Sunwater Limited v Swift
[2012] QMC 13
•22 March 2012
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Sunwater Limited & Anor v Swift [2012] QMC 13
PARTIES:
SUNWATER LIMITED
(first applicant)
TRELLEBORG ENGINEERED SYSEMS AUSTRALIA PTY LTD
(second applicant)
v
SARA MAREE SWIFT
(respondent)
FILE NO/S:
MAG231428/09(7), MAG231447/09(1)
DIVISION:
Magistrates Courts - Industrial Magistrate
PROCEEDING:
Application for further and better particulars
ORIGINATING COURT:
Magistrates Court at Brisbane
DELIVERED ON:
22 March 2012
DELIVERED AT:
Warwick
HEARING DATE:
22 November 2011
MAGISTRATE:
Lee G
ORDER:
Application for further and better particulars is partly successful
CATCHWORDS:
INDUSTRIAL LAW – OFFENCES – particulars of offence – further and better particulars
Justices Act 1886
Workplace Health and Safety Act 1995
COUNSEL:
R Devlin SC with P McQuade for first applicant
A Glynn SC for second applicant
M Byrne QC with T Cvetkoski for respondent
SOLICITORS:
Holding Redlick for first applicant
Gadens Lawyers for second applicant
Fair and Safe Work Queensland for complainant
This is an application by Sunwater Limited (Sunwater) and by Trelleborg Engineered Systems Australia Pty Ltd (Trelleborg) for further and better particulars of pleadings in complaints made under the Justices Act 1886 (JA) and further particulars provided regarding charges under now repealed Workplace Health and Safety Act 1995 (Qld)(WHSA)[1].
[1] Repealed by section 277 Work Health and Safety Act 2011 (No 18 of 2011) with effect from 1 January 2012;
The current applications follow a decision of Industrial Magistrate J McGrath on
15 December 2010 refusing applications to permanently stay the complaints on the basis that they failed to plead essential factual ingredients according the principles of common law as restated by the High Court in Kirk v Industrial Relations Commission (NSW) et al (2010) 239 CLR 531; [2010] HCA 1 and considered by Boddice J in NK Collins Industries Pty Ltd v President of the Industrial Court of Queensland [2010] QSC 373. In applying the statements of principle in Kirk and after having considered authorities including Johnson v Miller (1937) 59 CLR 467; [1937] HCA 37 Industrial Magistrate McGrath concluded that the complainant in each case “should provide particulars of the ‘acts or omissions of’ or ‘measures not taken by’ the defendants”.
As a result the complainant in each case provided additional particulars consisting of 16 paragraphs over 5 pages for Sunwater and 18 paragraphs over 5 pages for Trelleborg. I will return to these later. These applications are for further and better particulars of those particulars.
The complaints against both applicants arise out of the same incident in which a child who was swimming downstream of a weir drowned after the unexpected rupturing of an inflatable rubberised sock or bag called a fabridam[2] that had been installed on top of a concrete spillway of the weir to increase the weir’s capacity of water storage.
[2] Also referred to as a “rubber dam” or “inflatable dam” – see the report of an investigation dated 13 November 2009 by Mr Jim Haig;
The complaint against Sunwater relevantly pleads:
..that on the 23rd November 2008 at Bedford Weir near Blackwater …SUNWATER LIMITED being a person on whom a workplace health and safety obligation prescribed by section 28(1) of the [WHSA] is imposed, did fail to discharge the obligation contrary to section 24 of the [WHSA]
Particulars
It is alleged that other persons were exposed to risks to their health and safety arising out of the conduct of the defendant’s business or undertaking [s 28(2)]
Other person: Nelani Ciara KOEFER
Workplace: Bedford Weir (near Blackwater); and more particularly located approximately 26 km north from Capricornia Highway via Cooroorah Road
Business or Undertaking: Water Infrastructure and Supply
Hazards: The source of the risk is:
(a)a liquid non-respirable environment at Bedford Weir; and/or
(b)uncontrolled release of water from unplanned deflation of an inflatable/pneumatic rubber dam installed at Bedford Weir; and/or
(c)the system of work for the operation of an inflatable/pneumatic rubber dam installed at Bedford Weir; and/or
(d)the system of work for the maintenance and repair of an inflatable/pneumatic rubber dam installed at Bedford Weir.
Risk:The risk is the risk of death, injury or illness, including the risk of death by drowning to Nelani Ciara KOEFER.
AND IT IS ALLEGED that the breach caused the death of Nelani Ciara Koefer
The complaint against Trelleborg is in the same terms except as follows (underlined):
Business or Undertaking: Design, manufacture, supply and installation of rubber dam products; including maintenance and repair services of an inflatable rubber dam product at the workplace.
Hazards: The source of the risk is:
(a)a liquid non-respirable environment at Bedford Weir; and/or
(b)uncontrolled release of water from unplanned deflation of an inflatable/pneumatic rubber dam installed at Bedford Weir; and/or
(c)the system of work for the provision of maintenance and repair services for an inflatable/pneumatic rubber dam installed at Bedford Weir; and/or
(d)the system of work for the operation of an inflatable/pneumatic rubber dam installed at Bedford Weir
The further particulars provided by the complainant are as follows:
SUNWATER
1.These particulars are to be read together with the particulars set out in the Complaint and Summons dated 16 November 2009
2.The Plant Code of Practice 2005 applies in this case (“PCP”)(Ann.1)
3.The defendant failed to have an adequate system of repair for the subject inflatable Fabridam (the said item of plant)
(a)The defendant did not employ a suitable repair method in the case of an existing structural failure;
(b)The method of patching used was in appropriate in the then existing circumstances.
Particulars of obligations owed to NELANI CIARA KOEFER are found in Part 5 generally and at 5.15 PCP.
4.The defendant failed to have an adequate system of service in that the defendant failed to recognise or act upon a very large number of cracks and leaks in the membrane of the said item of plant over a period of time. Particulars of obligations owed to Ms KOEFER are found in Part 5 generally and at 5.14 of PCP.
5.The defendant failed to have an adequate system of maintenance in that the defendant omitted and failed to recognise the significance of:
(a)air leaks; and
(b)blisters –
at the fin attachment roots.
Particulars of obligations owed to Ms KOEFER are found in Part 5 generally and at 5.14 of PCP.
6.The defendant did not have a system that identified that structural deterioration (eg delamination) could lead to structural failure. This failure included an inadequate inspection system to identify hazards and assess associated risks before the subject incident occurred. Particulars of obligations owed to Ms KOEFER are found in Part 5 at 5.13 of PCP.
7.As part of its business or undertaking, the defendant failed to properly operate the fabridam bag wherein:
(a)A rigid fin base failed to conform adequately to a membrane throughout the membrane’s full range of shapes; and the membrane; and
(b)There was a sharp fold in the membrane.
Particulars of obligations owed to Ms KOEFER are found in Part 5 of PCP at 5.4.
8.The defendant failed to provide appropriate information to others including Ms KOEFER a person to whom it owed an obligation about the hazards of uncontrolled release of water from unplanned deflation of the fabridam bag installed at Bedford Weir. Information includes but is not limited to: written test or visual information (for example, information and warning signs about emergency situations, environmental conditions, and guidance on what to do if exposed to a catastrophic volume of non-respirable liquid; namely water. Other forms of emergency preparedness include effective communications; namely auditory warning systems (eg sirens) for such deflations. Particulars of obligations owed to Ms KOEFER are found in Part 5 generally and at 5.21 of PCP.
9.The defendant failed to have an adequate system of auditing to determine whether risk management processes had been conducted effectively and that all workplace health and safety obligations were being met. Particulars of obligations owed to Ms KOEFER are found in Part 5 at 5.12 and 5.1 of PCP.
10.The Risk Management Code of Practice 2007 (“RMCP”) also applies in this case (Ann. 2). The 5 step risk management process at Part 4 is the process set out in s 27A [WHSA].
11.The defendant failed to properly or meaningfully identify the hazards which caused harm to Ms KOEFER, a person to whom it owed an obligation. Supplement 1, Part 1 of RMCP describes how hazards are to be identified (Step 1). Structured procedures of identifying, categorising, observing and visually inspecting hazards are set out in that supplement.
12.The defendant failed to properly or meaningfully assess the risks of exposure to hazards which caused harm to Ms KOEFER, a person to whom it owed an obligation. Supplement 2, Part 1 of RMCP describes how risks are to be assessed after being meaningfully identified (Step 2).
13.Supplement 3, Part 1 of RMCP deals with deciding on control measures (Steps 3-5)(for example, replacement is considered to be a high level of control). The defendant failed to provide an appropriate hierarchy of control measures (1.2); see pages 1-2;
The control measures can be divided into three levels:
· The highest level includes measures that address the hazard at the source, or where it comes from (i.e. elimination, substitution)
· The second level measures intervene in the hazard’s course between the source and a worker (i.e. isolation or engineering)
· The third and lowest level measures are implemented at the point of the worker (i.e. administrative controls, personal protective equipment).
In many cases, it will be necessary to use a combination of measures to appropriately manage exposure to risk.
The defendant failed to select the most appropriate control measures.
14.Pursuant to Part 5, Supplement 3 of RMCP, the defendant failed to implement effective control measures (5.2):
Effective implementation usually involves the development of an implementation plan. The plan should:
· identify and allocate the resources necessary to implement the control measures (i.e. time and expenses)
An implementation plan could also include:
· procedures to be used for consultation and communication of health and safety information, including any new control measures, to workers and other relevant people
· emergency plans
15.The defendant failed to monitor and review its systems of work in the workplace so as to ensure effectiveness of control measures implemented to prevent or minimize the risks (Part 7).
16.The failures by the defendant to prevent or minimize exposure to risk stemmed from the failure to:
· identify hazards;
· assess the risks;
· decide appropriate control measures;
· eliminate the hazards;
· implement appropriate control measures; and
· monitor and review an effective process to prevent or minimize the risk of harm to one NELANI CIARA KOEFER, a person to whom it owed an obligation.
TRELLEBORG
Paragraphs [1] to [6], [11] – [14], [17] and [18] of the particulars for Trelleborg are identical to the particulars for Sunwater although with different numbering in some cases. The other particulars are:
7.The defendant failed to properly design and manufacture the said item supplied by the defendant in that the defendant allowed for a design and manufacture wherein:
(a)A rigid fin base failed to conform adequately to a membrane throughout the membrane’s full range of shapes; and the membrane; and
(b)There was a sharp fold in the membrane.
Particulars of obligations owed to Ms KOEFER by (sic) are found in Part 5 of PCP generally and at 5.2.
8.The defendant failed to properly install the fabridam bag in that the defendant allowed installation wherein:
(a)A rigid fin base failed to conform adequately to a membrane throughout the membrane’s full range of shapes; and the membrane; and
(b)There was a sharp fold in the membrane
9.The defendant failed to design, manufacture and install for the proper operation of the fabridam bag in that the defendant allowed for manufacture wherein:
(a)A rigid fin base failed to conform adequately to a membrane throughout the membrane’s full range of shapes; and the membrane; and
(b)There was a sharp fold in the membrane.
Particulars of obligations owed to Ms KOEFER are found in Part 5 of PCP generally and at 5.4 including information at 5.21.
10.The defendant failed to provide appropriate information about the hazards of uncontrolled release of water from unsuitable or inadequate repair, service, maintenance, design and manufacture of the fabridam bag installed at Bedford Weir. Information includes but is not limited to: written text or visual information (for example, information and waring signs about emergency procedures due to structural failure. Particulars of obligations owed to Ms KOEFER found in Part 5 generally of PCP and specifically at 5.2 and 5.21. ………..
15.Supplement 3, Part 1 of RMCP deals with deciding on control measures (Steps 3-5). The defendant failed to provide an appropriate hierarchy of control measures.
16.Pursuant to Part 5, Supplement 3 of RMCP, the defendant failed to implement effective control measures (5.2):
Effective implementation usually involves the development of an implementation plan. An implementation plan could also include:
· Procedures to be used for consultation and communication of health and safety information, including any new control measures, to workers and other relevant people.
· Emergency plans and procedures
Despite the differences in the particulars, both applicants are charged on the basis of breaches of obligations imposed by section 28(1) WHSA. An understanding of the legislative scheme of the WHSA is necessary acknowledging that the degree to which particulars are required depends to a large extent on the particular statute creating the offence and the facts of an individual case.
The Legislative Scheme of the WHSA[3]
[3] Taken from Reprint No 9E as in force 6 June 2011 (the last reprint before repeal);
Section 7 sets out the objectives of the WHSA, firstly to prevent a person’s death, injury or illness caused by, among other things, a workplace (ss 7(1)) and this is achieved by preventing or minimizing exposure to those risks (ss 7(2)). Subsection 7(3) then provides a number of ways for preventing or minimizing exposure to risk. Relevantly, paragraph (a) of subsection 7(3) provides:
(a) imposing workplace health and safety obligations on
certain persons who may affect the health and safety of
others by their acts or omissions; andDivision 2 of Part 3[4] of the WHSA imposes a range of obligations on persons in a variety of circumstances including obligations under section 28(1) for persons conducting a business or undertaking. Other examples include obligations on principal contractors (section 31) and obligations on designers and manufacturers of plant (sections 32 and 32A). A person may owe WHSA obligations in more than one capacity at one time (section 25). Section 23[5] provides the categories of persons upon whom an obligation is imposed including relevantly persons who conduct a business or undertaking. By section 24, if such person fails to discharge an obligation, penalties are imposed. Important definitions are in Division 4 Part 1 including for example, “workplace” which includes any place where work is, or is to be, performed by a person conducting a business or undertaking (s 9).
[4] Division 2 (Obligations of particular persons) Part 3 (Workplace health and safety obligations);
[5] In Division 1 of Part 3 WHSA;
Section 28 in Division 2 of Part 3 WHSA provides:
28 Obligations of persons conducting business or
undertaking(1) A person (the relevant person) who conducts a business or
undertaking has an obligation to ensure the workplace health
and safety of the person, each of the person’s workers and any
other persons is not affected by the conduct of the relevant
person’s business or undertaking.
(2) The obligation is discharged if the person, each of the person’s
workers and any other persons are not exposed to risks to their
health and safety arising out of the conduct of the relevant
person’s business or undertaking.
(3) The obligation applies—(a) whether or not the relevant person conducts the business
or undertaking as an employer, self-employed person or
otherwise; and
(b) whether or not the business or undertaking is conducted
for gain or reward; and
(c) whether or not a person works on a voluntary basis.
(my emphasis)
Section 22 in Division 1 of Part 3 WHSA provides:
22 Ensuring workplace health and safety
Workplace health and safety is ensured when persons are free
from—(a) death, injury or illness caused by any workplace,
relevant workplace area, work activities, or plant or
substances for use at a relevant place; and
(b) risk of death, injury or illness created by any workplace,
relevant workplace area, work activities, or plant or
substances for use at a relevant place.
Section 24 in Division 1 of Part 3 WHSA provides:
24 Discharge of obligations
(1) A person on whom a workplace health and safety obligation is
imposed must discharge the obligation.
Maximum penalty—(a) if the breach causes multiple deaths—2000 penalty units
or 3 years imprisonment; or
(b) if the breach causes death or grievous bodily
harm—1000 penalty units or 2 years imprisonment; or
(c) if the breach causes bodily harm—750 penalty units or 1
year’s imprisonment; or
(d) if the breach involves exposure to a substance likely to
cause death or grievous bodily harm—750 penalty units
or 1 year’s imprisonment; or
(e) otherwise—500 penalty units or 6 months
imprisonment.
(2) Subsection (1) applies despite Criminal Code, sections 23 and 24.
Sections 26 and 27 of the WHSA provide for ways in which obligations imposed under the WHSA can be discharged. It appears that the onus falls on the person who is under the WHSA obligation to show that he or she has discharged the obligation[6].
[6] See Griffith v. State of Queensland [2010] QSC 290 (6 August 2010) per Daubney J. for a useful discussion on the legislative scheme;
The particulars provided above allege that The Plant Code of Practice 2005 (PCP) and The Risk Management Code of Practice 2007 (RMCP) apply[7]. Relevantly, section 26(3) provides:
[7] For Sunwater, at paras [2] to [15]; for Trelleborg, at paras [2] to [17];
26 How obligations can be discharged if regulation etc.
made
…..
(3) If a code of practice states a way of managing exposure to a
risk, a person discharges the person’s workplace health and
safety obligation for exposure to the risk only by—(a) adopting and following a stated way that manages
exposure to the risk; or
(b) doing all of the following—
(i) adopting and following another way that gives the
same level of protection against the risk;
(ii) taking reasonable precautions;
(iii) exercising proper diligence.
Section 27 provides for ways in which to discharge obligations if a code of practice does not exist prescribing ways to manage the risk.
Defences to contraventions of these obligations are in section 37 WHSA[8]:
[8] The sole section in Division 4 (Defences) Part 3 (Workplace health and safety obligations) of WHSA;
37 Defences for div 2 or 3
(1) It is a defence in a proceeding against a person for a
contravention of an obligation imposed on the person under
division 2 or 3 for the person to prove—…..
(b) if a code of practice has been made stating a way or
ways to manage exposure to a risk—
(i) that the person adopted and followed a stated way
to prevent the contravention; or
(ii) that the person adopted and followed another way
that managed exposure to the risk and took
reasonable precautions and exercised proper
diligence to prevent the contravention; or
(c) if no regulation, ministerial notice, or code of practice
has been made about exposure to a risk—that the person
chose any appropriate way and took reasonable
precautions and exercised proper diligence to prevent
the contravention.
(2) Also, it is a defence in a proceeding against a person for an
offence against division 2 or 3 for the person to prove that the
commission of the offence was due to causes over which the
person had no control.
(3) In this section, a reference to a regulation, ministerial notice,
or code of practice is a reference to the regulation, notice, or
code of practice in force at the time of the contravention.Cases on WHSA and the provision of particulars
There have been general statements of principle on the requirement to provide particulars and the rationale for it in a number of cases cited in written submissions of the parties. At [17] Boddice J in Collins sums it up this way after citing Johnson v Miller (1937) 59 CLR 467 at 489-490 and KRM v The Queen (2001) 206 CLR 221 :
A defendant to any prosecution is entitled to be apprised, not only of the legal nature of the offence charged, but also of the particular act, matter or thing alleged as the foundation of the charge. Essential particulars include “the time, place and manner of the defendant’s acts or omissions. This requirement is consistent with the definition of “offence” in the Criminal Code (Qld) as it is the “act or omission which renders the person doing the act or omission liable to punishment” which is “an offence”.
That statement is reflective of general statements by the High Court in Kirk which was concerned with the Occupational Health and Safety Act 1983 (NSW). Paragraphs [26] to [28] of the joint judgment state[9]:
[26] The common law requires that a defendant is entitled to be told not only of the legal nature of the offence with which he or she is charged, but also of the particular act, matter or thing alleged as the foundation of the charge. In John L Pty Ltd v. Attorney General (NSW) .., it was explained that the older cases established that an information could be quashed as insufficient in law if it failed to inform the justices of both the nature of the offence and the manner in which it had been committed. In more recent times the rationale of that requirement has been seen as lying in the necessity of informing the court of the identity of the offence with which it is required to deal and in providing the accused with the substance of the charge which he or she is called upon to meet. The common law requirement is that an information …”must at the least condescend to identifying the essential factual ingredients of the actual offence”. These facts need not be as extensive as those which a defendant might obtain on an application for particulars. In Johnson v. Miller, Dixon J considered that an information must specify “the time, place and manner of the defendant’s acts or omissions”. McTiernan J referred to the requirements of “fair information and reasonable particularity as to the nature of the offence charged”.
[27] The acts or omissions the subject of the charges here in question had to be identified if Mr Kirk and the Kirk company were to be able to rely upon a defence under s 53. The defendant in Johnson v Miller was placed in a similar position. The statute in question provided that a licensee of licensed premises would be liable to a penalty if a person was present on the premises during certain prohibited hours, unless the licensee could establish one of the justifications or excuses relating to that person's presence provided for in the statute. Dixon J observed that each of the justifications depended upon some feature pertaining to the person found in, or seen leaving, the premises and that no licensee could succeed in bringing the case within any of the grounds of excuse unless the person or persons were identified and their presence on a distinct occasion alleged.
[28] The statements of the offences as particularised do not identify what measures the Kirk company could have taken but did not take. They do not identify an act or omission which constitutes a contravention of ss 15(1) and 16(1). The first particular of the s 15(1) offence suggests that the Kirk company had some systems relating to the operation of the ATV in place, but that they were not sufficient. It does not identify the deficiency in the system or the measures which should have been taken to address it. The second particular does not identify what information, instruction or training was necessary to be given to Mr Palmer or the other employee of the Kirk company. The particulars of the s 16(1) offence say nothing about what should have been done to avoid exposing the contractors to risk to their health and safety from the use of the ATV. Needless to say, the appellants could not have known what measures they were required to prove were not reasonably practicable.
[9] French C.J., Gummow, Hayne, Crennan, Kiefel and Bell JJ.;
While the High Court in Kirk concluded that there were inadequate particulars, that case was concerned with the construction of a different statute which, as Boddice J in Collins expressly concluded at [14], is significantly different to WHSA. Boddice J said: “there are significant material differences between those two schemes” referring to the WHSA and the Occupational Health and Safety Act 1983 (NSW).
This view has been subsequently supported by the Queensland Industrial Court in Clive John Newman AND TVJ Electrical Pty Ltd (C/2011/13) (25 July 2011) in dismissing an appeal against my decision in Newman v TJV Electrical Pty Ltd [2011] QMC 16 (2 March 2011) regarding the construction of the Electrical Safety Act 2002 (Qld). In TVJ it was held that the statutory scheme of the Electrical Safety Act 2002 (Qld) was materially different to the WHSA and similar to the Occupational Health and Safety Act 1983 (NSW) with which Kirk was concerned. Unlike for a charge under the New South Wales legislation, Boddice J concluded at [18] that for a charge under WHSA “There was no requirement for the [complainant] to aver acts of, or omissions by, the [defendant] to found a valid complaint”.
However, he continued in Collins at [20] and [22] (footnotes omitted):
The applicant further contends it was entitled to the particulars sought in order to be able to rely upon the defence in s 37 of the WH&S Act. Whilst that defence places the onus of proof upon the defendant, that fact in itself would be no reason for a refusal to give particulars if they ought properly to be given so as to apprise a defendant of the case it has to answer
The complaint identified the risk and the source of that risk. There was no
obligation on the prosecutor to particularise anything further to found a valid
complaint. However, that does not mean that a prosecutor cannot be required, in an appropriate case, to particularise the applicable code of practice or other measures it asserts ought to have been taken by an employer if such particulars are necessary to apprise a defendant of the case it has to answer. For example, where there are conflicting codes of practice that may be applicable to the factual circumstance. The provision of such particulars in that event would be on the grounds of procedural fairness, not because they were necessary matters for the prosecutor to aver to found a valid complaint. (my emphasis)On 14 October 2010 Boddice J remitted the case back to the Queensland Industrial Court to determine, among other things, whether fairness required further and better particulars on the measures not taken by the defendant. In considering whether the complainant was obliged to aver or particularise acts or omissions by the defendant described as question (b) in his judgement dated 22 March 2011, Hall P. observed at [3]:
[3] The debate about Orders made clear what was otherwise implicit in the substantive reasons. Question (b) was not answered in the affirmative. Boddice J did not accept that the Prosecutor was obliged further to particularise acts or omissions by the Defendant in respect of the contravention complained of. Rather, what Boddice J accepted was that the Prosecutor, at least in some cases, had an obligation ‘to particularise the measures not taken in order to apprise the Defendant of the case” (transcript of proceedings before Boddice J, 22 October 2010, p 4 at 11.20 to 30). (paragraph 22 of Boddice J’s judgment is then cited.)
[4] It is paragraph [22], one should add, which underpins the Order remitting the matter to this court. The Respondent had sought an Order dismissing the Application for Judicial Review. His Honour’s ex tempore reasons for rejecting that submission were:
“In relation to the matters raised in the written outline of argument, whilst there may well be merit in the respondents’ submissions as to what course ultimately should flow from the way in which the case was conducted below, the way in which the case was conducted before me was to argue it, as has been conceded in the outlines, on a generic basis rather than the specific. In these circumstances, it is appropriate to remit the matter back to the Industrial Court of Queensland for further consideration according to law rather than make orders in respect of the ultimate outcome.” [transcript 22 October 2010, p1, 11.1. to 20] (my emphasis)
Hall P ultimately rejected the submission that the case be remitted to the Industrial Magistrates Court for rehearing on further particulars nominating the applicable Code of Practice. At [7] however Hall P endorsed the complainant’s submission that in hindsight it would have been prudent to specifically plead the Code of Practice. In Collins a trial had preceded the initial appeal to the Industrial Court of Queensland.
Are Further and Better Particulars required on grounds of procedural fairness?
In this case the complainant has pleaded two codes of practice in the additional particulars cited above. Unlike in Collins, these are interlocutory applications prior to trial.
The PCP first commenced 1 April 2005 and expires after 10 years. The RMCP first commenced 15 June 2007 and expires after 10 years. This is evident on their face. Full copies of the PCP and RMCP were provided to both applicants with the additional particulars[10]. The incident giving rise to the complaints occurred on 23 November 2008.
[10] See paragraph [6] submissions for Sunwater dated 1 September 2011;
The applicants complain that the additional particulars do not allege acts or omissions. Rather, they simply allege the codes as sources of a legal obligation[11]. It is asserted that the codes have broad application and that the additional particulars have only responded in a generic way. The general thrust of submissions is that the additional particulars have not complied with orders made on 15 December 2010. This pre-dates the decision of Hall P in determining that very question in Collins on remittal from the Supreme Court. Consistent with other authority, Boddice J was simply making comments adopting general statements of law articulated in a number of cases including Kirk without determining the issue of whether further particulars should have been provided in that case. In my view, while this court is bound by those statements of principle, the issue for determination is the application of those statements of principle to this case and whether or not the complainant should be required to provide better particulars as contended for by both applicants.
[11] See for example paragraphs [11] to [13] submissions for Sunwater dated 1 September 2011; paragraph [10] submissions for Trelleborg (undated);
On the other hand the complainant submits that the additional particulars go beyond what is expected. In this respect I note Durdev v Goodyear and Dunlop Tyres (Aust) Pty Ltd heard by Industrial Magistrate J Mc Dougall 12 September 2011 where he declined to order further and better particulars after the complainant had delivered additional particulars similar to the ones in this case. I note also Fitzsimmons v Borthwick (March 2011) Industrial Magistrate Dwyer ordered particulars in a similar matter. Additional particulars similar to the ones provided in this case were provided and the matter proceeded to trial. Having said that, each case turns on its own facts in determining whether or not further particulars should be provided in the interests of procedural fairness.
In support of the complainant’s submissions an affidavit of Sara Maree Francis sworn 31 October 2011 was filed and served on the applicants. Annexure 5 to that affidavit is a lengthy 66 page report dated 13 November 2009 by Jim Haig prepared for Workplace Health and Safety. Its subject was “Investigation into Failure Mode and Cause of Inflatable Dam Rupture at Bedford Weir, November 2008”. Mr Haig identifies causes for the failure in the fabridam including poor design and failing to employ a suitable repair method from previous failures[12]. Annexure 2 is a statement dated 15 September 2009 by Rob Keogh, employed by Sunwater as the manager of asset management. He is registered as a professional civil engineer. Annexure 6 is a record of interview conducted 14 October 2009 with Mr Keogh representing Sunwater. It was a lengthy interview starting 2:49 pm and finishing 6:51 pm. Annexure 1 contains material from the prosecution’s brief including photographs and documents dating back to 2002 obtained from Sunwater indicating problems with the rubber fabridam from then.
[12] See “Summary of Findings” at page 4 of the report;
In my view, apart from the exceptions below, the additional particulars go further than simply outlining the source of legal obligation. The documents must be read as a whole. While citations within the codes are given, they are given with factual allegations. One example is the allegation of failing to have an adequate system of service and maintenance (paragraphs [5] & [6] of the additional particulars). After citing section 5.14 of the PCP the accompanying facts are that the applicants failed to recognise a large number of cracks, leaks, air leaks and blisters. Another example is from paragraph [7] of Sunwater’s additional particulars alleging a failure to properly operate the fabridam with the accompanying facts that the rigid fin failed to conform to the fabridam’s shape and there was a sharp fold in the membrane.
In my view the additional particulars go beyond mere reference to codes of practice. The codes of practice do not just state what the obligations are. They provide for ways in which to discharge those obligations. The circumstances of this case are well known to both applicants. The affidavit of Ms Francis with exhibits supports this view. Apart from exceptions which I will come to next, the applicants should have a good understanding of the cases they have to meet.
Annexed to the applicants’ submissions are detailed schedules of the particulars sought and draft orders were tendered. Apart from some exceptions, in my view many of these either descend into evidence, or are prolix and oppressive, particularly in respect of draft orders submitted for Trelleborg. The draft orders extend over 12 typed pages and are, in my view, more in the nature of interrogatories although framed as a request for particulars. In fairness, to an extent I think it was conceded by counsel for both applicants during the hearing that they may have been delving into evidence in some respects and that the distinction was often a difficult one to draw[13].
[13] See for example page 1 -19 lines 1 to 20 transcript; page 1-24 lines 1 to 12 transcript;
Part 5 of the PCP deals with obligations of persons conducting a business or undertaking[14]. It is divided into 28 sections numbered 5.0 to 5.26A. Despite general reference to Part 5 in some paragraphs of the additional particulars[15], clearly some of those sections do not apply eg mobile plant, electrical safety and industrial robots to name but a few. In my view, the complainant should particularise precisely which provisions in Part 5 of the PCP are relied on in these matters. I note the additional particulars in Fitzsimmons v. Thomas Borthwick & Sons (Australia) Pty Ltd do not refer to “Part 5 generally”. They all refer to specific sections of the PCP.
[14] Parts 1 to 10 seem to follow the scheme of the WHSA; for example Part 1 deals with designers of plant. Part 2, manufacturers of plant etc.
[15] See for example references to “Part 5 generally” in paragraphs [3], [4], [5], [8] of Sunwater’s additional particulars;
Emphasising the importance of considering each case on its particular facts, it should be further noted that Fitzsimmons was not a case alleging inadequate systems of repair, service and maintenance where the PCP refers to other documents or sources for determining relevant standards of conduct. As far as the PCP is concerned, Fitzsimmons was a case alleging, among other things, not providing appropriate instruction and appropriate information, failing to have an adequate system of auditing and inspection. Those sections of the PCP do not refer the reader to other documents or sources of information. Similar observations can be made about Durdev v Goodyear and Dunlop Tyres (Aust) Pty Ltd. The provisions of the PCP relied on in those cases do not refer to other unidentified documents or sources such as “manufacturer’s instructions” and the like.
Paragraphs [7] & [10] of Trelleborg’s additional particulars refer to 5.2 of the PCP entitled “Design and manufacture”. Reference is made to information supplied by a designer or manufacturer to the person acquiring the plant in order for that person to make a decision as to whether or not the particular plant is suitable for the person’s intended use. If the plant to be acquired is second hand and this information is not available, then a competent person is to be employed by the person to develop information on eliminating or controlling risk. The reader is then referred to appendix 6 of the PCP for relevant standards.
Appendix 6 of the PCP is entitled “Standards covering design, manufacture and use of plant”. It provides a list of standards over 4 pages for various plant of many descriptions. I cannot readily identify a fabridam or anything like it in that list. It also states that new standards are released from time to time and that “in order to keep up to date with the latest standards relevant to plant”, the reader is referred to a website at >
Paragraphs [7] & [10] of Trelleborg’s additional particulars make no reference to the information supplied to Trelleborg by its supplier or manufacturer when it acquired the fabridam and they are silent as to information developed by a competent person if the fabridam was second hand. Further, appendix 6 of the PCP is wide ranging and it is not clear what, if any, standard is being relied on by the complainant. As a matter of procedural fairness Trelleborg is entitled to know precisely what the complainant is relying on in this regard and the connection between that information and the facts that are said to constitute failures.
Further, I note the additional particulars refer to 5.4, 5.14 and 5.15 of the PCP. Section 5.4 entitled “Operation” relevantly provides:
A relevant person should ensure plant is used only where it is capable of performing safely within design criteria and manufacturer’s instructions. Where commissioning is applicable, the results of commissioning should support this.
Plant should be used in accordance with the manufacturer’s specifications, that is:
· Design conditions
· Design pressure
· Design load
· Production rate
· Control capabilities
· Maintenance schedule
· Replacement period. (my emphasis)
Thus, having regard to all of these matters, reference is made to “design criteria”, “manufacturer’s instructions” and “manufacturer’s specifications”. There is nothing in paragraph [7] of Sunwater’s additional particulars or paragraph [9] of Trelleborg’s additional particulars identifying the “design criteria” and how the matters in subparagraphs (a) and (b) of those paragraphs do not conform to the design criteria. Further the “manufacturer’s instructions” and “manufacturer’s specifications’ have not been identified so as to establish that the matters in subparagraphs (a) and (b) of paragraph 7 do not comply with them. In referring to the PCP the additional particulars simply refer to other documents or records and the applicants are left guessing. In my view, the applicants are entitled to know precisely the design criteria, manufacturer’s instructions and specifications relied on regarding the alleged failure to properly operate the fabridam and how the matters in subparagraphs (a) and (b) of paragraph 7 of Sunwater’s additional particulars do not conform to such. Subparagraphs (a) and (b) of paragraph 9 of Trelleborg’s additional particulars are identical and these comments apply equally to Trelleborg.
Paragraphs [4] & [5] of additional particulars for both applicants allege an inadequate “system of service” and an inadequate “system of maintenance”. Reference is made to section 5.14 of the PCP entitled “Maintenance, servicing and cleaning”. Section 5.14 relevantly provides:
Plant should be maintained, serviced and cleaned according to the manufacturers’ specifications or, in the absence of such specifications, in accordance with other proven and tested procedures. …. (my emphasis)
Again, the adequacy or otherwise of the “system of service” and “system of maintenance” of plant is gauged against either manufacturers’ specifications or if there are none, other proven and tested procedures. It is not known which is relied on here. Paragraph [4] of the additional particulars for both applicants simply asserts the applicant’s failure to recognise cracks and leaks etc. Paragraph [5] of the additional particulars for both applicants asserts a failure to recognise the significance of air leaks and blisters at the fin location. Again the manufacturers’ specifications or other proven and tested procedures have not been identified to establish that this failure was not in accordance with the specifications or other proved and tested procedures. In my view, the applicants are entitled to know precisely the manufacturers’ specifications or other proven and tested procedure relied on regarding the “system of service” and “system of maintenance” of the fabridam and how the matters pleaded in paragraphs [4] & [5] of the additional particulars are said to have constituted a failure.
Paragraph [3] of the additional particulars for both applicants alleges an inadequate “system of repair” of the fabridam and reference is made to section 5.15 of the PCP entitled “Repair”. Section 5.15 provides:
Before repairs commence, safety issues must be considered and plant should be isolated.
Plant should be repaired:
· According to the manufacturer’s instructions or documented procedures
· Performed by a competent person
· According to any relevant standards. See appendix 6 for a list of Standards. (my emphasis)
As noted earlier appendix 6 of the PCP is entitled “Standards covering design, manufacture and use of plant”. It provides a list of standards over 4 pages for various plant of many descriptions. I cannot readily identify a fabridam or anything like it in that list. It also states that new standards are released from time to time and that “in order to keep up to date with the latest standards relevant to plant”, the reader is referred to a website at >
Subparagraphs (a) and (b) in paragraph [3] of the additional particulars make factual allegations which, by reference to section 5.15 of the PCP, are gauged against manufacturer’s instructions or documented procedures and also according to any relevant standards in appendix 6 of the PCP. First, it is not known on the face of the particulars what is being relied on i.e. manufacturer’s instructions or documented procedures. Further, it is not known whether any standard is being relied on and if so, which? In my view, the applicants are left in the dark in this respect. As a matter of procedural fairness they are entitled to know precisely what is being relied on and the identification of which ways the matters in subparagraphs (a) and (b) of paragraph [2] of the additional particulars do not comply.
In respect of paragraphs [34] to [45] above I order that the complainant provide the particulars identified therein to solicitors for both applicants within 28 days of publication of this judgement. The prosecution is stayed for the 28 days.
Otherwise the applications for further and better particulars are refused. Having regard to my conclusions, the costs of these applications are reserved.
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