(e) the nature of the offence that is alleged: "the defendant, being an employer, failed to ensure that people other than its employees, in particular Benjamin Pendergast and Jarrad Thornton, were not exposed to risks to their health and safety arising from the conduct of its undertaking while at its place of work contrary to Section 8(2) of the Occupational Health and Safety Act 2000."
35 Similar identification of the relevant requirements was undertaken by the prosecutor in the application for order in Matter No IRC 353 of 2009 (the alleged s 8(1) charge).
36 The Full Bench in John Holland (at [50]) went on to observe that in Rockdale Beef, 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.
37 In these matters, the time is identified as 22 March 2007. The place is identified as 1 Forestry Road, Penrose. The manner in which the offence was alleged to have occurred is addressed in each of the applications in the part described as "particulars". The risk was identified as the risk to health, safety and welfare of employees at work through the use of welding, cutting, grinding and other electrical, heat or spark producing equipment being used at the site.
38 The applications proceed to describe how the defendant failed to ensure the health, safety and welfare of its employees and people other than its employees. It is alleged that the defendant failed to inform itself about the work that was being undertaken; failed to provide and maintain a safe system of work (including but not limited to a hot work permit system) in relation to work involving the use of welding, cutting, grinding and other electrical, heat or spark producing equipment being used at the site; failed to undertake an adequate risk assessment in relation to the work involving the use of welding, cutting, grinding and other electrical, heat or spark producing equipment being used at the site; failed to provide adequate supervision of contractors and their employees; failed to provide necessary information, instruction and training and failed to provide or maintain adequate emergency procedures.
39 In my view, the applications identify the risk. The affidavits accompanying the applications have no doubt also assisted the defendant in understanding the risk and led to the entering of pleas. It is also apparent what failures are alleged and the measures the defendant should have taken to avoid the risk to safety. As the Full Bench observed in John Holland (at [57]), if there were any deficiencies in the manner in which the particulars were expressed, it would not render the charges invalid. Rather, it would be open to the trial judge to order an amendment or for further particulars to be provided, or for the defendant to seek further and better particulars: Rockdale Beef (at [126]), per Basten JA, referring to Stanton v Abernathy (No 2) (1990) 19 NSWLR 656 (at 667, 671 and 672).
40 It is clear that s 16(2) of the CP Act gives the Court power to permit an amendment of the application for order where a variation is sought to the essential factual particulars of the offences charged. However, in light of the decision that I have reached, it is unnecessary to further examine the various contentions of the parties in respect of whether the amendments to the applications for order create a new and different charge, or merely afford a more precise identification of the circumstances previously indicated as the facts relied upon.
41 I turn to consider whether, in accordance with s 170 of the IR Act, in the exercise of my discretion, it is in the interests of justice to amend the respective applications for order in the terms proposed. The applications for order were filed on 17 March 2009 in respect of an offence alleged to have occurred on 22 March 2007. Almost two years elapsed from the date of the incident to the filing of the applications for order, with the defendant entering pleas of guilty in each matter on 22 October 2009. Since that time, the High Court has delivered it's decision in Kirk and a Full Bench of this Court has given judgment in a Stated Case in John Holland.
42 Recently, the High Court in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 considered the approach that a court must take in the exercise of its discretion to allow amendments to proceedings. The Court in that matter was dealing with civil proceedings and relevantly r 21, r 501 and r 502 of the Court Procedures Rules 2006 (ACT). The object of r 21 is, inter alia, to achieve the just resolution of the real issues in proceedings and the timely disposal of proceedings at a cost affordable by the parties. Rule 501 and r 502 deal with the making of amendments to documents.
43 The plurality, (Gummow, Hayne, Crennan, Kiefel and Bell JJ), French CJ agreeing in a separate judgment; Heydon J also agreeing in a separate judgment, stated at [98] - [99], [102], [112] - [113]:
[98] Of course, a just resolution of proceedings remains the paramount purpose of r 21; but what is a "just resolution" is to be understood in light of the purposes and objectives stated. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re-pleading, when delay and cost are taken into account. The Rule's reference to the need to minimise costs implies that an order for costs may not always provide sufficient compensation and therefore achieve a just resolution. It cannot therefore be said that a just resolution requires that a party be permitted to raise any arguable case at any point in the proceedings, on payment of costs.
[99] In the past it has more readily been assumed that an order for the costs occasioned by the amendment would overcome injustice to the amending party's opponent. In Cropper v Smith Bowen LJ described an order for costs as a panacea that heals all. Such a view may largely explain the decision of this Court in Shannon v Lee Chun , which upheld a decision allowing the plaintiff to raise a new case at the second trial, but which imposed a condition as to costs. The modern view is that even an order for indemnity costs may not always undo the prejudice a party suffers by late amendment. In the present case it is difficult to see that such an order could be sufficient compensation, given that Aon would be required to again defend litigation which was, effectively, to be commenced afresh.
...
[102] The objectives stated in r 21 do not require that every application for amendment should be refused because it involves the waste of some costs and some degree of delay, as it inevitably will. Factors such as the nature and importance of the amendment to the party applying cannot be overlooked. Whilst r 21 assumes some ill-effects will flow from the fact of a delay, that will not prevent the parties dealing with its particular effects in their case in more detail. It is the extent of the delay and the costs associated with it, together with the prejudice which might reasonably be assumed to follow and that which is shown, which are to be weighed against the grant of permission to a party to alter its case. Much may depend upon the point the litigation has reached relative to a trial when the application to amend is made. There may be cases where it may properly be concluded that a party has had sufficient opportunity to plead their case and that it is too late for a further amendment, having regard to the other party and other litigants awaiting trial dates. Rule 21 makes it plain that the extent and the effect of delay and costs are to be regarded as important considerations in the exercise of the court's discretion. Invariably the exercise of that discretion will require an explanation to be given where there is delay in applying for amendment.
...
[112] A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate.
[113] In the past it has been left largely to the parties to prepare for trial and to seek the court's assistance as required. Those times are long gone. The allocation of power, between litigants and the courts arises from tradition and from principle and policy. It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings.
44 In applying the above principles to these matters, it is relevant to note that on two occasions dates were fixed for a sentencing hearing and vacated. A further date has been programmed for the sentencing hearing (15 October 2010). As I have already observed, the determination of Matter Nos IRC 355 and 356 of 2009 awaits the sentencing hearing in these matters. In my view, it is likely that in the event that the amendments are granted, further interlocutory applications will be brought by the defendant who has entered pleas of guilty to each of the charges.
45 One such application foreshadowed by Mr Shume, is that any amendment would render the charges statute barred pursuant to s 107 of the OHS Act. In addition, the incident giving rise to the charges which resulted in Mr Pendergast being fatally injured, occurred on 22 March 2007. A significant period of time has already elapsed and if individuals are required to give evidence of their recollection of the events relevant to the offences, such recollections are diminished by time. It is also to be noted that on the last occasion that this matter was listed for a sentencing hearing, members of the late Mr Pendergast's family drove from Tahmoor in country New South Wales to be present during the sentencing hearing which was adjourned pending the determination of the notices of motion.
46 Public interest considerations also arise, particularly when it is borne in mind that prosecutions brought pursuant to the OHS Act are criminal in nature.
47 In light of the foregoing matters and taking into account the overall interests of justice between the parties, I conclude, although finely balanced, that pursuant to s 170 of the Industrial Relations Act 1996, leave to amend the applications for order sought by the prosecutor should be refused.
ORDERS
48 I make the following orders: