Consideration
21Mr Morrison, at the time he commenced these proceedings, was a government official, a Chief Inspector appointed under s 145 of the CMHS Act and thereby by s 47B of the OHS Act taken to have been appointed as an inspector under the OHS Act. He carried out his functions under the direction and control of the Chief Inspector who is under the direction and control of his Department.
22In instituting proceedings, Mr Morrison was acting on behalf of the Department which represents the Crown. Accordingly, the Crown is a party to the prosecution.
23I agree with the submissions of Mr Strickland that when Mr Morrison commenced these proceedings, he did not do so in the exercise of his personal authority or personal functions. He did so carrying out his statutory function in the public interest.
24In Ove Arup Pty Ltd v Industrial Court of NSW, Basten J, with whom Spigelman CJ and Mason P agreed, observed at [69] - [71] as follows:
[69]One might add that, were prosecutions brought by officers in the service of the Crown not given recognition as acts of the Government, there might be a serious question as to whether a prosecution involving matters of great public importance might not lapse upon the death of the inspector who brought the prosecution. The inspector who commenced the prosecutions did not do so in any private interest, or at private expense. He did so as an officer appointed by the WorkCover Authority for that purpose amongst others, the WorkCover Authority itself being a representative of the Crown.
[70]In England, there is an established line of authority with respect to the analogous position of prosecutions brought by police officers. Such proceedings do not abate upon the death of the nominal informant because the true informant is taken to be the office from which he or she obtains instructions and direction. Thus, in Hawkins v Bepey [1980] 1 WLR 419, a prosecution instituted by a chief inspector, who subsequently died, was held to be undertaken by him in a representative capacity, on behalf of the Chief Constable who controlled and directed the relevant division of the police force under the Police Act 1964 (UK): see pp 422H-424D (Watkins J, Browne LJ agreeing, and the authorities referred to, including Reg v Truelove (1880) 5 QBD 336 at 340 (Lush J) and Reg v Burt, Ex parte Presburg [1960] 1 QB 625 at 635 (Lord Parker CJ). To similar effect, the Full Court of the Supreme Court of Queensland held in Elliott v Taylor [1947] St R Qd 210 that a prosecution for a breach of the National Security (Prices) Regulation (Cth), brought by a departmental officer, was in effect a criminal proceeding brought on behalf of the Crown which did not abate, because the Crown "has control over the proceedings": at 212 (E.A. Douglas J). Mathews J agreeing stated (at 213) in bald terms:
"On the authorities quoted I think the Crown is a party to all criminal proceedings and consequently, the Crown Solicitor, acting for and on behalf of the Commonwealth, can institute this appeal."
[71]It is not necessary for present purposes, to go so far as the Full Court did in Elliott v Taylor; it is sufficient to find, in accordance with the English authorities, that an officer, carrying out statutory functions in the public interest effectively represents the authority to which he is subject, by way of control and direction, which is taken to be the real party to the proceedings. In this case that body is the WorkCover Authority, which represents the Crown. Accordingly, the Crown is a party to the prosecutions. (My emphasis).
25It follows that substituting the prosecutor in the instant proceedings did not commence entirely new proceedings.
26I find that substituting the prosecutor who is a government official (Chief Inspector appointed under s 145 of the CMHS Act) did not commence entirely new proceedings.
27In my view, the purpose of s 106 of the OHS Act is to ensure that proceedings are under the control throughout their life of an appropriately qualified person who will ensure that frivolous or vexatious prosecutions will not be instituted or continued: Morrison v Rodney Morrison v Dartbrook Coal Pty Ltd and Tecrete Industries Pty Ltd [2002] NSWIRComm 127; (2002) 116 IR 252 (at [61]). This purpose is maintained and promoted by requiring another officer to take over the prosecution once the first officer is not able to continue the prosecution.
28The prosecution is properly to be seen as a prosecution on behalf of the Department, in the right of the Crown, commenced validly by Mr Morrison and continued by Mr Regan. I am at a loss to understand how if at the relevant time a prosecution was validly instituted, such validity can be affected by an ex post fact. Such a step would seem on its face, to be merely procedural.
29Mr Nagle's contention that if a prosecutor died the Crown could carry on the proceedings as being distinguishable from the circumstances here is misconceived. There is no statutory provision that makes such a distinction.
30The circumstances of this matter, in my view, are distinguishable from those in Kew. That case concerned the propriety of summary criminal proceedings in the Local Court in which the power to prosecute was found in s 14 (the common informer provision) of the CP Act. Accordingly, there was no provision that limited the ability to commence prosecutions under the relevant offence provisions to a specified person or class of person. In Kew at the time of Adams J's decision, declarations had been made that Mr Robinson had no power or authority conferred by the FT Act to commence the proceedings and no power or authority as a public officer for and on behalf of the Commissioner of Fair Trading (at [8]).
31It was the very fact that Mr Robinson was not acting on behalf of the Commissioner of Fair Trading that grounded the finding that his substitution would result in the commencement of entirely new proceedings (at [25]).
32Preston CJ observed in Director-General, Department of Environment and Climate and Change v Walker Corporation Pty Ltd (No 2) at [26] that in Kew, Adams J held that Mr Robinson was acting as a public officer, but otherwise than as the Commissioner's agent. It was in those circumstances that Adams J held that the substitution of Mr Robinson by the Commissioner would have led to the institution of entirely new proceedings undertaken by a different party (see Kew at [25]).
33In this matter, the Crown is a party, as the inspector acts on behalf of the Department of Primary Industries. In my opinion, when the Crown is a party to the prosecution, it cannot be said that the substitution of one prosecutor for another means that the proceedings are being undertaken by a different party. For these reasons the notice of motion should be dismissed.