Mansell v TMG International Pty Ltd

Mansell v TMG International Pty Ltd - [2002] NSWIRComm 112 - NSWIRComm 2002 case summary — Zoe

[8]

Practice and Procedure - Occupational health and safety - Appeal - Application for appeal and leave to appeal - Application to extend time to appeal - Whether judgment and orders final or interlocutory - Abuse of process - Commencement of prosecution proceedings before Industrial Relations Commission in Court Session - Interaction of Industrial Relations Act 1996, Industrial Relations Commission Rules 1996 and Supreme Court (Summary Jurisdiction) Act 1967 - Limitation period - Whether necessary for initiating process to state reliance on Coronial proceedings - Proceedings remitted to judge. Criminal Appeal Act 1912 s 5AE(1) s 5C s 5F(1)(a) s 196 Industrial Relations Act 1996 s 168 s 187 s 196 s 196 (3)(e) Industrial Relations Commission Rules 1996 r 219(1)(d) & (e) Judiciary Act 1903 s 35(1)(a) Judiciary Act 1960 (Cth) s 35(1)(a) LEGISLATION CITED : Judicature Act 1925 s 68(2) Limitation Act 1969 Occupational Health and Safety Act 1983 s 15(1) s 16(1) s 17(1)(b) s 47(1)(b) s 49(1) s 49(4) Supreme Court Act 1986 (Vic) s 17A(4) (b) Supreme Court (Summary Jurisdiction) Act 1967 s 4(1) s 6 Traffic Act 1925 (Tas) s 65A(3) ADC v White [2001] NSWCA 9 Barton v R (1980) 147 CLR 75 Baker v Pioneer Industries [1995] QCA 565 Bunning v Cross (1978) 141 CLR 54 Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246 Commonwealth v Evans Deakin Industries Limited (1986) 161 CLR 254 Commonwealth v Verwayen (1990) 170 CLR 395 South-West Forest Defence Foundation Inc. v Executive Director Department of Conservation and Land Management (WA) 72 ALJR 837 Director of Public Prosecutions v Shirvanian (1998) 44 NSWLR 129 D A Christie Pty Ltd v Baker [1996] 2 VR 582 Concrete Constructions Group Ltd v WorkCover Authority of New South Wales (Inspector Dubois) (2000) 99 IR 16 Coulson v T Lambert Pty Ltd [1976] AR (NSW) 45 Crowley v Glissan (1905) 2 CLR 402 Director of Public Prosecutions v West (2000) 48 NSWLR 647, [2000] NSWCA 103 Dousi v Colgate Palmolive Pty Ltd (1987) 9 NSWLR 374 Electronic Rentals Pty Ltd v Anderson (1971) 124 CLR 27 John L Pty Ltd v Attorney General for New South Wales (1987) 163 CLR 508 Hall v Nominal Defendant (1966) 117 CLR 423 Haron bin Mohammed Zaid v Central Securities (Holdings) Bhd. [1983] 1 AC 16 Hunt v Allied Bakeries Ltd [1956] 3 All ER 513, [1956] 1 WLR 1326 King v Goussetis (1986) 5 NSWLR 89 Licul v Corney (1976) 180 CLR 213 Little v State of Victoria [1998] 4 VR 596 McConnell Dowell Constructors (Aust) Pty Limited v Environment Protection Authority (2000) 50 NSWLR 127, [2000] NSWCCA 367 McGerty v Dairy Farmers Co-operative Ltd (1989) 43 A Crim R 308 Meddings v Council of the City of Gold Coast [1988] 1 Qd R 528 Minister for Youth and Community Services v Health and Research Employees' Association of Australia, NSW Branch (1987) 10 NSWLR 543 CASES CITED : National Employers Mutual General Insurance Association Ltd v Manufacturers Mutual Insurance Ltd (1989) 17 NSWLR 223 Neilsen v Water Resources Commission (1985) 11 IR 102 Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 Port of Melbourne Authority v Anshun Pty Ltd (No. 1) (1980) 147 CLR 35 Price v Phillips (1894) 11 TLR 86 Pye v Renshaw (1951) 84 CLR 58 R v Brown (1989) 17 NSWLR 472 R v Cheng (1999) 48 NSWLR 616 R v Cooling ([1990] 1 Qd R at 378 Ridge Consolidated Pty Ltd v WorkCover Authority of New South Wales (Inspector Mauger) (2000) 100 IR 156 Re Page, Hill v Fladgate [1910] 1 Ch 489 Ridgeway v R (1995) 184 CLR 19 Salter Rex & Co v Ghosh [1971] 2 QB 597, [1971] 2 All ER 865 Sanofi v Parke Davis Pty Ltd [No 1] (1982) 149 CLR 147 Smith v Tabain (1987) 10 NSWLR 562 Southern Cross Exploration NL v Fire & All Risks Insurance Co Ltd (No 2) (1990) 21 NSWLR 200 Tampion v Anderson (1973) 3 ALR 414, (1973) 48 ALJR 11 Tamworth Base Hospital v Durant [2000] NSWCA 209 Taylor v Environment Protection Authority (2000) 50 NSWLR 48 The Queen v Loewenthal, Ex parte Blacklock (1974) 131 CLR 338 Wade v Burns (1966) 115 CLR 537 Whitten v Hall (1993) 29 NSWLR 680 Wickstead v Browne (1992) 30 NSWLR 1 WorkCover Authority of New South Wales (Inspector Keenan) v Lucon (Australia) Pty Limited, Leighton Contractors Pty Limited and Lurgi (Australia) Pty Limited [2002] NSWIRComm 68 WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (No 2) (2000) 101 IR 92 WorkCover Authority of New South Wales (Inspector Lancaster) v Re-car Consolidated Industries (Wagga) Pty Ltd (unreported, Marks J, Matter Nos. IRC97/4663, 4664 and 4666, 14 July 1999) WorkCover v Red Lea Chickens [2000] NSWIRComm 203 WorkCover Authority of New South Wales (Inspector Maltby) v State Rail Authority of New South Wales (2000) 101 IR 271 WorkCover Authority of New South Wales (Inspector Maltby) v State Rail Authority of New South Wales (2001) 108 IR 121 HEARING DATES: 02/18/2002; 02/22/2002; 03/01/2002 EXTEMPORE JUDGMENT DATE : 05/27/2002

[18]

6 The four respondents were participants in an unincorporated joint venture under the registered business name Capital Works Management ("CWM"). They had been engaged by the State Rail Authority of New South Wales ("SRA") for the design, the contract tender process and the supervision to completion of the upgrading work of a number of SRA facilities, including the Kogarah Station Upgrading ("KSU"). In October 1995, Abigroup Contractors Pty Limited was engaged by the SRA to perform construction work at the Railway Station. In November 1995 Abigroup engaged Josef & Sons Contracting Pty Limited to perform work including the demolition of Shops 3, 5, 7 and 9 Railway Parade, Kogarah as part of the Railway Station upgrade. It was alleged in each of the summonses served on the respondents that: CWM had control of the KSU to a degree pursuant to the terms of engagement with the SRA and had a duty to supervise the performance of the work to ensure that the work was done in a safe manner and without risks to health. 7 The summonses and the supporting affidavits originally filed by the prosecutor on 12 October 1999 did not have any reference in them to the fact that there had been a coronial inquest and inquiry into the events of 4 December 1995 and there was no reference to the provisions of s 49(4) of the Occupational Health and Safety Act. That subsection provides: (4) If a coroner's inquest or inquiry is held and it appears from the coroner's report or proceedings at the inquest or inquiry that an offence has been committed against this Act or the regulations, proceedings in respect of that offence may be instituted, despite anything to the contrary in this section, within 2 years after the date the report was made or the inquest or inquiry was concluded, as the case may be. 8 The Industrial Registry in any event, accepted the applications after the prosecution advised by telephone that they would be relying on s 49(4) of the Occupational Health and Safety Act. Summonses were subsequently issued on 12 October 1999. However, on their face, they related to acts or omissions alleged to have constituted offences which occurred some four years prior to the charges being laid.

[28]

12 The proceedings came back before Schmidt J in April 2001 when the prosecutors maintained the position they had taken in the earlier proceedings and, likewise, the respondents pursued their applications that each of the prosecutions be dismissed. On 31 May 2001 Schmidt J made orders declining to issue the summonses sought under s 4 of the Summary Jurisdiction Act and dismissing the proceedings. Her Honour found, inter alia, that the prosecutors had failed to comply with her earlier order that within 28 days of the judgment given on 29 August 2000, the prosecutors were to provide each of the defendants with particulars of any prosecution that was to be pressed, identifying the part or parts of the Coroner's report or proceedings at the inquest or inquiry from which it appeared that the offence charged has been committed. The prosecutors did not provide particulars until the day after the expiration of the 28 days referred to in the order. At paragraph [107] of the judgment her Honour said: 107 To my mind, it is not an appropriate use of the discretion available under s170 of the Act, to ensure, effectively by trial and error, that a prosecutor is slowly brought to the position where the obligations which arise at outset, when the proceedings are initiated, are met. In this case, I have, of course, also taken the view that the prosecutors' failure to consider whether the offences with which these defendants were charged were available to be brought when they were launched, has led to an abuse of process in respect of which the defendants are entitled to relief. This became apparent at the further hearing. The prosecutions' endeavour to demonstrate that the offences were available to be brought on a search of the coronial material to find an objective basis for that view, was not conducted within the time ordered by the Court and did not in any event demonstrate that the coronial material supported the view that it there appeared that the offences charged had been committed. In all of these circumstances the proper course is for the Court to accede to the orders sought by the defendants. 13 That is, her Honour found that: · The prosecutors had failed to comply with the orders made by her on 29 August 2000. · The coronial material did not, in any event, support the view that it appeared the offences charged had been committed. · The prosecutors' failure to consider whether the offences with which these defendants were charged were available to be brought when they were launched, had led to an abuse of process in respect of which the defendants were entitled to relief. The appeal

[40]

25 The judgment in Ridge made it clear that once the requirements of r 219(1) had been complied with, the proceedings have been properly and validly instituted and any subsequent non-compliance were irregularities capable of being cured. The Full Bench said at 167 to 169, in paragraphs [27] to [33]: 27 A consideration of the relevant provisions of the Summary Jurisdiction Act and the Commission's Rules indicates that the relevant provisions are, respectively, s 4(1)(a) and Rule 219(1). It may be that, in 1996, when the Industrial Relations Commission Rules were drafted the terms of the Summary Jurisdiction Act were not fully taken into account. It may also be the case that, since the Industrial Relations Act came into force in September 1996, the procedure contemplated by s 168 and the Summary Jurisdiction Act has not been followed by the Registry or the Commission in relation to the initiation of such proceedings. That is a question upon which we do not consider it necessary to express a final view. We consider, however, that Rule 219(1) does provide a scheme which operates effectively when read in conjunction with s 168 of the Industrial Relations Act and s 4(1) of the Summary Jurisdiction Act . 28 On its proper construction, s 4(1) of the Summary Jurisdiction Act when read with Rule 219(1) of the Commission's Rules requires proceedings to be commenced by the filing in the Registry of an application for a summons stating the matters set out in paragraphs (a) to (e) of Rule 219(1) (and, where relevant, stating the matters in paragraph (f)) and which must be accompanied by an affidavit verifying the allegations made. On the proper construction of those provisions the proceedings are properly and validly commenced when, without more, the application is filed in the Registry. So much, as we have said, is clear on the face of the relevant provisions. Nevertheless, that construction is supported by the judgment of the Court of Criminal Appeal in McGerty v Dairy Farmers Co-operative Ltd (1989) 43 A Crim R 308. In that case, Loveday J held at 311 (in a judgment concurred in by Gleeson CJ and Newman J) in relation to similar but not identical provisions: The difficulty, as I see it, in relation to such an argument is that it ignores the rules to which I have already referred. The proceedings in the present case were proceedings which were required, by Pt 75, r 7 and by Pt 7, r 6 to be commenced by the filing of a summons. The summons was filed in the registry as provided by Pt 7, r 6(2). The rules are explicit as to this and differ from the procedure applicable to the laying of an information before a justice. (emphasis in original) 29 The argument to which his Honour was referring, and which was rejected by the court as relating to different provisions and different circumstances entirely, was an argument based on the judgments of the High Court in John L Proprietary Limited v Attorney General for New South Wales ( 1987) 163 CLR 508 at 516 and Electronic Rentals Pty Ltd v Anderson (1971) 124 CLR 27 at 39. The Chief Justice, although concurring in the judgment of Loveday J, added short observations which included the following: I agree. The question of the method and time of commencement of the present proceedings is to be resolved as a matter of the construction of the rules of this Court, which are, by virtue of the provisions of Pt 6, r 2 of the Land and Environment Court Rules , deemed to form part of the rules of the Land and Environment Court. The provisions of Pt 75, rr 6, 7, 8, and 9 and Pt 7, r 6 of this Court, to my mind, make it clear that the method of commencement of proceedings such as these is by filing in court a summons. The time of commencement is the time of filing the summons. 30 It is also relevant to observe that in John L Proprietary Limited , the High Court (Mason CJ, Deane and Dawson JJ) held, at 514, that proceedings were commenced or instituted under the Summary Jurisdiction Act by the filing of a summons in the Supreme Court. However, because the Supreme Court Rules are relevantly displaced in favour of the Commission's Rules in proceedings such as the present, the counterpart to the filing of a summons is the filing of an application for summons. Accordingly, the construction we consider appropriate is also confirmed by this finding in John L Proprietary Limited . 31 Reference should also be made to the judgment of Marks J in WorkCover Authority of New South Wales (Inspector Lancaster) v Re-car Consolidated Industries (Wagga) Pty Ltd (unreported, Marks J, Matter Nos. IRC97/4663, 4664 and 4666, 14 July 1999) at 3 - 7. In that judgment, his Honour dealt with similar but not identical submissions to those put in these proceedings. It was not necessary for his Honour to deal with all of the matters with which we are concerned and it was necessary for his Honour to deal with some matters with which we are not concerned. It is sufficient, therefore, to indicate that to the extent his Honour dealt with matters with which this judgment is concerned, we observe that our conclusions are consistent with those of his Honour and that his Honour also relied upon the judgment of the Court of Criminal Appeal in McGerty . 32 Finally on this aspect, we note that the Court of Appeal in its judgment in Neilsen v Water Resources Commission (1985) 11 IR 102 dealt with arguments as to the validity of proceedings, albeit in a quite different statutory context to the present, where not all of the requirements under the relevant statutory scheme had been complied with in the relevant time for commencing appeal proceedings. Because of the differences in the statutory schemes it is unnecessary to refer to that judgment in detail. However, it is relevant to observe that the Court ( Hope AP , Glass and Mahoney JJA) drew a distinction between the requirements of the scheme as to the institution of the proceedings and the provisions of the scheme which dealt with subsequent steps required under it. Their Honours held that, provided the steps required to institute the proceedings were properly taken, the steps subsequent thereto, to the extent that they had not been complied with, should be considered as irregularities and should not be held to invalidate proceedings which had been duly commenced within time. 33 We consider that the same distinction is relevant in relation to the present statutory and regulatory scheme. Once the relevant requirements under Rule 219(1) have been complied with, the proceedings have been properly and validly instituted and any subsequent non-compliance with the requirements are, at most, irregularities which either may not be relevant or are capable of being cured.

[43]

28 Since the appeal in the present matter was heard, a Full Bench of the Commission in Court Session handed down judgment in WorkCover Authority of New South Wales (Inspector Keenan) v Lucon (Australia) Pty Limited, Leighton Contractors Pty Limited and Lurgi (Australia) Pty Limited [2002] NSWIRComm 68. The Full Bench in that case granted leave, to the extent necessary, for the defendants to re-argue the correctness of the judgment in Ridge. In the context of determining whether applications for summonses were invalid because a judge did not make them, the Full Bench in Lucon said: 62 The Court determined in Ridge that proceedings for a summary offence under the Occupational Health and Safety Act before the Commission in Court Session are validly commenced when an application is made in accordance with r 219(1). The Court considered that this conclusion was clear on the face of the relevant provisions. The conclusion was reached by particular reference to the judgment of the Court of Criminal Appeal in McGerty v Dairy Farmers Co-operative Ltd (1989) 43 A Crim R 308, the judgment of the High Court in John L Pty Ltd v Attorney General for the State of New South Wales (1987) 163 CLR 508 and that of Marks J of this Court in WorkCover Authority of New South Wales (Inspector Lancaster) v Re-Car Consolidated Industries (Wagga) Pty Ltd (unreported, 14 July 1999). 63 We consider that this reasoning, which we do not consider was seriously challenged in the present proceedings, is correct. We adopt, without repeating, the reasoning set out in the judgment in Ridge (100 IR at 167 - 169 in [27] to [33]). 64 It may be observed that proceedings may also be validly commenced if any defects in the application or non-compliance with r 219(1) are capable of being cured pursuant to s 170 of the Industrial Relations Act or s 6 of the Summary Jurisdiction Act . We consider those provisions again in dealing with Questions 2 and 4. 65 The question is, therefore, whether the reference in s 4(1)(a) of the Summary Jurisdiction Act to an application "being made by any person … in accordance with the rules" requires that an implication be read into r 219(1) that the application must be directly made to a Judge. We do not accept that there is a proper basis for such an implication. The requirement that the application be made in accordance with the rules incorporates, by the reference in s 168(3)(b) of the Industrial Relations Act to this Court's rules, the provisions of r 7 which refers to the commencement of proceedings in the office of the Registry in Sydney. 66 In any case, an objective consideration of the applications for summonses and the accompanying affidavits makes clear that they were applications for orders within the meaning of s 4(1)(a) of the Summary Jurisdiction Act . The character of the documents is to be determined by considering their substantive character rather than by focusing on the manner in which they may be titled or upon the prosecutor's subjective intentions: The Queen v Loewenthal; Ex parte Blacklock (1974) 131 CLR 338 at 345 per Mason J; Minister for Youth and Community Services v Health and Research Employees' Association of Australia, NSW Branch (1987) 10 NSWLR 543 at 549 per Kirby P; and see also Taylor v Environment Protection Authority 50 NSWLR at 55 - 56 and Coulson v T Lambert Pty Ltd [1976] AR NSW 45 at 46. 29 It will be necessary to return to the judgment in Lucon because the Full Bench in that case also had occasion to consider a number of matters arising out of the judgments of Schmidt J ((2000) 101 IR 271, (2002) 108 IR 121), which are critical to issues on this appeal.

[66]

50 In Carr v Finance Corporation of Australia Ltd (1981) 147 CLR 246, Gibbs CJ (with whom Mason and Murphy JJ agreed as to the nature of the order) said at 248: The question whether a judgment is final or interlocutory for the purpose of the rules relating to appeals is one productive of much difficulty. The test now applied in this Court for determining whether a judgment is final or not is whether the judgment or order appealed from, as made, finally determines the rights of the parties: Licul v Corney (1976) 50 ALJR 439, at p 444. An order refusing to set aside a default judgment does not as a matter of law finally dispose of the rights of the parties, for it is open to the disappointed defendant to apply again to have the judgment set aside : Hall v Nominal Defendant (1966) 117 CLR 423 at p 440. In practice, in some cases a second application of that kind might be successful, for example, when the first application had been dismissed on a technicality. In other cases, however, the second application would be doomed to failure because the issues of substance which it raised would have been decided adversely to the defendant in the first application. The appellants here submit that their right to make a further application is purely theoretical, since any such application must necessarily fail, and urge that in these circumstances the judgment should be regarded as a final one. (at p248) In my opinion the test in Licul v Corney requires the Court to have regard to the legal rather than the practical effect of the judgment. If this were not so, the question whether a judgment is final or interlocutory would be even more uncertain than it is at present. In some cases it would be necessary for the Court, for the purpose of determining the practical effect of an order refusing to set aside a default judgment, to embark on a detailed inquiry as to the facts of the matter and the course of the proceedings already taken - an inquiry quite inappropriate when the only issue is whether a right of appeal exists. As will be seen, it would be necessary to make an inquiry of that kind in the present case if the practical test were to be adopted. The rigour of the rule that the legal effect of the judgment is decisive may of course be mitigated by the exercise of the Court's power to grant special leave to appeal.

[75]

The more difficult issue is whether the view of the Full Court endorsed by the Privy Council is inconsistent with the test now established in Australia for determining whether an order is final or interlocutory. While the order made by Beach, J. stands, it might well prevent the appellant from bringing a fresh proceeding on the same alleged cause of action. Compare South-West Forest Defence Foundation Inc. v Executive Director of the Department of Conservation and Land Management [1998] H.C.A. 34, para. 8 and fn. 3. Quaere, however, whether that is because the fresh proceeding would be an abuse of process or because his Honour's order finally determined the rights of the parties in the relevant sense. Compare D.A. Christie Pty. Ltd. v. Baker [1996] 2 V.R. 582. In my view we should not pursue those questions to a conclusion or refuse to apply Tampion v. Anderson , despite the fact that so much of its reasoning reflects English authorities that have since been discredited in Australia, although not in all overseas jurisdictions. See Mr. Beck's note in (1993) 109 L.Q.R. 30, especially at pp.31-32, and compare Haron bin Mohammed Zaid v. Central Securities (Holdings) Bhd . [1983] 1 A.C. 16 at pp.25-28. There are two reasons for that view. One is that the High Court itself has declined to say that Tampion v. Anderson is inconsistent with its own decisions and has said that there may well be a material difference between an order of the kind with which we are concerned and the order which, in Port of Melbourne Authority v. Anshun Pty. Ltd. [No. 1] , it held to be final. See also Hall's Case at p.440. The other reason is that, in Wickstead v Browne (1992) 30 N.S.W.L.R. 1, the New South Wales Court of Appeal expressly decided the point that is in issue before us in a sense favourable to the respondent. In that case one of the defendants to certain proceedings applied for an order pursuant to Part 13 rule 5 that they be "dismissed on the ground that no reasonable cause of action was disclosed". That is recorded in the judgment of Handley and Cripps, JJ.A. at p.7G and is to be borne in mind in understanding the expression "summary dismissal" on the next page and later in the judgment. At p.11 their Honours said: "When the appeal was called on, the Court drew attention to the need for leave to appeal since the orders for summary dismissal were interlocutory. Mr. Spender QC submitted that the orders were final but we are satisfied on binding authority that they were interlocutory and that leave to appeal was required: see Hall v Nominal Defendant (1966) 117 CLR 423 at 440 per Taylor J who referred to English authority directly in point dating from 1890 and Tampion v Anderson (1973) 48 ALJR 11 at 12; 3 ALR 414 at 415-417, a decision of the Privy Council. The point was in truth unarguable." 57 We consider that what flows from Tampion v Anderson, Hall v Nominal Defendant, Little v State of Victoria, Wickstead v Browne and Hunt v Allied Bakeries Ltd is that: · An order staying an action on the ground that it is frivolous, vexatious and an abuse of the process of the Court is an interlocutory judgment. · Tampion v Anderson is not inconsistent with Anshun. · There is no difference between dismissing an action and ordering that it be forever stayed or between the grounds that the action is frivolous and vexatious on the one hand or that no reasonable cause of action is disclosed on the other. · An order for summary dismissal of a plaintiff's claim is interlocutory. 58 In R v Cheng (1999) 48 NSWLR 616 the Court of Criminal Appeal considered an appeal by the Crown against a judgment of Woods DCJ where his Honour, after reviewing the evidence, concluded that there was "no evidence beyond reasonable doubt of shared intention", which his Honour identified as a critical element in the charge of conspiracy. His Honour said in conclusion: My conclusion is that no reasonable jury could properly convict on this charge. Accordingly I will direct the jury that there is no case to answer and that the proper verdict is a verdict of not guilty.

[101]

80 Summons prosecutions were issued in respect of the three defendants in relation to each of the charges requiring them to appear and answer the charges made against them. An identified officer of the Registry apparently signed the summonses "For" the Registrar. The defendants filed notices of motion seeking to have the summonses against them struck out or permanently stayed (Leightons), or dismissed (Lucon and Lurgi). At the hearing of the motions all parties submitted that questions arising from the motions be referred to a Full Bench for consideration. The questions ultimately framed were in the following terms: 1. Whether each of the prosecutions should have been commenced by application to a Judge of the Industrial Relations Commission of New South Wales in Court Session having regard to: (a) Section 47(1)(b) of the Occupational Health and Safety Act 1983; (b) Section 168 of the Industrial Relations Act 1996; and (c) Sections 2, 3, and 4(1)(a) of the Supreme Court (Summary Jurisdiction) Act 1967. 2. Whether, if the Registrar had power to issue such summonses, he could lawfully do so in the absence of material before him justifying an extension of the limitation period as provided by Section 49(4) of the Occupational Health and Safety Act having regard to Rule 220 and his duty to exercise a judicial discretion? 3. Whether the summonses were validly issued if not signed by the Registrar or on his behalf? 4. Whether the invalidity can now be cured outside of the limitation period prescribed by Section 49(1) and Section 49(4) of the Occupational Health and Safety Act . 81 In answering the first question referred, the Full Bench in Lucon found that a person may only be ordered to appear before the Commission in Court Session to answer a charge under the Occupational Health and Safety Act by an order made by a judge in accordance with s 4(1) of the Summary Jurisdiction Act and that the purported summonses issued by the Registrar did not have the legal effect of requiring the defendants to appear before the Court: see [49] to [53].

[105]

85 The Full Bench in Lucon determined that in so far as Schmidt J found r 219(1)(d) required that the application for summons and accompanying affidavit must state s 49(4) is relied upon, her Honour was in error. Further, that compliance with s 49(4) does not form part of the "nature of the breach or offence which is alleged" and, therefore, r 219(1)(e) does not require specification of the details of, or the basis for, reliance on s 49(4): see [81] to [94]. The core of the Full Bench's decision in this respect is at [91] to [94] of the judgment: 91 The critical point for present purposes, however, is that made in R v Cooling ([1990] 1 Qd R at 378), where Thomas J said, with the concurrence of Ambrose J: Commencement of the prosecution within the prescribed time limit is not an element of the offence, and there is no requirement that the indictment show compliance with such requirement on the face of the indictment. In their further submissions, the defendants did not, in terms, respond to these authorities or provide any basis to challenge or distinguish the conclusion and approach in R v Cooling . 92 We consider that the approach in R v Cooling is correct and should be applied. The first proposition in the sentence extracted from the judgment of Thomas J is self-evidently correct; the contrary is not arguable as a matter of legal principle, as a matter of simple definition or in terms of the ordinary use of the phrases "[the provision] under which the application is made" and "the nature of the … offence which is alleged" as they appear respectively in paragraphs (d) and (e) of r 219(1). The balance of his Honour's statement is consistent with general principle: for example, the inappropriateness of pleading in avoidance of an anticipated or assumed defence (including a defence relying on a limitation period): Ritchie's Supreme Court Practice New South Wales at paragraph [15.7.3], p 2360; Young, O'Leary and Hogan Supreme Court Civil Procedure New South Wales 2nd ed, 1987, p 164 and Cairns Australian Civil Procedure 4th ed, 1996, pp 268 - 269. It is also consistent with principles developed outside the criminal jurisdiction: see, for example, the judgment of the Court of Appeal in Minister for Youth and Community Services v Health and Research Employees' Association of Australia, NSW Branch (10 NSWLR at 550 per Kirby P), and those of the High Court in Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 at 375, 385, 388 - 389, 391, Adams v Chas S Watson Pty Ltd at 553, 559 and Commonwealth of Australia v Verwayen (1990) 170 CLR 395 at 405, 425, 456, 473, 486 - 487, 497 - 498 which refer to the longstanding principle that limitation provisions do not affect the jurisdiction of a court but rather provide a defence or plea in bar. 93 It is unfortunate that Schmidt J appears not to have been taken to any of the authorities which we have had the advantage of considering on this issue. We consider that reliance on (or reference to such reliance on) the time limits in s 49(1) or s 49(4) is not an element of offences under the Occupational Health and Safety Act . It therefore follows that in so far as her Honour held that r 219(1)(d) requires that the application for summons and accompanying affidavit must state that s 49(4) is relied upon, her Honour was in error. The application is made under the provisions which create the offences (for example, s 15, s 16 or s 17 in the present matters) and not under s 49(4). Similarly, compliance with s 49(4) does not form part of "the nature of the breach or offence which is alleged" and, therefore, r 219(1)(e) does not require specification of the details of, or the basis for reliance on, s 49(4). The considerations such as those referred to by her Honour at paragraph [52] of her judgment (see paragraph [87] above) also demonstrate error. That approach tends to assimilate the role of the court with that of the prosecutor and represents a view of the legislative scheme which, for the reasons discussed subsequently by reference to the judgment of the Court of Criminal Appeal in McConnell Dowell Constructors (Aust) Pty Limited v Environment Protection Authority [2000] NSWCCA 367, courts would very rarely consider appropriate. 94 There is therefore no lack of validity in any of the applications by reason of any failure to specify a reliance upon the extended time limit in s 49(4) or the basis for any reliance of that provision; and, for reasons which we now discuss, any such so-called "failure" does not affect the mandate in s 4(1)(a) of the Summary Jurisdiction Act.

[110]

90 The situation regarding the applications in the matters the subject of this appeal is quite similar to that in Lucon. The applications had validly commenced the proceedings in accordance with r 219(1) but the summonses had been issued by the Registrar and, therefore, did not have the effect of requiring the defendants to appear before the Court. In Lucon the Full Bench said: 125 It should be emphasised that in the scheme considered in McGerty it was the filing of a summons seeking an order that the person attend court to be charged which commenced the proceedings. In the present scheme, it is the filing of an application for summons in accordance with r 219(1) which commences the proceedings. We consider that the approach in McGerty is therefore applicable in the present proceedings. The applications for summonses in accordance with r 219(1) validly commenced the proceedings. An "application for summons" under r 219(1) is a valid method prescribed by the rules for an application to be made for an order under s 4(1) of the Summary Jurisdiction Act . The fact that the Registrar had no power to issue the purported summonses, therefore, cannot in any way detract from the jurisdiction of a judge to consider the applications in accordance with s 4(1). At an appropriate time a judge will therefore be required to consider the applications filed. 126 The approach adopted by Marks J in WorkCover Authority of New South Wales (Inspector Lancaster) v Re-Car Consolidated Industries (Wagga) Pty Ltd was consistent with that in McGerty. See also the judgment of Boland J in WorkCover v Red Lea Chickens . 127 We now turn to consider Mr Barker's submission that it would be unjust to allow a prosecutor to be able to make a fresh application to a judge having first applied under an invalid rule to the Registrar. He said that the nature of the injustice was that the prosecutions would be commenced out of time. 128 The difficulty with this submission is that proceedings for offences under the Occupational Health and Safety Act are not commenced by the making of an order under s 4(1) of the Summary Jurisdiction Act but rather by the making of an application in accordance with r 219(1) and s 4(1) for an order to be made under the section. The time within which proceedings "may be instituted" in accordance with s 49(1) and s 49(4) of the Occupational Health and Safety Act is the time within which an application must be filed under s 4 of the Summary Jurisdiction Act in accordance with r 219(1): see M cGerty per Gleeson CJ (43 A Crim R at 311). 129 On the other hand, depending upon the approach adopted by the judge in considering the applications, it is possible that the defendants may be able, at that point, to argue that it would be unjust or an abuse of process to issue orders pursuant to s 4(1)(a) against them: see, for example, Whitten v Hall ( 1993) 29 NSWLR 680 .

At a glance

Court

Decision date

Before

Source

Judgment (119 paragraphs)

Parties

Legislation Cited (4)

Cases Cited (50)

Cited By (3)