Workplace Health and Safety v Theiss P/L
[2010] QMC 9
•17 August 2010
MAGISTRATES COURTS OF QUEENSLAND
CITATION:
Workplace Health and Safety v Theiss P/L [2010] QMC 9
PARTIES:
WORKPLACE HEALTH AND SAFETY
(respondent)
v
THIESS PTY LTD
(applicant)
FILE NO/S:
MAG262476/09(0)
DIVISION:
Magistrates Courts
PROCEEDING:
Application to strike out complaint
ORIGINATING COURT:
Magistrates Court at Brisbane
DELIVERED ON:
17 August 2010
DELIVERED AT:
Brisbane
HEARING DATE:
28 May 2010
MAGISTRATE:
Lee G
ORDER:
Application to require respondent/complainant to elect under section 43(3)(a) Justices Act 1886 is dismissed. Application by respondent to amend complaint under section 48 Justices Act 1886 by excising the words “In the alternative” is granted.
CATCHWORDS:
INDUSTRIAL LAW - WORKPLACE HEALTH AND SAFETY – PROSECUTION - Application to strike out complaint for duplicity – two charges pleaded in separate paragraphs separated by “In the alternative” – not true alternatives – whether comply with section 43 Justices Act 1886 – whether use of words “In the alternative” a defect other than a defect under section 43 – if so, whether capable of amendment under section 48 outside limitation period.
Industrial Relations Act 1999 (Qld), s 683(2)
Justices Act 1886 (Qld), s 4, s 43, s 48, s 83A
Workplace Health and Safety Act 1995 (Qld), s 7, s 24, s 25, s 26, s 27, s 28, s 31, s 37, s 164, s 165
Australian Meat Industry Employees Union v Sunland Enterprises Pty Ltd (1987) 36 A Crim R 418, cited
Broome v Chenowith (1946) 73 CLR 583; [1946] HCA 53, cited
Chakley v Munro [2009] QDC 94, cited
Cohen v Macefield Pty Ltd [2010] QCA 95, cited
Fox v Chiu; ex parte Fox [1978] Qd R 88, cited
Hayes v Wilson; ex parte Hayes [1984] Qd R 114, cited
Mbuzi v Torcetti [2008] QCA 231, cited
Power v Heyward & Others [2007] QSC 026, applied
R v Harris [1999] QCA 392, cited
COUNSEL:
P Flanagan SC, G Dann for the applicant
B Watson for the respondent
SOLICITORS:
Blake Dawson for the applicant
Legal and Prosecution Services, Fair and Safe Work Queensland for the respondent
This matter first commenced by a complaint of Adam John Low[1] (the complainant) made 27 November 2009 and filed 1 December 2009 charging Theiss Pty Ltd (the defendant) with a total of six offences under the Workplace Health and Safety Act 1995 (the WHSA) in that single complaint. The complaint relates to alleged breaches of the WHSA resulting in a workplace incident on 1 December 2008 at a Brisbane construction site in which three workers were injured, one fatally.
[1] An Inspector appointed under the Workplace Health and Safety Act 1995;
For offences prior to 1 January 2009, proceedings must be started within one year of the offence or within six months after the offence comes to the complainant’s knowledge: section 165 of the WHSA[2]. There is no issue about that here. The incident occurred
1 December 2008. The complaint was made 27 November 2009 and filed 1 December 2009.
[2] Section 165 was amended by s. 19 Workplace Health and Safety & Other Legislation Amendment Act 2008 commencing 1/1/09 providing for an alternative limitation period of 2 years from when a Coroner makes a finding in relation to a death caused by a breach of an obligation under the WHSA;
By application filed 7 May 2010 Thiess Pty Ltd (the defendant) sought the following orders:
APPLICATION TO STRIKE OUT COMPLAINT AND SUMMONS
……
TAKE NOTICE that the Defendant applies to the industrial magistrates court:
1.That the Complaint and Summons of John Adam Low dated 27 November 2009 be struck out;
2.Alternatively, to the order sought in paragraph 1, the Complainant be required to choose one of the matters of complaint in the Complaint and Summons on which it wishes to proceed at the hearing;
3.Further or alternatively to the orders sought in paragraphs 1 or 2, the Complaint and Summons be amended to delete Charges Two and Three and each of the alternative charges in respect of Charges One, Two and Three;
4.Such other orders as the Court sees fit; and
5.The Complainant pay the Defendant’s costs of and incidental to this application.
The Justices Act 1886 (the JA) applies to proceedings for offences under the WHSA with necessary adaptations by the combined effect of subsections 164(1) & (4) of the WHSA[3] and section 683(2) of the Industrial Relations Act 1999 (IR Act) [4] so that a prosecution for an offence under the WHSA is by way of summary proceedings under the JA before an industrial magistrate sitting alone[5]. In this regard I note the analysis of the relationship between these provisions by the Queensland Industrial Court in Transfield Services (Australia) Pty Ltd v. Wesche per Hall P. (C/2009/18)(1 October 2009) at page 3 as they apply to the Industrial Magistrates Court as opposed to the Magistrates Court.
[3] In Division 2 (Proceedings) of Part 12 (Legal proceedings)
[4] In Chapter 14 (Legal Proceedings) of the IR Act; also discussed at paragraph 9 submissions for defendant dated 7 May 2010;
[5] Section 27 (2) JA allows for another Act to authorise a single “justice” to hear a complaint; “Justice” is defined in s4 JA as including a stipendiary magistrate;
The relief sought in the application is primarily based on the submission that the complaint is “duplicitous” contrary to section 43 of the JA and the general principles in relation to criminal law pleadings rested on considerations of fairness that an accused should know the case that is to be met[6].
[6] Paragraphs 10 to 12 submissions for the defendant filed 7 May 2010;
Section 43 in Division 1 (Complaints) of Part 4 (General Procedure) of the JA[7] relevantly provides:
[7] Sections 42 to 47 of the JA;
43 Matter of complaint
(1) Every complaint shall be for 1 matter only, and not for 2 or
more matters, except—(a) ….
(b) in cases other than cases of indictable offences—if the
matters of complaint—
(i) are alleged to be constituted by the same act or
omission on the part of the defendant; or
(ii) are alleged to be constituted by a series of acts
done or omitted to be done in the prosecution of a
single purpose; or
(iii) are founded on substantially the same facts; or
(iv) are, or form part of, a series of offences or matters
of complaint of the same or a similar character;
(c) when otherwise expressly provided.
(2) When 2 or more matters of complaint are joined in the 1
complaint each matter of complaint shall be set out in a
separate paragraph.
(3) At the hearing of a complaint in which 2 or more matters of
complaint have been joined but which does not comply with
the provisions of this section—(a) if an objection is taken to the complaint on the ground of
such noncompliance—the court shall require the
complainant to choose 1 matter of complaint on which
to proceed at that hearing;
(b) if no such objection is taken to the complaint—the court
may proceed with the hearing and may determine the
matters of complaint, and may convict or acquit the
defendant in accordance with such determination.
(4) If, at the hearing of a complaint, it appears to the court that a
defendant may be prejudiced or embarrassed in the
defendant’s defence because the complaint contains more
than 1 matter of complaint or that for any other reason it is
desirable that 1 or more matters of complaint should be heard
separately, the court may order that such 1 or more matters of
complaint be heard separately.Also relevant to this case is the power to amend a complaint in section 48 contained in Division 2 (Amendment of complaints, summonses and warrants) of Part 4 (General Procedure) of the JA Act[8]. It provides:
[8] Sections 48 to 50 of the JA; Section 49 allows for an adjournment as a consequence of the amendment and section 50 provides for a duty in the court to enter particulars of the amendment on the complaint;
48 Amendment of complaint
If at the hearing of a complaint, it appears to the justices
that—(a) there is a defect therein, in substance or in form, other
than a noncompliance with the provisions of section 43;
or
(b) there is a defect in any summons or warrant to
apprehend a defendant issued upon such complaint; or
(c) there is a variance between such complaint, summons or
warrant and the evidence adduced at the hearing in
support thereof;
then—
(d) if an objection is taken for any such defect or
variance—the justices shall; or
(e) if no such objection is taken—the justices may;
make such order for the amendment of the complaint,
summons or warrant as appears to them to be necessary or
desirable in the interests of justice.The parties filed and served affidavits, written submissions and authorities in accordance with directions and the matter was specifically adjourned to 28 May 2010 for a contested hearing of the defendant’s application. Further written submissions were filed and served by both parties by 4 June 2010. I reserved my decision.
The complaint filed 1 December 2009 comprises five typed pages. Broadly speaking, there are three charges each relating to one of three different workers who had sustained injuries to various degrees. The first allegation in each charge was that the defendant in its capacity as a person who conducts a business or undertaking, failed to discharge the obligation imposed on it as an employer under section 28(1) of the WHSA. Each of the three charges in the complaint then alleges an alternative charge for that particular worker alleging that the defendant in its capacity as principal contractor failed to discharge a different obligation under section 31(1) of the WHSA. So, the complaint as originally drafted contained three primary charges each with an alternative charge so that the complaint contained a total of six charges.
After receiving the defendant’s submissions prior to the hearing, in its submissions in reply, the complainant made certain concessions. At the hearing on 28 May 2010 the complainant applied to the court to amend the complaint under section 48 of the JA by offering no evidence on charges 2 & 3 together with their alternative charges but including the two workers the subject of those charges into the primary and alternative charges in charge 1. The effect of this, it was submitted, was to reflect the full circumstances of aggravation within charge 1 so that the defendant is not exposed to separate penalties on multiple charges for the same act or omission[9]. There was no objection on the defendant’s behalf to amend the complaint by dismissing the whole of charges 2 and 3 and including in either limb, but not both limbs, of charge 1 the two workers who were the subject of charges 2 & 3[10]. The defendant maintains the view that the complainant cannot rely on both limbs in charge 1 of the amended complaint and should be required to elect which one to proceed on[11].
[9] See paragraphs 12 & 13 complainant’s primary submissions filed 17 May 2010 citing R v. Harris [1999] QCA 392 – a charge under 328A(4) Q’ld Criminal Code. In considering whether a single act of dangerous operation of a motor vehicle causing death of one person and grievous bodily harm to another constituted one offence or two offences, Pincus JA (with whom de Jersey CJ & Thomas JA agreed) concluded that the essence of the charge was the wrong operation of the vehicle rather than the attendant results which go to penalty (paras 25 & 28 judgment);
[10] See paragraph 2 submissions in reply for the defendant filed 24 May 2010;
[11] Paragraph 2 submissions for defendant in reply filed 24 May 2010;
I made orders to that effect on 28 May 2010 subject to further submissions on the question of the court’s power to do so including the meaning of “hearing” in section 48 JA.
The definition of “hearing” in section 4 of the JA is not helpful here:
“hearing” includes an examination of witnesses in relation to an indictable offence.
The complainant’s primary submission was that this court has the power at this stage to amend under section 48. Further written submissions were received on 4 June 2010. Without canvassing in detail those submissions, I agree with submissions for the defendant that this court has the power to amend at this stage of proceedings at least on the basis of an express power in section 83A JA (Direction hearing)[12] or by implied powers reasonably necessary to act effectively within its jurisdiction[13]. It appears to me that Byrne J. (as he then was) in Power was faced with a similar issue. A permanent stay by way of preliminary determination was sought on the basis that the complaint was brought out of time. At [15] Byrne J. rejected submissions that Division 3 of Part 6 JA[14] was an exhaustive statement of available procedures and at [16] that a Magistrates Court, which for present purposes in my view includes an Industrial Magistrates Court, has implied “powers reasonably necessary to enable it to act effectively within its jurisdiction”. At [19] Byrne J. concluded that nothing in the JA “is at odds with the trial Court’s entertaining an application for a stay before the prosecution case begins”. In my view, those conclusions equally apply to the determination of the legal issue in this preliminary application for the same reasons outlined by Byrne J.
[12] In Division 10A (Direction Hearing) Part 4 (General Procedure) of the JA;
[13] Paragraphs 7 to 14 & 21 to 23 submissions for defendant filed 4 June 2010 referring a number of authorities including Power v. Heyward& others [2007] QSC 026 per Byrne J. (as he then was);
[14] Division 3 (Hearing) of Part 6 (Proceedings in case of simple offences and breaches of duty) – ss 144 to 148;
The power in this court under section 48 to amend the complaint at this stage of proceedings before the hearing of evidence begins also appears to be supported by annotations to section 48 in Allen, W.K.A., The Justices Acts of Queensland 1886 – 1949 (3rd edition)(Sydney: Lawbook Co., 1956) at 129 under the heading “Duty of justices”:
When any objection contemplated by the section is taken, the justices, ….should decide then and there whether the objection is well taken, and then, if they are of the opinion that it is necessary, it is their duty at once to amend the complaint, whether the complainant refuses to amend or not [cases cited]…The power of amendment may be exercised before the hearing of evidence begins or at the close of the case for the prosecution. The former course would be preferable where the objection is raised upon a defect of form or a defect of substance; the latter would be proper where there is a variance between complaint and evidence. See R. v. Norkett, (1915) 139 L.T.Jo. 316; Dring v. Mann, (1948) 112 J.P. 270. [15]
[15] At that time the exercise of power under section 48 JA depended solely on an objection being taken whereas section 48 JA in its current form is broader in application where, in addition to that, the court “may” exercise the power even if no objection is taken – see section 48(e);
The complainant’s submissions filed 4 June 2010 do not address this issue but focus on the residual question of whether the alternative charge as amended in charge 1 should stand by removal of the words “In the alternative” leaving two separate and distinct charges.
This case is concerned with amendment due to “defect ...in substance or in form” under section 48 (a) and not “variance” under section 48(c) JA. Section 48(b) relating to summonses or warrants is not relevant here.
The defendant submits that, pursuant to section 43(3)(a) JA, the complainant be required to choose one of the two charges encompassed in charge 1 in the amended complaint i.e. the breach of the obligation under section 28(1) or the breach of the obligation under section 31(1). Its grounds are conveniently summarised in its written submissions in reply filed 24 May 2010 and can be grouped into the following categories:
A.The charge described as an alternative charge in charge 1 i.e. founded on a breach of obligation under 31(1) of the WHSA is not a true alternative charge to a charge founded on a breach of obligation under section 28(1) of the WHSA because:
· It is not a lesser charge to the primary charge which involves the same offence provision i.e. section 24 of the WHSA;
· It has different elements from the primary charge;
· It requires different considerations as to defences;
· It carries the same penalty.
B.The proposed amendment under section 48 JA by deleting the words “In the alternative” creates a separate and independent charge, namely one founded on a breach of obligation under section 31(1) of the WHSA and this is not “cognate or of like nature” to the primary charge currently in charge 1, namely one founded on a breach of obligation under section 28(1) of the WHSA.
C.Even if the alternative charge founded on a breach of obligation under section 31(1) of the WHSA was “a cognate” charge to a charge founded on a breach of obligation under section 28(1) of the WHSA, the amendment to create a separate charge should not be permitted because the limitation period prescribed by section 165 WHSA has expired.
Legislative Scheme of the WHSA
Briefly, 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 (s 7(1)) and this is achieved by preventing or minimizing exposure to those risks (s 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[16] of the WHSA imposes a range of obligations on persons in a variety of circumstances including obligations under section 28(1) and section 31(1). Section 23 provides the categories of persons upon whom an obligation is imposed including persons who conduct a business or undertaking and principal contractors. By section 24, if a person fails to discharge an obligation, penalties are imposed. Important definitions are in Division 4 Part 1 including for example, “workplace” (s 9), “employer” (s 10), “worker” (s 11) , “principal contractor” (s 13) and “construction work” (s 14).
[16] Division 2 (Obligations of particular persons) Part 3 (Workplace health and safety obligations);
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.
Section 31 in Division 2 of Part 3 WHSA provides:
31 Obligations of principal contractors
(1) A principal contractor has an obligation to ensure the
workplace health and safety of persons arising from—(a) a hazard at the workplace for which no other person
owes a workplace health and safety obligation; and
(b) anything that has been provided for the general use of
persons at the workplace.
(2) Without limiting the principal contractor’s obligation under
subsection (1), the principal contractor must—(a) coordinate, supervise and oversee construction work in a
way that prevents or minimises risks to the health and
safety of persons at or near the workplace during the
work; and
(b) consult with each of the following persons who are
involved in the construction work in relation to
identifying hazards associated with the construction
work and assessing risks that may result because of the
hazards—
• the designer
• the project manager
• any other relevant person; and
(c) notify another person of any matter of which the
principal contractor is aware, or should reasonably be
aware, that may affect the capacity of that person to
comply with the person’s obligations under this Act; and
(d) provide safeguards and take safety measures prescribed
under a regulation made for principal contractors.
(3) In addition, the principal contractor has the obligation
mentioned in subsection (4) if the principal contractor
reasonably believes, or should reasonably believe, that a
person at the workplace is not discharging the person’s
workplace health and safety obligation.
(4) The principal contractor must—(a) direct the person to comply with the person’s workplace
health and safety obligation; and
(b) if the person fails to comply with the direction—ensure
the person stops work until the person complies with the
obligation.
Section 25 makes it clear that a person may owe WHSA obligations in more than one capacity at the one time including obligations under section 28(1) and 31(1).
Section 24 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.
Defences to contraventions of these obligations are in section 37 WHSA[17]:
[17] 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—(a) if a regulation or ministerial notice has been made about
the way to prevent or minimise exposure to a risk—that
the person followed the way prescribed in the regulation
or notice to prevent the contravention; or
(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.For completeness, 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[18].
[18] See Griffith v. State of Queensland [2010] QSC 290 (6 August 2010) per Daubney J. for a useful discussion on the legislative scheme; although note Hall P. in N.K. Collins Industries Pty Ltd v. Twigg (C/2009/56) at para [24] where he says it is arguable that the complainant bears an evidentiary onus;
It is clear that, under the WHSA, a charge founded on a breach of obligation under section 28(1) is a separate and distinct charge to a charge founded on a breach of obligation under section 31(1).
Discussion
Both charges in charge 1 of the amended complaint are currently in separate paragraphs in conformity with section 43(2) JA but separated by the words “In the alternative”. The complainant simply seeks the words “In the alternative” be removed from charge 1. The complainant relies on paragraphs (iii) and (iv) of section 43(1) JA allowing those two matters of complaint to be pleaded in the one complaint on the basis they are founded substantially on the same facts or form part of a series of offences of the same or similar character[19].
[19] Paragraphs 5 to 9 of complainant’s further outline of submissions filed 4 June 2010;
The defendant acknowledges that it would have been allowable to plead both charges in the one complaint founded on breaches of obligations under sections 28(1) and 31(1) WHSA had the words “In the alternative” not been included. In that case it would have complied with 43(2) of the JA. I agree with that. However, it was submitted the pleading as it currently stands is defective because it pleads the second charge founded on section 31(1) as an alternative charge which is not permitted under the JA and that removing the words “In the alternative” creates a new charge. This is notwithstanding one of its main submissions that a charge under 31(1) is not a true alternative charge to a charge under section 28(1) in any event for the reasons in [17] above.
I agree that the two charges fall within either section 43(1)(b)(iii) or (iv) so that they can be pleaded in separate paragraphs in the one complaint. The incident giving rise to both charges against the defendant is alleged to have occurred on 1 December 2008 at a Brisbane construction site on the corner of O’Keefe Street and Ipswich Road, Woolloongabba. For the charge founded on section 28(1), the “Business or undertaking” is described as “Construction work on the Eastern Busway Project”. For the charge founded on section 31(1), the “Prescribed Construction Work” is described in the same terms i.e. as “Construction work on the Eastern Busway Project”. The risk of death or injury relate to the same three workers who were injured, one fatally. In both charges the source of risk is precisely the same:
The source of risk emanates from the system of work adopted for installing concrete outer beams on Span number 3 of a bridge structure forming part of the Eastern Busway Project at the place of work, and includes –
(a)the failure to install restraining brackets to the outer beam; and /or
(b)the system of work adopted when installing a temporary walkway structure to the outer beam; and /or
(c)the failure to adequately manage the risk of a fall from height to others working on a temporary walkway attached to the outer beam.
The question remains whether the words “In the alternative” are fatal to the validity of the complaint and infringe the JA so as to render the pleading incurable requiring the complainant to elect.
In boiling the matter down, on the one hand the defendant attacks the pleading in the amended complaint because the charge founded on a breach of obligation under section 31(1) is described as a charge “In the alternative” while at the same time submitting that such a charge is not a true alternative charge at all to a charge founded under section 28(1) of the Act.
I agree with the defendant’s first submission that a charge under 31(1) is not a true alternative charge to one under section 28(1) primarily on the basis advanced, namely that they have different elements, require different considerations as to defences, and a charge under section 31(1) is not a lesser charge to one under section 28)(1): see 28(1) & 31(1) above[20].
[20] Paragraphs 4 to 24 submissions for defendant filed 24 May 2010;
In the context that it is common ground that had the words “In the alternative” not been used, the pleading would have complied with the JA and that, a charge founded under section 31(1) is not in substance an alternative charge to one under section 28(1), I agree with the complainants’ submissions that the complaint is curable by deleting the words “In the alternative” notwithstanding that the limitation period has expired[21]. I do not consider the use of the words “In the alternative” in this context to contravene section 43 JA. The pleading is curable by exercising the power of amendment conferred by section 48(a) & (d) JA as appears necessary or desirable “in the interests of justice”.
[21] Paragraphs 8 to 18 of complainant’s further outline of submissions;
It seems to me that it is incongruous to say, as the defendant submits, that the complaint is defective contrary to section 43(1) (b) JA by the bare use of the words “In the alternative” alone where the second charge under section 31(1) has been specifically pleaded in a separate paragraph and that the mere removal of those words would create a separate and independent charge and yet, at the same time, seek relief by calling on the complainant to elect which charge it wishes to proceed on. In that event, the complainant would be at liberty to choose either a charge founded under section 28(1) or the one wrongly described as an alternative under section 31(1) which is not, in reality, an alternative. It appears to me that the breaches of section 43 contemplated by the preamble to section 43(3) relate to issues of substance that go to the heart of section 43(1)(b) and more particularly in this case section 43(1)(b) (iii) & (iv), for example, whether the second charge in the complaint is founded on substantially the same facts or whether it forms part of a series of offences etc. of the same or similar character. In the present case, in my view there is no question that the charges founded on sections 28(1) and 31(1) fall within either of those categories. Section 48(a) specifically provides for amendment for defects other than non compliance with section 43. I think that use of the words “In the alternative” in the context of this case is a defect other than non compliance with section 43.
While I agree that a charge under section 31(1) is not a cognate charge to one under section 28(1), that is not the point in my view. In the context of exercising the power of amendment under section 48 JA, most of the case law on “cognate” offences relied on by the defendant is concerned with either the substitution of a charge originally pleaded with another charge not originally pleaded or to amend the charge originally pleaded by substituting a word or words therein to make it a different charge that was not originally pleaded. In this case, both charges have already been pleaded and there is no issue about the precise wording of them except for the unfortunate use of the words “In the alternative”. The principle that the power of amendment can only be exercised by substituting the original charge with another charge that is cognate, does not apply where, as here, a complaint has already specifically pleaded two charges in compliance with subsections 43(1)(b)(iii) & (iv) & 43(2) JA. I was urged by the defendant to find and I have found that a charge under section 31(1) WHSA is not an alternative to a charge under section 28(1). Due to unfortunate drafting, or perhaps a slip, the words “In the alternative” were inserted between the two paragraphs pleading the two charges.
A number of authorities were relied on by the defendant in support of this application a number of which are conveniently summarised in Chakley v. Munro [2009] QDC 94 per Dodds DCJ (20 April 2009). It appears to me they do not address the current issue. Many of them appear to be “variance” cases in relation to the power to amend under section 48(c) JA by substituting cognate charges after evidence has been given.
For example, in Australia Meat Industry Employees Union v. Sunland Enterprises Pty Ltd (1987) 36 A Crim R 418[22] (per Gray J.), prior to pleas being entered, the prosecutor applied outside a limitation period to amend a complaint with 24 charges by adding alternative charges that were not originally pleaded. Gray J. rejected the submission that such amendments would be bad for duplicity if they otherwise could have been made. However, Gray J. concluded that the amendments should not be allowed because the applicable limitation period had expired[23]. He did say however that amendment to particulars without altering a charge can be made outside a limitation period[24]. That case is quite unlike the present where the charge founded under section 31(1) was in fact pleaded in a separate paragraph in compliance with section 43(2) JA within the limitation period albeit with the words “In the alternative” even though it is not a true alternative. In the context of Sunland, Gray J. would have permitted the addition of the alternative charges had it not been for the limitation point[25]. Unlike Sunland, the defendant in this case has had notice of the charge founded on section 31(1) from the beginning.
[22] Federal Court of Australia;
[23] Section 21(1)(c) Crimes Act 1914 (Cth);
[24] At p. 422;
[25] At p. 421 at point 5 for the rest of that paragraph;
In agreeing with the decision of the District Court on appeal from a magistrate, the Court of Appeal in Cohen v. Macefield Pty Ltd [2010] QCA 95 at [27] found that a charge under vegetation laws framed as “damage or permit to be damaged” was defective because of “uncertainty” rather than “duplicity” as it created two distinct offences. Unlike the present case, in Cohen the two charges were pleaded in the one paragraph contrary to section 43(2) JA. In the present case, both charges were pleaded in separate and distinct paragraphs and it is not suggested that either of them are duplicitous in themselves.
During addresses after all evidence had been adduced, the complainant in Fox v. Chiu; Ex parte Fox [1978] Qd.R. 88 applied to amend the complaint by substituting “building” for “land” in respect of a charge against town planning laws. Under former Order to Review proceedings successfully brought by the complainant against the refusal of a magistrate to amend, the Full Court found that the applicable test is whether the proposed charge is cognate with the original charge. In that case, there was no evidence that the defendant was prejudiced by the amendment in any way. However, there was no issue about expiration of a limitation period.
In Order to Review proceedings against the refusal of a magistrate to amend a complaint outside the limitation period by substituting a charge of driving while under the influence of liquor with one of being in charge of a car while under the influence of liquor, in following Fox v. Chiu, the Full Court in Hayes v. Wilson, ex parte Hayes [1984] Qd.R. 114 held by majority[26] that the power to amend applies only in respect of cognate charges and that the amendment sought was a cognate charge. It was further held that an amendment under section 48 JA outside the limitation period did not give rise to a fresh complaint. Rather, the proposed amendment simply substituted “for the matter of complaint contained in the complaint another matter of complaint which likewise arose on [the same day]”[27]. Also, Hayes was considered by the Court of Appeal in Mbuzi v. Torcetti [2008] QCA 231 with approval on this point[28]. In my view, even if the law of cognate offences applied in the current case, this disposes of the defendant’s submission “C” at paragraph 17 above to the effect that a complaint should not be amended with a cognate charge after the expiration of a limitation period.
[26] Campbell C.J. & Kelly J. (as he then was);
[27] At p. 135 per Kelly J.; see also Macrossan J. at page 149 lines 25 to 33;
[28] At paragraphs [26] – [29] per Fraser JA. with whom Keane JA (as he then was) and Muir JA agreed;
In the present case the defendant has relied on statements made in the dissenting judgment of Macrossan J. (as he then was) in Hayes containing a very considered discussion of the power to amend for “variance” (section 48(c) JA). After a detailed analysis of the cases His Honour expressed the view that the use of the word “cognate” does not assist in determining whether an amendment is permissible having regard to the evidence adduced in a given case[29]. His Honour emphasised the importance that a complaint should be clear and convey to a defendant the case he or she has to meet. After noting what he described as the narrow confines of the exceptions in section 43 JA i.e. pleading more that one matter of complaint in a complaint, his attention seems to focus on the situation where those exceptions do not apply[30]. Indeed, Hayes was not a section 43 case. Nor was it a “defect” case. Rather, it was a case in which the complainant sought to substitute a cognate offence not originally pleaded after the evidence had unfolded. It was a “variance” case. The majority of the court found that it was permissible to allow the amendment sought outside the limitation period even though the new charge was not originally pleaded. Because the charge founded on section 31(1) WHSA in the current case was expressly pleaded from the beginning in separate paragraphs in conformity with section 43(2) JA, it seems to me that this overcomes the concerns expressed by Macrossan J. (as he then was) where he said at 140:
For myself I would add that it must follow that not only is a respondent not called upon in the one proceeding to meet two separate summary charges expressly stated but, in a similar way, he is not called upon to meet supplementary or alternative charges not stated but lurking or hidden under cover of a charge expressly set out. (my emphasis)
[29] At pp. 144 lines 44, 45 and 145 lines 1 to 7;
[30] At page 140 lines 16, 17;
Here, both charges in question have been expressly set out. Note that the first sentence in the above quote is to be read in the context of pleadings that fall outside the scope of the exceptions in section 43 as recognised by Macrossan J[31].
[31] At p. 140 lines 16, 17;
For the above reasons, I refuse the defendant’s application to require the complainant to elect pursuant to section 43(3) (a) JA. I allow the complainant’s application to further amend the amended complaint under section 48 JA by excising the words “In the alternative”.
It seems to me that this conclusion in a general sense is supported by dicta of Dixon J. (as he then was) in Broome v. Chenoweth (1946) 73 CLR 583; [1946] HCA 53 on appeal from the Victorian Supreme Court which reviewed a decision of a magistrate. In that case the defendant was charged with a Commonwealth tax offence. In considering the power of amendment Dixon J. said[32]:
Probably it is necessary to deal with the question as a matter of degree and not by a firmly logical distinction. An offence may be clearly indicated in an information, but, in its statement, there may be some slip or clumsiness, which, upon a strict analysis results in an ingredient in the offence being the subject of no proper averment. Logically, it may be said in such a case that no offence is disclosed and yet it would seem to be a fit case for amendment, if justice is not to be defeated. By contrast, at the other extreme, an information may contain nothing which can identify the charge with any offence known to law. Such a case may not be covered by the power of amendment.
[32] At page 9 of 11 [1946] HCA 53; similar remarks were echoed by Lord Parker C.J. in Hutchinson (Cinemas) Ltd v. Tyson (1970) 134 J.P. 202;
In the present case, both charges founded on sections 28(1) and 31(1) WHSA have been clearly identified in the complaint. It would seem to me that the “slip or clumsiness” here is the insertion of the words “In the alternative” when a charge founded on section 31(1) is not an alternative charge to one founded on section 28(1) at all. It seems to me that, apart from the words “In the alternative”, both charges have otherwise been clearly pleaded to convey to the defendant the case it has to meet[33].
[33] Submissions have been made on the basis of this being a “duplicity” application. It is not an application based on the High Court case of Kirk v. Industrial Relations Commission et. al. [2010] HCA 1 (3 February 2010);
To make it clear, the result is that the complaint now has two separate charges founded on sections 28(1) and 31(1) WHSA respectively each reflecting the full circumstances of alleged aggravation regarding the three injured workers.
On the question of costs, in favour of the defendant I note that the complainant applied to amend the complaint reducing it from six to two charges as a result of the defendant bringing this application. On the other hand, the complainant was successful in resisting the residual arguments, the subject of this decision, and successful in its own application to amend. I will hear the parties as to costs if they cannot agree.
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