Steele, R.l. v Mayne Nickless Ltd
[1990] FCA 484
•20 AUGUST 1990
Re: ROBERT L. STEELE
And: MAYNE NICKLESS LTD. (trading as IPEC AVIATION)
No. V I17 of 1990
FED No. 484
Practice and Procedure - Federal Court
25 FCR 73
49 A Crim R 470
COURT
IN THE FEDERAL COURT OF AUSTRALIA
VICTORIA DISTRICT REGISTRY
INDUSTRIAL DIVISION
Gray J.(1)
CATCHWORDS
Practice and Procedure - information and summons - form - whether more than one offence can be alleged in an information - whether proper to allow amendment to reinstate allegations previously deleted on prosecutor's application - whether duplicity.
Federal Court - jurisdiction - accrued jurisdiction - whether exercise compulsory - whether proper to attach civil claims to existing civil proceedings.
Industrial Relations Act 1988 s. 334.
Acts Interpretation Act 1901 s. 23.
Crimes Act 1914.
Federal Court Rules 0.49, 0. 13.
HEARING
MELBOURNE
#DATE 20:8:1990
The prosecutor: In person
Counsel for the defendant: T. Ginnane
Solicitors for the defendant: Freehill Hollingdale and Page
JUDGE1
The original information in this proceeding was filed on 18th May 1990. At that time, the prosecutor alleged that the defendant did, contrary to the provisions of s. 334(1)(a) and/or (b) and/or (g) and/or (j) of the Industrial Relations Act 1988, dismiss an employee by reason of the circumstance that the employee was a member of an organisation registered pursuant to the Act.
The matter first came on for directions on 8th June 1990, at which stage there was some argument about the question whether the information was in an appropriate form. On his own application, the prosecutor, who then appeared in person, was granted leave to amend the information and the summons, by deleting the references to paragraphs (b), (g) and (j) of s. 334(1) of the Industrial Relations Act. Certain other orders with respect to the amendment of the particulars in the summons were also made on that date.
When the matter came on for directions on 29th June, the prosecutor was represented by a solicitor. A notice of motion, which had been filed on behalf of the defendant, and the directions hearing, were adjourned until 20th July. On 20th July, the prosecutor again appeared in person and the directions hearing was further adjourned on the application of the defendant. By that date, the prosecutor had filed documents, described respectively as "Amended Information for Offences" and "Amended Summons". In the amended information, instead of there being one charge pursuant to s. 334(1) of the Industrial Relations Act, there appeared two charges pursuant to that subsection plus a further charge pursuant to s. 334(2) of that Act. Instead of merely alleging that the prosecutor had been dismissed from his employment, the prosecutor now alleged that he had been injured in his employment and dismissed from his employment and that the defendant had refused to employ and had discriminated against him. In addition, the references to paragraphs (b), (g) and (j) in subs. (1) of s. 334 of the Act had been reinstated in relation to the charge of dismissal from employment. References to those paragraphs also appear in relation to the charge of injury in employment. The reason for the adjournment granted on 20th July was the desire of counsel for the defendant that the defendant should have an opportunity to consider its position in relation to the documents containing those amendments.
On 9th August 1990, the prosecutor filed a notice of motion, seeking leave further to amend what he described as the "Amended Information for Offences" and "Amended Summons". On 13th August 1990, the defendant, pursuant to a direction, filed a notice of motion setting out the orders that would be sought on the day when the matter came on for further directions, which was today. Among the orders sought was an order that the purported amendments to the information and summons as, notified by the prosecutor to the defendant under cover of a letter dated 18th July 1990, and the further purported amendments referred to in the notice of motion filed on 9th August 1990, be not allowed. As it has turned out, it is that order which is being pursued by the defendant today.
The first ground relied on by counsel for the defendant to support that application was the proposition that it was improper for three separate charges to appear in a single information and that if the prosecutor wished to proceed in respect of three separate charges, it was incumbent on him to attend before a registrar of the Court and to lay further informations in respect of those which had not already been referred to. Counsel for the defendant made reference in this respect to the provisions of O. 49 of the Federal Court Rules and to a passage from a judgment of the Court in Dillon v Chin (1988) 84 ALR 457 at pp 458-459. It seems to me to be appropriate that I set out the whole of that passage:
"The rules relating specifically to prosecutions are in O. 49. They require that a prosecution for an offence be commenced by summons upon information (r 1), that the summons state the offence with which the defendant is charged (r 2(1)(a)) and that the summons be divided into paragraphs: r 3(1). Then O 49, r 3(2) says: "So far as convenient, each paragraph shall deal only with one matter." In my view that does not imply that an information or a summons may relate to more than one offence; nor do the forms of summons and information (Nos 51 and 52) do so. When these rules were made, the practice was, as to criminal charges other than those brought by indictment, that only one charge could be the subject of a single proceeding. The rules appear to be drawn on the assumption that there will be one summons for each charge. The summons and information in the charge I have mentioned (G57 of 1987) are also drawn on that basis, but the problem is that the charge has been particularised and evidence has been led in such a way as to suggest that in reality more than one offence is charged in the summons."
I confess to having some considerable difficulty with the passage which I have just read. Insofar as it is based on the proposition that the provisions of the rules do not imply that an information or a summons may relate to more than one offence, it is curious that no reference is made to the provisions of s. 23(b) of the Acts Interpretation Act 1901, under which the singular includes the plural. As I read the provisions of order 49 of the Federal Court Rules and the forms referred to in the schedule to those rules, there appears to me to be no difficulty about the inclusion in an information or a summons of reference to more than one offence. To the extent to which the Court in Dillon v. Chin made reference to the existence of a practice, whereby only one charge could be the subject of a single proceeding, my experience as to a practice in relation to the bringing of criminal proceedings in this Court differs substantially from that statement. Indeed, I am fortified in my understanding of the practice which has always existed by reference to the form of information for an offence and the form of summons which were filed and dealt with in matter V. No. 16 of 1981, Childs v. Metropolitan Transport Trust, Tasmania. Copies of those documents were handed to the Court today by the prosecutor. For these reasons, I find that I am in substantial disagreement with the view expressed by the Court in Dillon v. Chin in the passage that I have quoted. My disagreement is such that I regard the statements there as fundamentally wrong and therefore feel that I should not follow them. For those reasons, I do not propose to disallow the amendments sought in the present case on the ground that they are made to require the Court to deal with three charges in the one information and the one summons.
The second ground relied on by counsel for the defendant was that, as a matter of discretion, a prosecutor should not be permitted to reinstate matters which were expressly abandoned at an earlier directions hearing. This argument was put with reference to the previous willingness of the prosecutor to have the references to paras. (b), (g) and (j) deleted from the terms in which his original charge were expressed. In the course of argument, reference was made to the provisions of O. 13, r. 2(ii) of the Federal Court Rules and to the duty, which appears to arise from that provision of the rules, to make all necessary amendments for the purpose of determining the real questions raised by or otherwise depending on a proceeding and of avoiding multiplicity of proceedings. Reference was also made to the provisions of s. 21(a) of the Crimes Act, under which the Court would be obliged to make amendments to the information, if the evidence given at the trial disclosed that the terms of the information did not accurately reflect the charges which ought to have been laid. On the basis of these provisions, it seems to me that I am obliged to allow amendments to be made which will permit the prosecutor to lay all of the charges he wishes to lay, subject of course to observing the proprieties of the manner in which they are expressed and to giving the defendant the right to know the case which it has to meet. Indeed, the making of amendments at this stage is in many respects to the advantage of the defendant, because it will have a greater opportunity to be aware of the case which will be put against it at the trial.
To the extent to which counsel for the defendant raised concerns about the making of continual amendments, it seems to me that those concerns can be met in a number of ways. The most obvious is that a twelve month limitation period exists for the raising of new charges. It seems to me that a prosecutor would be prevented by that from amending to raise new charges after the expiration of the limitation period. Even aside from the limitation period, if a prosecutor abuses the process of the Court by constantly making amendments, I have little doubt that the ordinary principles upon which courts act to protect defendants in criminal cases from oppression could be invoked if the situation became excessive.
I move then from the consideration of the general matters to the consideration of particular objections, which were made by counsel for the defendant, to the amendments the subject of the document filed on 18th July and the amendments proposed by the notice of motion of 9th August. One matter of considerable importance concerned an attempt by the prosecutor to add, by means of the notice of motion dated 9th August 1990, words in the summons in respect of each of the first, second and third charges, under the heading "Further Particulars and Application". Under that heading, in paragraph 10, there appears the following:
"Therefore, within the accrued jurisdiction of the Court, the prosecutor seeks the imposition of penalties for breaches of the Act, for breaches of the Award in purporting to dismiss Steele in contravention of the Award and failing to pay him the sums required by the Award since that time, an order for the payment of his entitlements under the award (including compensation for the failure to allocate from available flying and thus facilitate as usual the currency and renewal of Steele's professional flying licence and instrument rating) and exemplary damages for breach of contract. The prosecutor also seeks a declaration that the contract is still on foot, an injunction restraining the defendant from treating it at an end, and a order that the defendant observe and perform the terms of its contract of employment with Steele by allowing him to work according to the terms of that contract."
It will be seen from a reading of this paragraph that many of its terms would seek to add to the proceeding, by way of reference to the accrued jurisdiction of the Court, claims which depend upon breaches of the award and breaches of contract. Those claims are civil claims; they would entail a lesser onus of proof than that which applies in criminal proceedings in respect of issues on which the prosecutor carries the onus of proof. They may involve the defendant being called upon to make discovery of documents and to answer interrogatories, in circumstances in which those processes are not available, because of the criminal nature of the proceedings. They may involve the leading of evidence which would be prejudicial to the defendant in relation to the criminal proceedings. In all, it seems to me, that they are entirely inappropriate for joinder with criminal proceedings.
The prosecutor, in the course of his argument, made reference to a number of general principles concerning the accrued jurisdiction of this court. Those general principles do not indicate whether it has ever been considered that the accrued jurisdiction involves the attachment of civil claims to existing criminal proceedings, nor indeed whether the exercise of the accrued jurisdiction by the Court is compulsory or is subject to the power of the Court to refuse to hear matters sought to be attached to matters within its jurisdiction. My understanding is that the exercise of the accrued jurisdiction is not compulsory and certainly would not be compulsory in relation to criminal proceedings. For many reasons, I would regard it as most inappropriate to attempt to deal with civil proceedings at the same time as criminal proceedings. If the matters were to arise within the accrued jurisdiction of the Court, then the powers of the Court to order separate trials would no doubt be exercised to avoid some of the difficulties to which I have made reference. For these reasons, I do not propose to allow the amendment which would involve the insertion of that paragraph 10 in the particulars to any of the charges.
In relation to the documents filed on 18th July 1990, counsel for the defendant makes a number of criticisms. The first is that the new third charge is not clearly laid in terms of s.334(2) and may, indeed, involve duplicity. Section 334(2) provides:
"An employer shall not refuse to employ a person, or discriminate against a person in the terms or conditions on which the employer offers to employ the person, because the person . . . ".
It will be seen that the prosecutor in the present case seeks to lay the third charge in terms that the defendant did refuse to employ and discriminate against him. Merely to discriminate against someone is not itself an offence against s. 334(2). The offence is to discriminate against a person in the terms or conditions on which the employer offers to employ the person. For these reasons, it may be that the words, "and discriminate against" are merely surplusage and do not attempt to allege the second charge, which could be the subject of s. 334(2). I should say that it is my view that that subsection would be interpreted in the same way as the predecessor to s. 334(1) was interpreted by Woodward J. in the well known case of Bowling v. General Motors-Holdens Pty.Ltd. (1975) 8 ALR 197, at pp 217-218. Section 334(2) provides for two separate offences. If the proposed amendment is intended to raise both of them, it would involve duplicity. For these reasons, I regard it as appropriate to strike out of the third charge, as the prosecutor wishes to phrase it, the words, "and discriminate against".
In respect of the first charge, in both the amended information and the amended summons, the complaint is made on behalf of the defendant that there are two paragraphs which are extraneous to the circumstances for which s. 334(1) provides. If those two paragraphs remained, the charges would contain allegations that the prosecutor was injured in his employment because of two circumstances which are not circumstances proscribed by the Act. The paragraphs concerned are paragraphs (f) and (g); it seems to me to be unnecessary to set them out. Paragraph (g) has the additional problem that it is very difficult to understand, because of the manner in which it is expressed. In my view those two paragraphs should be struck out of both the information and the summons.
The same argument occurred in respect of similar paragraphs in relation to the statement of the second charge. For the same reasons, paragraphs (f) and (g) in the statement of the second charge in both the amended information and amended summons should be struck out. Similar paragraphs appear in the statement of the third charge as paragraphs (d) and (e). Again, for the same reasons, those should be struck out of the statement of that charge.
In relation to the particulars in the amended summons, a complaint is made that a number of the paragraphs set out events alleged to have occurred at times after the date on which each offence is alleged to have been committed. In relation to the first charge, it is alleged that the offence was committed on 30th August 1989 and paragraphs 8, 9, 10, 11 and 12 of the particulars refer to events after that date. In the second charge, again the date alleged is 30th August 1989 and paragraphs 8, 9 and 10 refer to events after that date. In relation to the third charge, the relevant date is 1st September 1989 and paragraphs 6, 8 and 10 refer to events occurring after that date. In each case, in my view, the paragraphs should be struck out.
I therefore propose to make an order in terms which I hope will put beyond doubt the form of the documents in these proceedings. The order will be in the following terms:
1. That leave is granted to the prosecutor to amend the information and summons in the form filed on 18th July 1990, subject to:
(a) the deletion of paragraphs (f) and (g) in the statement of the first charge;
(b) the deletion of paragraphs (f) and (g) in the statement of the second charge;
(c) the deletion of the words "and discriminate against", following the words "refuse to employ", and of paragraphs (d) and (e) in the statement of the third charge;
(d) the deletion of paragraphs 8, 9, 10, 11 and 12 in the particulars to the first charge;
(e) the deletion of paragraphs 8, 9 and 10 in the particulars to the second charge;
(f) the deletion of paragraphs 6, 8 and 10 in the particulars to the third charge;
(g) the addition of the matters referred to in paragraphs 1 and 2 of the notice of motion filed on 9th August 1990, subject to the deletion of the words "and application" in the heading of the further particulars set out in paragraph 2 and the whole of subparagraph (x) of those proposed further particulars.
That within seven days the prosecutor file and serve an
amended information and an amended summons in accordance
with this order.
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