Inspector Maurice Vierow v Rail Services of Australia

APPLICANT: Ms M.L. McManus of counsel Solicitors: Mr G McCann WorkCover Authority of NSW LEGAL REPRESENTATIVES: DEFENDANT: Solicitors: Mr S Thompson Sparke Helmore

JUDGMENT: - 9 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: KAVANAGH J DATE: 22 June 2001

IRC305 of 2001 INSPECTOR MAURICE VIEROW v RAIL SERVICES AUSTRALIA Prosecution under s15(1) of the Occupational Health and Safety Act 1983

IRC306 of 2001 INSPECTOR MAURICE VIEROW v RAIL SERVICES AUSTRALIA Prosecution under s15(1) of the Occupational Health and Safety Act 1983

1 HER HONOUR: This matter came before the Court by way of two Notices of Motion filed on 9 May 2001 and brought by the WorkCover Authority of NSW for orders: 1. That leave be granted to amend the application for orders in IRC305 of 2001 in the matter of Inspector Maurice Vierow v Rail Services Australia so as to insert a new name of the defendant, and 2. That the name of the defendant be amended to read Rail Infrastructure Corporation (formerly known as Rail Services Australia). 3. The respondent pay the applicant's costs on the Notice of Motion.

And: 1. That leave be granted to amend the application for orders in IRC306 of 2001 in the matter of Inspector Maurice Vierow v Rail Services Australia so as to insert a new name of the defendant, and 2. That the name of the defendant be amended to read Rail Infrastructure Corporation (formerly known as Rail Services Australia). 3. The respondent pay the applicant's costs on the Notice of Motion.

2 Ms M.L. McManus of counsel appeared in the interests of the WorkCover Authority, the Prosecutor, on the primary application for orders under s15 of the Occupational Health and Safety Act, 1983. Mr S. Thompson, solicitor, appeared in the interests of Rail Infrastructure Corporation for the purposes of the argument in relation to the Notice of Motion.

3 The charge brought in IRC305 of 2001 by the WorkCover Authority under s15(1) of the Occupational Health and Safety Act 1983 reads as follows: On 27 January 1999, at about 11am on the railway line between Central and Redfern Railway Stations in the State of New South Wales, the defendant, being an employer, failed to ensure the health, safety and welfare at work of all it's employees, and in particular, Predrag Bojanic and El-Kabbout, in failing to provide or maintain systems of work that were safe and without risk to health as may necessary to ensure the health and safety of employees at its place of work, contrary to s15(1) of the Occupational Health and Safety Act 1983. And, the charge brought in IRC306 of 2001 by the WorkCover Authority under s15(1) of the Occupational Health and Safety Act 1983 reads as follows: On 27 January 1999, at about 11am on the railway line between Central and Redfern Railway Stations in the State of New South Wales, the defendant, being an employer, failed to ensure the health, safety and welfare at work of all it's employees, and in particular, Predrag Bojanic and El-Kabbout, in failing to provide such instruction and training as may necessary to ensure the health and safety of employees at its place of work, contrary to s15(1) of the Occupational Health and Safety Act 1983.

4 Mr Bojanic received fatal injuries when he was struck by a train running upon the railway lines between Central and Redfern stations. The prosecution was launched against Rail Services Australia.

5 It is of assistance in this matter to outline the chronology of events leading to the Prosecution:

On 20 December 2000 the Transport Administration Amendment (Rail Management) Act 2000 was proclaimed. On 1 January 2001 the Transport Administration Amendment (Rail Management) Act 2000 and its relevant provisions came into effect. On 23 January 2001 an application for order and affidavit in support of the application for order was filed in the New South Wales Industrial Relations Commission. On 25 January 2001 the orders were issued. On 27 January 2001 a limitation period of two years for the commencement of proceedings in relation to this Act expired. On 5 February 2001 the orders were served. On 20 February 2001 the solicitors for Rail Infrastructure Corporation notified the WorkCover Authority of the effects of the Transport Administration Amendment (Rail Management) Act . On 9 May 2001 this Notice of Motion was filed in the Court.

6 The WorkCover Authority as to the motion to change the name of the defendant concedes there was a "misnaming" of the defendant but submits the defendant, at the time of the accident and until 1 January 2001, was named Rail Services Australia. It is conceded shortly before the charges were filed the defendant was renamed and merged to form Rail Infrastructure Corporation.

7 The WorkCover Authority submits these are the exceptional circumstances to favour the granting of orders under the Notice of Motion. It also relies upon the relevant provisions of the Transport Administration Amendment (Rail Management) Act, No 89 of 2000 in support of its Notice of Motion. Section 89 states relevantly: (1) Rail Access Corporation and Rail Services Australia are amalgamated to form Rail Infrastructure Corporation, (2) On that amalgamation; (a) Rail Access Corporation and Rail Services Australia are dissolved as separate entities; (b) Rail Infrastructure Corporation is taken, for all purposes, including the rules of private international law, to be a continuation of, and the same legal entity as Rail Access Corporation and Rail Services Australia and (c) without limiting the operation of this clause - the assets, rights and liabilities of Rail Access Corporation and Rail Services Australia are the assets, rights and liabilities of Rail Infrastructure Corporation.

8 Relevantly s90 of the Act provides: (1) In this clause "existing employee" means a person who was a member of the staff of Rail Access Corporation or Rail Services Australia immediately before the amalgamation of those corporations (other than the Chief Executive Officer of Rail Access Corporation or Rail Services Australia)

(2) All existing employees are, on the amalgamation of Rail Access Corporation and Rail Services Australia, employees of Rail Infrastructure Corporation.

9 The WorkCover Authority submits while there was a misnaming of the defendant, it was because there was a change of name of the defendant in accordance with the above Act.

10 Mr Thompson, in opposing the orders sought in the Notice of Motion, makes a number of submissions. He submits, relying upon a letter he sent to the principal solicitor of the WorkCover Authority dated 7 June 2001 and their reply dated 15 June 2001, it was clearly the intention of the WorkCover Authority to name and to charge Rail Services Australia, as the defendant. 11 It is to be noted, however, in the letter from the WorkCover Authority to Mr Thompson it is also said: . . . the Inspector was not aware (at the time of the filing of the orders) that Rail Services Australia had been amalgamated with Rail Access Corporation to become Rail Infrastructure Corporation.

12 The Rail Infrastructure Corporation also relies on two affidavits sworn by Ms Prudence Ann Dally of 5 June 2001 and 19 June 2001. She affirms Rail Infrastructure Corporation is subject to close ministerial control; responsible for rail network control which excludes the Metropolitan area; must comply with the financial arrangements in accordance with the Public Authorities (Financial Arrangements) Act 1987. She opines overall its objectives contrast with the principal objectives of the former Rail Services Australia.

13 Mr Thompson, however, conceded that the responsibilities of Rail Services Australia were incorporated into the role of Rail Infrastructure Corporation.

14 A number of authorities were relied upon by both parties in support of their submissions and some established legal principles apply to this consideration. In the matter of Weldon & Neal (1887) 19 QBD 394, Lord Esher MR held: If amendment were allowed setting up a cause of action, which if the writ were issued in respect thereto at the date of the amendment, would be barred by the Statute of Limitations, it would be allowing the plaintiff to take advantage of the former writ to defeat the statute and take away an existing right from the defendant, a proceeding which as a general rule would be, in my opinion, improper and unjust.

Under very peculiar circumstances the Court might perhaps have power to allow such amendment, but certainly as a general rule it will not do so and in the words of Lopes LJ 'I quite agree that the rule that has been laid down, viz, that, however negligent or careless the first omission and however late the proposed amendment, the amendment should be allowed if it can be allowed without injustice to the other side.'

This could be held to be the enunciation of first principles given the date of the authority.

15 In Bainbridge-Hawker v Minister of State for Trade and Customs for the Commonwealth of Australia (1958) 99 CLR 521 the court considered an application to amend the writ of summons and pleadings by adding the personal name of the Minister. In that matter it was held that the plaintiff appearing on the writ was the right person even though insufficiently described. It was held the misnomer was a mere irregularity so the contention that amendment would, in effect, revive a cause of action barred by s249 was incorrect. In Seas Sapfor Ltd & Anor v Far Eastern Shipping (1995) 39 NSWLR 435, Rolfe J commented (at 442.D): . . . if the intention had been to sue the defendant, in the mistaken belief that it was liable, no relief would be granted. However if the intention was to sue the carrier but, by mistake, the carrier was named incorrectly, relief maybe granted. The questions are, accordingly, whether the defendant was sued in the mistaken belief that it is the party responsible for the matters complained of, or whether it was intended to sue . . . as the carrier, but it was mistakenly described or named as the defendant.

16 Other authorities relied upon are Pearcey v Chianta (1987) 6 MVR 10 where Murphy J commented (at 10): . . . the defect created no injustice . . . An amendment of the name was appropriate. 17 Two judgments in this court are also relevant to guide the court in its consideration. In WorkCover v Kevin R Sheather Services Pty Ltd [2001] NSWIR Comm74 [at 3] Peterson J allowed an amendment at the commencement of the hearing for a change of name; and in WorkCover Authority of New South Wales (Inspector Glass) v Pacific Concrete and Quarries Pty Limited [2000] NSWIR Comm59 [at 24], the court relied upon reasoning in McLean v Case & Deignam Pty Ltd [1961] 78 WN 476 (at 478) where the reasoning made reference to the provisions of the Justices Act 1902 (No 27) and held: . . . (the section) is a most valuable section and it is important...that it should not be whittled away by the allowance of objections to an information if they can be cured without causing injustice. 18 The relevant principles which evolve from these authorities can be summarised as follows: 1. If it was the intention of the prosecutor to proceed against the true defendant, and 2. The true defendant has not been deceived or misled; and 3. Ignoring the defect in the information and the summons does not create an injustice to the true defendant, then the amendment can proceed.

19 Significantly also are the provisions in s89 of the Transport Administration Amendment (Rail Management) Act 2000 as quoted.

20 The Court also takes into account s170(1)&(2) of the Industrial Relations Act 1996, which provisions allow: (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 . . . . Rule 224(1) of the Industrial Relations Commission's rules reflects the intention of s170 saying: The Commission may, on the application of any party at any time during the proceedings . . . allow an amendment to be made of any process upon such terms as to adjournment, the times within which any matter or thing maybe done in connection with the proceedings . . .

21 Mr Thompson made clear this application would not be opposed were it not for the provisions of s49 of the Act. That provision sets a two year limitation period on the issuing of any charge under the Occupational Health and Safety Act 1983. The limitation period expired on 27 January 2001.

22 The court has considered all submissions and is persuaded s89 of the Transport Administration (Rail Management) Act provides the Rail Infrastructure Corporation takes on the liabilities of Rail Services Australia.

23 The court is further persuaded, in accordance with the ruling of Peterson J as referred to in the matter of WorkCover Authority v Kevin R Sheather Services Pty Limited, s170 of the Industrial Relations Act 1996 authorises the court to make such an amendment as it considers necessary in the interests of justice.

24 The court is persuaded Rail Services Australia was mistakenly named as the defendant. The court is further persuaded Rail Infrastructure Corporation was intended by the legislature to be a continuation of and the same legal entity as Rail Services Australia (s89 of the Transport Administration Amendment (Rail Management) Act 2000) and it assumed the legal liability of Rail Services Australia (s89 of the Transport Administration Amendment (Rail Management) Act 2000). In the interests of justice and in consideration of all the circumstances as to the misnaming of the defendant, the court allows the orders applied for in the Notice of Motion.

25 The court orders: 1. That leave be granted to amend the application for orders in IRC305 of 2001 in the matter of Inspector Maurice Vierow v Rail Services Australia so as to insert a new name of the defendant, and 2. That the name of the defendant be amended to read Rail Infrastructure Corporation (formerly known as Rail Services Australia). 3. The respondent pay the applicant's costs on the Notice of Motion.

And: 1. That leave be granted to amend the application for orders in IRC306 of 2001 in the matter of Inspector Maurice Vierow v Rail Services Australia so as to insert a new name of the defendant, and 2. That the name of the defendant be amended to read Rail Infrastructure Corporation (formerly known as Rail Services Australia). 3. The respondent pay the applicant's costs on the Notice of Motion.

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