Inspector Wolf v Rockdale Beef Pty Ltd

Inspector Wolf v Rockdale Beef Pty Ltd - [2006] NSWIRComm 280 - NSWIRComm 2006 case summary — Zoe

[9]

Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 Barton v R (1980) 147 CLR 75 Boral Gas (NSW) Pty Ltd v Magill and Another (1993) 32 NSWLR 501 Budget Nursery Pty Limited v Federal Commissioner of Taxation (1989) 42 A Crim R 81 Chugg v Pacific Dunlop Ltd(1990) 170 CLR 249 Darling Island Stevedoring & Lighterage Company Ltd v Jacobsen (1945) 70 CLR 635 De Romanis v Sibraa and Another [1977] 2 NSWLR 264 Director of Public Prosecutions v Cassell (1995) 80 A Crim R 160 Dowling v Bowie (1952) 86 CLR 136 Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 Environment Protection Authority (EPA) v Land and Environment Court of New South Wales (2004) 134 LGERA 140 Environment Protection Authority (EPA) v Goulburn Wool Scour Pty Ltd [2005] NSWLEC 206 Environment Protection Authority of NSW v Goulburn Wool Scour Pty Ltd (2004) 137 LGERA 289 Ex parte Ferguson; Re Alexander (1944) 45 SR (NSW) 64 Ex parte R J Wimborne Pty Ltd; Re Beale (1957) 58 SR (NSW) 353 Francis v Flood and Another [1978] 1 NSWLR 113 Inspector Ross Wolf v Rockdale Beef Pty Ltd [2005] NSWIRComm 184 Inspector Wolf v Rockdale Beef Pty Ltd [2005] NSWIRComm 163 Inspector Wolf v Rockdale Beef Pty Ltd [2005] NSWIRComm 169 Island Maritime Ltd v Filipowski; Kulkarni v Filipowski (2006) 80 ALJR 1168 Jago v The District Court of New South Wales (1989) 168 CLR 23 John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508 Kopuz v District Court of New South Wales and Another (1992) 28 NSWLR 232 CASES CITED: Lynch v Attwood and Another [1983] 3 NSWLR 1 Mallard v R (2005) 222 ALR 236 Morrison v Joy Manufacturing Co Pty Ltd (2004) 137 IR 8 Ove Arup Pty Ltd v Industrial Court of NSW (2006) 149 IR 193 Ove Arup Pty Ltd v WorkCover Authority(Inspector Mansell) (2005) 141 IR 78 Phillips v Cassar [1979] 2 NSWLR 430 Proust v Blake (1989) 17 NSWLR 267 R v Edwards [1975] QB 27 R v Lazarevic (1963) 85 WN (Pt 1) (NSW) 159n R v Madden (1995) 85 A Crim R 367 Reg v Fraser [1977] 2 NSWLR 867 Reg v Garnet-Thomas [1974] 1 NSWLR 702 Reg v Hunt [1987] AC 352 Rice v Henley (1914) 19 CLR 19 Rockdale Beef Pty Limited v Industrial Relations Commission (2005) 148 IR 395 Shillinglaw v Roberts (1891) 17 VLR 136 Taylor v Environment Protection Authority (2000) 50 NSWLR 48 Thomas v R (1937) 59 CLR 279 VACC Insurance v BP Australia Ltd (1999) 47 NSWLR 716 Verschures Creameries v Hull and Netherlands Steamship Company Limited [1921] 2 KB 608 Vines v Djordjevitch (1955) 91 CLR 512 Warman International Ltd v WorkCover Authority of New South Wales (1998) 80 IR 326 WorkCover Authority (NSW) (Inspector Singh) v ABB Australia Pty Ltd (2006) 151 IR 90 WorkCover Authority (NSW) (Inspector Wolf) v Rockdale Beef Pty Ltd [2005] NSWIRComm 346 WorkCover Authority of New South Wales (Inspector Bultitude) v Grice Constructions Pty Ltd (2002) 115 IR 59

[34]

A COPY OF MY JUDGMENT OF 27 MAY 2005, [2005] NSWIRComm 169 IS ANNEXED AND MARKED "F". Appeal 7 On 30 August 2005 the prosecutor filed an application to extend time to appeal and to appeal from the decision of Schmidt J given on 20 May 2005. This is the second matter before the Full Bench. The reasons given for not filing the appeal in time were as follows:

No time limit applies in any event to such appeal.
If a time limit does apply under s 189 of the Industrial Relations Act 1996, the appeal has in any event been lodged within 21 days of final clarification by her Honour of the true nature of her judgment and thus within subs 189(1). It is the Appellant's contention that the true nature of her Honour's judgment under appeal is a quashing of the charge. However her Honour stated ex tempore on 11 May 2005 that "the charge [under s 10(2) of the Occupational Health and Safety Act 2000] must be dismissed for a variety of reasons and I order accordingly" and in her judgment on 20 May 2005 under appeal she stated that "I ordered that the offence charged under s 10 be dismissed". However, on 5 August 2005 ex tempore and in her further judgment on 12 August 2005 published as Inspector Wolf v Rockdale Beef Pty Ltd [2005] NSWIRComm 289 her Honour stated that she had not formally ordered the dismissal of the charge.
If this Honourable Court is of the view that notwithstanding the above submitted reasons subsection 189(1) of the Industrial Relations Act 1996 does apply and has not been compiled with, an extension of time under subsection 189(2) is claimed. 8 The grounds for claiming an extension of time were as follows:
This appeal is related to the referral of this Honourable Court by her Honour of six questions of law for determination, in Matter No IRC 6128 of 2003 under s 5AE of the Criminal Appeal Act 1912 as applied by section 196 of the Industrial Relations Act 1996. The terms of that referral were only finally settled on 19 August 2005.
The first two of those six questions raise the same or substantially the same questions of law as are raised in this appeal.
Depending on the view that this Honourable Court takes of the nature of the orders made or proposed by her Honour in her judgment of 20 May 2005 under appeal, it may be that either the referral by her of the said two questions of this appeal is not within jurisdiction. Taken together, the two applications will ensure that his Honourable Court is seised of these important questions for determination.
It was inappropriate for this appeal to be brought before her Honour had referred the six questions.
It is in the interests of justice and in the public interest that the questions raised in this appeal be determined.

[35]

9 The grounds of the appeal were as follows:

Her Honour erred in holding that the charge alleging an offence under subsection 10(2) of the OHS Act did not plead all the legal elements of the offence.
Her Honour erred in holding that an offence under subsection 8(2) and an offence under subsection 10(2) of the OHS Act could not be charged in the alternative.
Her Honour erred in holding that an offence under subsection 8(2) and an offence under subsection 10(2) of the OHS Act could not be pleaded as alternatives in the one Application for Order. Application for declaratory relief 10 The third matter before the Full Bench is an application by the prosecutor pursuant to s 154 of the Industrial Relations Act, also filed on 30 August 2005, seeking declarations that Schmidt J erred in determining in her judgment of 27 May 2005 that she would order a permanent stay of the proceedings in Matter No IRC 6128 of 2003 and a declaration that the respondent's motion seeking a permanent stay should have been dismissed with costs and that her Honour should have proceeded to hear and determine the charge before her. 11 The grounds upon which the declaratory orders were sought and the particulars of those grounds were as follows:
Her Honour erred in considering "the nature of the investigation conducted in this case" - see paragraph [107] of her judgment.
Her Honour erred in her decision that the document which she refers to in paragraph [115] of her judgment as "a document obtained from AQIS", which was marked as "MFI 17" before her, was not a business record admissible under s 69 of the Evidence Act 1995 (NSW) but was only admissible if its provenance was proved, and her Honour erred in her consequent rejection of the tender by the prosecution of that document.
Her Honour erred in holding in paragraph [130] of her Judgment that "the defendant has advanced legitimate complaints".
Her Honour erred in holding in paragraph [133] of her Judgment that "the prosecution ... intends... the calling of further evidence beyond the matters dealt with in the statements, in relation to the question of the safety of the system of work".
Her Honour erred in (apparently) holding in paragraph [138] of her Judgment that "the prosecutor was [not] entitled to reject what the defendant had put".
Her Honour erred in purporting to review the consideration that the prosecution gave to the matters submitted to it by the defence, and in her conclusion that the consideration was inadequate - see at paragraph [148] of her judgment.
Her Honour erred in holding that the prosecution intended to conduct a trial inconsistent with a prosecutor's obligations.
Her Honour erred in holding in her judgment at [162] that on the state of the evidence as it was before her it was an abuse of process "in a case where the identity of the proper defendant is at issue" for the prosecutor to "[advance] a case that the existence of the agency is irrelevant to ascertaining whether it is the defendant or the partnership which is the employer; who conducted the undertaking, and at whose place of work the risk to safety arose" and to "[propose] to do no more than raise the issue in evidence and then to call evidence relevant to the case it advances, leaving it to the defendant, if it wishes to advance a defence, to lead evidence which establishes the agency and that the partnership is the employer, conducted the undertaking and at whose place of work the risk arose".
Her Honour erred in holding in her judgment at [162] that the defendant would be denied a fair trial if it were to continue in the matter as proposed by the prosecution.
With respect, her Honour, failed in her duty to hear and determine the charge brought against the respondent by the applicant for a breach of s 8(2) of the Occupational Health and Safety Act 2000, which her Honour had held in her judgment delivered 20 May 2005 and published as Inspector Wolf v Rockdale Beef Pty Ltd [2005] NSWIRComm 163 was validly commenced.

[41]

55 The prosecutor submitted that the order made was consistent with the statutory scheme, the common law, which permitted offences to be pressed in the alternative and with s 23 of the Criminal Procedure Act 1986. 22 It was held: 56 I am satisfied that the defendant's submission in relation to ss 30 and 31 must be accepted. The two offences in question cannot be advanced in the one order, even as alternatives, consistently with the statutory scheme. 23 After setting out the factual circumstances out of which the offences charged were alleged to have arisen (at [57]), her Honour noted: 58 While s 31(1) permits more than one contravention of 'a provision' of Division 1 arising out of the same factual circumstances, to be charged as a single offence, it does not authorise contraventions of two or more of those provisions to be charged in the one offence. Here, the factual particulars provided in relation to the s8 charge, could have been charged as separate offences, or as a single offence, consistently with s 31(1). The offence under s 10, however, may not be advanced as part of the one offence, given the provisions of s 31(2). This is confirmed by s 30, which deals with the circumstances in which alternative convictions may result in proceedings brought under the OHS Act. This is limited to offences brought under ss8 and 9 and does not extend to s10. Neither the provisions of the common law, nor general provisions such as s 23 of the Criminal Procedure Act 1986, can be called in aid to avoid the operation of the express provisions made by the OHS Act as to these matters. 24 Having rejected the defendant's submission that the charges were an abuse of process, her Honour proceeded to discuss whether the entire charge had to be dismissed. After noting that the defendant conceded that the essential elements of the s 8 offence had been provided, her Honour found that she was unable to dismiss the entire charge given that the defendant had all the necessary information to defend the offence so charged: see [61]-[62]. 25 Her Honour held: 65 It appears to me that the Court must be slow to reach the conclusion invited by the defendant on material such as that relied upon, at the stage at which these matters were argued. I am not satisfied that this aspect of the case was made out.

[44]

27 Before considering the six questions referred to the Full Bench, it is necessary to identify more precisely Schmidt J's findings at first instance. Her Honour conveniently sets out these findings in her Reference. First, the judgment of 20 May 2005. In relation to the first question, her Honour relevantly found: (1) It was argued for the defendant that offences under ss 8 and 10 could not be found in the alternative, as was sought, having regard to the express provisions of s 30. Further, the two contraventions of the OHS Act, one under s 8 and the other under s 10, could not be charged as a single offence, given the provisions of s 31(2) and because they did not, in any event, arise out of the same factual circumstance (at [54]). (2) The prosecutor submitted that the order made was consistent with the statutory scheme, the common law, which permitted offences to be pressed in the alternative and with s 23 of the Criminal Procedure Act 1986 (at [55]) . (3) I am satisfied that the defendant's submission in relation to ss 30 and 31 must be accepted. The two offences in question cannot be advanced in the one order, even as alternatives, consistently with the statutory scheme (at [56]). (4) The factual circumstances out of which all of the offences charged are alleged to have arisen, can be gleaned from the affidavit filed by the prosecuting Inspector, in support of the application for order. They included that on 27 October 2001, Mr Poole was injured when his arm was caught in the nip point of a machine which he was operating in the bone room of the defendant's abattoir. The machine was unguarded. This was the first occasion upon which Mr Poole performed the work in question. No safety induction or other training had been conducted by the defendant. It provided no documents to workers using the plant, but relied on another entity to do so. The operation of the bone room was under the control of another company at the time of the accident. The defendant employed a number of employees. Mr Poole and other workers necessary for the bone room to be operated, were 'sourced' by the company operating the bone room from a third corporation (at [57]). 28 In relation to the second question, her Honour relevantly found: (1) Whether the order made in this case discloses the necessary legal elements of the s 10 offence, depends upon the proper construction of the section in the statutory scheme (at [26]). (2) It was the prosecutor's case that the essential legal elements of the offence with which the defendant had been charged under ss 10(2) all appeared within that section. Section 11 of the Criminal Procedure Act 1986 was relied upon. What was contained in ss 10(3) and (4), did not form a part of the offence; those matters did not have to be proved by the prosecution, in order to make out the offence; they were matters which a defendant could establish, for example, by way of defence of a charge (at [30]). (3) [T]he question arises as to whether the provisions of ss 10(3) and (4) must be understood as statutory exceptions to the duties imposed by ss 10(1) and (2), or whether they form an inherent part of the duties so imposed, breach of which would be an offence under s12 (at [38]). (4) In the case of the duties imposed by ss 10(1) and (2), I take the view that the terms of the duty do not appear in those subsections alone, but can only be ascertained from all of the provisions made in the section, in their entirety (at [41]).

[46]

29 The third to sixth questions arise from her Honour's judgment of 27 May 2005. In relation to the third and fourth questions Schmidt J relevantly found: (1) What has so far emerged in the trial has made it clear that amongst other things, there are issues between the parties as to whether the defendant was an employer; and whether the risks to safety alleged arose during the course of its undertaking and at its place of work. These issues raise for consideration a business arrangement which involves a partnership between two companies, which has entered an agreement with the defendant under which the defendant manages the partnership's abattoir (at [39]). (2) At the heart of the factual controversy is that the wrong defendant has been prosecuted (at [67]). (3) I am satisfied that there was a prima facie basis for the offence charged in the prosecution brief, having in mind also the affidavit sworn by the Inspector in support of the application for order (at [73]). (4) There is no reason in law why a company acting as an agent for others may not have employees. It advised the Inspector it had them. He was entitled to proceed on the basis that the advice was correct (at [75]). (5) The defendant had also advised the Inspector that it was the manager of the abattoir owned by the partnership. I am satisfied that this material provided a prima facie basis for the view that the abattoir where the accident had occurred was the defendant's place of work and that it had occurred in the course of its undertaking. That the defendant was also disclosed to be the partnership's agent, could not preclude the possibility that it was also pursuing an undertaking at the abattoir and that it was the defendant's place of work. This flowed naturally from the defendant's advice that it had employees and that they were working at the abattoir (at [76]). (6) [T]he defendant's later advice that it was not, in fact, an employer…necessitated the prosecutor revisiting the charge and considering whether it was the defendant or the partnership which was the employer in the circumstances of the arrangement which they had entered with each other and with the individuals concerned. Given the impact which that question had on the place of work and undertaking elements of the charge, those matters too had to be revisited (at [147]). (7) [T]he prosecutor's obligation is not one which can be approached on the basis that, if it wishes, the defendant can lead such material, in order to make out a defence. This statutory scheme creates certain absolute obligations. It also imposes a particular onus on a prosecutor, who seeks to establish that those obligations have not been met and that an offence has been committed. There are defences provided in the statute, which only arise for consideration, once an offence has been made out. They do not include a defence of the kind asserted by the prosecutor. The onus to make out the case the prosecution alleges, to the necessary criminal standard, can only be met by the prosecution leading in its case, all of the evidentiary material which will provide a fair opportunity for the factual matters in issue between the parties to be determined by the Court (at [152]). (8) The prosecution however, persisted with its view that firstly, the question of whether the defendant was an agent for the partnership is irrelevant to the charge and secondly, that it was a matter for the defendant to tender material going to show that it undertook various matters as an agent, as a part of its defence. That being so, I am satisfied that a fair trial cannot be assured, given the course upon which the prosecution has embarked and proposes to proceed (at [158]). (9) [T]he prosecution has here embarked on…a disavowal that the prosecution's obligations will be met. In a case where the identity of the proper defendant is at issue, the prosecutor advances a case that the existence of the agency is irrelevant to ascertaining whether it is the defendant or the partnership which is the employer; who conducted the undertaking and at whose place of work the risk to safety arose. Having adopted that attitude, it proposes to do no more than raise the issue in evidence and then to call evidence relevant to the case it advances, leaving it to the defendant, if it wishes to advance a defence, to lead evidence which establishes the agency and that the partnership is the employer, conducted the undertaking and at whose place of work the risk arose. I am satisfied that this involves an abuse of process at trial which the Court cannot remedy (at [162]).

[54]

38 The quoted passage from Madden (R v Madden (1995) 85 A Crim R 367), cited at [30] of Goulburn Wool Scour, was a passage from the judgment of Hunt CJ at CL in the Court of Criminal Appeal (with whom Allen and Dunford JJ agreed) in the following terms: The question which is posed for this Court's determination is whether the judge's finding that the offence had been proved was erroneous in law. It is not an appropriate question to be asked in a case stated. The procedure provided by s.5B of the Criminal Appeal Act 1912 (NSW) is intended to permit the District Court judge to obtain advice from this Court upon questions of law which will assist that judge in determining the fate of the appeal to that Court pursuant to s.122 of the Justice's Act [1902]. The procedure is not intended to provide a means of challenging the ultimate determination made (or to be made) by the judge on that appeal to the District Court, as there is no right of appeal to this Court from that determination. The question asked here is in form no more than an attempt to exercise such a right of appeal. It is for that reason that this Court has said, and often repeated, that it is necessary that the particular question or questions of law upon which advice is to be obtained are specifically stated. 39 In Environment Protection Authority (EPA) v Land and Environment Court of New South Wales (2004) 134 LGERA 140 the judge at first instance in the Land and Environment Court announced that he was satisfied that the defendant, Goulburn Wool Scour Pty Limited, had defeated a charge of polluting by making out a statutory defence. His Honour was about to hand down his judgment and formally order the defendant's acquittal when the prosecutor requested that the matter be stood over so that it could consider requesting the judge to state a case to the Court of Criminal Appeal pursuant to s 5AE(1) of the Criminal Appeal Act. The judge agreed and then, before publishing his reasons, changed the words 'formal orders' to 'proposed formal orders'.

[60]

45 As Simpson J observed in Environment Protection Authority (EPA) v Goulburn Wool Scour Pty Ltd [2005] NSWLEC 206, s 5AE is designed to facilitate the giving of advice by this Court to a first instance judge in order to enable the proper resolution of the issues in the proceedings. It arises where proceedings are still on foot. In Budget Nursery Pty Limited v Federal Commissioner of Taxation (1989) 42 A Crim R 81 at 82-83 Hunt J (with whom Grove and Allen JJ agreed) observed: The purpose of the stated case procedure is not to provide an appeal after the judge has made his decision; the purpose is to provide him with assistance in coming to his decision. Once the appeal to the District Court has been upheld or dismissed, or the defendant has been convicted or acquitted, a case may no longer be stated: Reg v Garnet-Thomas [1974] 1 NSWLR 702 at 706. It does not matter that the judge has already indicated what he intends to do: Garnet-Thomas at 706; as long as there has not been a 'formal' dismissal of the appeal or other appropriate order disposing of it: Reg v Fraser [1977] 2 NSWLR 867 at 875. 46 In Director of Public Prosecutions v Cassell (1995) 80 A Crim R 160 Kirby P said at 165: It is true that once an appeal has been upheld or dismissed, or the appellant convicted or acquitted, a case may no longer be stated for the opinion of the Court of Criminal Appeal. This may variously be explained upon the footing that the appeal is no longer 'before' the judge of the District Court, or that the opinion of the Court of Criminal Appeal, stated pursuant to a submission under s 5B would have no further utility, the District Court having concluded its part in the appeal from the Local Court. The whole point of referring the question of law for determination by the Court of Criminal Appeal is to secure the order or direction of the Court of Criminal Appeal to the District Court which will govern the disposition of the proceedings in that Court. See Reg v Garnet-Thomas [1974] 1 NSWLR 702 at 706 where Jacobs P explained: 'It seems to me that it is open to the chairman of quarter sessions now, in the light of these decisions to state a case to the Court of Criminal Appeal at any stage of the proceedings before acquittal or conviction, or before upholding or dismissing the appeal but that thereafter he can never state such a case. I do not think it is necessary that he should have indicated his result or his intended result one way or the other. That is a factor not relevant to the power given to him under s 5B.' In Garnet-Thomas , Jacobs P referred to R v Lazarevic (1963) 85 WN (Pt 1) (NSW) 159n. There the District Court judge had made final orders in the appeal to the Quarter Sessions. He was thus held to be functus officio. The Justices Act 1902, s 125(1) contemplates that the appeal does not conclude until the District Court makes its order. Decisions, comments, expressions of opinion and even findings made in the course of an appeal, although necessary for the formulation of the final order, do not have the fatal effect of disqualifying the District Court judge from the power to state a case under s 5B of the Criminal Appeal Act 1912. The judge is not so disqualified until the final order is pronounced. Compare Kopuz v District Court of New South Wales and Another (1992) 28 NSWLR 232 at 244; 62 A Crim R 337. This is because, as Lord Denning MR once explained, until the final order, no cause is lost and no decision made which cannot by persuasion, reconsideration (and in the case of an opinion stated pursuant to a submission of a question under s 5B), an order or direction of the Court of Criminal Appeal, produce a different result from that to which the judge has earlier proceeded."

[63]

49 In R v Madden (1995) 85 A Crim R 367, Hunt CJ at CL observed that the procedure provided by s 5B of the Criminal Appeal Act was intended to permit the District Court judge to obtain advice from the Court of Criminal Appeal upon questions of law that would assist that judge in determining the fate of the appeal to that Court pursuant to s 122 of the Justice's Act 1902. The procedure, it was observed, was not intended to provide a means of challenging the ultimate determination made (or to be made) by the judge on that appeal to the District Court, as there was no right of appeal to the Court of Criminal Appeal from that determination. 50 Similarly, in the present proceedings, s 5AE was intended to provide the opportunity for Schmidt J to obtain advice from the Full Bench of the Court upon questions of law that would assist her Honour in determining the question of whether the charge under s 10 could be laid in the alternative. However, having ordered the dismissal of the charge, the opportunity to seek the advice of the Full Bench was no longer available to her Honour. The Court does not have jurisdiction under the combined operation of s 196 of the Industrial Relations Act and s 5F of the Criminal Appeal Act to hear and determine an appeal against an interlocutory judgment or order made in proceedings to which s 168 of the Industrial Relations Act applies: Morrison v Joy Manufacturing Co Pty Ltd (2004) 137 IR 8 at [68]. Section 5AE, in the circumstances of the present proceedings, does not provide an alternative means to s 5F for the prosecution to appeal. An appeal may, however, lie under s 5C of the Criminal Appeal Act in relation to her Honour's decision and order dismissing the s 10 charge: Ove Arup Pty Ltd v Industrial Court of NSW (2006) 149 IR 193 at [30]-[72] per Basten JA with whom Spigelman CJ and Mason P agreed. The question of the appeal is dealt with in detail later in this judgment. 51 In relation to the first and second questions, we find that we are unable to answer them because of the absence of any power under s 5AE to do so. Third and fourth questions

[65]

Was it correct in law to hold in [162] that on the state of the evidence as it was before me it was an abuse of process "in a case where the identity of the proper defendant is at issue" for the prosecutor to "[advance] a case that the existence of the agency is irrelevant to ascertaining whether it is the defendant or the partnership which is the employer; who conducted the undertaking, and at whose place of work the risk to safety arose" and to "[propose] to do no more than raise the issue in evidence and then to call evidence relevant to the case it advances, leaving it to the defendant, if it wishes to advance a defence, to lead evidence which establishes the agency and that the partnership is the employer, conducted the undertaking and at whose place of work the risk arose"? 53 Questions 3 and 4 relate to the foreshadowed permanent stay of the proceedings in the judgment of 27 May 2005. The position of Rockdale Beef regarding these two questions was that neither question was a question of law that "arises at or in relation to" her Honour's judgment. It was submitted in relation to Question 3 that it was not a direct quote from her Honour's judgment and it could not reasonably be said to paraphrase any part of her judgment. 54 In relation to Question 4 it was submitted that question also sought to directly challenge factual determinations and the ultimate determination made (or to be made) by Schmidt J, as trial judge. It was impermissible for a referred "question of law" on a case stated to do so: see Goulburn Wool Scour. It was further submitted Question 4 was also a question of fact rather than a question of law and should be rejected for that reason: see Goulburn Wool Scour at [22] and the comments of Glass JA in Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156. 55 The prosecutor indicated that he would not argue for a negative answer to Question 3. It was submitted the question did not precisely deal with the issues raised by her Honour in her judgment of 27 May 2005 where her Honour reasoned to a conclusion that there was an abuse of process in the trial by the prosecutor as a result of the way that counsel for the prosecutor in the proceedings at first instance indicated that he proposed to proceed. Senior counsel for the prosecutor submitted that Question 3 could only be understood in context, and was best addressed together with Question 4. Senior counsel noted that the intent behind the drafting of Question 3 was to highlight for consideration by the Full Bench the reasoning of her Honour that led to her making the comment at [152] of her judgment of 27 May 2005 that the prosecution had an obligation to tender in its case "all of the evidentiary material which will provide a fair opportunity for the factual matters in issue between the parties to be determined by the Court." 56 As to Question 3, we see little utility in answering the question, especially where there is, in effect, no contradictor and where it has been formulated in such open ended terms that an answer would provide little, if any, assistance in the disposition of the proceedings by the primary judge. We are of the opinion that Question 3 is an inappropriate question and in any event, superfluous in light of Question 4. The answer to Question 3 will, therefore, be "inappropriate to answer". 57 As to Question 4, her Honour indicated an intention to grant a permanent stay because: (1) There was a factual controversy about whether the wrong defendant was being prosecuted. (2) There was a prima facie basis for the view that the abattoir where the accident had occurred was the defendant's place of work and that it had occurred in the course of its undertaking. (3) Rockdale Beef had, however, later advised the prosecutor that it was not, in fact, an employer. This necessitated the prosecutor revisiting the charge and considering whether it was Rockdale Beef or the partnership (constituted by Renod Holdings Pty Limited and MC Meats (Rockdale) Pty Limited) that was the employer. (4) The prosecution persisted with its view that, firstly, the question of whether Rockdale Beef was an agent for the partnership was irrelevant to the charge and, secondly, that it was a matter for Rockdale Beef to tender material going to show that it undertook various matters as an agent, as a part of its defence. Having adopted that attitude, the prosecutor proposed to do no more than raise the issue in evidence and then to call evidence relevant to the case it advanced, leaving it to Rockdale Beef, if it wished to advance a defence, to lead evidence that established the agency and that the partnership was the employer, conducted the undertaking and at whose place of work the risk arose. That being so, her Honour was not satisfied that a fair trial could be assured, given the course upon which the prosecution had embarked and proposed to proceed. (5) The prosecutor's position involved an abuse of process at trial that the Court could not remedy.

[66]

58 Question 4 raises for consideration whether her Honour was correct in holding that the prosecutor's conduct amounted to an abuse of process that could not be remedied thereby warranting a permanent stay of the proceedings. 59 In our opinion, Question 4 is a legitimate question of law properly to be raised in a stated case under s 5AE of the Criminal Appeal Act as applied by s 196 of the Industrial Relations Act. The question has not been put by way of a general inquiry (see Proust v Blake (1989) 17 NSWLR 267 per Samuels JA at 272), or as an appeal by another name (see Madden per Hunt CJ at CL at 370), or to challenge factual determinations (see Goulburn Wool Scour per Simpson JA at [22]-[26]) but rather seeks the advice of the Full Bench as to whether or not, on the specific considerations her Honour has paid regard to and which are referred to in the Reference, her Honour was correct to hold there had been, in law, an abuse of process that was irremediable. An answer one way or the other would allow her Honour to proceed with the disposition of the matters before her, either by making the order she has foreshadowed or by continuing with the trial. 60 The problem, however, we are confronted with in relation to Question 4 is that her Honour asks: "Was it correct in law to hold in [162] that on the state of the evidence as it was before me it was an abuse of process …" In her Honour's decision of 6 June 2005 at [9] her Honour refers, in part, to the comments of Hunt CJ at CL in Madden where his Honour said at 370-371: This Court may not have regard to matters outside the stated case ( Thomas v R (1937) 59 CLR 279 at 286; R v Chan (1992) 28 NSWLR 421 at 431). If an appellant wants to rely upon express or implicit findings made by the judge, it is his obligation to ensure that those findings are expressed by the judge in the Stated Case. Sometimes, reasons for judgment given by the judge are attached to the Stated Case for this purpose. It would not, however, be correct to attach a transcript of the evidence. This Court is concerned usually with the facts found by the judge, not with the evidence as a whole. If there is a challenge to the evidentiary basis for any of those findings, the relevant parts of the evidence should be set out in the Stated Case. A judgment given by the judge prior to stating a Case for the opinion of this Court does not always identify every matter upon which the judge relied in making such findings. That is why the relevant parts of the evidence should be set out in the Stated Case if it is necessary to consider the evidentiary basis for any findings of fact (emphasis by Hunt CJ at CL). 61 In Thomas v R (1937) 59 CLR 279 the High Court was concerned with a case stated under s 478 of the Crimes Act 1958 (VIC) to the Court of Criminal Appeal. In relation to that provision Latham CJ stated at 286: The powers conferred upon the court by the section are limited to answering the specific questions referred to it ( R. v. Reid (1896) 22 VLR 395 ). Further, the court should not refer to any material not set forth in the case itself. Thus, the court was not entitled to go outside the case stated and use the transcript of evidence ( R. v. Murphy (1867) 4 WW & a'B (L) 63 ). 62 Schmidt J did not set out in her Reference the relevant evidence that was before her that led to the conclusion by her Honour there was an abuse of process. What we have are only references to evidence in her Honour's decision. Nevertheless, these are most unusual proceedings. There are three matters before the Full Bench involving overlapping issues. In addressing the questions in the stated case senior counsel for the prosecutor referred to and relied upon the transcript of proceedings and documentary evidence before her Honour. That transcript and evidence was set out in the appeal books. No objection was taken by senior counsel for the defendant to that course and, indeed, counsel for the defendant also relied on the transcript and documentary material in the appeal books in responding to the prosecutor's submissions regarding the stated case.

[82]

77 It seems to us that if it were proven by the prosecutor that Rockdale Beef was the employer for the purpose of s 8(2), that it conducted the undertaking and the abattoir was its place of work, it is immaterial whether the defendant was an agent for the partnership. There may be some circumstances where the prosecutor may be required to tender evidence to the effect that the defendant is an agent; and the existence of the agency may be a material consideration in the Court's deliberations about who is the employer. But the existence of agency, if proven, is not conclusive proof that the defendant is not an employer for the purpose of s 8(2) of the OHS Act. 78 The defendant had tendered on the voir dire an extract from Halsbury's Laws of Australia regarding an agent's liability on contracts for a named principal. The extract was in the following terms (authorities omitted): Where an agent in making a contract discloses both the existence and the name of the principal on whose behalf the agent purports to make it, the agent is not, as a general rule, liable on the contract to the other contracting party, whether there was authority to make it or not. Personal liability may, however, be imposed upon the agent by the express terms of the contract, by the ordinary course of business or by usage. Further, the agent is personally liable on the contract if it is shown that the agent is the real principal, or that the principal named by him or her is non-existent or incapable of making the contract in question. 79 The extract only serves to reinforce the point that the existence of an agency is not conclusive proof in this case that the defendant is not an employer for the purpose of s 8(2). 80 In the present proceedings, as we have explained, the material purporting to show that Rockdale Beef was the agent for the partnership and in conducting the business of an abattoir was acting in the capacity of agent for the partnership, emanated from the defendant in the course of the hearing of the defendant's motion to quash and the second motion for a permanent stay. The prosecutor had not previously seen most of this material before it came to light in the course of the hearing of the motions and in the cross examination of Inspector Wolf. 81 Critically, we do not understand the prosecutor's position to have been that it was refusing to tender in the substantive proceedings the material going to the agency question that had come to light via the defendant in the interlocutory proceedings. As Mr Skinner sought to explain, he had not previously seen much of the material prior to it being tendered in the interlocutory proceedings. He was one witness into 17 in the substantive proceedings and he had not formed a final view about much of the material produced by the defence. 82 We quoted earlier from the transcript of proceedings an exchange between her Honour and prosecuting counsel that seemed to have been taken by her Honour as an indication by the prosecution that it was not proposing to tender any evidence regarding the existence of an agency. In fairness to her Honour, it may have been open to the interpretation that counsel was, in fact, disavowing any obligation to tender material relating to the existence of an agency although the other available interpretation is that prosecuting counsel was simply indicating it was not the prosecution's responsibility to prove the defendant was an agent. In a later exchange between her Honour and Mr Skinner the prosecutor's position is made clear: HER HONOUR: You do not propose in the prosecution case to put the relevant material which would allow… that question to be determined.

[89]

83 In the light of this exchange between her Honour and prosecuting counsel - and we are unable to see any contradictory position adopted later in the proceedings by the prosecutor, we fail to see how her Honour was able to come to the conclusion that the prosecutor was refusing to tender all or some of the material that had come to light in the interlocutory proceedings concerning the defendant's status and role as an agent. It is perfectly clear that prosecuting counsel was not, at the relevant time, in a position to make a judgment about whether or not he would tender the material, although the indications from him were that he felt he had an obligation to tender at least some of the material, including the management agreement. 84 There may be some legitimate basis for criticism of the prosecution for not being in the position to deal with the material and that criticism stems from what her Honour obviously considered to be the inadequate pre-trial investigations conducted by the prosecution. We note, in passing, her Honour was also critical of the defendant, as it had to "accept its own share of responsibility for what occurred to the point of the charge being laid": [109]. 85 Whatever criticisms may be made of the prosecutor in relation to the pre-trial investigations, this is not a case of non-disclosure. The evidentiary material that the defendant asserted should be tendered by the prosecution was material in the possession of the defendant. The defendant's complaint was that the prosecution had sought impermissibly to avoid its prosecutorial obligations in respect of the case it had to make out by refusing to tender material relating to the existence of the agency and leaving it to the defendant to raise as a defence. 86 At the stage the proceedings had reached it was not open, as we have explained, for the trial judge to find the prosecutor had refused to tender relevant evidentiary material "which will provide a fair opportunity for the factual matters in issue between the parties to be determined by the Court": [152]. Accordingly, it was not open to her Honour to find there had been an abuse of process justifying the grant of a permanent stay. 87 We would add that it is apparent that her Honour decided to grant a permanent stay without identifying with any particularity the evidentiary material that she considered the prosecutor was obliged to tender in relation to the existence of the agency. That material in one bundle alone consisted of over 320 pages and 26 separate documents. In other words, there was no analysis of that material, nor an analysis of the prosecutor's material tendered on the voir dire to demonstrate that her Honour was in a position to conclude that the only available verdict was one of acquittal and, therefore, a permanent stay was appropriate in the circumstances. 88 In her decision of 27 May 2005, her Honour appears to have confined herself to a consideration of two evidentiary matters in concluding a permanent stay was warranted. The first of these related to an application by the defendant to the Department of Primary Industries and Energy for a licence and subsequent applications for renewal of the licence. The second related to the management agreement between the defendant and the partnership, which was part of the bundle of documents tendered by the defendant on its motions. 89 There was a third matter and that related to the prosecution's announced intention to call oral evidence from a number of the witnesses who had been interviewed by Inspector Wolf, the questions and answers having been set out in the form of a record of interview. At [133] of her decision of 27 May 2005 her Honour noted that the prosecution intended and the defendant would oppose, the calling of further evidence beyond the matters dealt with in the records of interview, in relation to the question of the safety of the system of work. The defendant, her Honour noted had complained that it had no notice of such evidence. 90 However, in relation to this third matter, it is tolerably clear that her Honour considered that even though it might represent a difficulty it may have been manageable: [134]. Any difficulty regarding the lack of notice to the defendant could have been overcome by appropriate directions or by holding the prosecutor and those witnesses to what was in their records of interview. That could have been achieved by permitting the prosecutor to call the witness on the basis that the prosecution was not permitted to lead evidence that went beyond the statement or the record of interview. The prosecutor's announced intention to call further evidence beyond that recorded in the records of interview could not, on any view, constitute the basis for a permanent stay.

[96]

99 Alternatively, her Honour could have admitted the licence in the substantive proceedings and invited Rockdale Beef to tender the application (as it appeared the defendant may have been prepared to do) and accepted it as an application in respect of which the licence was issued. But whatever other course her Honour may have chosen, the prosecutor's conduct regarding his failure to tender the application did not justify a permanent stay. 100 The second matter related to the management agreement between the defendant and the partnership. At [52] of her 27 May 2005 decision her Honour stated: 52 The defendant's case is that the existence of the agency arrangement between it and the partnership appears from the management agreement which they entered, which required that any contract or agreement which it entered be made for the partners and disclosed by the words 'as manager for and on behalf of Rockdale Beef Partnership'. In accordance with that agreement, the defendant's letterhead used this phrase; it was used in various agreements which it entered and it was an arrangement disclosed to the prosecutor in the investigation before the prosecution was launched. The arrangement and its consequences were, however, never investigated and now sought to be ignored at trial by the prosecutor. 101 The last sentence, perhaps attributable to the submissions of the defendant, was plainly wrong. As we earlier demonstrated the prosecutor had not determined whether he intended to tender the agreement but the indications were that he did so intend, not surprisingly we would observe, because as her Honour noted at [109], the management agreement contemplated that the defendant might engage employees. 102 Whilst it is not entirely clear from her Honour's decision, it would appear that her Honour was of the view that the prosecutor was under an obligation to put the management agreement into evidence but the prosecutor was resisting that obligation. We do not accept there was such resistance on the part of the prosecutor for the reasons we have explained but even if we were wrong about that it was always open to her Honour to invite the defendant to tender the agreement, or rule on any submission her Honour considered the prosecutor had made that the agreement was not relevant, or wait until the prosecutor had reached a definitive position about what he intended to do with the agreement. Instead, before making such an invitation, or making a ruling on relevancy, or before allowing the prosecutor to determine his position, her Honour opted to grant a permanent stay. 103 The situation then, at the time her Honour indicated an intention to grant a permanent stay, was as follows: (1) Documents had been tendered in the substantive proceedings by the prosecutor that indicated on their face that the defendant was an employer (for example, documents relating to workers compensation insurance, group tax records, statements by persons that they were employees of the defendant, a statement by Mr Troja, General Manager of the defendant to the effect the defendant employed persons, statements by the solicitors for the defendant to the effect that the defendant employed persons, decisions of various courts and tribunals involving the defendant as a litigant) and that it owned the abattoir building, plant and equipment. (2) The defendant had produced documentary material in the hearing of its motions that purported to show that the defendant was a disclosed agent for the partnership and that it conducted the business of the abattoir as agent for the partnership. The prosecutor contended that significant parts of the material were not relevant or their provenance was not apparent. (3) The prosecutor had only just commenced its case and was one witness into 17. (4) The prosecutor had indicated to the Court that it was not relevant to the prosecution's case to prove that the defendant conducted the business of an abattoir as an agent for the partnership. (5) The prosecution was not in a position at that stage of the trial to indicate whether it would be putting into evidence all or any of the material produced by the defendant in the interlocutory proceedings going to the existence of the agency but that the prosecutor would not be "seeking to hide the management agreement from the court". However, there were issues regarding the provenance of the material tendered by the defendant in the interlocutory proceedings. 104 The situation thus described provided no basis for a permanent stay to be ordered. Her Honour had accepted that the prosecution had a prima facie case; there were clearly triable issues before the Court. The existence of an agency did not, per se, prove the defendant was not liable under s 8(2) of the OHS Act. The prosecution had not determined its position regarding the defence material going to the existence of an agency; it needed the opportunity to assess whether it would tender all or some of the material. There was no obligation on the prosecutor to tender material in the possession of the defence where its provenance was uncertain or it was unreliable. Finally, there were avenues open to the trial judge to control the proceedings and avoid unfairness short of ordering a permanent stay. 105 We find there were no circumstances of such an exceptional nature as to justify a permanent stay. We propose to answer "no" in respect of Question 4.

[98]

Was it correct in law to hold in [99] that the power to issue a s 62 notice in relation to the offence charged is no longer available after the limitation period in s 107 of the Occupational Health and Safety Act 2000 has expired? 107 The question raised before her Honour in relation to s 62 was whether or not, once an Inspector has commenced criminal proceedings, his or her investigation was at an end and the powers granted by s 62 were no longer available to be exercised, so that the gathering of evidence relevant to the prosecution then before the Court, must thereafter be conducted consistently with the Court's ordinary processes. Schmidt J considered that question had to be answered in the affirmative. 108 In her decision of 27 May 2005 Schmidt J held as follows: 99 In my view… the power to issue a s62 notice (in relation to the offence charged) is no longer available, once a prosecution has been launched, or more generally, after the limitation period provided in s107 has expired. In the former case, the proceedings must be conducted in accordance with the Court's procedures, whether they are initiated by an Inspector with power to issue notices under s62, or by one of the other persons who may initiate such prosecutions, consistently with s106. 100 That this is a balance which the legislature thought fit to strike in this legislative scheme, seems consistent with the nature of the obligations imposed; the broad investigative powers provided before a prosecution is commenced; the range of persons who are empowered to bring prosecutions under the Act; the avenues available to secure further evidence while a case is being prepared for trial, given the Court's own processes and the defences available to a defendant. 109 However, Schmidt J went on to find: 104 I note that the question of the production here sought under the s62 notice was in fact earlier resolved by agreement between the parties - the defendant produced certain documents in Court and answered a call then made by the prosecutor, which enabled the hearing to proceed. Nevertheless, the defendant relied on the misuse of the s62 power, to advance its complaints about the prosecutor's alleged pre-trial abuse of process. 105 The s 62 notice was issued to Mr Terrett by the Inspector on 24 March 2005, it was said, 'in the course of his investigations'. This was relied upon to advance the argument that the proceedings were launched without proper foundation and in the hope that necessary evidence would become available after the proceedings were initiated. 106 I have already dealt with the question of whether there was a prima facie basis for the charge laid. I am also satisfied that a misunderstanding of the powers available to the Inspector to further investigate by use of the s62 powers, the matters raised by the defendant after the charge was laid, cannot amount to an abuse of process, particularly when the proper construction of this part of the Act has not previously arisen for consideration. The documents sought were produced by the defendant in answer to a call. It was not suggested that they could not have been obtained under the Court's processes. This cannot amount to either abuse warranting a stay of the proceedings or contempt of Court, as discussed in Caltex . 110 In his submissions regarding Questions 5 and 6 senior counsel for Rockdale Beef indicated that the two questions: [A]re matters in which it has no interest and in relation to which it makes no submissions. The Respondent ought not to be regarded as a contradictor of anything that the Prosecutor may wish to put to the Full Bench in relation to Questions 5 and 6. 111 In order to dispose of the proceedings, Schmidt J does not need the advice of this Full Bench in relation to s 62. The documents sought under the s 62 notice were produced; her Honour found there was no abuse; and, Rockdale Beef has no further interest in what became an academic issue in the proceedings at first instance. We find Questions 5 and 6 unnecessary to answer. D. Application to extend time to appeal and to appeal

[99]

112 The prosecutor's appeal is brought under s 5C of the Criminal Appeal Act as applied by s 196 of the Industrial Relations Act. Those provisions are, respectively, in the following terms: 5C Appeal against quashing of an indictment Where the Supreme Court or the District Court has quashed any information or indictment or any count thereof or the Supreme Court in its summary jurisdiction, in any proceedings to which the Crown was a party, has quashed any application made under section 246 (1) of the Criminal Procedure Act 1986 or any charge specified in such an application, or the Land and Environment Court in its summary jurisdiction, in any proceedings to which the Crown was a party, has quashed any application made under section 41 (1) of the Land and Environment Court Act 1979 or any charge specified in such an application, or a Court of Coal Mines Regulation in its summary jurisdiction, in any proceedings to which the Crown was a party, has quashed any application made under section 246 (1) of the Criminal Procedure Act 1986 , as applied by section 152 (3) of the Coal Mines Regulation Act 1982, or any charge specified in such an application, the Attorney-General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against the order made, and such court may thereupon determine the appeal and if the appeal is sustained may make such order for the prosecution of the trial as may be necessary. 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 Criminal Appeal Act 1912 relating to costs.

[100]

113 The application to extend time to appeal and to appeal drew the criticism from Rockdale Beef that the prosecutor was impermissibly approbating and reprobating in seeking to pursue the appeal in relation to the dismissal of the s 10 charge and Questions 1 and 2 of the Reference at the same time: VACC Insurance v BP Australia Ltd (1999) 47 NSWLR 716. It is questionable whether the principle that a plaintiff is not permitted to `approbate and reprobate' is applicable in criminal cases given it is a form of estoppel closely tied to the common law doctrine of election: Verschures Creameries v Hull and Netherlands Steamship Company Limited [1921] 2 KB 608 at 611-612. We can find no authority where it has been applied in criminal proceedings (see the observation by Court of Criminal Appeal in R v Lakalaka [2004] NSWCCA 207 at [5], which supports the view that the principle does not apply in criminal proceedings). 114 In any event, the prosecutor submitted that the need to make the application to appeal in relation to her Honour's dismissal of the s 10 charge came about because of the uncertainty as to whether in fact Schmidt J had made a final order dismissing the charge. Mr Agius noted that in her extempore judgment of 11 May 2005 her Honour stated that "the charge [under s 10(2) of the OHS Act] must be dismissed for a variety of reasons and I order accordingly". In her judgment of 20 May 2005 her Honour stated, "I ordered that the offence charged under s 10 be dismissed". However, on 5 August 2005, extempore, and in her further judgment of 12 August 2005, her Honour stated that she had not formally ordered the dismissal of the charge. 115 The reasons her Honour gave for stating no formal orders had been made were contained in her judgment of 3 June 2005: 15 It follows from these authorities and the concessions made by the defendant, that, in accordance with s5AE of the Criminal Appeal Act , questions of law 'arising at or in reference to the proceedings' may be stated at this point, the proceedings not having been concluded by formal order. 116 It is not apparent what the concessions were by Rockdale Beef; we can see none. We have determined, in any event, that her Honour made a formal order dismissing the s 10 charge. Leave to extend time to appeal 117 We note that in his submissions relating to the basis of the appeal, the prosecutor relied upon the Full Bench's decision in Ove Arup at [24]-[26] and submitted it was arguable that her Honour's extempore indication of disposal of the s 10(2) issue on 11 May 2005, repeated in her judgment of 20 May 2005, had been effective. We consider that it is more than "arguable" given the Full Bench decision. Moreover, although that decision was given on 28 February 2005 it would not appear it was drawn to her Honour's attention. Nevertheless, it was a decision published prior her Honour's decision on 11 May 2005 and formed a proper basis to appeal the decision and order of her Honour relating to the s 10(2) charge within 21 days of that decision or order if it be the case that s 189 of the Industrial Relations Act applies.

[101]

118 The prosecutor contended that it was inappropriate for his appeal to be brought before her Honour had referred the six questions in her Reference. There was no elaboration of that contention but we note the extensive disagreement and the delay caused by it in relation to the settling of the Reference questions and we accept the form and content of the questions may have had some bearing on any decision to appeal. 119 Nevertheless, the foregoing considerations would tend to count against any decision to grant an extension of time beyond the period allowed in s 189 of the Industrial Relations Act. But that begs the question of whether s 189 applies. 120 As we have earlier stated, this is an appeal under s 5C of the Criminal Appeal Act as applied by s 196 of the Industrial Relations Act. Section 196 and s 189 are in Pt 7 of Ch 4 of the Act. 121 In Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 at 438 it was observed that an appeal in respect of criminal proceedings before a single judicial member of the Commission pursuant to s 196 may be brought without seeking leave of the Full Bench pursuant to s 188. This had also been accepted in Warman International Ltd v WorkCover Authority of New South Wales (1998) 80 IR 326 at 331 and implicitly by the Full Bench in WorkCover Authority of New South Wales (Inspector Bultitude) v Grice Constructions Pty Ltd (2002) 115 IR 59 at [59]-[65]. 122 Bultitude v Grice involved, inter alia, the question of whether leave under s 188 of the Industrial Relations Act was required in respect of appeals under s 197. The Full Bench stated: A significant consideration relevant to the Full Bench's decision in Drake Personnel was the absence of specific terms excluding the operation of the general provisions of Pt 7 of Ch 4 in appeals under s 197. This factor was considered of particular importance, given that s 196(1) explicitly provides that in an appeal pursuant to s 196 "the other provisions of [Part 7] do not apply." 123 Given the conclusions in those cases that an appeal under s 196 did not require leave to appeal under s 188, because, amongst other reasons, s 196(1) provided that in an appeal pursuant to s 196 the other provisions of Pt 7 of Ch 4 did not apply, by parity of reasoning we are able to conclude that s 189 does not apply to such appeals. Moreover, there are no intrinsic reasons, or reasons involving statutory construction, why the provisions of s 189 would apply to an appeal under s 196 in circumstances where s 196(2) provides that it is the Criminal Appeal Act that is to apply to appeals in respect of criminal proceedings taken before a single member of the Court. 124 As to the Criminal Appeal Act, we see nothing in that statute that requires an application to extend time to appeal in circumstances of an appeal under s 5C. We note that under s 5F(2) the Crown has a right of appeal but under s 5F(3)(a) any other party may seek leave. Section 5C would also appear to provide a right of appeal to the Crown.

[102]

125 Rockdale Beef submitted that the practical effect of her Honour's order and decision of 11 May and 20 May 2005 respectively was to acquit it on the s 10(2) charge. Reliance was placed on s 197A of the Industrial Relations Act to contend that the appeal was out of time. Section 197A deals with appeals against acquittals in proceedings for offences against the OHS Act. Section 197A(5) provides: An appeal may be made within 21 days after the date of the decision appealed against or within such further time (not exceeding 3 months after that date) as the Full Bench or the Commission constituted by a Presidential Member allows. Further time may be allowed, either before or after the end of that 21-day period. 126 We do not consider the dismissal by her Honour of the s 10(2) charge amounted to an acquittal. There was no hearing on the merits and no finding of not guilty. The charge was considered by her Honour to be, in effect, void; the defendant was never in the relevant sense "in jeopardy" in relation to the s 10(2) charge. There would be no basis, for instance, for a plea by the defendant in the nature of autrefoit acquit: Island Maritime Ltd v Filipowski; Kulkarni v Filipowski (2006) 80 ALJR 1168. 127 It is perhaps arguable, however, that any appeal should have been made within a reasonable time and given that the prosecutor left it until some three and a half months after Schmidt J made her decision and order to dismiss the s 10 charge, the application to appeal was not made within a reasonable time. Rockdale Beef submitted in the alternative that the Full Bench in its discretion should apply the provisions of s 197A(5). We consider, however, it would not be in the interests of justice to refuse to hear the appeal because, as the prosecutor submitted, it would be wrong to let a matter of procedure stand in the way of the correction of what we find later in this judgment to be a serious error of law. Whether charge quashed at first instance 128 Before addressing the merits of the appeal there is one further matter of a jurisdictional nature and that is whether it may be said that Schmidt J "quashed" the s 10(2) charge. For s 5C to be enlivened in the circumstances of these proceedings it is necessary that the Court has "quashed any application made under section 246 (1) of the Criminal Procedure Act 1986 or any charge specified in such an application". We are satisfied that the effect of her Honour's order dismissing the s 10(2) charge was to quash the charge: see Ove Arup Pty Ltd & Ors v Industrial Court of NSW (2006) 149 IR 193 and the reliance of Basten JA (with whom Spigelman CJ and Mason P agreed) on John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508. See also Morrison v Joy Manufacturing Co Pty Ltd at [66]-[67]. 129 We note that the Court of Appeal's decision in Ove Arup was given on 27 February 2006. The parties filed written submissions regarding the implications of that decision for these proceedings and a further brief hearing took place before the Full Bench on 6 April 2006. Validity of charging in the alternative 130 The issues argued on appeal were the same as those issues raised in Questions 1 and 2 of the Reference. The issue raised in Question 1 was whether it was valid for the prosecution to charge an allegation of an offence pursuant to s 10(2) of the OHS Act in the alternative to a charge pursuant to s 8. That issue was effectively determined by a Full Bench of the Court in WorkCover Authority (NSW) (Inspector Singh) v ABB Australia Pty Ltd (2006) 151 IR 90 in March 2006. We respectfully agree with the decision of the Full Bench in that case. In those proceedings it was alleged in the application for an order made pursuant to s 246 of the Criminal Procedure Act as applied to this jurisdiction by s 168 of the Industrial Relations Act that the defendant had contravened s 8(2) of the OHS Act or in the alternative, had contravened s 10(1) of the OHS Act. 131 In a Reference in those proceedings, the question was asked: Insofar as the Application for Order filed in these proceedings alleges offences against provisions of the Occupational Health and Safety Act 2000 in the alternative against the Defendant, is the Order to Appear consequent upon the Application for Order defective as a matter of law? 132 At [25] the Full Bench stated: In finding that the Order is valid in its present form, we have considered the following three questions: first, does s 31 of the Occupational Health and Safety Act 2000 preclude charges being laid in the alternative; secondly, is the laying of alternative charges in these proceedings permitted by the Criminal Procedure Act 1996; and thirdly, is there any common law basis for construing the statutory scheme in a manner that restricts the ability of a prosecutor to lay charges in the alternative? 133 In response to these three questions posed by the Full Bench it was held: (1) There is nothing in the OHS Act, in particular in ss 30 or 31, which precludes the charging of offences in the alternative (see [26]). (2) The Criminal Procedure Act permits the charging of alternative offences in an order pursuant to s 246 of that Act (see [34]). (3) The common law plainly permits alternative charges being laid in criminal matters (see [39]). Whether provisions of ss 10(3) and (4) are essential legal elements of charge under s 10(2) 134 The second question in the Reference by Schmidt J, it will be recalled, was in the following terms: For a charge alleging an offence against s 10 of the Occupational Health and Safety Act 2000 to be valid must the Application for Order plead any or all of those matters which are referred to in subss 10(3) and s 10(4) of the Act? The same issue was raised on the appeal. 135 Section 10 of the OHS Act provides: 10 Duties of controllers of work premises, plant or substances

[115]

Section 417A, being in Part 11 of the Crimes Act applies to offences committed under the OHS Act: see s 3 and Second Schedule of the Crimes Act . 141 Alternatively, the prosecution submitted the provisions of ss 10(3) and (4) were essential factual particulars in respect of which a failure to include in a charge did not render the charge incurable: Taylor v Environment Protection Authority (2000) 50 NSWLR 48 at [25] and [26] per Sperling J. 142 Thus, the question here is whether the charge laid in the alternative under s 10(2) was void, or fatally defective, because it did not allege all of the legal elements of the offence provided in ss 10(3) and (4). 143 The approach to be taken in determining the nature of ss 10(3) and (4), as Schmidt J correctly decided, is one of statutory construction: Dowling v Bowie (1952) 86 CLR 136 at 147; Vines v Djordjevitch (1955) 91 CLR 512 at 519-20; Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 at 257. Those cases involved the interpretation of statutory provisions: what constituted the essential legal elements of the relevant offence and whether the accused person carried the onus of proof in respect of what was contended to be an "exception, exemption, excuse, qualification or exculpation" (see, for example, Chugg at 257 per Dawson, Toohey and Gaudron JJ). 144 Section 33 of the Interpretation Act 1987 provides that an interpretation of a provision of an Act or Statutory Rule which promotes the purpose or objects underlying the Act or Statutory Rules should be preferred to other applications. The Long Title expresses the purposes of the OHS Act to be: An Act to secure the health, safety and welfare of persons at work; to repeal the Occupational Health and Safety Act 1983; and for other purposes. 145 Section 3 of the OHS Act provides: 3 Objects The objects of this Act are as follows: (a) to secure and promote the health, safety and welfare of people at work, (b) to protect people at a place of work against risks to health or safety arising out of the activities of persons at work, (c) to promote a safe and healthy work environment for people at work that protects them from injury and illness and that is adapted to their physiological and psychological needs, (d) to provide for consultation and co-operation between employers and employees in achieving the objects of this Act, (e) to ensure that risks to health and safety at a place of work are identified, assessed and eliminated or controlled, (f) to develop and promote community awareness of occupational health and safety issues, (g) to provide a legislative framework that allows for progressively higher standards of occupational health and safety to take account of changes in technology and work practices, (h) to deal with the impact of particular classes or types of dangerous goods and plant at, and beyond, places of work. 146 In Rice v Henley (1914) 19 CLR 19 Isaac J commented at 22: In interpreting an Act which is directed to guarding against accidents and to the preservation of human life I think one should endeavour to carry out the objects of the legislature as far as the language of the Act will reasonably permit. 147 Division 1 of Part 2 of the OHS Act prescribes the general duties of employers (s 8), self-employed persons (s 9), controllers of premises, plant and substances (s 10) and designers, manufacturers and suppliers (s 11). The liability of those upon whom the duty is cast under Division 1 has been regarded as absolute subject only to a defence that is available under s 28. 148 In discerning the correct interpretation of s 10 what must be kept steadily in mind is the primary purpose of the statute, namely, securing and promoting the health, safety and welfare of people at work. Any interpretation must promote that purpose and not impede or frustrate it. However, we would also add that as the offences with which we are here concerned are absolute, and are serious criminal offences, any real ambiguity may need to be resolved in favour of the defendant: Reg v Hunt [1987] AC 352 at 378 per Lord Griffiths; Capral Aluminium Limited v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 49 NSWLR 610; 99 IR 29 at [39]-[47]. 149 Before going to the provisions of s 10 of the OHS Act, in considering whether the charge failed to apprise the defendant of the 'legal nature of the offence with which the defendant is charged and also the particular act, matter or thing alleged as the foundation of the charge', we note that r 217B of the Industrial Relations Commission Rules 1996 provides: 217B Prosecutions (1) Proceedings before the Commission in Court Session for an offence (other than contempt) must, unless otherwise provided, be commenced by an application for an order under section 4 (1) of Supreme Court (Summary Jurisdiction) Act 1967 (as applied to the Commission by section 168 of the Industrial Relations Act 1996). (2) The application must state: (a) the name and address of the person by whom the proceedings are brought ( the prosecutor ), and (b) the capacity in which the prosecutor is taking the proceedings, and (c) the name and address of the person against whom the proceedings are brought ( the defendant ), and (d) the Act and the section under which the defendant is alleged to have committed an offence, and (e) the nature of the offence that is alleged. (3) The Commission may require the prosecutor to file, in support of the application for an order filed under subrule (1): (a) an affidavit verifying the allegations made in the application, and

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(b) a minute of the order claimed. 150 The requirement in the Court's criminal jurisdiction in occupational health and safety matters in relation to r 217B(2)(e) has been for the prosecutor to state, as a minimum, the essential legal elements of the offence, and the essential factual particulars. Accordingly, r 217 does not represent any departure from the common law and s 11 of the Criminal Procedure Act; any application for order must contain the essential legal elements of the charge. 151 Like so many of the cases that have involved similar questions to that posed here, the problem is not amenable to an obvious or easy solution. As Mahoney JA observed in Boral Gas (NSW) Pty Ltd v Magill and Another (1993) 32 NSWLR 501 at 515; 53 IR 21 at 33, there is no exhaustive and definitive statement of what is necessary and sufficient to be contained in an information: John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508; De Romanis v Sibraa and Another [1977] 2 NSWLR 264. Whether a statutory provision is an essential legal element or an "exception, exemption, proviso, excuse or qualification" appears to be an even more vexed question. 152 As to the latter issue, there are a number of authorities but they are not easily reconcilable. It would seem, though, that as Lord Griffiths observed in Reg v Hunt [1987] AC 352 at 374 that when the cases are analysed, those in which the courts have held that the burden lies on the defendant to prove the statutory exception are cases in which the burden can easily be discharged: see, for example, Shillinglaw v Roberts (1891) 17 VLR 136; Ex parte Ferguson; Re Alexander [1945] 45 SR 64; Ex parte R J Wimborne Pty Ltd; Re Beale [1957] 58 SR 353; R v Edwards; [1975] QB 27; Francis v Flood and Another [1978] 1 NSWLR 113; Phillips v Cassar [1979] NSWLR 430; Lynch v Attwood and Another [1983] 3 NSWLR 1. 153 In Chugg at 263, Dawson, Toohey and Gaudron JJ found that the burden on the defendant to prove the issue of practicability was not easily discharged: It is impossible to read into s.21 of the Act an intention to place the onus of proof of the issue of practicability on a defendant when that onus would entail the additional burden of anticipating and negating the practicability of every possible means of avoiding or mitigating a risk or accident that might be raised in the course of cross-examination. 154 In that case the High Court took the view that the question of practicability, as it appeared in s 21 of the Victorian Occupational Health and Safety Act 1985, fell on the prosecution to prove, to the requisite standard, as part of the offence alleged. Section 21 relevantly provided: (1) An employer shall provide and maintain so far as is practicable for employees a working environment that is safe and without risks to health.

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159 In Vines it was stated at 519: When an enactment is stating the grounds of some liability that it is imposing or the conditions giving rise to some right that it is creating, it is possible that in defining the elements forming the title to the right or the basis of the liability the provision may rely upon qualifications exceptions or provisos and it may employ negative as well as positive expressions. Yet it may be sufficiently clear that the whole amounts to a statement of the complete factual situation which must be found to exist before anybody obtains a right or incurs a liability under the provision. In other words it may embody the principle which the legislature seeks to apply generally. On the other hand it may be the purpose of the enactment to lay down some principle of liability which it means to apply generally and then to provide for some special grounds of excuse, justification or exculpation depending upon new or additional facts. In the same way where conditions of general application giving rise to a right are laid down, additional facts of a special nature may be made a ground for defeating or excluding the right. For such a purpose the use of a proviso is natural. But in whatever form the enactment is cast, if it expresses an exculpation, justification, excuse, ground of defeasance or exclusion which assumes the existence of the general or primary grounds from which the liability or right arises but denies the right or liability in a particular case by reason of additional or special facts, then it is evident that such an enactment supplies considerations of substance for placing the burden of proof on the party seeking to rely upon the additional or special matter (our emphasis). 160 In our opinion, s 10(1) and s 10(2), like the opening sentence of s 8(1) and the provisions of s 8(2) and s 9 of the OHS Act, impose a general duty, or as it was described in Chugg a "general rule" and in Vines a "principle of liability which it means to apply generally". In so far as s 10(2) is concerned, that general duty is upon controllers of plant or substances to ensure that in respect of people at work who use the plant or substance, the plant or substance is safe and without risks to health when properly used. That is to say, in respect of s 10(2), what must be proven to the requisite criminal standard in order to establish the offence is that: (1) A person has control of any plant or substance; (2) The plant or substance is used by persons at work; (3) There has been a failure by the person in control of the plant or substance to ensure that the plant or substance was safe and without risks to health; and, (4) The failure in (3) occurs in circumstances where the plant or substance is not properly used. 161 Turning to the provisions of s 10(3) and (4), we consider each of the provisions needs to be separately considered to determine whether or not it constitutes an essential legal element or a statutory exception that comes within s 417A of the Crimes Act.

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162 Section 10(3)(a) is an exception to the general rule in ss 10(1) and (2). It provides that duties of a person under the section do not apply to premises, plant or substances used only by employees of the person. In other words, s 10(2) imposes a general duty on the controller in respect of plant but pursuant to s 10(3)(a), that duty does not apply to a controller in respect of plant used only by employees of the controller. There is nothing general about the exception; it is perfectly specific. Moreover, whether only employees use plant would be a matter comfortably within the knowledge of the defendant/controller and involves a burden that could easily be discharged by the defendant/controller. 163 We take the same view about s 10(3)(b), which provides for an exception, inter alia, where the plant is used in a private dwelling. Section 10(3)(c) is of a different character to ss 10(3)(a) and (b). We cannot envisage any circumstances where s 10(3)(c) could be regarded as an exception, exemption or excuse that a defendant might wish to, or be able to, rely upon. We consider the onus in respect of s 10(3)(c) lies upon the prosecution but not to prove an essential legal element. Where it became necessary for the prosecution to prove there was a failure by a defendant to ensure safety at an access to or exit from a place of work it would be necessary to plead that allegation as an essential factual ingredient, referring as it does to the place of the offence. Failure to do so, however, would not render the charge fatally defective. This proposition finds support in the judgment of Sperling J in Taylor v Environment Protection Authority (2000) 50 NSWLR 48 where his Honour stated at [25]-[26]: Section 43 of the Land and Environment Court Act 1979 provides, so far as is material, that no objection shall be taken or allowed to any application (that is, the summons) referred to in, or to any order made under s 41, by reason of any alleged defect in it in substance or in form. This is what is known as a Lord Jervis provision. Similar provisions are to be found in the Justices Act 1902 , s 30 and s 65. A distinction is drawn between informations which fail to specify the legal elements of the offence and those where essential factual particulars have not been given. Where an information fails to specify the essential legal elements of the offence, the information is not saved by a Lord Jervis provision: Ex parte Price (1899) 20 LR (NSW) 343; Ex parte Bartlett (1896) 17 LR (NSW) 108; Ex parte Thomas; Re Otzen (1947) 47 SR (NSW) 261; 64 WN (NSW) 21; Ex parte Burnett; Re Wicks [1968] 2 NSWR 119; Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501 at 517, per Mahoney JA. Where, however, the legal elements of the offence are specified and the defect lies only in a failure to specify essential factual particulars - such as the time, place, or the manner of the offence - a Lord Jervis provision will operate: John L Pty Ltd (at 529 and 530), per Brennan J; Stanton v Abernathy (at 667), per Gleeson CJ; R v Cassell ; R v Duff (1924) 41 WN (NSW) 23.

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170 Schmidt J considered that a comparison between s 10 and its predecessor, s 17 of the Occupational Health and Safety Act 1983, also lent support to her conclusions. Section 17 provided: 17 Persons in control of workplaces, plants and substances used by non-employees to ensure health and safety (1) Each person who has, to any extent, control of: (a) non-domestic premises which have been made available to persons (not being the person's employees) as a place of work, or the means of access thereto or egress therefrom, or (b) any plant or substance in any non-domestic premises which has been provided for the use or operation of persons at work (not being the person's employees), shall ensure that the premises, the means of access thereto or egress therefrom or the plant or substance, as the case may be, are or is safe and without risks to health. Maximum penalty: 5,000 penalty units in the case of a corporation or 500 penalty units in any other case. (2) Where a person has, by virtue of any contract or lease, an obligation of any extent in relation to: (a) the maintenance or repair of any premises referred to in subsection (1) (a) or any means of access thereto or egress therefrom, or (b) the safety of, or the absence of risks to health arising from, any plant or substance referred to in subsection (1) (b), that person shall be treated, for the purposes of subsection (1), as being a person who has control of the thing to which the person's obligation extends. (3) A reference in this section to a person having control of any thing is a reference to a person having control of the thing in connection with the carrying on by the person of a trade, business or other undertaking (whether for profit or not). 171 Her Honour stated at [49] of her decision: 49 I am unable to conclude from the way in which the section has been re-arranged in the OHS Act, that there was a legislative intent to remove from the prosecution the obligation to prove as legal elements of the offences provided, the matters contained in the former s17, which now appear in ss10(3) and (4). 172 We do not consider the reference to s 17 assists in the resolution of this issue. The construction of s 17 does not lead to any different conclusion, in our opinion, as to what constitutes the essential legal elements of the offence. Any exception, exemption, proviso, excuse or qualification to the offence, whether or not it is in the same provision with a description of an offence in an Act or statutory rule or document creating the offence, need not be specified or negatived in an indictment or other process commencing proceedings: s 417A(1) of the Crimes Act. In any event, the primary consideration is the terms of s 10 of the OHS Act and how that provision is to be interpreted. 173 We find that Schmidt J erred in holding that the provisions of ss 10(3) and (4) constitute essential legal elements of an offence under s 10(2), which must be proven by the prosecutor and erred in holding that for this reason the charge under s 10(2) should be dismissed. Accordingly, we uphold the appeal. Notice of contention

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174 The defendant filed a notice of contention in relation to the appeal. It was contended that: [T]he decision of the court below, being the Judgment of her Honour Justice Schmidt given on 20 May 2005 in proceedings no. IRC 6128 of 2003, should be affirmed on grounds other than those relied on by the court below. The first two grounds were that: 1. The Judgment of Schmidt J made on 20 May 2005 in proceedings no. IRC 6128 of 2003 expressly dismissed the offence charged under section 10 of the Occupational Health & Safety Act 2000 ( "OHS Act" ). 2. The appeal in the present proceedings under section 5C of the Criminal Appeal Act 1912 only operates, on its terms, where the Court has "quashed" a relevant charge. Accordingly section 5C has no operation in relation to the dismissal of the section 10 charge by Schmidt J. 175 We have disposed of these two grounds in finding that the effect of her Honour's dismissal of the charge was to quash it. 176 The third to sixth grounds were that: 3. Essential elements of the charge against the Respondent under section 10(2) of the OHS Act are that: (a) the Respondent must have "control of any plant….used by people at work"; and (b) the relevant plant must not be "safe and without risks to health when properly used". 4. Even if it be argued by the Prosecutor that the effect of the Schmidt J Judgment was to quash the relevant charge, the section 10 charge would and should be dismissed on the basis of the available evidence that: (a) Inspector Ross Wolf, as Prosecutor, deposed to the fact in paragraph 11 of his Affidavit in Support of the Application for Order sworn on 23 October 2003 that: "The operation of the Boning Room, where the accident occurred, is controlled by a company identified as NAIQ Pty Ltd (ACN: 093 955 812) ("NAIQ"). " (See Exhibit "PAT1" 188 at 190) (b) Inspector Ross Wolf gave evidence on cross examination on 12 May 2005 in the following terms: "Q. No, what I'm putting to you is you have agreed with me that the system of work was, if the operator of the Danaflex bagging machine was to leave the Danaflex bagging machine, should press the stop button, you have agreed with that? A. That's what he was told yes. Q. You agree that he knew that that's what he was to do? A. That's what he told Neil Watson, yes. Q. You have agreed if he did that, if he followed that system of work there was no risk to his health in relation to the operation of the Danaflex bagging machine and the Cryovac machine and associated bag chain conveyor? A. That's correct, I did agree to that. " 5. The case as made on the evidence of Inspector Ross Wolf as referred to above demonstrates that the section 10(2) charge is incapable of being made out by the Prosecutor on the criminal standard, of guilt beyond reasonable doubt, or on any other standard. 6. The charge cannot be made out on any basis without rejecting the evidence of Inspector Ross Wolf. If that evidence is rejected then there is no evidence set out in the Prosecution Brief documents served on the Respondent or otherwise particularised by the Prosecutor which could support the charge on any basis. 177 Putting aside the inconsistency between the defendant's contention that ss 10(3) and (4) constituted legal elements of an offence under s 10(2) and its contention in ground 3 above, the prosecutor had apparently 16 more witnesses to examine and contends the quote from the cross-examination of Inspector Wolf is taken out of context. This Full Bench is in no position to judge whether or not it could properly be said the evidence of Inspector Wolf alone meant that the s 10(2) charge could not be made out.

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