Concrete Constructions Group Ltd v WorkCover Authority of NSW

APPELLANT Mr R. E. Dubler of counsel SOLICITOR Mr Paul McCann Corrs Chambers Westgarth LEGAL REPRESENTATIVES: RESPONDENT Ms F. Backman of counsel SOLICITOR Mr Greg McCann WorkCover Authority of NSW

JUDGMENT:

• 23 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: WALTON J, Vice-President GLYNN J KAVANAGH J

MATTER NO. IRC2976 of 1999 CONCRETE CONSTRUCTIONS GROUP LIMITED v WORKCOVER AUTHORITY OF NSW (INSP DUBOIS) Application for leave to appeal from a decision of Wright J, President re a notice of motion given on 20 May 1999 in Matter No. IRC5242 of 1997

MATTER NO. IRC6122 of 1999 INSPECTOR RODNEY DUBOIS v CONCRETE CONSTRUCTIONS GROUP LIMITED (NOW KNOWN AS WALTER CONSTRUCTION GROUP LIMITED) Reference pursuant to s196 of the Industrial Relations Act 1996 to the Full Bench of the Industrial Relations Commission of NSW in Court Session on a question of law

1 Matter No. IRC2976 of 1999 is an application by Concrete Constructions Group Limited ("the appellant") for leave to appeal, and if granted, appeal from a decision of Wright J, President, given on 20 May 1999 in proceedings brought by Insp Rodney Dubois, an informant, on behalf of the WorkCover Authority of New South Wales ("the prosecutor") under the provisions of s16(1) of the Occupational Health and Safety Act 1983 ("the Act") against the appellant, the defendant in the proceedings before Wright J, President.

2 Matter No. IRC6122 of 1999 is a reference by Wright J, President under s196 of the Industrial Relations Act 1996 (the "IR Act") to the Full Bench on a question of law, namely: Should the summons be dismissed as invalid for failing to state correctly an offence under s16 of the Act?

3 It was agreed between the parties the appeal books filed by both parties be the appeal books in both the appeal and the reference before the Full Bench.

4 The judgment of Wright J, President, directed itself to a Notice of Motion filed by the defendant seeking interlocutory orders to stay a prosecution by summons brought against it under s16(1) of the Act by the WorkCover Authority of NSW.

5 The summons alleged: The defendant, being an employer, on 26 April 1996 at the Woronora Water Filtration Plan construction site, Woronora Dam, Woronora Dam Road, Waterfall, in the State of New South Wales DID FAIL to ensure that persons not in its employment, in particular Joseph Sheary and Anthony Fathers, were not exposed to risks to their health or safety arising from the conduct of its undertaking while they were at its place of work contrary to Section 16(1) of the Occupational Health and Safety Act 1983 in that the defendant did fail to provide systems of work, to wit, systems of cleaning the interior of the clean water tank no. 2 that were safe and without risks to health in such case made and provided.

The particulars of the charge are the defendant failed to provide: (a) systems to assess the appropriate work method for cleaning the interior of the clear water tank; (b) systems to comply with the Occupational Health and Safety (Confined Spaces) Regulation 1990; (c) systems to assess the oxygen levels within the tank prior to work commencing; (d) systems of on-site emergency response for persons within the tank; (e) as a result of the said failures, Joseph Sheary drowned and Anthony Fathers was placed at risk of injury. 6 It is established law that s16(1) of the Act creates a single offence, being the general duty to ensure persons are not exposed to risks to their health and safety which may arise in various ways: (Boral Gas (NSW) Pty Ltd v McGill (1995) 37 NSWLR 150).

HISTORY 7 The prosecutor originally filed four summonses under s16(1) of the Act against this defendant. The defendant then filed a Notice of Motion for orders that the summonses be dismissed, permanently stayed or, alternatively, the prosecutor elect by which summons to proceed. The prosecutor then elected to proceed by way of a single summons, namely, IRC2976 of 1999. It withdrew the other three summonses. 8 The defendant proceeded with the Notice of Motion for relief against the only summons relied upon, Summons No. IRC2976 of 1999. The grounds for the relief were as follows: 1. That the summons should be dismissed as bad for failing to state correctly an offence under s16(1) of the Act. 2. That the summons is invalid for failing to set out the essential factual elements of the alleged offence. 3. That the summons is bad for latent duplicity or uncertainty.

9 Wright J, President heard argument and gave judgment dismissing the Notice of Motion. It is to this judgment the appeal was directed.

10 The grounds of appeal before the Full Bench were originally twofold: 1. The summons should be dismissed as invalid for failing to state correctly an offence under s 16 of the Act. 2. The summons is invalid for failing to set out the essential or correct factual elements of the alleged offence. However the matter proceeded before us on the first ground only, which ground also reflects the reference as to the question of law referred to us by the President. Generally therefore by way of appeal from an judgment of the President, Wright J and a reference, the question before us was whether the summons correctly stated an offence under s16?

11 After the hearing of submissions in both matters, the matter was adjourned for the consideration of the Full Bench and, after consideration, Walton J, Vice President gave the following orders on behalf of the Full Bench: 1. To the extent that the appeal is competent, which we do not decide, we would not grant leave to appeal and would otherwise dismiss the appeal.

2. In relation to the reference and, in particular, the question raised therein, we answer it in the negative thereby finding that the summons is valid in law. We will deliver our reasons for that decision in due course.

LEAVE TO APPEAL 12 The Full Bench determines the provisions of s196 apply to the appeal proceedings in this matter. Sub-section 196 of the IR Act states: 196. Appeals from and references by members of Commission in criminal proceedings (1) This section applies (and the other provisions of this Part do not apply) to appeals and references to the Full Bench of the Commission in Court Session in respect of criminal proceedings taken before a judicial member of the Commission. (2) The Criminal Appeal Act 1912 applies to any such appeal or reference in the same way as it applies to an appeal or reference to the Court of Criminal Appeal in respect of criminal proceedings taken before a Judge of the Supreme Court in its summary jurisdiction. 13 Section 5F of the Criminal Appeal Act 1912 provides: 5F Appeal against interlocutory judgment or order (1) This section applies to: (a) proceedings (including committal proceedings) for the prosecution of offenders on indictment in the Supreme Court or in the District Court, and (b) proceedings under section 51A of the Justices Act 1902. (2) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in proceedings to which this section applies. (3) Any other party to proceedings to which this section applies may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in the proceedings: (a) if the Court of Criminal Appeal gives leave to appeal, or (b) if the judge, justice, justices or magistrate of the court of trial certifies that the judgment or order is a proper one for determination on appeal. (4) An appeal under this section shall, unless the Court of Criminal Appeal gives leave to adduce fresh, additional or substituted evidence, be determined on the evidence (if any) given in the proceedings to which the appeal relates. (5) The Court of Criminal Appeal may: (a) affirm or vacate the judgment or order appealed against, or (b) give or make an interlocutory judgment or order instead of the judgment or order appealed against. (6) If leave to appeal under this section is refused by the Court of Criminal Appeal, the refusal does not preclude any other appeal following a conviction on the matter to which the refused application for leave to appeal related. (7) A person may not appeal to the Court of Criminal Appeal under this section against an interlocutory judgment or order if the person has instituted an appeal against the interlocutory judgment or order to the Supreme Court under Part 5 of the Justices Act 1902. 14 Whilst not the subject of submissions before us, it would appear that the provisions of s5F(3) apply in this matter. Having regard to the definition of indictment under s2 of the Criminal Appeal Act 1912 it would seem the proceedings constitute "the prosecution of offenders on indictment" for the purpose of s5F(I). The appeal is brought by the defendant in the proceedings, and hence, the appeal attracts the provisions of s5F(3)(a) and would require leave be granted to bring the appeal.

THE REFERENCE 15 As to the Reference we now publish the reasons for our finding the summons is valid in law.

16 As to s16(1) of the Act, Wright J, President in the primary judgment adopted the view of Hill J in Boral Gas (NSW) Pty Limited v Magill (1995) 37 NSWLR 150, saying (at 19): In other words, the prohibited act or omission may possess one or more characteristics and proof of the existence, at a particular time, of several risks and several causes of risks, each to different persons or groups of persons, will establish only one contravention of the section. In my opinion, the information in this case, as amplified by the particulars provided, does not allege more than one offence and is not ambiguous and does not give rise to duplicity. However, I consider that the particulars which have been provided are deficient and do not properly specify or identify the factual ingredients of the alleged offence. They do not remedy the deficiency in the information and give rise to uncertainty. In my view, they fail properly to specify the actual nature, content and causes of the risks involved to persons not in the employment of the appellant and which arose out of the conduct of the appellant's undertaking on the day in question. That is, the particulars should specify "how" or in what manner the appellant contravened the section.

Wright J, President then concluded (at 23): Thus, when the practical circumstances envisaged by the form of s16(1) are considered, and the evident purpose of the provision is identified, it does not follow, as the defendant contends, that the use of language derived in whole or part from words in s15(2) is inappropriate to describe offences said to arise under section 16(1), or a summons using such words is thereby invalid. Whilst it is to be accepted that the language of parts of s15 derives from the common law (see for example, the discussion by Fisher CJ in Boral Gas at 153) the fact that important features of s16 (namely "its terms, its essential elements, its field of operation and its common law jurisprudential background" - as referred to in the defendant's submissions) may not be applicable to s15 is, for present purposes, irrelevant.

His Honour further found (at 23): . . . both s15 and s16 impose statutory obligations which conceptually overlap, although the identity of the persons the object of the obligations specified is different. In those circumstances, the essential basis of the defendant's case is not made out. Also irrelevant to this aspect of the argument, is the reliance by the defendant on the fact that the prosecutor originally commenced four separate proceedings pursuant to s 16(1) against the defendant. Accordingly, I do not consider that there has been a failure to charge the defendant with an offence created by the Act. It is not surprising that this would be the conclusion of the Court in the light of the applicable authorities and principles set out in them, since the helpfully detailed and candid submissions of the defendant manifest the necessity, if the defendant's submissions are to succeed, of distinguishing or not following a significant number of pertinent authorities. Further, I do not consider that the Summons fails to specify the elements of the offence alleged. His Honour further found (at 24): Although not strictly necessary to be decided in light of the conclusion reached, it is appropriate to indicate my view that, if the Court had held the defendant's submissions on this point were correct, the summons would be relevantly saved by s6 of the Summary Jurisdiction Act , on the basis of the approach of Gleeson CJ in Stanton , which was followed by Hill J in Boral Gas (at 176).

17 Mr Dubler submitted it is wrong for a prosecutor to charge a defendant under s16(1) with a specific act or omission alleging that, without more, that act or omission automatically establishes a failure to comply with the general duty laid down by sub-section(1) and hence operates to constitute the identifiable act or omission as the offence in itself. He submitted that is how the prosecutor has charged the defendant by this summons. 18 The summons in its statement of the charge alleged a contravention of s16(1) of the Act by way of a particular added to the statement of the charge "in that the defendant did fail to provide systems of work, to wit, systems of cleaning the interior of the clean water tank no. 2 that were safe and without risks to health in such case made and provided." 19 As to the particular summons the appellant submitted the key words after "in that" were merely particularising the relevant failure and should not be elevated to the status of legal allegations or essential elements of the offence. 20 He submitted the way the charge was framed makes the summons invalid. Mr Dubler conceded "it is common place and acceptable to support a case under s16 with a failure to provide a safe system of work but that can't constitute the offence". 21 Mr Dubler submitted the summons thereby alleged that the failure to provide a safe system of work constituted the offence charged under s16(1). That is, the prosecutor by his summons alleged that the failure to provide a safe system of work, without more, automatically established a failure to comply with the general duty laid down by s16(1) and thereby operated to constitute the identifiable omission as the criminal offence. Whilst this would be correct if the offence was pleaded under s15(1) of the Act, which constitutes such omissions as separate offences, Mr Dubler submitted it is wrong pleading under s16 which only creates the one offence by reference to the general duty set out by s16(1). 22 The question is not one simply of mere technical form, the appellant submits. The appellant relied on Kirby J in Walsh v Tattersall (1996) 188 CLR 77 at 101-102 where comment was made on the form of the pleading required to allow a trial to proceed on a fair and proper basis. The appellant submits the pleadings potentially govern many matters at issue in a trial such as: (a) rulings on the relevance of evidence; (b) applications to amend the summons as it will be relevant to know if the offence is being amended or merely the particulars; (c) the appropriate sentence; (d) whether the summons is bad for duplicity as alleging more than one offence (cf s49A of the Act); (e) whether a defence of double jeopardy is available (see s34 of the Act). For example, should the current summons lead either to acquittal or conviction, can the prosecutor re-issue a summons in the form of the prior summonses which have been withdrawn? The answer will depend upon a precise statement of the offence set out in the summons and an understanding of what constitutes the offence at law. 23 Mr Dubler submitted it is imperative that a defendant knows from a reading of an offence as charged what are the essential elements of the offence and what are the particulars of an offence. The appellant submitted, when considering the question of a defendant's position as to double jeopardy it is vital for a defendant to be able to distinguish one from the other. As he submitted, the defendant is entitled to determine from the summons what is "the offence and when you are talking about particulars". He submitted without being able to distinguish same from the summons the defendant's fundamental right to a fair trial is challenged. 24 Mr Dubler submitted the conceptual "overlap" referred to by Wright J, President, in Concrete Constructions between s15 and s16 overlooked the different nature of what constitutes the offences under the different sections. He submits it may be that a failure to provide a safe system of work could constitute an offence under s15 with respect to its employees and the particulars grounding the offence of failing to provide a risk free environment under s16 for its contractors. However, the failure to provide a safe system of work, he submitted, cannot at law constitute the offence under s16(1). Accordingly, in alleging against the appellant a failure to provide a safe system of work as purportedly constituting the offence under s16(1), the defendant has been charged with an offence unknown to that section. 25 The appellant relied on Boral Gas NSW Pty Limited v McGill 58 IR 363; (1995) 37 NSWLR 150 per Hungerford J to support a submission that a summons directing itself to the failure of an employer to provide a safe system of work is a proper charge under s15 of the Act but it is a misstatement of the offence at law under s16 of the Act. 26 Mr Dubler also submitted there is a limitation on the time for prosecutions to be brought. This is relevant he submitted if it were found by the Full Bench the summons should be amended then there would be no power in this case for the court to so order as the time limit for a valid amendment has expired. He submitted the prosecutor could take no solace from s6 of the Supreme Court (Summary Jurisdiction) Act 1967 under the circumstances where the time limit set by the legislature has expired. The Supreme Court (Summary Jurisdiction) Act 1967 under s6 operates not to deem effective applications to be sufficient but to avoid the consequences and defects in an application (see Stanton v Abernathy (1990) 19 NSWLR 656 at 667, John L Pty Ltd v Attorney General for New South Wales (1987) 163 CLR 508 per Brennan J, Hedbery v Woodhall (1913) 15 CLR 531). He submitted therefore the finding of Wright J at first instance as to the powers of s6 of the Supreme Court (Summary Jurisdiction) Act 1967, in this set of circumstances is not correct. He further submitted the prosecutor cannot rely upon an amendment to a summons to first allege an offence known under the Act outside the limitation period set by the Parliament (see Gilmour v Midways Springwood Pty Ltd (1980) 49 FLR 36 at 39).

27 Ms Backman, counsel for the prosecution, relied upon the words of the learned President in his judgment at first instance to submit the summons as issued did disclose an offence under the Act: It is not surprising that this would be the conclusion of the Court in the light of the applicable authorities and principles set out in them, since the ... submissions of the defendant manifests the necessity ... of distinguishing or not following a significant number of pertinent authorities. However, I do not consider that the summons fails to satisfy the elements of the alleged offence.

28 The prosecutor submitted the words in the summons commencing "in that" merely particularise the relevant failure as alleged, namely the failure to ensure that certain non-employees were not exposed to risks to their health and safety. She submitted they be viewed as particulars not as raising essential factual ingredients of the offence.

29 The prosecution submitted the authorities acknowledge the offence created by s16(1) is the failure of an employer to protect certain persons from a risk to health and safety (Boral Gas NSW Pty Limited v McGill (1995) 37 NSWLR 150 at 185 per Hill J; Inspector Page v Woolworths Limited (unreported decision, Industrial Court of NSW, Peterson J, 9 September 1994, CT1044 & 1047 of 1993). It logically follows, Ms Backman submitted, that such exposure to risks may occur through inadequate systems of work. Such a conclusion she submitted is reinforced by the recognised existence of the inter-relationship and conceptual similarity between ss15 and 16 of the Act (WorkCover Authority of NSW (Insp Reid) v CSR Limited t/as CSR Wood Panels (unreported, CT1176/94, 10 August 1995 per Bauer J at 18, 24, 25) which was referred to in the decision of Wright J, President in Concrete Constructions. CONSIDERATION 30 In submitting Wright J, President was in error in finding the summons correctly stated an offence under s16 of the Act, the appellant relies on the views of Hungerford J in Boral at 211. However, Wright J, President in considering this submission in the primary judgment held: The judgment of the Full Court in Boral Gas presents some difficulty for a single judge applying it in a particular case. This largely arises from the differing approaches of the members of the Full Court as to some of the issues decided and the fact that some issues were not dealt with by all members of the Court. This difficulty is of course often encountered by courts in the application of important full court judgments. In my view, the approach to be adopted as to Boral Gas is resolved by recognising that the result of the case derived from the judgments of Fisher CJ and Hill J, with Hungerford J dissenting. The Chief Judge did not, because of the approach taken by his Honour, need to deal with all of the matters dealt with by the other members of the Court. Therefore, to the extent of any difference in approach between Hill J and Hungerford J, that of Hill J should be adopted since it reflects the result of the appeal in that case. Nevertheless, the judgment of Hungerford J should be considered as highly persuasive.

31 He then went on to quote Hill J in Boral relevantly (at 19): In my opinion, s16(1) creates only one offence where, on a particular occasion, an employer fails to ensure that persons not in his employment are not exposed to risks arising from the conduct of his undertaking or operations while they are at the employer's place of work notwithstanding that the conduct of the undertaking or operations at that point exposes different persons to different risks which arise in a variety of ways. In my opinion, the gist of the offence created by s16(1) is that of the employer exposing persons not in his employment to risks to their health or safety while at his place of work. The act or omission resulting in the exposure of persons to risks to their health or safety may arise in one or more of a number of ways. In other words, the prohibited act or omission may possess one or more characteristics and proof of the existence, at a particular time, of several risks and several causes of risks, each to different persons or groups of persons, will establish only one contravention of the section. In my opinion, the information in this case, as amplified by the particulars provided, does not allege more than one offence and is not ambiguous and does not give rise to duplicity.

32 For the defendant to succeed in the reference before us, it concedes it must distinguish this matter from the acknowledged authorities (including John L Proprietary Limited v The Attorney General (NSW) (1987) 163 CLR 508 at 519 and Saffron (No. 1) at 309 and Stanton v Abernathy (1990) 19 NSWLR 656 at 666). 33 The common law rule does not require that the summons contain all material that the defendant may require upon an application for particulars. 34 We consider that Walton J, Vice President correctly stated the common law requirements for a valid indictment in WorkCover Authority of NSW (Insp Penfold) v Fernz Construction Materials Ltd (1999) 91 IR 119 at 126 as follows: At common law, a valid indictment must identify the essential factual ingredients of the offence charged. Applying the principles in Johnson v Miller (1937) 59 CLR 467, an information must specify the time, place and manner of the acts or omissions of the defendant upon which the Crown relies (per Dixon J at 486) and fair information and reasonable particularity as to the nature of the offence charged (per McTiernan J at 501) (see also John L Proprietary Limited v The Attorney General (NSW) (1987) 163 CLR 508 at 520-521 and Saffron (No. 1) at 309).

and at 126-128: The common law rule does not require that the information contain all material that the defendant may require upon an application for particulars for preparation of a defence: De Romanis v Sibraa [1977] 2 NSWLR 264 at 291 (applying Ex parte N. Ormsby & Sons Pty Ltd; Re Mason (1964) 81 WN (Pt 1) NSW 286 at 290-291). This distinction between the material required for an information and that which is required from further and better particulars is explained by the history of the development of the role of particulars in the administration of criminal justice. The provision of particulars has emerged as an essential part of the concept of justice in criminal matters. The development of the purpose and functions of particulars is described by Evatt J in Johnson v Miller : It is the very essence of the administration of criminal justice that a defendant should, at the very outset of the trial, know what is the specific offence which is being alleged against him. This fundamental principle has been deemed applicable to bodies which are not strictly judicial in character. But the rigorous application of the principle by courts of justice proper is to be regarded as deriving from the court's inherent power and jurisdiction. It is inherent because it is an essential and integral part of any system of administering justice according to law. For various reasons, including the miscarriages caused by technical objections to matters of form, the formal indictment, information or complaint is allowed to become more sparing in the information it imparts. Side by side, the jurisdiction to order particulars may call for more frequent exercise. It is an essential part of the concept of justice in criminal cases that not a single piece of evidence should be admitted against a defendant unless he has a right to resist its reception upon the grounds of irrelevance, whereupon the court has both the right and the duty to rule upon such objection. These fundamental rights cannot be exercised if, through a failure or refusal to specify or particularise the offence charged, neither the court nor the defendant (nor perhaps the prosecutor) is as yet aware of the offence intended to be charged. (at 497-498) This historical development of the role of particulars corresponds to the emergence of the modern day requirements for a valid information. The majority of the High Court in John L held: The traditional function of an information was to found jurisdiction to deal with an alleged offence. Disregarding the effect of statutory provisions curing or precluding reliance upon a defect, the old authorities established that an information should be quashed as insufficient in law and invalid if it failed to inform the justices before whom it was laid of the nature of the offence and the manner in which it had been committed. The rationale of that requirement has, in more recent times, commonly been seen as lying both in the necessity of informing the court of the identity of the offence with which it is required to deal and in providing the accused with the substance of the charge which he is called upon to meet: "an accused person could not be required to defend the charge if the information did not supply the particulars necessary to enable him to prepare his defence": Ex parte Lovell; Re Buckley . The nineteenth century United Kingdom legislation which was enacted to render summary proceedings before justices less open to technical objection (see, in particular, Jervis' Act 1848 (11 & 12 Vict. c.43), ss. 1 and 3 and the Summary Jurisdiction Act 1879 (42 & 43 Vict. c. 49), s. 39) was substantially adopted in New South Wales: see the discussion in Ex parte Lovell; Re Buckley and, in particular, Justices Act 1902, ss. 65 and 145A. One can point to statements of authority which lend support for the view that that legislation did not go so far as to abrogate the requirement that a valid information must at least identify the essential factual ingredients of the actual offence: see, e.g., Smith v Moody ; Johnson v. Miller ; Ex parte Graham; Re Dowling (at 519). (See also Bunnings Forest Products Pty Ltd v Tanya Gai Shepherd (at 8-9)) It follows that a defendant is only entitled to particulars of the charge which are insufficiently provided in the summons. The defendant is entitled to know those facts and circumstances which establish the essential elements of the offence alleged against the defendant. 35 The reasoning of Meiklejohn v Central Norseman Gold Corporation Ltd (1998) 19 WAR 298 is relied upon by the appellant as to the question whether an unsafe system of work can be framed as a charge under s16(1). The question before the Appeals Court in Western Australia was whether the Mines Regulation Act 1946 (WA) under the relevant section created a single or multiple offences. It was found the section created a single offence and its sub-paras (a)-(e) did not define and prescribe separate and substantive duties the contravention of which would constitute separate offences. Rather, it was held non-compliance with one or more of the lettered sub-paras would constitute a single contravention of the general duty. Therefore, the Court determined the counts which charged a failure in terms of one or other of the lettered sub-paras were not proper charges for an offence under the section. The Court held each charge had to relate to an identifiable act or omission that was productive (in that case) of unreasonable exposure to an identifiable hazard or hazards. It was held a charge may not simply rely upon the whole of the employer's conduct over a defined period, taken together, to demonstrate a general failure to provide a safe environment.

36 The Court in Meiklejohn examined the NSW Boral Case commenting the NSW legislation did not contain a similar provision to the one in Western Australia. The Court stated at 311: . . . limited assistance is to be derived from a consideration of the cases decided on the legislation in other States. I think none of the legislation is sufficiently similar to s30B(1) to render the cases directly applicable. This is especially so of the legislation in New South Wales and Victoria. In those States, the relevant legislation prescribes and defines a general duty in the first subsection and in a second subsection it is stated that the first subsection is contravened if the employer fails, inter alia, to do the things specified in the lettered paragraphs of the second subsection. Legislation framed in that way is fairly open to be regarded as treating each failure of the duty stipulated in the lettered paragraphs of the second subsection as a distinct contravention, separately punishable as a breach of the first subsection. The use of the phrases "without prejudice to the generality of subs(1)" (New South Wales) and "without in any way limiting the generality of sub(1)" (Victoria) hardly stand in the way of that view. Those phrases are, in each case, arguably intended merely to negate the principle of construction that might otherwise apply: that the stipulation of special duties in subs(2) operates to cut down the ambit of the general duty in subs(1). And so, it may be argued, the section as a whole is to be construed as meaning that each of the matters stipulated in subs(2) will amount to punishable contraventions of subs(1), although they are not to be taken as an exhaustive statement of the matters that will constitute a contravention of subs(1).

37 We find this authority does not support the appellant's submission. Within its reasoning the court itself distinguished the NSW legislation. Further much of the Court's reasoning seems to be directed to s15(1) of the NSW legislation not s16(1) of the NSW legislation. It distinguishes a provision which prescribes and defines a general duty and finds the further subsection stipulates distinct contraventions. Such is the effect of s15 of the NSW Act. However, as held in Boral, the single offence under s16 defines a prohibited act or omission which may possess several risks and several causes of risk. Such is reflected in this summons as it is pleaded before us. 38 The approach of Gleeson CJ in Stanton (at 666) is apposite to the circumstances before us: The difficulty is that the courts have never managed to produce a technical verbal formula of precise application which constitutes an easy guide, in the circumstances of any given case, as to whether the common law rule has been infringed to such an extent that s145A, operating alone, would be insufficient to save the information. My own view in the present case is that, if it stood alone, s145A would not save the information. In that regard I consider the case to be indistinguishable from John L Pty Ltd in which a majority of the High Court held that an information was incurably defective by reason of its failure to identify the "material particular" in which an alleged statement was said to be false or misleading. …

Applying this test the Full Bench finds there is no failure to identify a material particular and therefore the summons cannot fail and cannot be held to be defective. 39 Mr Dubler submits that if the words after "1983" were deleted, the charge could have, if brought in time, proceeded. The President at first instance commented (at 15): . . . there may be situations where some of the words in the charge can be regarded as 'simply descriptive and not either form an essential element of the charge ... or requisite particulars of the charge.' In those circumstances, such words can be disregarded as surplusage.

As to this comment of the President, in substance that the additional words were otiose, the appellant submitted the words in the summons before the Full Court after "in that" are the defect which cannot be cured. The appellant submits the statement of the offence with the exclusion of those words is therefore not known to law. 40 However, we find, as did Wright J, President, the elements of an offence which a summons must identify under s16, that is the time, place and nature of the offence, are clearly present in the summons and the essential factual ingredients are pleaded. There is sufficient particularity to identify and meet the offence. (See Insp Page v Woolworths Limited at 7,8; CSR Limited t/as CSR Wood Panels at 12 (elements); Saffron (No.1) 1988, 36 ACrimR 262 at 309, per Hunt AJA; Stanton v Abernathy & Anor (1990) 19 NSWLR 656 at 666 per Gleeson CJ. The additional words in the summons commencing with the words "in that" merely particularise the relevant failure as alleged namely, the failure to ensure that certain non-employees were not exposed to risks to their health or safety. We find the summons pleads the essential factual ingredient of the actual offence. 41 As to an amendment to the summons after the expiration of the time limit, Mr Dubler's submissions were comprehensive. He submitted the statutory provisions of s6 of the Supreme Court (Summary Jurisdiction) Act, 1967 which gives a court power to amend a summons are not to be used to challenge the statutory time limits set for a charge of a breach of the Occupational Health and Safety Act, 1983. 42 Mr Dubler relied upon Tregilgas v Howie [1926] SASR 122 where a complaint was laid against a defendant which complaint disclosed no offence. After the expiration of a time limit the complaint was amended. It was held as no offence was disclosed until amended, the proceedings were out of time. Murray CJ said at 125-127: If it appears to the justice, or to the Court before whom any defendant comes or is brought to answer any information or complaint, that the information or complaint (a) fails to disclose any offence or matter of complaint, or is otherwise defective, and (b) ought to be amended so as to disclose an offence or matter of complaint, or otherwise to cure such defect, the justice or the Court may amend the information or complaint upon such terms as may be just. . . . And it is obvious that if the effect of an amendment would be to create a valid information or complaint for the first time after the statutory period for taking proceedings has expired, the amendment cannot be made. . . . The point is a technical one, but due effect must be given to the whole of the Act. The Legislature has thought fit, in the interests of accused persons, to set an arbitrary limit to the time within which informations and complaints may be laid, and those persons are entitled to receive the benefit of it. It may be that the protection afforded can be waived, but there was no waiver in this case. 43 He also relied upon Fred Wakefield Pty Ltd v Dowd (1979) 20 SASR 328, where the court looked at the issue of amendment to a complaint after the expiration of a time limit and the magistrate allowed the amendment. The court examined the issue of amendment but did not examine as to whether the summons recited a valid offence as the Full court in this matter has found. On appeal, Sangster J held the complaint on the face of it, disclosed an offence. However, as the offence could not be proven without the substitution in the summons of the word "permission" for "licence" the court commented: I find the question troublesome. On the one hand, courts in modern times do not encourage the taking of fine points but prefer to get to the substance of the matter. The policy of the Legislature as expressed in the Justices Act is clearly to the same effect. On the other hand, authorities who seek to regulate the lives and property of those coming within their boundaries, and to enforce myriads of regulatory by-laws, cannot be heard to complain of insistence that they, in turn, themselves comply with statutes and procedures laid down for compliance by those who seek to enforce those by-laws. In the result I find myself examining the question without any inclination either way. . . . Having charged the one, and having left it until more than six months from the alleged offence before seeking to substitute a charge of the other, I find the respondent to be too late, and the learned Special Magistrate to have erred in allowing the amendment. 44 Mr Dubler also relied on Chaudhary v Ducret (1986) 11 FLR 163 at 176, 181-185 where, after the prescribed time limit had expired, amendments to particulars of a summons were allowed. It was held, on appeal, that the substituted particulars did not raise a new charge outside the prescribed limitation period but the court warned such amendment could cause a change in the substance of the "ultimate facts" and might therefore cause a new offence to be alleged. 45 While noting these authorities and after hearing submissions from Mr Dubler relying on them as to whether a defect, if it exists, is amendable by s6 of the Supreme Court (Summary Jurisdiction) Act 1967 we held the later issue was not a question before the Full Bench by way of the Appeal or from the Reference by the President. Further, we note our finding the summons is valid and therefore does not require amendment. As to the further submission that the summons cannot be amended as there has been an expiration of the time limit, we find this issue also need not be determined. 46 The Full Bench has no need to give an order as to particulars. The only relevant question before us is the validity of this summons on the Reference. The judgment at first instance contains orders requiring the provision of further particulars. The judgment stands as do its orders as no leave to appeal has been granted. 47 Accordingly the Full Bench confirms the following orders:

1. To the extent that the appeal is competent, which we do not decide, we would not grant leave to appeal and would otherwise dismiss the appeal.

2. In relation to the reference and, in particular, the question raised therein, we answer it in the negative thereby finding that the summons is valid in law.

3. The appellant is to pay the respondent's costs in the appeal in an amount as agreed or assessed.

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