Legge v Coffey Engineering Pty Limited

Industrial Relations Commission (NSW)|2000-12-22|Before: Wright J, Ms P

Industrial Relations Commission of New South Wales in Court Session

CITATION : Legge v Coffey Engineering Pty Limited [2000] NSWIRComm 278 APPELLANT: Inspector Patrick Legge PARTIES : RESPONDENT: Coffey Engineering Pty Limited FILE NUMBER: IRC 5379 of 2000 CORAM: Wright J President; ; Practice and procedure - Application for extension of time in which to appeal - Appeal from acquittal by Industrial Magistrate - Error as to time within which appeal was to be filed - Principles to be applied - Special circumstances - Whether acceptable explanation - Strength of appeal - Justice between the parties - Public interest - Application granted - Costs. CATCHWORDS : Appeal - Application for extension of time in which to appeal - Appeal from acquittal by Industrial Magistrate - Error as to time within which appeal was to be filed - Principles to be applied - Special circumstances - Whether acceptable explanation - Strength of appeal -Justice between the parties - Public interest - Application granted - Costs. LEGISLATION CITED : Industrial Relations Act 1996 s 189 s 197A Occupational Health and Safety Act 1983 s 15 Bishop v R (1982) 40 ALR 40 Comptroller-General of Customs v D'Aquino Bros Pty Ltd (1996) 135 ALR 649 Drake Personnel Ltd t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 Environment Protection Authority v Sydney Water Corporation (1997) 98 A Crim R 481 CASES CITED : LEP International Pty Limited v Caine (1999) 97 IR 35 Salter Rex & Co v Ghosh [1971] 2 QB 597 Van Rooy Machinery Pty Limited v WorkCover Authority of New South Wales (Inspector Wolf) (2000) 97 IR 436 WorkCover Authority of New South Wales (Inspector Dubois) v Concrete Constructions Group Limited (1999) 98 IR 362 WorkCover Authority of New South Wales (Inspector Salmon) v Parkes Council (1996) 70 IR 298 WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 100 IR 64 HEARING DATES: 11/27/2000 DATE OF JUDGMENT: 12/22/2000

APPELLANT: Ms P E McDonald of Counsel Carroll & O'Dea LEGAL REPRESENTATIVES: RESPONDENT: Mr E G Cox of Counsel Bateman Battersby

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

CORAM: WRIGHT J, President Friday 22 December 2000 Matter No IRC 5379 of 2000 INSPECTOR PATRICK LEGGE v COFFEY ENGINEERING PTY LIMITED Application to extend time to appeal and leave to appeal and appeal against a decision of Industrial Magistrate O'Shane given on 10 October 2000 in Matter No 20066613/00

JUDGMENT [2000] NSWIRComm 278 1 This judgment concerns an application by Inspector Patrick Legge (the applicant) to extend time to lodge an application for leave to appeal and notice of appeal against the decision of 10 October 2000 of Ms P O'Shane LCM who, when sitting as an Industrial Magistrate, dealt with a matter in which the applicant was the prosecutor. The particular matter the subject of the application for leave to appeal and appeal, should the application for extension of time be granted, is a decision of her Worship to acquit the respondent (the defendant at first instance) of an offence under s 15 of the Occupational Health and Safety Act 1983. 2 As the proposed appeal is from an acquittal in criminal proceedings pursuant to the Occupational Health and Safety Act , the basis of any appeal, and the powers of the Court to extend time for the lodging of an appeal, are to be found in s 197A of the Industrial Relations Act 1996. That provision is in the following terms: 197A Appeals against acquittals in proceedings for offences against occupational health and safety legislation (1) This section applies to the decision of a member of the Commission or of a Local Court constituted by an Industrial or other Magistrate to acquit a person of an offence against the occupational health and safety legislation.

(2) This section applies to such a decision only if proceedings for the offence were instituted by an inspector appointed under that legislation or with the consent of the Minister or other officer authorised by that legislation to give such a consent.

(3) An appeal lies to the Full Bench of the Commission in Court Session against a decision to which this section applies. The appeal is not limited to a question of law.

(4) The appeal may be made by the Attorney-General, the Minister, the Director of Public Prosecutions or the prosecutor in the proceedings in which the decision appealed against was made.

(5) An appeal may be made within 21 days after the date of the decision appealed against or within such further time (not exceeding 3 months after that date) as the Full Bench or the Commission constituted by a Presidential Member allows. Further time may be allowed, either before or after the end of that 21-day period.

(6) Section 191 applies to an appeal under this section.

(7) On an appeal under this section, the Full Bench may: (a) dismiss the appeal, or (b) set aside the decision appealed against and make a decision in the matter in accordance with law (including the conviction and sentence of the defendant for the offence charged).

(8) If the Full Bench on appeal convicts the defendant of the offence, the maximum penalty that the Full Bench may impose for the offence is the maximum penalty that the court that acquitted the defendant could have imposed for the offence.

(9) This section has effect despite anything to the contrary in section 196 or 197. (10) In this section: occupational health and safety legislation means the Occupational Health and Safety Act 1983, the regulations under that Act or the associated occupational health and safety legislation within the meaning of that Act.

(11) This section does not apply to a decision made before the commencement of this section. Background to the application 3 The application to extend time to appeal contains the following reasons why the appeal was not filed within time: (i) The appellant's solicitors did not receive instructions to proceed with an appeal until Friday 27 October 2000. (ii) The appellant was under a misapprehension that the time period to institute an appeal in this matter was 28 days, not 21 days.

and the following grounds for claiming an extension of time: (i) The appellant has very strong grounds of appeal: (a) Her Worship erred in law in dismissing the information on the ground that particular (c) to the offence had not been proved while not considering whether particulars (a), (b) and (d) had been proved. (b) Her Worship erred in law in her interpretation of the offence created by s 15 of the Occupational Health and Safety Act . (c) Her Worship erred in law in the application of s 15(1) of the Occupational Health and Safety Act . (d) Her Worship's decision that the offence under s 15 of the Occupational Health and Safety Act was not proved beyond reasonable doubt was contrary to evidence and to the weight of evidence. (e) Her Worship erred in failing to provide reasons or adequate reasons. (f) Her Worship denied the Prosecution natural justice in not considering the whole of the Prosecution's case. (ii) The appeal raises important issues of law. (iii) The appeal was filed within 28 days. 4 In support of the application to extend time the applicant has relied upon an affidavit from a solicitor in the employ of the solicitors acting for him. The evidence is that the solicitors received instructions to act for the prosecutor in August 2000, the proceedings having been earlier commenced on 12 November 1999. The matter was heard by her Worship on 23 August 2000 and her Worship's judgment was delivered on 10 October 2000. The next day the solicitors wrote to the Manager of the Legal Services Branch of the WorkCover Authority requesting instructions as to filing an application for leave to appeal from her Worship's decision. On 27 October 2000 instructions were received from the WorkCover Authority by telephone. The solicitors were under a misapprehension that the time to file an application for leave to appeal and appeal in proceedings such as the present was 28 days rather than the 21 days specified in s 197A. Accordingly, an application for leave to appeal and appeal was filed with an application seeking an extension of time to appeal. This occurred within the 28 day period the subject of the misapprehension. The relevant documentation was filed four working days after the time specified in s 197A(5). Submissions of the parties 5 At the hearing the applicant was represented by Ms P E McDonald of counsel and the respondent by Mr E G Cox of counsel. Ms McDonald referred to relevant authorities including the judgment of the Full Bench in WorkCover Authority of New South Wales (Inspector Salmon) v Parkes Council (1996) 70 IR 298 and LEP International Pty Limited v Caine (1999) 97 IR 35. It was submitted that the circumstances demonstrated by the evidence and also the nature of the appeal to be pressed met the criteria set out in the judgment in the Parkes Council case; that there was an acceptable explanation for the delay and special circumstances were established. The special circumstances relied on included the strength of the appeal in that it was said the applicant had a strongly arguable basis for appeal as her Worship had misconstrued authorities of the Court, including the judgment in Drake Personnel Ltd t/a Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432. Further, that her Worship had denied the prosecutor procedural fairness in that she did not consider all of the evidence and submissions that were made on its behalf. In that respect, reference was made to the fact that although all of the particulars in the proceedings originally filed were relied on, her Worship only dealt with one particular. Further, the result in the judgment in the Parkes Council case was clearly distinguishable. Those proceedings were concerned with an appeal from a discretionary decision where the Court found there was not an acceptable explanation for the delay, whereas the present case will depend upon questions of law and questions going to proof of the offence and whether there had been a failure to follow clear authorities of this Court as to such issues. Finally, it was submitted that there was a strong public interest in proceedings where there was a substantial case as to a breach of the occupational health and safety laws being dealt with to finality and in a way which was not tainted by legal error. Reliance was also placed on the fact that the respondent did not assert any prejudice and that the applicant accepted that it would be responsible for the costs of the application to extend time irrespective of the result of the application. 6 Mr Cox strenuously submitted that examination of the evidence relied upon by the applicant failed to demonstrate an adequate explanation of the failure to lodge the appeal in time. Further, that the grant of the application particularly as it was an appeal from an acquittal would be highly exceptional and should not be countenanced. It would be contrary to the decision of the Full Federal Court in Bishop v R (1982) 40 ALR 40 as considered and applied by the Full Bench in the Parkes Council case. The situation here was stronger than in those cases which were concerned with appeals from sentence, not appeals from acquittal. The Bishop case was concerned with an appeal which was filed in time but had been served outside the time required by the relevant rules of court. If the prosecution had been unsuccessful in those proceedings, it is difficult to see how a prosecutor could be successful in proceedings involving an acquittal. The respondent also relied heavily on the fact that if the application was granted it would expose it to double jeopardy; that is exposure to a conviction, or the possibility thereof, twice. Finally, counsel submitted that on a proper analysis of the judgments in Bishop and Parkes Council , what was required was evidence of not only an adequate explanation of delay but also an adequate explanation which demonstrated the exceptional circumstances required. Counsel also submitted that it was unnecessary and inappropriate to consider the prospects of the appeal succeeding in the event that the application was granted. The proceedings before the Industrial Magistrate 7 The proceedings in the Local Court were commenced by the filing of an information in the following terms. The offence alleged was: Breach of section 15(1) of the Occupational Health and Safety Act , 1983. The defendant, Coffey Engineering Pty Ltd on 7th January, 1998, at 2115 Castlereagh Road, Penrith in the State of New South Wales, being an employer, failed to ensure the health, safety and welfare at work of all its employees, in particular Andrew David Jones.

and the full description of the offence set out in the information was: On the said date the defendant, at the said place, being an employer, failed to ensure the health, safety and welfare at work of all its employees, in particular Andrew David Jones, in operating a Circular Saw, in that the defendant: a) Failed to carry out any or an adequate risk assessment into the hazards associated with work to be performed on a circular saw serial No. S1323-5 which machine its employee Andrew David Jones was required to operate; b) Failed to ensure that a safe system of work had been provided and maintained for the operation and use of the circular saw serial No. S1323-5 that would have ensured the health and safety at work of its employee Andrew David Jones; c) Failed to ensure that its employee Andrew David Jones had been adequately trained, provided with relevant information and adequately supervised so as to ensure his safety whilst operating the said circular saw. d) Failed to ensure that plant namely a circular saw on which its employee Andrew David Jones was required to perform work was safe and without risks to health. In particular, it failed to ensure that the riving knife on the said saw complied with clause A1.2.3. of the Australian Standard AS 1473-1991. 8 Her Worship's decision was expressed in a succinct form. She referred to the nature of the offence and certain of the background facts, including the fact that on the day of the alleged offence the victim was a 21 year old Trades Assistant who was performing maintenance and general engineering work at the premises of Crane Enfield Metals Pty Ltd at Penrith when he was injured whilst operating a circular saw. The respondent is a labour hire firm which employed Mr Jones and which had hired labouring staff to Crane Enfield Metals on a regular basis over a period of 20 years. It was common ground before her Worship that "labour was organised on the telephone on a needs basis, in an informal way" and this is what happened on the day in question. Mr Jones had not previously worked at or for Crane Enfield. The arrangement was that he was to proceed to the site of the contractor to do "grouting - an ostensibly straightforward, easy job for which no particular induction, training, or formal instruction was considered necessary". Mr Jones was shown around the premises of Crane Enfield and was shown the circular saw but was not given any induction or instructions as to how to operate the equipment. He was asked to use a number of other ancillary tools with which he was not familiar and was given no instruction in relation to them. Her Worship relied upon the evidence of the principal of the respondent in this way: However, as stated by Mr Coffey in evidence, there could have been little or no expectation on the part of the Defendant company that Mr Jones would have been required to use a circular saw in doing a grouting job; although he conceded that the job could in some circumstances entail the use of such machine. The Court accepts Mr Coffey's evidence on that point. 9 Her Worship described the circumstances of the accident or incident which led to the prosecution as follows: Mr Jones told the court that when he arrived at Crane Enfield Metals, he was shown around the premises by Mr Ken Palazzi, and shown the circular saw on which he was to perform operations, but he specifically stated that he was not shown how to operate the machine; and the only instruction/s he was given was to ensure that the guard on the machine was down. In particular he was not shown how to use a push stick, nor was he instructed about the use of the riving knife and apparently he was not familiar with those tools. Mr Jones' evidence of the brief conversation by Mr Palazzi about Jones using the circular saw was confirmed by Mr Palazzi. However, it appears that Mr Palazzi formed the belief that Mr Jones had used a circular saw previously; but it is not entirely clear to the Court whether that was so. Certainly there was no evidence from Mr Jones himself or any comment or protest on his part that he could not manipulate a circular saw. Mr Jones stated that he had not received any information, training or instruction from the Defendant labour hire company on the use and operation of the saw; nor had he received any formal induction in the use and operation of the saw by Crane Enfield Metals. . . . The statement of facts sets out the evidence that was subsequently adduced to the Court, that is, Mr Jones was operating a circular saw to cut a piece of timber lengthwise, when his right hand with which he was holding the timber, approached the saw he lifted his right hand, and attempted to pull the length of timber through the saw from the back, using his left hand. As he put it, the blade kicked the timber back to the front of the machine, and his left hand followed. He sustained injury, consisting of severe lacerations, and bone damage to the first joint of his left index finger, as a consequence of which he was off work for six weeks. 10 Her Worship concluded: Further evidence is that at the time of operating the circular saw, Mr Jones was working alone. There were other employees of Coffey Engineering working on the site of Crane Enfield Metals but those men were widely separated from Mr Jones, the site being a very extensive one, approximately 1 km long and 300 m wide. Mr Jones was not supervised by any other employee of Coffey Engineering, and it appears from the evidence that there was no direct, consistent supervision by Crane Enfield Metals. Given the circumstances of Mr Jones' being required to work at the Crane Enfield Metals on the relevant day, that is, that a man was required by Crane Enfield Metals to do some grouting, the Court takes the view that it would be unrealistic to expect Coffey Engineering to provide or ensure supervision of Mr Jones in his operation of the circular saw, in accordance with cl. 4.2 of AS 1473-1991. As indicated at the outset, this prosecution is brought against the Defendant company on the basis of s 15(1) of the Act, which imposes a heavy duty on the employer. That duty however does not amount to strict liability - as the IRC has on occasion reminded us: there must be some nexus between a safety incident and the employer's failure to meet its obligations as set out in s 15 of the Act. In the present case, whilst the Court is satisfied that the victim suffered injury in the course of his employment, whilst using a machine in respect of which he had received no adequate training, nor relevant information, the evidence is not capable of satisfying the Court beyond reasonable doubt that the offence charged against the Defendant is proved. Principles applicable 11 The principles relevant to the determination of this question are to be found in a number of recent decisions of this Court and of the Commission, including those earlier referred to. It is sufficient for present purposes to refer to those set out in the judgment in Parkes Council at 299 - 301 as follows:

The proper approach to adopt in a consideration of the application was common ground between the parties. Reference was made in that respect to the decision of the Full Commission ( Peterson and Schmidt JJ, and Connor CC) of the former Industrial Relations Commission of New South Wales in Skelly v Prouds Jewellers Pty Limited (1994) 53 IR 3 at 5 - 6 as followed by the Full Commission ( Cahill VP, Maidment J and French CC) in Brookes v Watling (1995) 61 IR 163 at 166 - 167. In those two cases the Full Commission cited recent authorities formulating the way in which the grant of an extension of time for the filing of an appeal should be considered: see Gallo v Dawson (1990) 64 ALJR 458; Jess v Scott (1986) 12 FCR 187; and Salter Rex & Co v Ghosh [1971] 2 QB 597 at 601. From those cases, the following propositions may be drawn:

(1) The grant of an extension of time is not automatic and the object of those rules which fix times for doing acts is to ensure they do not become instruments of injustice; the discretion to extend time is given for the sole purpose of enabling justice to be done between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Limited [1978] VR 257 at 262.

(2) The discretion can only be exercised in favour of an extension of time upon proof that compliance with the rules will work an injustice upon the applicant therefor which necessarily requires regard be had to the history of the proceedings, the conduct of the parties, the nature of the litigation and the consequences for the parties of the grant or refusal of the application to extend time: see Avery v No. 2 Public Service Appeal Board [1978] 2 NZLR 86 at 92; and Jess v Scott at 194 - 195.

(3) An application for an extension of time in which to file an appeal always requires consideration of the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes at 263 - 264; and Mitchelson v Mitchelson (1979) 24 ALR 522 at 524.

(4) Upon the expiration of the time for appealing, the respondent has "a vested right to retain the judgment" unless the application is granted: see Vilenius v Heingar (1962) 36 ALJR 200 at 201.

(5) There must be material upon which it can be satisfied that to refuse the application to extend time would constitute an injustice: see Ratnam v Cumarasamy [1965] 1 WLR 8 at 12; [1965] 3 All ER 933 at 935.

(6) "The difference between two weeks and four weeks is not much (by which the time is to be extended) ... We never like a litigant to suffer by the mistake of his lawyers": per Lord Denning in Ghosh at 601.

In accepting the approach inherent in the above propositions, the Full Commission observed in Skelly (at 6): The Commission's Rules require an appeal to be filed within 28 days of a decision. There is a public interest in the prompt institution and prosecution of litigation before the Commission. Indeed the Act is designed with this as a feature. It follows that a successful litigant before the Commission is generally entitled to proceed on the basis that a decision in its favour will stand, in the absence of an appeal being filed within the time prescribed. There is a discretion in the Commission to extend the time for filing an appeal. Such a discretion will not however be lightly or automatically exercised, particularly if the application is made after the time for appeal has expired. The fact that there will be no prejudice to a respondent party by an extension of time being granted is one factor which the Commission will take into account, but will not be solely determinative of the matter. In this context the cost and inconvenience of litigation not brought within the limitation period prescribed is a matter to which regard may properly be had when an application for extension of time is made. The Commission in taking all relevant matters into account must endeavour to do justice between the parties having regard to all the circumstances before it. 12 I also accept that a useful authority is that relied on by the respondent being the judgment of the Full Federal Court in Bishop v R . However, that was a judgment carefully considered by the Full Bench in Parkes Council and it is sufficient in my applying that judgment to have regard to the way in which the Court approached the judgment in Bishop . For example, in Parkes Council at 303 after referring in some detail to the judgment of the Federal Court the Full Bench said: In the result, in our view, the need for evidence disclosing both an acceptable explanation for the failure to serve within time and unless special circumstances be established to justify the applicant being granted an indulgence, assumes greater significance where the indulgence sought is to allow the filing of the notice of appeal itself but also where service has not been effected promptly. Consideration and conclusion 13 I consider that the proper application of the judgment in Parkes Council, and the application in that judgment of the approach of the Full Federal Court in Bishop , would lead to the grant of the application to extend time. The essential reasons for this view can be stated shortly in the light of the earlier reference to the submissions of counsel and the approach of her Worship. I accept that the two Full Bench cases cited show that it is appropriate to consider initially whether the applicant has demonstrated an acceptable explanation for the failure to file the appeal in time and whether special circumstances were established. I consider that the appropriate consideration of the tests formulated in both Parkes Council and Bishop is that the special circumstances necessary might derive from either the circumstances of the explanation or from other circumstances. The primary consideration is whether special circumstances are shown. However, it must be emphasised that the present application involves the exercise of a discretion which must be exercised judicially. Although it is important that there be a clear and convincing case for extension of time, it is, after all, a matter for the discretion of the judge considering the application. Provided it is kept steadily in mind that what is required is the exercise of judicial discretion which should not be necessarily bound in a rigid way by any particular rule, the significance of the cases is that they emphasise that the Court must take all relevant matters into account and must in that process ensure that it does justice between the parties having regard to all the circumstances and, where relevant as it is in the present proceedings, to the public interest. 14 Reference to the considerations set out in numbered paragraphs in Parkes Council shows that the crucial consideration once there is an acceptable explanation for the delay in filing the appeal, is whether the failure to extend time would result in an injustice. This in turn involves, or may involve, consideration of the prospects of the applicant succeeding in the appeal. Much of the detailed discussion in the numbered principles in Parkes Council may be seen as falling within these broad considerations. 15 Having stated the way in which I consider the principles should be approached in this matter, I now turn to the application of those principles to the circumstances of this matter. I consider that the circumstances explained in the solicitor's affidavit filed for the applicant constitutes an acceptable although quite regrettable and hopefully not to be repeated explanation. See the observations of Lord Denning in Salter Rex & Co v Ghosh as extracted in Parkes Council . In referring to this passage it is not suggested that a lawyer's mistake will always constitute an acceptable explanation. However, I accept that it is in this case particularly when seen in the light of all the circumstances applicable at the time, including the very short time after the 21 day limitation period when the application for leave to appeal and the application for extension of time were filed. 16 It is relevant also to refer to the way in which that issue was approached in Parkes Council because counsel for the respondent submitted, in effect, that the judgment in Parkes Council properly considered required that the explanation preferred in this matter could not be considered an acceptable explanation. The explanation here was said to be little different to that put forward in Parkes Council , so that what was not acceptable in an out of time prosecution appeal against sentence could not a fortiori be acceptable in an appeal against acquittal. 17 I do not consider that submission represents an appropriate understanding of the judgment in Parkes Council . For example, in that case a submission was made to the Full Bench that the approach which should be adopted in that case would be one similar to the way in which cases involving solicitor's error were dealt with (see 70 IR at 301). A consideration of the balance of the judgment makes plain, however, that the Full Bench did not accept that the matter should be approached in that way. In particular, the analysis by their Honours, at 304 - 305, of the factual circumstances relevant in that case, shows that the explanation given by the solicitor for the lateness of filing the appeal, which involved circumstances to do with workload or priorities in the relevant legal branch of the Workcover Authority, was not accepted as providing a reasonable or acceptable explanation. The circumstances of this matter are qualitatively different. 18 The respondent's reliance on its potential double jeopardy is an important consideration but one which has to be seen in light of the varying authority as to that matter so far as corporations are concerned: see, for example, Comptroller-General of Customs v D'Aquino Bros Pty Ltd (1996) 135 ALR 649 and WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 100 IR 64. This consideration is appropriately dealt with by giving due weight, as discussed subsequently, to the seriousness of the step of extending time to appeal from an acquittal. 19 During the course of argument reference was made to the fact that s 197A, in subsection (5), contained a particular provision dealing with the issue of late appeals from acquittals. It was said that the fact of that provision and its terms may indicate a legislative intention that the Court should take an approach different to that laid down in authorities as to the general provision in s 189 of the Industrial Relations Act and its predecessors, provided that the appeal was lodged within the period of three months specified. I do not consider it is necessary to come to a firm conclusion on that issue. It is sufficient that I express a preliminary view on it: that the usual authorities on the issue should be applied subject to the particular circumstances of the matter and giving due regard to the seriousness of the step of extending time to appeal from an acquittal. This consideration might often be a determinative consideration in that the discretion might only be considered as available in an otherwise very clear case. 20 I consider that the injustice of not extending time and the special circumstances required for the application to be granted are shown by reference to the matters raised in the proposed appeal. Counsel for the applicant referred in some detail to those matters which included the ground that her Worship erred in the application of the approach in Drake Personnel . Her Worship's approach to the nature of the liability under s 15 of the Occupational Health and Safety Act was said to be erroneous; the fact that her Worship only dealt with one of the particulars alleged and failed to deal with the other particulars. It was also submitted that the way in which her Worship dealt with only one particular in her judgment also showed legal error. 21 Reference was made to the fact that her Worship failed to consider and provide reasons as to each of the particulars alleged which raised the consideration (said to have been overlooked by her Worship) that, in the proceedings of this kind only one particular need be established provided the establishing of that particular demonstrates a breach of the relevant statutory provision; see, for example, the judgment of the Court of Criminal Appeal in Environment Protection Authority v Sydney Water Corporation (1997) 98 A Crim R 481 at 484, as applied by this Court in WorkCover Authority of New South Wales (Inspector Dubois) v Concrete Constructions Group Limited (1999) 98 IR 362 at 374. The relevant principle is stated by Gleeson CJ in the former case, as follows:

Although the decision of Talbot J was discretionary, the basis upon which he exercised his discretion emerges clearly from the stated case, and the documents attached to it, and was not in dispute in argument. It was that his Honour took the view, as a matter of principle, that when, in a criminal proceeding, the prosecution fails in its case in chief to establish a particular of the offence charged, then it should not be permitted to seek to rely on material which later emerges in support of that particular.

This view, with respect, is heterodox. It involves a misunderstanding of the nature and function of particulars. In a criminal proceeding, what the prosecution is required to establish are the essential elements of the offence charged.

It is often appropriate, in order to provide an accused with fair notice of the case to be met, and in the interests of efficiency and economy in the conduct of the proceedings, for the prosecution to be obliged to provide further and better particulars of the allegations made in the charge, whether the charge take the form of a count in an indictment, or an allegation in a summons ( Stanton v Abernathy (1990) 19 NSWLR 656).

There may be circumstances arising out of the nature of the evidence in a particular case, or the manner in which the case has been conducted, which will make it unfair or oppressive to an accused person to permit the Crown to depart from its particulars . Subject to that qualification, however, what the Crown needs to establish in order to obtain a conviction are the essential facts alleged in the indictment, or the summons. Failure to establish a particular is not fatal ( R v VHP CCA, unreported 7 July 1997). (emphasis added) 22 In accordance with the requirements of the principles as cited earlier from the judgment of Parkes Council , I must consider at least at the appropriate level and on a limited basis the prospects of the success of the proposed appeal. I consider that the applicant has tangible prospects of success in the appeal and it is arguable that her Worship erred in relation to the correct approach concerning prosecutions under s 15 of the Occupational Health and Safety Act and in failing to deal with each of the particulars alleged, particularly in light of the analysis of the role of particulars set out in the judgments referred to. If error occurred in these areas, it has occurred in areas fundamental to the penal jurisdiction in occupational health and safety prosecution. The finding in these respects also constitutes the special circumstances which I have held are required in this matter and, notwithstanding the seriousness of extending time to appeal an acquittal, demonstrates the potential injustice and situation contrary to the public interest which would occur should the application not be granted. 23 There is a useful synthesis of relevant recent authority on the present issue in the judgment of Hungerford J in Van Rooy Machinery Pty Limited v WorkCover Authority of New South Wales (Inspector Wolf) (2000) 97 IR 436 at [33] where his Honour said: Essentially, it seems to me, in deciding whether or not to grant an application to extend time to appeal, comes down to the proposition of doing justice between the parties and ensuring the proper administration of justice. I consider that the application of the principles so stated would also lead to the grant of the application. Orders 24 At the conclusion of the argument in relation to this matter on 27 November last, I announced that I would, for reasons to be provided, grant the application. The following orders were made: 1 Application granted. 2 Prosecutor/applicant shall pay the respondent's costs of the application to extend time. 25 The reasons foreshadowed are now published and the orders made on 27 November are confirmed. Also confirmed are the directions made at the conclusion of the hearing on 27 November 2000 for the hearing of the appeal before a Full Bench of the Court on 24 April 2001. ____________________________

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