Area Concrete Pumping Pty Ltd v Inspector Barry Childs

Judgment 1BATHURST CJ: In October 2002, a workplace accident occurred at the construction site of a 4 mega-litre water reservoir at Lake Cargelligo. Scaffolding and formwork collapsed during a concrete pour, causing the death of two workers and the injury of others. A coronial inquiry was conducted and published in late September 2006. On 1 September 2008, Inspector Childs filed applications for order against the applicants alleging breaches of s 8(1), in relation to employees, and s 8(2), in relation to non-employees, of the Occupational Health and Safety Act 2000 ("OHS Act", now repealed). In the case of those parties who were directors, the breaches of s 8 were alleged against them by virtue of s 26 of that Act. 2The applicants in these proceedings are Area Concrete Pumping Pty Ltd ("Area Concrete") and Mr Christopher Anthony Woods in the first matter, and Mr Paul Bortolo Serena and Mr Walter John Anzolin in the second matter. There are two separate applications on foot however, since the submissions made by the applicants in both matters are the same for all relevant purposes and the applicants in the second matter formally adopted the submissions of Area Concrete and Mr Woods, I will use the term "the applicants" to refer to the applicants in both matters. Mr Serena and Mr Woods were, at the time of the incident, directors of Area Concrete. Mr Anzolin, along with Mr Serena, was a director of P & B Serena, the employer of one of the workers who was killed in the accident; the other victim being an employee of Area Concrete. 3The applications for order set out particulars pursuant to r 217B of the Industrial Relations Commission Rules 1996 (as they then were) and were each supported by an affidavit of Inspector Childs sworn the same day which set out the facts of the incident and omissions alleged against the applicants. On 2 September 2008, Staff J of the Industrial Court made orders pursuant to s 246(1) of the Criminal Procedure Act 1986 ("CP Act"), as applied by s 168 of the Industrial Relations Act 1986 ("IR Act"), compelling the applicants to appear before the Industrial Court "to answer to the said offence charged in the annexed application for order", a copy of which was attached to the orders served on the applicants (hereafter referred to as the statements of charge). 4The scheme of statutory provisions from the OHS Act, IR Act and CP Act governing these proceedings was as follows. Section 8 of the OHS Act provided: "8 Duties of employers (1) Employees An employer must ensure the health, safety and welfare at work of all the employees of the employer. That duty extends (without limitation) to the following: (a) ensuring that any premises controlled by the employer where the employees work (and the means of access to or exit from the premises) are safe and without risks to health, (b) ensuring that any plant or substance provided for use by the employees at work is safe and without risks to health when properly used, (c) ensuring that systems of work and the working environment of the employees are safe and without risks to health, (d) providing such information, instruction, training and supervision as may be necessary to ensure the employees' health and safety at work, (e) providing adequate facilities for the welfare of the employees at work. (2) Others at workplace An employer must ensure that people (other than the employees of the employer) are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work. Note. See section 12 for the penalty for an offence against this section and other provisions of this Division. Division 4 makes ancillary provision with respect to those offences, including: (a) section 26-liability of directors and managers of corporations, (b) section 28-defence that compliance not reasonably practicable etc. See also Division 2 for duty of employer to consult employees." 5The bringing of proceedings for such offences was regulated by s 105 and s 107 of the OHS Act, which relevantly provided: "105 Summary procedure for offences (1) Proceedings for an offence against this Act or the regulations are to be dealt with summarily: (a) before a Local Court constituted by a Magistrate sitting alone, or (b) before the Industrial Relations Commission in Court Session. (2) The maximum monetary penalty that may be imposed in those proceedings by a Local Court is 500 penalty units, despite any higher maximum monetary penalty provided in respect of the offence. (3) The provisions of the Industrial Relations Act 1996, and of the regulations under that Act, relating to appeals from a Local Court to the Industrial Relations Commission in Court Session in connection with offences against that Act apply to proceedings before a Local Court for offences against this Act or the regulations. Note. Section 197 of the Industrial Relations Act 1996 deals with appeals against convictions or penalties in connection with offences against that Act. Section 197A of the Industrial Relations Act 1996 provides a right of appeal to the Full Bench of the Industrial Relations Commission in Court Session against a decision of a member of the Commission or a Local Court to acquit a person of an offence against this Act or the regulations. ... 107 Time for instituting proceedings for offences (1) Proceedings for an offence against this Act or the regulations may be instituted within the period of 2 years after the act or omission alleged to constitute the offence, except as otherwise provided by this section. ... (3) If a coronial inquest or inquiry is held and it appears from the coroner's report or proceedings at the inquest or inquiry that an offence has been committed against this Act or the regulations (whether or not the offender is identified), proceedings in respect of that offence may be instituted within 2 years after the date the report was made or the inquest or inquiry was concluded. (4) This section applies despite anything in any other Act." 6Where, as in this case, the proceedings were brought before the Industrial Court, s 168 and s 170 of the IR Act became relevant: "168 Criminal procedure (1) Proceedings for any offence in respect of which proceedings are taken before the Commission in Court Session are to be dealt with summarily by the Commission. (2) Part 5 of Chapter 4 of the Criminal Procedure Act 1986 applies to proceedings for an offence taken before the Commission in Court Session. (3) Nothing in subsection (2) affects the operation of section 170. (4) The provisions applied by this section prevail over any other provisions of this Part for the purposes of proceedings for an offence. Note. See section 196 with respect to the procedure on appeal to the Full Bench in criminal proceedings. ... 170 Amendments and irregularities (1) The Commission may, in any proceedings before it, make any amendments to the proceedings that the Commission considers to be necessary in the interests of justice. (2) Any such amendment may be made: (a) at any stage of the proceedings, and (b) on such terms as the Commission thinks fit (including, if it can award costs in the proceedings, terms as to costs). (3) If this Act, the regulations or a rule of the Commission is not complied with in relation to the institution or conduct of proceedings before the Commission, the failure to comply is to be treated as an irregularity and does not nullify the proceedings, any step taken in the proceedings, or any decision in the proceedings. (4) For the purposes of subsection (3), the Commission may wholly or partly set aside the proceedings, a step taken in the proceedings, or a decision in the proceedings." 7Also relevant are s 11, s 15, s 16, s 20, s 21 and s 246 of the CP Act: "11 Description of offences The description of any offence in the words of an Act or statutory rule or other document creating the offence, or in similar words, is sufficient in law. ... Part 2 Indictments and other matters 15 Application of Part (1) This Part applies, to the extent that it is capable of being applied, to all offences, however arising (whether under an Act or at common law), whenever committed and in whatever court dealt with. (2) In this Part: indictment includes a court attendance notice or any other process or document by which criminal proceedings are commenced. 16 Certain defects do not affect indictment (1) An indictment is not bad, insufficient, void, erroneous or defective on any of the following grounds: (a) for the improper insertion or omission of the words 'as appears by the record', 'with force and arms', 'against the peace', 'against the form of the statute' or 'feloniously', (b) for want of an averment of any matter unnecessary to be proved or necessarily implied, (c) for want of a proper or perfect venue or a proper or formal conclusion, (d) for want of any additional accused person or for any imperfection relating to any additional accused person, (e) for want of any statement of the value or price of any matter or thing, or the amount of damage or injury, if such value, price or amount is not of the essence of the offence, (f) for designating any person by the name of his or her office, or other descriptive appellation, instead of by his or her proper name, (g) except where time is an essential ingredient, for omitting to state the time at which an offence was committed, for stating the time wrongly or for stating the time imperfectly, (h) for stating an offence to have been committed on a day subsequent to the finding of the indictment, on an impossible day or on a day that never happened, (i) if the indictment was signed by an Australian legal practitioner who has been instructed to prosecute the proceedings to which the indictment relates on behalf of the Director of Public Prosecutions - for failure by the Director to authorise the Australian legal practitioner by order in writing under section 126 (2) to sign indictments for and on behalf of the Director. (2) No objection may be taken, or allowed, to any indictment by which criminal proceedings (including committal proceedings) in the Local Court or for any other offence that is to be dealt with summarily are commenced, or to any warrant issued for the purposes of any such proceedings, on the grounds of: (a) any alleged defect in it in substance or in form, or (b) any variance between it and the evidence adduced at the proceedings for the offence charged in the indictment or warrant. Note. An adjournment may be obtained under section 40 where there is a variance between the evidence adduced and the offence charged in the application or order. ... 20 Amendment of indictment (1) An indictment may not be amended after it is presented, except by the prosecutor: (a) with the leave of the court, or (b) with the consent of the accused. (2) This section does not affect the powers of the court under section 21. (3) For the purposes of this section, an amendment of an indictment includes the substitution of an indictment. 21 Orders for amendment of indictment, separate trial and postponement of trial (1) If of the opinion that an indictment is defective but, having regard to the merits of the case, can be amended without injustice, the court may make such order for the amendment of the indictment as it thinks necessary to meet the circumstances of the case. (2) If of the opinion: (a) that an accused person may be prejudiced or embarrassed in his or her defence by reason of being charged with more than one offence in the same indictment, or (b) that for any other reason it is desirable to direct that an accused person be tried separately for any one or more offences charged in an indictment, the court may order a separate trial of any count or counts of the indictment. (3) If of the opinion that the postponement of an accused person's trial is expedient as a consequence of it having amended an indictment or ordered a separate trial of a count, the court may make such order as appears necessary. (4) An order under this section may be made either before trial or at any stage during the trial. (5) The following provisions apply if an order is made under this section for a separate trial or for the postponement of a trial: (a) if the order is made during the trial, the court may order that the jury be discharged from giving a verdict: (i) on the count or counts in respect of which the trial is postponed, or (ii) on the indictment, as the case may be, (b) the procedure on the separate trial of a count, and the procedure on the postponed trial, are to be the same in all respects (if the jury has been discharged) as if the trial had not commenced, (c) subject to the Bail Act 1978, the court may commit the accused person to a correctional centre. (6) Any power of the court under this section is in addition to and not in derogation of any other power of the court for the same or similar purposes. ... 246 Orders for appearance or apprehension of accused persons (1) A prosecutor may apply for an order: (a) that a person alleged in the application to have committed an offence that may be dealt with summarily by the court must appear at a time and place specified in the order to answer to the offence charged in the order, or (b) for the apprehension of any such person for the purpose of being brought before a Judge to answer to the offence charged in the order. (2) The application must be in accordance with the rules. (3) The order may be made in the absence of one or both parties. (4) An order for the apprehension of a person may be made whether or not an order has been made under subsection (1) (a). (5) An order for the apprehension of a person: (a) must be addressed to all police officers, and (b) may be addressed to any other person specified in the order, and (c) may be executed by any police officer or by any person to whom it is addressed at any place at which, had the offence specified in the order been committed at that place, that offence would be triable in the court. (6) A Judge before whom a person apprehended under an order made under this section is brought may, if bail is not dispensed with or granted, issue a warrant: (a) committing the person to a correctional centre or other place of security, and (b) ordering the person to be brought before a court at the date, time and place specified in the order." 8Finally, r 217B of the Industrial Relations Commission Rules 1996, with which the applications for order must comply, provided: "217B Prosecutions (1) Proceedings before the Commission in Court Session for an offence (other than contempt) must, unless otherwise provided, be commenced by an application for an order under section 4 (1) of the Supreme Court (Summary Jurisdiction) Act 1967 (as applied to the Commission by section 168 of the Industrial Relations Act 1996). (2) The application must state: (a) the name and address of the person by whom the proceedings are brought (the prosecutor), and (b) the capacity in which the prosecutor is taking the proceedings, and (c) the name and address of the person against whom the proceedings are brought (the defendant), and (d) the Act and the section under which the defendant is alleged to have committed an offence, and (e) the nature of the offence that is alleged. (3) The Commission may require the prosecutor to file, in support of the application for an order filed under subrule (1): (a) an affidavit verifying the allegations made in the application, and (b) a minute of the order claimed." 9The particulars in each statement of charge were identical but for the name of the applicant, company name and the name(s) of the employee or non-employee(s) concerned. As set out in the statement of charge 1447/2008 against Mr Serena, the director of P & B Serena, in relation to the employee Mr Abel, the particulars appear as follows: "a) P & B Serena failed to ensure that the scaffolding access tower, erected on the outside of the water reservoir at the site, was safe and without risk to health; b) P & B Serena failed to ensure that the concrete formwork erected on the site was safe and without risk to health; c) P & B Serena failed to ensure that any or any adequate safety inspections were undertaken at the site prior to permitting Mr Abel to work at the site; d) P & B Serena failed to ensure that the formwork erected with respect to the forming of the concrete roof of the reservoir was properly certified prior to the commencement of the subject concrete pour; e) P & B Serena failed to provide a safe system of work with respect to the pouring of concrete onto elevated formwork; f) P & B Serena failed to ensure that Mr Abel was supervised properly or at all; g) P & B Serena failed to provide Mr Abel with any or any proper training and/or instruction with respect to the requirements that needed to be met before he could commence pouring concrete, including obtaining or sighting a copy of a certificate prepared by a formwork engineer in accordance with the requirements of clause 233 of the Occupational Health and Safety Regulation 2001 (NSW) and AS 3610 - 1995 Formwork for Concrete." 10Further and better particulars were sought by the applicant, Area Concrete, in December 2008 in relation to the charges laid concerning the safety of non-employees, and were provided on 23 December 2008. Further and better particulars were also sought by the applicants, Messrs Serena and Anzolin, on 23 December 2008 in relation to the charges laid concerning the safety of non-employees, and were provided on 29 January 2009. 11All of the applicants entered pleas of guilty to all charges by February 2010. However, before convictions were recorded and discussions could be had in relation to an agreed statement of facts for the purpose of sentencing, the High Court delivered judgment in Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1; (2010) 239 CLR 531 ("Kirk"). Consideration of that judgment led the prosecutor in June 2010 to file notices of motion in each matter seeking leave to substantially amend the particulars, relying upon the decision in Kirk and the desire of the prosecutor to add greater particularity in referring to the alleged acts or omissions that constituted the offence in each matter: see Inspector Childs v Paul Bortolo Serena [2011] NSWIRComm 32 ("primary judgment") at [3]. 12By late August 2010 the applicants also each filed notices of motion in effect seeking a declaration that the orders made by Staff J on 2 September 2010 pursuant to s 246(1) of the CP Act, compelling the applicants to appear before the Industrial Court, were invalid, null or void: see primary judgment at [3]. A further declaration was sought that the Court did not have jurisdiction to hear the prosecution of the applicants for the alleged offences under s 8(1) and s 8(2) of the OHS Act, and supplementary orders were sought vacating, dismissing, permanently staying or, alternatively, permanently striking out the orders or further alternatively, dismissing or permanently staying the proceedings. 13The hearing of the prosecutor's and applicants' motions was delayed by consent pending the decision of the Court of Appeal in John Holland Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 338; (2010) 202 IR 82 ("John Holland"). That judgment was handed down on 9 December 2010. 14The matters the subject of the present proceedings were heard by the Industrial Court on 23 March 2011. Judgment was delivered on 29 March 2011. The Court found that the statements of charge in each matter were valid, but that the particulars did not "sufficiently identify those acts and omissions as required by Kirk" and should specify more clearly the acts or omissions alleged against the applicants: primary judgment at [20]-[21]). It was held that the defective particulars "are curable by way of amendment, pursuant, at least, to s 16(2) of the Criminal Procedure Act and/or s 170 of the Industrial Relations Act 1996" (at [20]). The applicants' notices of motion were therefore dismissed. The Court did not rule on the prosecutor's motions, considering that further discussion between the parties as to the appropriate form of amended particulars was desirable. The parties were given leave to have the matter re-listed when the discussions had concluded (at [22]). 15On 19 April 2011, the applicants applied to the Full Bench of the Industrial Court for leave to appeal to that Bench against the primary judgment of 29 March 2011. Leave was refused. 16The applicants now apply to the Court of Appeal in its supervisory jurisdiction, seeking an order removing the records of the Industrial Court in respect of the matters into this Court, an order in the nature of certiorari quashing the orders made by Staff J in the Industrial Court on 2 September 2008, an order in the nature of certiorari quashing the decision of Haylen J in the Industrial Court on 29 March 2011 and an order in the nature of a prohibition restraining the prosecutor and Industrial Court from taking any further steps or exercising any powers in respect of the matters. 17The applicants rely on three grounds: that the applications for order filed on 1 September 2008 were bad at law and otherwise invalid, that the orders made on 2 September 2008 were in excess of the Industrial Court's jurisdiction and amounted to jurisdictional error in accordance with the principles enunciated in Kirk, and that the decision made on 29 March 2011 was bad at law and in excess of the Industrial Court's jurisdiction and amounted to jurisdictional error in accordance with the principles enunciated in Kirk. 18A number of documents were tendered and admitted in this Court without objection in the application brought by Area Concrete and Mr Woods, and were ordered to be evidence in the application brought by Messrs Serena and Anzolin. These were: the original applications for order with accompanying affidavits in support, the orders made on 2 September 2008, the applicants' notices of motion and affidavits in support in the Industrial Court, the transcript of the hearing of 23 March 2011 before Haylen J in the Industrial Court, the judgment of 29 March 2011 of Haylen J, the applications for leave to appeal and appeal to the Full Bench of the Industrial Court, and the transcript of the hearing before, and judgment of, the Full Bench of the Industrial Court on 17 August 2011. The notices of motion seeking leave to amend the particulars and the amended applications for order were admitted in this Court over the objections of the respondent on the grounds that the form of the proposed amendments had potential relevance to the Court's exercise of discretion. In the event, the form of the notices of motion is not in issue.

Applicants' Submissions 19The applicants' submissions raise four arguments. First, the applicants submit that the particulars in the statements of charge, set out at [8] above, suffer from the same insufficiency as did the particulars contemplated in Kirk, namely that they fail to identify the particular act or omission said to constitute a contravention of the OHS Act. In the course of hearing attention was paid to particular g), which, it was suggested to counsel for the applicants, arguably sets out the specific omission of failing to provide the deceased with training or instruction with respect to the requirement of obtaining or sighting a copy of a certificate prepared by a formwork engineer prior to the concrete pour, to the effect that the formwork would withstand the weight of the poured concrete. Counsel for the applicants submitted that particular g) is nevertheless insufficient because it fails, as do particulars a) to f), to identify the particular risk to which each applicant ought to have directed their attention. 20Counsel for Area Concrete and Mr Woods, whose submissions were adopted by counsel for Messrs Serena and Anzolin, submitted further that g) could not, in any event, be complied with, as cl 233 referred to therein does not require the individual named (in the particulars given above, Mr Abel) to obtain or sight a copy of a certificate. 21Being inadequate in the Kirk sense, the applicants submit that the applications for order were bad in law, and therefore no orders could validly be made under s 246(1) of the CP Act. The orders made to this effect on 2 September 2008 were therefore beyond the jurisdiction of the Court. There being no jurisdiction to make the orders by which the proceedings were purportedly commenced, the applicants contend, there is similarly no power to amend the particulars in the applications for order, as the judgment of 29 March 2011 contemplates, and the Court fell into error by dismissing the applicants' notices of motion on that date. 22The applicants rely in this regard on what was said by Spigelman CJ in John Holland: "45 The reasoning in Kirk was to the effect that, as a matter of interpretation of the offence creating provisions, a charge had to identify the nature of the offence. In the present case the challenge has been made at the time of the charge. Accordingly, the matters left open at [30] of the joint judgment in Kirk, [set out at [21] below], may arise. 46 Section 246(2) of the Criminal Procedure Act and r 217B of the Industrial Relations Commission Rules, set out at [22] and [26] above, are both expressed in mandatory terms: An application under s 246 of the Criminal Procedure Act 'must' be in accordance with the Rules. Rule 217B(1) of the Rules requires that an application 'must' be made under s 4(1) of the Supreme Court Summary Jurisdiction Act. Rule 217B(2) provides that an application 'must' state, relevantly, the nature of the offence alleged. Rule 217C(3) requires that service 'must' be effected in the manner specified in the Rules there identified. 47 These provisions constitute a direct route to the proposition that a failure to identify the nature of the offence constitutes jurisdictional error. An Application under s 246(1)(a) of the Criminal Procedure Act requires an accused to answer 'to the offence charged in the order'. Section 246(2) and r 217B, as noted, both use the word 'must'. The reasoning in Kirk gives these mandatory requirements specific content." 23Second, the applicants submit that s 16(2) of the CP Act cannot affect the availability of an order in the nature of certiorari in this case. I have set out s 16(2) of the CP Act above. It is in essential respects the same as s 6(1) of the Supreme Court (Summary Jurisdiction) Act 1967 (known as a "Lord Jervis provision") which was considered by the majority in Kirk at [30]: "No application was made to the Court of Appeal for an order in the nature of certiorari quashing the orders made by the Industrial Court that required Mr Kirk and the Kirk company to appear to answer the offences charged. Those orders of the Industrial Court were expressed as being made pursuant to s 4(1) of the [Supreme Court (Summary Jurisdiction) Act 1967 ('Summary Jurisdiction Act')] as applied by s 168 of the IR Act. Section 4(1) of the Summary Jurisdiction Act permitted the making of an order '[u]pon an application being made ... in accordance with the rules' and the relevant rules required that the nature of the offence be stated. Section 6(1) of the Summary Jurisdiction Act provided, in effect, that no objection was to be taken or allowed to any order made under s 4 by reason of any alleged defect in it in substance or in form. Because no application was made to quash the orders requiring appearance to answer the charges, it is neither necessary nor appropriate to examine whether those orders were made upon an application made 'in accordance with the rules', or to consider whether or how s 6 of the Summary Jurisdiction Act might affect the availability of an order in the nature of certiorari. However, it may be said that the matter should not have proceeded without further particularisation of the acts and omissions said to found the charges. Without that particularisation, the Industrial Court would be placed in the position to which Evatt J referred in Johnson v Miller (1937) 59 CLR 467 at 495 where it would act as 'an administrative commission of inquiry' rather than undertake a judicial function. Proceeding without further particularisation of the acts and omissions said to found the charges reflected views as to the nature and extent of the duty cast upon an employer by ss 15 and 16 and the limited operation to be given to the s 53 defences." 24The applicants submit neither s 16(2) of the CP Act nor s 170(3) of the IR Act could affect the availability of an order in the nature of certiorari in this case because, by virtue of the defective particulars, the applications for order were nullities and were not capable of commencing proceedings, and therefore there was nothing to which those provisions could apply. 25The applicants contend that the distinction between legal elements, for which defects can not be rectified by a Lord Jervis provision, and essential factual elements, for which defects can be rectified by a Lord Jervis provision, identified by the Court in Taylor v Environment Protection Authority [2000] NSW CCA 71; (2000) 50 NSWLR 48 (see also McConnell Dowell Constructors (Aust) Pty Limited v Environment Protection Authority (No 2) [2002] NSWCCA 24; (2002) 54 NSWLR 39 at [12]) either should no longer be recognised, or that the effect of Kirk is that the inclusion of certain essential factual particulars is now in itself an essential legal element of the offence. 26The applicants rely in this regard on the judgment of Spigelman CJ (with whom McClellan CJ at CL and Sully J agreed) in Lodhi v R [2006] NSWCCA 121; (2006) 199 FLR 303, in which his Honour characterised particular provisions of the Criminal Code Act 1995 (Cth) as essential physical elements that were required to be pleaded in the indictment, and the absence of which led to the quashing of the indictment. McClellan CJ at CL added that although a literal reading of s 11 of the CP Act, which provides that an offence described in the words of the Act is sufficient at law "might suggest that an indictment which merely described the offence in the words of the relevant statute would be sufficient in law ... It is now accepted that the obligation of the prosecutor has not been so narrowly confined" (at [98]). They referred also to the judgment of Spigelman CJ cited therein, in R v Janceski [2005] NSWCCA 281; (2005) 64 NSWLR 10, in which his Honour, having set out the essential functions performed by the initiating process in a criminal proceeding, in particular in investing the court with jurisdiction, held that "the courts will, subject to the operation of s 16 and s 17 [of the CP Act], readily conclude that any failure to observe a requirement which impinges on such matters [of the importance of initiating processes] was intended by Parliament to result in invalidity": (at [55]). 27The applicants' third submission contends that the insufficient particulars cannot be rectified by further particularisation or amendment or substitution under s 20 or s 21 of the CP Act or s 170 of the IR Act, and the prosecutor and Industrial Court should be prohibited from so acting. This argument appeared to be put on two bases. First, since the jurisdiction of the Court was engaged and the applicants were ordered to appear, appeared and pleaded guilty, the situation of the applicants is analogous to having been indicted and arraigned in the circumstances of an indictable offence. The applicants submit on this point that it is not possible in law to amend a statement of charge after indictment, and therefore it is not possible to amend the statement of charge in this case. The only option is to withdraw and reissue the charge, which is not available in this case as the prosecutor is out of time under s 107 of the OHS Act. Second, they argue that any powers of amendment or substitution of the charge which may be available would face significant procedural fairness challenges, particularly in the circumstance that the applicants have pleaded guilty. 28The applicants submit that the judgment of Basten JA (with whom Mason P agreed) in Rockdale Beef Pty Ltd v Industrial Relations Commission of NSW [2007] NSWCA 128; (2007) 165 IR 7 ("Rockdale Beef") at [122]-[123], [126] and [131]-[133] reflects the modern recognition that rather than determining the adequacy of a charge by characterising defects as either legal elements that must be present or factual elements that may be amended, it is necessary to consider the specific legislative framework to determine whether defects in the charge are capable of rectification. In this regard they also cite the majority in Kirk (at [26], citing John L Pty Ltd v Attorney General (NSW) [1987] HCA 42; (1987) 163 CLR 508 at 520): "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 charge which he or she is called upon to meet. The common law requirement is that an information, or an application containing a statement of offences, 'must at the least condescend to identify the essential factual ingredients of the actual offence.'" 29The applicants distinguish this case from GPI (General) Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 157; (2011) 207 IR 93 ("GPI (General)"), which had a similar procedural history and in which it was held that an inadequate statement of charge could be amended, submitting that in this case that there is no power to amend the charge because to do so would retrospectively insert essential factual allegations into a charge that otherwise does not identify the charge to be met. This is particularly so in the circumstances where the applicants have already attended and answered the defective charges. 30The applicants submit that, although the Industrial Court has not yet made any orders amending the original applications for order, the judgment of 29 March 2011 sufficiently identifies the Court's intention to grant the prosecutor's application to amend such that this Court's supervisory jurisdiction to issue a prohibition is invoked. 31Finally, the applicants submit that, having made orders pursuant to s 246(1) of the CP Act, the Court is functus officio in relation to determining jurisdiction, and has no further relevant power in respect of those orders.

Respondents Submissions 32The respondent submits that the applicants' arguments should be rejected on three bases. First, that Kirk is not authority for the proposition that if a charge fails to spell out the precise measure required to be taken by the applicants, it is a nullity. Second, it submits that even if this is the state of the law, particular g) does spell out the precise measure required to be taken, at least sufficiently to attract the jurisdiction of the Industrial Court. Particular g) also, either when read alone or when read together with particulars b), d) and e), clearly identifies the risk of collapse due to structural inadequacy. Any remaining insufficient particulars do not affect the validity of the charge by virtue of s 16(2) of the CP Act or can otherwise be remedied by orders for further particulars or amendment made by the Industrial Court in the exercise of its powers under s 170 of the IR Act. Third, it contends that the pleas of guilty by the applicants effectively cure any defects in the statements of charge. 33The first basis upon with the respondent submits that the applicants' arguments should be rejected is that Kirk is not authority for the proposition that in all circumstances it is necessary to have a specification of the particular risk in the statement of charge for the charge to be valid, nor for the proposition that in order for a charge to be valid it needs to specify within the terms of the charge the precise acts or measures that are alleged that a defendant did or did not do. Rather, Kirk was a case in which a defended hearing was conducted and concluded on the basis of a charge that did not disclose the precise nature of the offence. It can be distinguished from this case, the respondent submits, because in this case there is still opportunity to remedy the alleged lack of particulars. The respondent submits that Kirk, (at [30]; as set out at [23] above), concedes that further particularisation of acts and measures can come separately to the statement of charge, thus making it plain that the specification of measures was not an essential matter to be pleaded in the charge in order to validly attract the jurisdiction of the Industrial Court. 34The respondent adopted by way of submission what was said by the Industrial Court in Inspector Hamilton v John Holland Pty Ltd [2010] NSWIRComm 72; (2010) 194 IR 189 at [36]-[39], which, it submits, was not criticised by the Court of Appeal in John Holland, in particular at [36] (citing a passage from John L Pty Ltd v Attorney General (NSW)): "the rule does not require that the information contain all such material as a defendant may require, upon an application for particulars, for the preparation of his defence: Ex parte N. Ormsby & Sons Pty Ltd; Re Mason (1964) 81 WN (pt 1) (NSW) 286, at pp 290, 291." And at [39]: "Where an information fails to specify the essential legal elements of the offence the information may not be saved by a Lord Jervis provision such as s 16 of the Criminal Procedure Act: see for example, Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501; (1993) 53 IR 21 at 517 per Mahoney JA. This would be so if the information, by failing to specify an essential legal element, did not disclose an offence known to the law. However, the failure to properly plead the elements of an offence does not 'necessarily render the information invalid': Rockdale Beef at [123] per Basten JA. It is to be noted, however, that s 170 of the Industrial Relations Act arguably goes further than s 16 of the Criminal Procedure Act in allowing amendments in relation to the institution of proceedings where there has been a failure to comply with a rule (eg r 217B): such a failure is to be treated as an irregularity and does not nullify the proceedings." 35In answer to the applicants' reliance on the judgment of Spigelman CJ in John Holland (see [22] above), to the effect that the provisions in s 246(2) of the CP Act and r 217B of the Industrial Relations Commission Rules constitute "a direct route to the proposition that a failure to identify the nature of the offence constitutes a jurisdictional error" (John Holland at [47]), the respondent observes that the applications for order complied with the formal rules. 36Reliance was also placed on the judgment of Giles JA, with whom Hislop and Price JJ agreed, in Boujaoude v R [2008] NSWCCA 35; (2008) 72 NSWLR 85, in particular at [35]: "The Crown did not submit that any of the paragraphs in s 16(1) of the CP Act applied in the present case. However, they are not exhaustive of the circumstances in which a defective indictment may nonetheless be valid. As Spigelman CJ said in R v Janceski [[2005] NSWCCA 281; (2005) 64 NSWLR 10] at [79]- '79 ... the scope of [ss 16 and 17 of the CP Act] is so wide that it can support the proposition that Parliament did not intend that every other defect, however or whenever occurring, should deprive an indictment of its character as such for purposes of other sections of the Act.' " And at [45]-[46]: "[45] ... There was an offence known to the law in the indictment, the s 25(2) offence of supply of not less than the commercial quantity of a prohibited drug, and the statement that the supply was of 279 grams of heroin [which did not meet the definition of commercial quantity] was a particular. The indictment was valid, although defectively particularised. [46] The appellant accepted that the words 'namely 279 grams of heroin' were a particular. If the evidence conformed to the particular, as it did, a verdict of not guilty of the offence charged would follow. That does not mean that the indictment was invalid; the prospect of failure is not the same as invalidity. The powers to amend a defective indictment in ss 17 and 21 of the CP Act connote that the defective indictment is nonetheless valid, even if it is liable to be quashed, and it remains a valid indictment until quashed (see Knaggs v Director of Public Prosecutions [[2007] NSWCA 83] at [50] for like reference to s 21 and a defective court attendance notice)." 37The respondent submits that this is a complete answer to the applicants' submission that the statements of charge were nullities. Any remaining questions concerning the sufficiency or amendment of the particulars given in the statements of charge in relation to procedural fairness to the applicants are properly questions for the Industrial Court. 38However, if the above is not taken as a complete answer to the applicants' submissions, the respondent submits second that particular g) is sufficiently compliant with the requirements in Kirk, in that the statement of charge identifies the act or omission said to constitute the contravention (Kirk at [14], [15], [27], [37], [38], [74]) and identifies the relevant risk which the applicants failed to take particular measures to prevent (Kirk at [12], [14], [19], [28], [38]). 39In Kirk the majority held (at [14]): "It may be expected that in many instances the specification of the measures which should have been or should be taken will itself identify the risk which is being addressed." The respondent submits that implicit in particular g) is the risk of injury caused by collapse of the formwork if it was not of sufficient quality and strength as to be able to hold the concrete that was poured onto it. This can be gathered both from the words of particular g), and by its reference to the Occupational Health and Safety Regulations and Australian Standard 3610 - 1995 Formwork for Concrete, both of which deal with the support of formwork. In the alternative, it submits that this risk is identified by particular g) read together with particulars b), e) and f). The respondent submits that the manner of offence, being the omission of the applicants, identified by particular g) is that each of the applicants should have provided the relevantly named employee with training or instruction with respect to the requirement to obtain or sight a copy of a certificate prepared by a formwork engineer to the effect that the formwork could withstand the load of the pour before commencing to pour concrete. 40The respondent submits that one adequate particular is sufficient to attract the jurisdiction of the Industrial Court. The remaining inadequacies in particulars a) to f), some of which were effectively conceded by the respondent, do not, it submits, render the statements of charge invalid. This was argued on two bases: first, s 16(2) of the CP Act provides relief from defective indictments (which, by 15(2) of the CP Act, includes the orders of 2 September 2008), and second, the charges are otherwise capable of amendment and further particularisation pursuant to s 170 of the IR Act as well as s 20 and s 21 of the CP Act. 41The respondent concedes that a conviction based upon one of the defective particulars only, for example particular a), would not be valid, but that this does not make the statements of charge themselves nullities. Senior counsel for the respondent submits that the charge in Kirk was never a nullity, rather, it could have been saved had it been further particularised during the course of the trial. It was only made invalid at the conclusion of the trial, having never been further particularised. In support of this contention, Mr Agius for the respondent cited a statement made by Dixon J in Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467 at 490 to the effect that further particularisation, which can take many forms, will cure a defective charge, and can occur even during the course of the hearing. 42The respondent concedes that it may ultimately be unsuccessful in seeking to amend the statements of charge in relation to particulars a) - f), as, in the circumstances, the plea of guilty might mean that amendment is not in the interests of justice. However, it submits that this question is one for the Industrial Court, which is properly within jurisdiction to hear the matters. It further submits that, given that there is outstanding an application to amend the applications for order, it would be inconsistent with the decision in GPI (General) for this Court to exercise jurisdiction and grant relief, relying in particular on what was said by Basten JA at [79]-[81] in that case. 43Finally, the respondent submits that in exercising its discretion to make an order in the nature of certiorari, this Court should have regard to the fact that each applicant pleaded guilty. The respondent submits that a plea of guilty effectively "cures" any defects in the statements of charge. It observes that "it is trite that a plea of 'guilty' constitutes an admission of all the essential legal elements of the offence charged", citing Maxwell v R [1996] HCA 46; (1996) 184 CLR 501 as authority for this proposition: see respondent's written submissions at [46] (emphasis in original). The respondent also points to the fact that the applicants pleaded guilty after service of the applications for order with accompanying affidavits in support and a copy of the prosecution brief of evidence, after having sought and obtained further and better particulars for the offences charged in relation to non-employees, and after having had the benefit of experienced legal representation. It submits that no application has been made by any of the applicants to withdraw their pleas. It submits further that this distinguishes the facts of this case from those in Kirk, where the defendants' guilt was in dispute.

Consideration 44As the High Court stated in Kirk (at [30]), no application was made in that case to quash the orders requiring an appearance to answer the charges. It was thus unnecessary for the Court to consider the effect of provisions such as s 11 and s 16 of the CP Act or s 170 of the IR Act. 45In GPI (General) Hodgson JA stated at [32]-[33] that although Kirk decided that it was necessary that a statement of the offence identify the act or omission of the defendants said to constitute the offence and in the case of omission, identify the measures that should have been taken to address the risk, it did not decide that this requirement displaced s 11 and s 16(2) of the CP Act. Rather, the judgments in Kirk found that s 11 did not dispense with the necessity for the defendant not only to be told of the legal nature of the offence but also of the particular matter and thing alleged as the foundation of the charge. Hodgson JA emphasised at [33]-[34] that the Court in Kirk did not say that the particularisation had to occur at the time the charge was first brought. Allsop P agreed with Hodgson JA and added the following remarks at [2]: "It is not to be concluded that the charges here necessarily had to be quashed or stayed by Haylen J or Marks J if jurisdictional error by them were to be avoided. Their Honours may have taken a different course had they had available to them the reasons of the High Court in Kirk; they may have been wrong in the courses they took. That does not, however, make their decisions vulnerable to attack on the basis of jurisdictional error" 46Basten JA reached the same conclusion, emphasising that Kirk involved challenges to conviction and did not say the failure to adequately particularise the charge as initially laid would necessarily lead to the charge being rejected or an order based on it being set aside (see [50]-[51]). 47In these circumstances GPI (General), in my opinion, is authority for the proposition that a failure to adequately particularise a charge will not without more render it a nullity and that having regard to the provisions of s 16(2) of the CP Act and s 170(3) of the IR Act, defects can be cured by amendment to the charge or subsequent particularisation, at least provided the charge describes an offence known to law and that procedural unfairness is not caused to the defendant by the amendment. 48What was said by Spigelman CJ in John Holland is not inconsistent with these propositions. The relevant paragraphs from the judgment of the Chief Justice are set out at [22] above. His Honour was not required to consider s 16(2) of the CP Act or s 170 of the IR Act as he found the charges as formulated read with the particular appended to them identified the offence in accordance with the reasoning in Kirk. 49As I indicated above, a charge which does not describe an offence known to law cannot be remedied (see Doja v R [2009] NSWCCA 303; (2009) 198 A Crim R 349 at [14] per Spigelman CJ). This is not such a case. As was held by Giles JA in Boujaoude, even an inadequately described offence will not necessarily render the offence unknown to law such that jurisdiction is lost and amendment provisions cannot operate. The present proceedings can also be contrasted with Janceski, where the signature of the indictment by an unauthorised person rendered the charge a nullity, and with Lodhi, where there was a failure to identify an essential element of the offence. 50The applicants attempt to distinguish this case from GPI (General) on the basis that the applicants in GPI (General) had not yet pleaded to the charges. In this regard they rely on what was said by Basten JA, who also found no jurisdictional error in that case but on slightly different grounds from Allsop P and Hodgson JA, at [80] (emphasis added): "In circumstances where no irreparable procedural unfairness has been suffered by the applicants (they not having faced trial or yet pleaded to the charges) and where that which constitutes an essential factual allegation, as opposed to a desirable degree of particularisation of facts alleged, is a distinction involving matters of evaluative judgment, the contention [that, because the statutory time limit precludes the prosecutor filing fresh charges, the power of amendment does not extend to the addition of essential factual allegations] should be rejected. The underlying and important premise of criminal pleading is that no person should be convicted without procedural fairness, nor for an offence not known to the law. Neither principle will necessarily be breached: the orders by which the proceedings were commenced were not invalid." 51The applicants submit that as they have already pleaded guilty, the defects in the particulars in the applications for order must be beyond the operation of s 16, s 20 and s 21 of the CP Act and s 170 of the IR Act, and cannot otherwise be rectified by further particularisation. During oral address counsel for the applicants clarified that they do not rely upon the argument that amendment or further particularisation would not save the orders from jurisdictional error merely because to permit amendment would be procedurally unfair (although this may be the case), but because permitting further particulars and/or allowing amendments in this case would be to retrospectively insert essential factual allegations into a charge that otherwise does not identify the charge to be met, and that the Industrial Court does not, in common law or statute, have this power. 52Such a restraint on the powers contained in this section is not to be found in the provisions mentioned above, nor in the general common law power to order or permit further particulars. The only substantial point of distinction between this case and GPI (General) is the pleas of guilty, and the applicants could identify no reason why further particularisation or amendment is beyond power once a plea of guilty has been entered apart from the passage of Basten JA quoted at [50] above. That passage refers expressly to procedural unfairness in circumstances where the applicants have not "faced trial or yet pleaded to the charges". It is then followed by further observations (emphasis added): "[81] If this conclusion were wrong, the validity of criminal proceedings would be at risk of being returned to pre-Jervis's Acts technicalities, despite the clear intention of s 16 of the Criminal Procedure Act. It may be noted that the principal mischief to which Jervis's Acts were devoted was not the inadequate commencement of proceedings, but convictions based on technical irregularities." 53When read together, these passages from GPI (General) point to the fact that Basten JA's comments were with regards to the principle that person should not be convicted in the absence of procedural fairness. In that case, in which, it must be remembered, the applicants did not plead to the charges, his Honour identified a plea as a potential factor going towards that consideration of procedural unfairness. It does not follow that a plea of guilty will automatically mean that "irreparable procedural fairness" has taken place, especially when it is recalled that no such plea was entered in that case. Nor does it follow that a plea of guilty will take those proceedings outside the powers of the Industrial Court so as to make any decision after the plea beyond that Court's jurisdiction. 54It is further not correct, as the applicants submit, that there is no power in law to amend an indictment (or, in this case, a statement of charge) after a plea of guilty has been entered. Section 170(2) of the IR Act permits amendment at any stage of the proceedings, and proceedings are on foot at least until a conviction is recorded and possibly until sentence. Amendments to indictments are permitted after arraignment, including in circumstances where the accused has been convicted. As to amendments permitted during the course of trial, see Pollard v R [2011] VSCA 95; (2011) 207 A Crim R 124 at [40]-[42]; Borodin v R [2006] NSWCCA 83 at [20] and [24]-[26] and Kennett v Holt [1974] VR 644. As to amendment after conviction, see Reid v R [2010] VSCA 234; (2010) 29 VR 446 at [23] and R v Ernst [1984] VR 593 at 604-605. In Castle v R (1990) 50 A Crim R 391, an accused who had pleaded guilty before a justice was arraigned for sentence before the District Court. The prosecution then successfully sought to amend the indictment, after which the accused unsuccessfully sought to amend his plea. The conviction was quashed, not because there was no power to amend the indictment, but rather because having regard to the differences between it and the original charge, the accused should have been permitted to amend his plea. 55Further, the jurisdictional validity of an initiating process (as distinct from any error of jurisdiction later made by a Court purporting to exercise the jurisdiction so conferred, as occurred in Kirk) cannot be affected by a later event, such as a plea, although it may well be that if the Court recorded a conviction on such a plea, the conviction would constitute jurisdictional error. Errors in proceedings may be such as to render the proceedings a nullity by way of jurisdictional error, including by way of procedural unfairness; they do not thereby render the originating process a nullity. 56The applicants' submission that the Court below had no power to amend the statement of charge because, in relation to s 246 it is now functus officio, should also be rejected. Such a submission is inconsistent with the express powers conferred on the Court in s 170(2)(a) of the IR Act. 57In circumstances in which the Industrial Court is yet to make any order in relation to the amendment or further particularisation of the applications for order, and in which it is by no means clear that any order other than dismissing the proceedings will necessarily result in procedural unfairness, or in the bringing of a new charge out of time, there is no basis for an order in the nature of certiorari or prohibition on the ground that the Industrial Court has made, or is at risk of making, a jurisdictional error. Where procedural unfairness forms the basis of a jurisdictional error, it can generally only be determined at the conclusion of the inquiry: Kirk at [60] (citing R v Bolton (1841) 1 QB 66 at 74 and Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82 at [5], [17]-[42], [170]). 58The question of whether the operation of s 16(2) of the CP Act, the relevant amendment provisions, the provision of further particulars and/or the granting of leave to withdraw or otherwise rejecting the entered pleas, would result in procedural unfairness or other jurisdictional error, such that the case should not proceed is, in these circumstances, one properly to be determined by the Industrial Court. 59It should also be noted that the affidavits of Inspector Barry Childs sworn 1 September 2008 setting out the facts and the omissions alleged against the applicants accompanied the applications for order in this case, and that an offence may be validly particularised by way of affidavit in some circumstances: GPI (General) at [39] per Hodgson JA and [61] per Basten JA. Although counsel for the respondent in oral submissions offered his support for this approach, the respondent does not rely on the affidavits in this way in this case. Further, as an application to amend the applications for order is on foot, it is unnecessary to decide the extent to which the affidavit may be pleaded in aid of the statements of charge in this case. 60The question as to whether the amendment provisions of the CP Act apply in addition to s 170 of the IR Act also does not fall to be considered in this case (cf GPI (General) at [56]-[57] and [64] per Basten JA). Nor is it necessary to consider in what circumstances interlocutory or procedural orders generally may qualify for relief in the nature of certiorari (cf GPI (General) at [73] per Basten JA). 61Having found that the statements of charge are not nullities, it is also unnecessary to consider whether any of the particulars were, in themselves, valid in the Kirk sense. However, if I am wrong as to the effect of inadequate particulars on the originating process in circumstances in which the applicants have already pleaded guilty, I am of the opinion that particular g) is sufficient in the Kirk sense to avoid jurisdictional error by the Industrial Court at this interlocutory stage. Particular g) (of the statement of charge 1447/2008) states: "P & B Serena failed to provide Mr Abel with any or any proper training and/or instruction with respect to the requirements that needed to be met before he could commence pouring concrete, including obtaining or sighting a copy of a certificate prepared by a formwork engineer in accordance with the requirements of clause 233 of the Occupational Health and Safety Regulation 2001 (NSW) and AS 3610 - 1995 Formwork for Concrete." 62Particular g) charges an omission on the part of the applicants, being that they failed to provide the individual there named with training or instruction with respect to the specific requirement that before the employee (Mr Abel in this case) commence pouring concrete he obtain or sight a copy of a certificate prepared by a formwork engineer to the effect that the formwork could withstand the load of the pour. It is in more specific terms than the similar particulars in cases such as GPI (General), which cited the failure "to provide adequate induction (in particular about the operation and use of forklifts)" (at [15]) or Kirk and Rockdale Beef, which both cited the failure to provide "such information, instruction, training and supervision as was necessary" to ensure health and safety (Kirk at [22], Rockdale Beef at [72]). Particular g) cites the specific act of sighting a copy of a certificate prepared by a formwork engineer and refers to the specific regulations and standards governing formwork for concrete. It is immaterial that the requirement that a certificate be sighted is not provided for in cl 233; that may ultimately provide an opportunity for attack on the prosecution case, but it does not make the charge inadequate in the Kirk sense. 63The risk implicit in this identified risk is the structural failing of the formwork resulting in injury to individuals in the vicinity of the concrete pour. This is further clarified when read with particulars b), e) and f), but is not dependent upon them. 64It is possible that even if one particular adequately charges the act or omission, the inclusion of up to six others that do not would be fatal to any conviction based on the charge. This is because the broad framing of the remaining particulars is such that one of the problems identified with the insufficient particulars in Kirk - that the applicants are denied the opportunity to properly put a defence - eventuates: Kirk at [38]. This defect would not be cured by a plea of guilty: see Janceski per Howie J at [277], Hunt AJA and Johnson J agreeing. 65Nevertheless, it remains that the proceedings in this case are not yet concluded; pleas may be withdrawn or rejected, and charges amended or further particularised: Kirk at [26] (citing De Romanis v Sibraa [1977] 2 NSWLR 264 at 291-292, referred to in John L Pty Ltd v Attorney General (NSW) at 520). It may be that the amendments or additional particulars required will be such as to lead to the conclusion that the amended charges were in fact fresh charges which could not be brought as they were out of time, in which case the proceedings are out of time, but that is not a question for this Court: GPI (General) at [38]. 66This is consistent with the views expressed by Spigelman CJ in John Holland (at [72]): "A Court can determine which of the contraventions are not appropriately joined with another or others and leave it to the election of the prosecution to abandon one or the other, or to recharge, if a new charge is permissible in accordance with the limitation provisions. The exercise of this Court's supervisory jurisdiction to prevent an impermissible combination of contraventions would not lead to a quashing of the charge as a whole." 67The premise that inappropriately included particulars, albeit on the basis that charges were impermissibly combined, could be severed without leading to a quashing of the charge as a whole lends weight to the proposition that insufficient particulars can be severed from the charge without rendering it a nullity. 68If, contrary to my findings, it is found necessary for the applications for order to have included adequate particulars of the offence in the Kirk sense on its face (and excluding consideration of the supporting affidavit or further particulars) in order for the Industrial Court to have had jurisdiction to make the orders of 2 September 2008, particular g) is relevantly adequate. Jurisdiction is attracted, and s 170 of the IR Act and the related amendment provisions have their work to do remedying any remaining defects in the particulars. 69For these reasons, the applications for orders in the nature of certiorari and prohibition should be denied. 70BASTEN JA: These proceedings are the latest episode in a series of cases asserting that a statement of charge relied on to commence criminal proceedings in the Industrial Court was so deficient in detail that, although at the time the defendant was content to plead to it, the statement was irreparably ineffective to identify a specific offence. In the present case that meant that the statement in respect of each defendant was incapable of being cured by the provision of further particulars. Furthermore, not only did the defendants (the present applicants) not complain about any lack of particulars before they pleaded, they now rely upon the fact of their pleas to prevent any newly discovered inadequacy being remedied. 71These propositions were said to flow from the reasons of the High Court dealing with convictions infected with "jurisdictional error", Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531. In oral submissions the applicants accepted that success would require an extension of the reasoning in Kirk. 72Each statement of charge had a number of consecutive purposes. The first was to obtain an order bringing the proposed defendant before the Court to answer the charge. The second was to give the defendant sufficient information about the alleged contravention of specific statutory provisions to allow it or him to respond, including by way of plea. The third purpose was to form the basis of a final order, whether of conviction or acquittal. 73The applicants' case depended on the assertion that a defect in the statements of the charges invalidated the order requiring their attendance and everything that occurred thereafter. The argument did not rely upon an assertion of prejudice should further particulars be required and be provided, except to the extent that the applicants affirmatively relied upon the fact that they had already pleaded to the charges. 74The factual and procedural context in which these contentions arise, together with the submissions of the parties, have been fully set out by the Chief Justice and need not be repeated. I agree with the orders proposed by the Chief Justice and, subject to the following, with his reasons.

Relevant legal principles - 'jurisdictional error' 75The applicants assert that the orders by which the proceedings against each of them were commenced on 2 September 2008 were infected by jurisdictional error. If that were so, the fact of the pleas would not prevent the orders being quashed: R v Rushton [1967] VR 842 at 846 (Winneke CJ for himself and Adam and Menhennit JJ). 76Because the term "jurisdiction" is of uncertain provenance, the phrase "jurisdictional error" fails helpfully to define potential causes of invalidity. The term suggests that a court has done something it is not entitled to do, or has refused to consider doing something it is entitled to do. Not only is the label imprecise; it is not supported by particular criteria which demonstrate when invalidity results. Indeed, the concept of invalidity itself must be used with caution; broadly it connotes not merely an incorrect exercise of a power, but a mistake as to its nature or existence. Jurisdictional error therefore includes agenda-setting mistakes that involve a failure to formulate correctly the issue to be determined and procedural mistakes, such as denying the unsuccessful party an opportunity to be heard. It will include a failure to exercise the power in good faith for the purposes for which it was conferred. Further, invalidity usually refers in this context to the absence of adverse legal consequences for the person directly affected and not to indirect effects on third parties. 77In each case, it is necessary to determine, by reference to the relevant legislative purpose, whether it has been demonstrated that an established error was intended to spell invalidity. Simply to assert "jurisdictional error" will fail to identify how the principles of statutory interpretation should apply to a particular subject matter in a specific statutory context. The legal analysis underlying the applicants' contentions involves several steps, which need to be articulated. 78First, to establish an excess or want of jurisdiction it is necessary to identify the source of the jurisdiction, relevantly in this case, the statutory sources of the jurisdiction and powers of the Industrial Court. In this context, the relationship between "jurisdiction" and "power" is important: see, generally, Australian Securities and Investments Commission v Edensor Nominees Pty Ltd [2001] HCA 1; 204 CLR 559 at [63]-[66] (Gleeson CJ, Gaudron and Gummow JJ). It is sufficient for present purposes to identify the jurisdiction of the Industrial Court by reference to the circumstances in which the powers to deal with a criminal charge are properly engaged. The limitations on jurisdiction may not be fully articulated in the statutes conferring jurisdiction, but those must provide the starting point for the analysis. 79The jurisdiction of any court or tribunal may in addition be subject to principles derived from the general law. The best known example, sometimes characterised as an implied statutory requirement, is the obligation to comply with principles of procedural fairness. Generally that obligation is not expressly identified by statute, although in some cases it may be. In other cases, there may be an attempt to spell out in detail what procedural fairness requires, to the exclusion of general law principles. It is not necessary to consider such examples for present purposes, as the Industrial Relations Act 1996 (NSW), which is the constituting statute for the Industrial Relations Commission and for the Industrial Court, does not contain such provisions. 80Secondly, whether the obligation be derived from statute or the general law, it is necessary to determine whether there has been any breach or non-compliance and, if so, its nature and extent. 81If there has been a breach or failure to comply, the third step is to determine the consequences of that failure. That step requires analysis of the legislative intention revealed by the statutory scheme, by asking "whether it was a purpose of the legislation that an act done in breach of the provision should be invalid": Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [93]. It is, of course, rarely the case that a parliament specifies with precision the intended consequences of a failure to comply with a provision, except negatively by means of a privative clause. Even then, it may be difficult to identify the intention in a particular case without a degree of judicial exegesis, which is necessary to resolve the tension often inherent in a statutory scheme which appears to impose obligations in mandatory terms but then seeks to preclude legal relief in the event of breach: Plaintiff S157/2002 v Commonwealth [2003] HCA 2; 211 CLR 476 at [65]. 82The structure of the decision-making scheme, whether legislative or otherwise, may demonstrate that a procedural error sufficient to invalidate a step in the process may be "cured" when the whole of the process, including appeal provisions, is taken into account: see, by way of example, Twist v Randwick Municipal Council [1976] HCA 58, 136 CLR 106; Calvin v Carr [1980] AC 574 at 597, and Aronson, Dyer and Groves, Judicial Review of Administrative Action (4th ed, 2009) at [7.305]. 83Identifying the consequences of breach requires reference to potentially relevant principles of statutory construction. A critical distinction is made between construing a privative provision (which seeks to limit judicial enforcement) and the conferral of a curative power. Thus, it is said to be "quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words": Owners of the Ship 'Shin Kobe Maru' v Empire Shipping Co Inc [1994] HCA 54; 181 CLR 404 at 420-421. (That principle no doubt assumes the existence of implied constraints in respect of procedural fairness.) 84In some circumstances powers not expressly conferred may be implied, to allow a court to carry out its functions. It is a principle of the general law that a court characterised as a "superior court of record" will be presumed to act within jurisdiction until the contrary is shown. Its decisions will therefore be valid until set aside: Cameron v Cole [1944] HCA 5; 68 CLR 571 at 590. The Industrial Court is described as a "superior court of record": Industrial Relations Act, s 152(1). At least if the superior court is a court of general jurisdiction, it may also be assumed that the court will have power to determine its own jurisdiction. However, these principles may require adjustment in respect of a court of limited jurisdiction, a description which is apt to cover all courts in Australia: Re McJannet; Ex parte Minister for Employment, Training and Industrial Relations (Qld) [1995] HCA 31; 184 CLR 620 at 653 (Toohey, McHugh and Gummow JJ). The application of that principle in this Court was referred by Gibbs CJ in DMW v CGW [1982] HCA 73; 151 CLR 491, a case involving a potential conflict between an order of the Family Court and a proposed custody order sought in the Supreme Court. The Chief Justice stated at 505: "For practical purposes it might be said that the Supreme Court has no jurisdiction to entertain the present application for custody. In principle, however, I regard it as more correct to say that the Supreme Court has jurisdiction, but that when it sees, in the exercise of its jurisdiction, that there is already an order for custody which it is bound to treat as valid, it should either dismiss the application or adjourn it to enable the order to be challenged elsewhere." 85That the Industrial Court has power to determine the limits of its own jurisdiction may also be inferred from the terms of the privative clause, which seeks to protect even "a purported decision of the Commission on an issue of the jurisdiction of the Commission" other than, relevantly, a "purported decision" of the Full Bench: Industrial Relations Act, s 179(4). 86The issue as to the adequacy of each statement of charge was only raised in the Industrial Court after the decision of the High Court in Kirk. The applicants asserted that the same "inadequacy" in the statement of charge existed as that identified in Kirk. However, that approach ignored the High Court's conclusion that the reasons of the primary judge in Kirk disclosed "a wrong understanding of what constituted an offence against" the relevant provisions of the Occupational Health and Safety Act 1983 (NSW), and a failure to appreciate "that no act or omission on the part of the Kirk company had been charged": at [37]. On the basis of then existing authorities in the Industrial Court, the trial judge had taken the contrary view, that the prosecutor was not required to identify the particular omissions which involved a contravention of the statute. 87It does not follow from that authority that the reviewing court necessarily forms its own view as to the adequacy of the allegations, without regard to the approach adopted by the primary judge. The jurisdiction being exercised was not that of an appeal by way of rehearing; the function inherent in the supervisory jurisdiction is more limited. Generally, where the trial judge has correctly identified the legal principles to be applied and has ostensibly applied them in forming an opinion which is a precondition to the engagement of a power, jurisdictional error will usually be identified only by characterising the opinion as "irrational", "manifestly unreasonable", or "not open", in the sense of "not being one as to which reasonable minds might differ". Such decisions are also sometimes characterised as "arbitrary" or "capricious". On the other hand, the proper characterisation of a document may itself be a question of law. 88It is not necessary to resolve the question as to the correct approach in the present case, because the primary judge (Haylen J) either accepted or assumed that the statements of charge did not sufficiently identify the acts or omissions giving rise to the offences: Childs v Serena [2011] NSWIRComm 32 at [20]. The primary question addressed below was whether any defect in the statements of charge could be cured by the provision of further particulars. To the extent that the assumption was questioned in this Court, the applicants accepted that it was necessary for this Court to be satisfied that the charge was defective, in order to grant the relief sought.

Statutory conferral of jurisdiction and relevant powers 89In principle there are four potentially relevant sets of statutory provisions. The first prescribes the standards, contravention of which constitutes an offence; the second confers jurisdiction on the Industrial Court with respect to proceedings for such an offence; the third specifies the procedural powers available to the Court in relation to such proceedings; the fourth identifies the powers available to the Court on determination of the proceedings. Nothing turns on the last category for present purposes, these being summary criminal proceedings which will result in dismissal of the charge or conviction and sentence and a possible order as to costs. 90The laws setting the relevant standards are the source of the essential elements of the offence. The charges against the applicants involved alleged contraventions of the Occupational Health and Safety Act 2000 (NSW). The power to bring proceedings for such offences in the Industrial Court was conferred by s 105 of the Occupational Health and Safety Act. That provision had the additional function of conferring jurisdiction on the Industrial Court: The King v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett [1945] HCA 50; 70 CLR 141 at 165-166 (Dixon J). Pursuant to the Industrial Relations Act, the proceedings are to be dealt with "summarily": s 168(1), set out at [6] above. Section 168 also has the effect of applying Ch 4, Pt 5 of the Criminal Procedure Act 1986 (NSW) to such proceedings: s 168(2). That provision is reflected in the Criminal Procedure Act itself: s 170(3)(c). Section 168, however, has an additional element, not found in s 170 of the Criminal Procedure Act, stating that the provisions so applied "prevail over any other provisions of this Part": s 168(4). The key provision in Ch 4, Pt 5 of the Criminal Procedure Act for present purposes is s 246, which provides the mechanism by which the present proceedings were commenced, and is set out at [7] above. 91Section 246 requires that an application must be "in accordance with the rules", the "rules" being defined in s 3 to mean "rules made for the purposes of a court to which the relevant provision applies". Accordingly, "rules" includes a reference to the Industrial Relations Commission Rules 1996 (NSW) which have since been repealed, but only with effect from 1 February 2010. They were the rules in force at the time of the application laying the charge. The required contents of an application were prescribed by r 217B(2), set out at [8] above. 92The case for the applicants was that s 246(1) referred to an allegation that the person against whom the order was directed had "committed an offence" and was to be brought before a judge "to answer to the offence charged in the order". Further, the rule required that the application must state "the nature of the offence that is alleged": r 217B(2)(e). The applicants contended that all the essential factual elements of the offence must be identified in the charge for it to comply with those provisions. If the application were defective, the order based upon it must, it was contended, be invalid. 93The respondent resisted this contention on two bases, namely that the charge was sufficient in itself, as originally laid or, in the alternative, if it were not, it could still be validly amended to provide any necessary particularity. The latter argument required reference to the statutory power of amendment. 94There were three relevant sources of a power of amendment. The first source is to be found in s 170 of the Industrial Relations Act, set out [6] above. Subsection (2)(a) is a direct reflection of s 21(4) of the Criminal Procedure Act. Paragraph (b) provides a general discretionary power to order an amendment on condition. Subsection (3) reflects the language of former s 81 of the Supreme Court Act 1970 (NSW), now s 63 of the Civil Procedure Act 2005 (NSW). It reveals a statutory intention that where a provision of the Industrial Relations Act, the Regulations under that Act or a rule of the Commission has not been complied with, the irregularity should not be treated as nullifying the commencement of proceedings, nor any step or decision taken in proceedings. 95Subsection 170(4) provides that the Commission (and the Court) may set aside a step taken in proceedings or a decision (though probably not the final decision) in those proceedings. Such a power would extend to allowing the withdrawal of a plea or refusing to accept a plea which has been entered. 96A second source of power to amend was to be found in r 217E, which, as then in force, provided: "217E Amendment of process The Commission may, on the application of any party at any time during the proceedings or made, in writing, to the Registrar, at any time, allow an amendment to be made of any process upon such terms as to adjournment, the times within which any matter or thing may be done in connection with the proceedings, and service of notice of the amendment, as the Commission thinks fit." 97The power contained in the rule is not, relevantly for present purposes, wider than s 170 and need not be considered further. 98A third source of power was to be found in Ch 2, Pt 2 of the Criminal Procedure Act, including ss 16 (defects not to affect indictment), 20 (amendment of indictment) and 21 (orders for amendment of indictment). The engagement of these powers was derived from the terms of s 15 of the Criminal Procedure Act, which defined "indictment" to include any process by which criminal proceedings are commenced and which provided that Pt 2 applies to all offences, in whatever court they might be dealt with. It was not submitted that the application of Pt 2 was inconsistent with s 168 of the Industrial Relations Act, nor that there was any inconsistency between the provisions in Pt 2 and s 168(4) or s 170 of the Industrial Relations Act. In its terms, s 21 of the Criminal Procedure Act, dealing with amendments, states that the power it confers is "in addition to and not in derogation of any other power of the court for the same or similar purposes": s 21(6).

Scope of power to amend 99Consistently with Kirk, a charge could not form the basis for a valid conviction unless it specified the measures which the offender should have taken to avert the risk to the health, safety and welfare of employees or others, but did not take: at [26] and [28]. In particular, the joint judgment in Kirk adopted the statement in the judgment of Mason CJ, Deane and Dawson JJ in John L Pty Ltd v Attorney General (NSW) [1987] HCA 42; 163 CLR 508 at 520 that, absent a relevant curative provision, "the common law requirement remains that an information must at the least condescend to identifying the essential factual ingredients of the actual offence". 100John L, like the present case, involved a challenge to the information laid by the prospective prosecutor; Kirk did not. As the joint judgment in Kirk expressly noted, no application had been made to quash the orders requiring the defendants in the Industrial Court to appear to answer the offences charged, so that no issue had arisen in that case as to the scope and effect of the relevant curative provision, then found in s 6(1) of the Supreme Court (Summary Jurisdiction) Act 1967 (NSW), now repealed, the terms of which were similar to s 16(2) of the Criminal Procedure Act. 101The majority in John L did not need to consider the operation of the curative provision, which was held not to apply to the error identified in the proceedings brought in that matter: at 522. Brennan J, by contrast, held that the section was applicable and provided "a conclusive answer to the appellant's objection": at 526. 102The circumstances in John L involved a charge that the appellant had caused an advertisement to be published in a newspaper on a particular day containing a false or misleading statement. The statement was identified, but the information failed to identify the "material particular" in which the published statement was alleged to be false or misleading: at 512-513. Brennan J, in dissent, because he held that the curative provision was available, identified the relevant issue in the following terms at 529: "It is clear that, if the prosecution had proceeded, the appellant would have been entitled to particulars specifying the manner in which the alleged advertisement was false or misleading. But the critical question is as to the effect of the want of particulars in the information and summons: was the Court without jurisdiction to entertain the application? Or, did the Court have jurisdiction to entertain the application, to make whatever order for particulars was appropriate and, provided appropriate particulars were given, to hear and determine the matter? I am in agreement with Toohey J. that the information in the present case is not so incurably bad as to require or warrant a dismissal of the proceedings without more. Any defect in the information was not as to the time or place of the alleged offence, nor as to the act done by the appellant (ie, publication of the advertisement) but consisted merely in the absence of the circumstances which made the advertisement false or misleading to the knowledge of the appellant. In my opinion, the information was sufficient in law to invoke the jurisdiction of the Court. But in any event, s 6(1) of the Summary Jurisdiction Act is conclusive. That sub-section operates not to deem defective applications to be sufficient, but to avoid the consequences of defects in applications." 103The last paragraph set out above commencing "[b]ut in any event" states a conclusion regardless of whether or not the information supplied was sufficient to invoke the jurisdiction of the court, in accordance with the general law. The consequence which the curative provision then avoids is the consequence of invalidity. 104An earlier decision of the High Court involving a defective information, referred to in both John L and in Kirk, was Johnson v Miller [1937] HCA 77; 59 CLR 467. That involved a charge of breaching a licensing provision relating to presence on licensed premises during prohibited hours, in which some 30 persons were seen to have come out of the hotel in the relevant period, but the charge was limited to one only. The defendant sought particulars to the man who was the subject of the complaint, which the prosecutor refused to supply. The magistrate dismissed the complaint, an order which was upheld in the High Court. In the circumstances, it was not necessary for the Court to determine whether, if the requested particulars had been supplied, they would have cured the defect in the information. Dixon J referred to the statutory provision (equivalent to s 11 of the Criminal Procedure Act) stating that "the description of any offence in the words of [an Act] or other document creating the offence, or in similar words, is sufficient in law" as not removing the requirement to state the essential factual elements of the offence: at 486. Dixon J was not, in that passage, referring to the potential effect of the equivalent of s 16(2) of the Criminal Procedure Act, and, as the joint judgment in Kirk noted, there was a possible ambiguity as to whether he was suggesting that the necessary elements be specified in the information, or whether they could have been supplied by way of particulars: Kirk at [29], noting in footnote 132 the adoption by Brennan J in John L at 529 of the more limited proposition. Importantly, the joint judgment in Kirk concluded at [30]: "Because no application was made to quash the orders requiring appearance to answer the charges, it is neither necessary nor appropriate to examine whether those orders were made upon an application made 'in accordance with the rules', or to consider whether or how s 6 of the Summary Jurisdiction Act might affect the availability of an order in the nature of certiorari. However, it may be said that the matter should not have proceeded without further particularisation of the acts and omissions said to found the charges." 105It is not necessary for present purposes to review the judgments of this Court, discussed above by the Chief Justice. To understand how these principles applied in the present case, it is necessary to identify the circumstances in which two men died and three others were injured, as also sufficiently explained by the Chief Justice.

(a) a sufficient statement of offence 106The written submissions for the respondent in this Court took issue with the conclusion of Haylen J that the statements of charge did not contain sufficient particularity, when account was taken of particular (g) as set out in each "application for order". Because the applicants were relying upon the defective nature of each statement, it was accepted at the hearing that they would not obtain relief if the charges were not in fact ineffective to form the basis of an order commencing the proceedings: Tcpt, 26/04/12, pp 4(16)-5(1). Accordingly, it is appropriate for this Court to form its own view as to the effectiveness of the statements of charge. 107The risk to health, safety and life which materialised was the collapse of the formwork which was of inadequate strength to support the weight of the concrete pour. The step required of the applicants was to ensure that the workers were properly instructed to obtain or see, prior to going onto the site, a copy of a certificate as to the adequacy of the formwork, prepared by a formwork engineer, in accordance with cl 233 of the Occupational Health and Safety Regulation 2001 (NSW). Failure to take that step was the allegation contained in particular (g) of the charge, which was the most specific of the particulars contained in the application for the order. I agree with the Chief Justice that with the omission thus particularised, the charge sufficiently identified the essential legal elements of the offence. The applicants have failed to demonstrate that the Industrial Court lacked jurisdiction.

(b) power to cure defect 108If that conclusion be wrong, it would be necessary to consider whether, no trial having commenced, the application, though defective when filed, could still be cured by amendment. 109On the hypothesis that the charge was defective, the defect was a failure to allege all the elements of the identified offence. The source and general nature of the obligation, and the time and place of its breach, were adequately particularised, that which was missing being the specific step which should have been taken but was not. That being an essential legal ingredient of the offence, the application would, so the submission went, have failed to comply with the requirements of s 246 of the Criminal Procedure Act and r 217B of the rules of the Commission. 110It was not contended that the requirements of s 246 of the Criminal Procedure Act, rendered applicable by s 168 of the Industrial Relations Act, did not constitute a requirement of the Industrial Relations Act. Accordingly, the non-compliance fell within the terms of s 170(3). The reference in that provision to such non-compliance being treated as an irregularity and as not nullifying the proceedings, recognises that it extends to failures to comply which could, absent that provision, nullify the proceedings. That language should not be understood to permit a charge to proceed to a trial and possible conviction in the absence of amendment; within the terms of sub-s (1), an amendment would in such a case be necessary in the interests of justice. If for some reason such an amendment could not properly be made, it would be necessary to dismiss or permanently stay the proceedings. 111In considering whether to permit an amendment of the charges, the Industrial Court would no doubt need to consider whether the pleas of guilty could be withdrawn or, if not withdrawn, whether they should not be accepted; whether the delay (whatever its causes) might be such as to warrant refusal of a belated amendment and whether any prejudice caused by an amendment could be met by appropriate conditions. None of these possible issues has yet been considered, in part because of the present challenge. Indeed, if the charge as particularised is sufficient in itself, it is not clear whether the proposed amendments will be pursued. 112For present purposes, it is sufficient to note, without deciding the issue, that it is arguable that the entry of the plea did not foreclose the course proposed by the prosecutor. In accordance with general law principles, a plea could be withdrawn at any stage prior to the imposition of a sentence: Frodshan v O'Gorman [1979] 1 NSWLR 683 at 688F (Hope JA, Moffitt P agreeing) and at 690G (Mahoney JA). A defendant will be permitted to withdraw a plea of guilty "where he did not appreciate the nature of the charge to which the plea was entered": Ferrer-Esis (1991) 55 A Crim R 231 at 233 (Hunt J, Gleeson CJ and Lee CJ at CL agreeing). Although it will ultimately be a matter for the trial court to consider whether, if further particulars are given and the applicants seek to withdraw their pleas, that course should be permitted, it is clear that such a course was available and no procedural unfairness will necessarily result if the prosecution avails itself of such a course. 113The Chief Justice, accepting the assumptions of the parties, has conducted a similar analysis based on ss 16-21 of the Criminal Procedure Act, in relation to curing defects in the initiating process by amendment. I agree with the reasoning of the Chief Justice in that regard. 114On these analyses, steps taken to commence judicial proceedings will fall into a different category from the conclusion of the process (such as a conviction) and from conduct taken in the course of proceedings, when the effects are not readily curable. Thus, a conviction for an offence which has not been properly identified is irreversible by the trial court. To commence proceedings with an ill-defined charge may be unfair, but the error is usually capable of correction before irreversible prejudice is caused. 115In accordance with the principle stated in Owners of the Ship 'Shin Kobe Maru', a statutory provision which permits amendment of a charge by particularisation, at any time, should not be subject to implied limitations which would prevent a prosecutor identifying a legitimate offence and which would allow a possible offender to escape penalty where he or she could have been required to stand trial without unfairness. Further, an assessment of what might be required in the interests of justice, carried out by the trial judge for the purpose of considering the exercise of such a power, will constitute an exercise of that jurisdiction. 116For these reasons and those given by the Chief Justice, the applications should be dismissed with costs. 117HOEBEN JA: I agree with the Chief Justice and the orders which he proposes. I also agree with the additional observations of Basten JA.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 July 2012