1 The prosecution has made an application to vacate the trial date currently set down to commence on 26 October 2009 against the defendants. The defendants, with the exception of Parsons Brinckerhoff Australia Pty Limited, have consented to the application.
2 The application arises from a successful application brought by John Holland Pty Ltd in the High Court to hear and determine an issue as to whether John Holland was a "non-Commonwealth licensee" at the time of the alleged offences and thereby excluded from the operation of the Occupational Health and Safety Act 2000.
3 John Holland's application in the High Court was heard by Justice Hayne. His Honour determined that the application should be listed in the original jurisdiction of the High Court with another matter. Inquiries made by the prosecutor of the Deputy Registrar of the High Court revealed that the earliest date on which the matters could be listed for hearing was in the September/October sittings, or in the November sittings. It would appear from the anticipated timetable that John Holland's application in the High Court will not be determined until some time after the hearing of the charges against it, and the other defendants, in this Court, which have been set down to commence on 26 October for seven weeks.
4 In an earlier judgment, I made orders on the application of the prosecutor that the charges against all defendants should be heard jointly: Inspector Nathan Hamilton v Thiess Pty Ltd and Ors [2009] NSWIRComm 41. At that time John Holland had objected to the application on the basis that the issue as to whether it was a "non-Commonwealth licensee" (referred to as the "Comcare issue") may be, or was likely to be, the subject of an application before the High Court. In setting all matters down for hearing on 26 October 2009 I set John Holland's matters down on a provisional basis granting it liberty to apply in order to make any application in the intervening period: at [10]. The likelihood of proceedings being commenced in the High Court has now become a reality. This, in my view is a significant factor, which taken together with John Holland's consent to the prosecutor's present application, is strongly in favour of that application being granted: see Masterton Homes Pty Ltd v WorkCover Authority of New South Wales (Inspector Batty) [2009] NSWIRComm 91 at [13]. An additional consideration in favour of the application being granted is that the remaining defendants, with the exception of Parsons Brinckerhoff have, as earlier noted, consented to the prosecutor's application.
5 It remains to consider whether all the matters should be heard together. This was the consensus of all the parties except Parsons Brinckerhoff which, in opposing the prosecutor's application relied primarily on the prejudice which it said it would suffer, by reason of delay.
6 The prosecutor submitted that all matters should be re-listed and heard jointly in early 2010. Two principal reasons were advanced in support of the submission. First it was sought to be emphasised that the issues are the same in all matters. What flowed from this was the undesirable prospect of having to run the same trial twice if the application was refused. If two trials were run the prosecutor said the time taken to run one trial will not be any less than the time taken to run the second trial.
7 As to the commonality of issues, the prosecution briefly outlined the facts and circumstances underpinning the offences. Those facts and circumstances concern the collapse of the Lane Cove Tunnel while under construction, which, it is alleged, gave rise to a risk to the safety of workers and other persons in the vicinity of the tunnel. The defendants' individual responsibilities with regard to the construction of the tunnel included construction, design and geotechnical inspection. The real issue according to the prosecutor will be who was responsible for the collapse. The prosecutor's case against all defendants will be that they shared the responsibility. The prosecutor anticipates that there will be a degree of "finger pointing" in which each defendant will seek to deflect responsibility for the tunnel collapse onto someone else. The primary allegation which will be made by the prosecutor is that there was a deviation from the intended design of the tunnel. Arising from these matters is, according to the prosecutor, a serious risk of inconsistent verdicts if the defendants' hearings are separated. The absence of one constructor may facilitate a defence run by the other constructor which would not otherwise be available if the charges against both were to be heard together. An unfair advantage may also accrue to a constructor if it is put on trial in the absence of the designer (Parsons Brinckerhoff).
8 A rationale therefore for joint hearings would be the enhancement of justice by reason of the avoidance of the possibility of inconsistent verdicts.
9 The prosecutor conceded that the success of this application here carried with it a component of delay. It was emphasised however that delay is but one component of the administration of justice and when it is balanced against the other risks to the administration of justice it is of less significance than the prospect of having to run the trial twice.
10 On the aspect of delay the prosecutor informed the Court that all the prosecution witnesses will be available next year, and the brief of evidence is complete in that all statements and reports have been signed and served. The prosecutor also informed the Court that the evidence against the defendants is "locked in", in that it is all in writing. These matters, the prosecutor submitted, afford the defendants some protection by reason of any delay if the application is granted.
11 John Holland, joining in the prosecutor's application submitted that there was a legitimate interest, acknowledged in the law, in having the joint disposition of matters which involve multiple defendants. John Holland sought to reinforce a point made by the prosecutor, namely that the matters are factually entwined. The relevant role of the constructors, designers and others in the tunnel project are intersected and fundamentally bound up in the one matter. John Holland should be afforded the opportunity to have its matter in the High Court resolved before the proceedings in this Court commence against it and the other defendants. This is so according to John Holland because the issue before the High Court goes fundamentally to whether it can be prosecuted by the Court. This factor together with the commonality of issues and the same or substantially similar factual sub-stratum underpinning the cases against each defendant compel the conclusion that the proceedings against all defendants should be vacated and adjourned.
12 An additional risk identified by John Holland if the hearings were to be separated was the risk of inconsistent factual findings, specifically findings going to issues of credit. Witnesses should be heard once only and findings as to the credit of a particular witness or an issue should be made only once. To do otherwise may risk a fundamental unfairness.
13 John Holland also addressed the issue of delay. It stated that any delay which would ensue if the hearings were vacated would not amount to a specific or particular species of delay such as might arise for example where documents are lost or a witness is unable to be located.
14 Thiess Pty Ltd supported the prosecutor's application to vacate the proceedings and adopted the submissions put by both the prosecutor and John Holland on the application. Thiess also highlighted one further matter for consideration which was that Thiess and John Holland have been charged as a joint venture and it was therefore appropriate that their matters be heard together. Thiess also endorsed the view that the issues in the four sets of proceedings are factually entwined and the witnesses common to all matters. Pells Sullivan Meynink Pty Ltd adopted the submissions of the prosecutor and the submissions of the other defendants made in support of the application to vacate the hearings.
15 Parsons Brinckerhoff's submission in opposing the application was that the hearing dates in its matters and in the matters of Thiess and Pells Sullivan Meynink should be maintained. With regard to John Holland, Parsons Brinckerhoff sought to remind the Court that an adjournment of proceedings against John Holland was contemplated in the earlier judgment in which Orders were made that the matters proceed jointly commencing on 26 October this year. In the judgment John Holland's matters were set down on a provisional basis granting it liberty to apply in order to make an application in the period leading up to the 26 October (at [10]). Those last-mentioned Orders, I interpolate, were made in contemplation of John Holland successfully pursuing its application in the High Court to hear and determine the Comcare issue.
16 Parsons Brinckerhoff advanced the following grounds in opposition to the prosecutor's application. These were:
(i) The present application to vacate the trial, made by the prosecutor, contradicts the basis upon which the prosecutor successfully applied to join the proceedings against the defendant/s.
(ii) There has already been substantial delay in these proceedings. Since it was first listed in December 2008, a great deal of court time has been set aside for the October 2009 trial.
(iii) The constitutional matter involving John Holland has no bearing on Parsons Brinckerhoff. If, as a result of the proceedings in the High Court, the prosecution against John Holland is discontinued, the significant further delay caused by vacating the October 2009 trial pending the High Court proceedings will have been a waste of time.
(iv) Vacating the October 2009 trial will result in prejudice to the defendant.
(v) By analogy with the principles applicable to adjournments pending appeals to the High Court, the defendant's case should proceed to hearing unless the prosecutor establishes that a refusal to vacate the trial would prejudice a party to the point of denying justice. In this case, the administration of justice is better served by severing John Holland from the October 2009 trial, as was envisaged in the Court's decision of 25 March 2009.
17 I propose to consider each of the grounds in turn.
18 The basis upon which Parsons Brinckerhoff developed its first ground was that when the prosecutor earlier sought to join the defendants in the one set of proceedings, he sought only the provisional inclusion of John Holland and pressed for the hearing date in October 2009 on the basis that, if necessary, the John Holland matters could be severed from the trial.
19 This, I should say at the outset, is not an entirely accurate characterisation of what was put by the prosecutor at that time. This is borne out by the transcript in which counsel then acting for the prosecutor, Mr Reitano, sought to draw a distinction between two less desirable outcomes namely where there are two hearings, one against three defendants and the second against John Holland alone, or where there are four separate hearings. Neither outcome was favoured by the prosecutor whose primary position was to avoid prosecuting in four separate hearings.
20 It would also be inaccurate to construe the Order of this Court provisionally listing John Holland's matters for hearing on 26 October with the other defendant, as indicative of an intention, in the event John Holland made a successful application to have the Comcare issue heard and determined by the High Court, to list John Holland's matter here for separate hearing. As it has transpired John Holland has been successful in its application to the High Court to have the Comcare issue heard but it has made no application to this Court for a separate hearing of the charges against it. Rather it has joined in the prosecutor's application to vacate the October hearing dates and have all matters set down for a joint hearing sometime in 2010.
21 Nor is it a consideration of much weight that if the Comcare issue is decided in John Holland's favour in the High Court then this would not dispense with the need of the prosecutor to call the John Holland witnesses in the proceedings against the other defendants. The Court cannot proceed on the basis that John Holland's application in the High Court will be successful.
22 Parson Brinckerhoff"s third ground also lacks merit. While it may be true that the determination of the Comcare issue in the High Court will have no bearing on the other defendants, the Court cannot base its findings and conclusions on speculation as to the outcome of that issue in the High Court.
23 Parsons Brinckerhoff's second, fourth and fifth grounds raise essentially the same issue, namely prejudice to it, by reason of delay, if the hearings are adjourned until 2010. Parsons Brinckerhoff contended that there had already been substantial delay in these proceedings. A chronology of the procedural history of the matters was provided to the Court. The chronology shows that Parsons Brinckerhoff entered pleas of not guilty to the charges brought against it on 11 December 2008. The current hearing dates of 26 October 2009 were set down on 25 March 2009. In the intervening period between 11 December 2008 and 25 March 2009, the Full Bench heard issues raised by way of Notices of Motion filed by John Holland and Pells Sullivan Meynink. Parsons Brinckerhoff was not a party to those applications. This timeline, however, of itself, does not suggest a substantial delay in the proceedings. Parsons Brinckerhoff also sought to rely on a "great deal of court time" which has been set aside for the October hearings. This may be so but it arises out of the size and complexity of the prosecution brief. The brief, the Court has been told, comprises 72 folders of documents as well as additional material. Some 46 prosecution witnesses will be called to give evidence.
24 Parsons Brinckerhoff relied on the anticipated length and complexity of the hearings as adding to a significant further delay if the October hearing dates are vacated. The further delay, it was said, will cause prejudice to Parsons Brinckerhoff because it will be harder for witnesses to accurately recollect events leading up to the collapse of the tunnel (in November 2005). This will affect its ability to properly clarify and challenge assertions made by the prosecution witnesses in their statements. In this regard Parsons Brinckerhoff sought to rely on the observations of McHugh J (made in the context of an extension of a limitation period in civil proceedings) in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 551:
The enactment of time limitations has been driven by the general perception that "[w]here there is delay the whole quality of justice deteriorates". Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo , "what has been forgotten can rarely be shown". So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now "knowing" that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose. A verdict may appear well based on the evidence given in the proceedings, but, if the tribunal of fact had all the evidence concerning the matter, an opposite result may have ensued.
25 In oral submissions Parsons Brinckerhoff stressed the factor of delay as a ground for opposing the application. It referred to the various Notices of Motion filed by its co-defendants in the proceedings which have caused a delay over which Parsons Brinckerhoff has had no control. It also expanded upon the aspect of fading memories of witnesses as a matter causing prejudice by reason of any further delay. The fact that the prosecutor's brief of evidence has been served and "locked in" (according to the prosecutor) does not dispose of the difficulties associated with the deterioration of memory of the witnesses, which condition may manifest during their oral evidence. These considerations cannot be subsumed by contrary assertions advanced by the prosecutor and the other defendants that the administration of justice will be brought into disrepute if the matters are not heard jointly.
26 Parsons Brinckerhoff in opposing the application did so on the basis that the October hearing dates in its matters and those of Thiess and Pells Sullivan Meynink should be maintained but that John Holland's matters could be severed and heard sometime in 2010. This proposal as I earlier observed would entail the Court having to hear two separate trials, traversing the same or substantially similar facts. On this construction I consider it appropriate to approach the countervailing factors raised by the parties in the context of an application for separate trials.