Consideration
16As noted earlier, the question submitted for determination before this Full Bench was in the following terms:
Can the particulars of the charge contained in the Application for Order, if proved, establish the elements of an offence under s 10(1) of the Occupational Health and Safety Act 2000?
17The question turned upon the construction of s 10(1), and, in particular, the nature and extent of the duty created by that provision (and whether the acts and omissions particularised in the charge established the elements of an offence under that provision). This was reflected in the submissions of the parties, where the approach taken by each party to the question was premised upon their varying approaches to the construction of s 10(1).
18In this respect, the defendant submitted that the duty under s 10(1) extended to ensuring that the physical condition of premises (when used as a place of work) was such that the premises were safe and without risks to health, but did not extend to ensuring the safety of work being undertaken at any premises over which a person had control. The defendant relied, in support of that approach to construing s 10(1), primarily on an analysis of the statutory scheme, including a consideration of the definition of "premises" in s 4 of the Act and the references to "controllers of premises" in the Regulation, and a comparison of s 10(1) to other duties arising under Pt 2 Div 1 of the Act. Essentially, it was the defendant's contention that the duty under s 10(1) was confined to any risks that the premises alone posed to persons doing work at those premises.
19It was the prosecutor's position that s 10(1), on its proper construction, was designed to contemplate circumstances where premises could be unsafe because unsafe work methods rendered them so; control over those unsafe work methods was a means of (perhaps limited) control over the premises. The controller has obligations, it was submitted, to ensure that, amongst other things, when premises are being used as a place of work, the systems of work to be utilised in conjunction with the premises do not result in the premises becoming unsafe or creating a risk to health. The prosecutor relied, in support of its interpretation of s 10(1), on various authorities and an analysis of the words of the section and the purpose of the section having regard to the objects of the Act. Essentially, it was the prosecutor's position that the safety of premises can be affected by the activities that occur on the premises.
20As earlier noted, a statement of facts was prepared by the parties for the purpose of the reference of the question to the Full Bench. The statement, however, contained a notation to the effect that it was not to be binding upon any party. In the result, there was, effectively, no factual basis upon which this Full Bench could determine the matter.
21In this respect, it was the defendant's position that the issue raised by the question did not require the Full Bench to have regard to specific factual matters. The issue for determination would remain unchanged, it was submitted, even if the assumption was made that the prosecutor could prove each act or omission pleaded against the defendant. It followed that there was no "factual vacuum", because what was required was a consideration of whether the acts and omissions as particularised in the charge could constitute an offence under s 10(1) (assuming they were capable of proof).
22On the contrary, it was contended by the prosecutor that the question could not be determined in advance of all the evidence in the prosecution case being adduced. However, in argument, it was also submitted by the prosecutor that the phrasing of the question using the word "can" as opposed to "does" would allow the Full Bench to determine (in the absence of facts) whether the charge could establish the elements of an offence under s 10(1) (the question of whether they ultimately do establish the offence would remain a question of fact to be determined by the trial judge).
23The defendant's contentions invited a narrow approach to the construction of s 10(1), confining the duty imposed by that section to the duty of controllers of premises to ensure that the physical or inherent condition of the premises, when being used as a place of work, is such that the premises are safe and without risk to health. Such a construction necessarily reads out of the section any duty on controllers to ensure that the systems of work used in conjunction with the premises do not result in the premises becoming unsafe. The defendant's approach did not envisage that the safety of premises could be affected by the activities occurring thereon. Rather, the safety of premises was confined solely to the attributes of the premises themselves.
24In inviting that narrow approach to the construction of s 10(1), the defendant focussed its submissions upon the meaning of the concept of "[a] person who has control of premises" and the definition of the "premises" which that person must ensure are safe and without risks to health. In approaching the construction of the section in that manner, the defendant did not place any great emphasis on the words "used by people as a place of work".
25Under s 10(1), a person commits an offence where that person has control of premises as defined, the premises are used by people as a place of work and the person fails to ensure that the premises are safe and without risk to health. The eastern shoulder of the F3 Freeway at Warnervale, when not being used as a place of work, was unlikely to be inherently unsafe. However, when that premises was used by people as a place of work, the nature of the premises, in that context, had to be reconsidered by the controller and steps taken to ensure that it was safe for those performing work there. It is our view that the defendant's approach to the construction of s 10(1), confining the duty under that section to a duty to ensure the premises are not inherently unsafe, involves a considerable reading down of the section. However, it is unnecessary, given the conclusions reached, to offer any further view as to the question of construction.
26The difficulty in this matter is that it is by no means clear, even if the construction of s 10(1) proffered by the defendant was accepted, that the application for order is invalid.
27Whilst the primary submission of the prosecutor was that s 10(1), on its correct construction, imposed a duty on controllers of premises which extended to ensuring that premises were not rendered unsafe by virtue of the work being performed thereon, the prosecutor also submitted in the alternative that, even if the narrower construction of the section proffered by the defendant was proceeded upon, the particulars of the charge contained in the application for order were capable of establishing an offence under s 10(1) on that basis. It was the submission of the prosecutor that, upon either construction of the section, the question of law referred should be answered in the affirmative.
28In our view, the particulars, if read in light of the ordinary grammatical meaning of the words used, can be found to fit within the narrow construction of s 10(1) proffered by the defendant.
29The particulars of the charge, prima facie, can be read as directing attention to the safety of the premises. For example, at paragraph (j) of the particulars, the premises are alleged to be unsafe because of the lack of various traffic controls. Those controls do not address the way in which the vegetation and clean up work itself would be performed (at least on the facts such as they are currently known).
30This gives rise to two issues, both of which concern the suitability of answering the referred question.
31If, in line with its alternative submission, the prosecutor does particularise the charge against the defendant as relating only to the inherent nature of the premises, then, presumably, an application to amend the application for order would need to made in order to remove elements of the particulars which go beyond that scope. Alternatively, there may be a legitimate basis for a request by the defendant for further and better particulars which would have the effect of confining the charge in that manner. The difficulty with this course for the present proceedings is that, if the matter is to proceed on the basis of an amended or confined set of particulars, it is plainly not appropriate for the Court at this stage to answer the question referred. In any event, even if the charge is particularised against the defendant as going only to the inherent nature of the premises, there would likely remain a need for the Court to understand the factual substratum upon which the confined particulars proceed for the purpose of considering any further issues which may arise.
32If, on the other hand, in line with its primary contention, the prosecutor intends the particulars of the charge against the defendant to be understood on the basis that the obligations on controllers of premises vary depending on the nature of the work to be performed thereon (which approach caused the agitation of these issues in the first place), there remains, in our view, a difficulty in the Court answering the question as referred on the bare bones of the particulars at present. In order for the Court to consider the issue, at least some statement of the factual substratum upon which the particulars are based is required. For example, paragraph (j) of the particulars refers to a failure of the defendant to "conduct work". As mentioned earlier, in order to answer the question referred, the Court would require an agreed or determined fact as to what work is being referred to, and in what particular area, which is said to affect how the premises is to be controlled. No such factual basis exists. That omission is significant, as the decisions of the Court of Criminal Appeal in Collins v State Rail Authority NSW (1986) 5 NSWLR 209 and the Supreme Court in Glover v McDougall [1976] 2 NSWLR 359 make clear.
33In Collins, the Court of Criminal Appeal heard a stated case concerning the operation of s 17(1) of the Occupational Health and Safety Act 1983. At first instance, O'Brien J made extensive findings of fact based on the evidence before him and then stated a case to the Court of Criminal Appeal pursuant to the provisions of s 5A(1) of the Criminal Appeal Act (s 5A(1) was in similar terms to the provision that is now s 5AE). Despite these detailed findings of fact made by the first instance Judge, based on all of the evidence, Street CJ was moved to state (at 211):
... It should be recognised at the outset that a stated case is well-known as a cumbersome and often unsatisfactory means of bringing a matter up for consideration on appeal. There are occasionally issues of law which can conveniently be dealt with through this appellate procedure. In general, however, it is a procedure which is fraught with difficulties and the present case is no exception from that generality. This Court does not have the benefit of any distillation by the trial judge of the issues of law that emerged for decision. Nor does it have the benefit of an analysis by the trial judge of the significance of the various findings of fact upon the ultimate issues of fact and of law that must be resolved in the determination of these two charges. ...
34In Glover, Yeldham J dealt with a stated case pursuant to s 101 of the Justices Act 1902 in which counsel for the respondent argued that it was necessary to go to some portions of the evidence to which no reference had been made in the stated case. His Honour, (at 361), declined to proceed in that fashion and sent the stated case back to the Magistrate so that he could set out all the relevant facts found by him that bore upon the question that the Court was asked to determine. His Honour's approach was as follows (at 361):
Mr. Carruthers, counsel for the respondent (ship's master), informed me that in order properly to understand the manner in which the magistrate came to the conclusion which he did, and in order properly to examine the question whether or not there had been a leakage, as he found, it was necessary to go to some portions of the evidence to which no reference is made in the stated case. In relation to this, Mr. Vine-Hall stated that such evidence was not really open to challenge by the appellant (informant), as he had no independent knowledge of the various matters deposed to, and that it may be taken that the magistrate did find in favour of the respondent the various matters to which Mr. Carruthers wished to refer. However, it is my view that the authorities over many years have made it quite clear that, unless one of the matters for determination by this Court is whether or not there is any evidence of primary facts found by the magistrate, the depositions cannot be referred to at the hearing of a case stated under s. 101 except, as was pointed out in McNeall v. Croker (1) for the purpose of deciding whether in fact all the material findings have been stated by the magistrate. It is also clear from the authorities that the magistrate, in the stated case, which I appreciate in practice is drafted by the parties, should categorically and clearly set out all the facts found by him upon the evidence before him which are relevant to the questions posed for determination by this Court. In this regard I would refer to what is said in Addison and Patterson,Appeals from Magistrates (49), in McNeall v. Croker (2), to which I have referred, in Ex parte Benson; Re Harris (3) and in Orange City Council v. Canobalas Shire Council (4). If I were now merely by consent to go to the evidence before the magistrate, even though it might be unchallenged, it would be necessary for me to assume or surmise that all such evidence had been accepted, and to guess at the weight which was given to it. In these circumstances, regrettable though it be, I think the appropriate course is to send the case back to the magistrate so that he may set out in it all the relevant facts found by him which bear upon the question which the parties have agreed is the only one arising for determination.
35When considered in light of either the prosecutor's primary or alternative submission, we are of the view that there has not been established an adequate basis for the resolution of the question at this stage. Whilst not precisely so, when considered in terms of the approaches contained in the primary and alternative submissions of the prosecutor, the question which the Full Bench has been asked to answer is, in substance, hypothetical. This conclusion was put beyond doubt by the further submission of the prosecutor that the wording of the question using the word "can" as opposed to the word "does" allowed the Full Bench to determine the question in the absence of facts. That submission merely confirms the hypothetical nature of the question posed.
36It is a fundamental principle that questions of law referred under s 5AE of the Criminal Appeal Act cannot be hypothetical in any way and must be based upon an established factual matrix (see, generally, the observations of the Court of Appeal in Environment Protection Authority v Land and Environment Court (NSW) and anor [2004] NSWCA 50; (2004) 144 A Crim R 198. This matter was also discussed more recently by Marks J in Regan v Bulga Underground Operations Pty Ltd [2012] NSWIRComm 19). In most cases, such questions are not submitted for determination until the referring judge has made relevant findings of fact (see, for example, Rockdale Beef Pty Ltd v Industrial Relations Commission of NSW [2007] NSWCA 128; (2007) 165 IR 7). As was held by the Court of Appeal in Environment Protection Authority (at [58]):
Again, questions of law which would otherwise arise in a particular case, may become academic if the facts are found by the trial judge against or in favour of one or other of the parties. This will not be known until the judge's factual findings are pronounced. Until then, there would be no utility in the prosecution requesting the judge to stay the case on those questions.
37It is not appropriate (nor, for that matter, of any utility) for a Full Bench of this Court to determine a question referred under s 5AE characterised in that way.
38In all the circumstances, we decline to answer the question referred under s 5AE and return the matter to the trial judge for disposal.