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[2011] NSWIRComm 42
Industrial Relations Commission (NSW)
2011-03-16
Staff J, Mr J
Original judgment source is linked above.
r Authority of New South Wales (Prosecutor) Herbert Geer Lawyers (Defendants) File Number(s): IRC 2050 and 2055 of 2008
Judgment 1This judgment determines firstly notices of motion filed by the defendants seeking orders that the applications for order be dismissed for invalidity. The relief sought is refused. Secondly, the prosecutor seeks leave to file amended applications for order. Leave is granted.
Background 2On 7 November 2006, there was an incident at the Sandgate Grade Separation Project in New South Wales, when Mr Caleb William Stalder suffered an injury. 3On 31 October 2008, the prosecutor applied for orders requiring each of the defendants to appear to answer the offence charged in the application for order. 4The charge in Matter No IRC 2050 of 2008 is that: On 7 November 2006, at construction site known as the "Sandgate Grade Separation Project" located on the Kooragang railway down line at about the T25 points at Sandgate in the State of New South Wales ("the site"), John Holland Rail Pty Ltd, being an employer, FAILED to ensure the health, safety and welfare at work of all of its employees and in particular, Caleb William Stalder and Todd Faux, contrary to s 8(1) of the Occupational Health and Safety Act 2000. 5Particulars were set out in that application. 6The charge in Matter No IRC 2055 of 2008 is that: On 7 November 2006, John Holland Pty Ltd, being a person who had control of premises in the course of its construction business, namely a construction site known as the "Sandgate Grade Separation Project" located on the Kooragang railway down line at about the T25 points at Sandgate in the State of New south Wales ("the site"), which was used by people as a place of work, in particular Caleb William Stalder and Todd Faux FAILED To ensure that the site was safe and without risks to health, contrary to section 10(1) of the Occupational Health and Safety Act 2000. 7The particulars of the charges are identical, except that firstly, there is an additional subparagraph in paragraph 1 to the particulars of the charge against John Holland Pty Ltd. Secondly, there are some differences designed to make the charge against John Holland Pty Ltd, referable to "workers at the site" and the charge against John Holland Rail Pty Ltd, referable to "its employees." 8It is convenient to use the particulars of the charge against John Holland Pty Ltd for the purposes of determining the notices of motion in these matters:
Defendants' notices of motion 10On 5 March 2010, following the decision of the High Court of Australia in Kirk v Industrial Relations Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1; (2010) 239 CLR 531 (" Kirk "), notices of motion were filed in both matters by the defendants seeking the following orders:
Defendants' submissions re strike out 13Mr GJ Hatcher SC appeared with Mr GW McGrath SC for the defendants. Their submissions may be summarised this way:
Prosecutor's submissions re strike out 14Mr J Agius SC who appeared with Mr M Cahill of counsel for the prosecutor submitted that the applications for order satisfy the requirements of r 217B of the Industrial Relations Commission Rules 1996 (now repealed) ("IR Rules 1996") in that they include a statement of the legal nature or essential legal elements of the offence under s 8(1) of the Occupational Health and Safety Act 2000 (" OHS Act ") and clearly identify the essential factual ingredients of time and place of the offence. It was conceded that the application for order pleaded that the defendant John Holland's employees were placed at risk but that the risk was not pleaded in a specific, separate particular, or statement of risk. However, it was contended that the risk to which John Holland's employees were exposed was pleaded, identified, or particularised by implication in the application for order. 15It was submitted that the plurality in Kirk at [14] recognised that in some cases, the nature of the risk might be implied. It was further submitted that having regard to the observations of Basten J at [126] in Rockdale Beef Pty Ltd v Industrial Relations Commission of NSW [2007] NSWCA 128; (2007) 165 IR 7 and of Campbell JA at [50] - [51] in Knaggs v Director of Public Prosecutions [2007] NSWCA 83; (2007) 70 A Crim R 366, concerning the role that service of the full brief of evidence plays in informing the defendants of the case which she/he/it is called to meet, the court in assessing the adequacy of the particulars provided in the application for order, is entitled to have regard to the facts and circumstances set out in the affidavit in support of the application for order sworn on 30 October 2008. Reference was made to the relevant paragraphs of the affidavit.
Principles 16An application for order under s 246(1)(a) of the Criminal Procedure Act 1986 (" CP Act ") must state the nature of the offence. Spigelman CJ in 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 observed at [45] - [47] as follows: [45] The reasoning in Kirk was to the effect that, as a matter of interpretation of the offence creating provisions, a charge had to identify the nature of the offence. In the present case the challenge has been made at the time of the charge. Accordingly, the matters left open at [30] of the joint judgment in Kirk, set out at [42] above, may arise. [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. 17The application for order is also required to inform the defendant of the manner in which it is alleged the offence was committed. In John L Pty Limited v Attorney-General (NSW) [1987] HCA 42; (1987) 163 CLR 508, it was said at 519: The rationale of that requirement has, in more recent times, commonly been seen as lying both in the necessity of informing the Court of the identity of the offence with which it is required to deal and in providing the accused with the substance of the charge which he is called upon to meet: "an accused person could not be required to defend the charge if the information did not supply the particulars necessary to enable him to prepare his defence." (Ex parte Lovell , re Buckley at 166). 18This approach was confirmed by the plurality in Kirk at [26]: The common law requires that a defendant is entitled to be told not only of the legal nature of the offence with which he or she is charged, but also of the particular act, matter or thing alleged as the foundation of the charge. In John L Pty Ltd v Attorney-General (NSW) , it was explained that the older cases established that an information could be quashed as insufficient in law if it failed to inform the justices of both the nature of the offence and the manner in which it had been committed. In more recent times the rationale of that requirement has been seen as lying in the necessity of informing the court of the identity of the offence with which it is required to deal and in providing the accused with the substance of the charge which he or she is called upon to meet. The common law requirement is that an information, or an application containing a statement of offences, "must at the least condescend to identifying the essential factual ingredients of the actual offence". These facts need not be as extensive as those which a defendant might obtain on an application for particulars. In Johnson v Miller , Dixon J considered that an information must specify "the time, place and manner of the defendant's acts or omissions". McTiernan J referred to the requirements of "fair information and reasonable particularity as to the nature of the offence charged". 19Spigelman CJ's reference at [45] of John Holland (Court of Appeal) to "the matters left open at [30] of the joint judgment in Kirk " acknowledges that the plurality did not consider the operation of any savings provisions, for example, s 16(2) of the CP Act or s 170 of the Industrial Relations Act (" the IR Act ") . 20In order for there to be a valid charge and thus provide jurisdiction to the Court, the charge has to include a measure. The plurality in Kirk stated at [74] that the Industrial Court had no power to make orders convicting and sentencing Mr Kirk and the Kirk Company: because no particular act or omission, or set of acts or omissions, was identified at any point in the proceedings, up to and including the passing of sentence... And the failure to identify the particular act or omission, or set of acts or omissions, alleged to constitute the contravening conduct followed from the misconstruction of s 15... the Industrial Court convicted Mr Kirk and the Kirk company of offences when what was alleged and what was established did not identify offending conduct. 21The application for order should be read as a whole, including the particulars supplied with the charge: John Holland (Court of Appeal) at [4], [56], [123] - [124].
Consideration 22The 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 . 23In my view, these questions should be answered in the negative. 24The applications for order satisfy the requirements of r 217B of the IR Rules 1996 (repealed, now r 16.1 of the Industrial Relations Commission Rules 2009). They include a statement of the legal nature, or essential legal elements, of the offence under s 8(1) and s 10(1) of the OHS Act , in that they expressly state the name and address of the person by whom the proceedings are brought; the capacity in which the prosecutor is taking the proceedings; the name and address of the person against whom the proceedings are brought; the Act and section under which the defendant is alleged to have committed an offence, and the nature of the offence that is alleged. 25The applications also clearly identify the essential factual ingredients of time and place of the offence. 26In Inspector Stevens v Ford [2010] NSWIRComm 10, I observed at [37] - [47] as follows: [37] The 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. [38] Similarly 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. [39] The 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. [40] It 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. [41] Where 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. [42] However, 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. [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? [44] The 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. [45] An 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]. [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. 27I adopt and apply those reasons in determining these applications. 28I turn to deal with the application for order in Matter No IRC 2055 of 2008. Matter No IRC 2050 of 2008 is in identical terms, with the exception of one particular. Mr Agius conceded that the application for order pleads that the defendant John Holland's employees were placed at risk, but that the risk was not pleaded in a specific, separate particular or statement of risk. However, the risk to which John Holland's employees were exposed is pleaded, identified, or particularised by implication in the application for order in Matter No IRC 2055 of 2008. 29In Kirk , the plurality at [14] recognised that in some cases, the nature of the risk might be implied observing: A statement of an offence must identify the act or omission said to constitute a contravention of s 15 or s 16. It may be expected that in many instances the specification of the measure which should have been or should be taken will itself identify the risk which is being addressed. 30Furthermore, Spigelman CJ in John Holland (Court of Appeal) observed at [32]: [32] In Kirk two propositions are stated in a number of places in equivalent formulations. These propositions are that, in order to establish a contravention: "A statement of an offence must identify the act or omission said to constitute a contravention" - see [14], [15], [27], [37], [38], [74]; and The "relevant act or omission which gives rise to the offence" is "a failure, on the part of the employer, to take particular measures to prevent an identifiable risk eventuating" - see [12], [14], [19], [28], [38]. 31Recently, in State of New South Wales (Department of Education and Training and Department of Juvenile Justice) v Cahill (No 2) [2011] NSWIRComm 33, the Full Bench determined the question of whether the "pleading regarding risk" in that matter was "too uncertain or general". After analysing what the High Court had to say in Kirk concerning the identification of a particular risk, the Full Bench stated at [47] - [48]: [47] Given that the prosecution is required to prove as an essential element of a charge under s 8(1) that there was a risk to the health, safety or welfare of a defendant's employees, it follows that the charge should identify the risk. However, as it was said in Kirk the obligation on the employer is not to "establish that every possible risk was obviated", which is what an employer might face if the pleading is only in relation to a general class of risk, but rather the pleading must show an "identifiable risk". [48] Provided the pleadings show such a risk, expressly or by necessary implication, the charge will not be invalid or defective. We do not see any obligation on the prosecution to go beyond a short statement identifying the risk. For example, in 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 (" John Holland (CA") the Court of Appeal was satisfied (see [52] per Spigelman CJ) with the description in the Applications for Order that "There was a risk of being struck by falling rock and/or Tunnel Collapse" (we note that special leave to appeal to the High Court has been sought by John Holland). Any additional information could be provided by way of a request seeking further particulars or by the court ordering such further particulars. 32In these matters, the risk was a risk to the health and safety of workers and pedestrians coming into contact with mobile plant and vehicles moving within the site. In other words, there was a risk that ground workers could be injured by vehicles whilst moving around the site because of the failure of the defendants to have a vehicles and plant (traffic) management system in place at the site. So much, in my view, is implicit from reading the charges as a whole. 33In my view, particulars (1) (c), (d) and (h) are sufficiently well expressed so as to particularise a measure that the defendants ought to have undertaken to address the risk. Specification of the measures will serve to identify the risk: see Kirk at [14]. Particular 1(c) indicates that the defendant did not isolate pedestrian movements and ground work within the site from mobile plant and vehicles moving within the site. The measure includes a safe work method statement, which is to deal with pedestrian movements and other work performed at ground level within the site so as to isolate pedestrian movements and ground work performed within the site from mobile plant and vehicles moving within the site. It is a measure which may be the subject of further particularisation. 34The failure pleaded in paragraph 1(d) specifically identifies a failure to erect barriers, such as "truck stops" for the purpose of isolating pedestrian movements and ground work performed within the site from mobile plant and vehicles moving within the site. 35Mr Hatcher conceded particular 1(d) "goes as close as they get in identifying a measure." The measure required barriers to be erected so that pedestrians and people doing work were restricted from freely moving around the site and getting in the way of mobile plant and vehicles. Workers were to be restrained by barriers such as "truck stops". 36The failure pleaded in paragraph 1(h) alleges that the defendant failed to conduct a risk assessment to determine what were the risks and the method of dealing with the risks if pedestrians or workers performing ground work interacted with mobile plant. Once again, this matter could be the subject of further particularisation. However, in my view, a measure has been identified. 37In combination with particular 1(c), (d) and (h), it is implicit that the risk of injury arose from the failure of the defendants to have in place a vehicle and plant management system at the site. This gave rise to an obvious risk to safety at the site. 38I am not aware of any statement of principle in the authorities that limits the reading of any particular charge on a measure by measure basis. Following the High Court's decision in Kirk , it is clear that before conviction can be entered and that in order for the defendant to have a proper opportunity to defend the charges, the measures are needed to be identified and they need to be identified in the charge, but those measures can be added by way of particulars. The plurality recognised that particulars could be given and there was criticism that at no time up to judgment were such particulars provided. 39Mr Agius submitted that it was clear from Kirk that before conviction can be entered and that in order for the defendants to have a proper opportunity to defend the charges, the measures are required to be identified in the charge. However, senior counsel contended that those measures can be added by way of particulars. It was further submitted this was recognised by the plurality in Kirk . 40It is not necessary to determine whether an application for order would be valid if no measures at all could be found in the particulars of the charge. Even if it be the case that it is necessary to include a measure in the statement of the charge for the charge to ground jurisdiction as opposed to founding a conviction, the charges set out in the applications for order contain measures which, as I have demonstrated, satisfy that argument. I can find nothing in the decision of the High Court in Kirk or in the Court of Appeal's decision in John Holland to the contrary. 41In John Holland (Court of Appeal), the Chief Justice dealt with the application without the need to consider s 16 of the CP Act or any saving provisions. The Court of Appeal determined that the measures had been adequately stated in those matters. It did not need to consider whether the nature of the charge was properly stated. 42It is clear from Kirk , that before conviction can be entered and that in order for the defendant to have a proper opportunity to defend the charges, the measures need to be identified and they need to be identified in the charge. In my view, any further measures can be added by way of further particulars and the High Court itself in Kirk recognised this at [30]. ... However, it may be said that the matter should not have proceeded without further particularisation of the acts and omissions said to found the charges. Without that particularisation, the Industrial Court would be placed in the position to which Evatt J referred in Johnson v Miller [38] where it would act as "an administrative commission of inquiry" rather than undertake a judicial function. Proceeding without further particularisation of the acts and omissions said to found the charges reflected views as to the nature and extent of the duty cast upon an employer by ss 15 and 16 and the limited operation to be given to the s 53 defences. 43In my view, there is no gross deficiency in identifying the legal nature of the offences which are being alleged against the defendants. The charges are valid. They contain sufficient particularisation of the measures which should have been taken in particulars 1 (c), (d) and (h). The balance of the particulars fail to properly identify any measure. However, a plea has not been entered and therefore the defects may be capable of being rectified: see Kirk at [30], [74]; John Holland (Court of Appeal) at [41] - [45]. 44It follows that further particulars may be sought in respect of the particulars 1(a) to 1(h) inclusive. 45Although it was submitted by Mr Hatcher that there was one charge with a number of contraventions, in my view, on a proper reading of the charges, there is only one offence that may have been committed, or was committed, in any one of a number of ways which are set out in the particulars. To use Mr Hatcher's characterisation, the charge identifies the particular transaction relied upon as constituting the offence. 46Mr Hatcher during his submissions, referred to a number of earlier authorities. These included Ex parte Lovell ; Re Buckley (1938) 38 SR (NSW) 153; Ex parte Burnett ; Re Wicks [1968] 2 NSWR 119 and Ex parte Price (1899) 20 LR (NSW) 343. 47I have found no statement in these cases which is inconsistent with the principles now found in Kirk, John Holland (Court of Appeal) and Inspector Hamilton v John Holland Pty Ltd [2010] NSWIRComm 72; (2010) 194 IR 189. In light of the principles in these authorities, I find it unnecessary to undertake any further examination of those earlier authorities referred to by Mr Hatcher. 48Mr Hatcher also drew the Court's attention to the transcript of an application for special leave to the High Court in the matter of Santos Ltd v Markos; Diemould Tooling Services Pty Ltd v Oaten [2008] HCA Trans 372 (13 November 2008). 49In my view, reliance upon the transcript from a special leave application in the High Court is unhelpful and unexplained exchanges between judges and counsel are not persuasive. In my view, attention should be directed to recent decisions. Justice Michael Kirby, writing extrajudicially in an article titled "Ex Tempore Judgments - Reasons on the Run" (1995) 25 University of Western Australia Law Review 213 in respect of this practice, observed at page 223: Another result, much to be discouraged, is a new phenomena by which parties in later cases combed the ex tempore exchanges between appellate judge and counsel arguing leave applications in the hope of divining from those exchanges the real reasons why leave was refused, so as to guide other courts on the authority of the decision which is then sustained. The thought that such unguarded remarks, put to test propositions (and sometimes light-heartedly to test counsel advancing them) might later be utilised as a building block for the common law is too awful to contemplate seriously. I respectfully adopt these observations. I am not assisted by the reliance upon this transcript. 50For the foregoing reasons, I find that the Industrial Court has had its jurisdiction properly invoked in respect of each of the applications for order.
The prosecutor's notices of motion to amend 51On 29 April 2010, the prosecutor filed notices of motion seeking leave be granted to amend the particulars of the applications for order as reflected in an amended application for order annexed to notices of motion in respect of each of the above prosecutions. 52The grounds and reasons relied upon were: Following the recent decision of Kirk v Industrial Relations Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1 (" Kirk ") the Applicant seeks to add greater particularity in referring to the alleged acts or omissions which constitute the offence as set out in the Amended Application for Order. 53Each notice of motion was supported by an affidavit of Michael Frederick Sands, solicitor, of the WorkCover Authority of New South Wales. 54Mr Agius submitted that to the extent that there was any (senior counsel's emphasis) deficiency in the particulars as pleaded in the application for order in Matter Nos IRC 2050 and IRC 2055 of 2008, it was open to the prosecutor, whether by application for leave to amend, or by the provision of further and better particulars, to provide further particulars to the defendant. 55In a letter dated 17 December 2010, the prosecutor provided to the defendant in Matter No IRC 2050 of 2008, an outline of the facts and circumstances upon which the prosecutor relies in support of the charge set out in the application for order. The terms of that outline were drawn from the affidavit in support filed in that matter. 56Mr Agius submitted that, without more, the additional information satisfied any requirement for certainty as to the "manner" in which the prosecutor alleges that John Holland Rail committed the contravention of s 8(1) of the OHS Act . 57Senior counsel contended that to date, the defendants have not been required to enter a plea and that the amendments as drafted, do not seek to take the prosecution's case beyond the matters disclosed in the original pleadings. 58Mr Hatcher opposed leave being granted to amend the applications for order in each matter, submitting that each charge alleges multiple contraventions of the OHS Act and purports to charge those multiple contraventions as the one offence. It was submitted that on its face, such an approach was duplicitous and potentially a nullity. 59Although Mr Hatcher acknowledged s 31 of the OHS Act permits multiple contraventions of the OHS Act to be charged as the one offence, it was contended that this could only occur where only the alleged acts and omissions arise from the same factual circumstances. 60Mr Hatcher further contended that the statutory exception applies where the specified measures which it is alleged were not taken arise in the same factual circumstances and give rise to the same identified risk and that it is necessary for the charge to, at least, identify the essential factual ingredients of the offence that are alleged to give rise to the operation of that section. 61Mr Hatcher conceded that the Court of Appeal rejected this analysis in John Holland . Senior counsel noted that that judgment was subject to an application for special leave to the High Court. 62Mr Hatcher conceded that if leave was granted to amend, the defendants did not seek to make any submissions in respect of prejudice. 63The plurality in Kirk stated at [14]: A statement of an offence must identify the act or omission said to constitute a contravention of s 15 or s 16. It may be expected that in many instances the specification of the measure which should have been or should be taken will itself identify the risk which is being addressed. The identification of a risk to the health, safety and welfare of employees and other persons in the workplace is a necessary step by an employer in discharging the employer's obligations. And the identification of a risk which has not been addressed by appropriate measures must be undertaken by an inspector authorised to bring prosecutions under the Act. But it is the measures which assume importance to any charges brought. Sections 15 and 16 are contravened where there has been a failure, on the part of the employer, to take particular measures to prevent an identifiable risk eventuating. That is the relevant act or omission which gives rise to the offence. 64In applying the principles in Kirk , the Full Bench of this Court in John Holland observed at [57] and [72]: [57] ... If there were any deficiency in the manner in which the particulars were expressed it would not render the charges invalid. Rather, it would be open to the trial judge to order an amendment or for further particulars to be provided or for the defendant to seek further and better particulars: Rockdale Beef at [126] per Basten JA referring to Stanton v Abernathy at 667, 671-672. ... [72] ... Even if it could be contended that the acts or omissions were essential legal elements and were required to be identified in the Applications in juxtaposition with other legal elements, at best, in our opinion, it may be said the Applications contained a defect in form, which is unobjectionable (s 16(2) of the Criminal Procedure Act) or would be regarded as an irregularity (s 170 of the Industrial Relations Act ) . 65The requirement of identifying the legal nature of the offence and the essential legal elements of the offence can be found in the charge. In my view, there is no uncertainty or ambiguity in respect of the charges, nor can it be established that the deficiencies in the applications for order are "so gross that as a matter of construction s 16(2)(a) would be read as not applying to them": see Rockdale Beef at [131] and Knaggs at [148]. 66It is permissible to the extent that there is any deficiency in the particulars as pleaded, for the prosecutor to provide further particulars, or seek leave to amend the application for order. See Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467 per Dixon J at 489 - 491; Rockdale Beef per Basten JA at [126]; Knaggs per Campbell JA; John Holland (Court of Appeal) per Spigelman CJ at [79], [118] and Giles JA at [141]. 67The Full Bench in John Holland (Industrial Court) referred to the reasoning of Basten JA in Rockdale Beef, where his Honour observed at [122] that the issue "should be considered on a principled basis, and not by use of labels, seeking to distinguish between 'essential legal elements' and 'essential factual particulars'." The Full Bench took his Honour's observations to refer to: ... the necessity of ascertaining the substance of the Application for Order and in so doing, considering whether or not the alleged breach is clearly set out together with the identification of the acts or omissions alleged of the defendant. This approach is not an exercise involving nitpicking technicality but simply addresses the need to ensure that the defendant is apprised of the breach alleged under the statute and the acts and omissions by which that breach was committed. 68I 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 defendants have not yet entered a plea. 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 John Holland Rail. 69Pursuant to s 16(2) of the CP Act and s 170 of the IR Act , I grant leave to the prosecutor to amend each of the applications for order in accordance with the amended applications annexed to the notices of motion.
ORDERS 70The Court makes the following orders: In Matter No IRC 2050 of 2008 - Inspector Paul Wade v John Holland Rail Pty Ltd
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: 11 April 2011
Inspector Wade
John Holland Rail Pty Ltd
[2009] HCATrans 238
(2010) 194 IR 189
(1987) 163 CLR 508
(1937) 59 CLR 467
(2010) 239 CLR 531
(2007) 165 IR 7
(2002) 54 NSWLR 39
[2010] HCA 1