Inspector Regan v Southern Colliery Maintenance Pty Ltd

Background 5On 2 July 2008, Rodney Dale Morrison, a government official (Chief Inspector) appointed under s 145 of the Coal Mine Health and Safety Act 2002 ("the CMHS Act") and thereby by s 47B of the Occupational Health and Safety Act 2000 ("the OHS Act"), was taken to have been appointed as an inspector under the OHS Act and authorised by s 106 of the OHS Act, to institute a prosecution pursuant to s 8(2) of the OHS Act in respect of the defendant. 6On 16 December 2010, Mr Morrison applied to the court by notice of motion for the following order: That leave be granted to the applicant to substitute the prosecutor in these proceedings so that Robert William Regan becomes the prosecutor in place of Rodney Dale Morrison. 7On 23 December 2010, the court dealt with the notice of motion. Mr L Ormazabal appeared for the defendant (respondent to the notice of motion). Mr Ormazabal advised the court: ORMAZABAL:We have been instructed not to oppose, subject to certain conditions of which we gave notice to the other side yesterday afternoon, and when we've got confirmation confirming those, we will abide by those conditions and don't oppose the notice of motion. HIS HONOUR:In those circumstances, I order that the name Robert William Regan be substituted for the name Rodney Dale Morrison as the prosecutor. ORMAZABAL:Your Honour, I was asked to raise the question of costs in relation to today's appearance. Obviously we don't oppose the Notice of Motion, subject to the conditions and our appearance wasn't obviously required as it was the subject matter of the prosecutor, so we would be seeking costs of today. O'NEIL:Your Honour, I just need to indicate this and then respond to the costs application. I would like to read on to the record two of the conditions, the correspondence will reflect it. I told my friend this morning that I need to make a comment. Condition 3: That the change of Inspector [prosecutor] will not result in any further unnecessary delay in the proceedings. In the circumstances where I was at court until 5.30 yesterday, and this fax came at 3.30 yesterday and all the defendants were served with the notice of motion during last Friday, I told my friend this morning that, of course, for the prosecutor's part it won't result in any further unnecessary delay, but the prosecutor can't speak for all parties and the impact that may have on other parties. Condition 4: That the change in Inspector [prosecutor] is a change of name only and does not affect the proceedings in any other way. That needs clarification, in that the prosecutor's position is that it's a change of prosecutor not a change in name only. It does not affect anything that has gone before, but Mr Regan will now provide instructions in the essential parts of the proceedings. I conveyed to my friend this morning that I needed to put those matters on the record and, in the circumstances, costs shouldn't be awarded. HIS HONOUR: They are the conditions you are seeking? ORMAZABAL: Yes, they were, your Honour. HIS HONOUR: On that basis, therefore, you don't oppose the order being made that the name of Robert William Regan be substituted for Rodney Dale Morrison in matter 1033 of 2008? ORMAZABAL: Yes. ... O'NEIL:Just for more abundant caution, there were two other conditions which I didn't refer to and they're accepted and they preserve the rights of the defendant in terms of irregularity and the actual giving of consent. However, the prosecutor puts on the record that it will confirm in writing and we don't see that as continuing forever and will write to the defendant indicating that it should be done in a timely fashion if it sought to bring some challenge some time in the further, but there were those other two conditions. 8The hearing of the trial in respect of this matter commenced on 4 June 2012 and is part heard. At the commencement of the trial, Mr I Neil SC, who appeared with Mr D Nagle of counsel, for the defendant, moved on the notice of motion and then sought to postpone the hearing of that motion until a time convenient to the prosecutor and the court.

The legislation 9The CMHS Act relevantly provides in s 11, s 144(1)(a), s 148, s 149 and s 210 as follows: 11 Act to be read in conjunction with WHS Act This Act is to be read in conjunction with the Work Health and Safety Act 2011. ... 144 Outline of this Part (1) This Part provides for the appointment, functions and powers of the following people, who are called government officials in this Act: (a) the Chief Inspector, ... 148 Absence of Chief Inspector If the Chief Inspector is absent from duty, or on duty but outside the State, the Minister may appoint an inspector to exercise the functions of the Chief Inspector. 149 Functions of Chief Inspector (1) The functions of the Chief Inspector are: (a) the control and direction of inspectors and mine safety officers, and (b) reviewing appeals from notices issued by inspectors and mine safety officers, and (c) the other functions that are conferred on the Chief Inspector by this Act or the regulations, and (d) any other function conferred by the Minister from time to time. (2) For the purposes of this Act, the Chief Inspector is an inspector. ... 210 Chief Inspector subject to Ministerial control The Chief Inspector is, in the exercise of his or her functions, subject to Ministerial control and direction.

The OHS Act 10The relevant provisions of the OHS Act are s 47A, s 47B, s 106 and s 107 of the OHS Act: 47A Appointment of inspectors in connection with mining workplaces A person appointed as a government official under the Mine Health and Safety Act 2004 is taken to have been appointed as an inspector for the purposes of this Act and the regulations. Such a person is only authorised to exercise functions under this Act in relation to a mining workplace, but may exercise functions under Division 2 in relation to premises other than a mining workplace for the purpose of investigating any matter under this Act in relation to a mining workplace. 47B Appointment of inspectors in connection with coal workplaces A person appointed as a government official under the Coal Mine Health and Safety Act 2002 is taken to have been appointed as an inspector for the purposes of this Act and the regulations. Such a person is only authorised to exercise functions under this Act in relation to a coal workplace, but may exercise functions under Division 2 in relation to premises other than a coal workplace for the purpose of investigating any matter under this Act in relation to a coal workplace. ... 106 Authority to prosecute (1) Proceedings for an offence against this Act or the regulations may be instituted only: (a) with the written consent of a Minister of the Crown, or (b) with the written consent of an officer prescribed by the regulations, or (c) by an inspector, or (d) by the secretary of an industrial organisation of employees any member or members of which are concerned in the matter to which the proceedings relate. (2) In proceedings for an offence against this Act or the regulations, a consent to institute the proceedings, purporting to have been signed by a Minister or a prescribed officer, is evidence of that consent without proof of the signature of the Minister or prescribed officer. 107 Time for instituting proceedings for offences (1) Proceedings for an offence against this Act or the regulations may be instituted within the period of 2 years after the act or omission alleged to constitute the offence, except as otherwise provided by this section or section 107A. (2) This subsection applies to an offence against section 11 (Duties of designers, manufacturers and suppliers of plant and substances for use at work) or section 86 (Notification of incidents). Proceedings for any such offence may be instituted: (a) within 6 months after WorkCover first becomes aware of the act or omission alleged to constitute the offence, or (b) within 2 years after the act or omission alleged to constitute the offence, whichever provides the longer period to institute proceedings. (3) If a coronial inquest or inquiry is held and it appears from the coroner's report or proceedings at the inquest or inquiry that an offence has been committed against this Act or the regulations (whether or not the offender is identified), proceedings in respect of that offence may be instituted within 2 years after the date the report was made or the inquest or inquiry was concluded. (4) This section applies despite anything in any other Act.

Respective positions of the parties and submissions 11In essence, the defendant's submission is that the substitution of Robert William Regan is the commencement of entirely new proceedings undertaken by a different party. This, it is contended, cannot be done by reliance upon curative statutory powers that permit amendment or variance. 12Mr D Nagle, who appeared for the defendant on the motion, submitted in circumstances where the orders were made on 23 December 2010 being more than two years after the alleged corporate acts or omissions, which occurred on 7 July 2006, the defendant now has a defence, or plea in bar, to the proceedings pursuant to s 107(1) of the OHS Act. This section provides that proceedings must be instituted within the period of two years after the act or omission alleged to constitute the offence. 13Therefore, it followed that the commencement on 23 December 2010 of entirely new proceedings undertaken by a different party in the form of Mr Regan, were out of time. 14The principal submission of Mr Nagle, was that the institution of the proceedings were personal to Mr Morrison. Section 106(1)(c) of the OHS Act permitted Mr Morrison as an inspector and for so long as he held that position, to bring the proceedings. Section 106 limited and circumscribed who could initiate proceedings and did not permit the substitution of Mr Regan for Mr Morrison, nor was such substitution a defect to which s 16(2) of the Criminal Procedure Act 1986 ("the CP Act") applied. To substitute Mr Regan as the prosecutor was the commencement of entirely new proceedings undertaken by a different party. Mr Nagle accepted that Mr Morrison was an employee of the Crown and his empowerment to commence proceedings came from the Crown. 15Mr Nagle also submitted that the defendant did not say that Mr Morrison's retirement affected the proceedings at all. His submission was that the proceedings do not abate. Counsel referred to Elliott v Taylor [1947] St. R. Qd 210 at 212 for the proposition that it was not necessary to make an application in a criminal case in a court at first instance to substitute another person as prosecutor when before the complaint came on for hearing in a court of petty sessions, the complainant died (or he retired). 16Reliance was also placed on a judgment of Adams J in Kew v Commissioner of Fair Trading and Robinson [2007] NSWSC 394 where his Honour held that if the Commissioner of Fair Trading prosecuted under s 14 of the CP Act, as distinct from the Fair Trading Act 1987 ("the FT Act"), the substitution of Mr Robinson as prosecutor under s 14 could not be permitted as an amendment and would give rise to an entirely new proceeding undertaken by a different party. 17Mr Nagle also referred to Preston CJ's judgment in Director-General, Department of Environment and Climate and Change v Walker Corporation Pty Ltd (No 2) [2011] NSWLEC 229 where his Honour considered a defence application that raised the identity of a prosecutor and whether a proper person instituted and maintained proceedings. His Honour ordered that the name of the prosecutor in the summons be amended by omitting "Director-General of the Department of Environment, Climate Change and Water" and inserting instead "Lisa Corbyn". His Honour found that Adams J's comments in Kew were obiter. 18The prosecutor's position, in summary, was that the prosecution is properly to be seen as a prosecution on behalf of the Department of Primary Industries in the Right of the Crown commenced validly by Mr Morrison, a government official holding the position of 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 and authorised by s 106 of that Act to institute proceedings. Such proceedings are continued by Mr Regan, a government official holding the position of Chief Inspector appointed under s 145 of the CMHS Act and authorised to continue the proceedings. 19Mr P Strickland SC, who appeared for the prosecutor with Mr D O'Neil of counsel, submitted that when Mr Morrison instituted the proceedings, he did not do so in the exercise of his personal authority or personal functions, he did so carrying out his statutory functions in the public interest. He was appointed as an inspector under the relevant Act. He was deemed to be a government official and carried out his functions under the direction and control of the Chief Inspector. The Chief Inspector himself was under the direction and control of the Department of Primary Industries, as it then was, and therefore in commencing proceedings, Mr Morrison did so representing the Crown as constituted by the Department. 20Mr Strickland relied on a decision of the Supreme Court of New South Wales, Court of Appeal in Ove Arup Pty Ltd v Industrial Court of NSW [2006] NSWCA 28; (2006) 149 IR 193, which he submitted, was precisely on point in that the Court of Appeal held that an inspector did not institute proceedings in his personal capacity.

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.

Orders 1.The notice of motion is dismissed. 2.Costs are reserved.

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