Consideration
26The essential question for determination is whether the applications for order failed to meet firstly, the mandatory requirements of the various statutory provisions and secondly, the principles established by the High Court in Kirk . These questions should be answered in the negative.
27The jurisdiction of this Court to order the attendance of defendants is governed by a combination of the OHS Act , the Industrial Relations Act 1996 (" IR Act "), the CP Act and the Industrial Relations Commission Rules 1996 (now repealed) (" IRC Rules ").
28Specifically, jurisdiction was brought about by the following provisions:
(a) Section 105(1) of the OHS Act which provides that proceedings for offences against the OHS Act are to be dealt with summarily and permitted them to be dealt with either before a Local Court constituted by a Magistrate sitting alone, or before the Industrial Relations Commission in Court Session (taken to be the Industrial Court);
(b) Section 168 of the IR Act which provides that proceedings before the Industrial Court in respect of offences are to be dealt with summarily and that Ch 4 Pt 5 of the IR Act applies to them;
(c) Section 246 of the CP Act which provides that a prosecutor can apply for an order that the person who is alleged to have committed an offence appear before the Court to answer the charge;
(d) Rule 217B(1) of the IRC Rules , which provides that proceedings before the Industrial Court have to be commenced by an application for order which states (inter alia) the nature of the offence alleged.
29It follows that the jurisdiction of this Court is dependent upon the Court making an order that the defendant is required to answer a charge in relation to an offence under the OHS Act : see Kirk at [20].
30Spigelman CJ, Beazley and Giles JA agreeing in John Holland observed at [46] - [47]:
[46] Section 246(2) of the Criminal Procedure Act and r 217B of the Industrial Relations Commission Rules, set out at [22] and [26] above, are both expressed in mandatory terms:
An application under s 246 of the Criminal Procedure Act " must " be in accordance with the Rules.
Rule 217B(1) of the Rules requires that an application " must " be made under s 4(1) of the Supreme Court Summary Jurisdiction Act.
Rule 217B(2) provides that an application " must " state, relevantly, the nature of the offence alleged.
Rule 217C(3) requires that service " must " be effected in the manner specified in the Rules there identified.
[47] These provisions constitute a direct route to the proposition that a failure to identify the nature of the offence constitutes jurisdictional error. An Application under s 246(1)(a) of the Criminal Procedure Act requires an accused to answer "to the offence charged in the order". Section 246(2) and r 217B, as noted, both use the word "must". The reasoning in Kirk gives these mandatory requirements specific content.
31Spigelman CJ, after analysing s 246(2) of the CP Act and r 217B of the IRC Rules observed that they were both expressed in mandatory terms.
32Following the decision of the High Court in Kirk , there can be no dispute that the prosecutor is required to firstly, identify the deficiencies in the system of work which are said to contravene the OHS Act and secondly, to identify the measures which it states should have been taken: see Kirk at [26], [28].
33The plurality in Kirk stated that the lack of specific content to the allegations which were the subject of the particulars in the charge, rendered it impossible to defend the charges effectively. The defendants in that matter were required to negate all possible actions that might conceivably be taken by them, rather than just establish that any specific measures pleaded by the prosecutor were beyond the scope of what was "reasonably practicable". The plurality observed at [28] after analysing the statements of the offences, "needless to say, the appellants could not have known what measures they were required to prove were not reasonably practicable." All members of the Court agreed that the defect was a sufficient basis for the convictions to be quashed, was an error in the construction of s 15 and s 16 of the OHS Act 1983 and thus a wrong understanding of what constituted an offence that led to the convictions in the Kirk matter.
34The relevant charges in these matters satisfy the essential legal elements of the offence under s 8(1) and s 8(2) of the OHS Act . The charges specify the time, date and place of the offence; the name and address of the defendant; that the defendant's employees were exposed to risk and that the risk arose at the defendant's place of work and from its undertaking.
35The applications for order therefore identified the legal nature of the offence and, in my view, there was no uncertainty or ambiguity. Furthermore, the applications cannot be described as "grossly deficient" in identifying, on its face, what offence was being alleged, such that s 16(2) of the CP Act would be read as having no application to it.
36To my mind, what clearly emerges from the High Court's decision in Kirk is that it is no longer sufficient to allege that as a consequence of a series of unspecified failures on the part of the employer, there remained present general risks to the health and safety of others.
37The plurality stated at [30] in Kirk that "the matter should not have proceeded without further particularisation of the acts and omissions said to found the charges." I read the High Court's decision in Kirk as accepting that if further particulars had have been provided by the prosecutor, the charges may have been valid. It was the particularisation of the charge, that being, the failure to identify the acts or omissions the subject of the charges (what measures the company in Kirk could have taken, but did not take), which resulted in the charge being invalid.
38Similarly Spigelman CJ's observations in John Holland at [78], although needing to be read in the context of that case, were to the same effect. The Chief Justice observed at [78]:
Where words of general application are used such as "adequate system of ground support" or "adequate system of communication" they may give rise to an application for further better particulars. However, in this context, such terminology does not fail to identify a "particular measure" within the reasoning of Kirk . What is alleged in each respect against the applicant in terms of a failure to take specific steps is clearly pleaded. What is an "adequate system of ground support" is identified in the following further particulars, ie, compliance with the original design, thicker shotcrete, effective rock bolding. Similarly, what is an "adequate system of communication" is also specified in the sub-particulars on benching, rockbolt failures, etc.
39The Chief Justice was referring to the terminology used in the application for order in the John Holland case. The observations of Giles JA at [141] also need to be read in the same context.
40It is essential to bear in mind that a critical distinction made by the High Court in Kirk and the Court of Appeal in John Holland was in respect of whether a defect in an application for order discloses an offence known to law, or is invalid.
41Where the application for order has resulted in a conviction, as was the position in Kirk , and it is ultimately found to be "grossly defective" because of a failure to plead an essential legal element of the offence charged (the measure), such defect is fatal and any conviction is required to be quashed as the defendant was never the subject of a valid charge.
42However, where a challenge is brought by the defendant, for example, prior to a plea, and it is determined that the application for order was defective, such deficiency may be curable by the provision of further particulars, or the prosecutor seeking leave to amend.
43The critical question that needs to be determined in respect of the applications for order in these matters, is whether any alleged defect is capable of being remedied. In other words, if the particulars failed to identify a specific measure, can one be implied from the particulars?
44The Court of Appeal in Knaggs makes clear that an absence of particulars or inadequate particulars in a Court Attendance Notice, does not in itself, lead to the proceedings being invalid or a nullity. There is nothing in Kirk which is inconsistent with the principle in Knaggs . The decision in Kirk did not hold that the applications in that case were nullities or invalid: see Kirk at [30]. Rather, the decision in Kirk , at [35] and [74], is authority for the proposition that the measures to be taken by the defendant were not properly identified at any stage during the course of the trial and therefore the defendant was unable to consider a defence.
45An inadequacy of particularity in an application for order is capable of being remedied pursuant to s 16(2) of the CP Act and s 170 of the IR Act , where the statement of offence clearly identifies the nature of the offence charged, provided that there is no uncertainty or ambiguity, and any such inadequacy is to be treated as an irregularity that does not nullify the proceedings: John Holland (Industrial Court) at [38] - [39], [57], [79], [101] and Rockdale Beef at [121] - [123], [130] - [133].
46Spigelman CJ in John Holland observed at [79] that the possibility of further particularisation does not detract from the validity of the charge.
47As I have already observed, the defendant Harrison submitted that the charges did not identify the measures he should have taken to avoid the risk of injury in respect of the removal of a diseased/dying tree and that it was not sufficient for the prosecutor to rely on the contention that the measures were implicit in the particulars.
48The first particular does not expressly state the measure by which the risk could have been avoided, but to my mind, the defendant could not have been under any misunderstanding as to the measure that the defendant should have taken, namely, that its employees, or non-employees, should not climb a diseased tree. They should have utilised an alternate method to remove the tree other than having to climb it. This may also be implied from particular (c). Particular (d) provides that the defendant Harrison "failed to ensure any (or any adequate) supervision". The defendant could challenge this particular by way of defence and call evidence that he did provide supervision. Alternatively, the defendant could argue that it was not reasonably practicable to provide any supervision, or seek further and better particulars of what supervision the prosecutor contends that he should have provided. See observations of the Chief Justice at [78] and Giles JA at [141] in John Holland .
49Similar observations may be made in respect of particular (f) "the failure to ensure the assessment or adequate assessment of the skills, training and abilities of persons engaged to conduct the arboreal work". The prosecutor's case in respect of this particular was that that there was no assessment. The defendant could defend this particular by calling evidence of how it assessed the skills, training and ability of those it engaged, or argue that it was not reasonably practicable to do so. In respect of particulars (e) "failed to ensure the provision of such information, instruction and training" and (g) "failure to provide people of sufficient skill, training and ability", the defendant could seek further particularisation of what would have been sufficient and why from the prosecutor.
50Although the particulars may have been inadequate or deficient, such failures are not sufficient to render the applications for order void.
51In Knaggs , Campbell JA, Mason P and Tobias JA agreeing, stated at [48]:
... The wording of section 16(2) is broad, and its reference to a defect in a CAN "in substance or in form" is capable of applying, as a matter of language, to a failure to state the particulars of the alleged offence. It may be that, in some circumstances, there are deficiencies in a CAN so gross that as a matter of construction section 16(2)(a) would be read as not applying to them: cf The King v Hickman & Others; ex parte Fox & Clinton (1945) 70 CLR 598. There is no need to decide whether that is so, as the argument we are asked to consider in this application is whether, when the CAN identified all the elements of the offence, any failure to comply with section 175(3)(b) has the effect that the proceedings purportedly commenced by the CAN that breaches that requirement are void.
52I find that the Industrial Court has had its jurisdiction properly invoked. The defendants' notices of motion are dismissed. The defendants should pay the prosecutor's costs.