Conclusion
45For those reasons, in my opinion, the summons was appropriately dismissed with costs.
46BASTEN JA : The background to this matter has been set out by Hodgson JA and need not be repeated. The order of the Court, delivered at the conclusion of the hearing, was that the application should be dismissed with costs.
47The application had three limbs. The first sought to set aside orders made by Haylen J on 17 April 2009, requiring the applicants to answer charges under the Occupational Health and Safety Act 2000 (NSW). The second sought to set aside "the judgment" of Marks J delivered on 19 November 2009: Inspector McGrath v GPI (General) Pty Ltd [2009] NSWIRComm 194. That would not have achieved any substantive result favourable to the applicant; the only orders made by his Honour were to dismiss motions filed by the applicants seeking to have the proceedings "quashed" or "permanently stayed", as they constituted an abuse of process. The third limb sought, "in the alternative" an order permanently staying the proceedings.
48In support of the first order, the applicant called in aid the following statement in the joint judgment in Kirk v Industrial Court (NSW) [2010] HCA 1; 239 CLR 531 at [30]:
"No application was made to the Court of Appeal for an order in the nature of certiorari quashing the orders made by the Industrial Court that required Mr Kirk and the Kirk company to appear to answer the offences charged. ... Because no application was made to quash the orders requiring appearance to answer the charges, it is neither necessary nor appropriate to examine whether those orders were made upon an application made 'in accordance with the rules', or to consider whether or how s 6 of the Summary Jurisdiction Act might affect the availability of an order in the nature of certiorari. However, it may be said that the matter should not have proceeded without further particularisation of the acts and omissions said to found the charges."
49There are a number of aspects of Kirk which need to be borne in mind in applying its principles to the present circumstances.
50First, the offences considered in Kirk arose under the predecessor to the Occupational Health and Safety Act 2000 . Secondly, although the procedural steps in respect of the laying of a charge were identified in s 168 of the Industrial Relations Act 1996 (NSW), which is still in force, the procedures were then found in the Supreme Court (Summary Jurisdiction) Act 1967 (NSW) ("the Summary Jurisdiction Act "), which has since been repealed and replaced by the Criminal Procedure Act 1986 (NSW), Ch 4, Pt 5. While there was provision in s 170 of the Industrial Act permitting amendments of proceedings, and dealing with irregularities, the provisions of the Summary Jurisdiction Act were said to prevail: s 168(4). Section 168 now has a different operation, which is by no means free from doubt. Thirdly, Kirk was not concerned with any interlocutory challenge to the procedure adopted in the Commission: it involved challenges to the convictions and sentences imposed when the charges were finally determined in the Industrial Court.
51No doubt there are circumstances in which a procedure by which criminal proceedings are commenced may be challenged and set aside. However, Kirk says nothing as to when such steps will be taken. In particular, it does not say, as the applicant appeared to submit, that the failure adequately to particularise the charge as initially laid should necessarily lead to the charge being rejected or an order based upon it being set aside.
52The starting point requires identification of the relevant statutory regime for prosecutions under the Occupational Health and Safety Act , as in force when the proceedings were commenced on 17 April 2009. Relevant provisions in Pt 7 of the Act provide that proceedings for an offence are to be dealt with summarily (s 105(1)), identify the persons authorised to prosecute (s 106) and fix the time for commencing proceedings (s 107). Relevantly for present purposes, s 105(1) provides that proceedings for an offence may be dealt with summarily before the Industrial Relations Commission in Court Session, known as the Industrial Court: Industrial Relations Act, s 151A.
53Section 168 of the Industrial Relations Act supplies the relevant procedure:
" 168 Criminal procedure
(1) Proceedings for any offence in respect of which proceedings are taken before the Commission in Court Session are to be dealt with summarily by the Commission.
(2) Part 5 of Chapter 4 of the Criminal Procedure Act 1986 applies to proceedings for an offence taken before the Commission in Court Session.
(3) Nothing in subsection (2) affects the operation of section 170.
(4) The provisions applied by this section prevail over any other provisions of this Part for the purposes of proceedings for an offence."
54Section 170 of the Industrial Relations Act , which appears in the same Part as s 168, is important for present purposes:
" 170 Amendments and irregularities
(1) The Commission may, in any proceedings before it, make any amendments to the proceedings that the Commission considers to be necessary in the interests of justice.
(2) Any such amendment may be made:
(a) at any stage of the proceedings, and
(b) on such terms as the Commission thinks fit (including, if it can award costs in the proceedings, terms as to costs).
(3) If this Act, the regulations or a rule of the Commission is not complied with in relation to the institution or conduct of proceedings before the Commission, the failure to comply is to be treated as an irregularity and does not nullify the proceedings, any step taken in the proceedings, or any decision in the proceedings.
(4) For the purposes of subsection (3), the Commission may wholly or partly set aside the proceedings, a step taken in the proceedings, or a decision in the proceedings."
55To understand the inter-relationship of these two provisions, it is necessary to determine the order in which the subsections of s 168 operate. In the order they appear, taking sub-s (3) before sub-s (4), so far as the procedures in the Criminal Procedure Act are picked up and applied to the Industrial Court, those procedures will prevail to the extent that they are inconsistent with s 170. Thus, because there is no inconsistent provision picked up by sub-s (2), there is nothing which can prevail over s 170, pursuant to sub-s 168 (4).
56There is a further question of construction which arises from the "irregularity" provision in s 170(3). In its terms, it only operates (relevantly) in respect of failure to comply with the Industrial Relations Act : there is no reference to non-compliance with other legislation, such as the Criminal Procedure Act . The question is, therefore, whether the Criminal Procedure Act , so far as picked up by s 168(2), is to be treated as part of "this Act" for the purposes of s 170(3).
57Whether that is so need not be finally determined, because the only part of the Criminal Procedure Act picked up by s 168, Pt 5 of Ch 4, contains no provisions in respect of amendment or irregularity. Indeed, the only relevant provision for present purposes is the requirement that an application for an order that a person appear to answer an offence charged "must be in accordance with the rules": s 246(2). According to the definition in s 3(1), " rules means rules made for the purposes of a court to which the relevant provisions applies". This Court was not taken to the Industrial Relations Commission Rules in operation at the date of commencement of the proceedings, namely 17 April 2009. Nor was it alleged that there was any non-compliance with any particular rule. Accordingly, the only basis upon which "jurisdictional error" could be asserted was a failure to comply with s 246(1)(a) of the Criminal Procedure Act (set out at [12] above), namely that the order sought by the prosecutor failed to charge an "offence".
58In the alternative, it is possible that reference was intended to be made to the Industrial Relations Commission Rules 1996, which were repealed only on 1 February 2010. Before Marks J, reliance appears to have been placed upon r 217B, which relevantly provided as follows:
" 217B Prosecutions
(1) Proceedings before the Commission in Court Session for an offence ... must, unless otherwise provided, be commenced by an application for an order under section 4(1) of the Supreme Court (Summary Jurisdiction) Act 1967 (as applied to the Commission by section 168 of the Industrial Relations Act 1996 ).
(2) The application must state:
...
(d) the Act and the section under which the defendant is alleged to have committed an offence, and
(e) the nature of the offence that is alleged."
59By April 2009, the Industrial Relations Act , s 168, had already been amended to refer to the Criminal Procedure Act , rather than the Summary Jurisdiction Act . Not having been advised of the amendment, Marks J thought it was necessary to construe s 168 of the Industrial Relations Act to refer to the Criminal Procedure Act and that s 68 of the Interpretation Act 1987 (NSW) permitted that to be done: [2009] NSWIRComm 194 at [10]. Whilst that was not necessary in relation to the Industrial Relations Act , there is a question as to whether the same course should be taken in relation to the rules. Section 68 of the Interpretation Act relevantly provides:
" 68 References to amended Acts and instruments
...
(3) Notwithstanding subsection (1), in any Act or instrument:
(a) a reference to an Act that has been repealed and re-enacted, with or without modification, extends to the re-enacted Act, as in force for the time being ...."
60The rules undoubtedly constitute an "instrument" for the purposes of this provision. Whether or not it is appropriate to describe the Summary Jurisdiction Act as having been "re-enacted' in Ch 4, Pt 5 of the Criminal Procedure Act was not raised in the present proceedings, but it may be assumed that the section operates. Accordingly, r 217B applied at the time the proceedings in the Industrial Court commenced. It followed that the application was required to state "the nature of the offence" alleged. Whether that imposed a greater obligation than that implicit in s 246(1)(a) of the Criminal Procedure Act may be doubted. No discussion was directed to this issue on the hearing of the application.
61The manner in which the relevant offences were identified in the applications for orders, as originally filed, appears at [14] above. The applications were supported by affidavits in support which identified, in some detail, the factual circumstances which were said to give rise to the offences. In some circumstances, an offence may be particularised by way of an affidavit: that was not, as it appears, the way in which the affidavits were relied upon in the present case. Indeed, it was the defendants who sought to rely upon the affidavits, and not the prosecutor. The argument that the affidavits restricted the scope of available particulars was addressed by Marks J at [14]-[18] and does not bear on the issues raised in this Court.
62The second complaint before Marks J, which was reiterated in this Court, was that the application failed adequately to particularise the acts or omissions constituting the relevant offences. There was, the applicants contended, a failure to "identify an essential factual ingredient of the actual offence", a phrase derived from the judgments of the High Court in John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42; 163 CLR 508. (It will be necessary to return to this decision below.)
63In the course of addressing this question, Marks J referred to sections of the Criminal Procedure Act , including s 11 (description of offences), s 16 (certain defects do not affect indictment) and s 15 (dealing with the application of the Part). His Honour considered (at [34]-[35]) that Part 2 (ss 15-27) applied, in its own terms, to proceedings for offences in the Industrial Court: see s 15(1). Those provisions did not apply by virtue of s 168 of the Industrial Relations Act and, therefore, there is an issue, not addressed before his Honour or in this Court, as to whether and to what extent those provisions were consistent with s 170 of the Industrial Relations Act .
64At [44] Marks J, having set out the particulars contained in the applications, stated:
"44 Without descending to any greater level of examination, it may be immediately observed that each and every ingredient of the offence created by the provisions of s 10(1) has been included in the charge and in the particulars of the charge. There is no essential ingredient that has been omitted, nor did the defendants contend otherwise.
45 The only question for determination is whether or not all of the 'essential factual ingredients of the actual offence' have been sufficiently identified."
65The substance of the complaint, both before Marks J and in this Court, was that the complaints with respect to the use and operation of fork lift vehicles at the premises, whilst complaining that people were put "at risk of injury", failed to specify the precise nature of the risk and, to the extent that they alleged a failure to provide and maintain a safe system of work, failed to particularise that which was required in order to provide a safe system of work. (Similar complaints were made of other elements of the charges.)
66The challenge having been argued before the decision of the High Court in Kirk , the applicants had sought to rely upon remarks made in my judgment in this Court in Kirk Group Holdings Pty Ltd v WorkCover Authority (NSW) [2006] NSWCA 172; 66 NSWLR 151 at [100]-[102], including a passage at [101]:
"To speak of a failure to provide 'systems of work' that were safe and without risks to health is of no assistance in identifying particular actions which should have been taken and were not. ... The failure to identify the relevant omissions with precision is likely to be of particular importance in circumstances where ... the opportunity for a defendant to escape conviction will be largely dependent upon establishing a defence under s 53 of the Occupational Health and Safety Act 1983 , which, at least in part, required the identification of steps which might have been taken in order to comply with the absolute obligation, but are said not to be reasonably practicable."
67Marks J did not dissent from those observations, but noted that there was a distinction between "the essential ingredients of the offence and the essential factual ingredients which apply to the charge [and] a consideration of what are appropriate particulars that a prosecutor might properly be required to disclose to a defendant": at [48].
68The comments in Kirk were not part of the ratio of the decision, it being determined that the supervisory jurisdiction of this Court should not be exercised until the Full Bench of the Industrial Court had been given an opportunity to address the issues raised: at [150]-[156]. Nevertheless, it is troubling that those comments, made with the agreement of Beazley JA, were apparently disregarded by the WorkCover Authority in April 2009, in formulating the charges in the present case, although the relevant judgment in Kirk had been delivered on 30 June 2006.
69These concerns were central to the reasoning of the High Court in Kirk . For example, the joint judgment stated at:
"16 ... Where reliance is placed by the employer on s 53(a), it would be necessary for the employer to satisfy the Industrial Court, to the civil standard of proof, that it was not reasonably practicable to take the measure in question. Such a defence can only address particular measures identified as necessary to have been taken in the statement of offence.
17 Section 53(a), in the context of proceedings for offences against ss 15 and 16, referred to the situation where it is not reasonably practicable for an employer to comply 'with the provision of this Act'. It is not to be understood as requiring an employer to negative the general provisions of ss 15 and 16 and to establish that every possible risk was obviated. It requires that regard be had to the breach of the provision which it is alleged constituted the offences. A breach or contravention of s 15 or s 16 is the measure not taken, the act or omission of the employer."
70The assumption of the applicants was that the reasoning of the High Court in Kirk had effectively elevated the specified requirements, missing from the present particulars, into essential elements of the offence charged. That may be accepted, but it does not follow that the omissions cannot be rectified in this case, or that Marks J was incorrect in rejecting the challenge to the proceedings as they stood before him. In concluding that the concerns raised did not "go to the validity of the charge", his Honour also noted that "there may well be a need for greater particularity, as was conceded by counsel for the prosecutor": at [59]-[60].
71The application to particularise in further detail was not filed until 6 May 2010, three months after the judgment of the High Court in Kirk . The delay was not sought to be justified, despite the fact that it would clearly be inappropriate for a prosecuting authority to decline to follow guidance given by this Court for four years, in the hope that the High Court might give other guidance, more favourable from its perspective.
72On the other hand, the applicants commenced proceedings in this Court one month after the application had been made to amend, with the result that that application has not been considered by the Industrial Court. Accordingly, the application in this Court must be addressed on the basis that if particulars adequate to comply with the requirements identified by the High Court in Kirk were given, they could not save the present proceedings from invalidity. It is necessary to consider what the result would be of the application of the relevant provisions of the Criminal Procedure Act and s 170 of the Industrial Relations Act .
73Before undertaking that task, it is convenient to identify that aspect of "jurisdictional error" which may be relied upon by the applicants. Reference to "the supervisory jurisdiction" tends to obscure an important distinction between separate functions exercised by the Court, albeit in each case in its original, and not its appellate, jurisdiction. Review for "jurisdictional error" frequently involves the identification of a decision of the court or tribunal under review and a claim for relief in the nature of certiorari, quashing or setting aside that decision. That step will require identification of an operative decision affecting the rights or interests of a party: interlocutory, procedural orders may not qualify.
74The second function involves this Court reaching a decision itself as to whether the court or tribunal has jurisdiction to deal with a particular matter. That may occur before any decision has been made which might be reviewed. The usual form of relief in such a case will be a restraining order in the nature of prohibition, or an injunction. Except in unusual circumstances, such relief will not be granted in respect of proceedings in a court which has power to determine its own jurisdiction. Where the court below has not been given an opportunity to decide the issue as to its jurisdiction, relief may well be refused as premature. A different approach was taken in relation to proceedings in the Industrial Court when a strong privative clause appeared to preclude any form of review of a decision, once made: see, eg, Solution 6 Holdings Ltd v Industrial Relations Commission of NSW [2004] NSWCA 200; 60 NSWLR 558. That departure from usual principles of restraint, as appears from the reasoning of the High Court in Kirk, was based on an erroneous assumption as to the legislative power of the State to prevent review for jurisdictional error.
75The only operative orders, those of Haylen J, were made ex parte. The present proceedings are not directed so much to discerning "error" on his Honour's part, but invited this Court to determine on its own view that the orders made exceeded the jurisdiction of the Industrial Court. That exercise is available in principle.
76It may be accepted that convictions based on the charges as set out in the orders of Haylen J (and as currently particularised) would be invalid, in accordance with the principles established in Kirk in the High Court. Accepting that the Industrial Court could not validly proceed to convict without further particulars, the applicant invites this Court to proceed on the basis that particulars adequate to comply with Kirk could not save the proceedings, despite the powers of the prosecutor to "amend" the charges at any stage, pursuant to s 170 of the Industrial Relations Act . The applicants' argument must be that, because the statutory time limit precludes the prosecutor filing fresh charges, the power of amendment does not extend to the addition of essential factual allegations.
77The only authority relied on by the applicant in support of its claims was John L (above at [62]). However, this case was decided by the majority on the basis that there was no statutory or general power to amend the charge, or require the supply of necessary particulars. Thus Mason CJ, Deane and Dawson JJ stated (pp 519-520):
"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 nineteenth century United Kingdom legislation which was enacted to render summary proceedings before justices less open to technical objection ... was substantially adopted in New South Wales: see the discussion in Ex parte Lovell; Re Buckley [(1938) 38 SR(NSW) 153 at 167-174] .... 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 .... It is, however, unnecessary to pursue that particular question here since, putting to one side s 6 of the Summary Jurisdiction Act ..., it is not suggested that Yeldham J was in error in holding that such of those legislative provisions which might have operated to cure the defect in the information in the present case were not applicable in respect of an information laid before, or to proceedings in, the Supreme Court in its summary jurisdiction. That being so, the common law requirement remains that an information must at the least condescend to identifying the essential factual ingredients of the actual offence."
78Section 6 of the Summary Jurisdiction Act , now repealed, is reflected in s 16 of the Criminal Procedure Act . However, the majority held that it did not apply to proceedings commenced under the Consumer Protection Act 1969 (NSW), with which their Honours were there dealing. Brennan J dissented because he held that s 6 could apply. Toohey J also dissented, on the basis that whether or not s 6 operated, particulars could have been supplied under general law principles. Brennan J agreed with that view and continued (p 529-530):
"But in any event, s 6(1) of the Summary Jurisdiction Act is conclusive. That sub-section operates not to deem defective applications to be sufficient, but to avoid the consequences of defects in applications."
79Once it is understood that the majority in John L expressly determined that case without reference to the statutory curative provisions, which operate in the present case, it is apparent that John L does not govern the present proceedings. Its operation in relation to prosecutions in the Industrial Court was discussed in Rockdale Beef Pty Ltd v Industrial Relations Commission (NSW) [2007] NSWCA 128; 165 IR 7 at [110]-[123]. See also Knaggs v Director of Public Prosecutions [2007] NSWCA 83; 170 A Crim R 366 at [82] (Campbell JA, Mason P and Tobias JA agreeing).
80In circumstances where no irreparable procedural unfairness has been suffered by the applicants (they not having faced trial or yet pleaded to the charges) and where that which constitutes an essential factual allegation, as opposed to a desirable degree of particularisation of facts alleged, is a distinction involving matters of evaluative judgment, the contention should be rejected. The underlying and important premise of criminal pleading is that no person should be convicted without procedural fairness, nor for an offence not known to the law. Neither principle will necessarily be breached: the orders by which the proceedings were commenced were not invalid.
81If this conclusion were wrong, the validity of criminal proceedings would be at risk of being returned to pre-Jervis's Acts technicalities, despite the clear intention of s 16 of the Criminal Procedure Act . It may be noted that the principal mischief to which Jervis's Acts were devoted was not the inadequate commencement of proceedings, but convictions based on technical irregularities.
82It must also be noted that not all the arguments addressed above were raised, or at least raised in those terms, by the applicant. However, one lesson from Kirk is that this Court may be obliged to consider arguments going to the jurisdiction of a court subject to jurisdictional limitations, even if those matters were not raised by either party before it.