John Holland Pty Ltd v Industrial Court of New South Wales; Parsons Brinckerhoff

John Holland Pty Ltd v Industrial Court of New South Wales; Parsons Brinckerhoff - [2010] NSWCA 338 - NSWCA 2010 case summary — Zoe

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Thursday 9 December 2010 John Holland Pty Ltd v Industrial Court of New South Wales & Anor Parsons Brinckerhoff (Australia) Pty Ltd v Industrial Court of New South Wales & Anor Judgment 1 SPIGELMAN CJ: On 2 November 2005 the roof of the Lane Cove Tunnel under construction in Sydney collapsed. The partial collapse occurred at or near the intersection of the Pacific Highway Exit Ramp Tunnel and the Marden Street Ventilation Tunnel (referred to, respectively, as "MCAA" and "MC5B"). 2 On 26 October 2007, the second respondent, an Inspector employed by the WorkCover Authority of New South Wales, commenced prosecutions against a number of parties involved in the construction, including the applicant John Holland Pty Ltd ("John Holland"), and the applicant Parsons Brinckerhoff (Australia) Pty Ltd ("Parsons Brinckerhoff"). Each applicant invokes the supervisory jurisdiction of this Court seeking, inter alia, orders in the nature of certiorari to quash orders and proceedings and/or prohibition to prevent the continuation of those proceedings. 3 John Holland, in a joint venture with a related corporation Theiss Pty Ltd, was the constructor of the Lane Cove Tunnel project. Parsons Brinckerhoff was the designer. 4 Persons on site at the time of the collapse included employees of the respective defendants and other persons who were not their employees. By s 8(1) of the Occupational Health and Safety Act 2000 ("the OH&S Act") a duty is imposed to "ensure the health, safety and welfare at work" of employees. By s 8(2) of the OH&S Act a duty is imposed to ensure that persons, other than employees, "are not exposed to risks to their health or safety". Prosecutions were instituted against both John Holland and Parsons Brinckerhoff under each of s 8(1) and s 8(2). 5 The initiating process by way of Application for Order against each applicant consisted of two separate Applications, each dated 26 October 2007. They are lengthy. It is convenient to annex the two Applications under s 8(1) of the OH&S Act. Save for the necessary differences on the first page reflecting the difference between s 8(1) and s 8(2)in one respect, which I will set out below, the two Applications under s 8(2) are in identical terms to the related s 8(1) Application. Annexure 1 - Application for order under s 8(1) against John Holland. Annexure 2 - Application for order under s 8(1) against Parsons Brinckerhoff. 6 In accordance with the procedure for instituting prosecutions in the Industrial Court of New South Wales, on 26 October 2007 a judicial member of that Court made orders in each of the four separate prosecutions in the following terms: "THE COURT ORDERS, pursuant to section 246(1) of the Criminal Procedure Act 1986, as applied by section 168 of the Industrial Relations Act 1996, the defendant to appear before this Court, at Court No 3.2, Level 3, 47 Bridge St, Sydney, in the State of New South Wales on Friday 14 December 2007 at 9.30AM to answer to the said offence charged in the annexed application for order filed in the Industrial Registry on 26 October 2007, a copy of which is attached." 7 Each of John Holland and Parsons Brinckerhoff seek orders quashing the orders, referred to in the previous paragraph, requiring it to appear to answer to the offence as charged in the respective applications. John Holland seeks to prevent the continuation of the original proceedings, including an order in the nature of certiorari quashing the Applications for Order and an order in the nature of prohibition to prevent the Industrial Court exercising the jurisdiction that has purportedly been invoked. 8 In the John Holland proceedings certain questions of law, including the matters raised in this Court, were referred to the Full Bench of the Industrial Court. They were answered adversely to the applicant's contention. (See Inspector Hamilton v John Holland Pty Ltd [2010] NSWIRComm 72.) 9 An additional issue arises in the case of John Holland by reason of the fact that it seeks to set aside a judgment of the Full Bench of the Industrial Court. The applicant John Holland had challenged the jurisdiction of the Court by Notice of Motion on the basis that the tunnel was a "mine" for purposes of the Mines Inspection Act 1901 (repealed). The matter was referred to the Full Bench pursuant to a statutory provision to which I will refer; and the Full Bench determined the matter adversely to the applicant. (Inspector Hamilton v John Holland Pty Ltd [2009] NSWIRComm 26.) The applicant contends that there was no jurisdiction to refer the matter to the Full Bench and asks this Court to quash the judgment of the Full Bench.

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The OH&S Act 2000 10 The OH&S Act imposes duties in relation to the safety of employees and other persons. Part 2 Div 1 of the OH&S Act provides for several such duties, including duties imposed upon employers pursuant to s 8 of the OH&S Act. 11 Section 8(1) of the Act imposes a general duty on employers to ensure the safety of their employees: "(1) An employer must ensure the health, safety and welfare at work of all the employees of the employer. That duty extends (without limitation) to the following: (a) ensuring that any premises controlled by the employer where the employees work (and the means of access to or exit from the premises) are safe and without risks to health, (b) ensuring that any plant or substance provided for use by the employees at work is safe and without risks to health when properly used, (c) ensuring that systems of work and the working environment of the employees are safe and without risks to health, (d) providing such information, instruction, training and supervision as may be necessary to ensure the employees' health and safety at work, (e)providing adequate facilities for the welfare of the employees at work." 12 Section 8(2) imposes an equivalent general duty upon employers in relation to persons who are not employees: "8(2) An employer must ensure that people (other than the employees of the employer) are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work." 13 Section 12 of the OH&S Act provides that a contravention of s 8(1) or of s 8(2) constitutes an offence. 14 Section 28 of the Act provides defences to alleged offences contrary to s 8(1) and s 8(2), but imposes the burden of proving those defences upon the defendant: "(28) It is a defence to any proceedings against a person for an offence against a provision of this Act or the regulations if the person proves that: (a) it was not reasonably practicable for the person to comply with the provision, or (b) the commission of the offence was due to causes over which the person had no control and against the happening of which it was impracticable for the person to make provision." 15 Section 31 is in the following terms: "31(1) More than one contravention of a provision of Division 1 by a person that arise out of the same factual circumstances may be charged as a single offence or as separate offences. (2) This section does not authorise contraventions of 2 or more of those provisions to be charged as a single offence. (3) A single penalty only may be imposed in respect of more than one contravention of any such provision that is charged as a single offence." 16 The jurisdiction of the Industrial Court to hear and determine proceedings in relation to an alleged offence contrary to the OH&S Act is conferred by s 105(1)(b), together with s 168 of the Industrial Relations Act 1996 and Pt 5 of Ch 4 of the Criminal Procedure Act 1986. 17 Section 105 of the OH&S Act provides: "105(1) Proceedings for an offence against this Act or the regulations are to be dealt with summarily: … (b) before the Industrial Relations Commission in Court Session."

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The Industrial Relations Commission Rules 1996 25 At the time of the Applications on 26 October 2007, the Rules applicable to the issue of the Orders were contained in Pt 27A Industrial Relations Commission Rules 1996 (now repealed), "Proceedings for Offences". (Noting again that references to the "Commission in Court Session" are references to the Industrial Court of NSW.) 26 Part 27A provided: "217A Application This Part applies only to proceedings before the Commission in Court Session. 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 the 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 (b) a minute of the order claimed. 217C Service (1) A minute of any order made by the Commission under section 4(1) or section 10(b) of the Supreme Court (Summary Jurisdiction) Act 1967, a copy of the application for an order, and a copy of any affidavits used to obtain either of those orders, are to be served on the defendant by the prosecutor at least 3 clear days before the time specified in the minute of the order. (2) The application for the order and any affidavit in support of the application are not to be served on the defendant before the making of the order, unless the Commission otherwise directs. (3) Such service must be effected in the manner specified in Rules 104(a) or (b), 105(a),(b) or (c), 106(2)(a) , (b) or (c) or 107(1) or (2) . 217D Discontinuance and withdrawal of proceedings Any proceedings under this Part may, with leave of the Commission, be discontinued or withdrawn in accordance with Part 19 . 217E Amendment of process The Commission may, on the application of any party at any time during the proceedings or made, in writing, to the Registrar, at any time, allow an amendment to be made of any process upon such terms as to adjournment, the times within which any matter or thing may be done in connection with the proceedings, and service of notice of the amendment, as the Commission thinks fit." 27 As at the date of the institution of the proceedings under consideration, r 217B referred, as I have set out, to s 4(1) of the Supreme Court (Summary Jurisdiction) Act 1967. That Act had been repealed, effective 2003. The rules were not changed to refer to the replacement of that section by s 246(1) of the Criminal Procedure Act until 2009. The Court's attention was not drawn to any relevant savings or transitional provision. However, nothing is said to turn on this discrepancy.

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The Judgment in Kirk 29 As noted above, orders were made against each applicant pursuant to s 246(1) of the Criminal Procedure Act. 30 The principal issue raised by the applicant in each proceeding is that the jurisdiction of the Industrial Relations Court had not been validly invoked, on the basis that each of the four charges failed to properly identify an offence at law. The applicants relied on the judgment in Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 ("Kirk"). Each applicant submits that the charges failed to identify an offence because, in accordance with the reasoning of the High Court in Kirk, a statement of offence must identify the act or omission which constitutes a contravention of s 8 of the OH&S Act. Each applicant submits that the charges fail to do so. 31 The High Court in Kirk was dealing with offences under the predecessor legislation, namely, s 15 and s 16 of the Occupational Health and Safety Act 1983. However, all parties in this Court accepted that there was no material difference between those provisions and s 8(1) and (2) of the OH&S Act. 32 In Kirk two propositions are stated in a number of places in equivalent formulations. These propositions are that, in order to establish a contravention: "A statement of an offence must identify the act or omission said to constitute a contravention" - see [14], [15], [27], [37], [38], [74]; and The "relevant act or omission which gives rise to the offence" is "a failure, on the part of the employer, to take particular measures to prevent an identifiable risk eventuating" - see [12], [14], [19], [28], [38]. 33 As the joint judgment put it on one occasion: "[17] … A breach or contravention … is the measure not taken, the act or omission of the employer." 34 The joint judgment in Kirk considered the five particulars provided under the equivalent of s 8(1) of the OH&S Act, and three particulars provided under the equivalent of s 8(2) of the OH&S Act. Those particulars were (see Kirk at [22]): " … the defendant failed to: i. provide or maintain systems of work that were safe and without risks to health in relation to the operation of the Polaris All Terrain Vehicle ('ATV'); ii. provide such information, instruction, training and supervision as may be necessary to ensure the health and safety at work of its employees in relation to the operation of the Polaris All Terrain Vehicle ('ATV'); iii. to take such steps as are necessary to make available in connection with the use of any plant (namely the ATV) at the place of work adequate information about the use for which the plant is designed and about any conditions necessary to ensure that, when put to use, the plant is safe and without risks to health; iv. ensure that the Polaris All Terrain Vehicle ('ATV') was only operated by persons with appropriate training. v. adequately identify, assess and control risks and hazards in relation to the operation of the ATV on the farm." 35 With respect to the first three particulars the High Court noted that they did little more than set out the words of the section together with a reference to the ATV. The High Court went on to say: "[28] … The first particular of the s 15(1) offence suggests that the Kirk company had some systems relating to the operation of the ATV in place, but that they were not sufficient. It does not identify the deficiency in the system or the measures which should have been taken to address it. The second particular does not identify what information, instruction or training was necessary to be given to Mr Palmer or the other employee of the Kirk company." 36 As to the other matters the High Court had said: "[25] … Of the other two particulars provided to each charge, only that which alleged a failure to ensure that the ATV was operated by persons with appropriate training came close to any measure of specificity." 37 However, the joint judgment rejected this particular also when it said, with respect to all the particulars: "[28] The statements of the offences as particularised do not identify what measures the Kirk company could have taken but did not take … The particulars of the s 16(1) offence say nothing about what should have been done to avoid exposing the contractors to risk to their health and safety from the use of the ATV." 38 In the event, the High Court concluded that a jurisdictional error had been committed. This flowed from a misinterpretation of ss 15 and 16 of the 1983 Act there under consideration. 39 The joint judgment said: "[37] … his Honour's reasons disclose a wrong understanding of what constituted an offence against ss 15 and 16 and how the defence under s 53(a) was to be applied in proceedings for such an offence. His Honour did not appreciate that no act or omission on the part of the Kirk company had been charged. To the contrary, his Honour accepted the proposition that the prosecutor is not required to demonstrate that particular measures should have been taken to prevent the risk identified." 40 Their Honours concluded: "[74] … Misconstruction of s 15 of the OH&S Act led the Industrial Court to make orders convicting and sentencing Mr Kirk and the Kirk company where it had no power to do so. It had no power to do that because no particular act or omission, or set of acts or omissions, was identified at any point in the proceedings, up to and including the passing of sentence, as constituting the offences of which Mr Kirk and the Kirk company were convicted and for which they were sentenced. And the failure to identify the particular act or omission, or set of acts or omissions, alleged to constitute the contravening conduct followed from the misconstruction of s 15. By misconstruing s 15 of the OH&S Act, the Industrial Court convicted Mr Kirk and the Kirk company of offences when what was alleged and what was established did not identify offending conduct." 41 Kirk was a case in which the proceedings in the Industrial Court had gone through to the stage of conviction. In the present case the applicants challenge the jurisdiction of the Court to hear the proceedings. However, jurisdiction has already been exercised, as noted above, by the making of orders under s 246(1)(a) of the Criminal Procedure Act, requiring each applicant to appear before the Court to answer the charges. 42 Reliance in this appeal was placed on the following passage in the joint judgment in Kirk: "[30] No application was made to the Court of Appeal for an order in the nature of certiorari quashing the orders made by the Industrial Court that required Mr Kirk and the Kirk company to appear to answer the offences charged. Those orders of the Industrial Court were expressed as being made pursuant to s 4(1) of the Summary Jurisdiction Act as applied by s 168 of the IR Act . Section 4(1) of the Summary Jurisdiction Act permitted the making of an order '[u]pon an application being made ... in accordance with the rules' and the relevant rules required that the nature of the offence be stated. Section 6(1) of the Summary Jurisdiction Act provided, in effect, that no objection was to be taken or allowed to any order made under s 4 by reason of any alleged defect in it in substance or in form. Because no application was made to quash the orders requiring appearance to answer the charges, it is neither necessary nor appropriate to examine whether those orders were made upon an application made 'in accordance with the rules', or to consider whether or how s 6 of the Summary Jurisdiction Act might affect the availability of an order in the nature of certiorari. However, it may be said that the matter should not have proceeded without further particularisation of the acts and omissions said to found the charges. Without that particularisation, the Industrial Court would be placed in the position to which Evatt J referred in Johnson v Miller (1937) 59 CLR 467 at 495 where it would act as 'an administrative commission of inquiry' rather than undertake a judicial function. Proceeding without further particularisation of the acts and omissions said to found the charges reflected views as to the nature and extent of the duty cast upon an employer by ss 15 and 16 and the limited operation to be given to the s 53 defences." 43 One aspect of the context of the offence creating provisions under consideration in Kirk was of particular significance. This was the provision of a defence for the employer, now found in s 28 of the OH&S Act, as set out at [14] above. As with the provision considered in Kirk, that section creates a defence in the terms that "it was not reasonably practicable for the person to comply with", relevantly, s 8. The joint judgment in Kirk stated that, unless particular measures were identified in the charge, an employer would be "denied the opportunity to properly put a defence". (Kirk at [38], see also at [16], [27] and the last sentence of [28].) 44 The significance of this defence to the statement of the charge - particularly the requirement of precision in the statement of the contravention alleged - is manifest in the observations at [19] of the joint judgment: "[19] What was necessary to be done in connection with the health, safety and welfare of employees and others at the workplace depended upon the presence of identifiable risk and measures which could be taken to address them. The question which may follow, as to what was or was not reasonably practicable or the employer to have undertaken, is directed to the measures so alleged. It is the employer's act or omission with respect to those measures which had to be identified in the statement of any offence charged under ss 15 and 16." 45 The reasoning in Kirk was to the effect that, as a matter of interpretation of the offence creating provisions, a charge had to identify the nature of the offence. In the present case the challenge has been made at the time of the charge. Accordingly, the matters left open at [30] of the joint judgment in Kirk, set out at [42] above, may arise. 46 Section 246(2) of the Criminal Procedure Act and r 217B of the Industrial Relations Commission Rules, set out at [22] and [26] above, are both expressed in mandatory terms: An application under s 246 of the Criminal Procedure Act " must " be in accordance with the Rules. Rule 217B(1) of the Rules requires that an application " must " be made under s 4(1) of the Supreme Court Summary Jurisdiction Act. Rule 217B(2) provides that an application " must " state, relevantly, the nature of the offence alleged. Rule 217C(3) requires that service " must " be effected in the manner specified in the Rules there identified. 47 These provisions constitute a direct route to the proposition that a failure to identify the nature of the offence constitutes jurisdictional error. An Application under s 246(1)(a) of the Criminal Procedure Act requires an accused to answer "to the offence charged in the order". Section 246(2) and r 217B, as noted, both use the word "must". The reasoning in Kirk gives these mandatory requirements specific content.

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The John Holland Charges 54 The front page of each Application for Order, constituting the statement of the offence, does no more than repeat the words of, respectively, s 8(1) and s 8(2) of the OH&S Act. The second respondent did not contend that that was sufficient to comply with the reasoning in the High Court in Kirk. The second respondent contended that when read with the matter appearing under the heading of "Particulars", each charge, considered as a whole, did identify an offence in accordance with the reasoning in Kirk. 55 Counsel for John Holland submitted that the Court should focus only on the statement of the charge on the first page of each Application for Order. John Holland, but not Parsons Brinckerhoff, submitted that the balance of each Application, which provides particulars of the charge, is not the statement of the offence for the purpose of applying the reasoning of the High Court in Kirk. 56 This is too narrow an interpretation of that reasoning. Indeed, it is inconsistent with the reasoning in Kirk which, as I have set out above, analysed the particulars provided, as well as the charge. An Application for Order, in its entirety, is the document which invokes the jurisdiction of the Court. If the offence is appropriately identified in the document as a whole, then there is no reason to conclude that the jurisdiction of the Court was not properly invoked. 57 In the proceedings against John Holland, Annexure 1, two general assertions of contravention are set out as (b) and (c). The first, (b) has four further particulars, some of which have sub-particulars. The second, (c), has nine further particulars, some of which have sub-particulars. 58 The first, particular (b), asserts that the applicant failed to ensure that the premises were safe and without risk to health. The second, particular (c), asserts that the applicant failed to ensure that the systems of work were safe and without risk to health. 59 There is a difference between the two alleged contraventions. The first contravention, with respect to the premises, goes on to identify the general act or omission of which further particulars and sub-particulars are given, namely: " … to ensure the down drive of the MCAA including its intersection with the MC5B had an adequate system of ground support installed in a timely manner to support the tunnel." 60 It is notable that particular (c), with respect to systems of work, does not contain any such general statement but goes on immediately to set out nine further particulars and detailed sub-particulars. 61 Detailed particulars of the omission identified as (b) encompass a range of specific acts or omissions which, as I understand the pleading, have the cumulative effect identified in the chapeau to particular (b) set out at [59] above. These are: Deviation from the design intent; Failure to install shotcrete of "adequate thickness"; Failure to ensure the effectiveness of rock bolting by a number of specific omissions. 62 The contravention identified as (c), with respect to the systems of work, contains no general statement of an act or omission on the part of the applicant. As I have noted, there is nothing equivalent to the passage in particular (b) about the failure to ensure the down drive had an adequate system of ground support. Rather, there is a general statement in terms of the offence creating provision followed by nine particulars with numerous sub-particulars. 63 The detailed particulars of (c) include allegations of: Failure to "implement and maintain an adequate system of communication" between the tunnel's constructors and the tunnel's designers with respect to a number of identified matters; Failure to implement and maintain "an adequate system for recording and reporting failed rockbolts"; Failure to ensure that the construction could maintain the safe excavation and support sequence when excavating the down drive (with further particulars provided); Failure to advise the designers that the construction of the down drive would involve "benching"; Failure to obtain design drawing and construction sequence "appropriate for benching in the construction of the down drive"; Failure to apply shotcrete in accordance with design drawings and construction sequence; Failure to provide and maintain adequate review and verification procedures for assessing the performance of ground support; Failure to "implement and maintain an adequate system of communication or liaison" with the geotechnical consultants with further detailed particulars including failure to ensure adequate analysis of tunnel mapping and liaison with project designers; Failure to prevent workers performing work in the down drive.

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John Holland Charges: Section 31 64 John Holland submitted that each Application for Order charges one offence only, but the particulars impermissibly list a range of disparate facts which deal with separate issues taking place at different times on different dates - such as compliance with design intent, communications between various participants in the project, rock bolting, benching, etc. 65 The fact that the Application for Order expresses a range of matters in terms of a single offence does not, in the specific context under consideration, raise the kind of issues of duplicity which often arise in a criminal prosecution. That is by reason of s 31 of the OH&S Act, which I have set out at [15] above. 66 Section 31 was originally enacted as s 49A of the Occupational Health and Safety Act 1983, in response to the decision of the Industrial Relations Commission in Boral Gas (NSW) Pty Ltd v Magill (1995) 37 NSWLR 150. The legislative history is set out in Newcastle Wallsend Coal Company Pty Ltd v Inspector McMartin [2006] NSWIRComm 339; (2006) 159 IR 121 at [108]-[119]. (See also Diemould Tooling Services Pty Ltd v Oaten [2008] SASC 197; (2008) 101 SASR 339 at [43]-[52] per Doyle CJ, special leave refused; Santos Ltd v Markos; Diemould Tooling Services Pty Ltd v Oaten [2008] HCA Trans 372 (13 November 2008).) 67 Section 31 permits "more than one contravention" to "be charged as a single offence". Nevertheless, the charge must identify each alleged "contravention". It is to the principles established in Kirk that reference must be made as to whether the contraventions, pleaded as a single offence, have been validly stated. 68 Mr G Hatcher SC, who appeared for John Holland, submitted that Kirk established that it is the failure to adopt a specified measure that constitutes the offence. Accordingly, he submitted, the specified measures must arise from the "same factual circumstances" for purposes of s 31. That section, he submitted, does not permit the conglomeration of a series of different acts and omissions of a disparate character. 69 Mr Hatcher SC submitted that the charges failed to specify what were "the same factual circumstances" for purposes of s 31. The prosecutor could not, absent such identification, rely on s 31. Accordingly, the Court was not in a position to determine its jurisdiction to hear the charge as pleaded. The failure to plead the "factual circumstances" which were alleged to be "the same" with respect to each of the disparate matters identified in the particulars was, he submitted, a fundamental defect. 70 A reading of the particulars, set out as Annexure 1, indicates that all of the facts and matters relate to the construction of the Tunnel. This reinforces the clear statement of the identification of the relevant risk in particular (a) "falling rock and/or tunnel collapse". No case has been propounded that any specific particular could be severed as arising from some different set of "factual circumstances". If the submissions had been more specific it may have been possible to quash some such matter pro tanto. However, no submission of this character was put before the Court. 71 In my opinion, it is not necessary to expressly plead the "factual circumstances" said to be the same for purposes of s 31(1). Section 31(1) is facultative and permits a course which common law principles of duplicity would not permit. Nevertheless, so long as each contravention is appropriately identified it will be possible to determine whether or not the respective alleged contraventions arise from "the same factual circumstances". 72 The appropriate mechanism for challenging the cumulation of contraventions pursuant to s 31(1) is to strike out one or other of the contraventions so combined. A Court can determine which of the contraventions are not appropriately joined with another or others and leave it to the election of the prosecution to abandon one or the other, or to recharge, if a new charge is permissible in accordance with the limitation provisions. The exercise of this Court's supervisory jurisdiction to prevent an impermissible combination of contraventions would not lead to a quashing of the charge as a whole. That, however, is the only relevant relief sought by John Holland in this Court.

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John Holland Charges: Identifying the Offence 73 The principal submission advanced for John Holland was that the charge and the particulars do not identify contraventions in accordance with Kirk. Mr Hatcher SC submitted that the Application, when read as a whole, does not identify specific acts or omissions which constitute measures that could have been taken, but were not taken, to prevent an identified risk. He submitted that, properly understood, the charge and the detailed particulars do not set out separate acts or omissions, but are pleaded as matters which created a state of affairs, namely, a general failure to ensure safety, and that it is that general state of affairs which has been charged. 74 Mr Hatcher SC accepted that the Applications in this case contained a greater degree of particularity than there was in Kirk. He further accepted that some of the particulars could be the subject of a valid charge. However, he submitted that the intermixture of the matters was such that no valid charge could be discerned. 75 He also referred to the occasions on which the particulars stated that some step had not been done "adequately" and submitted that this was a failure to identify what was alleged. However, unlike the submissions made for Parsons Brinckerhoff, the John Holland submissions did not seek to address each of the particulars supplied. It advanced an all or nothing case, no doubt on the basis that it was not in its interests to have some of the particulars quashed, whilst bearing a substantial number for trial. 76 Mr J Agius SC, who appeared for the second respondent, submitted that each of the particulars identified as (b) and (c), in Annexure 1 (summarised at [58]-[63] above) appropriately identify the acts or omissions of the applicant and specify the particular measures which it should have taken. 77 In my opinion, the contravention identified as (b) with respect to the premises complies with the requirements of the reasoning in Kirk. As I have indicated the risk is identified in (a) of the particulars. The act or omission said to constitute a contravention is also identified in the chapeau to particular (b), namely, the failure to provide an "adequate system of ground support in the down drive to support the tunnel". The further particulars and the sub-particulars identify a range of facts and matters each of which answer the description of a "particular measure" which, in one respect was an act ("deviation from design") and in other respects, constituted omissions alleged to have been made by the applicant. 78 Where words of general application are used such as "adequate system of ground support" or "adequate system of communication" they may give rise to an application for further better particulars. However, in this context, such terminology does not fail to identify a "particular measure" within the reasoning of Kirk. What is alleged in each respect against the applicant in terms of a failure to take specific steps is clearly pleaded. What is an "adequate system of ground support" is identified in the following further particulars, ie, compliance with the original design, thicker shotcrete, effective rock bolding. Similarly, what is an "adequate system of communication" is also specified in the sub-particulars on benching, rockbolt failures, etc. 79 I do not assess every reference to 'adequacy' as the applicant did not seek to make out a case on the basis of each such particular. The possibility of further particularisation does not detract from the validity of the charge for purposes of determining whether or not the Industrial Court has had its jurisdiction properly invoked. Since writing [77], [78] and the preceding sentences of this paragraph I have read the additional comments of Giles JA on the 'adequacy' submissions and I agree with his Honour's comments. 80 The position with respect to the matter identified in particular (c) is somewhat different because there is no statement in the chapeau of any act or omission on the part of the applicant. This particular does no more than follow the general words of the subsection. Accordingly, it appears to allege only a general state or condition, without identification of the act or omission said to give rise to the contravention. 81 The detailed particulars given under the general statement of the chapeau of particular (c) are, like the detailed further particulars and sub-particulars under the particular (b), a recitation of a series of particular measures which the applicant is alleged to have failed to take and which could have prevented the risk identified in (a) emerging. 82 The Court is faced with the choice of determining whether each of the particulars (i)-(ix) should be treated in the same way as the further particulars of particular (b), ie, as cumulatively constituting a contravention. Alternatively, the Court could treat each of the particulars (i)-(ix) as separate statements of offence, namely, there are nine different contraventions alleged which are combined together with the one contravention treated as (b) to constitute a single offence for the purposes of s 31 of the OH&S Act. I have come to the view that the latter is appropriate. 83 The detailed further particulars of (c) set out with sufficient precision the particular measures which the applicant is said to have failed to take, each of which was capable of preventing the risk, identified in particular (a), emerging. As I have indicated above, John Holland did not seek to challenge these particulars one by one. It is unnecessary for this Court to analyse each particular. The exception is the criticism of the terminology of 'adequacy' which I have dealt with at [77]-[79] above. 84 In my opinion, the John Holland challenge to the validity of the charge should be dismissed.

[49]

John Holland: The Mines Issue 85 In the proceedings before the Industrial Court, John Holland contended that the Lane Cove Tunnel was a "mine" for the purposes of the Mines Inspection Act 1901 (which I note is now repealed). Accordingly, it submitted that the second respondent had no authority to investigate the incidents or to commence the prosecutions and the first respondent has no jurisdiction to hear and determine the proceedings. John Holland does not press the substance of this submission in this Court. It seeks only to have the Full Bench decision determining this issue set aside for lack of jurisdiction. 86 By Notice of Motion of 13 October 2008, John Holland sought to strike out the Applications lodged against it for want of jurisdiction based on this ground. On 21 October 2008 the trial judge, of her own motion, referred this and other Notices of Motion to the Full Bench of the Industrial Relations Court. On 6 March 2009 the Full Bench, as noted at [9] above, rejected the applicant's contentions on the mines issue. 87 In this Court John Holland contends that the trial judge did not have power to transfer the Motions to the Full Court under the Industrial Relations Act or the Rules. The reference was purported to have been made under s 193 of the Industrial Relations Act which provides. "193(1) A member of the Commission may refer to the President, for decision by a Full Bench of the Commission: (a) a matter (or part of a matter) before the member, or (b) a question arising in a matter before the member. (2) The President is to determine whether or not a Full Bench should deal with the matter or question. (3) The Full Bench may: (a) hear and determine the matter or question, or (b) refer the matter or question back to the member, with such directions or recommendations as the Commission considers appropriate. The Full Bench may hear and determine a part of the matter and refer the remainder back to the member. (4) This section extends to a reference by a member who is the Chairperson of an Industrial Committee of a matter before the Committee." 88 The appellant submits that s 193 could not apply to the proceedings because of the operation of s 196. That section provides: "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." (Emphasis added) 89 The applicant relies on the emphasised words in s 196(1) for the proposition that the s 193 reference power did not apply to the exercise of the Court's criminal jurisdiction. By force of s 196(1), that section applies to "appeals and references to the Full Bench". The second respondent submitted that a 'reference' to the President under s 193, was not a 'reference' to the Full Bench within s 196. 90 Section 193 uses the language "refer to the President" but that is for the purpose of "a decision by the Full Bench". Notwithstanding the interposition of the President, who merely 'determines' under s 193(2) whether the Full Bench "should deal with the matter", s 193 is, in my opinion, a provision for "references to the Full Bench", within the meaning of s 196(1). (See Rockdale Beef Pty Ltd v Industrial Relations Commission of NSW [2007] NSWCA 128; (2007) 165 IR 7 at [5].) 91 The interpretation proposed by the second respondent is an unnecessarily narrow approach to a provision, such as s 196, which is directed to ensuring that appellate criminal proceedings in this State proceed in a similar manner in all Courts invested with such jurisdiction. This is a statutory recognition of the inadequacies that may arise from the creation of specialist courts, to which Heydon J drew attention in Kirk at [122]. 92 The orders made by Backman J on 21 October 2008 were reflected in the following passage of the transcript of that date: "I will refer the two Notices of Motion filed on 20 October 2008 and the two notices of a constitutional matter filed on the same day to the President for his consideration under s 193 of the Industrial Relations Act 1996."

[50]

The President proceeded on the basis that there had been such a reference. 93 Section 196(2) applies the Criminal Appeal Act 1912 to an "appeal or reference" to the Full Bench. A potentially relevant provision is found in s 5AE of that Act. That section states: "5AE Point of law stated during summary proceedings (1) At any time before the completion of proceedings before the Supreme Court in its summary jurisdiction, the Land and Environment Court in its summary jurisdiction or a Court of Coal Mines Regulation in its summary jurisdiction, the judge hearing the proceedings may, or if requested by the Crown must, submit any question of law arising at or in reference to the proceedings to the Court of Criminal Appeal for determination. (2) The Court of Criminal Appeal may make any such order or give any such direction to the court concerned as it thinks fit." 94 However, with respect to this issue, Backman J did not identify a "question of law". The Notices of Motion referred were in the form of a document seeking declarations and orders, together with a statement of grounds and reasons. One of the declarations sought was a declaration that, at the relevant time, the site of the incident was a "mine" and, consequently that the proceedings were not instituted by a duly authorised person. A similar declaration was sought in each of the proceedings under s 8(1) and s 8(2) of the Act. 95 In the context of the exercise by an arm of the executive of a statutory power it is now the better view that a decision will not be invalidated if the holder of the power purports to exercise an inappropriate head of power, when another head of power was available. (See the authorities discussed in VAW (Kurri Kurri) Pty Ltd v Scientific Committee [2003] NSWCA 297; (2003) 58 NSWLR 631, doubting the continued authority of Australian Broadcasting Tribunal v Saatchi & Saatchi Compton (Vic) Pty Ltd (1985) 10 FCR 1, noting particularly Lockwood v The Commonwealth 90 (1954) CLR 177 at 184; Newcrest Mining (WA) Ltd v Commonwealth of Australia (1997) 190 CLR 513 at 618 and see Harris v Great Barrier Reef Marine Park Authority [1999] FCA 437; (1999) 162 ALR 651 at [13]-[17] per Kiefel J.) 96 Although the issue of characterisation as a "mine" may be a question of fact or, at least, a mixed question of law and fact, s 5AE of the Criminal Appeal Act may have been available. However, nothing in the nature of a question of law was identified and referred. Rather, what was referred to the President pursuant to s 193 were the Notices of Motion as a whole. No order of that character could have been made under s 5AE. It is not available to validate the orders that were actually made. 97 The effect of the reference was to deny the applicant the usual criminal procedure of a trial followed by an appeal. In this criminal context the procedural defect in the mechanism by which the matter came before the Full Bench should be regarded as jurisdictional. An accused is entitled to a trial at first instance and a right of appeal. This is a fundamental characteristic of our criminal justice system. The Full Bench "mistakenly assert[ed] jurisdiction". (Craig v South Australia (1995) 184 CLR 163 at 177.)

[52]

The Parsons Brinckerhoff Charges 101 The two Applications for order against Parsons Brinckerhoff were in identical terms, save for the identification in par (b) of the s 8(2) Application of the risk of subsidence, to which I have referred at [49] above. Save in one respect, it is sufficient to deal only with the s 8(1) Application, being Annexure 2. 102 As in the case of John Holland, particular (a) of the s 8(1) application identifies the relevant risk. Again, in reliance on s 31 of the OH&S Act, the particulars identify, as (b), (c) and (d), three distinct contraventions. 103 With respect to the Application under s 8(2), as noted above, an additional risk, (b), is identified, namely the risk of subsidence. Parsons Brinckerhoff submits that the additional risk exacerbates the vagueness of the alleged contraventions in subsequent particulars by the failure to identify what should have been done to address this quite different risk of subsidence and damage to the ground resulting in undermining. There is no identification of which of the subsequent particulars, if they be measures at all, relate to this risk. The subsequent particulars in the s 8(2) Application - being (c), (d) and (e) - are identical to particulars (b), (c) and (d) in the s 8(1) Application. It appears to me to be clear that every one of these particulars is intended to constitute an act or omission for both of the risks identified, respectively as (d) and (b). There is appropriate identification. 104 With respect to the Application under s 8(1), the first particular, (b), is the failure to provide adequate notice to the construction joint venture of: " … non-compliance with design intent as reflected in the design drawings and construction sequence and further of the potential risk of rock fall or tunnel collapse as a consequence of that non-compliance." 105 The second particular, (c), is that Parsons Brinckerhoff failed to withdraw its employees from the vicinity of the MCAA, including its intersection with the MC5B. 106 The third particular, (d), alleges failure on the part of the applicant to ensure that "the observations of the down drive … were sufficiently brought to the attention of the designers". This failure was said to include observations of: the "as found" ground conditions; that the construction work included benching; that the construction joint venture was deviating from the design drawings and construction sequence; the observations of a geotechnical engineer about the inadequacy of ground support as installed. 107 The submissions on behalf of Parsons Brinckerhoff appear to accept that the risk is appropriately identified, namely falling rock or tunnel collapse. However, it contends that none of the three particulars of conduct in the two Applications identify "particular measures" capable of constituting an offence against s 8(1) or s 8(2) of the OH&S Act. 108 Mr B Hodgkinson SC, who appeared for Parsons Brinckerhoff, submitted that the orders made against his client, as set out at [6] above, referred the whole Application. He accepted that with respect to the orders sought, Parsons Brinckerhoff had to show that each allegation failed to comply with Kirk. Specifically, each allegation had to be considered to determine whether it was a "particular measure" (T 17-18). 109 With respect to particular (b), Parsons Brinckerhoff submitted that the words "the constructor's non-compliance with the design intent as reflected in the design drawings and construction segments" were so vague as to be meaningless. The pleading, he submitted, does not identify what should have been done to address the risk of falling rock and/or tunnel collapse identified in particular (a) as the relevant risk. 110 Mr Hodgkinson SC also relied on the ambiguity inherent in the word "adequate" and made a comparison with particular (iv) considered by the High Court in Kirk, and referred to at par [36]-[37] above, ie, the alleged failure to ensure that the vehicle "was only operated by persons with appropriate training". This was the particular which the High Court accepted came closest to being adequate but, as noted above, it did not save the pleading in the case. (See Kirk at [28], quoted at [37] above.) 111 Mr Hodgkinson SC also submitted that the pleading does not give any insight as to what it is alleged the applicant ought to have brought to the notice of the constructor. The reference to "adequate notice" does not identify what information should have been brought to the notice of the constructors. He submitted that this particular was so vague as to be meaningless. 112 In my opinion, particular (b) is not equivalent to that rejected by the High Court in Kirk. It refers, in terms, to giving notice of the failure by the constructor to comply with design drawings and the specified construction sequence. Unlike the particular in Kirk, this particular does say "what should have been done to avoid exposing the [persons] to risk". It identified what should have been done. 113 With respect to the second particular, (c), that the appellant failed to withdraw its employees from the site, Parsons Brinckerhoff submitted that this constituted an assertion that the applicant should have ceased all work in the vicinity of the exit ramp tunnel. It contends that this particular does not direct attention to the deficiency in the system being used in the construction of a tunnel. Nor does it identify a particular measure of the requisite specificity. The applicant submits that as this assertion covers the period from 27 October to 2 November, it is insufficiently specific. 114 Mr Hodgkinson SC accepted that there would be circumstances in which the whole workforce should be withdrawn but no such circumstances have been identified. What is required, he submitted, are measures to "address" the risk, not to close down the workplace. I would reject that submission. Whether or not the circumstances were such as required the removal of the workforce on the days the subject of the charge is a question of fact. There is no jurisdictional error in asserting that cessation of work was a "particular measure" that should have been taken on those days. Stopping work may be an appropriate measure. If it is not reasonably practicable to do so the defence under s 28 is available. Unlike Kirk, the application has a clear statement of the contravention alleged for purposes of invoking the defence. 115 With respect to the third particular, (d), concerning the need to bring certain matters "sufficiently" to the attention of the designer, including certain matters that were further particularised, Parsons Brinckerhoff submits that the general terms of the particular are such that it provides "no meaningful guidance as to what particular measure the prosecutor asserts should have been implemented by the applicant in order to address the risk of falling rock and/or tunnel collapse". The ambiguity inherent in the word "sufficiently" has the same deficiency as that discussed above with respect to the terminology of 'adequacy'. 116 Furthermore, Parsons Brinckerhoff was the designer and the geotechnical engineer identified in sub-particular (iv) was its employee. This particular, it submits, is to the effect that Parsons Brinckerhoff did not "sufficiently" bring certain matters to its own attention, including the "observation" of one of its own employees as Mr Hodgkinson submitted is meaningless. 117 In reply to this submission Mr Agius SC submitted that the word "designers" in the particular should be understood as a reference to the individual employee who undertook the work. The applicant, it is contended, did not ensure that those individuals were fully informed. This submission should be accepted. There is no ambiguity in the pleading. 118 With respect to the generality of words such as "adequate" and "sufficient", Mr Agius SC said that each is a matter for further particularisation. Any such inexplicitness does not impinge upon the validity of the Application as an instrument conferring jurisdiction on the Industrial Court. For the reasons I have given above at [77]-[79], when dealing with the equivalent John Holland submission, I accept this submission. Nor, in my opinion, does the cumulative effect of such words, together with other references which may appear to be inexplicit, alter the position. 119 In my opinion, the sub-particulars set out at [104] above, provide specific examples of what the applicant should have brought to the attention of its employees. These indicate the "particular measures" which the applicant should have taken. 120 In my opinion, each of the three matters pleaded as (b), (c) and (d) refer to omissions on the part of Parsons Brinckerhoff. Furthermore, each identify a particular measure which the applicant should have taken. The application should be dismissed.

[58]

John Holland: The Mines Issue 125 My path to the same conclusion as the Chief Justice is as follows. 126 The formal record of the orders made by Backman J on 21 October 2008 was not in the appeal papers, but the orders either then or subsequently made may be found in the terms of her Honour's statement in the transcript - "I will refer the two Notices of Motion filed on 20 October 2008 and the two notices of a constitutional matter filed on the same day to the President for his consideration under s 193 of the Industrial Relations Act 1996." 127 This was expressly pursuant to s 193 of the Industrial Relations Act, which empowers a member of the Commission to "refer to the President, for decision by a Full Bench of the Commission", a matter (or part of a matter) before the member or a question arising in a matter before the member. It was accepted that the President had determined that a Full Bench should deal with the notices of motion, leading to the decision in Inspector Hamilton v John Holland Pty Ltd [2009] NSWIRComm 26. 128 The issue is whether s 193 was not available to her Honour, and so her orders were made without power, because what occurred was within "references to the Full Bench of the Commission in Court Session" in s 196(1). If it was, s 193 did not apply, and any power to refer was to be found in the Criminal Appeal Act 1912. 129 Nowhere else in the Industrial Relations Act is there provision for reference to the Full Bench by a member of the Commission. What is meant by a references to the Full Bench in s 196(1) is informed by the application, by s 196(2), of the Criminal Appeal Act "to any such … reference in the same way as it applies to … [a] reference to the Court of Criminal Appeal … ". 130 The only relevant provision of the Criminal Appeal Act is s 5AE. It does not use the language of reference to the Court of Criminal Appeal. It speaks of submission of a question of law arising at or in reference to proceedings to the Court of Criminal Appeal. Thus in s 196(2) "reference to the Court of Criminal Appeal" is used in a general sense, as a means of having the Court of Criminal Appeal determine a question, and not with respect to a power to refer expressed in those terms. 131 Giving the same scope to references to the Full Bench in s 196(1), s 193 provides a means (and the only means) of having the Full Bench determine a matter or question. What occurred pursuant to s 193 was within those words. 132 By force of s 196(1), therefore, s 193 was not available to her Honour. As the Chief Justice explains, proceedings such as those brought against John Holland were to be dealt with in the same manner as criminal proceedings taken before a Judge of the Supreme Court in its summary jurisdiction. There could have been submission of a question of law to the Court of Criminal Appeal pursuant to s 5AE of the Criminal Appeal Act, but that is not what was done. 133 It was not submitted that, if her Honour's orders were ineffective, the decision of the Full Bench was nonetheless a valid exercise of jurisdiction. On that basis, the decision of the Full Bench has no legal effect.

[60]

(a) "Adequate" etc 135 The submissions of both John Holland and Parsons Brinckerhoff considerably relied on "adequate", "adequately" and in the case of Parsons Brinckerhoff "sufficiently" in the statements of the charges, as not identifying the acts or omissions of the applicants and specifying the particular measures which each should have taken. The applicants particularly relied on the view of the High Court in Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 that the fourth particular, referring to operation of the ATV by persons "with appropriate training", did not identify what should have been done to avoid exposure to risk from the use of the ATV. 136 "Appropriate" in Kirk v Industrial Court of New South Wales was a word without a readily available standard, and gave no assistance in identifying what was not done which if done might have prevented the accident. Other than appropriateness for safe use, at an uninformative level of generality, it had little content. 137 "Adequate", "sufficient" and cognate expressions in the present cases readily lend themselves to standards found in tunnelling practice and avoidance of collapses such as that which occurred. It is not the case that words in the statement of an offence of the kind complained of necessarily mean that the act or omission on which the prosecution relies, and what the accused should have done, is not identified. Whether the shotcrete was of "adequate" thickness (John Holland para (c)(ii)), for example, is a matter illuminated by expert evidence of tunnelling practice. It is a fact for the prosecution to establish, and one which the applicants can contest. 138 A cautionary illustration may be found in Downey v Acting District Court Judge Boulton (No 5) [2010] NSWCA 240, decided on 15 September 2010 after the hearing in the present cases. 139 The offences with which Ms Downey was charged included an offence under s 8(1) of the Prevention of Cruelty to Animals Act 1979, which states an offence of failing to provide an animal with food, drink or shelter "which … is proper and sufficient". The court attendance notice used the terms of s 8(1), with a period and place of the offence and particulars that a cow was "without proper and sufficient foot for over a period of about 4 weeks which contributed to its poor body condition". Basten JA, with whom Allsop P and Macfarlan JA agreed, said - "48 The applicant's complaints in respect of this charge were that it failed to specify that which was not supplied, contenting itself with the words of the section ('food which is proper and sufficient') and, as a consequence, failed to identify that which it was reasonably practicable to provide. The applicant sought to draw an analogy with the circumstances in Kirk . 49 The analogy with Kirk is superficial only. Further, care must be taken in seeking to rely upon supposedly analogous factual situations in a higher court, as giving rise to a precedent, rather than the precedent being found in the legal principle to be applied in assessing such facts. In Kirk , there were real issues as to what steps the employer should have taken to ensure the safety of its experienced farm manager who was driving the all-terrain vehicle (the ATV). Not only did the uncertainty as to the prosecution case make it (at least) difficult for the defendant to identify whether the relevant steps would have been reasonably practicable, but it also created a difficulty in establishing a causal link between the relevant omissions and the accident. For example, it might have been necessary to ask whether the training which had not been provided would have taught the deceased anything about the vehicle which he did not already know. In the present case, the charge made clear that that which had not been supplied was proper and sufficient food. It was further alleged that that omission contributed to the poor body condition of the animal which, at least by necessary inference, constituted an allegation that whatever had been provided was not both 'proper and sufficient'. 50 It followed that the essential elements of the offence were addressed in the charge. The nature of the feed required by cattle, and its availability in the area at the relevant time, would have been matters for evidence. If particulars had been sought, a court may have directed the prosecutor to give them. None were sought, either in the Local Court or the District Court." 140 The circumstances were different from the present cases. The point made is that it must be asked in each case whether the charge sufficiently makes known what the accused failed to do and should have done. 141 As the Chief Justice says, the use of general expressions may give rise to an application for further and better particulars. There may be occasion for the applicants to ask for and the prosecution to provide further particulars of the prosecution's case, for example, of how thick the shotcrete should have been and why. But that does not mean that the statements of the charges failed to charge an offence or state the nature of the offence, or to identify offending conduct.

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Cases Cited (21)