Inspector Wade v John Holland Rail Pty Ltd

Industrial Relations Commission (NSW)|2011-06-01|Before: Staff J, Mr J

Judgment 1John Holland Rail Pty Ltd and John Holland Pty Ltd ("the defendants") were charged respectively with a breach of s 8(1) and s 10(1) of the Occupational Health and Safety Act 2000 (" OHS Act ") in applications for order filed on 31 October 2008. 2On 5 March 2010, each defendant filed a notice of motion seeking a declaration and orders that "the proceedings be dismissed, struck out, or permanently stayed for want of jurisdiction." 3On 29 April 2010, the prosecutor filed notices of motion seeking leave to amend the applications for order. On 8 April 2011, I ordered that the relief sought by the defendants be refused. I granted leave to the prosecutor to file amended applications for order: Inspector Wade v John Holland Rail Pty Ltd [2011] NSWIRComm 42. 4On 28 April 2011, the defendants filed a draft order seeking that I refer four questions of law to the Full Bench pursuant to s 5AE of the Criminal Appeal Act 1912 and s 196 of the Industrial Relations Act 1996. 5The prosecutor opposed the referral of questions of law to the Full Bench. For the reasons that I now provide, I decline to exercise my discretion to refer the questions of law to the Full Bench.

Questions of law 6The questions that the defendants ultimately sought to be referred, after discussions with the prosecutor, were:

In matter No IRC 2050 of 2008 (John Holland Rail Pty Ltd)

The application for order having been particularised as follows: The particulars of the charge were then set out. (Due to the extensive nature of the particulars, I have attached to this judgment the draft order referring a question of law. This document sets out the particulars in each matter). Did the Court have jurisdiction, as a matter of law, for the Court to grant leave to file an amended application for order particularised as follows: The particulars of the amended application for order were then set out.

In matter No IRC 2055 of 2008 (John Holland Pty Ltd) 2. The application for order having been particularised as follows: The particulars of the charge were then set out. Did the Court have jurisdiction, as a matter of law, for the Court to grant leave to file an amended application for order particularised as follows: The particulars of the amended application for order were then set out.

In matter Nos IRC 2050 of 2008 (John Holland Pty Ltd) and 2055 of 2008 (John Holland Rail Pty Ltd) 3. In the circumstances pleaded in paragraphs 5 and 10 above, does s 107 of the OHS Act preclude me, as a matter of jurisdiction from permitting the prosecutor to amend the initiating process as reflected in 12 above. It is convenient to set out paragraphs 5, 10 and 12 of the draft order seeking the referral of a question of law to the Full Bench. These paragraphs read as follows: 5. The matters the Prosecutor wished to include by way of amendment were all alleged to relate to the matters pleaded in the original Application for Order in matter no 2050 of 2008 and so, would be out of time if the Prosecutor sought to bring the additional matters as a fresh charge, or as fresh charges. 10. The matters the Prosecutor wished to include by way of amendment were all alleged to relate to the matters pleaded in the original Application for Order in matter no 2055 of 2008 and so, would be out of time if the Prosecutor sought to bring the additional matters as a fresh charge, or as fresh charges. 12. On 28 April 2011 the defendants each applied under section 5AE of the Criminal Appeal Act, 1912 (NSW) and section 196 of the Industrial Relations Act , 1996 (NSW) for the Court to refer the following questions of law to a Full Bench of the Industrial Court of New south Wales.

Judgment re notices of motion 7In Inspector Wade v John Holland Rail , I held at [33] - [37] as follows: [33] In 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. [34] The 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. [35] Mr 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". [36] The 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. [37] In 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. 8At [43] and [44] I observed: [43] In 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]. [44] It follows that further particulars may be sought in respect of the particulars 1(a) to 1(h) inclusive. 9In respect of the prosecutor's notice of motion, I noted at [62] a concession made by Mr Hatcher and set out my conclusions at [66] - [69]: [62] Mr Hatcher conceded that if leave was granted to amend, the defendants did not seek to make any submissions in respect of prejudice. ... [66] It 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]. [67] The 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. [68] 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 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. [69] Pursuant 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.

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. Occupational Health and Safety Act 2000 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.

Submissions of the defendants 11Mr GJ Hatcher SC, who appeared with Mr G McGrath SC for the defendants, commenced his submissions by submitting that he did not wish to address the Court in terms of the correctness, or otherwise, of the result that the defendants urged in respect of the questions of law, but simply the contestability of the result the defendants urged, noting that the Court had already determined the question against them. 12Mr Hatcher submitted that: ... the issue that we seek to agitate is in a circumstance where a number of contraventions are alleged in the one charge reliant upon s 31 of the Occupational Health and Safety Act . And the Court finds that in respect to some of those contraventions no contravention has effectively been alleged because [no] specific measure was alleged. Whether the original charge can be amended to incorporate a contravention or an additional contravention. 13Senior counsel submitted that two issues arose. The first issue was whether a contravention within an order which, were it the only contravention, would mean that the order was invalid, that is, where no contravention was alleged, can be amended in circumstances where it is only one of a number of contraventions. In other words, whether the fact that it is pleaded by reliance upon s 31 gives it some greater or enhanced validity than it would otherwise have. 14The second issue was whether s 107 of the OHS Act , being the limitation provision, has application. 15In highlighting the first issue, senior counsel referred to this Court's judgment in Inspector Hamilton v John Holland Pty Ltd [2010] NSWIRComm 72; (2010) 194 IR 189 ( John Holland (Industrial Court)) and in particular [16], [19] which stated: [16] Relevantly, it was held in Kirk that a statement of an offence must identify the act or omission said to constitute a contravention of ss 15 or 16 ( Kirk at [14] and [19]). As the prosecutor submitted: 'It is the failure on the part of an employer to take particular measures to prevent an identifiable risk eventuating that is the gravamen of an offence ( Kirk at [14])'. The joint judgment in Kirk (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) criticised the particulars that had been specified in the charges in Kirk. At [26]-[27] the joint judgment referred to the common law requirements regarding an information (references omitted): [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". [27] The acts or omissions the subject of the charges here in question had to be identified if Mr Kirk and the Kirk company were to be able to rely upon a defence under s 53. The defendant in Johnson v Miller was placed in a similar position. The statute in question provided that a licensee of licensed premises would be liable to a penalty if a person was present on the premises during certain prohibited hours, unless the licensee could establish one of the justifications or excuses relating to that person's presence provided for in the statute. Dixon J observed that each of the justifications depended upon some feature pertaining to the person found in, or seen leaving, the premises and that no licensee could succeed in bringing the case within any of the grounds of excuse unless the person or persons were identified and their presence on a distinct occasion alleged. ... [19] Kirk makes clear that it is the act or omission of the employer that constitutes the offence and in the absence of that particularisation the Kirk company was denied the opportunity to properly put a defence under s 53(a) of the 1983 Act (at [34], [38]): [34] Walton J referred to earlier case law that the duty imposed upon an employer "is to be construed as meaning to guarantee, secure or make certain" and that the duty is directed at obviating "risks" to safety at the workplace. References to guarantees, and emphasis upon general classes of risks which are to be eliminated, tend to distract attention from the requirements of an offence against ss 15 and 16. The approach taken by the Industrial Court fails to distinguish between the content of the employer's duty, which is generally stated, and the fact of a contravention in a particular case. It is that fact, the act or omission of the employer, which constitutes the offence. Of course it is necessary for an employer to identify risks present in the workplace and to address them, in order to fulfil the obligations imposed by ss 15 and 16. It is also necessary for the prosecutor to identify the measures which should have been taken. If a risk was or is present, the question is - what action on the part of the employer was or is required to address it? The answer to that question is the matter properly the subject of the charge. ... [38] A consequence of the matter proceeding to conviction on the charges as stated, absent the identification of measures the Kirk company should have taken, was that it was denied the opportunity to properly put a defence under s 53(a). Instead, the Kirk company was required to show why it was not reasonably practicable to eliminate possible risks associated with the use, or possible use, of the ATV. The guarantee against risk, seen as provided by s 15, was treated as continuing, despite a defence under s 53(a) being raised. The operation of that defence was treated as largely confined to an issue of reasonable foreseeability. 16Reference was also made to [91] of the Full Court's decision where the Court referred to the statement by Fullagher J in Chugg v Pacific Dunlop Ltd [1988] VR 411 at 415 and also to Diemould Tooling Services Pty Ltd v Oaten; Santos Limited v Markos [2008] SASC 197; (2008) 101 SASR 339; (2008) 174 IR 80 where Doyle CJ (with whom White J agreed) disagreed with the approach of Fullagher J as to whether it was the act or omission which constituted the offence, or whether the offence was constituted by a state of affairs. 17Senior counsel submitted that the distinction between the two may be behind some of what the defendants submitted was a misunderstanding of the way in which the legislation operated. 18Mr Hatcher also referred to the Supreme Court of New South Wales, Court of Appeal decision of 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 (Court of Appeal)) and in particular, Spigelman CJ's observations at [43] - [47]: [43] One aspect of the context of the offence creating provisions under consideration in Kirk was of particular significance. This was the provision of a defence for the employer, now found in s 28 of the OH&S Act, as set out at [14] above. As with the provision considered in Kirk, that section creates a defence in the terms that "it was not reasonably practicable for the person to comply with", relevantly, s 8. The joint judgment in Kirk stated that, unless particular measures were identified in the charge, an employer would be "denied the opportunity to properly put a defence". ( Kirk at [38], see also at [16], [27] and the last sentence of [28].) [44] The significance of this defence to the statement of the charge - particularly the requirement of precision in the statement of the contravention alleged - is manifest in the observations at [19] of the joint judgment: "[19] What was necessary to be done in connection with the health, safety and welfare of employees and others at the workplace depended upon the presence of identifiable risk and measures which could be taken to address them. The question which may follow, as to what was or was not reasonably practicable or the employer to have undertaken, is directed to the measures so alleged. It is the employer's act or omission with respect to those measures which had to be identified in the statement of any offence charged under ss 15 and 16." [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. 19In light of the Chief Justice's observations, senior counsel submitted that: [T]he Court of Appeal have said that the particular measures being identified in the charge constitutes the nature of the offence. Your Honour, if we are right as to that proposition then a failure to identify the specific measure is a failure to comply with the Rules and the Act in that the nature of the charge is not only [sic] defined. And accordingly the charge is invalid. 20In respect of the second question, senior counsel referred to Tregilgas v Howie [1926] SASR 122 where Murray CJ, after setting out the relevant provisions of the Justices Act 1902 at 125, found that no offence had been alleged. The question that arose was whether the complaint could be amended under the provisions of the Justices Act . At 126, Murray CJ stated: It is clear from these provisions that if the complaint (I will use that term only for the sake of brevity) discloses no offence, it must be dismissed, unless the justices are of opinion that it ought to be amended. It is also clear, in my judgment, the time from which it becomes a good complaint is the time of the making of the amendment. There might have been some such provision in the Act as that the amendment should be retroactive, or that, after amendment, the complaint should be deemed to have been a good complaint from the time when it was first laid, or there might have been some words used that would carry an implication to that or the like effect. But the Act is silent upon the matter. All that there is to go by is the actual fact that the complaint is not a good complaint until it is amended, and that necessarily involves the consequences that its validity as a complaint dates from the amendment. 21Mr Hatcher submitted that Tregilgas had been cited with approval by Hungerford J in Boral Gas (NSW) Pty Ltd v Magill (1993) 37 NSWLR 150; (1993) 58 IR 363 and followed albeit for a different proposition by the Full Federal Court in Traveland Pty Ltd v Doherty (1982) 6 A Crim R 181; (1982) 63 FLR 41; (1982) 41 ALR 563. This case concerned a trade practices prosecution. Mr Hatcher submitted that there were two issues considered in Traveland , the first being whether the Minister's consent was satisfactory for an amendment that was made to the summons, and the second being whether the amendment was available, there being no challenge to the validity of the summons and information. The Full Court found that both the information and summons were defective and observed at 572: It was conceded, on behalf of the prosecutor, that if the court were of the view that the information and summons were defective by reason of a failure to charge Traveland with any identified offence against s 53(c), the case was not one in which leave to amend to overcome the defect should be given pursuant to the provisions of s 21A of the Crimes Act 1914. The reason for that concession was that the time within which a prosecution for an offence against s 53(c) of the Act may be brought has long since expired. 22Mr Hatcher also drew to the Court's attention the recent decision of a Full Bench of the Court (Walton J Vice-President, Kavanagh, Haylen and Backman JJ) in Lorenzo and Santos v Inspector Peter Hayes [2011] NSWIRComm 54. In that matter, the Full Court held that the trial judge fell into error when convicting the appellants on charges that failed to identify, either expressly or by implication, the corporation's relevant acts or omissions. However, the Court held that the charges were valid, but the appellants had been denied procedural fairness by reason of the piecemeal manner during the course of the trial in which the appellants were supplied particulars of the acts or omissions relied upon by the prosecutor. 23The Full Court determined that the whole of the judgment of the trial judge should be set aside and ordered a re-trial, observing that the initiating process could be amended (at [64]). Mr Hatcher submitted that it did not appear that their Honours' attention had been directed to what the Chief Justice had to say in relation to the nature of the offence in John Holland (Court of Appeal) and that no attention at all had been paid to the operation of s 107 of the OHS Act in terms of the approach in Tregilgas and Traveland .

Submissions of the prosecutor 24Mr J Agius SC, who appeared with Mr M Cahill of counsel for the prosecutor, commenced his submissions by observing that I had found that the applications for order in each matter particularised three measures in each particular, being (c), (d) and (h) in matter No IRC 2055 of 2008 and particular (c), (d) and (g) in matter No IRC 2050 of 2008 that the defendants ought to have undertaken to address the risk to safety (at [33] - [37] of my earlier judgment). 25Mr Agius referred to s 5AE of the Criminal Appeal Act and submitted that on a proper construction of that section, in order to ground jurisdiction to submit a question of law to the Full Court, the question of law must arise at or in reference to the proceedings. 26In respect of the first question, Mr Agius submitted that it was not a matter which arises in or in reference to the proceedings because in each of the two charges the Court had identified at least two measures which were found to have been properly pleaded. Senior counsel observed that the Court was not dealing with a charge where there was only one contravention identified and which was found to be invalid. 27In respect of the second question, Mr Agius acknowledged that the provisions of s 107 may well apply as a matter of discretion. However, senior counsel submitted the Court would look at the particular amendment, confirm whether or not it was made after a time period had expired and then determine whether or not that fact was relevant to questions of prejudice that a defendant may suffer. 28Senior counsel noted that in Traveland the prosecutor had conceded that if the summons was found to be defective, it was not a case in which leave to amend to overcome the defect should be given. The reason for that concession was the time period. 29Turning to John Holland (Industrial Court) and John Holland (Court of Appeal), Mr Agius submitted that neither of these cases determined that as a matter of law, prior to conviction for a charge to be valid to the extent to which it needed to be valid so that a trial judge could entertain an application for an amendment, it had to precisely plead a measure. Senior counsel contended that there was no authority to support such a proposition and that 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 did not determine that issue. 30Mr Agius emphasised that Kirk was a matter decided after conviction and contended that the observations in Kirk relied upon by Mr Hatcher and repeated in Spigelman CJ's reasons in John Holland (Court of Appeal) were all made in the context of Kirk having been decided before conviction. 31Mr Agius pointed to [45] of John Holland (Court of Appeal) where he submitted that the Chief Justice was careful to make that distinction. At [45] the Chief Justice stated: 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. 32Senior counsel submitted that the High Court of Australia left open the question of how the matter might have been dealt with if it had been before conviction and if it had been dealing with circumstances which included an application to amend. This was the conclusion that the Full Bench reached in Lorenzo. 33Mr Agius submitted that the reason why s 107 of the OHS Act was not considered in Lorenzo was because that is a consideration that arises only at the time the application to amend is made and arises only as a matter of discretion in the Court.

Consideration 34In determining the defendants' notices of motion to strike out the applications for order which the defendants were, of course, entitled to agitate, the defendants exercised their right to be heard. 35Having heard all parties, the notices of motion were determined by the Court. 36In its judgment delivered on 8 April 2011, the Court found that three particulars in each of the matters had been adequately pleaded and that the charges were valid. The Court proceeded to hear and determine the prosecutor's application to amend the applications for order. In doing so, it noted a concession made by Mr Hatcher (at [62]) that if leave was granted, the defendants did not seek to make any submissions in respect of prejudice. 37The application by the prosecutor to amend the applications for order was determined by applying the provisions of s 16(2) of the Criminal Procedure Act 1986 and s 170 of the Industrial Relations Act in a conventional manner. 38I agree with Mr Agius that in respect of the Court's power to refer a question of law to the Full Bench on a proper reading of s 5AE of the Criminal Appeal Act , the question of law must arise at or in reference to the proceedings. In my view, questions 1 and 2 do not arise because the Court was not dealing with a contravention in an order which was the only contravention and whether in such circumstances it could be amended. 39In Matter No IRC 2055 of 2008, I identified three measures which were properly pleaded and similarly a further three measures in Matter No IRC 2050 of 2008. As I was not dealing with a charge where there was only one contravention identified and such contravention was found to be invalid, questions 1 and 2 do not arise. I decline to refer such questions to the Full Bench. 40I have taken the somewhat unusual approach, in summarising the defendants' submissions, of setting out in detail the passages that the defendants relied upon in pressing for a reference, particularly from John Holland (Industrial Court) and John Holland (Court of Appeal), both of which considered Kirk . I have adopted this approach to illustrate that the questions sought to be referred (excluding the s 107 question) have been the subject of extensive consideration by a Full Bench of this Court, by the Court of Appeal and by myself in determining the notices of motion for strike out. These questions were further considered, more recently, by the Full Bench in Lorenzo and in Western Freight Management Pty Ltd v Inspector Patton [2011] NSWIRComm 68. 41In these circumstances, in my view, it is unnecessary to further deal with the submissions made by counsel in respect of John Holland (Industrial Court) and John Holland (Court of Appeal). 42I turn to consider the question that raises s 107 of the OHS Act . It is correct, as Mr Hatcher submitted, that the Full Court in Lorenzo was not asked to consider s 107 of the OHS Act , its operation, or the approach adopted in Tregilgas and Traveland . What the Full Court observed (at [64]) in Lorenzo was that " charges although defective are capable of amendment under s 170 of the IR Act: John Holland at [72] to [74], citing with approval John L at 521-522 and Stanton v Abernathy ( (1990) 19 NSWLR 656) at 667." 43The Full Court was not called upon to determine whether leave should be granted to the prosecutor to amend the application for order. This, quite properly, is a matter for the trial judge. 44I agree with Mr Agius that as a matter of discretion, a court could examine the time period between the filing of the application for order and any amended particular, as part of a fresh charge, in order to determine whether to grant leave to amend. The fact that there is a time limit and the time limit has expired is an issue that arises within the discretion of the trial judge. In determining such an application, a trial judge would require, in light of the authorities to which the Court's attention was drawn, and in the exercise of discretion to examine the particulars as they were in the original application for order and determine whether they gave rise to the same or different factual issues in any amended application for order. Consideration to whether any prejudice to a defendant arose would also require consideration. 45It follows, in my view, that the appropriate time to make any application in respect of s 107 of the OHS Act should occur when the trial judge is determining whether leave should be granted to the prosecutor to file an amended application for order. The defendants made no such application at the time that I determined a notice of motion filed by the prosecutor seeking leave to file the amended applications for order. 46Furthermore, in Inspector Wade v John Holland Rail , Mr Hatcher conceded that if leave was granted, the defendants did not wish to make any submissions in respect of prejudice. This approach may be contrasted to that adopted by the prosecutor in Traveland , where it was conceded by the prosecutor that if the Court was of the view that the information and summons were defective by reason of a failure to charge Traveland with any identified offence against s 53(c) of the Trade Practices Act 1974, it was not a case in which leave to amend to overcome the defect should be given. The reason for that concession was that the time within which a prosecution for an offence against s 53(c) of the Trade Practices Act could be brought had long since expired (at 572). 47Furthermore, in these matters, the prosecutor submitted, and I agree, that the terms of the particulars found to have been adequately pleaded are sufficient to encompass each of the proposed amendments and that the proposed amendments are no more than, in effect, "further and better particulars" as opposed to the addition of "new measures" not previously pleaded. I decline to refer the question of law that raises s 107 of the OHS Act . 48In determining the application to refer questions of law, I am also mindful that a court should be reluctant to interfere with the criminal justice system by permitting steps which bifurcate the hearing of criminal prosecutions. 49For 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 . I decline to exercise my discretion to refer the questions of law submitted by the defendants to a Full Bench of the Court. 50I reserve the question of costs. 51These matters are listed for plea and/or further directions at 9.30 am on Tuesday 28 June 2011.

Attachment - Draft Order 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: 27 June 2011

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