Inspector Castro v Stratabuild Pty Ltd

Criminal Procedure Act 1986 Industrial Relations Act 1996 LEGISLATION CITED: Industrial Relations Commission Rules 1996 Occupational Health and Safety Act 1983 Occupational Health and Safety Act 2000

Downey v Acting District Court Judge Boulton (no. 5) [2010] NSWCA 240 Inspector Hamilton v John Holland Pty Ltd [2010] NSWIRComm 72; (2010) 194 IR 189 John Holland Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 338 John L Pty Limited v Attorney-General (NSW) (1987) 163 CLR 508 Johnson v Miller (1937) 59 CLR 467 Kirk v Industrial Relations Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1; (2010) 239 CLR 531 Lane v Morrison [2009] HCA 29; (2009) 239 CLR 230 CASES CITED: Mario Anthony Rugari [2001] NSWCCA 64; (2001) 122 A Crim R 1 MRW v The Queen [1999] NSWCCA 452; (1999) 113 A Crim R 308 Ratten v The Queen (1974) 131 CLR 510 Regina v Puddick (1865) 4 F&F 497 Rockdale Beef Pty Ltd v Industrial Relations Commission of NSW; [2007] NSWCA 128; (2007) 165 IR 7 Rodney Morrison v Powercoal Pty Ltd [2003] NSWIRComm 416; (2003) 130 IR 364 R v Halmi [2005] NSWCCA 2; (2005) 62 NSWLR 263 Whitehorn v The Queen (1983) 152 CLR 657

HEARING DATES: 18 November 2010, 13 December 2010, 23 December 2010 Written Submissions: 3 November 2010, 15 November 2010, 17 November 2010, 30 November 2010, 3 December 2010, 21 December 2010

Mr C Magee of counsel (Prosecutor) WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: Mr M Luitingh of counsel (Defendants) Michael Taylor Solicitor and Public Notary

Prosecution under s 8(1) and in the alternative s 10(1) of the Occupational Health and Safety Act 2000

Prosecution under s 26(1) and s 8(1) and in the alternative s 26(1) and s 10(1) of the Occupational Health and Safety Act 2000

1 Stratabuild Pty Ltd and Mr Carlos Acevedo ("the defendants") have filed a joint notice of motion in the above matters seeking: 1. An order that the Order and Application for Order filed by WorkCover Authority of NSW on [date] (sic) be dismissed.

2. An order that WorkCover Authority of NSW pay the defendant's costs of this Application and of the proceedings.

3. Any other order or further order as the Court deems necessary. 2 The notice of motion does not provide any grounds or reasons upon which it was said that the applications for order should be dismissed. 3 An affidavit of Ms Sharee Webb, solicitor for the defendants in these proceedings, was filed in support of the notice of motion. The affidavit did not specify any grounds or reasons upon which it was said that the applications for order should be dismissed, other than as contained in the last five paragraphs of the affidavit, which were as follows: 9. On 3 February 2010, the High Court of Australia delivered its decision in the matter of Kirk v Industrial Relations Commission of NSW; Kirk Group Holdings v WorkCover Authority of NSW (Inspector Childs) [2010] HCA 1 93 (sic) February 2010 ("Kirk").

10. Annexed hereto and marked "C" is a copy of the Kirk decision.

11. On 12 October 2010 the Applicant (in the motion) provided the Respondent to motion, via facsimile and mail, with a précis of its submissions. Annexed hereto and marked "D" is a copy of that letter.

12. WorkCover has not provided the defendant with any further particulars of the charge other than those contained in the Application for Order.

13. In light of the foregoing and for the reasons set out by the defendant in annexure "D" in support of this Application, and as will more fully appear in its written submissions, the defendant seeks the Court make the orders as sought herein. 4 Relevantly, annexure "D" was a letter from the defendants' solicitors to the WorkCover Authority of New South Wales dated 12 October 2010 which contended that "the charges laid by the prosecution are incurably defective in its process". The letter referred to the charges and the particulars in each matter, to the judgment of the High Court of Australia in Kirk v Industrial Relations Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1; (2010) 239 CLR 531, and to s 28 of the Occupational Health and Safety Act 2000 (the "OHS Act"). The letter contended that: The High Court has in our view has (sic) now made it abundantly clear that a prosecutor must plead with 'great' precision what it is alleged should have been done.

The statements of offences as particularised do not identify what measures Stratabuild could have taken but failed to take. They do not identify an act or omission which constitutes a contravention by Stratabuild of s 8(2) (sic). Indeed, on a careful reading of the particulars, the 'indictment' does no more than provide a description of events rather than articulate the specific offence by Stratabuild. Due to the inadequacy of WorkCover's particulars of the offence, Stratabuild does not know what measures it is required to prove were not reasonably practicable to make out a defence pursuant to s 28 of the 2000 Act. 5 The letter concluded by stating:

It is submitted that following Kirk, the Order and Application for Order filed by WorkCover in these proceedings are invalid and do not vest the Industrial Court of New South Wales with jurisdiction and, as such, must be dismissed with costs. 6 Mr M Luitingh of counsel appeared for the defendants and applicants on the motion. 7 Mr C Magee of counsel appeared for Inspector Vince Castro ("the prosecutor") and respondent to the motion and submitted that the Court should refuse to make the orders sought in the notice of motion. Background 8 On 19 March 2010, pursuant to s 246(1) of the Criminal Procedure Act 1986 ("CP Act") as applied by s 168 of the Industrial Relations Act 1996 ("IR Act"), the defendants were ordered to appear before the Court to answer the offences charged in the applications for order. 9 On 24 August 2010, the defendants pleaded not guilty to each of the charges. 10 The trial has been set to commence on 15 February 2011. Applications for order 11 The defendant Stratabuild Pty Ltd was charged with a breach of s 8(1) of the OHS Act by failing to ensure the health, safety and welfare at work of all its employees, and in particular, Ivan Vega. The particulars of the risk were that: (a) the health and safety of employees of the defendant was put at risk of injury from falls whilst accessing work areas at heights and working at height at the Site. 12 The particulars of the acts or omissions of the defendant in failing to eliminate the risk are that:

(b) The defendant failed to provide and maintain a safe system of work in relation to accessing work areas at heights and working at heights at the Site in that it failed to undertake measures as follows: (i) The provision of scaffolding, an elevated work platform or a harness and lanyard system to enable its employees to access work areas including the balcony of apartment number 22 at the Site;

(ii) The completion of a risk assessment of the hazards associated with the use of a ladder to access work areas including balconies at heights in excess of 6 metres at the Site;

(iii) The completion of a risk assessment of the hazards associated with gaining access to work areas and working from areas including balconies at heights in excess of 6 metres at the Site;

(iv) The provision of a Safe Work Method Statement for tasks involving accessing work areas and working from heights in excess of 2 metres at the Site, that detailed the requirements: (a) for the use of scaffolding, elevated work platforms or harness and lanyard systems;

(b) that portable ladders were not be used without a fall restraint systems such as a harness and lanyard systems;

(c) that portable ladders not be used where the top of the ladder did not extend above the level of the working platform, balustrade or roof by a distance of not less than 1 metre;

(d) that whilst ascending portable ladders the person must have both hands free to grip the ladders and persons should not carry paint pots, brushes, drop sheets, tools or other equipment in their hands whilst climbing portable ladders; (c) The defendant failed to provide information, instruction and training in relation to accessing work areas at heights and working at height at the Site in that it failed to undertake measures as follows: (i) provide Mr Vega with information in respect to the risks of falling associated with the use of ladders for accessing work areas and the performance of work at heights greater than 2 metres;

(ii) provide Mr Vega with instruction that portable ladders were not to be used for accessing work areas and the performance of work at heights greater than 2 metres without a fall restraint system such as a harness and lanyard systems;

(iii) provide Mr Vega with instruction that portable ladders were not to be used where the top of the ladder did not extend above the level of the working platform, balustrade or roof by a distance of not less than 1 metre;

(iv) provide Mr Vega with instruction that whilst ascending portable ladders he must have both hands free to grip the ladders and he should not carry paint pots, brushes, drop sheets, tools or other equipment in his hands whilst climbing portable ladders;

(v) provide Mr Vega with training in the use of a scaffolding, elevated work platforms or harness and lanyard systems for accessing work areas and the performance of work at heights greater than 2 metres;

(vi) provide Mr Vega with training in the requirements of a Safe Work Method Statement for accessing or working at heights, or the need for and how to complete a JSA or to undertake a risk assessment; (d) The defendant failed to provide supervision to Mr Vega in relation to accessing work areas at heights and working at height at the Site in that it failed to undertake measures as follows: (i) to supervise Mr Vega in respect to the devising of the means which he intended to utilise to access the balcony of apartment number 22 at the Site;

(ii) to supervise Mr Vega to ensure that he undertook a risk assessment or completed a Job Safety analysis prior to accessing the balcony of apartment number 22 at the Site;

(iii) to supervise Mr Vega to ensure that he did not utilise a 6 metre long portable ladder to access the balcony of apartment number 22 at the Site;

(iv) to supervise Mr Vega to ensure that he utilised scaffolding, an elevated work platform or a harness and lanyard system to access the balcony of apartment number 22 at the Site. As a result of the defendant's failures its employee Ivan Vega was placed at risk of injury.

As a result of the defendant's failures its employee Ivan Vega suffered fatal injuries. 13 In the alternative to the charge pursuant to s 8(1) of the OHS Act, the defendant was charged with a breach of s 10(1) of the OHS Act by failing to ensure that the premises were safe and without risks to health to people who were not its employees, in particular Ivan Vega, while they were at the premises used as a place of work, being the Site. 14 The particulars of the risk and the particulars of the acts or omissions of the defendant in failing to eliminate the risk were in identical terms to the particulars provided in respect of the s 8(1) charge. 15 Mr Acevedo was charged with a breach of s 8(1) by virtue of s 26(1) of the OHS Act. Mr Acevedo was a director of Stratabuild Pty Ltd and thus involved in the management of the corporation. He is therefore deemed to have contravened the same provisions of the OHS Act as are alleged to have been contravened by the corporation. The particulars of the charges alleged against Mr Acevedo are in identical terms to those set out in the charges brought against Stratabuild Pty Ltd, save that in addition there is an allegation that Mr Acevedo "was a director of the corporation." Submissions of the defendants 16 The submissions of the defendants essentially were that there was a duty upon the prosecutor to clearly put to the defendants the charges and the failures of which they are guilty within the circumstances supporting the charges and that it is not sufficient to merely plead in general terms the failures referred to in the OHS Act that may or may not apply to the defendants. It was imperative for the defendants to know precisely the allegations made against them at the commencement of the proceedings. Mr Luitingh submitted that this had not occurred and that the prosecutor had therefore not discharged its duty. 17 In written submissions, counsel submitted: The reasons for Strata seeking the relief of dismissal of the Order and the Application for Order are based upon the principles enunciated by the High Court in Kirk and are set out more fully and conveniently below: (a) The proper approach is that a prosecution under the 1983 Act, and prosecutions are only possible where there is an 'identifiable" risk paragraph [12] in Kirk and hence a prosecution is invalid if the initiating document does not specify with particularity what should have been done by the accused or what the accused failed to do to obviate the risk(s);

(b) The charge will be defective where there has been a failure, on the part of an employer, to take a particular measure [12] (ie what the employer should have done in that instance);

(c) Section 15 and 16 and contravened where there has been a failure, on the part of the employer, to take particular measures to prevent an identifiable risk eventuating, that is, the relevant act or omission which gives rise to the offence [14];

(d) 'the necessity for a statement of offence to identify the act or omission of the employer said to constitute a contravention of Section 15 or 16 [15];

(e) the application of the defence provisions in Section 53 of the 1983 Act, which are equally applicable to the 2000 Act. For the defendant to prove that it was not 'reasonably practicable' to take 'the measures in question', it is said at paragraph [16] of the Kirk judgment to imply that: "... Such a defence can only address particular measures identified as necessary to have been taken in the statement of offence....".

(f) The consequences of a failure to particularise a specific allegation has as a result the fact that under Section 53 of the 1983 Act, an employer would have to establish that "every possible risk was obviated" which shifts the burden of proof onto the Defendant without the prosecution establishing its case beyond reasonable doubt.

(g) the High Court has now made it abundantly clear that a prosecutor must plead with 'great' precision what it is alleged should have been done. (Counsel's emphasis). 18 The written submissions proceeded to analyse, in substantial detail, the charge and each of the particulars to the charge and the deficiencies in respect of each particular. Counsel's approach can be typified by reference to the following submissions: 1. The charge: It is alleged that the health and safety of employees at the defendant was put at risk of injury whilst accessing work areas at heights and working at height at the site.

2. The Deficiency: There is no specificity in this allegation, it does not tell the employer what he should have done and it simply echoes section 8(1)(c) of the Act. The said particulars do not identify the deficiency in the system of work or the measures which Strata should have taken to address it.

3. The Charge: The defendant failed to maintain in provide a safe system of work in relation to accessing work at heights and working at height at the site in a trial to undertake measures as follows: (a) the provision of scaffolding, and elevated work platform or harness and lanyard system to enable its employees to access work areas including the balconies of apartment number 22 at the site.

(a-1) The deficiency: this particular does no more than establish a basic principle that a general process or methodology used in the painting industry was not used. Most importantly it does not allege what the defendant should have done. The kind of particularity that a defendant would be entitled to in these circumstances would be that the defendant did not: (i) have a site meeting to identify areas to be worked on, on that day or any other identified relevant period, including perhaps apartment 22;

(ii) identify and assign employees to a particular work area;

(iii) identify at what height level the work was to commence;

(iv) identify who the supervisor would be and what the work teams would comprise of and what functions will be performed and by what personnel. ie person A will carry material and equipment to the balcony, person B will hold the latter (sic); person C will oversee safety measures and then identify the safety measures;

(v) identify what tools were to be used in the course of carrying out works at the different location, that would require identification of the actual site to be worked on and an identification of the tools that were to be used in carrying out the works. 4. The Deficiency: To simply state that the elevated platform was not used, is to do no more than to identify a general practice in relation to the painting industry at heights, it also doesn't specify the height and what practice ought to have been followed at that specific height or how and when and where it should have been positioned. It is submitted that this "particular" falls short of the requirements of Kirk. 5. The Charge: Complete a risk assessment of the hazards associated with the use of the ladder to access work areas including balcony's at heights in excess of 6 m at the site.

6. The Deficiency: This suffers from the same defect as the previous charge. It does not state when the risk assessment should have been done, it does not state how the risk assessment should have been done, it does not state how the risk assessment should have been communicated to the work people, whether it be by the supervisor or by way of a site meeting. It does not state what the assessment itself should have comprised of what instructions ought to have been provided to the work people given the circumstances. These are all facts which the defendant would be entitled to know if it were to be put into a position where it was going to refute the allegation and rely on facts that would support a statutory defence, what evidence it should call to refute the allegations and how it can prepare its defence or for that matter its mitigation evidence. The allegation in the charge is an unenlightening allegation about general practices. 7. The Charge: the provision of a safe work method statement forecasts involving accessing working areas and working from heights in excess of 2 m at the site that detailed requirements for (a) the use of scaffolding, elevated work platforms or harness and lanyard systems

(b) portable ladders were not to be used without the full restraint system such as a harness and lanyard system;

(c) portable ladders were not to be used where the top of the ladder did not extend above the level of the working platform balustrade or roof by distance of not less than 1 m;

(d) ascending portable ladders that person is that both hands free to grip the ladders and person should not carry my parts prices drop sheets tools or other equipment in their hands was floored dining portable ladders.

8. The Deficiency: Whilst it may appear that allegations such as these address the detail required in Kirk they clearly do not for the following reasons;

(a) There is no indication as to when, where, how or in what manner a safe work method statement was or was not communicated to the worker in the present circumstances. Is this a reference to a work method statement on the day? Is this a reference to a work method statement provided at the commencement of employment? Or any training? Is it alleged that it should have taken place on a relevant identified period. Is it alleged that no work method statement was provided in relation to that specific site and the work that was to be carried out on that day or what period or time frame, when should it have been done? The defendant is simply not in a position to understand what allegation is being laid at his door in order to make use of the statutory defence.

(b) the problem with ( b) (c) and (d) is that it is not site area specific. WorkCover knows exactly where the accident took place, WorkCover also know that the defendants had been working at that site for more than one year. From the charges levelled in these paragraphs , the defendant does not know with relation to what was being carried out on that day what it is alleged was omitted. The defendant is also not advised as to when these work method statements and safety instructions ought to have been given; Is it alleged that it should have been given at the commencement of the contract 12 months earlier? Is it alleged that it should have been given at frequent intervals as a reminder? Is it alleged that it should be given at the commencement of every day? Is it alleged that as work commences on that specific area the instruction should be given and that a supervisor should be supervising two people out of a workforce of 10 or 20 working all over the site ? What are the allegations being put to the defendant is not possible to determine that from these allegations. 19 Counsel submitted that it therefore followed that the application for order did little more than follow the words of s 8 of the OHS Act and that the particulars were inadequate and thus defective in that they did not satisfy the requirements outlined in Kirk. 20 In summary, it was contended that the statements of offences as particularised did not identify what measures the defendants could have taken but failed to take. They do not identify an act or omission which constitutes a contention by the defendants of s 8(2) (sic) (I note that the prosecutor does not allege any breach of s 8(2)). It was further submitted that on a careful reading of the particulars, the "indictment" did no more than provide a description of the events, rather than articulate the specific offence committed by the defendants. It followed therefore that due to the inadequacy of the particulars of the offence, the defendant did not know what measures it was required to prove were not reasonably practicable to make out a defence pursuant to s 28 of the OHS Act. 21 Mr Luitingh also submitted that the prosecutor had a duty to ensure a fair trial and consider material that was capable of inculpating and exculpating the guilt of the accused. Counsel made reference to authorities such as Regina v Puddick (1865) 4 F&F 497; Whitehorn v The Queen (1983) 152 CLR 657; Ratten v The Queen (1974) 131 CLR 510; Mario Anthony Rugari [2001] NSWCCA 64; (2001) 122 A Crim R 1 and MRW v The Queen [1999] NSWCA 452; (1999) 113 A Crim R 308. Each of these authorities established the principles to be adhered to by the prosecutor. Defendants' supplementary submissions 22 Mr Luitingh was given leave to file supplementary submissions to enable counsel to refer the Court to additional authorities that would indicate that the particulars provided in these matters were inadequate. Counsel re-emphasised his contention that the charges failed, in material respects, to take into account the requirements unequivocally established in Kirk, relying in particular, on Kirk at [10] - [26]. 23 Counsel submitted that "if on a scrutiny of the particulars of a charge the Court forms the view that any particular charge is inadequate that particular charge should not be permitted to remain on the charge sheet and should be struck out so that the defendant faces only valid charges under the Act." 24 Mr Luitingh also submitted that contrary to the prosecutor's submissions that any defect could be cured by the provision of particulars, such a submission was in direct conflict with Kirk, which held that the charges must be brought within two years of the offence being committed (at [12]). 25 Counsel provided a further extensive analysis of the defects in the particulars, with specific references to paragraphs in the judgment of the High Court in Kirk and also Johnson v Miller (1937) 59 CLR 467, that supported the contention that the particulars were defective. Submissions of the prosecutor 26 In written submissions, Mr Magee acknowledged that: (i) The authorities make clear that a defendant to a criminal charge is entitled to know with particularity the case that it has to meet: see Johnson v Miller (1937) 59 CLR 467; King v R (1986) 161 CLR 423; John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508;

(ii) In John L Pty Ltd, Mason CJ, Deane and Dawson JJ said at [14]: "... the old authorities established that an information should be quashed as insufficient in law and invalid if it failed to inform the justices before whom it was laid of the nature of the offence and the manner in which it had been committed. The rationale of that requirement has, in more recent times, commonly been seen as lying both in the necessity of informing the Court of the identity of the offence with which it is required to deal and in providing the accused with the substance of the charge which he is called upon to meet: "an accused person could not be required to defend the charge if the information did not supply the particulars necessary to enable him to prepare his defence." (iii) The judgment of the High Court in Kirk, identified the fundamental requirement in law for any charge alleging a breach of the Occupational Health and Safety Act 1983, was to identify: · the risk that the defendant had failed to ensure did not arise; · the act or omission of the defendant that caused that risk; and · the measures which the defendant should have taken to obviate that risk. (iv) the decision of the Full Bench in Inspector Hamilton v John Holland , particularly at [59] and [66], together with the observations in Kirk would not support a claim that the current proceedings are invalid because of some alleged "defect" in the applications for order;

(v) on a proper reading of Kirk , the High Court did not hold the pleadings in Kirk to be invalid by reason of the failure to identify the essential legal elements of charge or all of the essential factual ingredients of the offence. The High Court was not required to address this issue;

(vi) in Kirk, it was the failure to provide adequate particularisation of the acts and omissions said to found the charge which gave rise to unfairness, in that the defendant was denied an opportunity to rely upon the statutory defence that led to the proceedings being vitiated. The High Court did not quash the orders made by the Industrial Court in reliance upon the application for order;

(vii) the Full Bench in John Holland, extensively considered the requirements for pleadings in criminal charges in the Court's occupational health and safety jurisdiction (at [36] - [47]) and concluded that any inadequacy in the particulars provided in an application for order would not result in the charges being invalid (at [69]);

(viii) in the recent decision of Downey v Acting District Court Judge Boulton (no. 5) [2010] NSWCA 240, the Court of Appeal, reviewed the effect of the decision of the High Court in Kirk as it related to allegations of deficiencies in criminal pleadings;

(ix) in Downey the Court of Appeal was required to consider the issue of whether court attendance notices alleging offences relating to cruelty to animals failed to plead essential elements of the offences charged and were therefore invalid. In so contending the appellant placed reliance on the decision of the High Court in Kirk ;

(x) in Downey the appellant contended that the court attendance notice in respect of each offence failed to use the words which were the 'gravamen' of the charges brought, namely that the appellant failed to provide proper and adequate food to her animals;

(xi) The Court of Appeal found at [46] that while no such words appeared in the court attendance notice, the language of the notice sufficiently indicated that the relevant omission was a failure to provide that which would alleviate the poor nutrition and emaciated condition, namely food;

(xii) similarly, the appellant contended that certain of the offences failed to specify what 'food' was not supplied, and, as a consequence, failed to identify that which was reasonably practicable for the defendant to provide;

(xiii) in distinguishing Kirk , the Court of Appeal noted that the inadequate pleading of the offence charged in Kirk contaminated not merely the pleading itself, but the procedure in the trial Court and the ultimate conviction;

(xiv) it is clear from the reasoning of the Court of Appeal in Downey that the pleadings do not necessarily require the measures to be expressly set out in the charge, rather they may be implied from the statement of offence;

(xv) further, the decision confirms that the reasoning of Basten J in Rockdale Beef (at [130]) as to matters that may be implied in a charge not being confined to a legal element or the words of the statute;

(xvi) the prosecution contends that, consistent with the decision of the Full Court of the Industrial Court of NSW in John Holland the applications for order do identify the essential legal elements of the s 8(1) charge. The application for order in respect of the defendant Stratabuild identifies: a. the name and address of the person by whom the proceedings are brought;

b. the capacity in which the prosecutor is taking the proceedings;

c. the name and address of the person against whom the proceedings are brought ( the defendant );

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. (xvii) The application for order also specifies the essential factual ingredients of time, place and manner of the offence. The particulars of the acts or omissions contained in the particulars of the application for order are extensive and provide details of the measures that it is alleged that the defendant should have taken but failed to take; (xviii) even if the defendants could establish that the charges were defective, such a defect would not in itself result in the charge being invalid: see s 16(2) of the Criminal Procedure Act; John Holland (at [79]) and Broome v Chenoweth (1946) 73 CLR 583 at 601. Further submissions re John Holland Pty Ltd v Industrial Court of New South Wales 27 Further leave was provided to each party to supplement their submissions upon the delivery of the judgment of the Court of Appeal in John Holland Pty Ltd v Industrial Court of New South Wales. 28 The defendants acknowledged that "the New South Wales Court of Appeal's prevailing view of Hamilton (sic) was that the whole of the document in its entirety submitted by the prosecution in support of application constitutes the application for order" and that the defendant was "bound by it". 29 The defendants further submitted that there was nothing in the application for order and supporting documents that remedied their complaint, nor had the prosecution eluded to any other evidence that would remedy their complaint. 30 The defendants further contended that: "On basis of Hamilton (sic), it is an impossible and unreasonable task to expect the defendants to read the charge and all supporting documentation and formulate what would be an appropriate charge, nor is it the defendant's duty to do so. It is the prosecution's duty to point to particulars which properly set out the charges, even on the reasoning in Hamilton (sic) in the NSWCA."

31 The prosecutor contended that consistent with the analysis of the Court of Appeal in John Holland, the applications for order in these matters complied with the relevant statutory provisions in the CP Act and the Industrial Relations Commission Rules 1996 (repealed) ("the Rules"), in that they clearly state the nature of the offence with which each defendant is charged. 32 Counsel submitted that when regard is had to the applications for order in these matters, in their entirety, it is apparent that the offence is appropriately identified in the document as a whole. Consistent with the reasoning of the Court of Appeal in John Holland, counsel submitted that "the fact that the charges list a range of matters, facts and actions, as constituting a single offence, does not raise a problem or duplicity by virtue of the operation of s 31 of the OHS Act." 33 Counsel further observed that the Court of Appeal noted at [72] that even if there were an "impermissible combination of contraventions [it] would not lead to a quashing of the charge as a whole." Principles 34 The High Court stated in Kirk that the charges under consideration (s 15 and s 16 of the Occupational Heath and Safety Act 1983 (the "OHS Act 1983"), now s 8(1) and s 8(2) of the OHS Act) must identify the act or omission said to constitute a contravention of those provisions and that in many instances, this required specification of the safety measures which should have been taken by the alleged offender. The High Court stated that this was critical if a defence under s 53 (now s 28 of the OHS Act) was to be enlivened. The plurality (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ), Heydon J agreeing with the plurality's orders with one exception which related to costs, observed at [18]: The duties referred to in ss 15(1) and 16(1) cannot remain absolute when a defence under s 53 is invoked. ... ... The OH&S Act delimits the obligations of employers by the terms of the defences provided in s 53. 35 The High Court held the acts or omissions the subject of the charges had to be identified if a defendant was to be able to rely upon a defence under s 53. In that case, the defendants were not in a position to satisfy the defence because they had not been informed what measures they were required to take and were therefore not in a position to prove that the taking of those measures was not reasonably practicable (at [50] - [53]). 36 In Inspector Hamilton v John Holland Pty Ltd [2010] NSWIRComm 72; (2010) 194 IR 189, the Full Bench considered the requirement for pleadings in respect of applications for order filed under the OHS Act. After considering various authorities and the relevant statutory provisions (at [36]), the Full Bench observed at [37] - [38]: [37] Thus, an Application for Order must comply with the requirements of r 217B, but it must also comply with the common law principles. That means the Application must contain: a. the name and address of the person by whom the proceedings are brought ( the prosecutor ), and

b. the capacity in which the prosecutor is taking the proceedings, and

c. the name and address of the person against whom the proceedings are brought ( the defendant ), and

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. This may be taken to mean the essential legal elements of the charge: see Johnson v Miller at 486 where Dixon J distinguishes between 'the nature of the offence' (he later refers to it as the 'legal nature of the offence: at 489) and the essential factual ingredients of the 'time, place and manner of the defendant's acts or omissions': see also Rockdale Beef at [109] per Basten JA, who makes the same distinction and see Kirk at [26], and

f. the essential factual ingredients which must include the time, place and manner of the defendant's acts or omissions.

[38] Section 11 of the Criminal Procedure Act allows for the description of any offence to be made in the words of an Act creating the offence. Section 12 provides that a summary offence is taken to be sufficiently stated or described if it is stated or described by the use of a short expression that describes the offence in general terms. However, as we have noted, this does not dispense with the common law rule requiring the essential factual ingredients to be identified in the Application for Order: see for example, Stanton v Abernathy at 666. Thus, if an Application describes an offence under s 8(1) of the OHS Act 2000 in the words of that provision, it would seem to us that the Application has met the requirement of identifying the legal nature of the offence, that is the essential legal elements, subject to the proviso that, in adopting the words of the statute, it admits of no uncertainty or ambiguity: Rockdale Beef at [131]. What must also be identified in the Application are the essential factual ingredients that shall include the time, place and manner of the defendant's acts or omissions. 37 The Full Bench determined that in order for an application for order to identify the essential elements of the offence, the order must identify the following (at [48]). These requirements and the relevant answers taken from an analysis of the s 8(1) charge under consideration here are: (a) the name and address of the person by whom the proceedings are brought: "Inspector Vince Castro of the WorkCover Authority of New South Wales, Level 1, 60-70 Elizabeth Street, Sydney in the State of New South Wales";

(b) the capacity in which the prosecutor is taking the proceedings: "an Inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 and empowered under Section 106(1)(c) of the said Act to institute proceedings in the within matter";

(c) the name and address of the person against whom the proceedings are brought: "Stratabuild Pty Ltd [ACN 120 627 679] with its registered address at 46 Lascelles Road, Cecil Hills in the State of New South Wales";

(d) the Act and the section under which the defendant is alleged to have committed an offence: "Section 8(1) of the Occupational Health and Safety Act 2000";

(e) the nature of the offence that is alleged: "the defendant, being an employer, on 19 March 2008, at 3 Wulumay Close, Rozelle in the State of New South Wales, failed to ensure the health, safety and welfare at work of all its employees, and in particular, Ivan Vega, contrary to s 8(1) of the Occupational Health and Safety Act 2000." 38 The Full Bench in Inspector Hamilton v John Holland (at [50]) went on to observe that in Rockdale Beef Pty Ltd v Industrial Relations Commission of NSW [2007] NSWCA 128; (2007) 165 IR 7, Basten JA stated what is also required to be included in an application for order are the essential factual ingredients of time, place and manner of the offence: see Rockdale Beef at [109] - [110] and the reference therein to John L Pty Limited v Attorney-General (NSW) (1987) 163 CLR 508. 39 The Full Bench subsequently stated at [59]: It is unquestionably the case arising from Kirk that an Application for Order must plead the acts or omissions of the defendant that are alleged to give rise to the risk to health and safety: see Kirk at [14], [19]. However, we are unable to find any support in the Kirk judgment for the proposition that the acts or omissions are to be regarded as essential legal elements and, therefore, necessarily pleaded as such. The proposition contended for by the defendant also appears to be in conflict with the statement of the majority in John L (at 519) that the prosecutor was to provide the accused with the 'substance of the charge which he is called upon to meet'. The majority accepted that Mahoney JA had correctly pointed out in De Romanis that 'there was no technical verbal formula which could be applied to determine whether an information sufficiently identified the essential ingredients of the alleged offence'. This passage strongly suggests that, for a very long time, the law has not required the type of rigidity and technicality implicit in the defendant's proposition. 40 The Full Bench further observed at [66]:

It seems, therefore, that the joint judgment in Kirk was not intending that a 'statement of offence' was constituted solely by a statement of the essential legal elements, but rather such a statement was constituted by a description of the legal nature of the offence, the essential factual ingredients and any other particulars to better inform the defendant of the charge it has to meet. In other words, all these matters together constituted a valid information or Application for Order. 41 Recently, the Supreme Court of New South Wales, Court of Appeal in John Holland Pty Ltd v Industrial Court of New South Wales; Parsons Brinckerhoff (Australia) Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 338 (Spigelman CJ, Beazley and Giles JA agreeing) considered in detail the requirements of a valid charge under the OHS Act. The principal submission advanced for John Holland was that the charge and the particulars did not identify contraventions in accordance with Kirk. The Chief Justice, relevantly, stated at [56], [65], [67], [71], [78], [79] as follows:: [56] ... An Application for Order, in its entirety, is the document which invokes the jurisdiction of the Court. If the offence is appropriately identified in the document as a whole, then there is no reason to conclude that the jurisdiction of the Court was not properly invoked. ... [65] The fact that the Application for Order expresses a range of matters in terms of a single offence does not, in the specific context under consideration, raise the kind of issues of duplicity which often arise in a criminal prosecution. That is by reason of s 31 of the OH&S Act, which I have set out at [15] above. ... [67] Section 31 permits "more than one contravention" to "be charged as a single offence". Nevertheless, the charge must identify each alleged "contravention". It is to the principles established in Kirk that reference must be made as to whether the contraventions, pleaded as a single offence, have been validly stated. ... [71] In my opinion, it is not necessary to expressly plead the "factual circumstances" said to be the same for purposes of s 31(1). Section 31(1) is facultative and permits a course which common law principles of duplicity would not permit. Nevertheless, so long as each contravention is appropriately identified it will be possible to determine whether or not the respective alleged contraventions arise from "the same factual circumstances". ... [78] Where words of general application are used such as "adequate system of ground support" or "adequate system of communication" they may give rise to an application for further better particulars. However, in this context, such terminology does not fail to identify a "particular measure" within the reasoning of Kirk . What is alleged in each respect against the applicant in terms of a failure to take specific steps is clearly pleaded. What is an "adequate system of ground support" is identified in the following further particulars, [79] I do not assess every reference to 'adequacy' as the applicant did not seek to make out a case on the basis of each such particular. The possibility of further particularisation does not detract from the validity of the charge for purposes of determining whether or not the Industrial Court has had its jurisdiction properly invoked. Since writing [77], [78] and the preceding sentences of this paragraph I have read the additional comments of Giles JA on the 'adequacy' submissions and I agree with his Honour's comments. Consideration 42 There can be no doubt that the High Court's judgment in Kirk represented a seismic shift in the approach that this Court had taken in respect of prosecutions brought pursuant to various provisions of the OHS Act. To my mind, if the applications for order under consideration in these matters do not survive the High Court's decision in Kirk, it is difficult to contemplate what pleading would be sufficient. 43 In demonstrating why I have reached this conclusion, I propose to apply the principles available from the High Court's decision in Kirk, the Court of Appeal decisions in John Holland Pty Ltd v Industrial Court of New South Wales; Downey v Acting District Court Judge Boulton (no. 5) [2010] NSWCA 240, Rockdale Beef and this Court's judgment in Inspector Hamilton v John Holland. Before doing so, it is appropriate to bear clearly in mind that the plurality stated in Kirk, after setting out the common law requirements, that an application for order under the OHS Act containing a statement of offence "must at the least condescend to identifying the essential factual ingredients of the actual offence" (at [26]. The plurality identified the fatal defects in the application for order in that matter as being: "The statements of the offences as particularised do not identify what measures the Kirk company could have taken but did not take. They do not identify an act or omission which constitutes a contravention of ss 15(1) and 16(1)." (at [28]) 44 In Downey, the Court of Appeal distinguished Kirk from the facts of the matter that the Court was there considering. Basten JA stated at [49]: The analogy with Kirk is superficial only. Further, care must be taken in seeking to rely upon supposedly analogous factual situations in a higher court, as giving rise to a precedent, rather than the precedent being found in the legal principle to be applied in assessing such facts. ... 45 I turn to consider whether the applications for order identify the essential elements of the offences. In my view, the applications for order adequately identify the specific statutory provision that it is alleged the defendants have contravened, together with the nature of the offences that are alleged in the words of the relevant statutory provision, being s 8(1), s 10(1) and s 26(1) of the OHS Act. I also conclude that the requirements of r 217B of the Rules are met. The application for order in Matter No IRC 195 of 2010, the alleged s 8(1) breach, identifies: (a) the name and address of the person by whom the proceedings are brought: 'Inspector Vince Castro, of the WorkCover Authority of New South Wales, Level 1, 60-70 Elizabeth Street, Sydney in the State of New South Wales';

(b) the capacity in which the prosecutor is taking the proceedings: 'an Inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 and empowered under Section 106(1)(c) of the said Act to institute proceedings in the within matter';

(c) the name and address of the person against whom the proceedings are brought: 'Stratabuild Pty Ltd (ACN 120 627 679) with its registered address at 46 Lascelles Road, Cecil Hills in the State of New South Wales';

(d) the Act and the section under which the defendant is alleged to have committed an offence: 'section 8(1) of the Occupational Health and Safety Act 2000';

(e) the nature of the offence that is alleged. 'being an employer, on 19 March 2008, at 3 Wulumay Close, Rozelle in the State of New South Wales, failed to ensure the health, safety and welfare at work of all its employees, and in particular, Ivan Vega, contrary to section 8(1) of the Occupational Health and Safety Act 2000'. The manner of the defendant's acts or omissions are then set out in particulars (a) to (d). 46 It follows that the statutory requirements are also met in respect of Matter No IRC 196 of 2010 as the pleadings are in similar terms to the s 8(1) charge. 47 The applications for order also specify the essential factual ingredients of time, place and manner of the offence: see Kirk (at [29]), Inspector Hamilton v John Holland (at [50]). The time is identified as "on 19 March 2008". The place is identified as "3 Wulumay Close, Rozelle in the State of New South Wales." The manner in which the offence was alleged to have occurred is addressed in that part of the application that describes the particulars. 48 Adopting the approach of this Court in Inspector Hamilton v John Holland (at [103]), the essential legal elements of the charge under s 8(1) of the OHS Act are, in my view, met in each of the respective applications for order. They are: (a) The defendant was an employer at the time of the breach: The application for order pleads the defendant as "being an employer."

(b) That an employee was exposed to risks to his health or safety: The application for order pleads that the defendant "FAILED TO ensure the health, safety and welfare at work of all its employees, and in particular, Ivan Vega."

(c) That an employee was at work at the time of the breach: The application for order pleads that the risk arose "whilst accessing work areas at heights and working at heights at the Site."

(d) There was a causal nexus between the defendant's alleged breach and the risk to employees' health, safety and welfare: The application for order pleads the particular ways in which the defendant was alleged to have failed to ensure the health, safety or welfare of its employees, and that "the health and safety of employees of the defendant was put at risk of injury from falls whilst accessing work areas at heights and working at height at the Site." And that "As a result of the defendant's failures its employee Ivan Vega was placed at risk of injury." And further that "As a result of the defendant's failures its employee Ivan Vega suffered fatal injuries." 49 An identification of the relevant legal elements in the application for order in respect to the alternative s 10(1) charge provides similar answers to those set out above as does an analysis of the s 26(1) charge. 50 The applications for order, to my mind, adequately describe how it was the defendants failed to ensure safety. As was observed by Basten JA in Rockdale Beef at [130]: ... it has long been sufficient to describe the nature of an offence by use of the statutory language: see ss 145A of the former Justices Act 1902 (NSW) and Ex parte Lovell; Re Buckley (1938) 38 SR(NSW) 153 at 174 (Jordan CJ, Davidson and Halse Rogers JJ agreeing) and now s 11. However, it does not follow that all the words of the statute must be used, nor that, where the specific provision is adequately identified, all the legal elements must be expressly identified. For example, some may be necessarily implied from what is described, for the purposes of s 16(1)(b). 51 Arguably, the "defect" in the pleadings being considered in Rockdale Beef was a more significant one than the "defects" that the defendants assert are present in the charges in these matters. The "defect" in Rockdale Beef involved a failure to plead an essential legal element of the charge. No such assertion can be made in respect of the charges in this matter. 52 Similarly, reliance by the defendants on R v Halmi [2005] NSWCA 2; (2005) 62 NSWLR 263, a decision of the Court of Appeal, is not relevant to the matters under consideration here. In Halmi, the defect in the indictment arose because the indictment was signed by a barrister in private practice who had been briefed to appear on behalf of the Director of Public Prosecutions at the trial. The barrister was not a person authorised to sign indictments on behalf of the Director of Public Prosecutions. The indictment upon which the appellant was arraigned and upon which his trial proceeded was invalid. It followed that the trial was a nullity, and the verdict and conviction had to be quashed. There is no contention in these prosecutions that Inspector Castro was not properly authorised to institute proceedings.

53 There is nothing in the High Court's decision in Kirk that impacts upon these observations. 54 The applications for order describe the omissions by the defendants that caused the premises to be unsafe and to put employees at risk. The particulars provided include the identification of the risk as the "risk of injury from falls whilst accessing work areas at heights and working at height at the site." 55 The particulars of the acts or omissions are extensive and were drafted in light of Kirk. They include particulars relating to: (a) a failure to provide and maintain a safe system of work in relation to accessing work areas at heights and working at height;

(b) a failure to provide information, instruction, and training in relation to accessing work areas at heights and working at height;

(c) a failure to provide supervision to Mr Vega in relation to accessing work areas at heights and working at height. 56 The particulars also provide details of the measures it was alleged that the defendants should have taken but failed to take. They were: The defendant failed to provide and maintain a safe system of work in relation to accessing work areas at heights and working at heights at the Site in that it failed to undertake measures as follows: (i) The provision of scaffolding, an elevated work platform or a harness and lanyard system to enable its employees to access work areas including the balcony of apartment number 22 at the Site;

(ii) The completion of a risk assessment of the hazards associated with the use of a ladder to access work areas including balconies at heights in excess of 6 metres at the Site;

(iii) The completion of a risk assessment of the hazards associated with gaining access to work areas and working from areas including balconies at heights in excess of 6 metres at the Site;

(iv) The provision of a Safe Work Method Statement for tasks involving accessing work areas and working from heights in excess of 2 metres at the Site, that detailed the requirements: (a) for the use of scaffolding, elevated work platforms or harness and lanyard systems;

(b) that portable ladders were not be used without a fall restraint systems such as a harness and lanyard systems;

(c) that portable ladders not be used where the top of the ladder did not extend above the level of the working platform, balustrade or roof by a distance of not less than 1 metre;

(d) that whilst ascending portable ladders the person must have both hands free to grip the ladders and persons should not carry paint pots, brushes, drop sheets, tools or other equipment in their hands whilst climbing portable ladders.

57 Therefore, in my view, it cannot be contended that the defendants do not know what measures they were required to prove were not reasonably practicable. The particulars enable the defendants to rely upon any statutory defenses that may be available under s 28 of the OHS Act. 58 It must follow that the contentions of the defendants that the charges do not state all the essential ingredients of the offence; that there is uncertainty or ambiguity in the charges and that there are ingredients missing which cannot be implied from the charge or the supporting affidavit of the prosecutor cannot be sustained. I find that the applications for order are consistent with the principles laid down by the High Court in Kirk and by the Court of Appeal in John Holland. 59 Spigelman CJ in John Holland stated that the charges should be read as a whole, including the particulars supplied in the application for order. The application for order, in its entirety, is the document which invokes the jurisdiction of the Court. If the offence is appropriately identified in the document as a whole, then there is no reason to conclude that the jurisdiction of the Court was not properly invoked (at [56]). 60 When regard is had to the applications for order in these matters, in their entirety, it is apparent that the offence is appropriately identified in the document as a whole. The fact that the charges list a range of matters, facts and actions as constituting a single offence, does not raise a problem or duplicity by virtue of the operation of s 31 of the OHS Act. 61 It is apparent that the charges validly identify each alleged contravention. Further, each contravention arises from the same factual circumstances. In any event, as emphasised by Mr Magee the Chief Justice observed in John Holland at [72], even if there were an "impermissible combination of contraventions [it] would not lead to a quashing of the charge as a whole." 62 The relevant contraventions are identified in the chapeau of each of particulars (b), (c) and (d). The further particulars identify a range of facts and matters each of which would meet the description of a "particular measure" as I have set out earlier in these reasons. 63 To my mind, what should have been done to avoid exposing employees or other persons to the named risk has been adequately pleaded, consistent with the analysis of the Chief Justice in John Holland at [112]. 64 Furthermore, the defendants' supplementary submissions that Kirk was also authority for the proposition that particulars could only be amended within two years of the offence being committed, is not a correct statement of the law. What the plurality stated in Kirk at [30], was that "the matter should not have proceeded without further particularisation of the acts and omissions said to found the charges". The plurality did not state that such particularisation must occur within two years of the offence being committed. 65 In determining whether there is a valid charge, as opposed to finding that the charges had been proved by the prosecutor beyond reasonable doubt, the Court only need consider whether the charge was commenced in compliance with r 217B of the Rules, was commenced within the time prescribed in the OHS Act, pleads the essential legal elements of the charge and the essential factual ingredients of the charge. 66 Although both parties advanced some short submissions directed to the power of the Court to permit amendments to the applications, it is unnecessary to consider these submissions as there is no application to amend. Nor is it necessary, in light of the conclusion that I have reached, to deal with the defendants' submissions regarding the prosecutor's duty, or the submissions that place reliance upon the High Court's judgment in Lane v Morrison [2009] HCA 29; (2009) 239 CLR 230 as I have found that the charges were sufficient in law to properly engage the jurisdiction of the Court. In any event, Lane v Morrison involved the High Court considering whether particular provisions of the legislation empowering the Australian Military Court were constitutionally valid. That matter is clearly distinguishable from the matters being considered here. 67 What essentially is sought by the defendants, as demonstrated from the defendants' submissions, are further and better particulars of the charges which, to date, have not been sought. The defendants' submissions at times appear to confuse the concept of the charge contained in the applications for order and the particulars of the charge. It is still open to the defendants to seek the provision of further and better particulars of the charges. 68 Such a complaint was dealt with by the Court of Appeal in Downey where Basten JA stated at [53]: If the pleadings were deficient in failing to identify an essential element of either offence, it may not matter whether the issue was raised by a challenge by way of demurrer before the trial, or in the course of the trial, or not at all in the trial court. A conviction based on a charge not revealing an offence against the law will be invalid. However, if the complaint is in truth one of a failure to provide particulars, which were not sought at or during the trial in the Local Court or on appeal, a different analysis is required and invalidity will not usually result. In the present case, the complaint is no more than a failure to provide particulars which were not sought but may (though not inevitably) have been ordered if sought. The challenge to the validity of the proceedings and the resulting conviction on this ground is rejected. 69 During oral argument, Mr Luitingh focused on the accident which had occurred. Such submissions were misconceived as it is the risk to employees and non-employees' health and safety which is relevant. In Rodney Morrison v Powercoal Pty Ltd [2003] NSWIRComm 416; (2003) 130 IR 364, the Full Court stated at [32]: In assessing the gravity of the offence the focus, therefore, must be on the risk and, viewing it objectively, the seriousness of the act or omission that gave rise to the risk. In other words, the consequence of an accident will not, of itself dictate the seriousness of the offence or the amount of penalty. However, the occurrence of death or serious injury may well manifest the degree of seriousness of the risk to health and safety to which persons may have been subjected: Hannah v Wonar Pty Ltd (unreported, Fisher CJ, Glynn and Cullen JJ, CT90/1214, 30 June 1992 at 9); Tyler v Sydney Electricity (1993) 47 IR 1 at 5; Independent Cargo and Wool Services Pty Ltd v Mingare (unreported, New South Wales Industrial Court, CT92/1041, 10 March 1994 at 4); Watson v Southern Asphalters Pty Ltd (1996) 83 IR 446 at 456; Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464. 70 For the foregoing reasons, I consider that a case has not been established by the defendants that the applications for order filed by the WorkCover Authority of New South Wales on 19 March 2010 in Matter No IRC 195 and 196 of 2010 should be dismissed. ORDERS 71 I make the following orders:

1. The notice of motion filed in Matter Nos IRC 195 and 196 of 2010 by the defendants is dismissed.

2. The defendants shall pay the prosecutor's costs of the motion in an amount as agreed, or as assessed.

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