//
[2014] QSC 56
General information, not legal advice.
Supreme Court of Queensland
2014-04-07
Jackson J
Original judgment source is linked above.
ADMINISTRATIVE LAW - PREROGATIVE WRITS AND ORDERS - CERTIORARI - GENERALLY - where complaint made of offence under Workplace Health and Safety Act 1995 (Qld) - where application to strike out charges dismissed and appeal dismissed - where applicant alleges failure to particularise acts or omissions constituting the offence - whether complaint inadequately pleaded or particularised - whether defect capable of cure by amendment - whether complaint invalid - whether decisions attended by jurisdictional error
Industrial Relations Act 1999 (Qld), s 289, s 290, s 291, s 677, s 682, s 683
Workplace Health and Safety Act 1995 (Qld), s 24, s 26, s 27 s 28, s 30, s 164, s 166
Area Concrete Pumping Pty Ltd v Inspector Barry Childs (Workcover) [2012] NSWCA 208; (2012) 223 IR 86, applied
Attorney-General of New South Wales v Built NSW Pty Ltd [2013] NSWCCA 299, applied
Barnes v Cameron; ex parte Cameron [1975] Qd R 128, cited
Davies v Andrews (1930) 25 Tas LR 84, cited
De Romanis v Sibraa (1977) 2 NSWLR 264, referred to
GPI (General) Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 157; (2011) 207 IR 93, applied
Hopgood v Burns [1944] QWN 49, cited
John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 503, considered
Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531, distinguished
Lodhi v The Queen [2006] NSWCCA 121; (2006) 199 FLR 303, referred to
McConnell Dowell Constructors (Aust) Pty Ltd v Environment Protection Authority [2000] NSWCCA 367; (2000) 50 NSWLR 127, referred to
NK Collins Industries Pty ltd v President o f the Industrial Court of Queensland [2010] QSC 373, cited
NK Collins Industries Pty ltd v President f the Industrial Court of Queensland [2012] QSC 147, cited
NK Collins Industries Pty Ltd v President of the Industrial Court of Queensland [2013] QCA 179, applied
R v Australian Broadcasting Tribunal; ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13, cited
R v Trifillis [1998] QCA 416, cited
Legal & Prosecution Services Office of Fair and Safe Work Queensland for the respondent
[1] Jackson J: Karimbla Constructions Services Pty Ltd applies for orders in the nature of certiorari quashing two decisions. One was made by the second respondent in his capacity as a magistrate constituting the Industrial Magistrates Court. On 14 September 2012, the second respondent dismissed an application to strike out a charge or charges brought against the applicant in the Industrial Magistrates Court of Queensland by the third respondent, Neil Raymond Garaty as complainant. The second decision was made by the first respondent constituting the Industrial Court of Queensland. On 24 May 2013, the first respondent dismissed an appeal against the dismissal of the application to strike out the complaint.
[2] It is relevant to note that the second respondent contemporaneously dismissed an alternative application for further and better particulars of the complaint. The first respondent allowed the applicant's appeal against that decision and remitted the matter to the industrial magistrate to hear and determine according to law.
[3] The substance of the applicant's challenge to the validity of the complaint is that it fails to allege acts or omissions constituting the events charged. The relevant part of the complaint[1] is set out below:
"THE COMPLAINT of Neale Raymond GARATY of Brisbane in the State of Queensland a Public Officer within the meaning of the Justices Act 1886 and an Inspector duly appointed under the provisions of the Workplace Health and Safety Act 1995 made this 1st day of June 2009, before the undersigned, a Justice of the Peace for the said State, who says
...that between the 1st day of June 2008 and the 22nd day of June 2008, at Broadbeach, in the Magistrates Court District of Southport KARIMBLA CONSTRUCTION SERVICES PTY. LIMITED (A.C.N 093 419 875) being the person in control of a workplace and on whom a workplace health and safety obligation prescribed by section 30 of the Workplace Health and Safety Act 1995 is imposed, failed to discharge that obligation contrary to section 24(1) of the Workplace Health and Safety Act 1995 in that being a person in control of a workplace the said KARIMBLA CONSTRUCTION SERVICES PTY. LIMITED (A.C.N 093 419 875) failed to ensure the risk of injury or illness from any plant or substance provided by the person for the performance of work by someone other than the person's workers is minimised when used properly.
Place of Work: Construction site located corner of Elizabeth Avenue and Surf Parade, Broadbeach
Persons: Christopher James GEAR, Steven Frank SAYER, Michael MOORE, Richard PENHALLURICK, Shane FRAMTON
The risk is the risk of death or injury to persons, including the risk of multiple bodily injuries to Christopher James GEAR and Steven Frank SAYER.
The source of the risk emanates from the system of work adopted for the use of plant, namely swing stages, to undertake work at the place of work, and includes -
AND IT IS ALLEGED that as a result of the failure to discharge the workplace health and safety obligation Christopher James GEAR and Steven Frank SAYAR sustained injuries proving fatal.... "
[4] The application to this court is made in its supervisory jurisdiction exercising the constitutionally entrenched power to grant an order in the nature of certiorari quashing a decision of an inferior court for jurisdictional error. This court's power to grant that relief continues notwithstanding the privative affect of relevant statutory provisions.[2]
[5] The first and second respondents took no part in the proceeding in accordance with the Hardiman[3] principle. As the argument developed between the applicant and the complainant, the questions for decision resolved into three points:
1. Is the complaint defective because it fails to allege or particularise the acts or omissions set to found the charge?
2. Is such defect incapable of a cure by the provision of particulars or amendments?
3. Does such a defect attract an order in the nature of certiorari quashing the decision or orders of the first and second respondents?
[6] It will be necessary to precisely identify the relevant statutory provisions and legal principles. But it is worth mentioning at the outset that the context of the present dispute is that the complaint alleges the offence occurred between 1 June 2008 and 20 June 2008. The complaint and summons were issued on or about 2 June 2009 and the limitation period expired on 20 June 2009.[4] Accordingly, if the complaint is defective, incapable of amendment or particularisation and invalid, the applicant will not face a further proceeding over the same subject matter.
[7] The present case is concerned with the operation of sections 24 and 30 of the now repealed Workplace Health and Safety Act 1995 (Qld) ("WHSA"). Although repealed, those provisions continue to operate for a contravention in 2008. Those sections provide in part:
(1) A person on whom a workplace health and safety obligation is imposed must discharge the obligation.
(2) Subsection (1) applies despite Criminal Code, sections 23 and 24.
30 Obligations of persons in control of workplaces
(1) A person in control of a workplace has the following obligations -
(b) to ensure the risk of injury or illness from any plant or substance provided by the person for the performance of work by someone other than the person's workers is minimised when used properly;
person in control of a workplace does not include the occupier of domestic premises."
[8] As appears from its text set out above, s 30(1)(b) imposes obligations upon a category or class of person, namely a person in control of a workplace who provides any plant or substance for the performance of work by someone other than the person's workers. The obligation is an obligation to ensure that a state of affairs is achieved. The state of affairs is that the risk of injury or illness from the plant or substance is minimised when used properly. That is the obligation which the complaint alleges was not discharged by the applicant.
[9] Division 2 of Part 3 of the WHSA contains other obligations to ensure workplace health and safety which are imposed on particular persons. There are other such obligations in s 30. As well, s 28 provides for wide-ranging obligations to ensure the workplace health and safety of workers and other persons affected by the conduct of a business or undertaking, as follows:
"28 Obligations of persons conducting business or
(1) A person (the relevant person) who conducts a business or undertaking has an obligation to ensure the workplace health and safety of the person, each of the person's workers and any other persons is not affected by the conduct of the relevant person's business or undertaking.
(2) The obligation is discharged if the person, each of the person's workers and any other persons are not exposed to risks to their health and safety arising out of the conduct of the relevant person's business or undertaking.
(a) whether or not the relevant person conducts the business or undertaking as an employer, self-employed person or otherwise; and
(b) whether or not the business or undertaking is conducted for gain or reward; and
(c) whether or not a person works on a voluntary basis."
[10] An obligation imposed under pt 3 of the WHSA is defined as a "workplace health and safety obligation".[5] The failure to discharge such an obligation contravenes s 24(1). Relevantly, s 24(2) engages or applies subsection (1) despite the operation of sections 23 and 24 of the Criminal Code. Section 23 of the Criminal Code, in the form relevant at the time of this complaint, provides for the criminal responsibility for an "act or omission" that occurs independently of a person's will or by accident. Section 24 provides for the person's criminal responsibility for an act or omission done under an honest and reasonable but mistaken belief in the state of things.
[11] Thus, the assumption on which s 24(1) of the WHSA proceeds is that the failure to discharge an obligation under s 30(1)(b), among others, will be constituted by acts or omissions. Consistently with that, s 164(2) of the WHSA provides that multiple contraventions of a relevant obligation under pt 3 may be charged as single charge "if the acts or omissions giving rise to the claimed contravention" happen within the same period and at the same workplace.
[12] From the text of the complaint set out above, it can be seen that it does not allege much in the way of acts or omissions constituting a failure to discharge the obligation to ensure the risk of injury or illness from any the relevant plant was minimised. The statement of the charge in the complaint alleges failure to discharge the obligation under s 30 contrary to s 24(1) in that the applicant failed to ensure that the risk was minimised. The particulars of the charge identify the place, the persons other than the applicant's workers and the plant which are the subject of the charge. They also allege the risk of injury or illness as the risk of death or injury including the risk of multiple bodily injuries to two of those named persons.
[13] Beyond that, the particulars of the charge allege that the source of the risk emanates from the system of work adopted for the use of the plant. That is alleged to include the systems for ensuring workers or other persons were inducted into the safe use of the plant and the system for ensuring the plant was used in accordance with available appropriate information and/or advice as to its use. But up to this point in the analysis, no act or omission is alleged which constituted the alleged failure to discharge the obligation to ensure the risk of injury or illness from the relevant plant is minimised.
[14] The only allegation which arguably goes to that question is the particular that the risk emanates from the system adopted and includes lack of a system of inspection to ensure that the relevant plant was being used by workers and others in accordance with the manufacturers or suppliers or erectors instructions.
[15] In my view, that single allegation is an allegation of an omission which could constitute the failure to discharge the obligation to ensure the risk of injury or illness was minimised from any plant or substance provided by the applicant for the performance of work by someone other than the applicant's workers, when used properly.
[16] Before the second respondent, the first respondent and on this application, the applicant submitted that the complaint is insufficient as a matter of law because a defendant is entitled to be told not only of the legal nature of the offence with which it is charged but also the particular act matter or thing alleged as the foundation of the charge.
[17] The applicant relied on John L Pty Ltd v Attorney-General (NSW)[6] for the proposition that a complaint can be quashed as insufficient in law and invalid if it fails to inform the justices before whom it is laid of the nature of the offence and the manner in which it had been committed.[7] By reference to that and other cases,[8] the applicant submits that a deficiency in particulars may be so fundamental as to affect the very validity of the complaint on the footing that there is a difference between "essential factual ingredients", on the one hand, and those particulars required by an accused merely to ensure that he or she could properly prepare her defence" on the other hand.[9]
[18] The essential step in this reasoning is that the complaint alleges no acts or omissions on the part of the applicant such as to constitute the offence. The applicant relies on the first respondent's decision as supporting that contention in the following passage:
"The words of the first dot-point seemed to me to be tolerably clear. The failure to minimise is said to lie in the lack of ... a 'system of inspection'. Whilst neither an act or omission is particularised, the failure sought to be penalised is crisply identified."
[19] The applicant submits that the failure to identify an act or omission is fatal. That was not the view of the first respondent who ultimately found:
"The language of the act is not user-friendly. It is largely about results and outcomes. Certainly that is the thrust of each of sections 30(1) and 30C of the Act. To look for the acts or omissions which are the essential factual ingredients of the offences is to treat the legislative scheme with scant respect. However, rejection of the submissions about validity does not resolve the issues about fairness."
[20] The precise process of reasoning employed by the first respondent is not clear. However, it seems to me that his Honour asked the right question, namely whether the essential factual ingredients are pleaded for a case of the breach under s 24 of the obligation at s 30(1)(b) of the WHSA. The analysis in par [14] of his reasons of the three dot-points appearing in the particulars of the charge focuses on the relevant part of the complaint. His Honour found that there was no act or omission particularised in first dot-point, although he thought it "crisply identified" the failure sought to be penalised. What is precisely meant by that is not clear to me. As to the other dot-points, he did not expressly find that no act or omission was particularised, but that conclusion follows from the discussion in par [14].
[21] As mentioned above, the applicant relies on the contention that unless the complaint specifies relevant acts or omissions it is invalid. It is necessary to identify the legal framework against which that contention is to be analysed.
[22] Section 164 of the WHSA provides that a prosecution for an offence against the Act is by way of summary proceedings before an industrial magistrate. The expression "industrial magistrate" properly construed, means the Industrial Magistrates Court.[10]
[23] Section 677 of the Industrial Relations Act 1999 (Qld) provides that: "[t]he provisions of this Act providing for the powers of and procedures before... an Industrial Magistrates Court apply in relation to the jurisdiction of the... Industrial Magistrates Court under... another Act, unless the contrary intention appears". The Industrial Magistrates Court is a court of record,[11] constituted by a magistrate sitting alone.[12] Proceedings for an offence under the Industrial Relations Act 1999 may be heard and decided by a magistrate,[13] meaning an industrial magistrate,[14] in turn meaning the Industrial Magistrates Court. The proceedings are to be heard and decided under the Justices Act 1886 (Qld) ("JA")[15] Thus, a prosecution for an offence under the WHSA is to be heard and decided under the JA.
[24] All proceedings under the JA shall be commenced by a complaint in writing, except where otherwise expressly provided or where the defendant has been arrested without warrant.[16]
[25] The contents of a complaint are provided for in ss 43-47 of the JA. Such description of persons or "things" as would be sufficient in an indictment shall be sufficient in a complaint.[17] The description of any offence in the words of the Act, or in similar words, shall be sufficient in law.[18]
[26] The reference to a description of "things" as shall be sufficient in an indictment may pick up the rules governing the form of indictments as to description. That was the view of Kennedy Allen.[19] The generally relevant provision is set out in s 564 of the Criminal Code as follows:
(1) An indictment... must, subject to the provisions hereinafter contained, set forth the offence with which the accused person is charged in such a manner, and with such particulars as to the alleged time and place of committing the offence, and as to the person (if any) alleged to be aggrieved, and as to the property (if any) in question, as may be necessary to inform the accused person of the nature of the
(3) It is sufficient to describe an offence in the words of this Code or of the statute defining it..."
[27] Rule 15 of the Criminal Practice Rules 1999 (Qld) provides:
The statement of an offence in an indictment, complaint or other document may be in the words of -
(b) if there is no schedule form for the offence, the... Act creating the offence."
[28] Section 48 of the JA contains the following power of amendment:
If at the hearing of a complaint, it appears to the justices that -
(a) there is a defect therein, in substance or in form, other than non-compliance with the provisions of section 43; or
(b) there is a defect in any summons or warrant to apprehend a defendant issued upon such complaint; or
(c) there is a variance between such complaint, summons or warrant and the evidence adduced at the hearing in support thereof;
(d) if an objection is taken for any such defect or variance - the justices shall:
(e) if no such objection is taken - the justices may:
make such order for the amendment of the complaint, summons or warrant as appears to them to be necessary or desirable in the interests of justice."
[30] These statutory provisions inform the requirements for the allegations that must be made in a complaint for an offence alleging contravention of ss 24(1) and 30(1)(b) of the WHSA. Their operation is informed by a long history of similar provisions, earlier statutes and common law as to the jurisdiction of magistrates and justices of the peace given power to try convict and punish for certain offences. It may have been true, as was said by the Full Court of the Supreme Court of Tasmania in 1930, that:
"... to-day, just as much in the year 1327, no justice has any jurisdiction to try any man, until that man has been charged with some offence which the justice has power by statute to try. And in putting the matter thus, one is stating no mere technicality. The right of a complainant, who has laid a good complaint, is to have another man peremptorily summoned to leave his work, and, on a certain day, to go to the Police Court, and there stand in jeopardy of being fined, or perhaps, imprisoned, on the charge which is set out in the summons. The argument that a justice should 'amend' a complaint which discloses no legal charge, I think, means much more than genuine amending. It means that the justice, on the bench, at the trial, must draw up for the complainant the charge which the complainant should have laid ..."[22]
[31] However, such statements must be assessed against the statutory provisions and common law which apply to the case at hand. The validity of the complaint in the present case is to be gauged against the statutory framework set out above. The point is illustrated by the decision in John L referred to above. As was said by the majority:
"The nineteenth century United Kingdom legislation which was enacted to render summary proceedings before justices less open to technical objection (see, in particular, Jervis' Act 1848 11 & 12 Vict c 43, ss 1 and 3 and the Summary Jurisdiction Act 1879 42 & 43 Vict c 49, s 39) was substantially adopted in New South Wales (see the discussion in Ex parte Lovell; Re Buckley, at 167-74 and, in particular, Justices Act 1902 (NSW) ss 65 and 145 A). One can point to statements of authority which lend support for the view that that legislation did not go so far as to abrogate the requirement that a valid information must at least identify the essential factual ingredients of the actual offence (see, eg, Smith v Moody [1903] 1 KB 56 at 60; Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467 at 486-7, 501; Ex parte Graham; Re Dowling (1968) 88 WN (Pt 1) (NSW) 270 at 280). It is, however, unnecessary to pursue that particular question here since, putting to one side s 6 of the Summary Jurisdiction Act to which detailed reference is subsequently made, it is not suggested that Yeldham J was in error in holding that such of those legislative provisions which might have operated to cure the defect in the information in the present case were not applicable in respect of an information laid before, or to proceedings in, the Supreme Court in its summary jurisdiction. That being so, the common law requirement remains that an information must at the least condescend to identifying the essential factual ingredients of the actual offence"[23]
[32] Thus, the majority in John L proceeded on the basis of the common law requirement. In contrast, this case is to be decided by reference to the provisions of the JA and the Criminal Code which the JA picks up as set out above.[24]
[33] A valid complaint, although in need of amendment, is one which ex hypothesi engages the jurisdiction of the Industrial Magistrates Court in a prosecution for an offence under s 164(1) of the WHSA. The precise question at hand is where the line is to be drawn between a complaint which contains allegations that would not be sufficient in an indictment but are capable of amendment and one that is so defective that it is incapable of amendment, in the context of an alleged contravention under ss 24 and 30(1)(b) of the WHSA.
[34] The applicant relies on Kirk in support of the conclusion that the complaint in the present case suffers from a fatal defect because of a lack of allegations of acts or omissions constituting the offence. However, Kirk does not answer the question. There are several reasons.
[35] The offence provisions considered in Kirk were contained in New South Wales legislation. Section 15(1) of the Occupational Health & Safety Act 1983 (NSW) provided that: "[e]very employer shall ensure the health safety and welfare at work of all the employer's employees." Broadly speaking, it corresponded to s 28(1) of the WHSA, although its operation was confined to employees. Of course, different statutory provisions regulated the bringing of proceedings to prosecute an offence under the NSW Act. One of the relevant provisions in Kirk required that an application for an order under the relevant Summary Jurisdiction Act should identify the nature of the offence that was alleged.[25] Broadly speaking, it corresponds to s 564(1) of the Criminal Code. Nonetheless, in the plurality reasons for judgment, reference was made to the common law requirement that a defendant is entitled to be told not only of the legal nature of the offence with which he or she is charged but also the particular matter or thing alleged as the foundation of the charge.[26]
[36] However that may be, Kirk did not decide that an application brought under the New South Wales comparators of the provisions set out above was invalid in such a way that it was incapable of amendment. In Kirk, the case had proceeded to judgment. An order had been made convicting the defendant. There was no occasion to consider whether the application would have been capable of amendment before judgment. The plurality said this:
"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 ... 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 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."[27]
[37] At one point, it was thought that the reasoning in Kirk may not fully apply to a contravention of s 24(1) of the WHSA based on failure to discharge a workplace health and safety obligation imposed under s 28 because of differences in the legislation.[28] However, that view was rejected by the Court of Appeal in NK Collins Industries Pty Ltd v President of the Industrial Court of Queensland.[29] The contention that s 24(1) did not, properly construed, require the actual nature of the contravention to be identified was rejected as one which "can only produce uncertainty".[30] After NK Collins Industries, it must be accepted that a properly pleaded complaint must allege particulars of the acts or omissions constituting the offence under s 24(1) of failing to discharge a particular workplace health and safety obligation.
[38] However, that conclusion does not answer the question whether the complaint in the present case is so defective as to be invalid and incapable of amendment.
[39] Another important consideration in a case like the present is the role of the statement of the elements of a charge in a complaint, on the one hand, and the role of particulars of the charge on the other hand. It is perhaps trite to say so, but may be worth repeating that the function of particulars is not to substitute for the statement of the elements of the offence of the charge in question. In a criminal setting, particulars enable the accused to know the facts of the case which he or she is called on to meet. They also reveal whether the charge is duplicitous. Many of the cases concern that question. The distinction was discussed in R v Trifillis,[31]by Chesterman J (as he then was):
**"**The function of particulars is to enable an accused to know the nature of the charge which he is called on to meet. See R v Juraszko [1967] Qd R 128 at 135 per Stable J (with whom on this point Gibbs J agreed)...
The same conclusion as to the function of particulars was arrived at by Hunt A-JA in R v Saffron (1989) 17 NSWLR 395 at 445-9. The point was discussed at a little more length than in Juraszko but, in essence, it was thought that the function of particulars is the same in criminal as in civil cases. Hunt A-JA said:
'In a civil case, particulars once given cannot circumscribe or modify the cause of action upon which the plaintiff sues ... . The function of particulars in such a case is simply to relieve the other party of the need to investigate the issues of fact not identified by the particulars, or to show what will be put forward as constituting the case which has been pleaded ... . Where a party seeks to lead evidence in support of his pleaded case which is outside the particulars which have been supplied in support of that case, it is for the trial judge to consider whether such evidence unfairly amounts to a case of which the other party has had insufficient warning ... . It is a matter within the discretion of the trial judge whether to permit the evidence ... or to hold the party whose particulars were deficient to the issues of fact to be investigated as limited by those particulars ... . The exercise of that discretion must necessarily depend upon many things, including the amount of warning which the other party has had that such evidence was to be led. The relief which is granted to a party at the trial must in the end be founded on the pleadings and not upon any particulars which have been given of the matters alleged in those pleadings ... .
The appellant argues that the principles relating to particulars in criminal cases are different to those applicable in civil cases. No authority was produced for that submission. Nor is it easy to see why that should be so.
Certainly, an accused's entitlement to particulars in a criminal case is the same as a defendant's entitlement in a civil case. An accused is not able to plead to the charge unless he knows the precise case which is the basis for the charge preferred against him ... .
Where the relevant particulars are not stated in the indictment (because the necessity to do so has been dispensed with by statute), an accused is entitled to have identified the specific transaction upon which the Crown relies and to be appraised not only of the legal nature of the offence with which he is charged but also the particular act, matter or thing alleged as the foundation of the charge ... .'"[32]
[40] It is useful in the present case to strip away all but the critical parts of the text of the complaint and the particulars. The charge follows the language of the statutory offence under ss 24(1) and 30(1)(b) when it alleges that the applicant "failed to ensure the risk of injury or illness from any plant ... is minimised when used properly". That form of charge is "in the words of... the statute defining it" and "[is] in the words of... the... Act creating the offence". That allegation is a relevant element of the offence under ss 24(1) and 30(1)(b). It is that essential allegation which the applicant submits has not been sufficiently particularised by failure to allege the relevant acts or omissions constituting it.
[41] The only arguable particular of that allegation is that "the source of the risk emanates from the system of work adopted ... and includes ... lack of a system of inspection to ensure the said plant was being used by workers and others in accordance with the manufacturers or suppliers or erectors instructions". In my view, that particular alleges that the failure to ensure the risk was minimised was constituted by the failure to have a system of inspection. In my view, that is an allegation of an omission constituting the offence. On the other hand, in my view, and with all respect to the first respondent, it is not a clear or crisp allegation. It is yet unclear because it does not identify what system of inspection should have been adopted.
[42] Nevertheless, in my view, the lack of clarity as to the system of inspection that should have been adopted does not mean that the omission which constitutes the offence is not indentified.
[43] In my view, it should also be borne in mind that there are specific provisions in sections 26 and 27 of the WHSA that regulate how a particular obligation may be discharged. Thus, sections 26(1) and (2) specifically direct the only ways that a workplace health and safety obligation may be discharged in a case where a regulation or ministerial notice prescribes a way of preventing or minimising exposure to a risk or prohibits exposure to a risk. In like fashion, s 26(3) provides that a workplace health and safety obligation may only be discharged in one of two alternative ways if a code of practice states a way of managing exposure to a risk. Further, s 27 provides a way in which a person may discharge a workplace health and safety obligation for exposure to a risk if there is not a regulation or ministerial notice prescribing a way to prevent or minimise exposure to the risk or a code of practice stating a way to manage it.
[44] Thus, where a complaint is made of a contravention of s 24(1) by failure to discharge a workplace health and safety obligation to minimise a risk for which a regulation or ministerial notice prescribes the way of preventing or minimising exposure to the risk, in my view, the complaint must allege that the risk was not minimised by following the prescribed way. Equally, where a code of practice states a way of managing exposure to a risk and it is proposed to rely upon the code of practice as not having been adopted or followed by a defendant it seems likely that the complaint must allege that fact as well as failure by the defendant to do the acts identified in s 26(3)(i)-(ii).
[45] In the present case, the parties did not specifically address these points. I have assumed that there is no relevant regulation or ministerial notice. Neither of the parties submitted to the contrary. Also, I have assumed there is no relevant code of practice in the present case. Neither of the parties submitted or adduced any evidence that there was.
[46] It follows that the present case is one within s 27 of the WHSA. On that footing, it can be seen that one method of discharging the obligation under s 30(1)(b) to ensure the risk of injury or illness from any plant is minimised when used properly would be by compliance with the measures prescribed in s 27(2). However, that is not the only way in which the obligation can be discharged. Accordingly, in my view, it is not necessary for the complaint to allege non-compliance with those measures.
[47] I notice that s 37 of the WHSA provides that it is a defence in a proceeding against a person for a contravention of an obligation imposed under, inter alia, s 30(1)(b) for the person to prove that the person adopted or followed the ways of discharging the obligation set out in s 37(1)(a)-(c). My provisional view is that s 37 does not have the effect that the prosecution is relieved from the requirement to plead that a defendant failed to discharge a workplace health and safety obligation when a relevant regulation, ministerial notice or code of practice applies, by failing to comply with the regulation, ministerial notice or code of practice. It is, however, unnecessary to resolve that question in the present case, and therefore undesirable to state my reasons on that point more fully.
[48] The applicant submitted that the complaint was wholly invalid. As previously mentioned, it relied on John L and other cases in support of the contention.
[50] In each of those cases, a defendant contended that an application under the comparator legislation of New South Wales that failed to allege the acts or omissions constituting the relevant offence was invalid, because the failure violated the requirement to do so as expounded in Kirk. In each case, the NSW Court of Appeal concluded that the application was valid and capable of amendment.
[51] In GPI (General), the court considered the effect of a power of amendment contained in s 170 of the NSW Industrial Relations Act 1996 (NSW) that the Industrial Commission may make any amendment to the proceedings it considered to be necessary in the interests of justice. As well, s 11 of the Criminal Procedure Act 1986 (NSW) provided that the description of an offence in the words of an Act was sufficient in law, s 16(2) provided that no objection was to be allowed to any indictment[36] on the grounds of any alleged defect in it in substance or in form and s 21(1) provided that if an indictment that was defective could be amended without injustice the court may make such order of amendment as it thinks necessary.
"... the High Court in Kirk held that s 11 did not dispense with the necessity for the defendant not only to be told of the legal nature of the offence but also of the particular act, matter and thing alleged as the foundation of the charge: see Kirk at [26]-[30]. The High Court did not rule that this particularisation had to occur at the time the charge was first brought, but based its decision on the point that the matter should not have proceeded without further particularisation.
It is true that in John L, a majority of the High Court held that a lack of particularity in a charge as originally brought was fatal, but it also held that provisions of the nature of ss 11 and 16(2) of the CP Act did not apply. In Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467, it was plainly contemplated that the common law requirement of particularisation could be satisfied by various means, not limited to full particularisation in the complaint or charge itself: see at 490 per Dixon J, at 497-8 per Evatt J, and at 501 per McTiernan J.
Accordingly, in the present case, if the particulars of the charges as given in the original charges were deficient, particulars could be provided in other ways.
Further, in this case there is an outstanding application to amend the charges. It seems clear that such an amendment can be granted, at least unless it were to substantially change the nature of the charge: see CP Act ss 20 and 21 (read with the definition of "indictment" in s 15(2), IR Act s 170.)"[37]
"...the applicant invites this Court to proceed on the basis that particulars adequate to comply with Kirk could not save the proceedings, despite the powers of the prosecutor to 'amend' the charges at any stage, pursuant to s 170 of the Industrial Relations Act. The applicants' argument must be that, because the statutory time limit precludes the prosecutor filing fresh charges, the power of amendment does not extend to the addition of essential factual allegations...
In circumstances where no irreparable procedural unfairness has been suffered by the applicants (they not having faced trial or yet pleaded to the charges) and where that which constitutes an essential factual allegation, as opposed to a desirable degree of particularisation of facts alleged, is a distinction involving matters of evaluative judgment, the contention should be rejected. The underlying and important premise of criminal pleading is that no person should be convicted without procedural fairness, nor for an offence not known to the law. Neither principle will necessarily be breached: the orders by which the proceedings were commenced were not invalid."[38]
[54] In Area Concrete, reference was also made to the powers of amendment under the NSW Criminal Procedure Act 1986, ss 20 and 21. Bathurst CJ said:
"In these circumstances GPI (General), in my opinion, is authority for the proposition that a failure to adequately particularise a charge will not without more render it a nullity and that having regard to the provisions of s 16(2) of the [Criminal Procedure Act 1986 (NSW)] and s 170(3) of the [Industrial Relations Act 1996 (NSW)], defects can be cured by amendment to the charge or subsequent particularisation, at least provided the charge describes an offence known to law and that procedural unfairness is not caused to the defendant by the amendment."[39]
[55] As well, in Area Concrete, one of the particulars identified that the employee did not sight a copy of a formwork certificate before commencing to pour concrete. It was held that was a particular of the alleged failure to provide training or instruction. Bathurst CJ held that if a valid particular was required to preserve validity of the application, that particular served the purpose.[40] Basten JA was also of that view.[41] His Honour added, on the wider question of whether amendment could be permitted:
"In accordance with the principle stated in Owners of the Ship Shin Kobe Maru, a statutory provision which permits amendment of a charge by particularisation, at any time, should not be subject to implied limitations which would prevent a prosecutor identifying a legitimate offence and which would allow a possible offender to escape penalty where he or she could have been required to stand trial without unfairness."[42]
[56] Built NSW was not concerned with a failure to allege acts or omissions constituting the particulars of an offence of failing to discharge a relevant workplace health and safety obligation. It was concerned with the authority to sign an originating process to start a prosecution. However, Bathurst CJ returned to the subject of concern on the present case in the course of his reasons, as follows:
" In John Holland Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 338; (2010) 202 IR 82 the statement of charge was said to be defective because it failed to identify the act or omission which constituted a contravention of s 8 of the OH&S Act. Spigelman CJ at [45], with whom Beazley JA agreed and Giles JA agreed with additional reasons, noted that the proceedings potentially raised the issue left open in Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 at [30], namely, whether and how s 6(1) of the Summary Jurisdiction Act (the equivalent of s 16(2)) might affect the right to certiorari if an application to quash the charge was made prior to it being heard. After referring to s 246(2) of the CPA and r 217B of the Industrial Relations Commission Rules 1996 (the equivalent of r 26) he made the following comments at [47]:
'[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.'
However, his Honour found the charge was not invalid and did not have to deal finally with the issue.
In GPI (General) Pty Ltd supra at [32]-[26] Hodgson JA, with whom Allsop P agreed, stated that whilst the High Court in Kirk supra decided that the requirement that a statement of offence in the case of omission under s 8 of the OH&S Act required identification of the measures that should have been taken to address the relevant risks, it did not decide this requirement displaced s 16(2) of the CPA or rule when particularisation had to occur. At [78]-[79], Basten JA adhered to the views he espoused in Rockdale Beef.
In Area Concrete Pumping Pty Ltd supra, I endeavoured to summarise the authorities and concluded that a failure to adequately particularise a charge will not, without more, render it a nullity as defects can be cured by amendment of the charge or subsequent particularisation, at least provided that the charge disclosed an offence known to law and that procedural unfairness had not occurred. I also concluded at [47]-[49] that this could extend to an inadequately described offence, but not one that does not disclose an offence known to law. Basten JA at [113] and Hoeben JA at [117] agreed with my reasoning on this issue."[43]
[57] Having regard to those cases, and the statutory provisions under which they were decided, on the one hand, and the terms of the complaint and the statutory provisions which apply in this case, on the other hand, those statements are apt to describe the circumstances of the present case.
[58] In my view, the first dot-point of the particulars is a particular of an omission constituting the offence charged by the complaint under s 24(1) and 30(1)(b) of the WHSA.
[59] In any event, in my view, failure to allege a particular of a relevant act or omission constituting the offence does not render the complaint invalid and incapable of cure by amendment under s 48 of the JA.
[60] Once those conclusions are reached, in my view the applicant is unable to establish any jurisdictional error on the Kirk principle.
[61] The application must be dismissed. It is unnecessary to consider the relative positions of the first respondent and the second respondent, if there had been jurisdictional error in failing to strike out the complaint against the applicant.
[1] Part of the complaint, in an alternative form, has been withdrawn or abandoned by the complainant.
[2] Kirk v The Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 ("Kirk").
[3] R v Australian Broadcasting Tribunal; ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13.
[4] Workplace Health and Safety Act 1995 (Qld), s 166.
[8] De Romanis v Sibraa (1977) 2 NSWLR 264, 291; Lodhi v The Queen [2006] NSWCCA 121; (2006) 199 FLR 303, 326 [102] - [104]; McConnell Dowell Constructors (Aust) Pty Ltd v Environment Protection Authority [2000] NSWCCA 367; (2000) 50 NSWLR 127, 132-3 [42].
[9] Lodhi v The Queen [2006] NSWCCA 121; (2006) 199 FLR 303, 326 [102] - [104].
[10] See Part 3 of the Industrial Relations Act 1999 (Qld).
[11] Industrial Relations Act 1999 (Qld), s 289.
[12] Industrial Relations Act 1999 (Qld), s 291.
[13] Industrial Relations Act 1999(Qld), s 683(1).
[14] Industrial Relations Act 1999 (Qld), s 290 and Schedule 5 Dictionary.
[15] Industrial Relations Act 1999(Qld), s 683(2).
[16] Justices Act 1886 (Qld), s 42(1).
[17] Justices Act 1886 (Qld), s 46.
[18] Justices Act 1886 (Qld), s 47(1). This section is commonly referred to as a Jervis' Act provision, see John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42; (1987) 163 CLR 508, 519.
[19] Kennedy Allen, The Justices Act (Queensland), (Brisbane, Law Book Co, 3 ed, 1956), p 116.
[20] Justices Act 1886 (Qld), s 53(1).
[21] Justices Act 1886 (Qld), s 56(1).
[22] Davies v Andrews (1930) 25 Tas LR 84, 87.
[23] [1987] HCA 42; (1987) 163 CLR 508, 519.
[24] See also Barnes v Cameron; ex parte Cameron [1975] Qd R 128, 132; Hopgood v Burns [1944] QWN 49.
[28] NK Collins Industries Pty Ltd v President of the Industrial Court of Queensland [2010] QSC 373; NK Collins Industries Pty Ltd v President of the Industrial Court of Queensland [2012] QSC 147.
[29] [2013] QCA 179, [58] - [59].
[32] [1998] QCA 416, [18]-[19].
[35] [2013] NSWCCA 299. I note that this case was decided a few days after the argument in the present case. However, it follows the same line of reasoning contained in GPI (General) and Area Concrete.
[36] "Indictment" was defined so as to include a criminal information or summary process.
[37] [2011] NSWCA 157; (2011) 207 IR 93, [33]-[36].
[38] [2011] NSWCA 157; (2011) 207 IR 93, 115 [79], 116 [80].
[39] [2012] NSWCA 208; (2012) 223 IR 86, 103 [47].
[43] [2013] NSWCCA 299 [122]-[125].
Karimbla Construction Services P/L
President of the Industrial Court of Qld & Ors [2014] QSC 56
(2012) 223 IR 86
(1977) 2 NSWLR 264
(2011) 207 IR 93
(1987) 163 CLR 503
(2010) 239 CLR 531
(2006) 199 FLR 303
(2000) 50 NSWLR 127
(1980) 144 CLR 13
(1937) 59 CLR 467
(1989) 17 NSWLR 395
(2010) 202 IR 82
(1987) 163 CLR 508