Coombs v Patrick Stevedores Holdings Pty Ltd

PROSECUTOR: Mr B G Docking of counsel Turner Freeman Solicitors (Mr Peter Tyson)

LEGAL REPRESENTATIVES: DEFENDANT: Mr I M Barker QC Freehills Solicitors (Mr Miles Bastick and Ms Wendy Thompson)

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

ROBERT DARCY COOMBS v PATRICK STEVEDORES HOLDINGS PTY LIMITED Prosecution under s 15(1) of the Occupational Health and Safety Act 1983

ROBERT DARCY COOMBS v PATRICK STEVEDORES HOLDINGS PTY LIMITED Prosecution under s 15(1) of the Occupational Health and Safety Act 1983 Matter No IRC 6103 of 2000

ROBERT DARCY COOMBS v PATRICK STEVEDORES HOLDINGS PTY LIMITED Prosecution under s 15(1) of the Occupational Health and Safety Act 1983 Matter No IRC 6104 of 2000

ROBERT DARCY COOMBS v PATRICK STEVEDORES HOLDINGS PTY LIMITED Prosecution under s 15(1) of the Occupational Health and Safety Act 1983 Matter No IRC 6105 of 2000

ROBERT DARCY COOMBS v PATRICK STEVEDORES HOLDINGS PTY LIMITED Prosecution under s 15(1) of the Occupational Health and Safety Act 1983

JUDGMENT (Extempore) [2001] NSWIRComm 39

1 These proceedings relate to notices of motion filed by the defendant in five sets of proceedings commenced under s 15(1) of the Occupational Health and Safety Act, 1983. I shall return to the nature of the proceedings in due course. At this stage the issues raised by the respective notices of motion should be identified. 2 The first notice of motion was filed on 31 January 2001 and the substantive order sought in that motion was that the summons for production served on the defendant on 2 January 2001 be set aside or, in the alternative, varied, essentially on grounds that the summons was too wide and lacked specificity, and therefore it "is oppressive and mere fishing" in an attempt to obtain evidence to justify the prosecutions. Additional grounds were that the summons required the production of documents from third parties and that the summons required documents irrelevant to the proceedings. 3 The second notice of motion was filed on 2 February 2001 and sought an order staying the five proceedings on the following four grounds: (a) That the Orders in respect of each matter are duplicitous. (b) That the particulars of the charges in respect of each matter are duplicitous. (c) That the Prosecutor has laid multiple charges in respect of one alleged offence. (d) That the particulars of the charge in respect of each matter do not disclose an offence.

4 I shall deal with the motions in reverse order, since this will involve dealing initially with the substantive motion which, if successful, may render otiose the other motion as the motion of 2 February in a practical sense seeks to terminate the proceedings. It is appropriate at this point to refer in some detail to the proceedings that have been commenced. 5 The proceedings were commenced at different times. The first was Matter No IRC 2000/5194 which was commenced by an application for an order under s 168 of the Industrial Relations Act 1996 and s 4 of the Supreme Court (Summary Jurisdiction) Act 1967 on 26 October 2000. Subsequently, on 15 December 2000, an amended application under those provisions was filed in the proceedings. 6 On 15 December 2000 the proceedings in Matter Nos IRC 2000/6102 to 2000/6105 inclusive were commenced. Relevant process were filed under the provisions earlier referred to and orders were made by Hungerford J on 15 December 2000 commanding the defendant to appear before the Court on 8 February this year. The orders were made by reference to the matters set out in the applications for orders filed on 15 December, except that in the first numbered matter the order was framed by reference to the application filed on 26 October, as amended by leave on 15 December 2000. 7 Although there are some differences in the various documents filed they were all commenced or purported to be commenced under s 15(1) of the Occupational Health and Safety Act. It is convenient to deal with the various matters by reference to the first numbered matter, although it will be necessary to refer to differences between that proceeding and the other four in order to deal with some of the submissions made. 8 The material parts of the amended application filed in Matter No IRC 2000/5194 and incorporated in the order made by his Honour are as follows: I, Robert Darcy Coombs, of 365 Sussex Street, Sydney in the State of New South Wales, a person empowered by the Minister for Industrial Relations pursuant to section 48 of the Occupational Health and Safety Act 1983 to institute proceedings in this matter, allege that: PATRICK STEVEDORES HOLDINGS PTY LIMITED, (ACN 060462919), ("the defendant") An incorporated company in New South Wales, whose registered office is situated at Penryhn Road, Port Botany in the State of New South Wales, between about 26 October 1998 and about 26 October 2000 at Port Botany, New South Wales, the defendant, being an employer, FAILED TO ensure the health, safety and welfare at work of all of its employees, and in particular Jason Leslie Crews, Simon Euers, David Bruce Hargraves, Peter Leslie Howlett, Stephen Raymond Magnus and Christopher John Watson, in that the employer failed to provide or maintain a system of work that was safe and without risks to health contrary to section 15(1) of the Occupational Health and Safety Act 1983. The particulars of the charge are: 1. The defendant was a stevedoring employee (sic) . 2. The defendant was the operator of a terminal at Port Botany. 3. Between about 26 October 1998 and about 26 October 2000, the defendant employed Jason Leslie Crews, Simon Euers, David Bruce Hargraves, Peter Leslie Howlett, Stephen Raymond Magnus and Christopher John Watson ("the employees") at Port Botany. 4. There was a risk to the health, safety and welfare of any or all of the employees in that there was a risk of neck, shoulder, spine, upper limb and/or back injuries. 5. Between about 26 October 1998 and about 26 October 2000, the employees were required at various times to operate straddles at Port Botany. 6. Jason Leslie Crews around the end of 1999 and the beginning of 2000, started to have symptoms of neck pain after driving the straddles for long periods and time off work was ultimately required. 7. In early 1999, Simon Euers noticed symptoms in his neck and shoulders and thereafter, over time, developed pain in his lower back. 8. David Bruce Hargraves in about late 1998 began incurring neck pain symptoms after driving the straddles for long periods. These symptoms increased in severity and consistency over time until they became severe in around March 1999. At this time, the pain also extended down into his right arm, which is the arm he used to drive the straddle. Time off work has been required. 9. Peter Leslie Howlett, since 13 September 1998, as his employment involves driving staddles (sic) , has incurred a significant increase in severity and consistency of neck and back pain. Time off work has been required. 10. Around the end of 1999 and the beginning of 2000, Christopher John Watson developed symptoms of neck and back pain. 11. The defendant's failures and/or omissions were any or all of the following: (a) Requiring any or all of the employees to work for a full shift, apart from one break, in the cabin of a straddle.

(b) Rostering any or all of the employees to work for a full shift, apart from one break, in straddles.

(c) A failure to provide to any or all of the employees, operating straddles, more than one break per shift.

(d) A failure to provide three employees for every two straddles.

(e) A failure to rotate regularly, throughout their shifts, any or all of the employees when operating straddles.

(f) A failure to implement an exercise program, prior to work commencing on shift, for any or all of the employees operating straddles.

(g) A failure to implement an exercise program, at appropriate intervals throughout shifts, for any or all of the employees operating straddles. 12. There was a causal nexus between the risks to the health, safety and welfare of any or all of the employees as dealt with in paragraph 4, and any, or all, of the aspects of the defendant's failures and/or omissions as dealt with in paragraph 11. 13. Additionally, or in the alternative, there was a causal nexus between the injuries to any or all of the employees as dealt with in paragraphs 6 to 10, and any, or all, of the aspects of the defendant's failures and/or omissions as dealt with in paragraph 11. 14. It would be based on information and belief, I verify the allegations made in the Application for Summons - Prosecution and as set out in this Affidavit. 9 Although the application is framed by reference expressly to s 15(1) of the Occupational Health and Safety Act, the particular allegation is that the defendant, being an employer, failed to provide or maintain a system of work that was safe and without risks to health, and to that extent has been drafted with regard to the terms of s 15(2)(a) of the statute. 10 It should also be observed that the period to which the alleged offence relates is the two year period from 26 October 1998 and "about 26 October 2000", and is therefore for a period which represents the longest period of any of the charges laid. Each of the matters alleged or referred to in the numbered paragraphs of the document, so far as they refer to particular dates, are dates within that two year time period with one exception, namely paragraph 9, which refers to the situation of a Mr Howlett who, it is said, since a date in September 1998 has "incurred a significant increase in severity and consistency of neck and back pain. Time off work has been required". 11 Reference is made to these matters because of some differences between the process filed in the first numbered matter and in some of the later matters because of the way in which the defendant developed some of its submissions. It is perhaps convenient at this point to refer to the other process, even if only shortly, in an attempt to identify the ways in which they differ from Matter No IRC 2000/5194. 12 Matter No IRC 2000/6102 alleges a failure to ensure the health, safety and welfare at work of the same employees. However, the allegation here is one of failure to provide "such information, instruction and training as may be necessary to ensure the health and safety at work" of employees between 1 June 1999 and 13 September 2000. The further particulars given are not dissimilar to those in the first matter, although the reference to dates outside the time of the charge is more pronounced. It is to be observed that it appears the allegation has been framed having regard to s 15(2)(c) of the statute. 13 The third charge in Matter No IRC 2000/6103 relates to the same employees and appears also to be framed with regard to the last mentioned provision. However, the period of charge is 16 December 1998 to "about 31 May 1999", and again reference is made in the numbered paragraphs to periods outside the dates of the charge. The second and third matters, albeit in reverse order, refer to consecutive time periods. 14 A similar situation as to consecutive time periods occurs in the fourth and fifth matters, that is Matter No IRC 2000/6104 and Matter No IRC 2000/6105. The first of those matters relates to the period 1 May 2000 and about 13 September 2000 and the last to the period 16 December 1998 and about 29 April 2000. Each alleges a failure to provide or maintain plant that was safe and without risks to health and therefore appears to have been framed with regard to s 15(2)(b)(i) of the Occupational Health and Safety Act. Again, some dates in the numbered paragraphs in each of the charges are outside the period charged in the particular matter. 15 In the proceedings before me today, the defendant was represented by Mr I M Barker of Queen's Counsel, and the prosecutor by Mr B G Docking of counsel. Counsel helpfully provided submissions as to their respective cases argued before the Court today. It is not possible to do more than briefly sketch the helpful and detailed submissions that have been placed before the Court. I hope, in dealing with them summarily, I do not fail to do justice to the submissions with which the Court was provided. 16 In essence, the defendant submits that the proceedings should be stayed because the relevant process discloses no cause of action; the particulars are too vague and imprecise and offend against the principles enunciated in John L Pty Limited v Attorney-General (1987) 163 CLR 508. As elaborated, the last submission relies on the important judgment of Hill J in Boral Gas (NSW) Pty Ltd v Magill (1995) 58 IR 363, particularly at 379 - 380. It was also submitted that the facts and circumstances pleaded in each application are almost identical, and the defendant is exposed to double jeopardy by having to face five prosecutions. 17 Senior counsel helpfully provided a detailed analysis of the way in which the offences had been set out and particularised, and by means of tables and similar analyses pointed to and elaborated the matters referred to above in the earlier summary. Reference was made to the fact that the various orders and applications for orders were either entirely or almost entirely identical; for example, identical (with one exception) as to the employees involved, the equipment used, the work done and the symptoms complained about. It is said, for example, that if the failure alleged in Matter No IRC 2000/5194 caused the same problems as the failure alleged in Matter Nos IRC 2000/6102, 6103, 6104 and 6105, why is there more than one charge; if the prosecutor was serious, why did he not allege which of the various symptoms was referable to each of the alleged collective failures in each case? It is submitted that the defendant, as things stand, is exposed to double jeopardy. 18 Counsel candidly indicated that the double jeopardy aspect of the submissions, although an important consideration, was nevertheless secondary to the fundamental attack on the validity of the process. Particular reference was made to the fact that there was nowhere alleged that there was a risk to health from any relevant cause (particular 4); any of the employees suffered any injury (particulars 6 to 9); that the "symptoms" were the product of any injuries (particulars 6 to 9) or were caused by driving straddles (particulars 5 to 11). In summary, it was submitted that it was offensive to the criminal process to plead particulars in the alternative by using expressions such as "failures and/or omissions" and "any/or all of the following" and "requiring any/or all of the employees" and "a failure to adequately or at all provide, et cetera". 19 On the authority of John L Pty Limited v Attorney-General and Boral Gas it was submitted that the grounds had not been laid for a valid order to have been made by the Court in that the allegation in each case should have identified precisely what the defendant did or failed to do as to which complaint is made. It is not a matter to be cured by the supply of further particulars. It was submitted in the alternative (and in deference to counsel's submission it was made clear that this did not in any way involve a resiling from the primary submission) that if the proceedings were seen to be irregular in terms of s 170 of the Industrial Relations Act, the Court should at the very least require the prosecution to regularise them by use of its powers under that provision. 20 It was emphasised that the matters raised were not mere technical objections but, if correct, went to fundamental issues of whether the Court's jurisdiction had been properly invoked. If the defendant's submissions were correct, the proceedings lacked validity. I agree that, putting the defendant's position at its highest, if its submissions were correct, they transcend questions of technicality and go fundamentally to the power of the Court to deal with the proceedings. 21 Counsel for the prosecutor seeks to counter these submissions in a number of ways. There are two limbs in the prosecutor's major defence. First, that each proceeding involves an allegation as to a single criminal activity or enterprise over the particular period. In other words, it is alleged that there was a continuing offence over the period of the respective charge. In framing the matter in that way, the prosecutor relies on a number of judgments of appellate courts; for example, the judgment of the Court of Criminal Appeal in Regina v Saunders, (unreported, Court of Criminal Appeal, 23 February 1993 - noted in (1993) 10 Petty Sessions Review 4537), and refers to the preparedness of the prosecutor to supply details of the way in which it was presenting and outlining its case, as occurred, for example, in R v Moussad [1999] NSWCCA 337, R v Hamzy (1994) 74 A Crim R 341 and R v ARD [2000] NSWCCA 343 at [62]. 22 The second limb of the prosecutor's defence of the attack on its process is to refer to the different nature of the charges in that three different allegations are made; the first in the first proceeding relates to the system of work; the second allegation in the second and third matters relates to information, instruction and training and the third type of allegation relates to failure to maintain plant. In the second and third categories it is also to be observed that there are two "pairs" of matters represented by respectively the second and third and fourth and fifth charges. 23 The "pairs" of charges relate to different and non-overlapping periods because, as I understand the prosecutor's submission, it is accepted that it may be open to the defendant to mount its defence in different ways depending upon the particular period, because of the introduction of the new processes or new equipment at relevant times. 24 Whether or not that eventually turns out to be a correct analysis of the situation must, of course, await the trial, if any. It may be that the changes referred to by the prosecutor, if the prosecutor's analysis is correct, results in a qualitatively different charge. It is also relevant to observe the terms of s 49A of the Occupational Health and Safety Act which was inserted in 1997 and which provides: 49A. Multiple contraventions of Part 3 (1) More than one contravention of section 15, 16, 17 or 18 by a person that arise out of the same factual circumstances may be charged as a single offence or as separate offences.

(2) This section does not authorise contraventions of 2 or more of those sections to be charged as a single offence.

(3) A single penalty only may be imposed in respect of more than one contravention of any such section that is charged as a single offence. 25 It is unnecessary in this judgment to trace the history of that provision or the possible "mischief" which led to its insertion. It is sufficient to note that it permits a prosecutor to lay charges in ways which might not be available but for its enactment, and to some extent at least, it goes some way towards minimising the practical consequences of charges which appear to involve some overlap and possible double jeopardy, at least in the sense considered by the High Court recently in Pearce v The Queen (1998) 194 CLR 610. 26 It may not be necessary to refer in detail to the authorities in this Court as to the question of particulars, and the relationship of that issue to validity of process. This issue was considered recently in a number of important judgments of the Court, and in view of the way in which the matter was argued it is sufficient to note that the judgments include WorkCover Authority of New South Wales (Inspector Penfold) v Fernz Construction Materials Limited (1999) 91 IR 199, Concrete Constructions Group Limited v WorkCover Authority of New South Wales (Inspector Dubois) (2000) 99 IR 16 (affirming WorkCover Authority of New South Wales (Inspector Dubois) v Concrete Constructions Group Limited (1999) 98 IR 362), and Mainbrace Constructions Pty Limited v WorkCover Authority of New South Wales (Inspector Charles) [2000] NSWIRComm 239. 27 As indicated earlier, the defendant relied on the judgment of Hill J in Boral Gas and in particular the following passage from that judgment: Section 15(2) provides that an employer commits an offence under subs (1) by a failure to take any one of the measures which are set out in pars (a) to (f) thereof which are expressed in the alternative. Indeed, the sub-section, in its opening provision, makes clear not only that an employer contravenes the section if he fails to do any of the particular things specified therein, but that he may also contravene the section by doing, or failing to do, any other thing which would constitute a breach of the duty under s 15(1) to ensure the health, safety and welfare at work of all his employees. It is necessary for an information under s 15 to specify, in addition to other fundamentals of the alleged offence, how or in what manner it took place; it must adequately identify the particular act or omission which is alleged to constitute the offence. (See Smith v Moody [1903] 1 KB 56 at 60; Ex parte Lovell; re Buckley (supra) at 173, De Romanis v Sibraa [1977] 2 NSWLR 264; John L Pty Ltd and Stanton .) All factual elements of the offence must be specified as well as all legal elements. If one of the particular failures set out in s 15(2) is relied upon, then that failure and its content should be specified in the information. If the alleged failure is of a kind not contained in pars (a) to (f) of s 15(2), but otherwise contravenes s 15(1), then the nature and manner of that failure should be set out. It is fundamental that a defendant know the precise act or omission alleged to constitute the offence charged so that he may plead to it. At the lowest, if it were to be the case, and it is here, that the appellant is charged with contravention of s 15 because, inter alia , it failed "(c) to provide such information, instruction, training and supervision ... necessary to ensure the health and safety at work of ... employees", then that should be specified in the information. In addition, in my opinion, the information should identify with reasonable particularity the nature and content of the particular failure including whether it was a failure to provide the necessary information, the necessary instruction, the necessary training and/or the necessary supervision.

The information in this case, while it sets out all essential elements of the statutory offence in terms of s 15(1), does not specify how, or in what manner, the appellant "did fail" - the "omission" alleged to constitute the offence is not identified. That failure to provide in the information itself proper factual particulars of the alleged offence is a failure which, at common law, goes to the validity of the information and is fatal unless the information is saved by relevant statutory provisions.

It seems clear, at least on the state of the authorities as they presently stand, that the information is not saved by s 145A of the Justices Act standing alone and that Marks J. was correct in so holding. The position under s 65 of that Act is more finely balanced.

In John L Pty Ltd the information alleged that the defendant (appellant) "did commit an offence" against s 32(1) of the Consumer Protection Act in that it had caused "to be published a statement apparently intended to promote the supply of goods, to wit, motor vehicles, which statement was to (the appellant's) knowledge false or misleading in a material particular" and then identified the statement, but failed to identify "the material particular" in which the published statement was alleged to be false or misleading. While there is clearly a greater degree of failure to identify the factual ingredients or particulars of the alleged offence here than in that case, the deficiency is, I think, similar in effect as a matter of substance and principle - each information failed to specify the essential particulars of the alleged offence. In all cases, an accused is entitled to know not only the offence with which he is charged but also how or in what manner he is alleged to have committed it - he is entitled to know the "substance of the charge" as well as the nature of the alleged offence. 28 There was some debate today as to whether the more recent authorities referred to represent a different view as to questions of particulars and the validity of process to that enunciated by Hill J in Boral Gas. I do not consider it necessary to determine that issue because this matter may be decided by reference to the approach of Hill J in Boral Gas. The starting point of the consideration and thus the application of his Honour's approach is the various documents filed and which have been the subject of submissions and reference earlier in this judgment. 29 For the purposes of analysis only - and not with any intention of criticism - the documents filed could have perhaps been framed in a somewhat different way which may have led to less difficulty in their construction. I interpolate here that in terms of the requirements, as summarised by Mahoney JA in Boral Gas Pty Limited v Magill (1993) 32 NSWLR 501 at 515, as to time, place and manner, there is no real issue as to the first and second of those matters. The essential issues between the parties here related to the "manner". 30 However, as I understand the way in which the prosecutor puts his case, it is said that the matter should be analysed in this way; (again referring by way of example to the first matter filed in Matter No IRC 2000/5194) the allegation is that the employer failed to provide or maintain a system of work that was safe and without risk to health, and then reference is made, as the Court understands it, in logical or conceptual terms to the further matters set out in the relevant documentation in the following order. 31 First to paragraph 11, as indicating the alleged failures or omissions of the defendant, which by the linking allegation in paragraph 12 are said led to the risks to health, safety and welfare of the employees specified in paragraph 3 in respect of particular 4, "A risk of neck, shoulder, spine, upper limb and/or back injuries". Further, a similar logical connection in terms of the allegation made is to be found, it is said, by linking the opening words - that is the words after "failed to provide …" etc in the order, to paragraph 11 via paragraph 13 as to the matters alleged in paragraphs 6 to 10 as to the employees referred to in paragraph 3. 32 It is to be appreciated that, by having to "navigate" one's way through the process in this manner, the interconnection of the various elements of the manner of the occurrence of the alleged offence is not without some difficulty. Nevertheless, I conclude that, approached in the way which I have attempted to outline, it cannot be said that there has been, in the way considered by Hill J in Boral Gas, a relevant failure to state the essential elements in law of the offences charged, in that there was a failure to state appropriately "the manner of its occurrence and such other details as are necessary to allow the defendant to know that which he must meet": per Mahoney JA in Boral Gas at 515. Any failure to allege actual injury is not relevant. Injury is not an essential element of an offence under s 15 of the statute. 33 There are some additional aspects of this matter which require consideration. The first aspect is the submission made by the defendant based upon the fact that some of the matters referred to in the numbered paragraphs of the various documents refer to dates outside of and extend beyond the dates specified in the particular charges. The starting point of the consideration of those matters is that by virtue of s 49 of the Occupational Health and Safety Act there are, apart from instances which are presently immaterial, specified time limits within which proceedings may be taken after a breach of the Act is alleged to have occurred. 34 Therefore, presumptively to the extent that in relation to an alleged continuing offence, a time outside the statutory limitation period is alleged, then the proceedings are beyond the jurisdiction of the Court. On the other hand, provided there is an alleged breach within the relevant statutory period, then any allegation or particular outside that time may be severable. Mere reference to a time or period outside the limitation period does not of itself affect the validity of the process. In making this observation, it should be stressed that I am referring only to this particular case and the observation may not be relevant to the operation of s 49 in other situations. 35 The next consideration is whether the reference in particulars to a time outside (that is, before), either the dates of the charge or the statutory period of limitation, is indicative of invalidity or is otherwise unavailable to the prosecutor because of the statutory limitation. This is obviously an area of some difficulty and it would be inappropriate and at least an abuse of process for a defendant to have raised against it allegations which are unavailable because of the period of limitation. However, it does not necessarily follow that particulars provided as to a process of work or the like which is said to have commenced outside the period of charge is necessarily unavailable as a proper particular. Indeed, one could envisage circumstances where fairness to the defendant might require a particularisation of events outside the limitation period. Accordingly, I do not consider that the references in the document to times or dates outside the period are matters which of themselves lead to doubt as to the validity of the charges, or necessarily for the need for corrective orders under s 170 of the Industrial Relations Act. 36 The question of double jeopardy is another matter of concern. The principle is clear, and in that regard Senior Counsel for the defendant referred to the well-known judgment of the High Court in Davern v Messel (1984) 155 CLR 21. 37 It may also be pertinent to observe that the important principles laid down as to sentencing raised by issues of double jeopardy in the judgment of the High Court in Pearce v The Queen often present particular difficulties in sentencing under the Occupational Health and Safety Act. Nevertheless, once the five charges are seen in the context of the particular way in which they are framed, the way in which reliance has been placed on the different paragraphs of s 15(2) of the statute, and the different time periods in the two pairs of charges, it cannot be said that the charges as presently framed demonstrate double jeopardy or deal with the charges in a way that is unfair or, if it be thought that s 49A permits double jeopardy in some conceptual way at least, in a way that is not permitted by that section. 38 The last aspect which must be considered as to this motion is the objection to the process because of the framing in the alternative of a number of the allegations or particulars. This is a matter of concern in principle, although in this case it may be that it is more a matter of semantics than of substance. Nevertheless, I consider that the defendant is entitled to know specifically the allegations made against it and which it has to meet in the proceedings. 39 Although the prosecutor has sought to counter the defendant's submissions on this aspect by reference to the judgment of the Court of Criminal Appeal in Environment Protection Authority v Sydney Water Corporation Limited (1997) 98 A Crim R 481, and authorities of this Court which have followed it (for example WorkCover Authority of New South Wales (Inspector Dubois) v Concrete Constructions Group Limited), I doubt whether those authorities provide a basis to provide particulars in the alternative in the present proceedings. However, I do not need to resolve that issue since I intend to order the prosecution to amend its process to remove particularisation in the alternative. In doing so, I accept the possibility that these concerns may be somewhat semantic and that, for example, in alleging failures which were "any or all of the following" it might be said that the allegation was in fact or in substance an allegation as to "all of the following". Nevertheless this is a matter which, in my view, requires remedy and it is open to the Court either in terms of its inherent powers or those provided by s 170 of the Industrial Relations Act to require that to be done. 40 It should be clear from what I have said that I do not accept that on the material before me it should be held the prosecutor has laid charges in any of these matters in respect of more than one alleged offence or that any of the matters may be said to fail to disclose an offence. 41 In conclusion, I should also make clear that I have dealt with this matter on the interlocutory basis on which it has been argued. However, I am not in any way dealing with the issue whether there was a continuing offence of the kind alleged. Such matters, and indeed a number of legal issues relating to such matters, would inevitably have to be matters for the trial judge, and by way of a rather broad analogy, I note the way in which certain matters relating to continuing offences and the creation of such offences under environmental legislation was dealt with by Pearlman CJ in the Land and Environment Court and which was approved by the Court of Criminal Appeal in the stated case proceedings in Environment Protection Authority v CSR Limited trading as CSR Wood Panels [2000] NSWCCA 373 at, for example, [6] and [7].

Monday, 5 March 2001 42 Although the Court sat well after the usual time for adjournment on Friday last, 2 March 2001, the judgment on the two notices of motion was still being delivered at the time of adjournment. Accordingly, when the Court completed its reasons in relation to the first of the motions with which it was dealing, the delivery of reasons was adjourned and the parties were given an outline of what the Court's decision was likely to be as to the other notice of motion. That is, the motion as to the setting aside of the summons served by the prosecutor on the defendant. 43 I now continue the delivery of the reasons for judgment. At this point it is sufficient to note that the prosecutor arranged for the issue by the Registrar on 20 December 2000 of a summons directed to the defendant for the production of certain documents set out in a schedule. The schedule is rather detailed and contains ten paragraphs. In view of subsequent developments it will not be necessary to set out the whole of the summons. 44 The defendant has made succinct but, if correct, decisive submissions in relation to the summons for production which may be summarised as follows. It is submitted that it is apparent from the prosecution brief and the terms of the summons that it is intended to be a fishing exercise in the hope that something will emerge to assist the prosecutor. Further, "the claim for documents is impossibly wide and vague and is oppressive. For example, the test of whether a document is caught by paragraph 1 is whether it is a document relating to straddle cranes in connection with one of a long series of subject matters, including any entity related to the defendant". (emphasis in original) 45 There are some other objections to which I will return after setting out the relevant parts of the summons, since they relate to specified parts of it. During the early stages of the argument, Senior Counsel for the defendant advised the Court that there was no longer any objection to paragraphs 5 to 10 of the summons, except as to paragraph 5 insofar as the date specified in it was a date earlier than any of the charges laid. It was made clear that this concession had to be seen in the context of the other motion filed by the defendant which, if successful, made the whole of summons irrelevant, with the consequence that no documents would need to be produced in relation to the summons, including those within paragraphs 5 to 10. 46 Counsel for the prosecutor advised the Court that the prosecutor had not been earlier advised of the concession made as to paragraphs 5 to 10 of the summons. It is unnecessary to set out in detail the terms of paragraph 5 since the only objection is to the date which precedes by approximately five months the period of the first charge. In the light of the earlier decision on the question of particulars where I accepted that particulars of events prior to the dates of the charge may not be irrelevant to the charge, I consider that the objection to paragraph 5 is not made out, and I therefore require the defendant to produce the documents in paragraphs 5 to 10 of the summons. 47 It is now appropriate to set out the opening words to the schedule to the summons and the paragraphs objected to, being paragraphs 1 to 4: THESE ARE THE DOCUMENTS OR THINGS YOU MUST BRING 1) Any report, recommendation, opinion, advice, manual, guideline, file note, memorandum, minute, safety assessment, safety program, ergonomic review, vibration data, noise data, ergonomic data and/or training material (however the foregoing are described) relating to straddle cranes and/ or straddle carriers in connection with any or all of the following: a) The defendant. b) Any entity and/or corporation related to the defendant including but not limited to: i) Patrick The Australian Stevedore. ii) Patrick Stevedores Operations Pty Ltd. iii) Patrick Stevedores Operations No. 2 Pty Ltd. c) Manufacturers of straddle cranes and/or straddle carriers including but not limited to: i) SISU. ii) Beloti Container Stacker. d) Installers of straddle cranes and/or straddle carriers including but not limited to: i) SISU. ii) Beloti Container Stacker. e) Any rehabilitation provider. f) Any safety consultant. g) Any ergonomic consultant. h) RMIS. i) Re-Start Consulting. j) Dr Rauno Paakkonen and/or the Tampere Regional Institute of Occupational Health. k) Noel Arnold & Associates Pty Ltd. l) Cameron Hunter. m) Neville J Betts. n) Freehill Hollingdale and Page including but not limited to Barry Sheriff. o) Queensland Government - Workplace Health and Safety. p) WorkCover Authority of New South Wales. And the thing(s) produced shall include any original version, draft version, final version, friendly report and/or non-friendly report. 2) Any record relating to straddle cranes and/ or straddle carriers in connection with any or all of the following: a) "Barry Sheriff spent two hours with Noel Arnolds making it as good as possible". b) "The way forward". c) Comments concerning any report from Noel Arnold & Associates. 3) Any record of any risk assessment, risk identification and/or review of risks relating to straddle cranes and/ or straddle carriers. 4) Any record relating to a review of industry best practices in the operation of straddle cranes and/ or straddle carriers in either or both of the following: a) Australia. b) The world. 48 The balance of the objections of the defendant are that the documents sought by paragraphs 1 to 4 are well beyond anything relevant to the prosecutions; that paragraph 1(b) claims documents from third parties and paragraph 2 is without meaning. I consider that the issues between the parties in this area are more theoretical than real and the Court should adopt a practical approach in an attempt to resolve what may be the real issues between the parties, provided of course that in doing so, it ensures that there is no oppression or burden visited on the defendant. 49 It is important to observe at the outset that the defendant's primary submission so far as it refers to the well-known phrases "fishing expedition" or "fishing exercise" does not suggest that the purpose of the summons is to provide to the prosecution the basis for the prosecutions. Rather, the allegation is that the "fishing expedition" is mounted because, it is said, something will emerge to assist the prosecutor. Clearly, if what the prosecutor was engaged in was a "fishing expedition" to ground its prosecutions, then there may be a case of oppression. It is not surprising, however, (provided of course that it is not truly a "fishing expedition") that a party would serve a summons for production or a subpoena duces tecum to produce something that will assist its case. After all, that is the usual purpose of the service of such process. 50 Although perhaps not precisely expressed, I consider that the clear intention of the summons is to limit, unless otherwise expressly stated, the dates of the documents sought to be produced to those within the period the subject of the charges; that is, commencing on a date approximating 26 October 1998. In that context I do not consider that there is any basis to find that the claims made by the defendant as to the documents sought in paragraphs 3 and 4 are made out. 51 As to the documents referred to in paragraph 2, although no specific claim is made in relation to that matter, I note that it relates to a firm referred to as "Noel Arnolds", which is the subject of another summons about which there is an argument which has been adjourned for hearing later this month. I therefore propose to stand over to that date the summons insofar as paragraph 2 is concerned and the notice of motion, insofar as it concerns that paragraph. 52 This leaves for consideration the much more complicated first paragraph of the summons. The prosecutor in pressing for production of all the documents set out in this paragraph relies substantially on the recent and important judgment of Hungerford J in WorkCover Authority of New South Wales (Inspector Keelty) v Crown in the Right of the State of New South Wales (Police Service of New South Wales) [2000] NSWIRComm 234. I consider that the following extracts from his Honour's reasons, at paragraphs [29], [30], [32] and [33], are in point: 29 The documents and things sought by the prosecutor to be produced by the defendant have been detailed earlier. A reading of them shows that they were certainly cast in somewhat general and wide terms, including by reference to time periods of up to 15 years both before and after the commission of the alleged offence. The result is that the process of determining the apparent relevance, not that they are relevant or admissible into evidence, of the documents to a subject matter in the proceedings is made more difficult. Nevertheless, the very width of the documents may be no more than an indication of the nature and scope of the issues to be decided. After all, as Smithers J (with whom Bowen CJ and Nimmo J agreed) commented in Lucas Industries Ltd v Hewitt [1978] 45 FLR 174 at pp 188-189, "... a degree of generality in the description of the documents may according to circumstances be compatible with reasonableness ... The purpose of the process of subpoena is to facilitate the proper administration of justice between parties". It is timely also in this respect to repeat what was said by Moffitt P, with whom Hutley JA and Glass JA agreed, in National Employers' Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372 at p 382, as follows : It does not follow, however, that because the party who issues a subpoena is unaware of the precise description of a particular document, or whether a particular document or documents is in the possession of the witness, or even whether it exists, or is unaware of its contents, that the subpoena, or even a subpoena in general terms, amounts to the use of the subpoena for the purpose of "discovery". 30 Another aspect of initial concern is the paucity thus far of factual material available about the issues in the case. It is in respect of those issues that the objections taken in the motion are to be determined and, in my view, it is the defendant as the moving party who has the onus to establish the grounds to set aside the summons for production: see Commissioner for Railways v Small [1938] 38 SR (NSW) 564 at p 574 and National Employers' Mutual General Association v Waind and Hill [1978] 1 NSWLR at p 381. In this regard, I adopt the approach of Sully J in Patrick Stevedores Operations Pty Ltd v Maritime Union of Australia (unreported, 10956/98 and 10969/98, 11 May 1998) in which his Honour, by reference to Finnie v Dalglish [1982] 1 NSWLR 400 and the relevant principles collected therein, said (at p 2) "that it is for the moving party to show cause why the challenged subpoena should be set aside. This is a matter of some practical importance in each of the present motions, because each motion is supported by only one brief affidavit". Similarly in the present case, the affidavit in support of the motion referred simply to "the grounds ... briefly set out in the Notice of Motion"; those grounds were stated in terms that the summons "is oppressive" and "seeks production of material for which there is no demonstrated legitimate forensic purpose". In his submissions, Mr Hastings for the defendant, as earlier outlined, based objection to the summons essentially on the width and oppressive nature of the obligation imposed. … … 32 Notwithstanding the generality and width of the call for the documents concerned, I am not satisfied, with some few exceptions, that the summons is so wide as to be oppressive in the sense of being uncertain. It cannot be said to offend the established principle that a subpoena is not to be used as a substitute for discovery because discovery is not available against a party in a criminal proceeding: see Maddison v Goldrick [1976] 1 NSWLR 651 at p 663 per Samuels JA and R v Saleam (16 NSWLR at p 19 per Hunt J). That is not to say, of course, that in criminal proceedings such as these that a summons for production could properly issue where the purpose was, as the authorities so say, a "fishing expedition"; the test still remains that, as Mr Hastings put, there must be a legitimate forensic purpose to obtain the documents, and, as Mr Crawshaw put, the documents must appear to be sufficiently relevant to an issue in the proceedings. In whatever way one may describe the test, it seems to me it comes down to a balancing exercise involving the nature of the documents sought in light of the apparent issues. In Attorney-General v Stuart (34 NSWLR at p 681), Hunt CJ at CL stated it this way : The concept of legitimate forensic purpose is not confined to claims of public interest immunity. It arises whenever a party seeks access to documents for which he has issued a subpoena; where objection is taken, a party who is unable to show that it is at least "on the cards" that such documents will assist his case is not entitled to have access to such documents simply to see whether they may do so: R v Saleam (16 NSWLR at pp 17-18). He is not entitled to conduct a fishing expedition. The need to show a legitimate forensic purpose arises even if the claim of public interest immunity fails. It is therefore a prerequisite before the balance required for that claim can be struck. 33 In viewing the documents sought here, I do so in light of an assessment of their apparent relevance to issues in the case as those issues may be gleaned from the charge and the particulars thereof. I do so also consistent with what I would understand to be the resources of the defendant as a large organisation and, importantly, as a party and not a stranger to these proceedings it would reasonably have knowledge of the particular expressions used in describing the documents. In that latter respect, I am attracted by the following views of Smithers J in Lucas Industries v Hewitt (45 FLR at p 189) : Assessment of the reasonableness of burdens involved in complying with a subpoena must take account, inter alia, of the desirability that justice be administered effectively. The capacity of a party to collect and produce the documents referred to is a relevant circumstance. Large business entities may be thought to be highly organised and well staffed. What may be burdensome to lesser entities may be of small significance to a large one. In that case, it appears from the report that a wide range of documents was sought in general terms but limited by reference to a single subject matter; with some minor exceptions, the subpoena was allowed to stand. The circumstances of the present case are not conceptually dissimilar.

53 One of the major bases upon which it is said that the summons is a "fishing expedition" is, as earlier observed, the combination of the various linking phrases such as "relating to" and "in connection with any or all of the following". There is no doubt that the combination of those phrases does raise some difficulties and at least an appearance of the width and possibly of the oppressive nature of the obligation imposed or sought to be imposed by the summons. However, the use of the words "relating to" is not of itself indicative of these vices: see, for example, the judgment of the Court of Appeal in National Employers' Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372 at 382 and that of Waddell J and Spencer Motors Pty Limited v LNC Industries [1982] 2 NSWLR 92. 54 It is also appropriate to refer particularly to the discussion in paragraph [33] of the judgment of Hungerford J in the Police Service case where his Honour referred to the particular position of a party to the proceedings and its likely reasonable knowledge of particular expressions used in the description of documents. I therefore consider that the use of the phrase "in connection with any or all of the following", even though used in conjunction with the phrase "relating to" is not to be taken as necessarily indicative of inappropriate width or of oppression. Rather, in at least some of the subparagraphs it seems to be an attempt to specify more particularly the documents sought. It is likely that the meaning of the phrase will vary depending upon which subparagraph of paragraph 1 is being considered. For example, in some of the subparagraphs where there is reference to a particular body, organisation or vocation, the intention is to limit the opening words of the paragraph to documents as to that particular person, organisation or vocation. 55 As earlier indicated, I consider that the appropriate approach to paragraph 1 of the summons is to limit what is to be produced and, at least in the first instance, to require production to that extent and reconsider the matter should there still remain issues between the parties. Although I indicated the broad outline of my then consideration on this aspect last Friday, I have given the matter further consideration and will vary what was outlined to the parties in some slight respects. What I propose to do is to require that the defendant produce the documents on the basis of a limited version of paragraph 1, to dismiss its motion to that extent, and to stand over to a date to be fixed, the balance of paragraph 1 of the summons and the defendant's motion again to that extent. The limited version is as follows: the opening words of paragraph 1 are limited to the following: "Any ... safety assessment, safety program, ergonomic review, vibration data, noise data, ergonomic data and/or training material (however the foregoing are described) relating to straddle cranes and/or straddle carriers in connection with any of the following ... "

and the subparagraphs of paragraph 1 are limited to subparagraphs (a) to (p) inclusive, other than paragraphs (k) and (n). The reason for the omission of those two subparagraphs is that they also appear to relate to the claim for legal privilege relating to the Noel Arnolds matter. 56 It remains then to make orders giving effect to the judgment that has been delivered. The Court makes the following orders: A. As to the defendant's notice of motion filed on 2 February 2001 the Court orders that: 1. The prosecutor shall file and serve amended orders removing from the process filed allegations and particulars framed in the alternative.

2. The defendant's motion is otherwise dismissed. B. As to the defendant's motion filed on 31 January 2001 the Court orders that: 1. The defendant is required to produce the documents in accordance with the summons issued by the Industrial Registrar on 20 December 2000 to the extent specified in these reasons for judgment and to do so at a time and date to be fixed. 2. The balance of the summons and the defendant's notice of motion as to the balance of the summons is stood over for further consideration by the Court at 2.15 pm on Thursday 15 March 2001. 3. Liberty to apply as to the above matters in the meantime. C. The question of the costs of the two motions is stood over to 2.15 pm Thursday, 15 March 2001. ______________

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