Attorney General of New South Wales v Air Conditioning Engineering Services Pty Ltd

(a) The Attorney 10The Attorney made the same submissions as were made by him in the Build proceedings.

(b) ACE 11ACE adopted the written and oral submissions made by Built NSW Pty Ltd in the Build proceedings. It submitted that the proceedings were not instituted by a person authorised to do so and submitted that each summons was void, first, on the basis that the applications and statements of facts did not comply with s 246(2) of the CPA and Pt 53 r 26 of the District Court Rules 1973 and, second, because they did not allege any offence known to law. 12ACE pointed out that in her affidavit sworn 21 September 2012, Inspector Walsh did not state that she had determined to institute proceedings alleging the particular offences charged, nor that she had instructed Mr Hall to make the applications, had approved them or was even aware that Mr Hall would make them. 13ACE submitted that the significant responsibility to issue proceedings was only given to certain persons, including an inspector. It pointed to the significant penalties which could result from conviction for offences under the OH&S Act. It submitted that the legislation did not authorise a person other than an inspector to lay the charges. 14ACE also submitted the failure of Inspector Walsh to sign the application resulted in it not being in the approved form. It submitted that the rules did not adopt the extended definition of prosecutor in s 3 of the CPA. It submitted that the non-compliance with s 246(2) of the CPA and r 26 of the District Court Rules constituted a direct route to the proposition that the Court had no jurisdiction to determine the proceedings: John Holland Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 338; (2010) 202 IR 82 at [46]-[47]. 15Senior counsel for ACE submitted that the onus was on the prosecutor to prove that the proceedings were authorised by Inspector Walsh and that it failed to do so. He submitted that even if the affidavit of Inspector Walsh had shown that the prosecutor had presented Mr Hall with the facts and requested him to lay charges, that would not be sufficient. However, he emphasised that the evidence did not go so far. 16Senior counsel for ACE submitted that the conclusion that non-compliance with the requirement in the rules that the applications be signed by the prosecutor led to invalidity was consistent with the need to identify the persons responsible for bringing the charges given their serious nature.

(a) The appeal 17The issues raised in the appeal are identical to those in the Built proceedings. For the reasons given in those proceedings, the appeal should be dismissed.

(b) The notice of contention 18The first summons in this case and the particulars thereto were in the following terms: "Description of Offence: Air Conditioning Engineering Services Pty Limited [ACN 122 466 693] a corporation with its registered office situated at 10 Bridge Road, Stanmore in the State of New South Wales ('the defendant'), being an employer, on 27 May 2010, at 401-411 Sussex Street, Haymarket in the State of New South Wales ('the site') failed by its acts and/or omissions particularised in Annexure A (attached) to ensure the health, safety and welfare at work of persons other than its employees, and in particular Dean Pulver contrary to section 8(2) of the Occupational Health and Safety Act 2000. Date of Offence: 27 May 2010 Place of Offence: 401-411 Sussex Street, Haymarket NSW 2000 Particulars (including, where applicable, the act or omission said to constitute the breach, and the risk relied upon): Attached as 'Annexure A' Statutory Provision Describing Offence: Section 8(2) Occupational Health and Safety Act 2000. Law Part Code: 42014

'Annexure A'(Particulars regarding DEAN PULVER) (1) The Defendant was at all material times an employer. (2) The Defendant's place of work was the site. (3) The Defendant's undertaking at the site included the procurement, manufacture, supply, delivery and installation of materials which included air handling units, air conditioning units, cooling towers, refrigeration machines, fans and motors. (4) Dean Pulver was not an employee of the Defendant. (5) Due to the Defendant's failings as particularised below, Dean Pulver was placed at risk of falling from height. (6) In particular, Mr Pulver was exposed to the risk of: (a) falling from a work area on top of the lift/fire stair over run on level 8 of the site referred to as the 'lift lid'; (b) falling from a stepladder situated on top of the lift lid whilst placing a lifting strap around an overhead metal girder. (7) The particulars of the acts or omissions of the Defendant are: AI The Defendant failed to ensure the lift lid was made safe by secure perimeter screens, fencing, handrails or other forms of physical barriers that were capable of preventing Mr Pulver being placed at risk of falling from the lift lid; A2 The Defendant failed to ensure Bravo Industries Pty Limited provided to Built NSW Pty Limited a safe work method statement which specifically addressed working from the top of the lift lid; A3 The Defendant failed to ensure that Dean Pulver was inducted into a safe work method statement applicable to working on top of the lift lid; B1 The Defendant failed to ensure that Bravo Industries provided a safe work method statement which specifically addressed the task of moving equipment onto the lift lid; B2 The Defendant failed to ensure that Dean Pulver was inducted into a safe work method statement applicable to the task of moving equipment onto the lift lid; C1 The Defendant failed to provide any supervision of Bravo Payroll employees on 27 May 2010. (8) As a result of the failures set out in A and C Dean Pulver was placed at risk of injury. (9) As a result of the failures set out in B and C Dean Pulver was placed at risk of injury and sustained injuries as a result of a fall, which fall was a manifestation of the fall risk." The second summons and particulars attached as Annexure A were in similar terms in relation to different individuals, Mr Zonno and Mr Jiminez. 19Although the factual particulars are different to those in the Built proceedings, the charges suffer from the same deficiency as identified in my judgment in those proceedings. It follows that they do not disclose any offence known to law and the defects are not ones to which s 16(2) of the CPA would apply. The summonses were liable to be set aside on this ground as well as the grounds identified by the primary judge.

Conclusion 20The appeal should be dismissed. 21BEAZLEY P: I agree with Bathurst CJ. 22HOEBEN CJ at CL: I agree with Bathurst CJ.

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: 03 December 2013