Determination
39Both issues are interrelated because in the end, whether the CANs are valid on the one hand, or whether further particulars should have been ordered on the other, depends, at least in part, upon identification of the essential elements of the statutory offence. This, of course, is a question of statutory interpretation.
40The cases seem to admit a distinction between the sufficiency of the particularisation of the offence and the manner of committing it which must appear on the face of the CAN, and the entitlement to an order for the provision of further particulars: see De Romanis at 291-2; approved in John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508 at 519 - 20. This distinction is recognised in Kirk at [26] as set out above. As John L makes clear it is essential that the CAN provide "the accused with the substance of the charge which he is called upon to meet". Moreover, in Kirk at [27] legally sufficient particulars required identification of the specific act or omission relied upon as constituting a breach of ss 15(1) and 16(1) OHS Act. This was necessary to put the accused persons in a position to know whether a defence under s 53 of that Act was available: Kirk at [27] and [28]. Section 11 of the Criminal Procedure Act "does not dispense with the necessity of specifying the time, place and manner of the defendant's acts or omissions": Johnson v Miller at 486.
41The start of the plaintiffs' case on the first issue is a point not decided in "Kirk". At [30] the Court observed that no application was made for an order quashing the orders of the Industrial Court requiring the accused person "to appear to answer the offences charged ". It was "neither necessary nor appropriate" for their Honours to answer that question in those circumstances. But their Honours said "the matter should not have proceeded without further particularisation of the Acts and omissions said to found the charges".
42All of the proceedings in the present case were commenced in accordance with s 172 of the Criminal Procedure Act "by the issue and filing of a Court Attendance Notice". Under s 175(3)(d) a CAN "must ... require the accused person to appear before the Court at a specified date, time and place". The plaintiffs say that the question not decided in Kirk arises for determination in this case. This is not a matter which is free from authority binding on me. The Court of Appeal has twice considered the question. In GPI (General) Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 157; 207 IR 93, and in Area Concrete Pumping Pty Ltd v Childs (WorkCover) [2012] NSWCA 208. In the latter case the Chief Justice reviewed GPI (General) and other authorities, and concluded at [47]:
In these circumstances GPI (General), in my opinion, is authority for the proposition that a failure to adequately particularise a charge will not without more render it a nullity and that having regard to the provisions of s 16(2) of the CP Act and s 170(3) of the IR Act, defects can be cured by amendment to the charge or subsequent particularisation, at least provided the charge describes an offence known to law and that procedural unfairness is not caused to the defendant by the amendment.
Section 170 empowered the Industrial Court to allow an amendment. Sections 21 and 22 of the Criminal Procedure Act permit amendment of an indictment if the Court is of an opinion it can be done without injustice. An indictment for the purpose of ss 21 and 22 includes a CAN. There is no suggestion here that the offences with which the plaintiffs are charged are not "known to law". Before considering the question of procedural unfairness, it is appropriate to say something more about GPI (General).
43Hodgson JA at [33] made the point, as recognised by the Chief Justice in Area Concrete, that in Kirk the High Court did not rule that "particularisation had to occur at the time the charge was first brought". His Honour also pointed out that although in John L the majority seemed to hold that the lack of particularity in a charge as first brought was fatal, the statutory regime there did not include provisions in the nature of ss 11 and 16(2) of the Criminal Procedure Act. His Honour also referred to Johnson v Miller at 490 where Dixon J said:
There is more than one means by which the occurrence or transaction, the subject of the charge, may be identified and distinguished from other occurrences or transactions alleged to have occurred, equally capable of supporting the complaint. A direction may be given that particulars should be furnished; the complainant may be required to elect among the instances or transactions he proposes to prove, and to state definitely to the court which of them is to be treated as the subject of the complaint; or the complaint may be amended so as to indicate one to the exclusion of the others. Although no statutory provision exists enabling courts of summary jurisdiction to require the furnishing of particulars, it is well recognised that they may do so if, as sometimes but probably not often happens, the interests of justice make it necessary (Citations omitted)
At 497 - 8 Evatt J expressed the view that even absent express statutory power, courts of summary jurisdiction had authority to order further particulars to be furnished. McTiernan J was of the same view (see 501). Subject to considerations of natural justice as referred to by the Chief Justice in Area Concreting, and even assuming for the moment that it was incumbent upon the prosecution to provide particulars of the steps or precautions the accused persons ought to have taken to prevent the commission of the primary speeding offence, the CANs were not necessarily liable to be quashed because any such "defect" could be cured by an order for particulars, and if the learned magistrate refused (as his Honour did) he was subject to correction by this Court on an application for leave to appeal. I would refuse the application for judicial review.
44It is convenient now to turn to the question of statutory interpretation. Is the identification of relevant reasonable steps or reasonable precautions an element of the offence? As Basten JA pointed out in Western Freight Management at [48] "Kirk broke no new ground". His Honour stated that Kirk was decided by the application of established principle "that a statement of an offence" must identify "the essential ingredients of the actual offence". The principle is derived from John L, Basten JA went on to say:
The statement of the statutory offence did not require the incorporation into the offence of any relevant element of the defence. The significance of the reference to the defence was that, unless the putative offender were told what conduct constituted the offence, albeit the conduct was by way of omission, the defendant would not be in a position to say whether there was a reasonably practicable course for remedying the alleged omission.
45And as McColl JA, distinguishing Western Freight Management from Kirk, said at [17]:
No ingredient of the s 56 offence concerned taking steps to prevent the contravention. Rather, the actus reus of the s 56 contravention was the overloading, in this case of the tri-axle, not any matter which went to requiring the applicant to take reasonable steps. That was the subject of its s 87 defence. As the primary judge said (at [16]), once the s 56 contravention was particularised in the penalty notice and the court attendance notice, the applicant knew the charge it had to meet: see also Kirk at [26].
46Leeming JA at [60] pointed out that an obligation to particularise within the CAN, the steps asserted to have been reasonable which were not taken could only arise "if an element of the offence was ... the absence of those steps". His Honour rejected a formulation of the offence in terms that the accused person "did not take all reasonable steps to prevent the axle overload".
47Basten JA and Leeming JA each said that natural justice may require the prosecutor "at some stage" to specify steps which were reasonable and which had not been taken: [50] - [51] Basten JA; [61] Leeming JA.
48I am of the view that the decision in this case is governed by the reasoning in Western Freight Management. The actus reus of the offending covered by cl 156(3) of the regulation is that the operator commits an offence if whilst a driver, or vehicle, is subject to its control, "the driver commits a speeding offence while driving the vehicle". Effectively the statute creates a form of vicarious criminal liability notwithstanding the common law's antipathy to such a concept. See Presidential Security Services of Australia Pty Ltd v Brilley [2008] NSWCA 204; 73 NSWLR 241 at 265 [140] to 268 [153] per Ipp JA. Vicarious liability is well recognised as a form of strict liability, the expression preferred by the learned Magistrate: Carolyn Sappideen and Prue Vines, Flemings the Law of Torts (Thomson Reuters 10th Ed, 2011) at page 437 (19.10).
49MFI 2 is a sample of the cl 156(3) CAN. It is not in dispute that it adequately particularises the elements of s 156(3). Nor is it disputed that it contains no averment, or particulars, of, or related to, the elements of s 156(6). For the reasons given by the judges in Western Freight Management s 15 of the OHS Act is not analogous to cl 156. In broad terms, s 15(1) imposed a duty to ensure, inter alia, safety at work. Section 15(2) expands on the content of that duty. Clearly a mere averment that an employer failed to provide a safe system of work, for example, may inform as to the nature of the offence but it does not inform as to the manner in which it has been committed. Unless the specific act or omission relied upon as constituting the breach is particularised, the accused person has no opportunity to rely upon a defence under s 53 of that legislation that it was not reasonably practicable for it to comply with s 15. This required particulars of the measure that should have been taken, but was not.
50Clause 156(3) is different. The offence is committed, for instance, when a driver commits a speeding offence whilst under the control of the accused person. The question of reasonable steps does not come into it.
51The language of cl 156(6) provides a defence if the accused person establishes the conditions set out in paragraph (a) and (b). Those conditions include taking all reasonable steps to prevent the driver speeding, or demonstrating there were no steps that the accused could reasonably have been expected to have taken to prevent the driver from speeding. These are elements of the defence to be established by the accused not elements of the offence to be established by the prosecution. It may be that natural justice will require the prosecution to point to a step not taken as Basten and Leeming JJA say in their separate reasons. As Basten JA put it at [50] procedural fairness may require the prosecution to indicate a step not taken before the defence is rejected. But the practical content of procedural fairness will depend upon the circumstances of the case including in particular the nature of the evidence raised or introduced by the accused, which bears the onus.
52In my opinion, the heading to cl 156, which does not form part of it, makes no difference in this case. The clarity of the language mitigates against whatever assistance the heading might otherwise provide.
53In my opinion s 178(1) of the Act falls into the same category. Again, it establishes a vicarious criminal liability: if the corporation commits an offence so too does, inter alia, the Director and he or she is liable for the same punishment. The sample CAN in respect of these offences is MFI 3. It sets out all of the elements of the Cl 156(3) offence and avers that the named defendant is a director of the corporation. Reliance is placed on s 178 as well as Cl 156. It does not specifically or separately aver that the corporation has committed an offence but no complaint is made about that, and reading the CAN as a whole that formal omission is of no moment. Again it says nothing about the matters referred to in s 178(7) which establishes the defence. It says nothing about how the defendant was in a position to influence the conduct of the company in relation to the actual offence, or what reasonable precautions, or due diligence, was required to prevent the commission of the actual offence.
54However the interpretation unanimously favoured by the Court of Appeal in Western Freight Management is equally applicable to s 178 of the Act and it is unnecessary to restate it.
55Western Freight Management, of course, was concerned with the interplay of two provisions in the Act being ss 56 and 87. However, s 56(3) effectively incorporated the provisions of s 87 by use of the expression "has the benefit of the reasonable steps defence". Section 87 described the content of that "reasonable steps defence" in various circumstances. There is no appreciable difference in meaning to be deduced from the structure of the provisions in question in Western Freight Management when compared with those in question here.
56For these reasons I conclude that the CANs are not liable to be quashed for invalidity and the learned magistrate's decision to dismiss the plaintiffs' application is not undermined "on [a] ground that involves a question of law alone". I would have granted leave but dismissed the appeal.
57Given these conclusions it is unnecessary for me to decide the points of contention raised by the defendant. I have already made clear that I would reject the argument that the application below was beyond power or outside the jurisdiction of the Local Court. In substance, the defendant conceded that either s 28 of the Local Court Act or s 219(3) Criminal Procedure Act conferred power to deal with the application. In my judgment an erroneous reference to Part 4 of the Local Court Act is of no moment and made no difference to the legality of the proceeding.
58As to the argument that s 53(3)(b) did not apply because the order made by the magistrate was final. With respect, the submission is entirely misconceived. Contrary to the submission of learned counsel, in Australian law it is not "the strict legal effect of the application" which is in question, rather "it is the legal force of the judgment in question, and not its practical effect, that has to be considered determining whether or not the judgment is a final one" (citations omitted). Sanofi at 152. The substance of the magistrate's order dismissing the application determined nothing finally. Even had the magistrate acceded to the application to dismiss the proceedings because the CANs were bad for want of sufficient particularisation, fresh CANs could have been issued subject to the provisions of the applicable statute of limitations, s 181 of the Act.
59In the event the proceedings must be dismissed. My provisional view in respect of costs is that the s 69C Road Transport (Safety and Traffic Management) Act 1999 matter makes no difference to the manner of the exercise of the court's discretion as to costs. For this reason I will pronounce the usual order for costs in favour of the defendant, but allow liberty to the plaintiff to apply for a variation of that order. I am adopting this approach, lest on consideration the plaintiffs decide to make no special application.
60My orders are:
(1)Proceedings dismissed;
(2)Plaintiffs to pay the defendant's costs on the usual basis forthwith after they have been agreed or assessed.
(3)The parties to have liberty to apply for a variation of order (2) within 14 days of today's date by motion supported by written submissions not exceeding 3 pages in length and any necessary affidavit.