Inspector Yeung v Wideform Constructions Pty Ltd

Industrial Relations Commission (NSW)|1988-09-19|Before: Boland J, McLelland CJ, Mr J

Industrial Relations Commission of New South Wales in Court Session

CITATION : Inspector Yeung v Wideform Constructions Pty Ltd [2003] NSWIRComm 380 PROSECUTOR Inspector Thomas Yeung PARTIES : DEFENDANT Wideform Constructions Pty Ltd FILE NUMBER: IRC 2885 of 2002 CORAM: Boland J Occupational Health and Safety - Prosecution under section 18(1)(b) of Occupational Health and Safety Act 1983 - Construction industry - Plea of not guilty - Defendant appealed against ruling granted leave for prosecutor to amend application for order - Application by defendant for court to review its ruling before proceeding with appeal - Meaning of "supply" in s 18(1)(b) - Essential legal elements of s 18(1)(b) - Essential factual ingredients - Duplicity - Limitation period under s 49 of Occupational Health and Safety Act 1983 - Application to revoke amendments refused CATCHWORDS : Practice and Procedure - Prosecution under section 18(1)(b) of Occupational Health and Safety Act 1983 - Construction industry - Plea of not guilty - Defendant appealed against ruling granted leave for prosecutor to amend application for order - Application by defendant for court to review its ruling before proceeding with appeal - Meaning of "supply" in s 18(1)(b) - Essential legal elements of s 18(1)(b) - Essential factual ingredients - Duplicity - Limitation period under s 49 of Occupational Health and Safety Act 1983 - Application to revoke amendments refused Criminal Procedure Act 1986 LEGISLATION CITED : Industrial Relations Act 1996 Supreme Court (Summary Jurisdiction) Act 1967 Australian Provincial Assurance Co Ltd v Coroneo (1938) SR (NSW) 700 Boral Gas (NSW) Pty Ltd v Magill (1995) 37 NSWLR 150, 58 IR 363 Brimaud v Honeysett Instant Print Pty Ltd (unreported, 19 September 1988, McLelland CJ in Eq, Supreme Court of NSW) Chaudhary v Ducret (1986) 11 FCR 163 Concrete Constructions Group Ltd v WorkCover Authority (Inspector Dubois) (2000) 99 IR 16 DPP v Merriman [1973] AC 584 Environment Protection Authority v Sydney Water Corporation Limited (1997) 98 A Crim R 481 Inspector John Forster v Osprey Manufacturing Pty Ltd [2003] NSWIRComm 161 Khaled Hamzy (1994) 74 A Crim R 341 Manpac Industries Pty Ltd v WorkCover Authority (Inspector Glass) (2001) 106 IR 435 McConnell Dowell Constructors (Aust) Pty Limited v Environment Protection Authority [2000] NSWCA 367 (13 September 2000) CASES CITED : National Parks and Wildlife Service v Charles Reginald Pierson [2002] NSWCA 273 Nominal Defendant v Manning (2000) 50 NSWLR 139 Planet Build (NSW) Pty Limited v Lassgol Pty Limited [2001] NSWCA 40 R v Cooling [1990] 1 Qd R 376, (1989) 44 A Crim R 171 R v Stringer [2000] NSWCCA 293 Ridge Consolidated Pty Ltd v WorkCover Authority (2000) 100 IR 156 Stephen Finlay McMartin & Ors v Newcastle Wallsend Coal Company Pty Limited [2003] NSWIRComm 219 Taylor v Environment Protection Authority (2000) 50 NSWLR 48 WorkCover Authority (NSW) (Inspector Penfold) v Fernz Construction Materials Ltd (1999) 91 IR 119 WorkCover Authority of NSW (Inspector Maltby) v State Rail Authority of New South Wales & Ors [2001] NSWIRComm 120 WorkCover Authority of NSW (Inspector Keenan) v Lucon (Australia) Pty Limited [2002] NSWIRComm 68 HEARING DATES: 09/24/2003 DATE OF JUDGMENT: 11/13/2003

PROSECUTOR Mr D O'Neil of counsel Solicitor: Mr J O'Connell WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: DEFENDANT Mr L Robberds QC with Mr A Henskens of counsel Solicitor: Mr A Riordan Colin Biggers & Paisley

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: BOLAND J Thursday 13 November 2003

Matter No IRC 2885 of 2002 INSPECTOR THOMAS YEUNG v WIDEFORM CONSTRUCTIONS PTY LTD

Prosecution under s 18(1)(b) of the Occupational Health and Safety Act 1983 INTERLOCUTORY JUDGMENT [2003] NSWIRComm 380

1 On 21 May 2002 Inspector Thomas Yeung of the WorkCover Authority of New South Wales ("the prosecutor") filed an application for order that Wideform Constructions Pty Limited ("the defendant") appear before the Court to answer a charge under s 18(1)(b) of the Occupational Health and Safety Act 1983.

2 Section 18(1)(b) of the Act provides: 18. Designers, manufacturers and suppliers to ensure health and safety as regards plant and substances for use at work (1) A person who designs, manufactures or supplies any plant or substance for use by persons at work must: (a) … (b) provide, or arrange for the provision of, adequate information about the plant or substance to the persons to whom it is supplied to ensure its safe use.

3 The charge against the defendant alleged that the defendant: [O]n 21 March 2001, being a person who supplied plant, namely a penetration at riser 4 level 6 at the Royal Prince Alfred Hospital Redevelopment Clinical Services Building, Lambiedew Drive, Camperdown in the State of New South Wales

FAILED TO provide or arrange the provision of, adequate information about the plant to persons to whom it is supplied to ensure its safe use contrary to section 18(1)(b) of the Occupational Health and Safety Act 1983.

The particulars of the charge are that the defendant: a) Failed to make available any or any adequate information as to the risks to health and safety in relation to the working in, on or around the penetration areas to riser 4 of the said site.

b) Failed to make available any or any adequate information to warn persons who may work in, on or around the penetration areas to riser 4 of the said site that the penetration was at risk of collapsing.

c) Failed to make available any or any adequate information of the potential risk to health and safety created by working in, on or around the penetration areas to riser 4 of the said site.

d) Failed to provide or make adequate safety hazard signage in, on or around the penetration areas to riser 4 of the said site.

e) Failed to ensure that the penetration area to riser 4 level 6 of the said site had been inspected and certified safe for use by an engineer on completion.

As a result of the said failures, Brent Leadbitter suffered serious injury.

4 The defendant pleaded not guilty in November 2002. When the matter came on for hearing on 4 August 2003 the prosecutor sought leave to amend the application for order in two respects, firstly, by deleting the words "on 21 March 2001" and substituting the words "in or about September 2000" and secondly, by deleting the words "namely a penetration at riser 4 level 6" and substituting the words "namely penetrations at riser 4 including riser 4 level 6". The defendant opposed the amendments.

5 After hearing the parties the Court ruled in favour of the prosecutor and gave leave to amend in the terms sought. The defendant appealed against the ruling. The grounds of appeal were that: (a) the Court erred in holding that the amendments did not go to the essential elements of the charge;

(b) the Court erred in holding that the amendments did not change the quality or effect of the substance of the existing charge;

(c) the Court erred because it did not taken into account or did not properly take into account the fact that the amendments add additional offences to the Application for Order;

(d) the Court erred in holding that the amendments did not enable the Respondent to overcome the limitation period in s 49 of the Occupational Health and Safety Act 1983;

(e) the Court erred in being satisfied that the interests of justice would be served by making the amendments pursuant to s 170 of the Industrial Relations Act 1996;

(f) the Court was in error in allowing the amendments to the Application for Order.

6 Having filed the appeal the defendant made application for the Court to re-consider it's ruling to amend the originating process on the ground that the Court may have misunderstood the facts. The Court agreed to hear the parties on this issue. Submissions of the parties

7 Mr L Robberds QC with Mr A Henskens of counsel appeared for the defendant. Over the objection of counsel for the prosecutor Mr Robberds was given leave to tender a statement of facts. The statement explained the concept of risers and how they were constructed. Essentially, a riser is a shaft running up through the various levels of a building designed to enable the installation and distribution of air conditioning, plumbing and other services. In other words, each time the concrete floor on each level is laid, provision is made for a hole in the floor that is the penetration for the riser. The hole is covered as explained below until such time as the cover is broken open to install ductwork etc. The covered hole is referred to as a "penetration". It was noted in the statement that the subject penetrations "were installed weeks apart from each other".

8 The statement of facts described the penetrations as follows: 5. The penetrations for the Project were made out of steel mesh, covered with plastic and a layer of concrete of about 20 mm. … 8. Penetrations to riser 4 at Block C were constructed at the time of the concrete pour for each level by the: (a) forming up the deck for each level; (b) marking out the penetration/riser location on each level; (c) forming an edge board around the perimeter of the riser/penetration and nailing the steel mesh on top of the edge board. The mesh was formed up at approximately 20 mm below the level of the concrete slab; (d) pouring the concrete over the deck and over the penetration.

9 Queens Counsel for the defendant submitted that in granting leave to amend the Court had not appreciated the implications of the amendment in that what the prosecutor was seeking to do was to prosecute not only in relation to riser 4 on level 6 of the building under construction but also in relation to riser 4 on eight other levels of the building in circumstances where, by virtue of the operation of s 49 of the Act, the prosecutor was out of time. Further, that because the penetrations were constructed at different times it must follow that they were supplied at different times. Thus, the amendment means the defendant is being prosecuted not for one offence in relation to riser 4 on level 6 but rather nine offences.

10 Mr Robberds referred to a number of cases, the import of which was that interlocutory orders create no res judicata or estoppel and the court retains jurisdiction to set aside, vary or discharge an interlocutory order up to the time of the final disposition of proceedings. The overriding principle governing the approach of the court to interlocutory applications is the court should do whatever the interests of justice require in the particular circumstances of the case: Brimaud v Honeysett Instant Print Pty Ltd (unreported, 19 September 1988, McLelland CJ in Eq, Supreme Court of NSW); National Parks and Wildlife Service v Charles Reginald Pierson (2002) 55 NWLR 315; Planet Build (NSW) Pty Limited v Lassgol Pty Limited [2001] NSWCA 40; Nominal Defendant v Manning (2000) 50 NSWLR 139.

11 Mr Robberds submitted that the interests of justice would be served by revoking the amendment. In the alternative it was submitted that the charge was duplicitous and the prosecutor should be put to an election as to which of the offences he chooses to pursue: Boral Gas (NSW) Pty Ltd v Magill (1995) 37 NSWLR 150; 58 IR 363.

12 Mr D O'Neil of counsel appeared for the prosecutor. Mr O'Neil submitted that the prosecutor had not sought to amend on the basis that there were different dates of supply thereby constituting a number of offences when only one was alleged in the original application for order. Rather, it was submitted, the prosecutor had sought to amend the application so that the date of supply was altered from 21 March 2001 to September 2000 (when the defendant left the site) and that the supply consisted of not one penetration but all of the penetrations in riser 4. In other words, it was submitted the amendment was merely to factual particulars and not the essential elements of the offence under s 18(1)(b) of the Act. Such an amendment was permissible under s 170 of the Industrial Relations Act or s 6 of the Supreme Court (Summary Jurisdiction) Act 1967 (or, alternatively, s 16(2) of the Criminal Procedure Act 1986): See Stephen Finlay McMartin v Newcastle Wallsend Coal Company Pty Limited; Oakbridge Pty Limited; Richard Porteous; Phillip Pritchard; Michael Alston; Mark Robinson; Jonathan Romcke; Michael Coffey; Christopher Nicholls and Terence Shacklady [2003] NSWIRComm 219. In contending that it was permissible to include reference to more than one penetration in the one charge, reliance was placed on Environment Protection Authority v Sydney Water Corporation Limited (1997) 98 A Crim R 481; DPP v Merriman [1973] AC 584; Khaled Hamzy (1994) 74 A Crim R 341. Mr O'Neil further submitted that there was no duplicity: s 49A of the Act.

13 An issue regarding the interpretation of s 18(1)(b) emerged during the course of the debate between counsel, particularly regarding the meaning of "supply". Counsel were invited to make further written submissions and these were provided by the prosecutor on 20 October 2003 and by the defendant on 23 October 2003.

14 The prosecutor referred to the decision of Wright J President in Inspector John Forster v Osprey Manufacturing Pty Ltd [2003] NSWIRComm 161 where his Honour said at par [27]: Section 18(1)(b) imposes an obligation to "provide, or arrange for the provision of, adequate information about the plant or substance to the persons to whom it is supplied to ensure its safe use". That the obligation imposed by s 18(1)(a) and (b) is to ensure that the "plant or substance" is safe and that the relevant information is made available when "it is supplied" etc, impacts on the nature of the essential or ultimate obligation under the section and thus the nature of the offence created by it. The obligation attaches itself to, or arises from, the relevant transaction or "supply" of the relevant plant or equipment. An important element in determining the nature of the obligation, is to determine what is intended by the use of the term "supply".

15 At par [29] his Honour said: There is nothing in the terms of the section, or in the context in which it appears, which would warrant a different or alternative construction of the word "supply" [than that provided by the dictionary definition]. The section imposes an obligation at the time the relevant "supply" occurs. While the reference to supply "by way of sale, transfer, lease or hire" may require a determination, as a matter of fact, as to when the relevant transaction occurs and when, in relation to the transaction, the act or fact of supply or "supplying" occurs (and is complete) those issues do not appear to have any present significance.

16 The prosecutor contended the proposition by the defendant that the amended charge constituted nine different occasions of supply and, therefore, nine separate offences was at odds with the decision in Osprey because:

i. Whilst the defendant remained on the premises it was clearly involved in an ongoing relationship with the customer to whom the plant had been supplied. ii. Any finding that the supply was complete and yet the defendant remained working at the same premises doing the same work with identical penetrations would appear to be at odds with Osprey to the extent that it reveals a continuing and ongoing relationship. iii. The relevant time to be determined is when the supply is complete. In these circumstances the supply was complete at the time the defendant left the premises. Prior to that time the premises remained a place of work for the defendant and the defendant had obligations reflected in s 16 of the Occupational Health and Safety Act. iv. The defendant had ongoing responsibilities in relation to the penetration covers until such time as it left the premises. In these circumstances it is difficult to conclude that the penetrations had been supplied in the sense of title passing prior to the defendant leaving the subject premises.

17 Mr O'Neil submitted "the supply of each of the penetrations was complete at the time the Defendant left the premises [in September 2000]."

18 Mr Robberds submitted "the title to each penetration passed to the owner of the land at the time of the construction of each penetration (Australian Provincial Assurance Co Ltd v Coroneo (1938) SR (NSW) 700 at 712-713)". The defendant contended that: [T]he prosecution case is that notwithstanding that the penetration on level 4 was constructed a number of weeks after the construction of the penetration on level 3 and that thereafter the penetration on each of the levels 5, 6, 7, 8, 9, 10 and 11 was constructed sequentially a number of weeks apart as each level of concrete was poured … none of these penetrations was supplied until the defendant left the premises.

19 This, the defendant submitted, highlighted the flaws in the prosecutor's position and failed to give the word "supply" its natural and ordinary meaning. It was submitted that to give the word "supplies" its natural and ordinary meaning would mean that when a person constructed a penetration that person would be under an obligation at that time to provide adequate information about the penetration to the persons for whom it constructed the penetration (i.e., to the persons to whom it had supplied the penetration) to ensure its safe use.

20 The issues raised for consideration are as follows: 1. Whether the Court has the power to vary or rescind the earlier order granting leave to amend the application for order. 2. Whether the amendments sought by the prosecutor to the application for order constitute the addition of eight extra charges or amendments to the essential legal elements or are merely amendments to factual particulars. There is also an additional consideration as to whether the amendments went to essential factual ingredients required to be proved by the prosecutor. 3. If the amendments constitute extra charges or changes to essential legal elements or factual ingredients, whether the Court had the power to grant leave to the prosecutor to amend. 4. If the amendments do not constitute extra charges or changes to essential legal elements whether the Court had to power to grant leave to amend and, if so, whether in its discretion it should have done so. 21 As to the first issue, it may be dealt with in short compass. The Commission may, in any proceedings before it, including criminal proceedings, make any amendments to the proceedings that the Commission considers to be necessary in the interests of justice: s 170(1) of the Industrial Relations Act; Ridge Consolidated Pty Ltd v WorkCover Authority (2000) 100 IR 156; Manpac Industries Pty Ltd v WorkCover Authority (Inspector Glass) (2001) 106 IR 435. The amendments may be made at any stage of the proceedings and on such terms as the Commission thinks fit: s 170(2) of the Industrial Relations Act.

22 The second issue is more complex. The amendments made earlier by the Court to the application for order involved two changes. The first change was to the date of the alleged offence from 21 March 2001 to "in or about September 2000". The second amendment involved a change to the alleged place of the offence from "a penetration at riser 4 level 6" to "penetrations at riser 4 including riser 4 level 6".

23 What, in effect, the defence argued was that originally the charge alleged the defendant failed to provide, or arrange for the provision of, information about one piece of plant, namely, a penetration on riser 4 at level 6 of the building under construction to ensure its safe use and that such failure was in respect of a person or persons to whom the penetration was supplied on 21 March 2001 (the date of Mr Leadbitter's fall). The amendment to the application for order, it was submitted, meant the defendant now faces a charge that it failed to provide, or arrange for the provision of, information about eight additional pieces of plant, namely, eight penetrations on riser 4 of the building under construction, to ensure their safe use and that such failures were in respect of a person or persons to whom the penetrations were supplied in or about September 2000.

24 The defendant submitted that as the title to each penetration passed to the owner of the land at the time of the construction of each penetration, if the amendment stood it would mean that the defendant was being charged with not one, but nine failures to provide adequate information to persons to whom the penetrations were supplied in or about September 2000. Because the prosecutor was out of time by virtue of s 49 of the Act, it was submitted that the Court did not have power to amend by adding what were eight extra charges. In the alternative, it was submitted, the charge was bad for duplicity.

25 The prosecutor's contention was that the plant, namely, the nine penetrations on riser 4, were supplied by the defendant in or about September 2000, which was when the defendant had completed the construction of the penetrations and had left the site. These amendments, it was submitted, were merely amendments to factual particulars. It was submitted that whilst the defendant remained on the premises it was involved in an ongoing relationship with the person to whom the plant had been supplied; that any finding that the supply was complete and yet the defendant remained working at the same premises doing the same work with other identical penetrations was at odds with Osprey to the extent that it revealed an ongoing relationship. In these circumstances, it was submitted, it was difficult to conclude that the penetrations had been supplied, in the sense of title passing, prior to the defendant leaving the subject premises. Therefore, as I apprehend the prosecutor, the amendment to the charge does not amount to an allegation that the defendant failed on nine separate occasions of supply to provide adequate information but only once, namely, in or about September 2000 when the defendant had completed the work it had contracted to perform and its relationship with the person to whom the plant was supplied was over.

26 I cannot accept the prosecutor's contention that I should regard supply as having been effected only after all of the penetrations had been installed and the defendant had left the premises. Osprey does not stand for the proposition that there is no supply within the meaning of s 18(1)(b) whilst the relationship between supplier and client is ongoing.

27 The object of the Occupational Health and Safety Act is to ensure the safety of persons at a place of work. In fulfilling this object the Act casts obligations on designers, manufacturers and suppliers of plant and substances for use by persons at work. Section 18(1)(b) creates an absolute duty on persons who design, manufacture or supply any plant or substance for use by persons at work to provide information to the person to whom the plant or substance is supplied to ensure the safe use of that plant or substance.

28 To adopt the prosecutor's approach to the interpretation of s 18(1)(b) would mean this: Say a supplier supplies to a client ten individual machines with the machines to be delivered in stages over a period of 12 months. In supplying the machines the supplier has also contracted to maintain and service the machinery for a period of two years. A week after the supplier supplied the first machine a worker is injured whilst operating that machine. On the prosecutor's approach supply would not be effected until the expiry of the two-year period. On the authority of Osprey, a judgment relied upon by the prosecutor, information about the safe use of the machinery would not need to be provided until the act of supply. That is, in this example, two years after the first machine had been delivered.

29 This approach cannot be right. The purpose of s 18(1)(b) is to require the information about the use of plant and substances to be provided by the supplier prior to the plant or substance being used in order to ensure its safe use. I do not consider that s 18(1)(b) requires that the information must be provided necessarily at the time of the act of supply or transfer of possession, although this would normally be the case. It seems to me what is critical is that once supply has been effected, the information regarding safe use is provided before the plant or substance is used by persons at work.

30 Referring back to the hypothetical scenario above, I consider the supplier would be under a duty to provide the information about safe use on or after supply of the first machine and prior to the use of the machine by a person at work. It may be that provided the ten machines are identical and are to be put to a common use, the information about safe use would only need to be provided once and not on each occasion a new machine is supplied because the machines may, collectively, be regarded as "plant" for the purpose of s 18(1)(b). However, provision of the information once only may not be sufficient. The supplier is required to provide information, or arrange for its provision, to "ensure" the safe use of the machines. If the machines were to be delivered over an extended period to different locations to be used by different groups of the client's employees, circumstances might require that, in order to ensure safe use, the supplier provides information each time it supplies a new machine.

31 Thus, whether or not a defendant has failed to provide adequate information on the safe use of plant supplied to a person for use at work will depend very much on the facts of the particular case and it would be a matter for the prosecution to frame its charge or charges accordingly. Of course, if on the facts the prosecution considered that the supplier had contravened the section on ten separate occasions it would be open to the prosecution under s 49A to either charge a single offence or ten separate offences.

32 It follows, however, from what I have said in this judgment about the interpretation of s 18(1)(b) that what the prosecutor in this case must prove beyond reasonable doubt in relation to the provision of information is that on or after the act or fact of commencing to supply the nine penetrations (namely, in or about September 2000), but prior to their use by persons at work, the defendant failed to provide, or arrange for the provision of, adequate information about the nine penetrations to the person to whom the penetrations were supplied to ensure their safe use.

33 Before leaving this issue I should deal with the prosecutor's submission that it was not the case that there could be no action taken against the defendant until it left the site thereby defeating the purpose of the legislation. He contended that whilst the defendant was on site the provisions of s 16 of the Act would apply. However, as the defendant submitted, if there was no "supply" until after the installer had installed the last of the nine penetrations and had left the site the following would apply: (i) Section 18(1)(b) would not apply to the installer during the period of the installations; and (ii) Section 16 would not apply for most of that period. It would only apply for those short periods when the actual work of installing the penetrations took place. That is, when the building could be said to be the defendant's place of work. 34 In the present proceedings the essential legal elements the prosecution is required to prove under s 18(1)(b) of the Act are as follows: 1. The defendant was a person who supplies plant; 2. The plant was supplied for use by persons at work; 3. The defendant failed to provide, or arrange for the provision of, adequate information about the plant to ensure its safe use; 4. The defendant failed to provide the information to the persons to whom it supplied the plant. The prosecutor must also prove a causal relationship between the defendant's failures and the consequent detriment to safety.

35 The plant described in the amended charge is "penetrations at riser 4 including riser 4 level 6". That is, nine penetrations (there was no issue about whether the penetrations constituted "plant" for the purposes of s 18(1)(b)). Further, the alleged failure on the part of the defendant was said to have occurred in or about September 2000. I do not consider that because the charge, in effect, describes the plant as consisting of nine penetrations that that constitutes nine separate offences and, indeed, the prosecutor specifically denied such a suggestion and submitted that the charge relates to only one act of supply. In my opinion, the nine penetrations may be compendiously described as "plant".

36 As to the defendant's submissions regarding duplicity, as I have found that the amended charge constitutes only one contravention of s 18(1)(b) there can be no duplicity.

37 As to whether the amendments constitute legal elements of the offence, the amendments altered the date on which it alleged the failure occurred, had the effect of altering the description of the plant from one penetration to nine penetrations and altered the place where it is alleged the offence occurred from "riser 4 level 6" to "riser 4 including riser 4 level 6". These amendments do not go to the essential legal elements of the offence: Taylor v Environment Protection Authority (2000) 50 NSWLR 48 at 57.

38 However, a criminal charge must contain not only the legal elements of an alleged offence, but also the essential factual ingredients of the offence: See WorkCover Authority of NSW (Inspector Maltby) v State Rail Authority of New South Wales & Ors [2001] NSWIRComm 120 at par [47] where Schmidt J referred to McConnell Dowell Constructors (Aust) Pty Limited v Environment Protection Authority (2000) 50 NSWLR 127 and cases therein referred to. Time, place and nature of the offence are essential factual ingredients: see Concrete Constructions Group Ltd v WorkCover Authority (Inspector Dubois) (2000) 99 IR 16 at 23 and the reference therein to WorkCover Authority (NSW) (Inspector Penfold) v Fernz Construction Materials Ltd (1999) 91 IR 119 at 126.

39 I do not consider the description of the plant, namely, nine penetrations, is an essential factual ingredient but merely a factual particular provided to the defendant to enable it to properly meet the case put against it.

40 I consider that the time of the alleged omission by the defendant, namely, in or about September 2000, is an essential fact to be proved beyond reasonable doubt. The time of the offence is also an essential ingredient because the prosecution for an offence under s 18(1)(b) of the Occupational Health and Safety Act must be commenced within a certain time of the commission of the offence alleged: s 49(2) (See R v Stringer [2000] NSWCCA 293 at pars [19] and [20] per Grove J). The place of the offence namely "penetrations at riser 4 including riser 4 level 6" is also an essential factual ingredient.

41 This brings me to the third and fourth issues identified at the outset of my consideration in this matter. I have concluded the amendments do not constitute additional charges or changes to the essential legal elements of the offence. However, the amendment to the alleged time and place of the offence goes to essential factual ingredients that the prosecution is required to prove. Given that the amendments relate to essential facts, did the Court have the power to grant leave to amend in the first place and, in doing so, did the Court properly exercise its jurisdiction given the additional information and submissions it has been provided with?

42 Dealing firstly with the amendment to the alleged place of the offence, I consider there was no bar to the Court granting leave to make the amendment notwithstanding that the amendment was made out of time. Section 49(2) of the Act provides: 2) Proceedings for an offence against section 18 (Manufacturers, suppliers etc to ensure health and safety as regards plant substances for use at work) may be instituted, despite subsection (1): (a) within 2 years after the act or omission alleged to constitute the offence, or (b) within 6 months after it first becomes apparent to the WorkCover Authority that the act or omission alleged to constitute the offence has occurred, whichever provides the longer time for proceedings to be instituted.

43 There was no evidence to support the proposition that it was only within the last six months that it became apparent to the WorkCover Authority that the alleged offence occurred. Accordingly, s 49(2)(a) of the Act applies.

44 In Chaudhary v Ducret (1986) 11 FCR 163 a Full Bench of the Federal Court (Northrop, Davies JJ, Jenkinson J dissenting) dismissed an appeal against Keely J where his Honour granted leave to the prosecution to amend particulars of alleged offences notwithstanding that the limitation period had expired. The majority held the amendments to the summonses were not of such a kind that it could be said that the summonses thereby alleged a new offence and, accordingly, s 21(1)(c) of the Crimes Act 1914 (Cth) had not been circumvented by the permitting of the amendments even though they had been made outside the prescribed limitation period.

45 The amendment to the alleged place of the offence is not of such a kind that it could be said that the application for order alleges a new offence in circumstances where the prosecutor is only alleging one act of supply, namely a supply of nine penetrations on riser 4. I consider that the amendment made in this respect was properly made pursuant to s 170 of the Industrial Relations Act. I do not consider the amendment disadvantages the defendant or prejudices it in any way. If a further adjournment is necessary for the defendant to prepare its defence in light of the amendment to the alleged place of the offence, proper consideration will be given to an application in that respect.

46 I have found that the reference in the application to the date on which the alleged offence occurred is an essential fact to be proved by the prosecution including for the purpose of showing that the prosecution was commenced within the time allowed under s 49. In the present case, the amendment to the date means that what is alleged is that the defendant failed to provide adequate information about the safe use of the penetrations supplied by the defendant not on 21 March 2001 but rather "in or about September 2000". The prosecutor commenced proceedings on 21 May 2002, well within the time prescribed by s 49 of the Act. I do not consider that this amendment constitutes such a new set of circumstances that it would be contrary to the interests of justice under s 170 of the Industrial Relations Act to amend the application for order to substitute the different date. There is no reason for me to consider the defendant is prejudiced by the late change to the alleged date of the offence. Indeed, given what I have said about the issue of "supply" it is probably quite the opposite.

47 In this respect I would add that in R v Cooling [1990] 1 Qd R 376 at 378; (1989) 44 A Crim R 171 at 173 (cited with approval in WorkCover Authority of NSW (Inspector Keenan) v Lucon (Australia) Pty Limited [2002] NSWIRComm 68 at pars [90] to [92]), Thomas J, with the concurrence of Ambrose J, said: Commencement of the prosecution within the prescribed time limit is not an element of the offence, and there is no requirement that the indictment show compliance with such requirement on the face of the indictment.

48 This supports the view that an amendment to the date of the alleged offence, after the limitation period has expired, does not constitute a new offence.

49 By allowing the amendment to the date it should not be taken that any change to an essential factual ingredient can be made after the limitation period has expired. It may be that a proposed amendment changes the quality or effect of the substance of the charge and is at odds with the policy underlying s 49 of the Act and that it would be against the interests of justice to allow it: See the discussion in the judgment of Jenkinson J in Chaudhury v Ducret at 183 to 186.

50 I do not propose to revoke the amendments I made on 23 September 2003 to the application for order in this matter. I will hear submissions from the parties as to how this matter should now proceed. Arrangements will be made through my Associate to call this matter on for directions.

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