Manpac Industries Pty Ltd (formerly t/as Pacific Concrete & Quarries Pty Ltd) v WorkCover Authority of New South Wales

Manpac Industries Pty Ltd (formerly t/as Pacific Concrete & Quarries Pty Ltd) v WorkCover Authority of New South Wales - [2001] NSWIRComm 190 - NSWIRComm 2001 case summary — Zoe

[4]

Practice and Procedure - Summons for offence against occupational health and safety legislation - Plea of guilty - Application for leave to withdraw plea - Amendment of summons as to name of defendant - Whether a misnomer or misdescription rather than a misjoinder - Correction of originating summons to cure a defect in substance or in form - Discretion to allow withdrawal of plea - Summons amended - Leave refused for withdrawal of plea. Courts Legislation Amendment Act 2000 Crimes (Sentencing Procedure) Act 1999 s 22 Criminal Appeal Act 1912 s 5AA Fines Act 1996 s 6 Industrial Relations Act 1996 s 168 s 170 s 196 LEGISLATION CITED : Justices Act 1902 s 65 Occupational Health and Safety Act 1983 s 15(1) Supreme Court (Summary Jurisdiction) Act 1967 s 6(1) Industrial Relations Commission Rules 1996 r 89(5) r 148(1) Supreme Court Rules 1970 Pt 20 r 1 Supreme Court Rules (Vic) r 36.01 B & M Quality Constructions Pty Ltd v W G Brady Pty Ltd (1994) 15 ACSR 66 Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501, (1995) 37 NSWLR 150, (1995) 58 IR 363 Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231 Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 Capral Aluminium Ltd v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 49 NSWLR 610, (2000) 99 IR 29 Crothers v Sheil (1933) 49 CLR 399 Crown in Right of the State of New South Wales (Department of Education and Training) v Keenan (2001) 105 IR 181 Ferguson v Nelmac Pty Ltd (1999) 92 IR 188 Fletcher Construction Australia Ltd v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 Hedberg v Woodhall (1913) 15 CLR 531 J Robertson & Co Ltd (In Liq) v Ferguson Transformers Pty Ltd (1970) 44 ALJR 441 John L Pty Ltd v Attorney-General for New South Wales (1987) 163 CLR 508 Johnson v Miller (1937) 59 CLR 467 Lawrenson Diecasting Pty Ltd v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 464 McLean v Case & Deignan Pty Ltd (1961) 78 WN (NSW) 476 CASES CITED : NSW Sugar Milling Co-operative Ltd v Environment Protection Authority (1992) 59 A Crim R 6 R v Boag (1994) 73 A Crim R 35 R v Davies (1993) 19 MVR 481 R v Lister (1955) 72 WN (NSW) 491 R v Marchando [2000] NSWCCA 8 R v Murphy [1965] VR 187 R v Sagiv (1986) 22 A Crim R 73 R v Thomson, R v Houlton (2000) 49 NSWLR 383 Rainbow Spray Irrigation Pty Ltd v Hoette [1963] NSWR 1440 Ridge Consolidated Pty Ltd v WorkCover Authority of New South Wales (Inspector Mauger) (2000) 100 IR 156 Stanton v Abernathy (1990) 19 NSWLR 656 Warman International Ltd v WorkCover Authority of New South Wales (Inspector Ankucic) (1998) 80 IR 326 Whittam v W J Daniel & Co Ltd [1962] 1 QB 271 WorkCover Authority of New South Wales (Inspector Dowling) v Overtop Pty Ltd (1998) 86 IR 319 WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (2000) 49 NSWLR 700, (2000) 100 IR 64 WorkCover Authority of New South Wales (Inspector Page) v RGM Building Services Pty Ltd (2000) 97 IR 51 WorkCover Authority of New South Wales (Inspector Sheppard) v State Rail Authority of New South Wales [2000] NSWIRComm 179 HEARING DATES: 10/26/2000; 11/13/2000 DATE OF JUDGMENT: 08/30/2001

[11]

3 In dealing with the primary issue of the identity of the proper defendant, it is necessary to trace how the matter developed and this may most conveniently be done by summarising the undisputed facts, as follows - (1) On 15 December 1992, Pacific Concrete & Quarries Pty Limited, with an Australian Company Number of 058 394 237 (the appellant), was registered under the Corporations Law. (2) Mr Anthony Martinelli was employed by the appellant as a truck driver to transport and deliver pre-cast concrete products from its factory premises to building sites. (3) On 12 January 1998, whilst so employed, Mr Martinelli sustained fatal crush injuries when four concrete slabs he was transporting on the appellant's truck became adrift on the brakes being applied and smashed through the driver's cabin pinning Mr Martinelli to the steering wheel and dashboard. (4) In early-February 1998, the prosecutor (the respondent to the present appeal) had discussions with Mr Joseph Tak-Wong Wong, a director of the appellant, at one of the appellant's plants concerning a new method to safely secure product on trucks. An improvement notice under the Occupational Health and Safety Act was thereupon issued to the appellant who implemented the changes required. (5) On 23 June 1998, Mr Wong provided written answers to questions submitted to him by the respondent in the course of the investigation of the incident on 12 January 1998 concerning Mr Martinelli. Presently relevant questions and answers included : 2. Q. What is the registered name and address of the company? A. Pacific Concrete & Quarries Pty Ltd: i. Registered Office: c/- Trood Pratt & Co, Suite 3102, Level 31, Tower Building, Australia Square, Sydney, NSW 2000 ii. Plants: a. Botany, 71 Stephen Road b. Ingleburn, 43 York Road c. Plumpton, 202 Power Street 3. Q. What is your position with the company? A. Managing Director. 4. Q. Do you have the authority to legally speak on behalf of the company? A. Yes. 5. Q. Was the company aware of an accident to Anthony Martinelli on the 12th of January, 1998? A. Yes. 6. Q. Was Anthony Martinelli an employee of the company on the 12th of January, 1998? A. Yes. 7. Q. Did Anthony Martinelli have the accident whilst working as a truck driver for the company on the 12th of January, 1998? A. Yes. (On 19 January 1999, Mr Wong signed a typewritten record of the interview he had with the prosecutor on 23 June 1998, including the above questions and answers in the terms so stated.) (6) On 7 January 1999, the appellant changed its name to Manpac Industries Pty Limited and retained its then existing ACN, namely, 058 394 237. (7) On 7 January 1999, Pacific Concrete & Quarries Pty Limited, with an ACN of 085 780 678 (hereinafter referred to as "the new company"), was registered under the Corporations Law. (8) In addition to his position as Managing Director of the appellant, Mr Wong was the sole director and Secretary of the new company, whose registered office was at the same address as that of the appellant. (9) Even though the corporate restructuring occurred on 7 January 1999, in the above-mentioned record of interview signed by Mr Wong on 19 January 1999 containing the questions and answers as to the identification of the employer as being "Pacific Concrete & Quarries Pty Ltd", no qualification or explanation was made by him in signing the statement; specifically, no mention was made of the respective ACNs of the two corporations or of any details of the corporate changes. (10) On 21 May 1999, the respondent issued four summonses against "Pacific Concrete and Quarries Pty Limited [ACN 085 780 678]" for breaches of s 15(1) of the Occupational Health and Safety Act in respect of the incident concerning Mr Martinelli on 12 January 1998.

[32]

9 Having heard the parties submissions on the issue of the identification of the true defendant and the ability for the amended summons to be further amended to state the correct name, Kavanagh J was persuaded, by reference to R v Lister (1955) 72 WN (NSW) 491 and McLean v Case & Deignan Pty Ltd (1961) 78 WN (NSW) 476, that "the court must amend the summons as it does not only mis-state the ACN number but mis-states the name of the employer company which was known as Manpac Industries Pty Limited at the time the summons was issued" (par [28]). Her Honour based that view on the following facts : 29. … the employer was named Pacific Concrete and Quarries Pty Limited at the time of the accident; the new company did not exist at that time; Mr Wong was a director of both the new company and the employer; Mr Wong understood the structure of each company yet on his instructions the plea of guilty was entered. Evidence on affidavit reveals the prosecutor conducted a number of inquiries which included a visit to the premises operated by the employer and interviews with staff at the site. The new company, the defendant in the amended summons proceeded upon, had no business premises or staff until a year later. Further, an improvement notice was issued to the employer and acted upon. Mr Wong, with his solicitor, met with the prosecutor and provided written and oral answers to questions from the WorkCover Authority. The tenor of the interview was that the prosecutor was interviewing the employer and the employer was answering questions in that role. No ACN number was referred to at this stage of the investigation. Mr Wong signed his record of interview on 10 January 1999, three days after the incorporation of the new company, and forwarded it to the WorkCover Authority. No reference in the record of interview was made to the change of name of the company to Manpac Industries Pty Limited. No reference was made to the incorporation of a new company. Further, in the hearing of the charge, the employer, having had legal advice, entered a plea of guilty. The prosecution on that plea went to hearing. Mr Wong attended at the court and was instructing his solicitor and counsel as to the plea. He tendered documentation. On the plea the defendant tendered the statement Mr Wong gave to the WorkCover Authority in his defence. His presence at court and the facts in the affidavit reveal he has been served with the summons. The court is persuaded he understood the significance of the charge.

[47]

20 It will be apparent that the proper characterisation of what occurred in the particular circumstances is necessary in order to determine the issue of amendment of process. That requires a finding of fact to be made and then to apply that finding to the relevant powers of the court to ascertain what, if any, remedy is available. Here, of course, Kavanagh J decided to amend the summons, in the manner earlier outlined by us, after reciting the facts and making findings thereon. Her Honour found that the corporate restructuring, as involving the change in the appellant's name from Pacific Concrete & Quarries Pty Limited to Manpac Industries Pty Limited and the registration on the same day of a new company also called Pacific Concrete & Quarries Pty Limited, putting aside any question of deception by the appellant and Mr Wong, "was nevertheless an act by the company which could be misleading and it certainly misled the prosecutor". Her Honour relied upon the decision of Richardson J in McLean (78 WN (NSW) at p 478) where his Honour upheld a magistrate's decision to amend the name of the defendant in a summons and information where the defendant's issuing of a cash docket in the wrong name "could be misleading and it certainly misled the informant". On making a comparable finding here, her Honour similarly amended the defendant's name in the summons to reflect the then current position. It is clear to us from a reading of the whole of her Honour's decision that that finding was based very much on the interview signed by Mr Wong on 19 January 1999 (12 days after the new company was registered on 7 January 1999) which set out in terms the information he had supplied to the prosecutor on 23 June 1998 in response to questions put by the prosecutor on 12 January 1998; the material disclosed that the name of the company being investigated as the relevant employer was said by Mr Wong to be "Pacific Concrete & Quarries Pty Limited". The charges were laid by the prosecutor on 21 May 1999.

[48]

21 The present appeal is an appeal as of right under s 5AA(1) of the Criminal Appeal Act. The argument on appeal proceeded on the basis that Kavanagh J erred in the finding made and hence in the consequent decision reached. It is necessary to point out, and as s 5AA(3) makes clear, that the proper approach on appeal is not the question whether her Honour so erred but whether the Court sitting on appeal is separately of the same view. As Enderby J (with whom Hunt CJ at CL and Allen J agreed) said in NSW Sugar Milling Co-operative Ltd v Environment Protection Authority (1992) 59 A Crim R 6 at p 11 : ... it has to be borne in mind that it is not a question for this Court of whether or not his Honour erred in making the findings he made, but whether this Court is independently of the same opinion as his Honour. 22 That an appeal under s 5AA is not a hearing de novo or an appeal in the strict sense but rather a rehearing of the issues on the evidence given at first instance was affirmed by the Court of Criminal Appeal in Camilleri's Stock Feeds Pty Ltd v Environment Protection Authority (1993) 32 NSWLR 683 at p 692 per Kirby P. In other words, the Full Bench hearing this appeal is not to determine whether the trial judge fell into error but rather to determine independently the issue of guilt and/or sentence, as the case may be. Full Benches of this Court on an appeal brought pursuant to s 196 of the Industrial Relations Act have repeatedly adopted the same approach as that of the Court of Criminal Appeal to appeals under s 5AA of the Criminal Appeal Act; so much may now be taken as settled: see Warman International Ltd v WorkCover Authority of New South Wales (Inspector Ankucic) (1998) 80 IR 326 at p 338; Fletcher Construction Australia Ltd v WorkCover Authority of New South Wales (Inspector Fisher) (1999) 91 IR 66 at p 75; and Capral Aluminium Ltd v WorkCover Authority of New South Wales (Inspector Mayo-Ramsay) (2000) 49 NSWLR 610 at pp 622-624, (2000) 99 IR 29 at pp 37-39.

[75]

33 The reasons for our factual finding that it was always the employer who was named as the defendant may be stated quite shortly. The prosecutor investigated the incident and visited the premises of the employer to interview its staff shortly after the occurrence, at a time about 12 months before the new company came into existence, and issued to the employer an improvement notice to remedy the perceived safety risks which gave rise to the incident causing fatal injury to Mr Martinelli. The prosecutor then interviewed Mr Wong as the Managing Director of the employer, again at a time when the new company was not registered, and Mr Wong signed the record of interview confirming the information earlier given, without any correction or explanation by him, even though the document was signed 12 days after the new company was registered. Significantly, during the interview and in the signed record thereof, the employer was stated correctly to be "Pacific Concrete & Quarries Pty Limited". In that situation, we think it to be wholly unsurprising that the prosecutor would have so named the defendant in the summons but one might wonder why the incorrect ACN was used - the answer, we think, is plain in that the corporate restructuring occurred after the investigation identified the employer, the later signed record of interview by Mr Wong did not qualify or change the earlier information and the name of the employer was changed with its original name used by the new company; in that situation, a search of "Pacific Concrete & Quarries Pty Limited" would show that that corporation had the ACN of the new company rather than that of the original employer. That it was therefore the employer of Mr Martinelli so named as the defendant in the summons is the only reasonable conclusion from those facts, particularly when the prosecutor had no reason from his investigation to be aware of Manpac Industries Pty Limited to warrant a corporate search through the Australian Securities and Investments Commission.

[80]

38 Toohey J found (at p 252) the application there to amend was not to correct a mistake in the name of a party by substituting another person as a party (within r 36.01) but rather involved the substitution of a person who ought to have been joined in the first place (outside r 36.01). His Honour put it this way (at p 251) : Where an application under r 36.01(4) is resisted, the task for the Court is to characterize the mistake which the applicant claims to have made. In the present case, if Bridge Shipping intended, by its third party notice, to join the carrier of the goods in the proceeding and wrongly concluded Grand Shipping to be the carrier, it is but a short step to conclude that Bridge Shipping made a mistake in the name of the third party. Even on that approach, it would not be right to say that it was a mere case of misnomer. It was more than that but it was still a "mistake in the name of a party" within r 36.01. 39 40 McHugh J reasoned as follows (at pp 260-261) : Moreover, a plaintiff may make "a mistake in the name of a party" not only because the plaintiff mistakenly believes that a certain person, whom the plaintiff can otherwise identify, bears a certain name but also because the plaintiff mistakenly believes that a person who answers a particular description bears a certain name. Thus, a plaintiff may make a mistake "in the name of a party" because, although intending to sue a particular person whom the plaintiff knows by sight, the plaintiff is mistaken as to that person's name. Equally, the plaintiff may make a mistake "in the name of a party" because, although intending to sue a person whom the plaintiff knows by a particular description, eg the driver of a certain car, the plaintiff is mistaken as to the name of the person who answers that description. In both cases, the plaintiff knows the person intended to be sued by reference to some property or properties which is or are peculiar to that person but is mistaken as to the name of that person. In the first case, the properties which identify the person are personal characteristics; in the second case, they are the properties which are of the essence of the description of that person. ...

[86]

45 For present purposes, therefore, we focus on the provisions of s 6(1) of the Supreme Court (Summary Jurisdiction) Act and s 170(1) of the Industrial Relations Act as to their ability to enable the subject amendment to be made to the summons, having in mind, of course, our finding of fact as to the characterisation of what occurred. This requires immediately a consideration of Mr Archer's submission that s 170 had no application because of the provisions of s 168(4) of the Industrial Relations Act which, as counsel said, excluded s 170 in favour of s 6(1). We disagree. This issue arose directly for consideration by a Full Bench of the Court in Ridge Consolidated Pty Ltd v WorkCover Authority of New South Wales (Inspector Mauger) (2000) 100 IR 156 where their Honours said (at p 170) : In view of the similar subject matters dealt with by s 168 and s 196 it is not likely that the different formulations used in s 168(4) and s 196(1) were unintended by the legislature. The latter provision shows a clear intention on the part of the legislature that s 196 applies in such a way as to, in effect, override the other provisions of the relevant Part of the Industrial Relations Act . The legislature has specifically used a different form of words in s 168(4), and thus plainly indicated that the words in that provision were intended to have a different effect. That is, the other relevant provisions in Pt 5 of Ch 4, including s 170, were intended to relevantly apply except where their application was inconsistent with s 168 or the provisions incorporated thereby from the Summary Jurisdiction Act. We do not consider that any provisions in that Act are inconsistent with s 170 and therefore that section applies to proceedings commenced in the Court Session pursuant to s 168 and the Summary Jurisdiction Act. In arriving at this conclusion we have not overlooked s 6(1) of the Summary Jurisdiction Act , which provides relevantly: "No objection shall be taken or allowed to any application referred to in ... section 4 ... by reason of any alleged defect in it in substance or in form ... "

[96]

53 It is true there may be an appeal against a conviction entered pursuant to a plea of guilty, in which case the principle to be applied on appeal is the same as that applied at first instance prior to sentence where an accused seeks leave to withdraw a plea of guilty: see Davies. In Murphy, the Full Court of the Supreme Court of Victoria held that, save in exceptional circumstances, an appellate court will only entertain an appeal against conviction based on a plea of guilty if it appears the appellant did not appreciate the nature of the charge or did not intend to admit guilt or on the admitted facts the law did not support the conviction. Herring CJ and Adam J observed ([1965] VR at pp 187-188) : A plea of guilty duly recorded provides the strongest evidence of guilt. Accordingly, although this Court may grant leave to appeal on any ground which appears to it "to be a sufficient ground of appeal" (s 567(c) of the Crimes Act), on principle one would expect that in such a case leave would be refused save in exceptional circumstances where the plea of guilty itself has been induced by material mistake or the like. And so it has been held in decisions both in England and in this State. In R v Forde , [1923] 2 KB 400, at p 403; [1923] All ER Rep 477, Avory, J, put the matter thus: "A plea of guilty having been recorded, this Court can only entertain an appeal against conviction if it appears (1) that the appellant did not appreciate the nature of the charge or did not intend to admit he was guilty of it, or (2) that upon the admitted facts he could not in law have been convicted of the offence charged." This statement of the matters relevant to such an appeal was approved and applied by our own Full Court in R v Stewart , [1960] VR 106. While no doubt there are dangers in fettering such a wide discretion as is conferred on this Court by s 567(c) by the formulation of precise rules or tests to meet all circumstances, we consider that the rules as formulated in R v Forde, supra, will be found to provide a sound guide to be followed in most, if not all, cases.

[113]

62 It is apparent from the statement that on 12 January 1998 Mr Martinelli was driving the appellant's truck, loaded with four concrete precast panels each measuring 10.1m x 1.3m x 0.180m and weighing about 5.5 tonnes for delivery to building sites, on a curved downhill section of Southern Cross Drive. The panels rested on wooden blocks and were secured to the trailer of the truck by an 8mm chain approximately 2.3m from the front of the trailer with a rubber mat inserted between the chain and the panels; a second chain was attached for security of the panels approximately 7.1m from the first chain. While so travelling, Mr Martinelli forcefully applied the brakes because of the traffic conditions and thereupon, as the statement records, "the momentum of the concrete slabs travelling at high speed and the opposing forces due to the braking action exerted sufficient force to overcome the coefficient of friction existing between the 'A' frames and the strength of the chain causing the chain restraining the slabs to break. The slabs were then able to slide forward, smash through the driver's cabin and crush the driver". The statement then recorded : 19. Investigations revealed the following: i. The vehicle involved in the accident did not have any major defects that could have contributed to the accident. ii. The load on the truck had been secured by Martinelli in the same manner as was common practice adopted by the defendant for that type of load. iii. The accident occurred on a slight downhill curve with the truck travelling at considerable speed. iv. Only 2 eight millimetre Bradlink 70 chains secured the load to the trailer. v. The two "A" frames used to support the load were not permanently attached to the trailer and were resting on a steel table top, relying on a steel to steel friction coefficient to prevent sliding. vi. There were no forward or rear restraints to prevent the load from moving forward or backward. vii. The load was not secured in accordance with the Load Restraint Guide recommendations issued by the Roads and Traffic Authority of NSW. 20. At the material time the method of securing the load on the truck was inadequate and unsafe. The defendant could have implemented a safer method of securing the load, which was available at the time of the accident. This method consists of placing heavy rubber matting between the "A" frames, increasing the number of chains securing the load, providing fore and aft restraint for the load and providing a check list for the drivers to follow when securing the load. 21. Following the issue of an Improvement Notice on the defendant by Inspector Glass for the defendant to provide positive fixing of "A" frames and to provide sufficient fore and aft restraint to all loads to ensure that such an accident did not recur, the defendant has implemented the method outlined in paragraph 20 above. 22. Investigations further revealed that the poor design of the "A" frames resting on the steel table top of the truck was a contributing factor to the accident. 23. Inadequate training, instructions and supervision were provided on safely securing loads of concrete slabs on the truck. 63 Before Kavanagh J, the matter proceeded by way of the statement of agreed facts, photographs of the truck and its load at the scene of the incident, a publication entitled "Load Restraint Guide" published by the Road Safety Office of the federal Department of Transport and the statement of Mr Wong dated 27 January 2000 (he did not give oral evidence). Counsel addressed on penalty.

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