Ridge Consolidated Pty Ltd v WorkCover Authority of New South Wales

Occupational Health and Safety - Appeal - Application for leave to appeal against interlocutory judgment in Occupation Health and Safety prosecution - Principles to be applied - Approach to be adopted where appellant seeks to raise issues additional to those argued before trial judge - Practice and Procedure - Commencement of Occupational Health and Safety proceedings before Industrial Relations Commission in Court Session - Construction of relevant provisions of Industrial Relations Act 1996, Supreme Court (Summary Jurisdiction) Act 1967 and Industrial Relations Commission Rules 1996 - Identification of steps necessary for valid commencement of proceedings - Interrelationship between the Industrial Relations Act and the Supreme Court (Summary Jurisdiction) Act - Validating provisions - Leave to appeal granted except as to additional issues - Appeal dismissed. Criminal Appeal Act 1912 s 2 s 5C s 5F Industrial Relations Act 1996 s 168 s 170 s 196 LEGISLATION CITED : Industrial Relations Commission Rules 1996 r 218 r 219 r 220 Occupational Health and Safety Act 1983 s 16(1) Supreme Court (Summary Jurisdiction) Act 1967 s 4 s 6(1) s 12 BVM (1997) 91 A Crim R 260 Caltex Petroleum Pty Limited v Harmer (1999) 92 IR 264 Carter v The Egg and Egg Pulp Marketing Board for the State of Victoria (1942) 66 CLR 557 Concrete Constructions Group Ltd v WorkCover Authority of New South Wales (Inspector Dubois) [2000] NSWIRComm 32 Director of Public Prosecutions v West [2000] NSWCA 103 Electronic Rentals Pty Ltd v Anderson (1971) 124 CLR 27 CASES CITED : John L Proprietary Limited v The Attorney-General for New South Wales (1987) 163 CLR 508 Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 McGerty v Dairy Farmers Co-operative Ltd (1989) 43 A Crim R 308 Neilsen v Water Resources Commission (1985) 11 IR 102 Regina v Slator (1881) 8 QBD 267 Transport Workers' Union of Australia, New South Wales Branch v Jack Seatons Transport Pty Limited (1999) 95 IR 134 WorkCover Authority of New South Wales (Inspector Lancaster) v Re-car Consolidated Industries (Wagga) Pty Ltd (unreported, Marks J, 14 July 1999) HEARING DATES: 08/08/2000 DATE OF JUDGMENT: 08/18/2000

APPELLANT Mr D S Inverarity of counsel Solicitor: Mr E D Crennan Colin Biggers & Paisley LEGAL REPRESENTATIVES: RESPONDENT Mr P M Skinner of counsel Solicitor: Mr G M Phillips Carroll & O'Dea

JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

CORAM: WRIGHT J, President WALTON J, Vice-President HUNGERFORD J

Friday 18 August 2000 Matter No IRC 1168 of 2000 RIDGE CONSOLIDATED PTY LIMITED v WORKCOVER AUTHORITY OF NEW SOUTH WALES (INSPECTOR GRAEME MAUGER) Application for leave to appeal and appeal against a decision of Justice Kavanagh given on 23 February 2000 in Matter No IRC 1311 of 1999.

JUDGMENT OF THE COURT [2000] NSWIRComm 151 1 These proceedings involve an application by Ridge Consolidated Pty Limited (the appellant) for leave to appeal and, if leave be granted, an appeal against a judgment and orders of Kavanagh J given on 23 February 2000 in Matter No IRC 1311 of 1999. Her Honour's judgment was given in proceedings commenced by Inspector Graeme Mauger (the respondent) against the appellant and purportedly pursuant to s 16(1) of the Occupational Health and Safety Act 1983. 2 The appellant filed a Notice of Motion in the proceedings at first instance seeking orders setting aside or dismissing the summons or, in the alternative, a permanent stay of the proceedings. The ground upon which the orders were sought was that the summons was issued by the Registrar on the basis of an application for summons accompanied by an affidavit which did not verify the application as required by the terms of Rule 219 of the Industrial Relations Commission Rules 1996 (the Rules). The particular omissions alleged were that the affidavit did not verify that the alleged offence arose as a result of the appellant's undertaking; further, that it did not verify in what respects an undertaking was conducted by the appellant; and that it did not verify that the alleged offence occurred at the appellant's place of work. Thus, it was said, the affidavit failed to verify properly the allegations in the application and so the consequent summons was bad. 3 It followed, as it was submitted, that the summons was invalid and void or, alternatively, that it was liable to be set aside or dismissed. It was submitted also that the summons was deficient in that it did not identify in what respects it was alleged the offence arose as a result of the defendant's undertaking. 4 To understand the nature of the issues before her Honour and the matters ventilated on appeal, it is necessary to set out the relevant provision under which the proceedings were brought, or purportedly brought, and also the documents filed and to which objection was taken by the appellant. 5 Section 16(1) of the Occupational Health and Safety Act is in the following terms: 16. Employers and self-employed persons to ensure health and safety of persons other than employees at places of work (1) Every employer shall ensure that persons not in the employer's employment are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work. 6 The application for the summons filed was in these terms: The Defendant, being an employer, on 24 March, 1997 at the site of the construction of additional carriageway lanes to the M4 Motorway, at a place about 700 metres West of Church Street, Parramatta DID FAIL to ensure that persons not in its employment and in particular, Pietro Panebianco, were not exposed to risks to their health or safety arising from the conduct of its undertaking while they were at its place of work contrary to section 16(1) of the Occupational Health & Safety Act , 1983 in such case made and provided. The particulars of the contravention by the Defendant are: 1. At all material times the Defendant was the occupier of a construction site and was in charge of the site and all areas in which work was being performed pursuant to the Defendants undertaking at that site on the M4 Motorway near Church Street, Parramatta. 2. The Defendant failed to ensure that persons and, in particular, Mr Panebianco, were instructed that they were not to work near to or in the vicinity of gaps in the concrete protection barrier. 3. The Defendant failed to prevent persons and, in particular, Mr Panebianco from working within three (3) metres of traffic travelling at speeds up to and in excess of 60kph without providing a physical protection barrier. 4. The Defendant failed to supervise persons and, in particular, Mr Panebianco so as to ensure that persons did not carry out work near to or in the vicinity of the gaps or entry points in the concrete protection barrier. 5. The Defendant failed to ensure that all areas in which work was to be performed were provided with concrete protection barriers prior to the work commencing so as to isolate the area where the work was to be carried out from traffic streams and vehicle movements. 6. The Defendant failed to relocate work so that persons and, in particular, Mr Panebianco were not working in the proximity of the known gaps or entry points in the concrete protection barrier. 7. The Defendant failed to implement a system whereby as work progressed towards one of the known gaps or entry points in the concrete barrier fence, that gap or entry point was relocated away from construction work that was being undertaken and in so failed to prevent persons from working in areas where there was a risk to health and safety. 8. The Defendant failed to institute systems of work or supervision methods by which the location of and purpose to which gaps in the concrete protection barriers, and the arrangement or work in relation to those gaps, was communicated to persons not in its employment. 9. The Defendant failed to ensure that all persons and, in particular, Mr Panebianco, had undertaken the site induction process prior to commencing work. 10. The Defendant failed to have in place a system by which persons were not permitted to commence work prior to the induction process having been completed. 7 The affidavit in support of the application for summons relevantly provided: 1. I am an Inspector duly appointed under Division 4 part 3 of the Occupational Health & Safety Act , 1983 (NSW) ("the Act") and am empowered under s 48 of the said Act to institute proceedings in the within matter. 2. At all material times, the Defendant, Ridge Consolidated Pty Limited (ACN 000 589 437), was and is a company duly incorporated in the Australian Capital Territory with a registered office c/- Tony Comissio & Company, Shop 24B, Home World Shopping Centre, Soward Street, Tuggeranong in the Australian Capital Territory. 3. The Defendant contracted with Hitex Concrete Pty Limited ("Hitex") that Hitex would provide the work of one of its Hitex employees to assist in the performance of the contract works and on 24 March, 1997 Hitex supplied the services of a labourer Pietro Panebianco to the Defendant. 4. On 24 March, 1997 Mr Panebianco was directed to perform concrete patching duties by Mr Garrick Maybury, a site supervisor in the employ of the Defendant, notwithstanding that Mr Panebianco had not undertaken the site induction procedures prior to commencing work at the said site. 5. By 24 March, 1997 SWR Constructors Pty Limited ("SWR") the principle company having as its undertaking the widening of the Motorway had constructed a concrete protection barrier at the said site so as to separate the work or construction area from lanes of moving traffic. 6. The protection barrier was not continuous but was so constructed that there were six (6) gaps (or entry points) left in the concrete barrier fence. 7. The Defendant was aware of the nature and location of the gaps in the concrete barrier fence. 8. On 24 March, 1997 Mr Panebianco was performing concrete patching work pursuant to instructions of the Defendant adjacent to one of the known gaps in the concrete barrier fence approximately 700 metres west of Church Street, Parramatta. 9. On 24 March, 1997 and at a point approximately 700 metres east of Church Street a motor vehicle registered number SGU-055 driven by Stephen Lawrence Wells entered the work area through a gap in the concrete barrier fence. 10. The vehicle struck Mr Panebianco and as a result of the impact, Mr Panebianco was killed. And such further particulars as shall be required on request.

8 The summons issued and served on the appellant was in terms materially similar to those of the application, subject to necessary differences in the respective formal parts of the documents. Her Honour made orders declining to grant the relief sought by the appellant although an order for costs was made in its favour. 9 The basis upon which her Honour reached this conclusion is set out in the challenged decision in the following terms: 42 In a reading of IR Rule 219 with the provisions of the Industrial Relations Act 1996 although strict requirements must be applied to a criminal prosecution, the provisions of the Act may well allow for the Court to give orders in proceedings for further clarifying steps to be taken by a prosecutor. Importantly, however, the reasoning of Hill J in Boral , as adopted as the proper approach of this Court in Concrete Constructions , makes clear defects and any resultant invalidity at common law are avoided or relevantly saved by s6 of the Supreme Court (Summary Jurisdiction) Act 1967 ( Stanton v Abernathy & Anor (1990) 19 NSWLR 656 at 667 per Gleeson CJ). 43 Further, the Court finds an offence has been disclosed in the summons. This was a good information from the time it issued in that the summons identified the essential factual ingredients of the charge. It specifies the "time, place and manner" of the Ridge Consolidated Pty Ltd's act that defines the breach as is required under s16(1) of the Act. 44 Further the Court finds "the undertaking" has been pleaded as an essential factual ingredient of a breach under s16. While the particular, as to what is alleged to be the defendant's undertaking, has not been properly verified in the affidavit of the prosecutor or following the defendant's proper request for particulars, the authorities and the associated legislative provisions allow any defect can be cured by the provision of precise and detailed particulars. The prosecutor has therefore not breached Rule 219. The prosecutor has stated in the affidavit the nature of the breach which is alleged. 45 The affidavit also provides verification as "to the nature of the breach or offence" which is alleged. What the particulars in the affidavit of the prosecutor suffer from is the lack of clarity and completeness: . . . I do not consider that the affidavit of the prosecutor, notwithstanding any greater detail provided therein, is a substitute for appropriate particularity. (see Wright J, President, Concrete Constructions ) 46 What is required is further and better particulars. The effect of any order requiring further particulars will not act as an amendment to create a valid information for the first time after the statutory period for the taking of proceedings has expired (see Tregilgas v Howie (1926) S.A. States Report 122 at 126). While the legislature has set a time limit within which an information must be laid and a defendant is entitled to receive the benefit of this time limit the information as issued properly identifies the essential ingredient of the offence. 47 As the provision of proper particulars will not have the effect of alleging an offence different from that which is presently alleged in the summons there is no question as to the summons being issued outside the statutory time limit. (See Gilmour v Midways Springwood Pty Ltd ((1980) 49 FLR 36 at 39; see also Chaudhary & Anor v Ducret (1985) 11 FLR 163). 48 I order the prosecutor to provide the defendant with the appropriate particulars. 49 I dismiss the application to strike out the summons. 10 In the appeal proceedings the appellant was represented by Mr D S Inverarity of counsel (who did not appear at first instance) and the respondent by Mr P M Skinner of counsel. The appellant submitted that the questions raised by the appeal were: (1) What is the nature of the initiating process which invokes the jurisdiction of the Commission to hear and determine criminal offences? What place does a summons issued by the Registrar have within that regime? (2) Can deficiencies in the application for summons and affidavit verifying the allegation be overcome by the Supreme Court (Summary Jurisdiction) Act or under Rule 88? (3) What is the effect on criminal proceedings before the Commission where an informant breaches Rule 219 and the Registrar issues a summons despite a breach of that rule? 11 It was submitted that leave to appeal should be granted on a number of bases, including prima facie error in the judgment at first instance. Other matters of importance relied upon for leave were that the effect of the appeal, if successful, would lead to a permanent stay of the proceedings; the appeal went to the jurisdiction of the Commission; it was inappropriate for the appellant to be required to enter a plea in the substantive hearing until such time as the Commission's jurisdiction was determined in the appeal proceedings; and, finally, the Commission has not previously considered the application of the Criminal Appeal Act 1912 in relation to an appeal from an interlocutory decision of a single judge of the Court. The issues thus raised by the appeal have general application to the manner in which criminal prosecutions before the Commission are initiated and conducted and, it was therefore submitted, leave to appeal should be granted to enable an authoritative pronouncement on them. 12 At the commencement of the hearing, the appellant sought leave to add additional grounds of appeal and additional issues or questions to be raised in the appeal. In order to ensure the hearing proceeded expeditiously, we permitted the appellant to argue those additional matters, subject to an appropriate formulation of a further amended Notice of Appeal and the reservation of the rights of the respondent as to the new matters. The Court subsequently granted leave to the appellant to add the following additional issue in the Notice of Appeal: (3) The issue of the summons by the Registrar commanding the Appellant to appear at the Commission;

and also to raise the following additional ground of appeal:

(1 1) Section 4(1) of the Supreme Court (Summary Jurisdiction) Act 1967 requires that any order requiring the appearance of a relevant person must be made by a Judge;

these being the only additional matters pressed by the appellant. 13 This appeal is brought pursuant to s 5F of the Criminal Appeal Act as incorporated into the statutory scheme applicable to the Commission in Court Session by s 196 of the Industrial Relations Act 1996. The former section is in the following terms:

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 .

(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 . 14 Section 196(3) of the Industrial Relations Act requires that s 5F, in its application to the Commission in Court Session, be read so that the reference to the Court of Criminal Appeal is to be read as a reference to a Full Bench of the Commission in Court Session and a reference to the Supreme Court is taken to be a reference to the Commission in Court Session. 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. We do not consider that the dissenting judgment of Toohey J in John L Proprietary Limited v The Attorney-General for New South Wales (1987) 163 CLR 508 at 539 is to contrary effect. When his Honour's conclusion is applied to s 5F (noting that his Honour was dealing with the different situation under section 5C of the Criminal Appeal Act ) it supports the construction contended for by the appellant. His Honour said: The term "information", particularly when coupled with "indictment", has a long and well-understood history. It is summed up in the following statement by Hawkins J in Regina v Slator (1881) 8 QBD 267 at 272: "A well-defined distinction exists and has long existed between an indictment and an information. An indictment is 'an accusation found by an inquest of twelve or more upon their oath' ( Burn's Justice , 30th ed., vol.3, p.2), whilst an information is a proceeding by the Attorney General of his own motion without the intervention of a grand jury." And Bowen J said at 274: "There are two great ways of proceeding against and bringing to trial a person accused of a crime; one is by proceeding against him before a grand jury, and time out of mind that proceeding has been known as an 'indictment'; the other mode is by proceeding without a grand jury upon an information, which is initiated either by the law officers of the Crown or by a private prosecutor with the leave of the Court." It is in that sense that "information" is used in section 5C of the Criminal Appeal Act . Section 2(1) of that Act defines "indictment" to include "... any information presented or filed as provided by law for the prosecution of offenders". That, I think, reflects the law outlined in Regina v Slator . 17 It is not necessary to refer in detail to all of the grounds of appeal or submissions made by the parties in these proceedings because, as they developed, it became clear that the two issues to be determined were: (1) whether leave to appeal should be granted in part or in whole in relation to the appellant's appeal pursuant to s 5F(3) of the Criminal Appeal Act; and (2) whether the proceedings before her Honour had been validly commenced in light of the appellant's concession that there was no defect in form or in substance in the application for the summons filed with the Registrar, or in the terms of the summons then issued, notwithstanding the defects alleged in the supporting affidavit. 18 As to the first issue, the starting point of our consideration is the judgment of the Court of Criminal Appeal in BVM (1997) 91 A Crim R 260 where Hunt CJ at CL held at 264 - 267: It is usual in such applications pursuant to s 5F for leave to appeal against an interlocutory judgment or order to hear argument first as to whether leave should be granted, without hearing full argument as to whether the decision was correct ( Matovski (1989) 15 NSWLR 720 at 722). . . . In my opinion, an appeal against an interlocutory judgment or order pursuant to s 5F is not by way of rehearing (that is not the way in which appeals pursuant to s 5F have been heard to date. See, for example, Allen (unreported, Court of Criminal Appeal, NSW, No 60143/91, 3 May 1991) p 6). This Court, unless specifically empowered to act otherwise, acts as a court of error, not as a court of rehearing. . . . Section 5F does specifically provide that this Court may substitute its own decision for that of the trial judge in relation to interlocutory judgments or orders, and that it may give leave for further evidence to be given.

. . . What s 5F did not give, however, was the express power to this Court to rehear the matter. This is in marked contrast to the express power to rehear the matter which is given in relation to the appeals provided by ss 5AA-5AD. The different nature of those appeals to that provided by s 5F, and the similar nature of this appeal to that heard after conviction on indictment provided by s 5, make it clear that it was not the intention of the legislature that these appeals should be heard by way of rehearing. In his Second Reading Speech, the Attorney-General made it clear that this Court's role pursuant to s 5F was to review the correctness of the interlocutory decision, a role which is necessarily inconsistent with a rehearing (Legislative Assembly, Hansard, 17 November 1987, p 16,088). It would be quite wrong in those circumstances to read any implication into s 5F which conflicts with that intention. In my view, such an implication in any event cannot be read into s 5F in the light of its context. This Court has already held that, in an appeal pursuant to s 5F, the findings of fact and the exercise of any discretion by the trial judge may be attacked only if error has first been demonstrated, as must be demonstrated in an appeal against conviction ( Alexandroaia (1995) 81 A Crim R 286 at 290) . . . I have, however, also considered the application for leave to appeal upon the basis that - contrary to my own view, and to the view expressed by this Court in Alexandroaia (1995) 81 A Crim R 286 at 290 - an appeal pursuant to s 5F is by way of rehearing. The applicant must still first obtain leave to appeal. The requirement of leave evidences a legislative intention to uphold the authority of the trial judge; and it reflects the longstanding policy of the appellate courts that it is undesirable that criminal prosecutions should be interfered with by interlocutory procedures prior to conviction and sentence ( Steffan (1993) 30 NSWLR 633 at 642 - 643; 67 A Crim R 506 at 515). I would nevertheless readily grant leave in the particular circumstances of this present case if it were to be demonstrated that there is a real risk that the decision was wrong. 19 For the purpose of these proceedings, we draw the following propositions from his Honour's judgment. The appeal court's role in s 5F proceedings is that of a court of error not a court of review. It is usual and appropriate to treat the issue of leave as significant and one which should be heard without necessarily hearing full argument on the appeal itself. The section should be applied on the basis that it reflects longstanding policy that it is undesirable for criminal prosecutions to be interfered with or interrupted by interlocutory or appellate procedures prior to conviction and sentence. There may, however, be some cases where leave would be readily granted if clear error in the decision at first instance is demonstrated. Further, demonstration of error is essential for the grant of leave where the appeal is brought from an exercise of discretion (see also, as to this last issue, the judgments of Gleeson CJ at 261 and Hidden J at 268). 20 However, this Court has also dealt with the issue of leave to appeal where the appellant seeks to raise arguments not raised at first instance. See, for example, Caltex Petroleum Pty Limited v Harmer (1999) 92 IR 264 at 269: As to the second matter adverted to above, we consider that leave would ordinarily, in the absence of changed circumstances, be refused where an appellant raises arguments or presses issues on the appeal which were not squarely raised at first instance; irrespective of whether the relief sought or the outcome contended for by the appellant remains the same or substantially the same. This consideration is directly applicable in the present case. and also Knowles v Anglican Church Property Trust (No 2) (1999) 95 IR 380 at 382. We consider that this approach should also apply to appeals under s 5F of the Criminal Appeal Act when made to this Court pursuant to s 196 of the Industrial Relations Act . 21 As to the second issue, the relevant provisions are, respectively, ss 168, 170 and 196(1) of the Industrial Relations Act , ss 4, 6(1) and 12 of Supreme Court (Summary Jurisdiction) Act 1967 (the " Summary Jurisdiction Act" ) and Rules 218, 219 and 220 of the Industrial Relations Commission Rules 1996. The provisions from the first-named statute are: 168 Criminal procedure (1) Proceedings for any offence in respect of which proceedings are taken before the Commission in Court Session are to be dealt with summarily by the Commission. (2) The Supreme Court (Summary Jurisdiction) Act 1967 applies to any such proceedings in the same way as it applies to proceedings that may be taken before the Supreme Court in its summary jurisdiction. (3) For the purposes of subsection (2), a reference (however expressed) in the Supreme Court (Summary Jurisdiction) Act 1967 : (a) to the Supreme Court (except in section 15)-is taken to be a reference to the Commission in Court Session, and (b) to rules-is taken to be a reference to rules of the Commission, and (c) to the Prothonotary-is taken to be a reference to the Industrial Registrar. (4) The provisions applied by this section prevail over any other provisions of this Part for the purposes of proceedings for an offence. Note. See section 196 with respect to the procedure on appeal to the Full Bench in criminal proceedings. 170 Amendments and irregularities (1) The Commission may, in any proceedings before it, make any amendments to the proceedings that the Commission considers to be necessary in the interests of justice. (2) Any such amendment may be made: (a) at any stage of the proceedings, and (b) on such terms as the Commission thinks fit (including, if it can award costs in the proceedings, terms as to costs). (3) If this Act, the regulations or a rule of the Commission is not complied with in relation to the institution or conduct of proceedings before the Commission, the failure to comply is to be treated as an irregularity and does not nullify the proceedings, any step taken in the proceedings, or any decision in the proceedings. (4) For the purposes of subsection (3), the Commission may wholly or partly set aside the proceedings, a step taken in the proceedings, or a decision in the proceedings. 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. 22 The relevant provisions in the Summary Jurisdiction Act are: Orders for appearance or apprehension of defendants 4(1) Upon an application being made by any person (in this Act referred to as the "prosecutor") in accordance with the rules, a Judge shall make an order: (a) ordering any person alleged in the application to have committed an offence punishable in the Court in its summary jurisdiction to appear at a time and place specified in the order to answer to the offence charged in the order; or (b) ordering the apprehension of any such person for the purpose of the person's being brought before a Judge to answer to the offence charged in the order. (2) An order under subsection (1) may be made ex parte. (3) An order in respect of an offence alleged to have been committed by a person may be made under paragraph (b) of subsection (1) whether or not an order in respect of that offence has been made under paragraph (a) of that subsection. (4) An order under paragraph (b) of subsection (1): (a) shall be addressed to all members of the police force; (b) may be addressed to any other person specified in the order; and (c) may be executed by any member of the police force or by any person to whom it is addressed at any place at which, had the offence specified in the order been committed at that place, that offence would be triable in the Court. Defects and variances in process 6(1) No objection shall be taken or allowed to any application referred to in, or to any order or warrant made or issued under, section 4 or 5 by reason of any alleged defect in it in substance or in form or by reason of any variance between it and the evidence adduced at the proceedings for the offence charged in the application or order. . . . Where both parties appear Judge to hear and determine the case 12. If, upon the day and at the time and place appointed for hearing or to which the hearing or further hearing has been adjourned, both parties appear in person or by their respective counsel or attorneys the Judge shall proceed to hear the case. 23 The relevant Commission Rules are:

Rule 218 Application (1) This Part applies only to proceedings before the Commission in Court Session. (2) In this Part, proceedings for an offence include proceedings to recover a civil penalty. Rule 219 Prosecutions (1) Proceedings before the Commission for an offence (other than contempt) must, unless otherwise provided, be commenced by application for summons, must be accompanied by an affidavit verifying the allegations made in the application and must state: (a) the name and address of the person by whom the proceedings are brought (the prosecutor); and (b) the capacity in which the prosecutor is taking the proceedings; and (c) the name and address of the person against whom the proceedings are brought (the defendant); and (d) the Act and the section under which the application is made; and (e) the nature of the breach or offence which is alleged; and (f) particulars of any payment which it is alleged the defendant has failed to make, and whether an application is to be made pursuant to section 358 for an order in respect of those payments. (2) The application must also be accompanied by a summons, addressed to the defendant, for signature by or on behalf of the Registrar.

Where an application for a summons has been filed and it appears to the Registrar to be properly filed, the Registrar must issue the summons, commanding the defendant to appear before the Commission on the day and at the place specified. 24 The appellant's primary submission relies on the terms of Rules 219 and 220 of the Industrial Relations Commission Rules . The argument, as we understand it, is that for proceedings to be properly and validly commenced the application for summons must be accompanied by an affidavit verifying the allegations made. The application must also be accompanied by a summons addressed to the defendant, for signature by or on behalf of the Registrar. The fact that the affidavit filed did not properly verify the application filed rendered the summons that issued and the proceedings invalid. The particular failures identified as to verification were failures to verify the allegation that the defendant was an employer and to specify and verify the defendant's undertaking. The appellant placed great emphasis on the criminal nature of the proceedings and the importance in that context of the appropriate requirements to commence proceedings being complied with. 25 There are three significant difficulties with the submission made, and particularly so in light of the concessions made by the appellant as to the lack of defect in form or substance in the application for summons filed or in the terms of the summons issued. First, it involves a misunderstanding of the way in which the relevant provisions operate, and particularly as to how those provisions operate in relation to the commencement of proceedings. Second, they fail to take into account relevant authorities on the issue which, in our view, are correct and in respect of which nothing has been put in these proceedings which could lead to doubts as to the correctness of them. Third, the submission overlooks the fact and effect of s 170 of the Industrial Relations Act which has the effect of validating any proceedings which may not have been commenced in accordance with the relevant requirements of the statute or the Rules. We shall deal with each of these points briefly. 26 We preface our discussion with some short background. Section 168 of the statute deals with proceedings taken before the Commission in Court Session for, inter alia , breaches of the Occupational Health and Safety Act . In summary, it provides that the Summary Jurisdiction Act applies to any proceedings in the same way as it applies to any proceedings that may be taken before the Supreme Court in its summary jurisdiction and, for that purpose, a reference in the Summary Jurisdiction Act to the Supreme Court is taken to be a reference to the Commission in Court Session and a reference to rules is taken to be a reference to the Commission's Rules. 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. 34 In any event, we consider that nothing turns upon any subsequent irregularity in this matter because of the fact that both parties subsequently appeared before the Court. We note in that regard the terms of s 12 of the Summary Jurisdiction Act which provide that if both parties appear at the time and place appointed for hearing, or to which the hearing or further hearing has been adjourned, the judge shall proceed to hear the case. We consider that the terms of that provision result in the circumstance where both parties appear before the judge is sufficient to enable the proceedings validly to continue to a conclusion. 35 The last part of the statutory scheme which requires consideration is s 170 of the Industrial Relations Act , the text of which has earlier been set out. The appellant submitted that s 170 has no relevance to the present proceedings because of the terms of s 168(4) which, it will be recalled, states that the provisions applied by s 168 "prevail over any other provisions of this Part for the purposes of proceedings for an offence". The question which thus arises is whether s 168(4) on its proper construction has the effect of rendering the ameliorative terms of s 170 irrelevant to proceedings to which s 168 applies. We consider that s 168(4) does not have that effect. 36 Our conclusion is based on a consideration of the actual terms of the sub-section and also the terms of that sub-section when read in the light of the statute as a whole, particularly the terms of s 196(1) which should be considered as a related or counterpart provision. As to the first aspect, we consider that the crucial word is the word "prevail". That is not a word which has a meaning consistent with the notion of overriding completely. Reference to relevant dictionaries indicates that the word "prevail" means to predominate or to have superior authority over (see, for example, The Macquarie Dictionary, 3rd Edition 1997, page 1694 and The New Shorter Oxford English Dictionary 1993, page 2347; and cf Carter v The Egg and Egg Pulp Marketing Board for the State of Victoria (1942) 66 CLR 557 at 573 per Latham CJ). Further, any doubts as to the construction of s 168(4) are resolved when one considers the terms of s 196(1) of the statute. Section 168 deals with criminal proceedings before the Commission in Court Session at first instance and s 196 deals with such proceedings on appeal from a single judge to a Full Bench. Section 196(1) is in the following terms: 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. 37 In view of the similar subject matters dealt with by s 168 and s 196 it is not likely that the different formulations used in s 168(4) and s 196(1) were unintended by the legislature. The latter provision shows a clear intention on the part of the legislature that s 196 applies in such a way as to, in effect, override the other provisions of the relevant Part of the Industrial Relations Act . The legislature has specifically used a different form of words in s 168(4), and thus plainly indicated that the words in that provision were intended to have a different effect. That is, the other relevant provisions in Part 5 of Chapter 4, including s 170, were intended to relevantly apply except where their application was inconsistent with s 168 or the provisions incorporated thereby from the Summary Jurisdiction Act . We do not consider that any provisions in that Act are inconsistent with s 170 and therefore that section applies to proceedings commenced in the Court Session pursuant to s 168 and the Summary Jurisdiction Act . In arriving at this conclusion we have not overlooked s 6(1) of the Summary Jurisdiction Act, which provides relevantly: No objection shall be taken or allowed to any application referred to in … section 4 … by reason of any alleged defect in it in substance or in form …

We do not consider that provision should be construed as involving any inconsistency with the operation of s 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). 39 In addition, we observe that Peterson J in Transport Workers' Union of Australia, New South Wales Branch v Jack Seatons Transport Pty Limited (1999) 95 IR 134 dealt with a not dissimilar point to some of the issues raised in these proceedings, although the major jurisdictional issue raised was the alleged lack of power to grant any necessary amendment. In rejecting such submissions, his Honour relied, inter alia, upon s 170 of the Act and observed (at 140): It seems to me that it is points such as these which might tend to bring the law into disrepute and ought be demolished by whatever means possible. 40 We do not consider it is necessary in these proceedings to go as far as his Honour did in that case. However, we accept the description that "points such as these ... might tend to bring the law into disrepute" as being equally applicable to these proceedings. 41 Finally, we refer to the additional matter raised by the amendment granted during the hearing of the appeal. The appellant's submissions as to the additional ground of appeal refer to the interrelationship of s 168 of the Industrial Relations Act and the Summary Jurisdiction Act and that s 4(1) of the latter statute confers the power to issue a summons on a judge of the Supreme Court; that s 196 of the Industrial Relations Act provides that a judicial member of the Commission is the equivalent to a judge of the Supreme Court; and that the Commission's Rules apply to proceedings subject to the provisions of the Summary Jurisdiction Act . However, a Rule cannot derogate from a power expressly conferred by its enabling legislation. 42 Accordingly, the appellant submits that a judge of the Commission is obliged to exercise his or her power to issue a summons where an application is properly made pursuant to s 4(1) of the Summary Jurisdiction Act . Thus, it is said, Rule 220 purports to confer a power on the Industrial Registrar to issue a summons in criminal proceedings, and this is ultra vires. In the alternative, the Industrial Registrar was in excess of jurisdiction in purporting to issue the summons in the proceedings. 43 We do not intend to grant leave as to these matters for a number of reasons which can be stated shortly. First, because of the principle laid down in the judgments in Caltex Petroleum Pty Limited v Harmer and Knowles v Anglican Church Property Trust (No 2) . Second, having held that the proceedings before Kavanagh J were properly commenced, or alternatively validated by the effect of s 170 of the Industrial Relations Act , it is open to her Honour to charge the defendant pursuant to s 4(1) of the Summary Jurisdiction Act if her Honour considers that s 12 of the Summary Jurisdiction Act does not sufficiently deal with the situation of the defendant before the Court. Third, the proceedings have not yet reached the stage before her Honour where it has become necessary for her Honour to consider the need for the charging of the defendant pursuant to s 4(1) of the Summary Jurisdiction Act . Accordingly and fourthly, the issue is not appropriate to be considered on appeal or to be subject to the grant of leave to appeal. 44 As to the appellant's application for leave to appeal in relation to the matters originally argued, we have taken the course of considering the substance of the issues argued because these proceedings are the first occasion on which a Full Bench of this Court has had the opportunity to deal with the relevant issues; we are aware such issues have now become a matter of some controversy in various proceedings before single judges of the Court. We therefore consider it appropriate to grant leave to appeal but, for the reasons given, to dismiss the appeal. 45 Accordingly, for the above reasons, at the conclusion of the hearing on 8 August 2000 the Full Bench made the following orders: 1. Leave granted to amend the notice of appeal, to the extent specified, in terms of the further amended application for leave to appeal and appeal. 2. Leave to appeal granted as to the issues raised in the amended application for leave to appeal and appeal. 3. Leave to appeal refused as to the additional matters raised in the further amended application for leave to appeal and appeal. 4. Appeal dismissed for reasons to be published as soon as practicable. 5. Proceedings will now return to Kavanagh J to be dealt with in accordance with the reasons of the Full Bench. 6. The appellant shall pay the respondent's costs of the application for leave to appeal and appeal in a sum as agreed or, in default of agreement, as assessed. 46 We affirm the orders thus made for the reasons given.

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