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?