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24The applications for order satisfy the requirements of r 217B of the IR Rules 1996 (repealed, now r 16.1 of the Industrial Relations Commission Rules 2009).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.