this Act.
131    Procedure if prosecution is not brought
(1)     If—
(a)a person considers that the occurrence of an act, matter or thing constitutes an offence against this Act; and
(b)no prosecution has been brought in respect of the occurrence of the act, matter or thing within 6 months of that occurrence—

the person may request in writing that the Authority bring a prosecution.
(2) Within 3 months after the Authority receives a request it must—
(a)investigate the matter; and
(b)following the investigation, advise (in writing) the person whether a prosecution has been or will be brought or give reasons why a prosecution will not be brought.

(3)If the Authority advises the person that a prosecution will not be brought, the Authority must refer the matter to the Director of Public Prosecutions if the person requests (in writing) that the Authority do so.
(4)The Director of Public Prosecutions must consider the matter and advise (in writing) the Authority whether or not the Director considers that a prosecution should be brought.
(5)The Authority must ensure a copy of the advice is sent to the person who made the request and, if the Authority declines to follow advice from the Director of Public Prosecutions to bring proceedings, the Authority must give the person written reasons for its decision.
(6)The Authority must include in its annual report, and publish on its website, a statement setting out—
(a)the number of requests received by the Authority under subsection (1); and
(b)the number of cases in which the Authority has advised under subsection (2)(b) that a prosecution has been or will be brought, or will not brought; and
(c)the number of cases in which the Director of Public Prosecutions has advised under subsection (4) that a prosecution should be brought or should not be brought.

132 Limitation period for prosecutions
Proceedings for an indictable offence against this Act may be brought—
(a)within 2 years after the offence is committed or the Authority becomes aware the offence was committed; or
(b)at any time with the written authorisation of the Director of Public Prosecutions.

The relevant provisions of the Criminal Procedure Act 2009 on the power of the DPP to bring proceedings for indictable offences are as follows:

Section 5 How a criminal proceeding is commenced
A criminal proceeding is commenced by—
(a)filing or signing a charge-sheet in accordance with section 6; or
(b)filing a direct indictment in accordance with section 159; or
(c)a direction under section 415 that a person be tried for perjury.

Section 7 Time limits for filing a charge-sheet
….
(2) A proceeding for an indictable offence—
(a)may be commenced at any time, except where otherwise provided by or under this or any other Act;

….

Section 159 DPP or Crown Prosecutor may file an indictment
(1)Subject to the Public Prosecutions Act 1994, the DPP or a Crown Prosecutor in the name of the DPP may file an indictment.
(2)An indictment may be filed at any time, except where otherwise provided by or under this or any other Act.
….

Under the Public Prosecutions Act 1994 –

Section 24 Matters to which Director must have regard
In the performance of his or her functions the Director must have regard to—
(a)considerations of justice and fairness; and
(b)the need to conduct prosecutions in an effective, economic and efficient manner; and
(c)the need to ensure that the prosecutorial system gives appropriate consideration to the concerns of the victims of crime.

The legislative history

This history is taken from the written submission of the plaintiff. There was no dissent to it from the defendants.

Under the Occupational Health and Safety Act 1985, there was no limitation on the period for the bringing of prosecutions for indictable offences under the OHS Act. This is consistent with the general law that, absent a specific statutory provision, there are no time limits for the prosecution of indictable offences.

In March 2004 Mr Chris Maxwell QC (now Maxwell P of the Court of Appeal of this Court) produced a comprehensive review of the Occupational Health and Safety Act 1985 (the Maxwell Report) at the request of the government of the day. The Maxwell Report was the basis for the new OHS Act. Among many other changes, the Report recommended the introduction of a two year time limit for prosecutions consistent with a similar provision in the New South Wales OHS Act. This was based on the following considerations of Mr Maxwell:

[1744] In my view, it is appropriate that there be a general limitation period on the institution of prosecutions. First, it seems wrong in principle for a potential defendant to be left indefinitely in a state of uncertainty as to whether it will have to face charges. Secondly, where the investigation arises out of a workplace incident causing injury or death, there are very significant implications for the worker, for his or her dependants and for the employer if the investigation continues for a long period.
[1745] I have received submissions from parties who have been affected by long running investigations in circumstances such as these. These submissions have drawn attention to the high degree of distress which results, both from the continuing uncertainty and, ultimately, from the awareness of all parties that they will be required to revisit the unfortunate circumstances when the matter eventually comes on for hearing.
[1746] There is another, quite different, consideration. It is of the first importance, for reasons of general deterrence that the Authority’s prosecution activities should be and be seen to be, responsive to breaches of the Act. If several years are allowed to pass between a serious workplace incident and the bringing of Defendants to trial, the educative impact of the prosecution - in underlining the importance of OHS compliance - is inevitably diminished.
[1747] Accordingly, I recommend that there be a general time limit of two years on all prosecutions. This is consistent with the position in New South Wales. The New South Wales exception in relation to Coronial enquiries should also be included.[40]
[1748] This time limit would need to be qualified to allow for the circumstance where evidence of a contravention did not come to the attention of the Authority until some time after the occurrence. In this regard s 63A of the Environment Protection Act 1970 allows, in addition to a general limitation of three years-
‘a further period being within one year after the day on which the Authority… first obtained evidence of the commission of the alleged offence…’[41]

[40]Victoria, Occupational Health and Safety Act Review (March 2004) (‘the Maxwell Report’) at 362.

[41]Section 63A had the additional words ’considered sufficient by the Authority to warrant commencing proceedings’, but they are not appropriate here, in my view.

Each of the Australian jurisdictions (save for the ACT) includes a limitation period for bringing charges under equivalent OHS legislation. The time limits vary from one year to three. In the other jurisdictions, offences under their OHS Acts are summary. However, they apply the to the same general duty provisions to make the workplace as safe as practicable, and to the same range of offences as the Victorian legislation (including fatalities), and carry heavy fines as maximum penalties (for example, $825,000 for a breach of the primary duty and $1.65 million for an offence of reckless conduct causing death in NSW).

Only Victoria and South Australia allow the DPP to extend the statutory time limit. In the other jurisdictions, the limitation periods apply in the normal way without the possibility of extension.

Section 132, as enacted, was headed ‘Limitation Periods for Prosecutions’ and applied specifically to indictable offences. Ultimately it followed the Maxwell Report recommendation for a two year limitation period from the occurrence of the offence or time the VWA became aware of it.[42] However, it did not follow the recommendation to include a specific provision in relation to offences which came to light in a coronial hearing. It provided, however, a more general power (s 132 (b)) in the DPP to authorise charges outside the two year time limit.[43]
[42]PSH says ‘that when the Bill for the Act as originally drafted was before the Legislative Assembly it contained a 3 year limitation period (Hansard 18 November 2004 p, 1763). The period was reduced to two years by circulated amendments adopted without debate at the conclusion of the committee stage (Hansard 9 December 2004 p, 2259). In response to criticism that there were too many amendments and too little time to debate them, the Minister said that the amendments (including the amendment to s132) were to avoid unintended consequences and to give effect to recommendations in the Maxwell Report: Hansard at p 2255:
Mr HULLS (Minister for WorkCover)… at p2255 ’…we are not prepared to compromise when it comes to worker’s lives. We are not prepared to move amendments to the bill that will undermine the recommendations of Maxwell. We are not prepared to do that. Yes, we have moved amendments to this legislation. The opposition asks why; it is because we have consulted and because the employer groups and the unions have said that there are some unintended consequences that could be fixed up. We have it made it clear to them that we do not want any unintended consequences of the legislation. That is why we have moved the amendments. But we are not prepared to compromise on safety. and we are not prepared to compromise on Maxwell’s recommendations. We are not prepared to undermine the philosophy of Chris Maxwell’s recommendations, because to do so would be to betray workers in this state. To do so would lead to more deaths in workplaces, more serious injuries, and as a Labor government, we are not prepared to do that.’’
[43]The Explanatory Memorandum (at 53), states the following: ‘Clause 132 places a 2-year limitation period on the prosecution of indictable offences against the Bill. This period applies from the commission of the offence, or when the Authority becomes aware that the offence has been committed. However, proceedings may be commenced at any time with the written authorisation of the Director of Public Prosecutions.’

Limitation Period for Prosecutions
Proceedings for an indictable offence against this Act may be brought -
(a) within two years after the offence is committed or the VWA becomes aware the offence was committed; or
(b)at any time with the written authorisation of the Director of Public Prosecutions.

In my view, the Maxwell Report may be considered in the interpretation of s 132.[44]
[44]Section 35 of the Interpretation of Legislation Act1984.

Discussion of s 130-132

Under s 130 proceedings may be brought by the Authority or an inspector with written authorization of the Authority. The right of the DPP to bring proceedings for an indictable offence are not affected. The DPP has such a right under ss 7 and 159 of the Criminal Procedure Act 2009. Under s 131 of the OHS Act, a procedure is established if a prosecution is not brought. Under that section in certain circumstances the DPP must consider the matter and advise (in writing) the Authority whether or not the Director considers that a prosecution should be brought.

Section 132 deals with the limitation period for prosecutions. As indicated above, the DPP contends that his right to prosecute is not limited by this section. I accept that the section does not affect the ability of the DPP to bring proceedings.

The DPP argues that s 132 does not apply to proceedings brought by the DPP under the CP Act as, if it did, then in the event that the limitation period provided in s 132(a) had expired the DPP would be required to provide written authorization to him or her self before he or she could bring proceedings. The DPP suggests that that is a nonsense[45] and that Parliament would not have intended such a situation.
[45]Transcript of hearing p 22.

The Maxwell Report supports the view that Parliament intended by its amendments to the OHS Act to impose a limitation period on the initiating of proceedings under the OHS Act. In my view, s 132 expressly does that and has ‘otherwise provided’ for the purposes of s 7 and 159 of the CP Act. To uphold the submission of the DPP that s 132 does not limit his power to initiate proceedings at any time would effectively deny the limitation on proceedings that the Maxwell Report so cogently argued should be imposed.

Further, in my view, the submission of the DPP overlooks the significant difference between a decision to authorise proceedings to be instituted after the limitation period imposed by s 132(a) has expired and the decision to bring proceedings. As explained in Oates v Williams the factors taken into account in considering whether to authorise the institution of a proceeding after the limitation period set in s 132(a) has expired are different to the factors relevant to the decision to bring proceedings.

The DPP also contends that properly construed s 132 provides no time bar to the VWA and its authorised officers instituting proceedings provided that they meet the limitation period provided in s 132(a) or obtain the authorization of the DPP. I understood this submission to argue that if the time period under s 132(a) expires that PSH has accrued no right or immunity from proceedings.

In my opinion, the power of the DPP to authorise the bringing of proceedings can only be enlivened when those authorised to bring proceedings are no longer able to as the limitation period specified in s 132(a) has expired. In other words, the DPP could not authorise the bringing of a proceeding under s 132(b) if the proceeding could otherwise be brought under s 132(a) and no authority was required. The purported authorizing would have no legal effect. In my opinion, on its proper construction, s 132(b) is only enlivened when the limitation period specified in s 132(a) has otherwise expired and those who otherwise could bring proceedings under s 132(a) no longer have the power to do so.

On this analysis, the right or immunity from defence would have accrued and the granting of written authorization under s 132(b) would ‘destroy, defeat or prejudice a person’s rights, interests and legitimate expectations’[46] in the accrued right or indemnity defence.
[46]Annetts v McCann (1990) 170 CLR 596 at 598.

The DPP argues that granting procedural fairness to the accused would run counter to well established principles that recognize that decisions to prosecute are not subject to judicial review.

In Maxwell v The Queen,[47] Gaudron and Gummow JJ said:[48]

It ought now be accepted, in our view, that certain decisions involved in the prosecution process are, of their nature, insusceptible of judicial review. They include decisions whether or not to prosecute, to enter a nolle prosequi, to proceed ex officio, whether or not to present evidence and, which is usually an aspect of one or other of those decisions, decisions as to the particular charge to be laid or prosecuted. The integrity of the judicial process – particularly, its independence and impartiality and the public perception thereof – would be compromised if the courts were to decide or were to be in any way concerned with decisions as to who is to be prosecuted and for what.

[47](1996) 184 CLR 501.

[48](1996) 184 CLR 501 at 534 (footnotes omitted).

The defendants argue that the decision of the DPP to extend time for the bringing of proceedings under the OHS Act is a decision involved in the prosecution process and that accordingly the decision should not be subject to judicial review. I do not agree. In my opinion, the decision is not part of the prosecution process in the sense used by their Honours.

In my opinion, a decision to extend time for a proceeding beyond the otherwise statutory limitation period involves a decision of a different character to that traditionally protected from judicial review. In Oates v Hamilton[49] the Court set out the factors that support the exempting of decisions to prosecute from judicial review. It is appropriate to set out in full their consideration of this issue:[50]
[49](1998) 84 FCR 348.
[50](1998) 84 FCR 348 at 354-356.

A decision taken under s 1316 [by the Minister to extend the time within which proceedings could be instituted] has little in common with a decision to commence a prosecution or a decision to consent to the commencement of a prosecution. In the first place the effect of a decision under s 1316 is to take away from an accused the ability to plead an absolute answer to a criminal prosecution. It is a defence that was described as a vested right by Zelling J in Karounos and as an immunity by Jenkinson J in Bond v Minister for Justice. But howsoever it is to be described, from the point of view of the accused it is a very important right or immunity. On the other hand, a decision to commence a prosecution or to consent to the commencement of a prosecution does not affect any right of the accused.
Secondly, the matters that fall for consideration when making these decisions are different. In the case of a decision to prosecute the decision-maker must decide whether there is a prima facie case. When a consent to a prosecution is required the decision-maker is only concerned to determine whether the proposed prosecution is frivolous or vexatious but is not otherwise concerned with the merits of the case.
Section 1316 does not set out what the Minister must take into account in determining whether to consent to a prosecution out of time. That does not mean that the Minister has a discretion that is ‘almost without definition’ (see e.g. Swan Hill Corporation v Bradbury). The scope and purpose of s 1316 does indicate the type of matters that should be considered.
What the Minister must decide is whether it is reasonable to allow the prosecution to proceed out of time. This will involve a consideration of two principal issues. The first is the reason the prosecution was not commenced within the five year period. Here it will be necessary for the Minister to consider the conduct of those investigating the alleged offence and whether that investigation was conducted with due diligence. If no sufficient reason for delay is shown then it would not be expected that a consent to prosecute will be given. The second issue is whether the grant of consent will unfairly prejudice the accused. The grant of consent will inevitably cause some hardship to the accused. But his position may be such that it would be unreasonable to require him to face a late prosecution. For example, an accused may be significantly disadvantaged in facing a trial many years after the date upon which the alleged offence was committed. Material witnesses may have died or may not be found. Critical documents may have been lost or destroyed. There may be other circumstances personal to the accused that would make a late prosecution harsh or unjust.
There are other issues that should also be taken into account. The Minister must consider the seriousness of the offence with which the accused is to be charged and whether the public interest would be served by its prosecution. The Minister should also have regard to the harm, if any, that has been caused by the commission of the offence.
However, notwithstanding authority to the contrary (Buffier v Bowen) we do not regard it to be the Minister’s function when considering whether to grant his consent that the Minister must be satisfied that there is a prima facie case against the accused. The Corporations Law has limited the class of person who may institute a criminal proceeding. A prosecution may be commenced by the ASC, a delegate of the ASC, or a person authorised by the Minister: s 1315. It is one or other of those persons who must decide whether there is a prima facie case. Thus it is not to be supposed when the Minister is considering whether a prosecution should be instituted out of time that the Minister is required to determine whether there is a prima facie case to be prosecuted. When asked to give his consent to a prosecution the Minister is entitled to assume that the person authorised to institute the prosecution has decided or will decide that a prima facie case does exist before the prosecution is instituted. To require the Minister also to consider whether there is a prima facie case will in many cases place an onerous obligation on the Minister. The offences created by the Corporations Law are many and varied. Not uncommonly they will arise out of a complex series of transactions that have occurred over a substantial period of time and an investigation in respect of them may have taken many years to complete. If the Minister was required to review this material to see whether there is a prima facie case there will be further delay in the institution of proceedings to the potential disadvantage of the accused.
Nor do we think that it is necessary for the Minister to consider whether the institution of a prosecution is vexatious. Section 1315 is designed to ensure that frivolous proceedings are not instituted and that the enforcement of the Law is in respectable hands. If the Minister does become aware of circumstances that show that a prosecution is frivolous or vexatious then of course he would not grant his consent under s 1316. However, we do not regard it as part of the Minister’s function to go over the prosecution case and form a view about the merits of the case before the power under s 1316 can be exercised. (citations omitted)

As indicated in this extract, the decision to extend time to institute a proceeding does not involve considering whether or not there is a prima facie case against the accused. That decision is made by the person authorised to bring the proceeding. Under the OHS Act the DPP is authorised to bring the proceeding. However, the decision by the DPP to bring the proceeding would be made taking different matters into account to those taken into account in deciding whether to extend time in which to bring the proceeding.

The four factors mentioned in Barton v The Queen[51] and set out in Oates v Williams would not be impinged if the decision of the DPP to extend time was subject to extending procedural fairness to the alleged offender. The decision is not one that was originally made by the Grand Jury. Secondly, it is not undesirable that the court should require procedural fairness to be extended to the accused as the court may be ultimately involved in determining the accused’s guilt of innocence. Thirdly, an application for stay of proceedings as an abuse of process would be unlikely to extend to a decision to extend the time for instituting proceedings as opposed to the decision to institute the proceeding. Finally, the court does not have otherwise have the power to ensure that an accused person is extended procedural fairness as it would have in relation to the institution of the proceedings themselves where the court can and does enforce procedural fairness.
[51](1980) 147 CLR 75 at 94-95 per Gibbs ACJ and Mason J.

In my opinion, this analysis of the section and the authorities of Oates v Williams,[52] SEC v Commissioner,[53] Gelzinis v T&R (Murray Bridge)[54] and Karounos v Flavel,[55] supports the view that PSH does have a right and immunity from prosecution that gives rise to an obligation on the DPP to accord procedural fairness natural justice to PSH in authorizing the institution of proceedings under s 132(b).
[52](1998) 84 FCR 348.
[53][1992] 1 VR 79.
[54](2009) 103 SASR 194.
[55](1984) 75 FLR 47.

Is Nicol binding on this Court?

The DPP contends that Nicol is binding on this Court and that accordingly I should find that, contrary to the contention of PSH, it has not accrued a right of immunity the deprivation of which entitles it to be extended procedural fairness.

On the other hand, PSH says that I am not bound by Nicol but by the High Court decisions in Kioa v West[56] and Annetts v McCann[57] on the common law right to natural justice.[58] In Annetts v McCann the High Court said that:[59]

It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person’s rights, interests or legitimate interests, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment.

[56](1985) 159 CLR 550.

[57](1990) 170 CLR 596.

[58]Hearing transcript 47.

[59](1990) 170 CLR 596 at 598.

The High Court cited as authority for that proposition Commissioner of Police v Tanos;[60] Twist v Randwick Municipal Council;[61] Heatley v Tasmanian Racing and Gaming Commission;[62] J v Lieschke;[63] and Haoucher v Minister for Immigration and Ethnic Affairs.[64] All but the last two had been decided before Nicol. The central principle of the proposition cited by the High Court in Annetts v McCann,[65] that natural justice extends to a person’s rights, interest or legitimate interests, appears to have been recognised before Nicol was decided. PSH have not indicated in what respect if any the law has changed since 1982.
[60](1958) 98 CLR 383 at 395-396.
[61](1976) 136 CLR 106 at 109-110.
[62](1977) 137 CLR 487 at 496, 500.
[63](1987) 162 CLR 447 at 456.
[64](1990) 169 CLR 648 at 680.
[65](1990) 170 CLR 596.

Stare decisis

On one view, the ratio of Nicol does not apply to this case. In Nicol the plaintiff did not claim that he had acquired a right or obtained any immunity upon the expiration of the limitation period. Rather, the plaintiff claimed that after the limitation period of three years he had a legitimate expectation that he would not thereafter be prosecuted.

It is the case, however, that Murphy J said that ‘[i]n terms, s 381(2) does not give any right or confer any immunity upon a person after three years has passed following the commission of an alleged offence.’ Strictly speaking, that observation was obiter dicta. Gobbo J in SEC v Commissioner also observed that Nicol concerned the claim of a legitimate expectation rather than a claim of an accrued right or indemnity.

It might be argued, however, that even though Nicol concerned a claim to a legitimate expectation that the Court did base its decision on its finding that the expiration of the initial limitation period did not give rise to any right or confer any immunity upon a person after the time had passed within which such a prosecution for an offence against the Companies Act may be instituted. Certainly, the Court in Oates v Williams considered there was a conflict between Nicol and its decision.

PSH contends that the authority of Nicol is further weakened by the holding of the High Court in AG v Oates that s 381 of the Companies Act 1961 (the predecessor of s 1316 of the Corporations Law) was solely concerned with enabling summary prosecutions within the normal twelve month period applicable to summary offences generally and had no application to indictable offences.

The High Court decision may have further consequences for the authority of Nicol. Section 1316 of the Corporations Law considered by the High Court in AG v Oates began: ‘Despite anything in any other law, proceedings…’ Section 381 of the Companies Act 1961 considered in Nicol began: ‘Notwithstanding anything in any Act proceedings…’ The similarity in language is such that it suggests on the High Court reasoning, that s 381 was also facilitative and not restrictive and that similarly s 381 did not impose a limitation on the institution of proceedings for indictable offences.

The ratio of the decision in Oates v Williams was that the expiration of the initial limitation period did give rise to a right or confer an immunity in the accused. The final decision in Nicol related to the application of the Administrative Law Act 1978. In my opinion, however, I can not overlook that the Full Court in Nicol said that the expiration of the [assumed] limitation period did not give any right or confer any immunity upon a person who is alleged to have committed the relevant offence. It might be said, therefore, that each of Nicol and Oates v Williams turned on whether the expiration of a limitation period (that could be extended) nevertheless gave rise to an accrued right or immunity.

I did not hear any submissions on these difficult issues but nevertheless will seek to address them. The relevant principles on the obligation of a trial judge when applying the common law of Australia are relatively well settled. According to Farah Constructions Pty Ltd v Say-Dee Pty Ltd[66] there is but one common law of Australia[67] and trial judges are bound by decisions of an intermediate court in another jurisdiction on issues of common law. The Court said:[68]

Intermediate appellate courts and trial judges in Australia should not depart from decisions in intermediate appellate courts in another jurisdiction on the interpretation of Commonwealth legislation or uniform national legislation unless they are convinced that the interpretation is plainly wrong. Since there is a common law of Australia rather than of each Australian jurisdiction, the same principle applies in relation to non-statutory law. There has already been an example of a single judge feeling obliged to follow the Court of Appeal despite counsel's submission that he was obliged not to do so.

[66](2007) 230 CLR 89; [2007] HCA 22; (2007) 81 ALJR 110 (Say-Dee) per ; see also Hili v The Queen (2010) 242 CLR 520 at [57] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.

[67](2007) 230 CLR 89 at [135]. This was not the first decision in which members of the High Court recognised that there is a single common law of Australia, indeed, this was recognised as early as 1915: R v Kidman (1915) 20 CLR 425 at p 436. See also Mabo v Queensland [No 2] (1992) 175 CLR 1 at pp 29-30; Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 at p 508 (per Mason CJ and Toohey J) and at p 556 per McHugh J; Kable v DPP (NSW) (1996) 189 CLR 51 at pp 112 -113 per McHugh J and pp137-138 per Gummow J; Lipohar v R (1999) 200 CLR 485 per Gleeson CJ at [24], per Gaudron, Gummow and Hayne JJ at [57] and [80], per Kirby J at [179], cf. Callinan J at [230]-[259]; John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503 at [15]; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at p 556; CSR Limited v Eddy (2005) 226 CLR 1 at [54] per Gleeson CJ, Gummow and Heydon JJ (Callinan J agreeing).

[68]Say-Dee at 151-152 [135] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan J.

The High Court in Say-Dee also said that where there is no binding authority of the High Court other courts of Australia should nevertheless accept and apply what the High Court has called ‘seriously considered’ obiter dicta of the High Court.[69]
[69]Say-Dee at [134]-[135]. See also Narain v Euroasia (2009) 26 VR 387 at [44] per Nettle JA with whom Bongiorno JA and Byrne AJA agreed.

In Cal No 14 v Motor Accidents Insurance Board[70] the High Court heard an appeal from the Full Court of the Supreme Court of Tasmania. The trial judge had followed a decision of the Court of Appeal of New South Wales in Cole v South Tweed Heads Rugby League Football Club Ltd[71] and held that a publican did not owe a duty of care to patrons in relation to the amount of alcohol served and the consequences of its service, save in exceptional circumstances, whereas the Full Court of the Supreme Court of Tasmania did not follow that decision. The High Court[72] said that this revealed a split approach to stare decisis. The decision of the Court of Appeal of New South Wales in Cole had gone to the High Court and been upheld in the result, although as explained below there was no majority decision on the nature of the duty of care of a publican to his or patrons.
[70](2009) 239 CLR 390 (Cal No 14).
[71](2004) 217 CLR 469 (Cole).
[72]Gummow, Heydon and Crennan JJ; Hayne J agreed on what they said under the heading of stare decisis beginning at [48].

The High Court explained how the Supreme Court of Tasmania should have dealt with both the High Court and the New South Wales Court of Appeal decisions in Cole. The High Court said: [73]

[49] The decision of this Court in Cole v South Tweed Heads Rugby League Football Club Ltd was not, strictly speaking, an authority binding the Tasmanian courts to hold that publicans owe no duty of care to patrons in relation to the amount of alcohol served and the consequences of its service, save in exceptional cases. Callinan J upheld that proposition. Gleeson CJ decided that in the circumstances of that case there was no duty of care, but did so in terms consistent with the proposition upheld by Callinan J. On the other hand, McHugh J denied the proposition. So did Kirby J. Gummow and Hayne JJ expressly declined to decide the point. Blow J, while not considering the decision of this Court to be binding in relation to duty, did follow the ratio decidendi of the decision of the New South Wales Court of Appeal in Cole’s case, which this Court upheld in the result. The proposition that there was no duty save in exceptional cases was one ratio of that case. It was the duty of Blow J to follow that decision unless he thought it plainly wrong. This was required by the decision of this Court in Farah Constructions Pty Ltd v Say-Dee Pty Ltd. He did not think it plainly wrong, and he complied with that duty.
[50] It was said by the New South Wales Court of Appeal in Gett v Tabet that Farah Constructions ‘expanded’ the principle applied to the construction of national legislation and explained in Australian Securities Commission v Marlborough Gold Mines Ltd. But that is not correct. The principle has been recognised in relation to decisions on the common law for a long time in numerous cases before the Farah Constructions case. It was also recognised in Blow J’s judgment in this very case. The principle simply reflects, for the operation of the common law of Australia within Australia, the approach which this Court took before 1986 in relation to English Court of Appeal and House of Lords decisions, as stated in Wright v Wright.
[51] In contrast, the Full Court majority did not say whether it thought the decision of the New South Wales Court of Appeal in Cole’s case was plainly wrong, but it did not follow it. It distinguished it. This was a legitimate course to take, and consistent with the New South Wales Court of Appeal’s approach, if the Full Court majority regarded the present case as ‘exceptional’. Counsel for the Board and Mrs Scott submitted to the Full Court, as they also submitted to this Court, that the present case was exceptional, and that Blow J had erred in not finding that it was exceptional. The Full Court majority did not in terms describe the case as exceptional. Unless the Full Court majority had concluded, giving reasons, either that the present case was exceptional, or that the New South Wales Court of Appeal was plainly wrong, it was its duty to follow the New South Wales Court of Appeal. The Full Court majority did not conclude that the present case was exceptional or that the New South Wales Court of Appeal was plainly wrong. Hence it did not carry out its duty to follow the New South Wales Court of Appeal. If these appeals had not been brought, there would have been an undesirable disconformity between the view of the New South Wales Court of Appeal as to the common law of Australia and the view of the Tasmanian Full Court majority. At best the Full Court decision would have generated confusion. At worst it would have encouraged the commencement of baseless and ultimately doomed litigation, to the detriment both of the unsuccessful plaintiffs and of the wrongly vexed defendants. (my emphasis and citations omitted)

[73]Gummow, Heydon and Crennan JJ; Hayne J agreed on what they said under the heading of stare decisis beginning at [48].

In Lipohar v R,[74] their Honours Gaudron, Gummow and Hayne JJ stated that there is but one common law of Australia and continued: ‘the doctrine of precedent is now central to any understanding of the common law in Australia. To assert that there is more than one common law in Australia or that there is a common law of individual States is to ignore the central place which precedent has in both understanding the common law and explaining its basis.’[75]
[74] Lipohar v The Queen (1999) 200 CLR 485.
[75]At [44].

In my opinion, this principles means that the doctrine of precedent, including the principle of overruling prior decisions, should be applied in a similarly singular sense across Australia.

However, it should be noted that their Honours continued (emphasis added):

[45] This Court is placed by s 73 of the Constitution at the apex of a judicial hierarchy to give decisions upon the common law which are binding on all courts, federal, State and territorial. Different intermediate appellate courts within that hierarchy may give inconsistent rulings upon questions of common law. This disagreement will indicate that not all of these courts will have correctly applied or declared the common law. But it does not follow that there are as many bodies of common law as there are intermediate courts of appeal. The situation which arises is not materially different to that which arises where trial judges in different courts or within the same court reach different conclusions on the same point of law.
[46] The ultimate foundation of precedent which binds any court to statements of principle is, as Barwick CJ put it,[76] ‘that a court or tribunal higher in the hierarchy of the same juristic system, and thus able to reverse the lower court’s judgment, has laid down that principle as part of the relevant law’. Until the High Court rules on the matter, the doctrines of precedent which bind the respective courts at various levels below it in the hierarchy will provide a rule for decision. But that does not dictate the conclusion that until there is a decision of the High Court the common law of Australia does not exist, any more than before 1873 it would have been true to say that there was not one English common law on a point because the Court of King’s Bench had differed from the Court of Common Pleas.

[76]Favelle Mort Ltd v Murray [1976] HCA 13; (1976) 133 CLR 508 at 591.

In light of the explicit statement in Cal No 14 v Motor Accidents Insurance Board[77] that the intermediate appellate court of one state is bound to follow the decision of another unless convinced it was ‘plainly wrong’ the reference to ‘[d]ifferent intermediate appellate courts within that hierarchy may give inconsistent rulings’ does not connote, in my opinion, that intermediate appellate courts have the freedom to do so, but rather as their Honours say that if they do so not all of them will have correctly applied or declared the common law.
[77](2009) 239 CLR 390 (Cal No 14).

Accordingly, if Nicol constituted binding authority on whether at common law the expiration of a limitation period that is otherwise capable of extension by administrative decision is attended by an obligation to accord procedural fairness, then it might be said that the Full Court of the Federal Court in Oates v Williams was bound to follow it unless they found it to be ‘plainly wrong.’ They did find that it was wrong and gave detailed reasons why it was wrong. I think it is fair to say they found it ‘plainly wrong.’

If that be the case, then in my view, I would be bound to follow Oates v Williams. As the High Court has made abundantly plain, there is only one common law of Australia and that common law is not based on geography.[78] The common law is the same throughout Australia. Thus, either Oates v Williams or Nicol correctly states the common law. Both cannot stand. In my opinion, the principle of overturning decisions forms part of the rules of precedent and the common law. On this basis, I would be bound to follow Oates v Williams on the assumptions I have stated.
[78]See decisions following the Say-Dee decision: Willoughby v Clayton Utz [No 2 [2009] WASCA 29; Twining v Curtis [2009] ACTSC 106; Qantas Airways v Transport Workers’ Union (2011) 280 ALR 503.

Even if Nicol and Oates v Williams are not directly binding on me for reasons I have already explored, in my opinion I would not be justified as a trial judge in departing from the seriously considered dicta of Oates v Williams which carries with it the view that Nicol’s was plainly wrong on the issue of whether the person alleged to have committed the offence had acquired a right or immunity from prosecution and that therefore the decision to authorise proceedings after the expiration of a limitation period was attended by an obligation to accord procedural fairness.

Similarly to the position in Cole, the decision of the Full Court of the Federal Court in Oates v Williams on whether the consent of the Attorney-General was attended by an obligation to accord procedural fairness was not overruled or dealt with by the High Court in AG v Oates.

I sum up the position as follows. I find the ratio of Nicol is not directly determinative of the issue before me. I find that the reasoning in Oates v Williams, SEC v Commissioner, Gelzinis v T&R (Murray Bridge)[79] and Karounos v Flavel,[80] persuasive and propose to follow these authorities.
[79](2009) 103 SASR 194.
[80](1984) 75 FLR 47.

If, contrary to my finding, Nicol is direct authority that (absent other authorities) I would normally be bound to follow, then I find that I should not do so but instead follow the authority of Oates v Williams that has found Nicol to be wrong.

If Nicol is not direct authority but considered dicta that (absent other authorities) I should follow, then for similar reasons I feel bound to follow the considered dicta of Oates v Williams.

Conclusion

Accordingly, I find that the expiration of the limitation period in s 132(a) does give rise to a right of defence or an immunity from prosecution recognised by the common law of Australia as entitling PSH to procedural fairness.

For these reasons, I hold that the accused should be accorded procedural fairness on the determination by the DPP whether to authorise proceedings after the limitation period provided in s 132(a) has expired.

In summary, I find that

(a) s 132(a) does confer an accrued right or immunity defence upon the effluxion of the limitation period in s 132(a);

(b) s 132(b) is only enlivened after such a right or immunity has accrued;

(c) s 132(b) confers a statutory power on a public official to deprive a person of that accrued right or immunity;

(d) the traditional immunity of the DPP from judicial review of his decisions to prosecute does not extend to his decision to authorise the bringing of proceedings out of time even if the authorization extends to his own power to bring proceedings for breaches of the OHS Act;

(e) the DPP is subject to the limitation period provided for under s 132 in relation to proceedings that he may bring under the CP Act;

(f) the DPP must accord procedural fairness to the person whose accrued limitation right is to be liable to be deprived of their accrued limitation defence.

The orders sought seek to dictate the means by which procedural fairness should be accorded to PSH. I consider that I should not determine such issues in advance of any particular issue arising. Although it is well accepted that at a minimum PSH has the right to be heard. A failure to observe natural justice where it is a condition attached to the exercise of a statutory power means that the exercise of the power is inefficacious and is invalid.[81] The DPP is obliged to proceed on the basis that if appropriate natural justice is not extended to PSH then any decision of the DPP will be void and of no validity.[82]
[81]FAI Insurances Ltd v Winneke (1982) 151 CLR 342 at 409 per Brennan J; Salemi v MacKellar [No 2] (1977) 137 CLR 396 at 401 per Barwick CJ; Saeed v Minister (2010) 241 CLR 252 at 259 per French CJ, Gummow, Hayne, Crennan and Kiefel JJ.
[82]Ibid.

I propose to:

(1)Declare that the DPP is obliged to accord PSH procedural fairness in relation to the application by the Victorian WorkCover Authority to authorise proceedings against PSH in respect of events occurring at Patrick’s workplace at Hastings occurring on or about 11 and 12 March 2009 (’the application’) outside the time limit imposed by s 132 of the Occupational Health and Safety Act 2004.
(2)Order in the nature of prohibition that the DPP be restrained from proceeding further with the authorisation unless it accords PSH procedural fairness.
(3)I will reserve liberty to apply generally and particularly on any issue concerning the means by which the DPP should extend natural justice to PSH.

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Patrick Stevedores Holdings Pty Ltd v Director of Public Prosecutions [2012] VSC 31

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Dura (Australia) Constructions Pty Ltd v Victorian Managed Insurance Authority [2012] VSC 114

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9 February 2012