Mansell v TMG International Pty Ltd

THIRD RESPONDENT Arup Partner Pty Limited

FOURTH RESPONDENT Ove Arup Consult Pty Limited FILE NUMBER: IRC 4138 of 2001 CORAM: Wright J President; Walton J Vice-President; Boland J Appeal - Application for appeal and leave to appeal - Application to extend time to appeal -Practice and Procedure - Occupational health and safety - 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.

CATCHWORDS : Occupational health and safety - Practice and Procedure - 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.

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

APPELLANT Hon. J W Shaw QC with Mr P Skinner of counsel Solicitors: Mr N Correy Moray & Agnew Solicitors

FIRST RESPONDENT Mr M J Neil QC with Mr A J Tudehope of counsel LEGAL REPRESENTATIVES: Solicitors: Mr G Molloy Graham Molloy & Associates

SECOND, THIRD & FOURTH RESPONDENTS Mr P H Greenwood SC with Mr R J Grady of counsel Solicitors: Mr J C Sheller Phillips Fox

JUDGMENT: - 49 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION FULL BENCH CORAM: Wright J, President Walton J, Vice-President Boland J Monday 27 May 2002 Matter No IRC 4138 of 2001 INSPECTOR PAUL ANTHONY MANSELL v TMG INTERNATIONAL PTY LTD & ORS Application to extend time to appeal and appeal against decisions of Justice Schmidt given on 29 August 2000 and 31 May 2001 in Matter Nos IRC 5460 to 5465, 5466 to 5471, 5472 to 5477 and 5478 to 5483 of 1999

JUDGMENT OF THE COURT [2002] NSWIRComm 112

1 These proceedings involve an appeal, an application to extend time to appeal and, if necessary, an application for leave to appeal, by Paul Anthony Mansell, an Inspector of the WorkCover Authority of New South Wales, against two judgments of Schmidt J, being those in WorkCover Authority of New South Wales (Inspector Maltby) v State Rail Authority of New South Wales (2000) 101 IR 271 given on 29 August 2000 and WorkCover Authority of New South Wales (Inspector Maltby) v State Rail Authority of New South Wales (2001) 108 IR 121 given on 31 May 2001. The matters appealed against are: 1) The refusal of Schmidt J to issue orders under s 4 of the Supreme Court (Summary Jurisdiction) Act 1967 (" Summary Jurisdiction Act "); 2) The dismissal by her Honour of each of the prosecutions. 2 On 4 December 1995 at about 2.00 pm an explosion and fire occurred in Railway Parade, Kogarah. Two people died as a result of the explosion and fire and a number of others, including members of the New South Wales Police Service, were injured. A second explosion occurred about one and a half hours after the first and several firefighters were injured.

3 It appears that the explosions and fire were caused by the ignition of gas escaping from a natural gas pipeline in, or in the vicinity of, a construction site associated with upgrading works at the Kogarah Railway Station.

4 A coronial inquest and inquiry were held during the period 9 December 1996 and 14 May 1997 into the deaths and the explosions and fire. The Coroner handed down his findings on 17 October 1997.

5 On 12 October 1999, 77 prosecutions in connection with the events of 4 December 1995 were initiated or purported to be initiated by the appellant and another inspector of the WorkCover Authority in the Industrial Registry pursuant to the Occupational Health and Safety Act 1983. The four respondents to this appeal (TMG International Pty Limited Ove Arup Pty Limited, Arup Partner Pty Limited, Ove Arup Consult Pty Limited) were each charged with offences under s 16(1) and s 17(1)(a) of the statute.

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.

9 Subsequently, the respondents each filed notices of motion seeking the dismissal of the prosecutions on the ground that they had been commenced after the expiration of the two year limitation period provided by s 49(1) of the Occupational Health and Safety Act. Section 49(1) provides: (1) Notwithstanding anything in any other Act, proceedings for an offence against this Act or the regulations may be instituted within the period of 2 years after the act or omission alleged to constitute the offence.

Judgments at first instance 10 Schmidt J heard the respondents' motions and on 29 August 2000 her Honour delivered judgment. The relevant findings of Schmidt J may be summarised as follows:

· Both the prosecutor and the Court must be satisfied, at the outset, that the prosecution proposed is not beyond time. That will flow from a satisfaction that the offence with which the defendant is to be charged is an offence which appears to have been committed having regard to the Coroner's report or the proceedings. · In this case there was no evidence that the prosecutor was so satisfied. The prosecutor refused to give the defendants particulars of what it was in the report or the proceedings on which the prosecutor had relied in coming to the view that it appeared the offences with which they had been charged had been committed. The prosecutor plainly failed in that refusal.

· There had been an earlier failure to comply with the requirements of Rule 219(d) (sic). The prosecutor is thereby obliged to state the Act and the section under which the application was made. Given that all of the applications on their faces were outside the ordinary limitation period provided for prosecutions under the OH&S Act, a reference to s49(4) was required. Further, Rule 219(e) (sic) required that the nature of the offence alleged be specified. This also required specification of what it was in the Coroner's report or the proceedings on which the prosecutor relied.

· It cannot be the case that the question of whether a prosecution is brought within time is to be left for determination as a part of the prosecution itself. This is a matter about which the prosecutor and the Court must have a basis for satisfaction when the proceedings are commenced.

· The prosecutor's failures to comply with the requirements of r 219 did not operate so as to make the proceedings a nullity. The deficiencies are such as to attract the provisions of s170 of the 1996 Act. · In issuing a summons under s4 of the Supreme Court (Summary Jurisdiction) Act a judge of this Court or of the Supreme Court is not bound to act either mechanically or as a rubber stamp. It is inconceivable that a judge would be bound to issue a summons in respect of a prosecution under the OH&S Act, plainly brought out of time. There must be something put forward by a prosecutor which permits the judge to form a view that the summons should be issued, it being within the time prescribed by s 49(4). What has been pointed to at this stage does not permit any view to be formed as to that matter. · Neither the Court nor the defendants are yet aware of the prosecutor's view of what makes it appear from the Coroner's report or proceedings at the inquest or inquiry that an offence has been committed against the OH&S Act or regulations in any of the prosecutions here under consideration. · The question that now arises is whether orders should be made under s 4 of the Supreme Court (Summary Jurisdiction) Act. Until satisfied that these prosecutions were brought within time, it is not appropriate for such orders to be made.

· The proper course is for the prosecutor to be given an opportunity to consider this judgment, including whether all of these prosecutions are properly available to be pursued, in light of the proper construction of s 49(4) of the OH&S Act and to then provide the relevant particulars to the defendants in respect of those prosecutions which are to be pursued

· In the light of the foregoing, it is not appropriate that the defendants' motions be dealt with to finality at this stage, because it may be that their applications will not be resolved by the particulars so provided. The defendants should not be denied the opportunity to further press these applications, once the prosecutor has provided such particulars. and her Honour made the following orders: 1. Within 28 days of this judgment, the prosecutor is to provide each of the defendants with particulars of any prosecution which will be pressed, identifying the part or parts of the Coroner's report or proceedings at the inquest or inquiry from which it appears that the offence charged has been committed. 2. The parties have liberty to have these matters restored to the list on suitable notice.

11 It may be noted that r 219(1) has been amended since the commencement of proceedings before Schmidt J and is now r 217B(1) and (2). Nothing turns on this amendment.

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

14 Initially, Inspector Mansell appealed pursuant to s 5F of the Criminal Appeal Act 1912 as applied to the Commission in Court Session in criminal proceedings by s 196 of the Industrial Relations Act 1996. The appeal was framed as being made against the judgments of Schmidt J of 29 August 2000 and 31 May 2001 in respect of her Honour's refusal to issue orders under s 4 of the Summary Jurisdiction Act and her dismissal of each of the prosecutions. As it will be explained, the appellant later sought to rely not only on s 5F but also, in the alternative, on s 5C of the Criminal Appeal Act or, in the further alternative, s 187 of the Industrial Relations Act.

15 It should be noted that one of the matters before Schmidt J concerned prosecutions against the SRA in respect of the events of 4 December 1995. An appeal was brought against her Honour's judgments in respect of the SRA but it was later discontinued by leave, with no order as to costs. It should also be noted that in relation to the charges brought against the respondents to this appeal under s 16 of the Occupational Health and Safety Act, the appellant informed the respondents that these charges would not be pressed and that leave would be sought to withdraw the appeals in respect of them. That left for consideration on appeal only the charges under s 17 against each of the four respondents and we have proceeded on that basis.

16 The appellant also filed an application to extend time to appeal in respect of Schmidt J's judgment of 29 August 2000 on the ground that the issues raised in that judgment were interrelated with her Honour's judgment of 31 May 2001 and so, in determining any appeal, contended it would be unfair not to allow a review of the earlier judgment.

17 As to the appeal proper, the grounds were as follows: 1. Her Honour denied procedural fairness to the appellant in declining to extend the time for the filing of particulars which in her judgment on 29 August 2000 she ordered to be filed. 2. Her Honour denied procedural fairness to the appellant in drawing inferences in her judgment of 31 May 2001 adverse to the appellant based on a failure to provide material which her Honour had not in her judgment on 29 August 2000 ordered should be provided or otherwise made clear should be provided to avoid drawing adverse inferences. 3. Her Honour erred in her exercise of her discretion to not grant an extension of time to the appellant to comply with order 1 made by her on 29 August 2000. 4. Her Honour erred in holding that she had a discretion to decline to issue orders under section 4 of the Supreme Court (Summary Jurisdiction) Act , 1967. 5. In the alternative to 4, her Honour erred in her exercise of her discretion under section 4 of the Supreme Court (Summary Jurisdiction) Act , 1967 to decline to issue orders. 6. Her Honour erred in holding she had a discretion under s 170 of the Industrial Relations Act , 1996 to dismiss each proceeding. 7. In the alternative to 6, her Honour erred in her exercise of her discretion to dismiss the proceedings. 8. Her Honour erred in holding that the opinion of the appellant as to whether each of the prosecutions was in time or not was a matter justiciable by her. 9. Her Honour erred in holding it was for the appellant to satisfy her that the prosecutions were all commenced within the time provided by section 49(4) of the Occupational Health and Safety Act , 1983 rather than for the respondents to satisfy her they were out of time. 10. Her Honour erred in holding that all aspects of the charges in each of the prosecutions must appear from the coroner's report or proceedings at the inquest or inquiry. The appellant did not press grounds 1 and 2.

18 In July 2001, the respondents to the appeal filed notices of motion seeking to have the appeal, and the application to extend time, dismissed as incompetent. In the alternative it was put that grounds 8 and 10 of the appeal be dismissed on the basis they were not proper grounds.

19 There were two motions filed, one on behalf of TMG International Pty Limited and the other on behalf of the Ove Arup group of companies. The motions were expressed in similar terms. The grounds and reasons for the motions went primarily to the contention that s 5F of the Criminal Appeal Act could not be used to bring the appeal because it related to interlocutory orders and the effect of the orders made by Schmidt J were final.

20 The appellant later changed its position in relation to the application of s 5F of the Criminal Appeal Act and sought leave to bring the appeal pursuant to s 187 of the Industrial Relations Act. At the hearing of the motions and the appeal, and having notified the respondents of a further change in its position, the appellant sought leave to rely not only on s 5F but also, in the alternative, on s 5C of the Criminal Appeal Act or, in the further alternative, on s 187 of the Industrial Relations Act. When the matters came before the Full Bench in February 2002 all parties took the opportunity to make submissions on the motions, the application to extend time and the appeal proper. There was also full debate on the issue of the statutory basis of the appeal.

21 Before turning to a consideration of the statutory basis of the appeal, it is necessary to clarify the precise issues that were before the judge at first instance and to understand the nature of Schmidt J's orders of 29 August 2000 and 31 May 2001. The necessity for this arises out of the need to determine whether her Honour's orders were final or interlocutory and, hence, whether an appeal lies under s 5F of the Criminal Appeal Act.

22 The original proceedings were commenced by applications for summonses, filed together with affidavits verifying the applications sworn by the prosecutor, and draft summonses for signature by the Industrial Registrar. The Registrar issued the summonses on 12 October 1999.

23 The respondents subsequently filed their motions seeking dismissal of the prosecutions and Schmidt J commenced to hear the motions on 21 June 2000. Up to this point no order had been issued pursuant to s 4(1) of the Summary Jurisdiction Act ordering the respondents to appear at a time and place specified in the order to answer to the offences charged in the order.

24 On 18 August 2000 the Full Bench (Wright J, President, Walton J, Vice-President, Hungerford J) delivered judgment in Ridge Consolidated Pty Ltd v WorkCover Authority of New South Wales (Inspector Mauger) (2000) 100 IR 156. The proceedings before Schmidt J concluded on 21 August 2000 and her Honour handed down judgment on 29 August 2000.

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.

26 The Full Bench in Ridge also made the following observations at 170: 38 Once it is accepted that s 170 applies to these proceedings, the effect of s 170(3) is to bring about a situation where any failure to comply with the Industrial Relations Act or a Rule of the Commission in relation to the institution or conduct of proceedings before it is to be treated, not as a nullity, but as an irregularity. This construction should not be seen as inconsistent with the requirements of fairness, the proper administration of justice or the rights of an accused to a fair trial. Section 170 provides (for example in sub-section (4) thereof), wide powers in the Commission to set aside the proceedings, or a step taken in the proceedings, in circumstances where it considers it just and appropriate to do so. In any event, as recently observed by the Court of Appeal in Director of Public Prosecutions v West [2000] NSWCA 103 at 24: There is a legitimate public interest in the conviction of those guilty of crime so long as the fairness of the trial is not compromised ( Ridgeway v The Queen (1995) 184 CLR 19 at 32, 75).

27 Ridge was followed by a Full Bench in WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (No 2) (2000) 101 IR 92.

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.

30 In the meantime, however, as Ridge and Lucon make clear, once the requirements of r 219(1) had been complied with, the proceedings have been properly and validly instituted and that if there are any deficiencies in the institution of proceedings pursuant to r 219(1), the provisions of s 170 of the Industrial Relations Act or s 6 of the Summary Jurisdiction Act may rectify, or be applied to rectify, these deficiencies. That was the approach adopted by Schmidt J albeit, as we will later explain, on a wrong premise.

31 Her Honour found that there were deficiencies in the institution of the proceedings in that the prosecutors had failed in their applications for summonses to refer to s 49(4) of the Occupational Health and Safety Act and failed to specify what it was that the prosecutors relied upon as being satisfied that the offences with which the respondents were to be charged were offences that appeared to have been committed having regard to the Coroner's report or the proceedings. Schmidt J considered that, in these circumstances, the requirements of r 219(1)(d) and r 219(1)(e) had not been met.

32 Consequently, her Honour declined to issue orders under s 4(1) of the Summary Jurisdiction Act until such time as the deficiencies she had identified had been rectified. Schmidt J made orders directing the prosecutors 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 offences charged had been committed and that this was to be done within 28 days.

33 In the judgment of 31 May 2001, her Honour found that the prosecutors had failed to comply with her order to provide the relevant particulars within the time limit she had set and had been unable to identify the part or parts of the Coroner's report or proceedings from which it appeared that the offences charged had been committed. In other words, Schmidt J concluded that: · The prosecutors' failure to consider whether the offences with which the defendants were charged were available to be brought when they were launched had led to an abuse of process.

· The prosecutor's inability to demonstrate that the coronial material supported the view that it there appeared that the offences charged had been committed meant that, notwithstanding the further opportunity provided to them to do so, the prosecutors had been unable to comply with r 219(1).

· The prosecutors had failed to comply with the Court's order regarding the time in which they were to provide particulars to the defendants. 34 As a consequence of these shortcomings in the prosecutors' position, Schmidt J dismissed the proceedings, that is, the proceedings commenced by the prosecutors under r 219(1), and declined to issue the summonses under s 4(1) of the Summary Jurisdiction Act. The fact that Schmidt J declined to issue the summonses under s 4(1) of the Summary Jurisdiction Act is to be seen as a natural consequence of the dismissal of the proceedings. In other words, having dismissed the proceedings, no question arose as to the issue of summonses.

35 It is not entirely clear to us from Schmidt J's judgment of 31 May 2001 whether or not she dismissed the proceedings on the sole basis of abuse of process or whether there were three separate bases upon which she dismissed the proceedings, namely: (i) abuse of process because of the prosecutors' failure to consider whether the offences with which the defendants were charged were available to be brought when they were launched; (ii) the prosecutors' failure to comply with r 219(1)(d) and (e); and (iii) the prosecutors' failure to comply with the Court's order regarding the time in which they were to provide particulars to the defendants. Ultimately, it makes no difference to our conclusions whether there was one basis or three for dismissing the proceedings but it is a relevant issue in determining whether the order dismissing the proceedings was final or interlocutory.

36 If the judgments and orders of 29 August 2000 and 31 May 2001 are interlocutory then the provisions of s 5F of the Criminal Appeal Act will govern the appeal. If, on the other hand, the judgments and orders are final in nature consideration will need to be given to whether the appeal lies under s 5C of the Criminal Appeal Act or s 187 of the Industrial Relations Act.

37 Section 5F of the Criminal Appeal Act applies to appeals in respect of criminal proceedings from a judicial member of the Commission by virtue of s 196 of the Industrial Relations Act. Section 196 provides, inter alia, for the application of the provisions of the Criminal Appeal Act to appeals in criminal proceedings in the Commission in Court Session in the same way as they apply to appeals from a judge of the Supreme Court in its summary jurisdiction to the Court of Criminal Appeal.

38 Section 196 of the Industrial Relations Act provides: 196. Appeals from and references by members of Commission in criminal proceedings (1) This section applies (and the other provisions of this Part do not apply) to appeals and references to the Full Bench of the Commission in Court Session in respect of criminal proceedings taken before a judicial member of the Commission. (2) The Criminal Appeal Act 1912 applies to any such appeal or reference in the same way as it applies to an appeal or reference to the Court of Criminal Appeal in respect of criminal proceedings taken before a Judge of the Supreme Court in its summary jurisdiction. (3) For the purposes of subsection (2), a reference (however expressed) in the Criminal Appeal Act 1912 : (a) to the Court of Criminal Appeal---is taken to be a reference to a Full Bench of the Commission in Court Session, and (b) to the Supreme Court---is taken to be a reference to the Commission in Court Session, and (c) to rules---is taken to be a reference to rules of the Commission, and (d) to the Attorney General---is taken to include a reference to the Minister, and (e) to the Director of Public Prosecutions---is taken to include a reference to the prosecutor in the proceedings before the Commission in Court Session, and (f) to the registrar---is taken to be a reference to the Industrial Registrar. (4) Subsection (2) does not apply to any provision of the Criminal Appeal Act 1912 relating to costs.

39 Section 5F of the Criminal Appeal Act relates to appeals against interlocutory judgments or orders and provides as follows: 5F. Appeal against interlocutory judgment or order

(1) This section applies to: (a) proceedings (including committal proceedings) for the prosecution of offenders on indictment in the Supreme Court or in the District Court, and (b) proceedings under section 51A of the Justices Act 1902 , and (c) proceedings in Class 5 of the Land and Environment Court's jurisdiction (as referred to in section 21 of the Land and Environment Court Act 1979 ). (2) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in proceedings to which this section applies. (3) Any other party to proceedings to which this section applies may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in the proceedings: (a) if the Court of Criminal Appeal gives leave to appeal, or (b) if the judge, justice, justices or magistrate of the court of trial certifies that the judgment or order is a proper one for determination on appeal. (4) An appeal under this section shall, unless the Court of Criminal Appeal gives leave to adduce fresh, additional or substituted evidence, be determined on the evidence (if any) given in the proceedings to which the appeal relates. (5) The Court of Criminal Appeal may: (a) affirm or vacate the judgment or order appealed against, or (b) give or make an interlocutory judgment or order instead of the judgment or order appealed against. (6) If leave to appeal under this section is refused by the Court of Criminal Appeal, the refusal does not preclude any other appeal following a conviction on the matter to which the refused application for leave to appeal related. (7) A person may not appeal to the Court of Criminal Appeal under this section against an interlocutory judgment or order if the person has instituted an appeal against the interlocutory judgment or order to the Supreme Court under Part 5 of the Justices Act 1902 .

40 The term "indictment" used in s 5F(1)(a) of the Criminal Appeal Act is defined in s 2 of that Act as follows: Indictment includes any information presented or filed as provided by law for the prosecution of offenders.

41 The term "indictment" was considered in Ridge at 162 and Concrete Constructions Group Ltd v WorkCover Authority of New South Wales (Inspector Dubois) (2000) 99 IR 16 at 19. In Concrete Constructions the Full Bench (Walton J Vice-President, Glynn and Kavanagh JJ) said: 14 Whilst not the subject of submissions before us, it would appear that the provisions of s5F(3) apply in this matter. Having regard to the definition of indictment under s2 of the Criminal Appeal Act 1912 it would seem the proceedings constitute "the prosecution of offenders on indictment" for the purpose of s5F(I). The appeal is brought by the defendant in the proceedings, and hence, the appeal attracts the provisions of s5F(3)(a) and would require leave be granted to bring the appeal.

42 In Ridge the Full Bench said at 162: 15 The appellant submits that an appeal lies in this matter, although it accepts that leave to appeal is required, because of the extended meaning given to the term "indictment" in s 5F by virtue of the definition in s 2 of the Criminal Appeal Act. That definition is in the following terms: "Indictment" includes any information presented or filed as provided by law for the prosecution of offenders. 16 We consider that this submission is correct: see Concrete Constructions Group Ltd v WorkCover Authority of New South Wales (Inspector Dubois) [2000] NSWIRComm 32 at 14. The clear intention of s 5F, when read with the definition referred to, is to give a right of appeal, subject to leave to appeal being granted in non-prosecution appeals, in a wide range of criminal proceedings in various courts.

43 Nothing that has been put in these proceedings would cause us to take a different view of s 5F to that expressed by the Court in Concrete Constructions and Ridge. Consequently, the extended meaning given to the term "indictment" in s 2 of the Criminal Appeal Act includes the summonses originally filed in these proceedings.

44 Section 5F(2) of the Criminal Appeal Act in its application to this jurisdiction by s 196 of the Industrial Relations Act provides for an appeal as of right by a prosecutor in respect of an interlocutory judgment or order. The central issue, therefore, in considering whether s 5F provides the statutory basis for an appeal in these proceedings is whether the judgments or orders of Schmidt J made on 29 August 2000 and 31 May 2001 were interlocutory.

45 As to the judgment and the orders of 29 August 2000, these were clearly interlocutory in nature. At 101 IR 271 at 293 Schmidt J said: 70 In that context, I have concluded, not without some hesitation, that in this case the proper course is for the prosecutor to be given an opportunity to consider this judgment, including whether all of these prosecutions are properly available to be pursued, in light of the proper construction of s49(4) of the OH&S Act and to then provide the relevant particulars to the defendants in respect of those prosecutions which are to be pursued. I also note that it is relevant to this conclusion that some of these offences have been alleged to have been committed on 5 December 1995, in circumstances where the Coroner was investigating events which occurred on 4 December. 71 In the light of that conclusion, I also take the view that it is not appropriate that the defendants' motions be dealt with to finality at this stage, because it may be that their applications will not be resolved by the particulars so provided. The defendants, in my view, should not be denied the opportunity to further press these applications, once the prosecutor has provided such particulars.

46 Identifying the nature of her Honour's judgment and orders of 31 May 2001 is more problematic. The observations by Macrossan J in Meddings v Council of the City of Gold Coast [1988] 1 Qd R 528, a decision of the Full Court of the Supreme Court of Queensland, provide a helpful consideration of the issue of the difference between final and interlocutory judgments or orders. His Honour said at 529: Characterisation of a judgment or order as being final or interlocutory is frequently a difficult process but there is no substantial authority at hand when the question involves an appeal rule cast in the form of s 92 or some similar form. The test which results from the decisions of the High Court in Hall v Nominal Defendant (1966) 117 CLR 423, Licul v Corney (1976) 50 ALJR 439 and Carr v Finance Corporation of Australia Ltd (1981) 147 CLR 246 should be applied here. Where there remains a right to make some further application of the kind which has been dealt with, it cannot be held that the order which has been made finally determines the rights of the parties. Also where an order made does not directly deal with the rights in contest in an action, it cannot be regarded as one finally determining those rights. An enquiry into the practical effect of an order which has been made should not be undertaken as the appropriate way of deciding whether the order is final or interlocutory: see Carr v Finance Corporation of Australia Ltd (above) at 248 per Gibbs CJ and at 256 per Mason J.

47 In Hall v Nominal Defendant (1966) 117 CLR 423 the majority of the Court (Taylor, Windeyer and Owen JJ, Barwick CJ dissenting) held that an order made under s 65A(3) of the Traffic Act 1925 (Tas) refusing an application for an extension of time within which to institute proceedings against the nominal defendant was not a final order within the meaning of s 35(1)(a) of the Judiciary Act 1960 (Cth). At 443 - 444 Windeyer J said: Coming then directly to whether an order made under s. 65A (3) enlarging the time for bringing into existence an essential element of the right is final or interlocutory: the distinction between final and interlocutory orders has in England caused much difficulty. The question can be approached and has been approached in several ways: see the Annual Practice, 1966, pp. 1664, 1665. Professor Wheatcroft, formerly a Master of the Supreme Court, who contributed the article on Judgments and Orders to the third edition of Halsbury's Laws of England, has listed (Halsbury vol. 22, p. 743) four different tests that have been suggested for ascertaining the finality of a judgment or order. In most cases the test that seems to be most satisfactory, and the one that accords most nearly with what has been said on the subject in this Court, is it seems to me to look at the consequences of the order itself and to ask does it finally determine the rights of the parties in a principal cause pending between them. It is never enough to ask simply does the order finally determine the actual application or matter out of which it arises; because, subject to the possibility of an appeal, every order does that, unless it be an order that is expressly declared to be subject to variation.

The effect of such decisions as there are of this Court on the point seems to me to be that when an action has been commenced between parties then whether an order in that action is interlocutory depends on whether or not it results in a final determination of that action. 48 In Licul v Corney (1976) 180 CLR 213 Barwick CJ said at 219 - 220: The first question arising from the objection to the competency of the appeal to this Court is whether the order of the Supreme Court was a final order within the meaning and operation of s 35(1)(a) of the Judiciary Act 1903 (Cth) (as amended). To be final for this purpose, the order, in my opinion, must of its own force put an end to the action or proceeding between the parties. It is not enough, in my opinion, that by reason of circumstances unconnected with and uncontrolled by the order itself, it may be or become impossible or impracticable to proceed with this action.

49 Gibbs J at 225 said: The distinction between final and interlocutory judgments is not always easy to draw and there has been disagreement as to the test by which the question whether a judgment is final or interlocutory is to be determined. One view - which was preferred by the Court of Appeal in Salter Rex and Co. v Ghosh [1971] 2 QB 597 - is that the test depends on the nature of the application made to the Court. The other view which, since Hall v Nominal Defendant (1966) 117 CLR 423 should, I think, be regarded as established in Australia, depends on the nature of the order made; the test is: Does the judgment or order, as made, finally dispose of the rights of the parties? Within either of those tests the judgment of the Full Court in the present case is not a final judgment. It does not have the effect of finally disposing of the rights of the parties. It leaves it open - at least in theory - to the applicants to make a further application, upon prior notice served on the respondent himself, for an extension of time for service of each summons, and if that extension is granted, and the summonses are served, to proceed with the actions. The order is therefore not final in nature whatever its practical effect may be. If it were right to test the matter by looking at the application rather than at the order the same result would follow even more clearly, since the application was not of such a character that whatever order was made on it would finally have disposed of the matters in dispute; in fact of course the order made by Judge Rapke did not do so.

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.

51 The approach taken by Gibbs J in Licul v Corney was adopted and applied by the High Court in Port of Melbourne Authority v Anshun Pty Ltd (No. 1) (1980) 147 CLR 35. In that case it was held that an order that proceedings in an action be stayed as an abuse of process on the ground that the matters in question could and should have been litigated in earlier proceedings is an order which finally disposes of the rights of the parties. At 38 Gibbs CJ (with whom Mason and Murphy JJ agreed) said: In support of the objection to competency before us, Mr. Griffith naturally relied upon the decision of the Privy Council in Tampion v Anderson (1973) 48 ALJR 11; 3 ALR 414, where it was held 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. Their Lordships in the course of their reasons refer to a number of authorities, but none of those authorities was a case in which a stay had been granted on the ground that there was an estoppel of the kind which McGarvie J. found to have been raised in the present case.

If the view expressed in Licul v Corney (1976) 50 ALJR, at p 444 is correct, and the true test of finality is whether the judgment or order, as made, finally disposes of the rights of the parties, it would seem clear that the order made in the present case was a final judgment. It is not necessary to consider whether the view expressed in Tampion v Anderson is one which is consistent with the view taken in the Australian authorities. There may well be a difference between a case in which the action is frivolous or vexatious in the ordinary sense, or in which the proceedings disclose no reasonable cause of action, and a case in which the abuse of process lies in an attempt to litigate an issue which is res judicata, and Tampion v Anderson has nothing to say about a case of the latter kind.

It seems to me that in the present case, as a matter of reality, the order made does finally dispose of the rights of the parties, and on that ground I would consider it to be a final order so that the objection to competency in my opinion ought to be overruled.

52 As Gibbs CJ observed, the abuse of process in Anshun arose out of an attempt to litigate an issue that was res judicata and he distinguished that from an action that was frivolous or vexatious and an abuse of process.

53 In Tampion v Anderson (1973) 3 ALR 414 the Judicial Committee of the Privy Council held that an order permanently staying an action on the ground that it is frivolous, vexatious and an abuse of process of the Court is an interlocutory judgment. At 416-417 the Privy Council said: As far as the present problem is concerned, namely, whether an order staying an action on the ground that it is frivolous, vexatious, and an abuse of process, the cases, and accordingly the practice book, leave no room for doubt. There is a consistent line of authority to the effect that such an order is an interlocutory judgment. It is not necessary to go further back than Re Page [ Re Page; Hill v Fladgate [1910] 1 Ch 489], in which Cozens-Hardy MR stated that at that date it was the established practice to treat an appeal against a "frivolous and vexatious" order as interlocutory, and cited, additionally, the decision of Chitty J in Price v Phillips (1894) 11 TLR 86 as having been given to the same effect. The matter is really put beyond doubt by the case of Hunt v Allied Bakeries Ltd [1956] 1 WLR 1326; [1956] 3 All ER 513, in the Court of Appeal, which by s 68(2) of the Judicature Act 1925, is declared to be the final authority in England in this matter. In that case Lord Evershed MR said at 1328 (WLR at 1328; All ER at 514): "After consulting with the Chief Registrar and looking at the case(s), and also after consultation with my colleagues, I am left in no doubt at all that, rightly or wrongly, orders dismissing actions - either because they are frivolous and vexatious, or on the ground of disclosure of no reasonable cause of action - have for a very long time been treated as interlocutory." In Salter Rex & Co v Ghosh ([1971] 2 QB 597 at 601; [1971] 2 All ER 865 at 866), Lord Denning MR said of such orders: "Every such order is regarded as interlocutory", and quoted Hunt v Allied Bakeries Ltd …

54 In Little v State of Victoria [1998] 4 VR 596 the Victorian Court of Appeal (Callaway and Buchanan JJA) considered an appeal against a judgment of Beach J in which his Honour ordered that a proceeding brought by the appellant be dismissed because "the cause of action sought to be relied upon by Mr. Little is not a cause of action known to the law and has no prospect of success". It is relevant to note that if the order made at first instance was interlocutory, the Court had no jurisdiction to entertain an appeal unless and until leave to appeal was granted: see s 17A(4)(b) of the Supreme Court Act 1986 (Vic). The Court of Appeal, therefore, had to consider whether the order by Beach J was interlocutory. In doing so, the Court of Appeal referred to the judgment of their Lordships in Tampion v Anderson. Callaway JA, with whom Buchanan JA agreed, observed at 600: It is sometimes appropriate to distinguish a decision by reference to the facts even if the reasoning is more widely stated, but it is apparent from their Lordships' endorsement of the statement of Lord Evershed, M.R. in Hunt v. Allied Bakeries Ltd. that they saw 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.

55 Callaway JA also referred to the judgment of Gibbs J in Anshun, stating at 600: Importantly for our purposes, Gibbs, J. also drew no distinction between a perpetual stay and dismissal (the perpetual stay in the instant case was held to be a final order) and his Honour expressly equated "a case in which the action is frivolous or vexatious in the ordinary sense" to one "in which the proceedings disclose no reasonable cause of action". In those circumstances I do not consider that Tampion v. Anderson can be distinguished.

56 The Court of Appeal in Little went on to consider (at 600-601) whether Tampion v Anderson should be followed in Australia:

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.

59 At the time of the appeal Woods DCJ had not yet directed the jury in the above terms but, unless restrained by the Court of Criminal Appeal, proposed to do so.

60 The Crown submitted that the Court had jurisdiction to hear the appeal pursuant to s 5F of the Criminal Appeal Act. The Court considered the words "interlocutory" and "judgment or order" as they appear in s 5F(2) of that Act. In relation to whether a judgment was interlocutory or final, Spigelman CJ stated at 618 that:

10 It may be taken to be accepted that the relevant test of an interlocutory judgment is on legal effect rather than practicality. See also Southern Cross NL v All Risks Insurance Company Limited (No 2) (1990) 21 NSWLR 200 at 207-208 and 217. 61 Spigelman CJ, with whom Dunford and Kirby JJ agreed, held that s 5F(2) did not extend to a direction to acquit by a trial judge. The Chief Justice said at 622:

32 In my opinion it is appropriate to approach the proper construction of s5F by the application of this well known presumption, that Parliament does not intend to modify fundamental principles or common law rights except in clear and unambiguous language. It is not appropriate to submit the words "interlocutory judgment or order" to an analysis based on a dictionary definition of each of the words, without the application of the principle of the law of statutory interpretation to which I have referred. 33 The proposition that the Crown does not have a right of appeal against acquittal is too well established for us to interpret the words used by Parliament in s 5F(2) as extending to a direction to acquit by a trial judge. It constitutes a fundamental principle of such significance that only clear and unambiguous language would lead to the conclusion that an appeal by the Crown lies against such a direction. 34 The language in s 5F(2) is not of that character. It is frequently the case that general words must be read down in order to comply with the actual or presumed intent of Parliament. Absent clear language, however, Parliament should be presumed not to interfere with the fundamental principle to which I have referred. 35 For those reasons I am of the opinion that the Court does not have jurisdiction to hear the appeal and that the proceedings should be dismissed.

62 The orders of Schmidt J dismissing the proceedings and the reasons underpinning those orders could not be said to be in the nature of an acquittal. The respondents did not submit that they were and did not submit there was any issue of double jeopardy. We do not, in those circumstances, find the basis for dismissing the appeal in R v Cheng as presently in point.

63 Other cases dealing with this question of whether an order or judgment is final or interlocutory include: Dousi v Colgate Palmolive Pty Ltd (1987) 9 NSWLR 374, where the New South Wales Court of Appeal held that an application for an extension of time within which a party can institute proceedings pursuant to the Limitation Act 1969 involved no final adjudication of substantive rights but dealt with questions of procedure only; Pye v Renshaw (1951) 84 CLR 58, where in upholding a demurrer ore tenus to a statement of claim, the New South Wales Supreme Court granted leave to the plaintiff to amend within 21 days but ordered that if no amendment were made within that period of time the suit should 'be and the same is hereby dismissed with costs'. The High Court held that the order was an interlocutory order; Southern Cross Exploration NL v Fire and All Risks Insurance Company Ltd (1990) 21 NSWLR 200, where the Court of Appeal (Kirby P, Mahoney and Handley JJA) held that an order by which a divisional judge dismissed a motion for an extension of time within which to comply with a self-executing order for the dismissal of proceedings was an interlocutory, not a final, order.

64 In Southern Cross Exploration NL, Handley JA held, at 216 - 217: The first question is whether the orders were final or interlocutory. The High Court has held that the test of a final order is "does the judgment or order, as made, finally dispose of the rights of the parties": see Licul v Corney (1976) 50 ALJR 439 at 444; 8 ALR 437 at 446. This test does not depend on the practical but on the legal effect of the order. The High Court consistently applied this test after 1976 until the question ceased to be relevant for that Court with the abolition of any appeal as of right in 1984: see Port of Melbourne Authority v Anshun Pty Ltd [No 1] (1980) 147 CLR 35; Carr v Finance Corporation of Australia Ltd [No 1] (1981) 147 CLR 246 and Sanofi v Parke Davis Pty Ltd [No 1] (1982) 149 CLR 147. The test accepted by the High Court in these cases was that propounded by Windeyer J in Hall v Nominal Defendant (1966) 117 CLR 423 at 442 - 445. According to his Honour the question to ask is (at 443) "does [the order] finally determine the rights of the parties in a principal cause pending between them", whether (at 444) "it results in a final determination of that action", or (at 445) "is the effect of the order [to establish] finally or otherwise the rights of the disputant parties - does it put an end to an existing dispute or existing action?"

In my opinion the order dismissing the motion for an extension of time did not "itself" finally dispose of the rights of the parties in the action and for two reasons. First because in theory at least a further application for extension of time could be brought. Thus the motion dismissed by the Chief Judge was the second of such applications brought by the plaintiffs, an earlier one having been dismissed by Kearney J on 30 May 1986. Secondly all that the Chief Judge's order did was to refuse an extension of time. The result of course was that the proceedings stood finally dismissed, but by virtue of the self-executing order and not by virtue of the order refusing an extension of time.

Thus an order dismissing an application to set aside a default judgment is interlocutory and not final: see Carr v Finance Corporation of Australia Ltd [No 1] . As Mason J (as he then was) explained (at 256) such an order is interlocutory: "… because there is the right to make another application and because the order does not deal directly with the rights in contest in the action."

In my opinion the order refusing an extension of time in this case cannot be relevantly distinguished from the order that was held to be interlocutory in Carr's case.

65 It is clear from these authorities that despite Kirby P's observation in the same case at 209, that "… whatever view might be entertained of the artificiality to which it might lead", the test as to whether a judgment or order is final or interlocutory requires a court to have regard to the legal rather than the practical effect of the judgment or order. We consider it is also clear from the cases that an order dismissing proceedings for abuse of process is an interlocutory order.

66 Returning to the orders of Schmidt J of 31 May 2001, her Honour dismissed the proceedings and declined to issue orders pursuant to s 4(1) of the Summary Jurisdiction Act because of what she considered to be various failures on the part of the prosecutors. However, in our opinion, based on the authorities to which we have referred, there was nothing final about the judgment and orders of the judge at first instance in terms of their legal effect. In other words, there was nothing in the judgment or orders that had the effect of finally disposing of the rights of the prosecutors.

67 In examining this issue more closely there were, as we have already identified, potentially three bases upon which her Honour decided to dismiss the proceedings:

1. The prosecutors' failure to consider whether the offences with which the defendants were charged were available to be brought when they were launched and that this had led to an abuse of process. 2. The prosecutor's inability to demonstrate that the coronial material supported the view that it there appeared the offences charged had been committed meant that, notwithstanding the further opportunity provided to them to do so, the prosecutors had been unable to comply with r 219(1). 3. The prosecutors had failed to comply with the Court's order regarding the time in which they were to provide particulars to the defendants.

68 As to the first basis, we consider that Schmidt J dismissed the proceedings for an abuse of process on the ground that the prosecutors had not disclosed a reasonable cause of action. That is, the prosecutors had not been able to show that the charges against the defendants were available to be brought. Dismissal of proceedings on this basis, constitutes an interlocutory order: Hall v Nominal Defendant at 440; Tampion v Anderson at 415-417; Wickstead v Browne (1993) 30 NSWLR 1 at 11 and Little v State of Victoria at 600-601.

69 As to the second basis for dismissal, namely that the prosecutors had failed to comply with the Rules in commencing the proceedings despite being given an opportunity to do so, it is not a judgment or order that "finally determines the rights of the parties": Carr v Finance Corporation of Australia Ltd at 248 per Gibbs CJ. There would be nothing to prevent the prosecutors bringing fresh proceedings. As to the third basis for dismissal, namely non-compliance with the Court's order regarding the time in which they were to provide particulars to the defendants, again this does not represent a bar to bringing fresh proceedings.

70 If, in fact, the basis for dismissing the proceedings was solely abuse of process - that is, the three bases we have referred to were rolled up into one - then as we have already found, the order dismissing the proceedings was clearly interlocutory.

71 Similarly, notwithstanding the provisions of 49(4) of the Occupational Health and Safety Act, it would still, "in theory at least", be open to the prosecutor to make a fresh application despite the fact that, for all practical purposes, the prosecutor had reached "the end of the litigious road": Southern Cross, per Kirby P at 207 and Handley JA at 217. In other words, although proceedings may be dismissed and, consequently, by the time the prosecutors came to make fresh applications, the applications may be out of time and their fate thereby pre-ordained, this would not prevent the fresh applications being made.

72 Accordingly, we find that the orders made by Schmidt J on 29 August 2000 and 31 May 2001 were interlocutory orders and that the appeal by the appellant pursuant to s 5F of the Criminal Appeal Act is competent. This finding makes it unnecessary to consider definitively the appellant's alternative submissions regarding s 5C of the Criminal Appeal Act and s 187 of the Industrial Relations Act as alternative bases for appeal. We add, however, that, if it had been necessary to deal with the argument based on s 5C of the Criminal Appeal Act, we would have been inclined to the view that s 5C, when read with the modifications necessarily made by s 196 in applying the Criminal Appeal Act to this Court, provides a right of appeal against her Honour's final judgment and, for the reasons given in paragraph [74] below, an appeal would also thereby lie against the initial judgment and orders.

73 Given that, by virtue of the provisions of s 5F(2) of the Criminal Appeal Act and s 196(3)(e) of the Industrial Relations Act, an appeal as of right is conferred on the prosecutor, the question of leave to appeal does not arise.

74 As to the appellant's application for leave to extend time to appeal the judgment and orders of Schmidt J of 29 August 2000, we see nothing in the Criminal Appeal Act that requires such an application. Further, we note the decision of the High Court in Crowley v Glissan (1905) 2 CLR 402 where it was held that on an appeal from a final judgment of the Supreme Court of a State, it is open to the appellant, without obtaining leave, to question any interlocutory or other order, which was a step in the procedure leading up to the final judgment. Crowley v Glissan has been frequently followed: see, for example, Bunning v Cross (1978) 141 CLR 54 at 82, Smith v Tabain (1987) 10 NSWLR 562 at 566, National Employers Mutual General Insurance Association Ltd v Manufacturers Mutual Insurance Ltd (1989) 17 NSWLR 223 at 231, Tamworth Base Hospital v Durant [2000] NSWCA 209 at [62], ADC v White [2001] NSWCA 9 at [24] and Baker v Pioneer Industries [1995] QCA 565. Rule 45 of the Commission's Rules, which reflects the common law, in any event provides that: 45 Any decision made in any proceedings before a tribunal prior to a final decision in those proceedings is to be taken for the purposes of appeal to have been made on the same date as the date of the final decision.

75 Before dealing with the issues on appeal it is relevant to understand how the Full Bench in Lucon came to consider the judgments of Schmidt J that are the subject of this appeal. The Full Bench explained at [82] and [83] how this came to be so: 82 The defendants placed considerable reliance on the judgment of Schmidt J of 29 August 2000 in WorkCover Authority of New South Wales (Inspector Maltby) v State Rail Authority of New South Wales (2000) 101 IR 271. Indeed, Mr Barker acknowledged that the defendants were unable to cite any other authority under either the present or other statutory regimes to support the proposition that there is a requirement to set out the basis upon which the time limit for prosecution is complied with in the initiating documents. 83 An appeal has been lodged against her Honour's subsequent judgment of 31 May 2001 in the same proceedings in which her Honour declined to make orders under s 4(1)(a) of the Summary Jurisdiction Act (see WorkCover Authority of New South Wales (Inspector Maltby) v State Rail Authority of New South Wales & Ors (2001) 108 IR 121), and the appellants in that appeal have argued that her Honour's judgment of 29 August 2000 is erroneous. Although it may be acknowledged that a Full Bench would hesitate before considering and passing upon the correctness of a judgment currently on appeal in other proceedings, there is no alternative to doing so in the present proceedings because of the situation in the present reference where the defendants rely so significantly on the correctness of certain aspects of her Honour's reasoning that they have virtually no other authority for crucial aspects of their challenge (compare the slightly different approach taken in a similar situation by the High Court in Commonwealth of Australia v Evans Deakin Industries Limited (1986) 161 CLR 254 at 266 - 267).

76 There were a number of substantive issues raised on the appeal. The key issue, however, arose out of Schmidt J's judgment of 29 August 2000 where her Honour took the view that, if the prosecutors sought to rely upon s 49(4) of the Occupational Health and Safety Act, r 219(1)(d) required that provision to be specified in the applications for summonses and that r 219(1)(e) required that the applications also specify "what it was in the Coroner's report or the proceedings on which the prosecutor relied." This finding led her Honour to order that: Within 28 days of this judgment, the prosecutor is to provide each of the defendants with particulars of any prosecution which will be pressed, identifying the part or parts of the Coroner's report or proceedings at the inquest or inquiry from which it appears that the offence charged has been committed. 77 In her second judgment Schmidt J found that the prosecutors had failed: (i) to consider whether the offences with which the defendants had been charged were available to be brought when they were launched and that this constituted an abuse of process; (ii) to demonstrate that the coronial material supported the view that it there appeared that the offences charged had been committed; and (iii) failed to comply with the timetable set in relation to the provision of particulars ordered by the Court. Her Honour declined the prosecution application for an extension of time in respect of the third matter and as a result of her various conclusions, including those as to the three failures referred to above, her Honour declined to issue the summonses under s 4 of the Summary Jurisdiction Act and ordered that each of the proceedings be dismissed. In the course of her Honour's reasons her Honour reached a number of conclusions including conclusions of a factual and discretionary nature.

78 The linchpin to the resolution of this appeal is Schmidt J's findings in relation to r 219(1)(d) and (e). Importantly, if her Honour was wrong in that respect then there was no basis upon which to order the provision of further particulars and no basis for her findings in her second judgment of 31 May 2001. We refer again to the judgment in Lucon.

79 Lucon involved a Reference to a Full Bench of the Commission in Court Session pursuant to s 196 of the Industrial Relations Act and s 5AE(1) of the Criminal Appeal Act. In January 2000 documents were filed on behalf of an inspector of the WorkCover Authority of New South Wales in the Registry of the Commission seeking to initiate proceedings variously under ss 15(1), 16(1) and 17(1)(b) of the Occupational Health and Safety Act against the three corporate defendants.

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].

82 The Full Bench held, however, relying on Ridge, the correctness of which was confirmed by that Full Bench and we would add by this Full Bench, that the applications for summonses were not rendered invalid by virtue of the fact they were not made to a judge: see [54] to [77]. The Full Bench also said: 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 .

83 As to the second question, the Full Bench observed it may not have been strictly necessary to answer it in light of the answer to Question 1 but the question, nevertheless it raised important issues including two related questions which the Full Bench dealt with. The two related questions were: (1) Were the applications invalid because of the failure to properly indicate the basis upon which the time limit in s 49(4) of the Occupational Health and Safety Act was relied upon?

(2) Would a judge have the power to make orders pursuant to s 4(1)(a) of the Summary Jurisdiction Act on the basis of the applications? 84 The defendants in Lucon argued that r 219(1)(d) and (e) required that the applications for summonses must establish at least a prima facie basis upon which the prosecutor seeks to rely upon the extension of time in s 49(4). The defendants placed considerable reliance on the judgments of Schmidt J, which are the subject of the present appeal.

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.

86 The judgment of Schmidt J of 29 August 2000 was also considered by the Full Bench in Lucon in the context the power of a judge to make orders under s 4(1)(a) of the Summary Jurisdiction Act. The defendants in Lucon had argued that a judge should not issue an order under s 4(1)(a) of the Summary Jurisdiction Act unless there is material before him or her supporting the extended time limitation in s 49(4) of the Occupational Health and Safety Act. In other words, material supporting the view that it appeared from the coroner's report or proceedings at the inquest or inquiry that an offence had been committed. The defendants again relied on the first judgment of Schmidt J particularly at [49] to [52].

87 The Full Bench in Lucon held that, whilst a judge considering an application for summons is not required to act merely as a "rubber stamp", he or she is, nevertheless, "not required to be satisfied that a prima facie case is established on the material before him or her, or that the prosecution has an answer to, or may be required to answer, a defence, plea in bar or the like which could or might be raised by the defendant": see [95] to [111].

88 The judgment in Lucon, which, with respect, we consider is correct, means that Schmidt J erred in holding that r 219(1)(d) required s 49(4) of the Occupational Health and Safety Act to be specified in the applications for summonses and in holding that r 219(1)(e) required that the applications also specify "what it was in the Coroner's report or the proceedings on which the prosecutor relied." Her Honour also erred in holding, in effect, that she was required to be satisfied that a prima facie case had been established on the material before her by the prosecutor demonstrating the offence with which the defendant was to be charged was an offence which appeared to have been committed having regard to the Coroner's report or the proceedings. It follows that we concur with those conclusions.

89 The effect of our decision in this matter is that the applications for summonses were not invalid for the reasons contended by the respondents to this appeal. It was not submitted by the respondents that the applications were invalid for any other reason. The proceedings in the matters before us, therefore, were validly commenced. This means that there are valid applications for orders against the four respondents to this appeal still to be dealt with.

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 .

91 The Full Bench in Lucon did not discuss in any detail the reference made to the judgment of Campbell J, as his Honour then was, in Whitten v Hall or the "approach … possible …" under the principles discussed in that judgment. We do not, however, consider the Full Bench was suggesting that permitting the defendant to embark on such a course would be a usual or necessarily an appropriate course at the time when a judge was considering the issue of an order under s 4(1)(a) of the Summary Jurisdiction Act. The court in Lucon was merely noting that there may be rare cases where the principles in Whitten v Hall may be invoked at that stage.

92 It seems that in Whitten v Hall the point was raised, argued and determined well after the counterpart stage of those proceedings. That also was the situation in the judgment of the Court of Appeal which referred to Whitton v Hall and which was considered in her Honour's second judgment: see (2001) 108 IR 121 at 128. The judgment of the Court of Appeal is that in Director of Public Prosecutions v Shirvanian (1998) 44 NSWLR 129. It concerned the issue whether a Local Court magistrate had power to grant a permanent stay of summary criminal proceedings. In answering the question in the affirmative, Mason P expressed an important cautionary note which serves, by analogy, to show the inappropriateness generally of such matters being dealt with at that stage. His Honour said, at 139: I would therefore affirm the existence of the power exercised by the learned magistrate.

However, I am far from persuaded that it was proper to exercise it in the present case. It is no part of the judicial function to decline jurisdiction (whether by granting a stay or otherwise) on the ground that the court disapproves of the charge that has been laid: see Barton v The Queen (1980) 147 CLR 75 at 96; R v Brown ((1989) 17 NSWLR 472 at 478 - 479).

The learned magistrate's remarks that an alternatively framed charge could have been laid raise an issue whether the line between preventing oppression and disapproving of a particular prosecution has been crossed. I intend to infer nothing higher than this. It is a matter for a judge of the Common Law Division to decide in the light of all relevant evidence, including the transcript of the proceedings below. We consider those observations entirely consistent with what was said by the Full Bench in Lucon at paragraphs [93] and [100] to [103].

93 In the circumstances, we consider that the appropriate course is to remit the proceedings to a judge to be dealt with in accordance with the reasons in this judgment and to consider whether orders should be made pursuant to s 168 of the Industrial Relations Act and s 4(1)(a) of the Summary Jurisdiction Act. In this respect, we acknowledge that Schmidt J has already found, in effect, that the prosecutor has no reasonable cause of action because, on her Honour's view of the coronial material, the prosecutor had failed to show how it appeared from that material that the offences charged had been committed. However, as we have found, her Honour proceeded to consider that question prematurely and on a wrong premise: cf Wade v Burns (1966) 115 CLR 537 at 555 and King v Goussetis (1986) 5 NSWLR 89 at 94 - 95.

94 Whilst it might be that ultimately when this question again comes before the primary judge, it would be in the context of the respondents being properly before the Court to answer the charges laid against them, prior to that occurring, the prosecutor will need to decide whether he wishes to continue to press for orders pursuant to s 168 of the Industrial Relations Act and s 4(1) of the Summary Jurisdiction Act and it is possible that the respondents may have the opportunity, as referred to in Lucon, and subject to the observation in paragraph [92] above, to consider whether they might seek a permanent stay or dismissal of the proceedings on the grounds that the issuing of an order would be inappropriate or an abuse of process. If the matter does proceed past the point where orders are made pursuant to s 168 of the Industrial Relations Act and s 4(1) of the Summary Jurisdiction Act, only then would it be necessary for the trial judge to consider questions such as to whether there is a defence or bar having regard to the provisions of s 49(4) of the Occupational Health and Safety Act. It is not a matter for the Full Bench to consider whether orders should issue and whether a defence, bar or the like, exists.

95 We have given earnest consideration to whether the proceedings should be remitted to Schmidt J or to another judge. Although it may be usual for a matter to be remitted to the same judge, even where anticipatory remarks are made by the original judge (see King v Goussetis at 95), it is not an invariable practice. We consider that having particular regard to a number of the findings made by her Honour and the discretions already purportedly exercised by her Honour, it is appropriate that the proceedings be remitted to another judge to determine whether orders under s 4(1)(a) of the Summary Jurisdiction Act should be made. The respondents should pay the appellant's costs of the appeal.

1. The appeal against the judgments and orders of Schmidt J of 29 August 2000 and 31 May 2001 is upheld. 2. The judgments and orders referred to in order 1 are set aside. 3. The proceedings are to be reallocated to a judge of the Commission in Court Session to be dealt with in accordance with the reasons in this judgment and to consider whether orders should be made in the proceedings pursuant to s 168 of the Industrial Relations Act 1996 and s 4(1)(a) of the Supreme Court (Summary Jurisdiction Act) 1967. 4. The respondents shall pay the appellant's costs of the appeal.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.