Inspector Stevens v Harrison

Industrial Relations Commission (NSW)|2011-05-30|Before: Staff J

Judgment 1Stephen Patrick Harrison ("the defendant") being a director of Australian Independent Contractors Agency Pty Ltd ("AICA") was deemed to have contravened s 8(2) of the Occupational Health and Safety Act 2000 ("OHS Act") by virtue of s 26(1) in that AICA, being an employer, on 23 August 2005, at 6 Verona Street, Strathfield in the State of New South Wales, failed to ensure that persons not in its employment, in particular, Hamish Crombie-Smith, were not exposed to risks to their health or safety. The defendant is yet to enter a plea. 2On 24 March 2010, the defendant filed a notice of motion seeking that the application for order be struck out or dismissed. In the alternative, a permanent stay was sought. 3On 11 June 2010, the prosecutor filed a notice of motion seeking that leave be granted to amend the particulars of the application for order as reflected in an amended application. On 1 March 2011, I ordered that the relief sought by the defendant be refused. I granted leave to the prosecutor to file an amended application for order: Inspector Stevens v Ford [2011] NSWIRComm 10. 4On 6 May 2011, the defendant filed a notice of motion seeking as follows: Pursuant to section 5AE(1) of the Criminal Appeal Act 1912 (NSW) as applied by section 196 of the Industrial Relations Act 1996 (NSW), the Applicant Defendant seeks that the Judge he the proceedings, the Honourable Justice Staff submit the following questions of law to the Full Bench of the Court: (a) Whether the Application for Order filed by the Prosecutor was invalid, bad at law, a nullity and, consequently, whether any proceedings were, or are, before the Court within its jurisdiction? (b) Whether the Prosecutor has failed to comply with the requirements of section 26 of the Occupational Health and Safety Act 2000 NSW? (c) Whether, if the Application for Order was invalid, bad at law, a nullity or otherwise defective, the Application for Order can be amended on application by the Prosecutor? 5The prosecutor opposed the referral of the questions of law to the Full Court. For the reasons that I now provide, I decline to exercise my discretion to refer the questions of law. 6Mr A Moses SC with Mr D O'Neil of counsel, appeared for the defendant. Mr R Reitano of counsel appeared for the prosecutor. Both counsel agreed that this application be determined on the written submissions filed by the parties. The Court adopted this course.

Judgment re notice of motion to strike out 7In Inspector Stevens v Ford , I observed at [43]: The 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? 8At [46] - [51] I observed: [46] Spigelman CJ in John Holland observed at [79] that the possibility of further particularisation does not detract from the validity of the charge. [47] As 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. [48] The 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 . [49] Similar 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. [50] Although the particulars may have been inadequate or deficient, such failures are not sufficient to render the applications for order void. [51] In 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. 9In respect of the prosecutor's notice of motion, I determined at [71] - [73] as follows: [71] I have already determined that the acts or omissions may be implied or inferred from a proper consideration of the charges. I am not persuaded that the charges are uncertain and so gross that the amendments should be rejected. Unlike Kirk , here the defendant Harrison has not yet entered a plea and the defendant Ford has pleaded not guilty. No trial dates have been set, and the defendants have been on notice for some considerable period of time of the prosecutor's application to amend. Further particulars have already been provided to the defendant Harrison. [72] I find in these circumstances, there is no prejudice to the defendants occasioned by the amendments to the applications for order sought by the prosecutor. Nor, in my view, will such amendments result in an injustice to the defendants: see Mark Anthony Clark (1993) 71 A Crim R 58 at 69; James Borodin v R, Irene Borodin v R, ED v R, Bogomiagkov v R [2006] NSWCCA 83 at [20], [25]. [73] Pursuant to s 16(2) of the CP Act and/or s 170 of the IR Act , I grant leave to amend each of the applications for order in accordance with the amended applications annexed to the notices of motion filed by the prosecutor.

Statutory provisions 10I set out the relevant statutory provisions: Criminal Appeal Act 1912 5AE Point of law stated during summary proceedings (1) At any time before the completion of proceedings before the Supreme Court in its summary jurisdiction, the Land and Environment Court in its summary jurisdiction or a Court of Coal Mines Regulation in its summary jurisdiction, the judge hearing the proceedings may, or if requested by the Crown must, submit any question of law arising at or in reference to the proceedings to the Court of Criminal Appeal for determination. (2) The Court of Criminal Appeal may make any such order or give any such direction to the court concerned as it thinks fit. Industrial Relations Act 1996 196 Appeals from and references by members of Commission in criminal proceedings (1) This section applies (and the other provisions of this Part do not apply) to appeals and references to the Full Bench of the Commission in Court Session in respect of criminal proceedings taken before a judicial member of the Commission. (2) The Criminal Appeal Act 1912 applies to any such appeal or reference in the same way as it applies to an appeal or reference to the Court of Criminal Appeal in respect of criminal proceedings taken before a Judge of the Supreme Court in its summary jurisdiction. (3) For the purposes of subsection (2), a reference (however expressed) in the Criminal Appeal Act 1912: (a) to the Court of Criminal Appeal-is taken to be a reference to a Full Bench of the Commission in Court Session, and (b) to the Supreme Court-is taken to be a reference to the Commission in Court Session, and (c) to rules-is taken to be a reference to rules of the Commission, and (d) to the Attorney General-is taken to include a reference to the Minister, and (e) to the Director of Public Prosecutions-is taken to include a reference to the prosecutor in the proceedings before the Commission in Court Session, and (f) to the registrar-is taken to be a reference to the Industrial Registrar. (4) Subsection (2) does not apply to any provision of the Criminal Appeal Act 1912 relating to costs.

Submissions of the defendant 11Mr Moses submitted that the Full Court in Rodney Morrison v Joy Manufacturing Co Pty Ltd [2004] NSWIRComm 107; (2004) I37 IR 8 (at [53]) held that no appeal lies to the Full Court pursuant to s 5F of the Criminal Appeal Act 1912 (" CA Act ") , from the interlocutory judgment or order of a judicial member of the Court dealing with a criminal proceeding in the Court's summary jurisdiction. This approach was confirmed in Edwards Madigan Torzillo Briggs Pty Ltd v Mansell [2004] NSWIRComm 162; (2004) 139 IR 362 at [30]; Country Energy v Malone [2005] NSWIRComm 78; (2005) 138 IR 221 and Morrison v Murray [2005] NSWIRComm 142; (2005) 142 IR 387. 12Senior counsel noted that the Full Court had made a number of observations as to the lack of an appropriate avenue of appeal from interlocutory decisions: see Rodney Morrison v Joy Manufacturing at [69]; Country Energy at [58] and Morrison v Murray at [90]. However, despite these observations by the Full Court, to date there has not been any amendment such as what facilitates a right of appeal. 13Mr Moses emphasised that specifically relevant to this matter was the Full Court's observations in Rodney Morrison v Joy Manufacturing at [62], where the Court observed: ... In Ridge Consolidated Pty Limited v WorkCover Authority of NSW (Inspector Mauger) (2000) 100 IR 156 the appeal was brought by a defendant whose motion at first instance had been rejected by the trial judge. The defendant may well have been able to challenge the trial judge's decision by means of a reference, by leave, to the Full Bench pursuant to s 5AE of the Criminal Appeal Act . 14Mr Moses submitted that the matter most instructive for the circumstances of this case was the Full Court decision in Country Energy . In that matter, the defendant had raised a point arising from a merger between relevant entities based upon which the defendant argued that criminal liability had not been transferred to it. This contention was rejected by Haylen J. 15The defendant sought leave to appeal pursuant to s 196(1) of the Industrial Relations Act 1996 (" IR Act ") and s 5F of the CA Act . 16The Full Court held that although there may not be power to hear an appeal from an interlocutory judgment, a discretion may be exercised under s 154. The matters which the Full Court took into account in making its determination into the availability of s 154 were, it was submitted, relevant considerations in this matter. These included: (a) The circumstances of the case were different to the usual case in which declaratory relief is sought in criminal proceedings and where the grant of the relief might interfere with the proper progress of a criminal trial. (b) There was a public interest in clarifying the legal rights of the respective parties. (c) It would be contrary to public interest to place the parties in the situation where the proceedings might continue in circumstances where there is no legal authority for those proceedings to continue. (d) The Appellant has no ready avenue of appeal if its present appeal is dismissed. (e) The order granted by the Trial Judge depended not on matters of fact or discretion but on (an erroneous) application of the law. (f) The need to bring proceedings to a halt in the public interest if there is plainly no legal justification for their continuation. 17Mr Moses submitted that if the defendant's contentions on the question of law were correct, if the matters were not referred, then a full hearing before the Court would proceed on the basis of charges which would be subsequently overturned on appeal. In these circumstances, it was appropriate for the Full Court to determine the questions which would avoid potentially time consuming and costly proceedings being determined on different particulars.

Submissions of the prosecutor 18Mr Reitano opposed the defendant's notice of motion, submitting that it should be dismissed. 19Mr Reitano submitted that an absence of a right of appeal is not sufficient of itself to warrant the stating of a case under s 5AE of the CA Act , operating as it does with s 196 of the IR Act . Counsel noted that the complete absence of a legislative provision allowing an interlocutory appeal in criminal proceedings before the Industrial Court remained in the face of the call for legislative reform found in Rodney Morrison v Joy Manufacturing. 20Counsel submitted that the matters that strongly point against the referral of any question of law in this matter essentially turn upon the fact that the issues that the defendant seeks to raise have been raised in a large number of authorities at High Court, Court of Appeal, and Full Court level: see Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1; (2010) 239 CLR 531; John Holland Pty Ltd v Industrial Court of New South Wales; Parsons Brinckerhoff (Australia) Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 338; Morrison v Chevalley [2010] NSWIRComm 116; (2010) 198 IR 30; Lorenzo and Santos v Inspector Peter Hayes [2011] NSWIRComm 54; GEO Group Australia Pty Ltd (t/as Junee Correctional Centre) v WorkCover Authority of New South Wales [2011] NSWIRComm 14; GPI (General) Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 157. 21Counsel submitted that: Time and time again the Courts have emphasised that Kirk did not hold that the application for order upon which that prosecution was founded was invalid or a nullity. There are now numerous single Judge decisions that have applied Kirk and the other authorities referred to earlier. All of these authorities are consistent with the approach taken by the Court in this matter. 22Furthermore, counsel submitted that: It should not be forgotten that by refusing this application to state the case, if the Defendant is correct (and it is clearly not in the face of the authorities referred to earlier), it will not be left without an ultimate remedy at the conclusion of the proceedings. There are powerful discretionary factors that lay in the public interest against the multiplicity of proceedings (interlocutory or otherwise) over matters that have been well traversed and applied by the Court time and time again. None of the 'discretionary' considerations raised by the Defendant justify the stating of a case.

Consideration 23The power to refer a question of law to the Full Court is found in s 5AE(1) of the CA Act . The question of law must arise at or in reference to the proceedings. 24In dismissing the defendant's notice of motion that the proceedings be struck out, or dismissed, or alternatively, stayed, I found that the Industrial Court had its jurisdiction properly invoked and that the relevant charge satisfied the essential legal elements of the offence. 25Furthermore, I found that the application for order could not be described as "grossly deficient" in identifying, on its face, what offence was being alleged, such that s 16(2) of the Criminal Procedure Act 1986 would be read as having no application to it (at [34] - [35]). 26Although I found that the particulars may have been inadequate or deficient, I determined that such failures were not sufficient to render the application for order void, particularly in circumstances where I found the defendant could not have been under any misunderstanding as to the measures that he should have taken, namely, that employees and/or non-employees should not have been required to climb a diseased tree (at [48], [50]). 27In reaching these findings, I determined question 1(a). Having found that the application for order was not invalid, bad at law, a nullity, or otherwise defective, I proceeded to determine that leave should be granted to the prosecutor to amend the application for order. Question 1(c) has also therefore been determined. 28In respect of question 1(b), it is, in effect, a restatement of the questions posed in 1(a) and 1(c). In my view, the appropriate time to make any application in respect of compliance with s 26 of the OHS Act should have occurred at the time that I determined the defendant's notice of motion to strike out the proceedings. In any event, the validity of s 26 has been the subject of determination by the Full Court in Morrison v Chevalley . This Court's judgment has been challenged in the Supreme Court of New South Wales, Court of Appeal. 29In my view, the questions raised by the defendant's notice of motion, as well as the matters raised by it at the hearing on 11 February 2011 gave rise to no new questions of law or principle that would warrant the stating of a case to the Full Court. There is no sound basis for referring the questions of law to the Full Bench, nor a sound basis for interfering with the criminal justice process. 30Mr Moses acknowledged that Rodney Morrison v Joy Manufacturing found that no appeal lies to the Full Court pursuant to s 5F of the CA Act from an interlocutory judgment or order of a judicial member of the Court dealing with a criminal proceeding in the Court's summary jurisdiction. 31Despite the observations of the Full Court in Rodney Morrison v Joy Manufacturing and the other cases referred to by Mr Moses, the legislature has not seen fit to amend the CA Act , or the IR Act to facilitate the bringing of interlocutory appeals. It follows, in my view, that the existence of a discretion to refer questions of law to the Full Court must be regarded as the legislature's preferred course by which such matters are dealt with by the Court. This is consistent with the well known authorities that have criticised steps which are taken to bifurcate the criminal process. 32In this respect, appeals under s 5F of the CA Act are subject to leave, or certification by the Court of trial and are not appeals as of right. 33A further matter against the referral of any question of law is, as was submitted by Mr Reitano, that the questions sought to be referred by the defendant, have been considered in the various authorities referred to by Mr Reitano in his submissions set out at [20] of this judgment. 34For these reasons, I find that no issue arises at or in reference to these proceedings within the meaning of s 5AE of the Criminal Appeal Act 1912. I decline to exercise my discretion to refer the questions of law submitted by the defendant to a Full Bench of the Court. 35I reserve the question of costs. 36This matter is listed for plea at 9.30 am on Friday 1 July 2011.

Amendments 27 June 2011 - Mistaken reference to "[22]". Reference amended to "[20]". Amended paragraphs: 33 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 June 2011

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