Morrison v Murray

FILE NUMBER(S): IRC 3074, 3075, 3076, 3077 of 2001

CORAM: Wright J President; Walton J Vice-President; Boland J

CATCHWORDS: Reference - two questions referred pursuant to s 196 Industrial Relations Act and s5AE Criminal Appeal Act - whether prosecutions commenced with requisite written consent - only necessary to answer one question - Written consent to commence prosecution - s 48 Occupational Health and Safety Act 1983 - whether internal memorandum constituted requisite written consent - particular form not required - reference to additional prosecution to that brought does not affect consent - consent given "subject to consultation" - consent not to take effect unless the Director General countermanded otherwise - further and final approval was required to be given in writing before prosecution commenced - memorandum must be read as a whole - memorandum was requisite written consent to commence prosecution against individual defendants - not necessary for prosecution against corporate defendant to proceed in order for prosecution of individual defendants - Separate written delegated authority - no question of written delegated authority arises - s48 does not require a person to be nominated to take the prosecution - matter (including costs of reference) remitted to trial judge

Industrial Relations Act 1996 s 168 196 Criminal Appeal Act 1912 s 2 5AE 5C 5F Occupational Health and Safety Act 1983 ss 15(1) 16(1) 48 50(1) LEGISLATION CITED: Occupational Health and Safety (Administration) Regulation 1992 cl 3 Occupational Health and Safety Regulation 2001 cl 357 Supreme Court (Summary Jurisdiction) Act 1967 s4(1) Public Sector Management Act 1988

Morrison v Murray & Ors [2004] NSWIRComm 174 Berwin v Donohoe (1915) 21 CLR 1 Crichton v Victorian Dairies Limited [1965] VR 49 R v Bacon (1973) 1 NSWLR 87 Gilmour v Midways Springwood Pty Limited (1980) 33 ALR 605 Water Board v Environment Protection Authority (1994) 83 LGERA 174 McConnell Dowell Constructions (Aust) Pty Ltd v Environment Protection Authority (CCA (NSW), 25 October 1996, unreported, BC9606890) Morrison v United Collieries [2002] NSWIRComm173 CASES CITED: Traveland Pty Ltd v Doherty (1982) 41 ALR 563 Dever v Creevey (1991) 1 QdR 232 Palos Verdes Estates Pty Ltd v Carbon (1991) 6 WAR 223 MacCarron v Coles Supermarkets Australia Pty Ltd (2001) 23 WAR 355 Morrison v Joy Manufacturing Co Pty Ltd (2004) 137 IR 8 C&J Clark Ltd v Inland Revenue Cmrs [1973] 1 WLR 905 Inspector Carmody v Frankel [2003] NSWIRComm 159 Workcover Authority of New South Wales v Hitchcock (2004) 135 IR 377 Morrison v Dartbrook Coal Pty Ltd and Tecrete Industries Pty Ltd (2002) 116 IR 252

PROSECUTOR Mr R Burbidge QC and Mr I Taylor of Counsel

Solicitor: Mr J Morton Crown Solicitor

FIRST AND FOURTH DEFENDANTS Mr I Wallach of Counsel

Solicitor: Ms Karen Willding Sparke Helmore

LEGAL REPRESENTATIVES: SECOND DEFENDANT Mr M Shume of Counsel

Solicitor: Mr Luke Connolly Clayton Utz

THIRD DEFENDANT Mr R J Buchanan QC

Solicitor: Mr Luke Connolly Clayton Utz

20 INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION FULL BENCH

CORAM: WRIGHT J, President WALTON J, Vice-President BOLAND J Wednesday 22 June 2005 Matter No IRC 3074 of 2001 RODNEY MORRISON v BRADLEY DEAN MURRAY Prosecutions under sections 15(1) and 50(1) of the Occupational Health and Safety Act 1983 Matter No IRC 3075 of 2001 RODNEY MORRISON v MICHAEL JOHN BARRETT Prosecutions under sections 15(1) and 50(1) of the Occupational Health and Safety Act 1983 Matter No IRC 3076 of 2001 RODNEY MORRISON v POWERCOAL PTY LIMITED Prosecution under section 15(1) of the Occupational Health and Safety Act 1983 Matter No IRC 3077 of 2001 RODNEY MORRISON v DAVID GLEN COUTTS Prosecutions under sections 15(1) and 50(1) of the Occupational Health and Safety Act 1983

1 This matter involves a reference to the Full Bench pursuant to s196 of the Industrial Relations Act 1996 and s5AE of the Criminal Appeal Act 1912. The reference has been made from interlocutory proceedings relating to a number of prosecutions under the Occupational Health and Safety Act 1983 ("the Act"). The key issue arising in this reference is whether the prosecutions were commenced with the requisite written consent. 2 The initial proceedings involved the prosecution by Mr Rodney Morrison, as an employee of the Department of Mineral Resources ("the Department"), against Powercoal Pty Limited ("Powercoal") for an alleged breach of s15(1) of the Act, and prosecutions by Mr Morrison against three of Powercoal's senior employees - Mr Bradley Murray (Mechanical Engineer in Charge), Mr Michael Barrett (Mine Manager), and Mr David Coutts (Mine Electrical Engineer in Charge) - for an alleged breach of s50 of the Act in that Powercoal had breached s15(1) of the Act. The particulars of the charges are not directly relevant to the present matters. 3 The prosecutions arose as result of an incident which occurred on 6 May 1999 at Wyee Colliery, a mine site operated by Powercoal. On that day, a drift haulage rope broke while a load (being a dolly car containing four persons) was being lifted from the lower seam of the mine. As the dolly car was being raised, the haulage rope broke, and the dolly car began to travel back down the drift. Three of the four persons in the car jumped free. The remaining person rode the dolly car to the bottom of the drift, and sustained minor injuries. 4 On 15 November 2001, Notices of Motion were filed in each matter seeking orders that the prosecutions be dismissed or in the alternative, permanently stayed. The motions were advanced on the grounds that the prosecutor, Mr Rodney Morrison, did not possess (or could not prove beyond a reasonable doubt that he possessed) the written consent of a "prescribed officer" pursuant to s48 of the Act at the time the proceedings were instituted. 5 Section 48 of the Act is in the following terms:

(1) Proceedings for an offence against this Act or the regulations may be instituted only - (a) with the written consent of the Minister or a prescribed officer, or (b) an inspector, or (c) by the secretary of an industrial organisation of employees any member or members of which are concerned in the matter to which the proceedings relate.

(2) In proceedings for an offence against this Act or the regulations, a consent to institute the proceedings, purporting to have been signed by the Minister or a prescribed officer, shall be evidence of that consent without proof of the signature of the Minister or prescribed officer, as the case may be. 6 Clause 3 of the Occupational Health and Safety (Administration) Regulation 1992 provides as follows:

3. For the purposes of section 48(1)(a) of the Act, the Director-General of the Department of Mineral Resources is a prescribed officer in relation to the following proceedings: (a) proceedings for an offence against the Act concerning a place of work that is a mine within the meaning of the Coal Mines Regulation Act 1982, (b) proceedings for an offence against the Act concerning a place of work that is a mine within the meaning of the Mines Inspection Act 1901. 7 These matters have a protracted and relatively complex history. Before considering the questions presently before us, it is useful to set out a summary of that history. Events leading to the prosecutions 8 On 19 March 2001, a meeting of the Department's Assessment and Review Committee was held to consider the circumstances surrounding the incident at the Wyee Colliery on 6 May 1999. The meeting was convened by Mr Morrison, Assistant Director Performance Improvement of the Department. 9 The Committee unanimously agreed to recommend to Mr Alan Coutts, Director-General of the Department, that, subject to consultation being conducted with Powercoal pursuant to the Premier's Memorandum No 97-26, prosecutions be initiated under ss15(1) and 16(1) of the Act against Powercoal; and under s50(1) of the Act against Mr Barrett, Mr Murray and Mr Coutts. The Premier's Memorandum No 97-26 deals with "Litigation involving Government Authorities", and requires consultation where prosecution of government agencies is contemplated. The recommendation was recorded in writing in a memorandum from the Committee to the Director-General dated 22 March 2001. 10 The memorandum of 22 March 2001 ("the Memorandum") was relevantly in the following terms (with the paragraphs not admitted into evidence described as blacked out): DEPARTMENT OF MINERAL RESOURCES CONFIDENTIAL MEMORANDUM

A Matter Considered by the Assessment and Review Committee on 19/3/2001

To: Alan Coutts, Director-General's Office - St Leonards From: Rod Morrison, Convenor Assessment and Review Committee Subject: ACCIDENT WYEE COLLIERY A Recommendation for the Department of Mineral Resources to prosecute Powercoal Pty Ltd and Messrs Barrett, Murray and Coutts Date: 22 March 2001 ___________________________________________________________

1 Background 1.1 Accident On 6 May 1999, a drift haulage rope broke while a load was being lifted from the lower seam of the mine at Wyee Colliery. The load consisted of a dolly car containing four persons namely K Sellers driver, S Saurins, K Johns and P Piper. Attached to the dolly car was a flat top containing mine equipment. It is estimated the total weight was about 58.65 tonnes. As the conveyance was being raised, the haulage rope broke allowing the conveyance to travel down the drift. Three persons jumped off the conveyance and one person rode it to the bottom and as a result sustained minor injuries. The conveyance came to rest at the bottom of the drift. 1.2 Coronial Inquest There were no fatalities and hence no Inquest

2 Reference Documents File No: C99/0557

2.1 Investigation Report Prepared by J Conlon Coal Mines Inspector with the assistance of W Koppe Mechanical Inspector. 2.2 Legal Advice by: [ Blacked out ] 2.3 Others Nil 3 Breaches 3.1 Potential Breaches of Legislation 3.1.1 Powercoal Pty Ltd - Sections 15(1) and 16(1) of the Occupational Health and Safety Act for failing to maintain and provide safe plant and for failing to provide training. 3.1.2 Mine Manager, Mechanical Engineer in Charge and Mine Electrical Engineer in Charge - Section 50(1) of the Occupational Health and Safety Act for having contravened Section 15(1) of that Act. [ Blacked out ]

4 Legal Advice 4.1 Legal Advice [ Blacked out ]

4.2 Conclusions reached by Committee [ Blacked out ] the Committee had reached an unanimous decision to recommend to the Director-General that a Prosecution be initiated against Powercoal Pty Ltd, subject to consultation being conducted with Powercoal Pty Ltd pursuant to the Premier's Memorandum and to recommend prosecutions against the Mine Manager, Mechanical Engineer in Charge and Mine Electrical Engineer in Charge.

[ Blacked out ] 5.5 The seriousness of the offence. 5.6 This decision being consistent with the Department's Enforcement Policy.

6 Recommendations The Committee recommends: · that the Department prosecute Powercoal Pty Ltd in respect of breaches of the OH&S Act Section 15(1) and 16(1) relating to the failure of a haulage rope at the Wyee Colliery on 6 May 1999, subject to consultation being undertaken with Powercoal Pty Ltd in accordance with the Premier's Memorandum. · that the Department prosecute M Barrett Mine Manager, B Murray Mechanical Engineer in Charge and David Coutts Mine Electrical Engineer in Charge.

Approved (Signed) A Coutts Director-General (26/3/01)

DEPARTMENT OF MINERAL RESOURCES CONFIDENTIAL ACCIDENT WYEE COLLIERY A Recommendation for the Department of Mineral Resources to consult with Powercoal Pty Ltd in accordance with the Premier's Memorandum No 97-26 ====================================================

The undersigned members of the ARC agree to the recommendations made for the advice of the Director-General.

Rod Morrison: signed (convenor) Frank Krstic: signed 23/3/01 (dated) Stede Coundouris: signed Rob Regan: signed 23/3/01 (dated) John Watson: signed 23/3/01 (dated) 11 The Director-General approved the Committee's recommendation, and signed the memorandum on 26 March 2001 indicating his approval. 12 On 10 April 2001, the Director-General wrote to Powercoal, stating that "investigations by the Department in this matter indicate that there is a prima facie case to answer by Powercoal" in relation to the incident at the Wyee Colliery on 6 May 1999, and inviting Powercoal to advance written submissions and/or to engage in consultation in accordance with the Premier's Memorandum. 13 On 27 April 2001, a meeting was held between representatives of Powercoal and the Department. The purpose of the meeting was to engage in further consultation in accordance with the guidelines in the Premier's Memorandum. 14 On 30 April 2001, a meeting was held between the following Department employees: the Director-General (Mr Alan Coutts), Mr Morrison, Ms Carolyn Bloch (Executive Director) and Mr Frank Krstic (Corporate Counsel). It was the Director-General's evidence before Kavanagh J that:

Following some discussion, I decided that Powercoal Pty Limited should be informed through its solicitor that nothing had been put at the meeting [on 27 April 2001] which would sway the [Department] from its intention to prosecute Powercoal Pty Limited as indicated in the letter of 10 April 2001. However, I informed Mr Morrison that a final opportunity might be extended to Powercoal Pty Limited to make any further submissions which it wished prior to 12 noon on Thursday, 3 May 2001. 15 A number of significant events then occurred on 3 and 4 May 2001 (although not necessarily in the following sequence). First, Mr Morrison issued a memorandum to the Director-General. The memorandum was dated 4 May 2001 but was signed on 3 May 2001. That memorandum noted the Director-General's requirement that Powercoal be offered a further opportunity to consult with the Department, and then stated:

A message was left by Mr Morrison with Mr Paul Cutrone, Solicitor [for Powercoal], on the afternoon of 30 April 2001 and Mr Morrison rang Mr Cutrone again early on 1 May 2001 and conveyed to him the above position of the Department.

No further contact with the Department was made by Mr Cutrone or Powercoal as at mid afternoon of Thursday 3 May 2001.

On the instruction of the Director-General, the summons for prosecution of Powercoal in this matter were executed and lodged.

Similar action was taken in respect of the individuals involved. Mr M Barrett, Mine Manager, Mr B Murray, Mechanical Engineer in Charge and Mr D Coutts, Mine Electrical Engineer in Charge.

Submitted for approval for acting [sic] being taken to prosecute Powercoal Pty Ltd in respect of breaches of the OH&S Act relating to the failure of a haulage rope and of the above individuals under Section 50(1) of the OH&S Act for having contravened Section 15(1) of that Act. 16 The Director-General's signature appears at the foot of the memorandum, with the date 3 May 2001 and the handwritten word "approved". 17 Secondly, the Director-General signed a Ministerial Submission on 3 May 2001 regarding the Department's intention to prosecute Powercoal for "breach of occupational health and safety obligations". Next to his signature, the Director-General wrote the following: "For information. Powercoal have not taken up the opportunity for a further meeting. Dept will proceed with prosecution action". 18 Thirdly, on 3 May 2001 the Director-General signed a letter to Powercoal's legal representatives advising of the decision to prosecute. That letter stated:

...I have made a decision to prosecute Powercoal Pty Ltd for breaches under the Occupational Health and Safety Act . 19 Fourthly, on 3 May 2001 Applications for Orders for Prosecution were filed in each matter, together with supporting affidavits sworn by Mr Morrison. The applications stated:

This is an application for an order under section 4(1) of the Supreme Court (Summary Jurisdiction) Act 1967 and section 168 of the Industrial Relations Act 1996 brought by Rodney Morrison of the Department of Mineral Resources, New South Wales, 29-57 Christie Street, St Leonards, NSW, a person authorised by the Director-General of the [Department], who is a Prescribed Officer pursuant to section 48 of the Occupational Health and Safety Act, 1983 to institute proceedings in this matter. 20 The applications each sought orders that the defendants appear and answer the specified charges laid pursuant to ss15 and 50 of the Act. 21 The affidavits of Mr Morrison filed in support of each application stated:

I am a person authorised by the Director-General of the [Department], who is a Prescribed Officer pursuant to section 48 of the Occupational Health and Safety Act 1983 to institute proceedings in this matter. 22 On 9 May 2001, Walton J, Vice-President, made orders in the form sought by the prosecutor. The "Consent to Initiate Proceedings" forms 23 The evidence before Kavanagh J indicated that the procedures followed by the Department when instigating prosecutions under the Act were as follows: (1) Mr Morrison, as Assistant Director Performance Improvement, convenes an Assessment and Review Committee, whose responsibilities include recommending prosecutions for breaches of the Act; (2) The Committee's recommendations must be approved by the Director-General of the Department; (3) The Director-General signs a "Consent to Institute Proceedings" form prior to proceedings being instituted. The consent form is usually the standard form of document used by the Department, which relevantly reads:

CONSENT TO INSTITUTE PROCEEDINGS Section 48(1)(a) Occupational Health and Safety Act 1983 (NSW)

The Director-General of the New South Wales Department of Mineral Resources

HEREBY CONSENTS to proceedings being instituted by Rodney Dale Morrison against . . . for an offence against section 15(1) and section 50(1) of the Occupational Health and Safety Act 1983 (NSW)

Mr Alan Coutts Director-General New South Wales Department of Mineral Resources

24 The Director-General gave evidence before Kavanagh J in respect of each matter that he signed a consent form "prior to 3 May 2001". Unsigned and undated "copies" of the consent forms were attached to his affidavits. In a subsequent affidavit, the Director-General gave the following evidence regarding the consent forms:

I signed the consents in the form annexed to my affidavits on or before 3 May 2001. At the time I signed the consents, I knew the proceedings had not been lodged. I am unable to recall at this time whether the consents were brought to me personally by a [Department] legal officer or were otherwise delivered to my office. As the preparation of such consents was undertaken by the legal branch of the [Department] I believe that the consents would have been returned to the [Department] legal branch after signature by me.

At my direction, searches were undertaken of the [Department] on or about 8 May 2001 and since then in an effort to locate the signed consents. The documents have not been located. 25 Contrary to the Department's usual practice, signed copies of the "Consent to Institute Proceedings" forms were not attached to the Applications. The defendants' jurisdictional challenge 26 On 15 November 2001, Notices of Motion were filed seeking, in respect of each matter, an order that the prosecution be dismissed or in the alternative, permanently stayed. The Notices of Motion each cited the following grounds and reasons:

1. The prosecution should be dismissed in that: (a) The prosecution was invalidly commenced. (b) It would appear that as at the date the prosecution was commenced, the Prosecutor, Mr Rodney Morrison, did not possess a written consent of a Prescribed Officer (being the Director-General of the Department of Mineral Resources) at the time the proceedings were instituted, pursuant to s48 of the Occupational Health and Safety Act . 2. In the alternative, the Prosecution should permanently stayed for an abuse of process as: (a) The Prosecutor, Mr Rodney Morrison, is not able to prove beyond reasonable doubt that he had the written consent of a Prescribed Officer (being the Director-General of the Department of Mineral Resources) at the time the proceedings were instituted, pursuant to s48 of the Occupational Health and Safety Act . (b) To proceed with the Prosecution in circumstances where the Prosecutor is unable to prove its case is an abuse of process. (c) To proceed the Prosecution further without such consent is an abuse of process. 27 The Notices of Motion were listed for hearing before Kavanagh J on 16 April 2002. The hearing did not conclude that day, and the matters were stood over to 15 October 2002. The matters did not proceed on that day as the parties were engaged in negotiations. The matters were again set down for hearing on 26 February 2003, however, that date was vacated. A further hearing date of 21 August 2003 was also unavoidably vacated. The part-heard Notices of Motion ultimately came on for hearing again before her Honour on 10 May 2004, some 2 years after the initial hearing date. The hearing concluded on 17 May 2004. The interlocutory judgment 28 On 23 July 2004, Kavanagh J issued an interlocutory judgment: Morrison v Murray & Ors [2004] NSWIRComm 174. The issue for determination was posed by her Honour as follows: was there in each circumstance a written consent by a prescribed officer, namely the Director-General, to validly institute each proceedings in accordance with s48(1) of [the Act]? In determining that question, Kavanagh J considered the following two factual propositions put forward by the prosecutor: (1) That there were in existence four "Consent to Institute Proceeding" forms signed by the Director-General, the prescribed officer, prior to the filing of the Applications for Order on 3 May 2001. (2) That the Memorandum of 22 March 2001, containing recommendations approved by the Director-General on 26 March 2001 was the requisite written consent to institute proceedings. In support of this proposition the prosecution relied on other correspondence including the Memorandum dated 4 May 2001, a Ministerial Minute of 3 May 2001 and evidence of the procedures followed by the Department. 29 In the result, Kavanagh J rejected both factual propositions, held that there was no valid consent and issued draft orders that the matters each be permanently stayed "based upon a reasoning, that in circumstances there has not been a valid Consent to Institute Proceedings in any of these Applications for Order and the court therefore has no jurisdiction to hear the Applications". 30 Her Honour made the following findings of fact and law upon which her judgment was based:

(1) The Act does not prescribe the form of written consent to be given for the purposes of s48(1)(a). Even if it did, strict compliance with such a form would not be necessary. Substantial compliance would be sufficient: s80 Interpretation Act 1987. Further it is not essential that the requisite consent accompany the initiating process notwithstanding this was the practice of Powercoal. (2) Whilst a general consent is permissible it cannot be in such wide terms as to consent to no prosecution in particular: Berwin v Donohoe (1915) 21 CLR 1 at 24-26,27-29,38; Crichton v Victorian Dairies Limited [1965] VR 49 at 59; R v Bacon (1973) 1 NSWLR 87 at 94G-95B; Gilmour v Midways Springwood Pty Limited (1980) 33 ALR 605 at 607.4; Water Board v Environment Protection Authority (1994) 83 LGERA 174 at 179.5; McConnell Dowell Constructions (Aust) Pty Ltd v Environment Protection Authority (CCA (NSW), 25 October 1996, unreported, BC9606890 at 13-14). (3) The prosecutor holds the burden of proof in establishing the validity of the consent to prosecute, and the onus to be met by the prosecution is on the balance of probabilities: Rodney Morrison v United Collieries [2002] NSWIRComm173; Berwin v Donohoe (1915) 21 CLR 1; Traveland Pty Ltd v Doherty (1982) 41 ALR 563 (at 568); Dever v Creevey (1991) 1 QdR 232; Palos Verdes Estates Pty Ltd v Carbon (1991) 6 WAR 223; MacCarron v Coles Supermarkets Australia Pty Ltd (2001) 23 WAR 355. (4) Mr Alan Coutts, as Director-General of the Department, was a "prescribed officer" for the purposes of s48(1)(a) of the Act. (5) There is no material difference between s48(1)(a) of the Act and s106(1)(b) of the Occupational Health and Safety Act 2000, which commenced on 1 September 2001. Nor is there any material difference between Cl 357, Occupational Health and Safety Regulation 2001 and Cl 3, Occupational Health and Safety Administration Regulation 1992 (since amended in 1999 and 2001). (6) Whilst prosecutions of this kind are not commenced by indictment but by an Application for Order, they have the effect of a summons to answer a charge. Where a defendant asserts the absence of consent to commence the prosecution, the point may be taken by motion to quash the indictment before the commencement of the trial or at any time during the trial: Rodney Morrison v Joy Manufacturing Co Pty Ltd (2004) 137 IR 8; R v Bacon (supra at 95). 31 As to the first proposition, being the existence of the signed consent forms, Kavanagh J considered the following facts: neither the originals nor copies of the forms could be produced; the Director-General could not recall precisely when he signed the forms; the Director-General's recollection relied on the usual practice of the Department; no contemporaneous memoranda was produced which recorded or explained the loss of the forms; whilst the Director-General gave evidence that he specifically recalled signing the forms because one of the defendants carried the same surname as himself, that defendant's surname also appeared in a number of other documents sighted and signed by him; the Director-General had a number of matters before him relating to Powercoal during the relevant period; contrary to the Department's practice the forms were not filed with the Applications for Orders; the "copies" of the forms attached to the Director-General's affidavit were neither signed nor dated and did not identify the particular circumstances or events to which the charges related; no explanation was offered as to how the "copies", which were not exact copies, came into existence; and, although the Director-General gave evidence that he sent the signed consent forms to Mr Morrison, Mr Morrison "did not endorse this recollection". Her Honour then concluded (at [79]-[80]):

I have considered all the evidence placed before me. I am unable to conclude from that evidence that four Consents to Institute Proceedings came into existence prior to 3 May 2001.

I therefore reject the proposition the prescribed officer, the Director-General of the Department of Mineral Resources, signed four written Consents to Institute Proceedings in accordance with s48(1)-(4) of the Act prior to the filing of these Applications for Order. 32 As to the second proposition, that is, whether the Memorandum (together with related correspondence and the usual practices of the Department) constituted the requisite written consent to institute proceedings, her Honour considered the prosecution of Powercoal separately to the prosecution of the three individual defendants. 33 In relation to Powercoal, her Honour noted that the recommendation was for two prosecutions: one under s15(1) of the Act and the other under s16(1) of the Act. Whilst Kavanagh J accepted that the terms of the recommendation against Powercoal were sufficiently specific, the consent itself was conditional upon further consultation with Powercoal following which the Director-General was required to either "clarify" the consent or "direct otherwise". 34 Her Honour then considered whether any clarification was evident in either the memorandum from Mr Morrison to the Director-General dated 4 May 2001 or the ministerial submission and letter to Powercoal's solicitor dated 3 May 2001. She determined that those documents did not contain any such clarification, and further, those documents were not, of themselves, sufficient to constitute written consent for the purposes of s48(1) of the Act. 35 Her Honour made the following findings (at [105]-[110]):

[105] Given that the Director-General agreed his initial recommendation needed clarification before filing and that, in the circumstances, he would have had to give a further direction; that up until 3 May 2001 the recommendation of the Director-General signed on 26 March 2001 needed clarification; that the letter to solicitors and Ministerial submission on 3 May 2001, the day of filing, still referred to breaches of the Act; that the memorandum of 4 May 2001 cannot be such a clarification as it is written in the past tense; that the recommendation as to a s16(1) prosecution did not proceed; that there is no clarification and no evidence as to why this non conformity occurred; that there was no written consent placed before the Director-General which determined only a s15(1) charge proceed; that there is no evidence of any further re-consideration by an AR Committee as there was in the Dartbrook matter; that in the context of an awareness the Department issued formal Consent to Institute Proceedings which Consents are missing from this prosecution; that all the documentation suggests to the Director-General that more than one prosecution was to proceed: I find the application which was instituted on 3 May 2001 under s15(1) of the Act against Powercoal is such as to satisfy there was no written consent by the prescribed officer to that prosecution which was instituted.

[106] In the alternative, even if it be that the approved recommendation was a written consent to institute proceedings, it was a conditional written consent to institute proceedings under s15(1) and s16(1) of the OHS Act after consultation. I find there was a variation of that consent in the circumstances as outlined in para [105] above such as to make the proceedings which were instituted to be in such non conformance with the consent of 26 March 2001 as to be proceedings instituted without the written consent of the prescribed officer.

[107] I do not believe the circumstances before me reveal the Application for Order instituted against Powercoal Pty Ltd on 3 May 2001 was that prosecution which was approved by the Director-General as a prescribed officer on 26 March 2001.

[108] I am not satisfied the Director-General had laid before him sufficient detail to be able to conclude he made a written consent to proceed to prosecute Powercoal, after consultation, under s15(1) of the Act and under s15(1) of the OHS Act alone.

[109] I am therefore not persuaded the Application for Order filed on 3 May 2001 when filed, was a proceeding instituted with the written consent of a prescribed officer.

[110] I find therefore the court has no jurisdiction to hear the application for Orders against Powercoal Pty Ltd. 36 In relation to the three individual defendants, Kavanagh J noted that the recommendation in the Memorandum did not contain any reference to the incident on 6 May 1999 nor any reference to the Act. Her Honour held (at [114]-[117]):

[114] I do not find the 22 March 2001 Memorandum and the recommendation related to the three individual defendants as approved by the Director-General, in its form or in its content, satisfies in any possible way a written consent to institute proceedings against these three individually named defendants as required under s48(1) of the OHS Act.

[115] I find the Recommendation approved by the Director-General on 26 March 2001, in its terms as contained in the 22 March 2001 Memorandum, is so general and in such wide terms as to be a consent to no proceedings in particular against any of the individual defendants.

[116] I find therefore there was no written consents to institute proceedings by a prescribed officer in accordance with s48(1) of the OHS Act in place before the filing of the Applications for Order against the three named individual defendants on or prior to 3 May 2001.

[117] I find therefore the court has no jurisdiction to hear the Applications for Order against Messrs Barrett, Murray and Coutts. 37 In making orders, Kavanagh J considered the recent decision in Morrison v Joy Manufacturing (2004) 137 IR 8 where a Full Bench of the Court held (at [53] and [68]):

[53] In so far as s5F is concerned, given our conclusion that the meaning of the term "indictment" is not extended by the definition in s2 of the Criminal Appeal Act to include "information" in its most frequently understood sense, "indictment" in s5F(1)(a) must be taken to refer to the regular criminal jurisdiction of the Supreme Court and not the summary jurisdiction of that Court. It follows that under s5F an appeal does not lie to the Full Bench of this Court from an interlocutory judgment or order of a judicial member of the Court made in the Court's summary criminal jurisdiction.

[68] We find that the Commission in Court Session does not have jurisdiction under the combined operation of s196 of the Industrial Relations Act and s5F of the Criminal Appeal Act to hear and determine this appeal against an interlocutory judgment or order made in proceedings to which s168 of the Industrial Relations Act applies. Further, for reasons we have given, the judgment and order of Marks J is not susceptible to appeal under the combined operation of s196 of the Industrial Relations Act and s5C of the Criminal Appeal Act. 38 In relation to the present matters, her Honour noted that "if the court delivered a stay of proceedings the prosecution would lose its appeal rights". 39 The prosecutor contended that an appropriate form of relief available in the event of a finding that the prosecutions were not validly instituted "is that provided by the combined operations of s196 of the Industrial Relations Act and s5AE of the Criminal Appeal Act, that is, a reference to the Full Bench". The defendants argued that the effect of Morrison v Joy Manufacturing is that there is no right of appeal in the event these proceedings are stayed, and that a reference to a Full Bench would have the effect of an appeal. The defendants submitted that it was appropriate to dismiss the proceedings, in which case a right of appeal remained pursuant to s196(3) of the Industrial Relations Act and s5C of the Criminal Appeal Act. 40 Given that no decision had been made on the merits of the matters, her Honour was unwilling to dismiss the proceedings. Rather, her Honour held (at [132]-[134]):

[132] These prosecutions reflect the consequence of a most serious incident and are prosecutions for alleged serious breaches of the OHS Act . Prosecution will be avoided by the defendants given the effect of the limitation clause under the statute, and the reasoning and possible order to Stay the proceedings. I believe, as a matter of fairness, it is proper to determine this matter in a manner which would preserve rights for the prosecution if they wish to pursue any appeal from my reasoning.

[133] If requested, I would grant leave to the prosecution to apply for a Reference to the Full Bench of the Commission pursuant to s196 of the Industrial Relations Act 1996 and s5AE of the CA Act in the following draft terms:

Given there were no written Consent to Institute Proceedings forms signed by the Director-General on or before 3 May 2001, could the Memorandum of 22 March 2001 containing the signed Approval of Recommendations by the Director-General on 26 March 2001 constitute a valid Consent to Institute Proceedings under s48(1) of the Occupational Health and Safety Act 1983.

[134] I therefore publish my reasons with a DRAFT ORDER in the following terms:

No. 3074 of 2001 Rodney Morrison v Bradley Dean Murray No. 3075 of 2001 Rodney Morrison v Michael John Barrett No. 3076 of 2001 Rodney Morrison v Powercoal Pty Ltd No. 3077 of 2001 Rodney Morrison v David Glen Coutts

be Stayed permanently. Reference to Full Bench 41 On 3 September 2004, the prosecutor sought a reference to the Full Bench of the Commission in Court Session. 42 On 15 September 2004, Kavanagh J referred the following two questions to the President for determination by a Full Bench and the questions were referred to this Full Bench: (1) Given there were no written Consent to Institute Proceedings forms signed by the Director-General on or before 3 May 2001, could the Memorandum of 22 March 2001 containing the signed Approval of Recommendations by the Director-General on 26 March 2001 constitute a valid Consent to Institute Proceedings under s48(1) of the Occupational Health and Safety Act 1983? (2) If the answer to question (1) is "yes", whether some or all of the summonses must be dismissed. Submissions Before The Full Bench 43 In summary, the prosecution has submitted that:

(a) the Memorandum is sufficient to constitute the requisite written consent to commence proceedings;

(b) the fact that the Memorandum refers to a charge under s16 and a charge was not brought under s16 is irrelevant to the question of whether consent was given to the charge that was brought;

(c) the evidence accepted by the trial judge supports the conclusion that the Director-General determined to consent and evinced in writing his consent to the prosecution of Powercoal under s15 of the Act by his endorsement to the Memorandum of the word "Approved", which he signed and dated; and

(d) the Memorandum, read as a whole, contains sufficient information regarding the prosecutions against the individual defendants as to constitute the requisite written consent. 44 In summary, the defendants have submitted:

(a) the reference of a point of law does not permit appeals on questions of fact already determined by the primary judge;

(b) the Memorandum (containing the signed approval of the Director-General dated 26 March 2001) could not constitute a valid consent to institute proceedings, particularly when viewed in light of the subsequent events;

(c) the Memorandum refers to the possibility of a prosecution by "the Department". The Public Sector Management Act 1988 permits the Director-General's powers to be delegated in writing, but, as Kavanagh J found at [3], there was no evidence of any such delegated authority to Mr Morrison to commence proceedings in his own name. Thus, even if the Court finds that the Memorandum carried the Director-General's consent to the prosecution of Powercoal, there was a link in the chain of authority which was not completed until the Director-General's retrospective approval (on Mr Morrison's memorandum bearing the date 4 May 2001) to Mr Morrison's actions on 3 May 2001. Consent to prosecute cannot be given retrospectively;

(d) the circumstances clearly indicate that any decision to prosecute the individuals was contingent upon a decision to prosecute Powercoal and if there was no valid consent to commence proceedings against Powercoal, there could be no valid consent to commence proceedings against the individual officers; and

(e) Kavanagh J found at [115] that the recommendation in the Memorandum was so general and in such wide terms that it could not constitute consent to institute particular proceedings against any of the individual defendants. CONSIDERATION 45 The key question arising in this reference is whether the Memorandum constitutes the requisite written consent. Kavanagh J found that the evidence revealed that this Memorandum was not originally intended to serve as the formal consent, although as she noted, s48(1) does not require a particular "form" to the consent except that it must be in writing. We consider that notwithstanding the findings of the original intent of the Memorandum, it is necessary to consider whether the Memorandum could nevertheless constitute the written consent required under s48(1). 46 As to the questions referred to us, we observe that question 1 appears to fully cover the issue between the parties as framed at first instance and question 2 contains a logical inconsistency. Accordingly, we will answer question 1 and disregard question 2. Counsel for the various parties did not object to this approach during the hearing. 47 In answering question 1, the following issues arise for consideration. First, whether the reference in the Memorandum to prosecutions under ss 15 and 16 of the Act affects the purported consent given that the prosecution did not proceed to prosecute under s16; secondly, whether, in the case of Powercoal, the Memorandum contains the requisite written consent given the qualification "subject to consultation being undertaken", particularly in light of subsequent events and the memorandum bearing the date 4 May 2001; and thirdly, whether, in the case of the individual defendants, there was the requisite written consent notwithstanding the absence of the qualification appearing in relation to Powercoal. There was also a submission made by the defendants regarding the delegated authority of Mr Morrison, which we will consider briefly. We shall take each of these issues in turn. Does the reference to s16 of the Act affect the quality of the consent?

48 Mr R Burbidge QC, with whom Mr I Taylor of counsel appeared on behalf of the prosecution submitted that the philosophy underlying the requirement for consent in particular prosecutions is set out in the Full Court of the Federal Court of Australia decision in Traveland Pty. Ltd. v Doherty (1982) 41 ALR 563. Counsel cited the joint judgment of Bowen CJ, Deane and Toohey JJ where their Honours held: Traveland maintained the discrepancies between the terms in which the offence was described in the Minister's consent and the terms in which it was described in the information and summons had the consequence that the proceedings were not, as required by s163(4)(b) instituted with the consent in writing of the Minister ... the sub section contains no express provision as to the form which the consent should take or as to the detail or particularity with which the proceedings must be identified. The object of the requirement of 163(4) that a prosecution should not be instituted without the designated consent is to protect the individual or corporation in danger of being charged, by ensuring that a prosecution will only be instituted if the Minister (or, where appropriate, his delegate) considers that it should. Consistently with that object, the requirements of s 163(4) will not be satisfied unless the Minister in truth has consented to the proceedings in question. It does not, however, follow that it is incumbent upon the Minister to restrict his consent to the institution of a Prosecution for but one offence or that the consent would either define or particularise the precise offence or offences with which the prospective defendant should be charged (at 568). 49 On this basis, the prosecution submitted that the inclusion in the Memorandum of a reference to a charge under s16 that was not subsequently brought is irrelevant to the question of whether consent was given to the charge that was brought. 50 While this issue was not addressed by the defendants in written submissions and was not advanced during the hearing, given the weight placed on the discrepancy by her Honour at first instance, we consider it necessary to comment on it. 51 We are satisfied that, following the approach set out in Traveland, the reference to a charge under s16 (which was later not brought by the prosecution) does not, of itself, affect the quality of the consent to prosecute under s15. The Memorandum refers to the prosecution that is brought and we consider that this is sufficient.

Does the phrase "Subject to consultation" affect the quality of the consent?

52 Counsel for the prosecution submitted that the inclusion of this phrase in the recommendation in the Memorandum did not affect the consent being effective in satisfying the requirements of s48(1) of the Act. The prosecution made two submissions relevant to this issue - first, that the evidence of the Director-General was relevant to interpreting the effect of this phrase and secondly, that the usual interpretation of the phrase "subject to" supported their submission. 53 The prosecution submitted that the evidence given by the Director-General was to the effect that he had given a consent which in the absence of a counter direction would lead to prosecution. They further submitted that the Director-General's evidence on this subject was relevant as it was a direct description of his state of mind at the relevant time, a factual matter itself relevant to the interpretation properly to be placed on the circumstance that he had written the word "Approved". They also submitted that his evidence established that his action in approving the Memorandum is properly to be seem as a consent to the institution of proceedings, subject to a consultation not engendering from him a countermanding direction. 54 The prosecution also submitted that the intention of the Director-General in approving the Memorandum, as evinced by the evidence, was consistent with the usual interpretation where something is expressed to be "subject to" something else; namely that the principal matter is intended to have effect unless the matter identified by the phrase "subject to" conflicts with that effect. The prosecution referred to the definition in the Butterworths Australian Legal Dictionary 1997, which defines the expression subject to as follows: Subject to An expression used in statutory drafting to indicate that a provision must be read subject to other statutory provisions or statutes, as specified. Where there is no conflict between statutory provisions, the expression has no operation, but where there is conflict, the expression indicates which provision must prevail: C&J Clark Ltd v Inland Revenue Cmrs [1973] 1 WLR 905. 55 The difficulty with the prosecution's argument, in this respect, is that the "subject to consultation" phrase in the Memorandum was not self-executing. That is, it was not objectively clear when the expression would be satisfied so as to assess the conflict and either proceed or not proceed. The amount of consultation was not set out in the Memorandum and the outcome was also not prescribed. 56 Mr RJ Buchanan QC who appeared on behalf of Powercoal submitted that, when viewed in the context of the subsequent events, there was no consent to the institution of the proceedings in any real or practical sense until 3 May 2001. Powercoal contended that the process of consultation was to remain open until at least midday 3 May 2001 and contended that the subsequent events supported this. A meeting was held on 27 April 2001 between representatives of Powercoal and the Department and the possibility of a further meeting was left open. Counsel also referred to a letter dated 3 May 2001 written by the Director-General to Powercoal's solicitors, in which he wrote: I note that you have not taken up the invitation to confer further and as such I consider the consultation process to be closed. I wish to advise that I have considered the matters you have raised however I have made a decision to prosecute Powercoal Pty Ltd for breaches under the Occupational Health and Safety Act . 57 Proceedings were then instituted some time after midday, 3 May 2001 by an Application for Order signed by Mr Morrison. 58 It was submitted that the Director-General approved Mr Morrison having instituted the proceedings by endorsing that approval (and dating it "3/5/01") on a memorandum to the Director-General from Mr Morrison incorrectly dated 4 May 2001 at the top of the memorandum and dated "3.5.01" by hand under Mr Morrison's signature. Powercoal submitted that this memorandum makes it clear that the prosecution had already been instituted prior to him submitting that memorandum to the Director-General for approval and refer to Kavanagh J's finding in this regard (at para 90): The memorandum is written in the past tense. Therefore, it must have come into existence after the filing of the Applications for Order. 59 Powercoal contended that this memorandum cannot be relied upon because it post-dates the institution of proceedings and because its terms seek the Director-General's consent, it contradicts the suggestion that there was any earlier effective consent. 60 Mr Buchanan also referred to an exchange of correspondence subsequent to the commencement of the proceedings as support for the proposition that the consultation process was to be substantive. Powercoal's solicitors, by letter dated 21 May 2001 to the Director-General, complained that at a meeting on 27 April 2001, Mr Morrison had indicated that the Department intended to prosecute regardless of any representations Powercoal may make. The Director-General replied by letter dated 31 May 2001 in which he stated: Contrary to the assertion in your letter, the Department had not predetermined any action in this matter. Rather after hearing submissions from representatives of Powercoal at the meeting on 27 April 2001 the view was taken that no matters were put on behalf of Powercoal that would warrant the Department not to consider prosecution action in this matter.

61 Mr Burbidge responded to Powercoal's submissions regarding the 3 or 4 May 2001 memorandum by contending that her Honour made a finding solely as a matter of interpretation and that by looking at the terms of the memorandum, there are different tenses to be found throughout the document and that it is clear from the terms that it was executed on 3 May 2001. 62 The difficulty for the prosecution in advancing this submission is that it effectively amounts to an argument that this memorandum satisfied the consent requirement. Given the terms of the questions referred to us, it is not open to the Full Bench to reach any conclusions as to whether this memorandum could constitute the requisite written consent and, accordingly, it is arguably irrelevant to consider whether the finding was one of fact or one of interpretation. We do, however, observe that her Honour's findings at paragraph 90 regarding the memorandum raise doubts as to why her Honour did not proceed to conclude that the memorandum was the Director-General's consent to the proceedings and why the Director-General's evidence as to the timing of the execution of the memorandum was not referred to. We also observe that the 3 or 4 May 2001 memorandum was not the subject of cross-examination at first instance and, as such, do not consider it appropriate for the Full Bench to seek to reconcile the discrepancies in interpretation raised by the prosecution and, in any event, it is beyond the scope of the question referred to the Full Bench. 63 It is, however, open to us to consider the Memorandum in the context of addressing the initial question we raised as to whether the "subject to consultation" qualification in the Memorandum vitiated the document being the requisite written consent. 64 We consider that the 3 or 4 May 2001 memorandum supports the contention that further approval from the Director-General was required before proceedings were instituted against Powercoal. When the Memorandum is viewed in the context of the 3 or 4 May memorandum and the documents prepared by the Director-General on 3 May 2001 - namely the Ministerial Submission and the letter to Powercoal's solicitors - the Memorandum cannot be viewed as an approval which will take effect unless the Director-General countermanded otherwise. By its terms, it required a further and final approval by the Director-General and, given the requirements of s48(1), that approval must have been given in writing. The exchange of correspondence between Powercoal's solicitors and the Director-General in late May 2001 regarding the nature of the consultation process also supports this conclusion. 65 This results in finding that the "subject to consultation" qualification in the Memorandum precludes the document from constituting the requisite written consent. Did the Memorandum contain a consent to prosecute the individual defendants?

66 The Memorandum, in so far as it relates to the individual defendants, raises discrete issues. The "subject to consultation" phrase was not expressed to relate to the recommendations for prosecutions against the individual defendants and the charge against the individual defendants described in the Memorandum is consistent with the charge actually made. Accordingly, in relation to the individual defendants, the issue is whether the Memorandum contains sufficient information to constitute a consent to the proceedings actually brought. Counsel for the personal defendants, in addition to submitting that the Memorandum was too general, raised two issues, namely that (a) Kavanagh J made a finding of fact on this point and that the reference of a point of law does not permit appeals on questions of fact already determined by the primary judge; and (b) that, in the circumstances, there could be no valid consent to commence proceedings against the individuals, absent a valid consent to commence proceedings against Powercoal. 67 Kavanagh J, after considering the authorities applicable to the nature of the requirement for consent, held that the Memorandum and the approval marked on the Memorandum was not a written consent in the case of the individuals because the Memorandum was too general. We have earlier reproduced the conclusions of Kavanagh J in this regard (refer paragraph 36 above). 68 Her Honour's reasoning for her conclusion was that the recommendation section of the Memorandum did not mention the subject incident, the appropriate act or the relevant sections of the Act. While her Honour noted that the Memorandum included a background as to the facts of the incident, she was not persuaded that the Court should presume to incorporate into the recommendation the words from the background part of the document relating to the relevant sections of the Act and also considered that the background did not connect the incident to the names of the individuals concerned even though it mentions the Act and the relevant sections of the Act. 69 Mr Burbidge referred us to the Full Federal Court's decision in Traveland as supporting the proposition that the consent can be worded in general terms, with the identification of the precise offence, the particular wording of the charge and the content of any particulars being left to those responsible for the actual institution and conduct of the proceedings. Mr Burbidge further submitted that, in considering the sufficiency of the document proffered as evidence of the written consent, it is necessary to consider the document as a whole. 70 We agree with the prosecution's contention that it is necessary to consider the document as a whole in assessing whether it is a sufficient consent and, accordingly, we do not consider it necessary that information contained in the background section of the Memorandum be restated in the Recommendation section. 71 In Traveland, Bowen CJ, Deane and Toohey JJ when considering a similar requirement for consent, concluded (at 47) that: What is necessary is that the Minister should give his consent in terms which enable it to be said that the proceedings which are instituted have been instituted with his consent. It may be that this requirement precludes a consent being given in such wide terms as to be a consent to no proceedings in particular (see Crichton v Victorian Dairies Ltd [1965] V.R. 49, at p. 59). On the other hand, it does not preclude a consent to the institution of proceedings being worded in general terms with the identification of the precise offence, the particular wording of the charge and the content of any particulars being left to those responsible for the actual institution and conduct of the proceedings. 72 Counsel for the prosecution also referred us to the reasoning and conclusions of Haylen J in Morrison v Dartbrook Coal Pty Ltd and Tecrete Industries Pty Ltd (2002) 116 IR 252. Haylen J, in considering the requirements of s48(1) of the Act, including relevant authorities, drew a number of conclusions, including (relevantly): (a) a general authority is valid and effective; and (b) the detail or particularity of the proceedings need not be identified (at para 72). 73 We consider that the Memorandum is not too general in so far as it relates to the prosecution of the three named individual defendants and that, when properly read as a whole, it contains sufficient information to constitute a written consent for the purposes of s48(1) of the Act. It is not so general as to amount to a consent to no proceedings at all, notwithstanding that the Act and section numbers are not restated in the recommendation section of the Memorandum. 74 In the alternative, counsel for the three individual defendants submitted that Kavanagh's J conclusion in paragraph 115 was a finding of fact and that the reference of a point of law does not permit appeals on questions of fact already determined by the primary judge. Counsel for the prosecution submitted that any conclusion by her Honour in respect of the effect of the Memorandum must be read in light of the fact that her Honour ultimately referred the question as to the true effect of the Memorandum to the Full Bench for determination. 75 Her Honour's conclusions must be considered in the context of her referral to the Full Bench. In that light, we consider that the findings referred to in paragraphs 115 to 117 (inclusive) were findings of law as to the effect of the Memorandum and not findings of fact. . 76 Mr Shume for the second defendant also contended that the decision to prosecute the three named individuals was contingent on the prosecution of Powercoal occurring, such that if, for whatever reason, that prosecution did not proceed, the prosecution against the individuals could not proceed. During the hearing, Mr Shume clarified that this contention was based on the actual wording of the Memorandum rather than the construction of the Act. 77 Counsel for the prosecution submitted that prosecution under s50 of the Act is not dependant upon prosecution of the relevant corporate entity and referred to s50(2) as supporting this contention. It was also submitted that the conclusion upon which this argument is based is not one drawn by the trial judge, nor is it the only conclusion open upon the facts that her Honour did find. In the alternative, counsel submitted that it is not in issue that a decision to prosecute Powercoal was, in fact, made. 78 We do not accept the second defendant's argument as to the terms of the Memorandum. The recommendation to commence prosecution against the three named individuals can, and should, be regarded as a separate and distinct recommendation. In this regard, we agree with the prosecution's contention that there was no finding of fact made by the trial judge to substantiate this contention. 79 We also observe that s50(2) makes clear that individuals can be prosecuted by virtue of s50 in the absence of related charges being brought against the relevant corporation and, indeed, there are a number of examples where this has occurred (see, for example, Inspector Carmody v Frankel [2003] NSWIRComm 159 and Workcover Authority of New South Wales v Hitchcock (2004) 135 IR 377). 80 Mr Buchanan expressed concern at the form of the Memorandum available for consideration by the defendants and the Full Bench because of the claim for legal professional privilege to parts of the Memorandum in quite extensive terms. He observed that there is no way of knowing, for example, how many possibilities, uncertainties, caveats or otherwise, might have been included within the discussion which did not find reflection in the parts that were revealed. 81 Mr Wallach, for the first and fourth defendants, also expressed concern at the state of the Memorandum and contended that the absence of the section on legal advice, when considered in light of the fact that the recommendation section did not refer to any statute, presents an adverse inference for the prosecution, particularly as the recommendation in the Memorandum to prosecute the three individuals does not refer to any statutory provision. 82 We consider it is important to recognise, in this context, that the trial judge had the benefit of reading the full Memorandum and that it would have been incumbent on her to raise any issues of the type referred to by counsel for the defendants with the parties had she considered it necessary. We note further that the matter was referred to us on the basis of the Memorandum with the blacked out sections. Accordingly, we are not persuaded to draw any inference from the existence of the blacked out sections of the Memorandum. Was a separate written delegated authority required for Mr Morrison to institute proceedings?

83 Counsel for the defendants each made submissions based on the Memorandum referring to the prosecution by "the Department". Specifically, they contended that under the terms of the Public Sector Management Act 1988, management of the Department is vested in the Director-General and the Act permits the Director-General's powers to be delegated only in writing. It was contended that there was no evidence that Mr Morrison possessed any delegated authority to commence proceedings in his own name. Counsel for the defendants submitted that Kavanagh J made a finding to this effect at paragraph 3. 84 Counsel for the prosecution submitted that no question of delegation arises as the Director-General was a prescribed officer for the purposes of s48(1)(a). They further contended that Powercoal is implying, without stating, that s48(1) requires the written consent to mandate a particular person as the prosecutor and that the section does not contain any such words and it would be contrary to principle to imply them. In this regard, the prosecution referred us to the decision of Haylen J in Dartbrook Coal (supra). 85 While the defendant's contentions were not pressed during the hearing, we consider it worthwhile to briefly consider the submission and, for the reasons we will give, reject the contention. A similar submission was considered by Haylen J in Dartbrook Coal and after considering various authorities his Honour concluded that (at para 70): Once it is accepted, as I have, that the prosecutions were, in fact, authorised and consented to by the Director-General, that appears to be all that is required by s48(1)(a). To adopt the words of French J and to then require the authorisation to specify a person to take the prosecution in order for the consent to be valid would be to impose superadded requirements and the imposition of ancillary procedural rules that are not found in the language of the section. Further, the imposition of an inflexible code of administration on the section as suggested by the arguments for the defendants would expose this provision to the type of unintended difficulties referred to by Issacs J in Berwin . ... These considerations lead to the conclusion that neither as a matter of construction nor on the application of legal principle, that a consent under s48(1)(a) requires the nomination of a person to undertake the prosecution. 86 We consider that Haylen J was correct in concluding that s48(1)(a) does not require a person to be nominated to take the prosecution and, accordingly, reject the defendant's submission. As to Mr Buchanan QC's contention that Kavanagh J made a finding of fact in paragraph 3 regarding this issue, we do not consider that her comment in paragraph 3 lends any weight to the defendant's submission that a written delegated authority was required. Conclusion 87 Therefore, turning to the questions referred to us, we have already expressed our view as to the formulation of the questions and, now conclude that, in answer to question 1:

(a) the Memorandum does not constitute a valid consent to commence a prosecution against Powercoal; and

(b) the Memorandum constitutes a valid consent to commence a prosecution against the three individual defendants, Mr Bradley Dean Murray, Mr Michael John Barrett and Mr David Glen Coutts. 88 We therefore remit the matter to the trial judge and while we have already addressed the questions referred to us, the questions referred are answered in terms as follows:

1. (a) As it relates to proceedings against Powercoal, No; and

(b) As it relates to proceedings against each of Mr Bradley Dean Murray, Mr Michael John Barratt and Mr David Glen Coutts, Yes.

2. Unnecessary to answer. 89 The issue of costs of the reference is not without difficulty. Powercoal has been successful at first instance and before the Full Bench whereas the individual defendants have now been unsuccessful at both stages. Costs should normally follow the event. However, the major burden of the argument seems to have fallen on Powercoal rather than the individual defendants and it would be inappropriate that they be responsible for a major part of the prosecution's costs. We therefore order that: 1 The prosecutor shall pay Powercoal's costs of the references and of the proceedings at first instance to the extent that they related to the issues referred. 2 The individual defendants shall jointly and severally pay one third of the prosecution's costs of the references and of the proceedings at first instance to the extent that they related to the issues referred.

90 Finally, we observe that these proceedings illustrate the importance of there being a right of appeal to the Full Bench in respect of proceedings of the kind dealt with by Kavanagh J. It will be recalled that in Morrison v Joy Manufacturing the Full Bench held, because of the limited scope of s5F of the Criminal Appeal Act 1912 and the way in which s196 of the Industrial Relations Act was correspondingly limited in its scope to the matters in s5F, there was no right of appeal in matters such as this. Section 5F does provide similar rights of appeal in respect of proceedings in the Land and Environment Court. In the present matter there may well have been a different result in respect of the proceedings concerning Powercoal if there had been available a right of appeal, albeit one subject to a strict leave requirement. We therefore direct the Industrial Registrar to provide a copy of this judgment to the relevant ministers of the Crown so that appropriate consideration might be given to the matter.

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