Rockdale Beef Pty Limited v Industrial Relations Commission of NSW and Anor [2007] NSWCA 128 | Case summary | Zoe

NSWNSWCA

Rockdale Beef Pty Limited v Industrial Relations Commission of NSW and Anor

[2007] NSWCA 128

Court of Appeal (NSW)|2007-03-28|Before: Spigelman CJ, Mason P, Basten JA

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At a glance

Source facts

Court

Court of Appeal (NSW)

Decision date

2007-03-28

Before

Spigelman CJ, Mason P, Basten JA

Source

Original judgment source is linked above.

Judgment (97 paragraphs)

[1]

CITATION: Rockdale Beef Pty Limited v Industrial Relations Commission of NSW and Anor [2007] NSWCA 128 This decision has been amended. Please see the end of the judgment for a list of the amendments.

[2]

JUDGMENT OF: Spigelman CJ at 1; Mason P at 53; Basten JA at 54

[3]

CATCHWORDS: ADMINISTRATIVE LAW - judicial review - prerogative writs and orders - review for jurisdictional error - review by the Court of Appeal of a superior court of record that is a statutory court of limited jurisdiction - APPEAL - practice and procedure - appeal by case stated - s5AE Criminal Appeal Act 1912 - reference of question of law - no power to go outside the case - CRIMINAL LAW - jurisdiction practice and procedure - valid commencement of proceedings - form of the charge - s11 and s16 of the Criminal Procedure Act 1986 - essential legal element and essential factual particular - CRIMINAL LAW - conduct of legal practitioners - duties of the prosecution - power of intervention of trial judge - power of intervention by Court of Appeal - INDUSTRIAL LAW - New South Wales - review of Industrial Court by Court of Appeal - s179(4) Industrial Relations Act 1996 - purported decision of the Full Bench of the Industrial Court on an issue of jurisdiction - INDUSTRIAL LAW - New South Wales - Industrial Relations Commission - jurisdiction, powers, functions and duties - jurisdiction of Full Bench - prosecutor's appeal under s5C Criminal Appeal Act 1912 - concurrent reference of question of law under s5AE Criminal Appeal Act 1912 - INDUSTRIAL LAW - New South Wales - Occupational Health and Safety Act 2000 ss30 and 31 - laying alternative charges.

[5]

Anisminic Limited v Foreign Compensation Commission [1969] 2 AC 147 Attorney-General (NSW) v Quin (1990) 170 CLR 1 Attorney-General (Qld) v Wilkinson (1958) 100 CLR 422 Bass v Permanent Trustee Co Limited (1999) 198 CLR 334 Batterham v QSR Limited (2006) 225 CLR 237 Boral Gas (NSW) Pty Limited v Magill (1993) 32 NSWLR 501 Brisbane City Council v Valuer-General (Qld) (1978) 140 CLR 41 Chugg v Pacific Dunlop Limited (1990) 170 CLR 249 Craig v South Australia (1995) 184 CLR 163 Ex parte Burnett; Re Wicks [1968] 2 NSWR 119 Ex parte Graham; Re Dowling (1968) WN (Pt 1) (NSW) 270 Ex parte Hebburn Limited; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 Ex parte Lovell; Re Buckley (1938) 3 SR(NSW) 153 Ex parte Thomas; Re Otzen (1947) 57 SR(NSW) 261 Fish v Solution 6 Holdings Limited (2006) 225 CLR 180 Glover v MacDougall [1976] 2 NSWLR 359 Herron v McGregor (1986) 6 NSWLR 246 Inspector Ross Wolf v Rockdale Beef Pty Limited [2005] NSWIR Comm 163 Inspector Ross Wolf v Rockdale Beef Pty Limited [2005] NSWIR Comm 169 Inspector Wolf v Rockdale Beef Pty Limited [2006] NSWIR Comm 280 John Fairfax Publications Pty Limited v District Court (NSW) (2004) 61 NSWLR 344 John L Pty Limited v Attorney-General (NSW) (1987) 163 CLR 508 Johnson v Miller (1937) 59 CLR 467 Kirk Group Holdings Pty Limited v WorkCover Authority (NSW) (2006) 66 NSWLR 151 Knaggs v Director of Public Prosecutions [2007] NSWCA 83 Lodhi v The Queen (2006) 199 FLR 303 Mack v Commissioner of Stamp Duties (NSW) (1920) 28 CLR 373 CASES CITED: Martin v Shakespeare [1920] SALR 257 McConnell Dowell Constructors Australia Pty Limited v Environment Protection Authority (No 2) (2002) 54 NSWLR 39 Merchant Service Guild of Australasia v Newcastle and Hunter River Steamship Co Ltd [No 1] (1913) 16 CLR 591 MG v R [2007] NSWCCA 57 New South Wales v The Commonwealth (1926) 38 CLR 74 Ove Arup Pty Limited v Industrial Court of New South Wales (2006) 149 IR 193 Peters v Davison [1999] 2 NZLR 164 Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 Powercoal Pty Limited v Industrial Relations Commission (NSW) (2005) 156 A Crim R 269 R v Gray; Ex parte Marsh (1985) 157 CLR 351 R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 R v Hull University Visitor; Ex parte Page [1993] AC 682 R v Janceski (2005) 64 NSWLR 10 R v Lucas [1973] VR 693 R v Madden (1995) 85 A Crim R 367 R v Miller [1990] 2 Qd R 566 Richardson v The Queen (1974) 131 CLR 116 Sankey v Whitlam (1978) 142 CLR 1 SDAV v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 43 Solution 6 Holdings Limited v Industrial Relations Commission (NSW) (2004) 60 NSWLR 558 Stanton v Abernathy (1990) 19 NSWLR 656 Subramanian v The Queen (2004) 79 ALJR 116 Taylor v Environment Protection Authority (2000) 50 NSWLR 48 The King v Metal Trades Employers' Association; Ex parte Amalgamated Engineering Unions, Australian Section (1951) 82 CLR 208 The Queen v Rigby (1956) 100 CLR 146 Thomas v The King (1937) 59 CLR 279 Williams v Spautz (1992) 174 CLR 509 WorkCover Authority (NSW) (Inspector Singh) v ABB Australia Pty Limited (2006) 151 IR 90

[62]

The s5AE Issue 2 As Basten JA shows, Schmidt J originally stated that she had dismissed the charge under s10 of the Occupational Health and Safety Act 2000 (NSW) (the "OH&S Act"). Subsequently she said that she had not done so and, accordingly, was able to state a case under s5AE of the Criminal Appeal Act 1912, a provision which applies only to a "time before the completion of proceedings". Subsequently, the prosecution also lodged an appeal under s5C of the Criminal Appeal Act 1912 on the basis that her Honour had quashed the proceedings, in the sense that they had been dismissed. 3 As Basten JA notes the Full Bench held that her Honour had in fact dismissed the proceedings. Accordingly, the Full Bench was invested with jurisdiction to hear the appeal lodged under s5C. That appeal was concerned with the charge under s10. The stated case was concerned with both charges, i.e. s8 and s10. 4 If the charge has been dismissed, for purposes of s5C, then the proceedings had been 'completed' for purposes of s5AE and, accordingly, no question of law could be submitted by the trial judge to the Full Bench for determination under that section with respect to the s10 charge. 5 The word "reference" in s196 of the Industrial Relations Act 1996 would encompass the word "submit" in s5AE of the Criminal Appeal Act. Accordingly, on the above analysis, a purported reference of an issue for determination would not constitute a "reference" for purposes of s196 and that section would not apply to give the Full Bench jurisdiction under s5AE. Furthermore, s196(1) of the Industrial Relations Act would have the effect that the general reference provision found in s193 would not apply. 6 The Claimant made no such case in this Court. No relief based on any such analysis was sought. Nor were any submissions made in this regard. In any event an issue remained with respect to the s8 charge. 7 The answer which the Full Bench made to Question 4 was attacked on two bases. First, whether or not a proper question of law had been formulated. Secondly, that the Full Bench erred in determining the matter on the basis of the evidence in the transcript. 8 This was a case in which the purported stated case did not identify findings of fact. As Basten JA indicates, the Full Bench proceeded on her Honour's use of the words "on the evidence before me". Basten JA refers to the authorities which indicate that it is not permissible for a Court to which a question of law has been referred to investigate the evidence for itself. There does appear to have been an error of law in the exercise of the jurisdiction conferred under s5AE as applied by s196 of the Industrial Relations Act. (See Thomas v The King (1937) 59 CLR 279 at 286; R v Miller [1990] 2 Qd R 566; 46 A Crim R 382 at 383; R v Madden (1995) 85 A Crim R 367 at 370-371; Glover v MacDougall [1976] 2 NSWLR 359 at 361.) 9 That the distinction between jurisdictional error of law and non-jurisdictional error of law remains alive and well in Australian common law is affirmed in Craig v South Australia (1995) 184 CLR 163. The submissions to this Court on the part of the Claimant did not identify why this particular error should be regarded as jurisdictional. None of the relevant authorities were referred to. In these circumstances I do not think it is necessary or appropriate to undertake any such analysis for the first time. 10 My preliminary view is that the error is not jurisdictional. However, that need not finally be determined. I would refuse the relief claimed in the exercise of the discretion of the Court on each of the two matters raised, i.e. whether Question 4 was a question of law and whether the Full Bench erred in taking into account the evidence. 11 With respect to the first alleged error, the Full Bench reformulated, by way of interpretation, Question 4 as posed. It held that its formulation was a question of law. Even if this Court took the view that this was inappropriate and set aside the answer to Question 4, this Court would, as a matter of comity, remit the matter to the Full Bench which could then remit the matter to a single judge to reformulate the question. 12 With respect to the second alleged error, the Full Bench took a different view of the evidence to that of Schmidt J. It concluded (at [86]) that it "was not open" to her Honour to find that the prosecutor was intending to breach any duty by failing to tender material. At [81]-[83] the Full Bench indicated that the prosecutor did not refuse to do that at all. 13 This difference involved a difference in factual findings at a level - "not open" - which does involve a question of law. It may not have been open to the Full Bench to proceed in that way, either because of the formulation of the question or because of the absence of facts, but even if the error was jurisdictional, this Court would remit the matter so that the Full Bench could in turn remit the stated case to be reformulated. If that were done the result would be the same. This Court should not intervene.

[64]

The Pleaded Charge 18 The first attack by the Claimant on the charge as pleaded was that, on the interpretation of the statute, it was not permissible to plead a charge under s8 and under s10 of the OH&S Act in the alternative. For the reasons given by Basten JA this submission should be rejected. 19 Secondly, the Claimant asserts that the s10 charge fails to plead an essential legal element of the offence. The relevant part of the charge was stated in the following form: that the Claimant " … failed to ensure that plant used by people at work over which it had control was safe and without risks to health when properly used contrary to s10(2) of the Occupational Health & Safety Act 2000." 20 Section 10(2) provides, relevantly: "10(2) A person who has control of any plant … used by people at work must ensure that the plant … is safe and without risks to health when properly used." 21 The issue on this aspect of the proceedings in this Court turns on s10(3)(d) which provides: "10(3) The duties of a person under this section: … (d) apply only if the premises, plant or substances are controlled in the course of a trade, business or other undertaking (whether for profit or not) of the person." 22 In its pleading and submissions the Claimant contends that the reference to the "plant" being "controlled in the course of a trade, business or other undertaking" is an essential legal element of the charge. The Full Bench rejected that submission and concluded that, whilst the relevant aspect may be an "essential factual particular", it was not an "essential legal element". 23 A number of the authorities are referred to by both the Full Bench and by Basten JA. I refer to two additional authorities below. There are two issues that arise. First, is there an error of law? Secondly, if so, is it a jurisdictional error of law? 24 This is not a case involving the need to plead an essential factual ingredient of the offence. The allegation is the failure to plead an essential legal element. That is a matter that turns on the proper interpretation of the section creating the offence. Section 10(3) identifies circumstances in which the duties under, relevantly, s10(2), "do not apply" in pars (a) and (b), "extend to" in par (c) and "apply only if" in par (d). This case is concerned with the last paragraph. 25 In my opinion, the use of the formulation "apply only if" is such as to constitute the matter therein contained as an essential legal element of the offence. To proffer a charge in terms limited to the use of the words "control of any plant", within s10(2), is not a full statement of the offence created by s10(2), which requires by force of s10(3)(d) the control of plant to be exercised "in the course of a trade, business or any other undertaking of the person". 26 This is not a case in which the Second Opponent can rely on the traditional provision that charging an offence in the words of an act creating the offence is sufficient, now found in s11 of the Criminal Procedure Act 1986. The issue is what are the "words of [the] Act" which "create the offence". In my opinion, those words include the relevant part of s10(3)(d). 27 Nor does s16 of the Criminal Procedure Act 1986 apply to save a charge that omits an essential legal element of an offence. (Ex parte Lovell; Re Buckley (1938) 3 SR(NSW) 153 at 173; Ex parte Burnett; Re Wicks [1968] 2 NSWR 119 at 120; Taylor v Environment Protection Authority (2000) 50 NSWLR 48 at [26].) 28 In my opinion, the position is the same as that which this Court recently considered in Lodhi v The Queen (2006) 199 FLR 303; [2006] NSWCCA 121. That case involved alleged offences under each of ss101.4(1), 101.5(1) and 101.6(1) of the Commonwealth Criminal Code, being the Schedule to the Criminal Code Act 1995 (Cth). Each of those sections referred to a person committing a "terrorist act". The term was defined in s100.1 of the Code. The Court of Criminal Appeal held that the failure to plead aspects of that definition was defective, on the basis that the matters constituted an essential element of the offence. (See Lodhi supra at [83]-[94].) 29 To similar effect is the judgment of the Supreme Court of South Australia in Martin v Shakespeare [1920] SALR 257 where a charge, expressed in terms of a driver failing to stop when a member of the police force 'held up his hand', failed to allege an essential element of the offence. The relevant statutory provision referred to "a member of the police force holding up his hand or otherwise giving an order or direction". The Court concluded at 259-260 that the act of the policeman holding up his hand had to be in the course of making "an order or direction to stop" and, therefore, the charge did not contain a "necessary ingredient of the offence". 30 Accordingly, there was, in my opinion, an error of law. Was the error jurisdictional? 31 The Industrial Relations Act 1996 provides in s146(1)(e) that the Commission has the functions "conferred on it by … any Act". The relevant conferral of jurisdiction is found in s105(1)(b) of the OH&S Act 2000 which provides in s105(1)(b) that proceedings for offences against the Act are to be dealt with summarily "before the Industrial Relations Commission in Court Session", now called the Industrial Court of New South Wales. This conferral of jurisdiction on the Commission in Court Session is confirmed by s153(1)(a) of the Industrial Relations Act 1996. 32 The directly relevant words are that the Commission's jurisdiction is to hear proceedings "for an offence against" the OH&S Act. 33 Basten JA, with whom Mason P agrees, addresses the statutory requirements for pleading a charge, namely s246 of the Criminal Procedure Act and r 217B of the Industrial Relations Commission Rules 1996. With respect, these are not, in my opinion, the relevant provisions for determining the jurisdictional issue before the Court. That issue must be determined by reference to the provisions conferring jurisdiction.

[65]

34 If the charge omits an essential legal element of the offence then the proceedings are not proceedings for "an offence against" the OH&S Act and, accordingly, the Industrial Court has no jurisdiction to hear and determine the charge. (See e.g. John L Pty Limited v Attorney-General (NSW) (1987) 163 CLR 508 at 520; McConnell Dowell Constructors Australia Pty Limited v Environment Protection Authority (No 2) (2002) 54 NSWLR 39 at [14]; R v Janceski (2005) 64 NSWLR 10 at [53].) 35 This is, in my opinion, a jurisdictional error. As Jordan CJ said in Ex parte Lovell; Re Buckley supra at 173: "A magistrate has no jurisdiction to convict a person except for a statutory offence and it is contrary to natural justice to convict a person of a statutory offence with which he has not been charged." 36 If the charge does not allege an offence then this Court, subject to the privative provision in s179 of the Industrial Relations Act, has jurisdiction to give appropriate relief, most relevantly by means of a declaration that the charge alleges an offence that is bad in law. (See e.g. Sankey v Whitlam (1978) 142 CLR 1 at 111.) 37 The Claimant seeks such an order in these proceedings, in the form of a declaration that the charge "was defective in that … it failed to plead the essential legal elements of such a charge". 38 As I have set out in my judgment in Kirk Group Holdings Pty Limited v WorkCover Authority (NSW) (2006) 66 NSWLR 151; [2006] NSWCA 172 at [28]-[36], the new form of privative clause found in s179 of the Industrial Relations Act was made for the purpose of restoring this Court's supervisory jurisdiction. However, the jurisdiction could only be exercised after the Full Bench of the Industrial Court of NSW had determined whether or not that Court had jurisdiction. 39 The judgment of the Full Bench in this case implicitly constitutes a determination that the Industrial Court had jurisdiction to hear and determine the charge, said to be under s10 of the OH&S Act. The Full Bench held, relevantly, that the provision of s10(3)(d) did not constitute an essential legal element of an offence under s10(2). 40 Accordingly, s179 does not extend to the decision of the Full Bench presently under consideration. 41 In my opinion, the Claimant has established a case for the making of the declaration that it seeks. 42 Whether any amendment to the charge can or should be made is a matter for the Industrial Court.

[66]

Prosecutorial Conduct 43 The fourth issue that arises in these proceedings is a challenge to the conduct of the prosecution. The Claimant alleged misconduct in the investigation of the alleged offences and in the manner which the prosecution proceeded before Schmidt J. 44 In this regard the Claimant invokes the inherent jurisdiction of this Court reflected in s23 of the Supreme Court Act 1970, which states that the Court has "all jurisdiction which may be necessary for the administration of justice in New South Wales". 45 The submissions on the part of the Claimant adopt an ambiguous use of language. The person who laid the charge was appropriately referred to as the "prosecutor". However, it was not material with respect to some of the allegations made in this regard to rely, as counsel for the Claimant did rely, on case law referring to the conduct of the prosecution in the course of a criminal trial. 46 The primary thrust of the submissions was not a complaint about counsel appearing in the trial at all. That thrust was concerned with what was alleged to have been a defective process of investigation before the laying of the charge. No authority was referred to that has suggested that the Court's inherent jurisdiction to protect the administration of criminal justice in this State could extend to the conduct of the investigations by executive agencies. 47 This Court's relevant inherent jurisdiction would extend to intervening in criminal proceedings in other courts which may constitute an abuse of process. (See e.g. John Fairfax Publications Pty Limited v District Court (NSW) (2004) 61 NSWLR 344 at [27] and authorities referred to therein.) 48 There is, however, no authority that a defective investigation leading to the laying of a charge constitutes such an abuse of process. These submissions were misconceived. 49 The only other basis suggested under this ground of appeal concerns the alleged refusal, albeit at a preliminary stage of the proceedings before the closure of the Crown case, on the part of the prosecutor to tender evidence which the defence would wish to have before the Court. 50 As noted above, the Full Bench concluded, on the evidence, that there was no such refusal. That conclusion was clearly open on the s5C appeal. Where there are differences of this kind with respect to findings of fact, this Court should not intervene. 51 In any event, the issue that arises in this respect is an issue of a fair trial. This is a matter to be determined by the trial judge in the course of the proceedings. What fairness requires does not involve a fixed body of rules. It is by no means clear to me that the requirements of this particular trial are such that requiring the Claimant to go into evidence would make the trial unfair. In any event, the trial judge may take a different view. Nothing approaching an abuse of process arises. 52 There is no basis for the exercise of this jurisdiction. 53 MASON P: I agree with Basten JA. 54 BASTEN JA: These proceedings, brought by Rockdale Beef Pty Ltd ("Rockdale Beef") as claimant, seek orders in relation to a prosecution brought in the Industrial Relations Commission by the Second Opponent, Inspector Ross Wolf ("the prosecutor") for contraventions of the Occupational Health and Safety Act 2000 (NSW) ("the OH&S Act"). Those prosecutions arose out of circumstances which existed at an abattoir near Yanko, in southern New South Wales, on 27 October 2001. 55 These reasons have been organized under the following headings: Par No. (1) Background [56] (2) Jurisdiction of this Court [68] (3) Charges laid [72] (4) Nature of jurisdictional error [80] (5) Availability of appeal [87] (6) Use of alternative charges [96] (7) Essential elements of charge: s 10(2) OH&S Act [102] (8) Stated case: abuse of process - s 8(2) charges [134] (9) Stated case: proper procedure [148] (10) Supervision of prosecutor [153] (11) Conclusions [157]

[67]

(1) Background 56 On 23 October 2003, shortly prior to the expiration of the limitation period for instituting proceedings for an offence under the OH&S Act (s 107) the prosecutor sought in the Industrial Court the laying of two charges against Rockdale Beef. The procedural steps which followed the laying of the charges gave rise to two relevant judgments of Schmidt J in the Industrial Relations Commission, the first being a judgment dated 20 May 2005, which resulted in orders that an offence charged under s 10 of the OH&S Act be dismissed and that a separate offence charged under s 8 proceed to hearing: Inspector Ross Wolf v Rockdale Beef Pty Ltd [2005] NSWIRComm 163, at [67]. 57 On 27 May 2005 her Honour handed down a further judgment between the same parties: Inspector Ross Wolf v Rockdale Beef Pty Ltd [2005] NSWIRComm 169, in the course of which her Honour concluded at [162], that it would be an abuse of process for the trial to proceed, but acceded to a request that the prosecution have an opportunity to invite her to refer certain questions of law to the Full Bench before making final orders disposing of the defendant's motion, pursuant to s 5AE of the Criminal Appeal Act 1912 (NSW): at [163]. 58 On 19 August 2005 the prosecutor filed a reference from Schmidt J to a Full Bench setting out six questions of law for its determination. The questions included two questions relating to the validity of the separate charges under ss 8 and 10 of the OH&S Act, which had been the subject of her Honour's judgment of 20 May 2005. Because there was some doubt as to the validity of the procedure for referring a question of law in circumstances where a decision had already been made, on 30 August 2005 the prosecutor filed an appeal pursuant to s 5C of the Criminal Appeal Act in relation to so much of the judgment as quashed the charge laid under s 10(2) of the OH&S Act. 59 These two proceedings (the reference and the appeal) were heard together by a Full Bench of the Industrial Court constituted by Wright J (President), Walton J (Vice President) and Boland J. Their Honours delivered a judgment on 31 August 2006: Inspector Wolf v Rockdale Beef Pty Ltd [2006] NSWIRComm 280. In relation to the first and second questions identified in the reference, the Full Bench held that it did not have jurisdiction to give answers, as her Honour had made orders disposing of the relevant issues. The Court noted, however, that the appeal under s 5C related to the order dismissing the charge under s 10 of the OH&S Act: at [50]. 60 Questions 3 and 4 both related to the argument that there was an abuse of process in the prosecution of the charges. The Full Bench determined that it was not necessary to answer question 3, but provided an answer to question 4 in effect reversing the reasoning of Schmidt J in her judgment of 27 May 2005. That conclusion was sought to be reviewed in the present proceedings in this Court. 61 Questions 5 and 6 in the reference concerned the availability and operation of s 62 of the OH&S Act, which allowed for the issue of a notice requiring the production of documents. Their Honours noted that the documents sought had been produced and that the issue was, as a result, "academic". Neither question was answered: at [111]. No issue is sought to be agitated in this Court in relation to the operation of s 62 of the OH&S Act. 62 The Full Bench then turned to the appeal under s 5C of the Criminal Appeal Act, which it upheld, finding that Schmidt J had erred in dismissing the charge under s 10(2) of the OH&S Act: at [173]. The correctness of that conclusion is sought to be agitated in this Court. 63 Proceedings were commenced in this Court by a summons, apparently issued in 2005, before the hearing of the proceedings by the Full Bench. It originally sought orders protective of the decisions of Schmidt J and orders prohibiting the hearing of the reference or the appeal by the Full Bench. Those forms of relief have now been abandoned and orders are sought in relation to the judgment of the Full Bench. It may be doubted whether that result could properly be achieved by making amendments to the existing summons, but no issue is taken in that regard. Although the grounds identified in the further amended summons are somewhat complex, and not easily related to the relief sought, the issues of substance resolve into two areas, namely:

[74]

(2) Jurisdiction of this Court 68 The proceedings commenced in the Industrial Relations Commission in Court Session were for offences against provisions of the OH&S Act. They were to be dealt with summarily in that Court: OH&S Act, s105(1)(b) and Industrial Relations Act, s 152(1)(a) and (c). It was not in dispute that the proceedings before Schmidt J were "criminal proceedings taken before a judicial member of the Commission". Accordingly, s 196 of the Industrial Relations Act 1996 (NSW) applied to appeals and references to the Full Bench of the Commission in Court Session: s 196(1). (The "Commission in Court Session" is, since 9 December 2005, to be known as the Industrial Court of New South Wales: Industrial Relations Act, s 151A.) Section 196 further provides that the Criminal Appeal Act "applies to any such appeal or reference in the same way as it applies to an appeal or reference to the Court of Criminal Appeal in respect of criminal proceedings taken before a Judge of the Supreme Court in its summary jurisdiction": s 196(2). Subsection (3) then makes provision for certain references in the Criminal Appeal Act to be adapted for the purposes of sub-s (2) so that for example, a reference to the Court of Criminal Appeal is taken to be a reference to the Full Bench of the Industrial Court. 69 Section 196, in its terms, appears to assume the existence of an appeal or reference, rather than to confer a right to appeal or seek a reference; however, it should be understood as having the dual purpose of conferring a right of appeal or power to seek a reference and, secondly, to regulate the circumstances in which such rights and powers are to be exercised. 70 The precise limitations and requirements with respect to appeals and references as set out in the Criminal Appeal Act, are of critical importance in the present case. That is because the jurisdiction of this Court is constrained by the terms of s 179 of the Industrial Relations Act, which provides for "finality" of decisions of the Commission, including as constituted as the Industrial Court. Because the relief sought from this Court relates only to the jurisdiction of the Full Bench, which was exercised after the commencement of s 179 in its present form, on 9 December 2005, it is not necessary to consider the operation of that provision in relation to an earlier decision of the Commission: see Industrial Relations Act, Schedule 4, cl 31B. 71 Subject to one qualification, to which it will be necessary to return, the claimant accepted that the jurisdiction of this Court was constrained by s 179 so as to permit review of a decision or purported decision of the Full Bench of the Industrial Court "on an issue of the jurisdiction" of that Court. The precise manner by which this is achieved need not, therefore, be considered. The qualification as to the claimant's acceptance of the need to establish jurisdictional error on the part of the Full Bench related to its claim to have this Court exercise a general supervisory jurisdiction in relation to the prosecutor which, it was contended, was not a challenge to any decision or purported decision of the Commission and thus did not engage s 179. It will be necessary to consider the substance of that argument further in due course.

[75]

(3) Charges laid 72 In order to consider the appeal by the prosecutor, pursuant to s 5C of the Criminal Appeal Act, it is necessary to identify the decision under appeal and the order made by the trial judge. The charge laid by the prosecutor, which involved two offences and read as follows: "I, Inspector Ross Wolf … charge that Rockdale Beef … ("the defendant") … 1. being an employer, on 27 October 2001, at Regulator Road Yanko, in the State of New South Wales, failed to ensure that people other than its employees, in particular Christopher Poole, 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 8(2) of the Occupational Health and Safety Act 2000. Particulars (a) The defendant failed to provide or maintain systems of work that were safe and without risks to health in relation to the operation of a Danaflex Bagging Machine, Cryovac Machine and associated drag chain conveyor; (b) The defendant failed to provide to Christopher Poole such information, instruction, training and supervision as was necessary to ensure his health and safety at work; (c) The defendant failed to ensure that plant, to wit a drag chain conveyor, provided for the use of Christopher Poole at work, was safe and without risk to health when properly used, in that it was not adequately guarded. 2. AND IN THE ALTERNATIVE , that Rockdale Beef … ("the defendant") … on 27 October 2001 at Regulator Road Yanko, in the State of New South Wales, failed to ensure that plant used by people at work over which it had control was safe and without risks to health when properly used contrary to section 10(2) of the Occupational Health and Safety Act 2000 (NSW). Particulars (a) The defendant failed to ensure that a drag chain conveyor used by Christopher Poole at work was adequately guarded. As a result of the defendant's failures Christopher Poole was placed at risk of injury while at work." 73 Section 8 of the OH&S Act imposes obligations on employers to ensure health or safety in relation, separately, to employees and to other persons while they are at the employer's place of work. The charge under s 8(2) was formulated on the premise that Rockdale Beef was an employer conducting an undertaking at the place identified, but that the persons exposed to risk were not its employees and, in particular, that Christopher Poole was not an employee. By contrast, s 10 does not operate with respect to employers (as such) but with respect to persons who have either control of premises, or control of plant or substances, used by people at work. Thus, the second charge under s 10(2) was based on the premise that Rockdale Beef was a person who had control of plant used by people at work. 74 Although the defendant accepted that, under the general law, it might be appropriate in some circumstances to combine two separate offences in one charge, it contended that the OH&S Act made specific provision for the circumstances in which that was appropriate, in s 31, which did not include charging in the alternative the two offences under ss 8(2) and 10(2). (Section 31 is set out at [99] below.) 75 The claimant also sought support from s 30 (also set out at [99] below), which permitted a person charged with an offence against a provision of either s 8 or s 9 to be convicted of a contravention of another provision of ss 8 or 9 if the Court were satisfied of a such a contravention. Again, it was contended, by necessary inference this precluded the possibility of alternative convictions under either s 8 or s 10. Accordingly, the combination of the two offences in the one charge offended the scheme of the statute. 76 Schmidt J accepted this contention but, rather than striking out the charge as laid, permitted the prosecution to proceed with the charge under s 8, her Honour having already concluded, separately, that the charge under s 10(2) was fatally flawed. 77 The basis of the latter conclusion requires reference to the terms of s 10, which states as follows: " 10. Duties of controllers of work premises, plant or substances (1) A person who has control of premises used by people as a place of work must ensure that the premises are safe and without risks to health. (2) A person who has control of any plant or substance used by people at work must ensure that the plant or substance is safe and without risks to health when properly used. (3) The duties of a person under this section: (a) do not apply to premises, plant or substances used only by employees of the person, and (b) do not apply to premises occupied only as a private dwelling or to plant or substances used any such premises, and (c) extend to the means of access to or exit from a place of work, and (d) apply only if the premises, plant or substances are controlled in the course of a trade, business or other undertaking (whether for profit or not) of the person."

[77]

(4) Nature of jurisdictional error 80 Concern is raised from time to time as to the continuing place of the somewhat imprecise concept of "jurisdictional error" in Australian law. On that approach, the decision of the High Court in Craig v South Australia (1995) 184 CLR 163 is viewed as a lost opportunity to follow the House of Lords, which was commonly thought to have abandoned the distinction between jurisdictional and other errors in Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147; c.f. R v Hull University Visitor; Ex parte Page [1993] AC 682, followed in New Zealand in Peters v Davison [1999] 2 NZLR 164. However, the central purpose of the supervisory jurisdiction of a superior court is to police the boundaries of powers of inferior courts, tribunals and other bodies. Similar imprecise concepts limit judicial review of administrative action, requiring the court to eschew review of a decision on its merits and limit its role to ensuring that the law prescribing the limits and governing the exercise of power have not been exceeded: Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 37 (Brennan J); see also Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 at [13] (Gleeson CJ noting the use of other forms of imprecise language in "the taxonomy of error in this field of discourse"). 81 Furthermore, as the Full Court of the Federal Court (Hill, Branson and Stone JJ) noted in SDAV v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 199 ALR 43 at [27]: "The statement that a particular error is a 'jurisdictional error' is a statement of conclusion. The conclusion is that, be the error one of omission or commission, some essential or indispensable requirement for jurisdiction has not been met. An imperative duty has not been discharged or some inviolable limitation has been breached and therefore the action or decision is null and void: Plaintiff S157 [ /2002 v The Commonwealth (2003) 211 CLR 476] at [76] per Gaudron, McHugh, Gummow, Kirby and Hayne JJ. The error may be easy to detect (manifest error) or more difficult but, either way, an action or decision is either one which falls within the decision maker's lawful authority or it is not. If it falls within the decision maker's lawful authority then the error is made 'within jurisdiction'. If it does not fall within the decision maker's lawful authority then the error is a 'jurisdictional error' and as such it cannot be a valid action or decision." 82 As their Honours continued, at [28] in relation to the exercise of statutory jurisdiction, "whether the decision is or is not authorised, can properly be reached only by construction of the whole of the relevant statute". A decision which is not authorised, is sometimes said to be no decision at all, or possibly a "purported" decision. It was held to be significant in Plaintiff S157 that the privative clause in s 474(2) of the Migration Act 1958 (Cth) dealt with decisions made "under this Act" and did not refer to decisions "purportedly made under the Act": at [75] and [76] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ). As Spigelman CJ noted in Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (2006) 66 NSWLR 151, at [34] it is unusual to describe a decision of a superior court of record as a "purported decision": such a decision would usually be valid and effective until set aside: see The King v Metal Trades Employers' Association; Ex parte Amalgamated Engineering Unions, Australian Section (1951) 82 CLR 208 at 240 (Latham CJ). In the present statutory context, the use of that phrase may be understood as indicating an intention to permit review only of decisions on the basis that they are made without power or authority and are thus beyond power, or beyond jurisdiction: see Batterham v QSR Ltd (2006) 225 CLR 237 at [26] and [28] (Gleeson CJ, Gummow, Hayne, Callinan and Crennan JJ) and [57]-[60] (Kirby J) and [109] (Heydon J). 83 Under the general law the writ of certiorari went only to an inferior court, as was confirmed in Craig v South Australia (at p174), referring to The King v Metal Trades Employers Association (see above) and R v Gray; Ex parte Marsh (1985) 157 CLR 351. However, the fact that the Industrial Court is, by statute, a superior court of record (Industrial Relations Act, s 152(1)) will not preclude the issue of relief in the nature of prerogative writs: see Attorney-General (Qld) v Wilkinson (1958) 100 CLR 422 at 425 (Dixon CJ) and 430-431 (Fullagar J). The status of a statutory court of limited jurisdiction will not render it immune from this Court's supervisory jurisdiction. This Court has frequently asserted jurisdiction to grant relief in relation to decisions or purported decisions of the Industrial Commission (and the Industrial Court) in circumstances where it is not precluded by the privative clause in the Industrial Relations Act. That jurisdiction was accepted in Fish v Solution 6 Holdings Ltd (2006) 225 CLR 180 at [44]. Nor was it suggested that the status of the Industrial Court should affect the grounds on which relief might be available. Accordingly, if a relevant ground is established, the Court has power to set aside the decision of the Full Bench of the Industrial Court. The terms of s 179 confirm that, absent the operation of its privative effect, this Court has jurisdiction to intervene in appropriate circumstances: see also s 48 of the Supreme Court Act 1970 (NSW) and see Solution 6 Holdings Ltd v Industrial Relations Commission (NSW) (2004) 60 NSWLR 558 at [123] and [128] (Spigelman CJ). 84 Section 179 of the Industrial Relations Act does not in terms give this Court power to intervene in the case of jurisdictional error; rather, it is structured differently. Subsection 179(1) assumes that a decision of the Commission might be reviewed, quashed or called into question, were it not for the statutory prohibition. Similarly, sub-s (2) is based on an assumption that an injunction or an order in the nature of prohibition might lie, were it not for the terms of that provision. The same assumption underlies sub-s (5). The key provision, sub-s (4), seeks to extend the constraint on proceedings even to those "in respect of a purported decision of the Commission on an issue of the jurisdiction of the Commission". It then excludes from that particular constraint purported decisions on an issue of jurisdiction made (relevantly for present purposes) by the Full Bench. Implicit in this structure is the assumption that, were it not for sub-s (4), the other constraints would not be construed as extending to a decision made without legal authority (or jurisdiction). Thus the exception is sufficient to preserve to this Court in its supervisory jurisdiction, a challenge of a kind which would otherwise have been available for jurisdictional error. Secondly, it should be assumed, in the absence of argument to the contrary, that it is not necessary to identify an express decision of the Full Bench on an issue of its jurisdiction: it would be sufficient that it was demonstrated to this Court that there was a want of jurisdiction in relation to a decision purportedly made by the Full Bench. 85 Each of the errors identified by the claimant is identified as an error of law. However, it is clear that that is not, of itself, sufficient. The error must amount to a decision beyond jurisdiction or, perhaps, a constructive failure to exercise the jurisdiction conferred on the Industrial Court. The flavour of the distinction can be understood by reference to the explanation given by Jordan CJ in Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR(NSW) 416 at 420: "I quite agree that the mere fact that a tribunal has made a mistake of law, even as to the proper construction of a statute, does not necessarily constitute a constructive failure to exercise jurisdiction … . But there are mistakes and mistakes; and if a mistake of law as to the proper construction of a statute investing a tribunal with jurisdiction leads it to misunderstand the nature of the jurisdiction which it is to exercise, and to apply 'a wrong and inadmissible test': … or to 'misconceive its duty', or 'not to apply itself to the question which the law prescribes': The King v War Pensions Entitlement Appeal Tribunal [Ex parte Bott] (1933) 50 CLR 228 at 242-3]; or 'to misunderstand the nature of the opinion which it is to form': The King v Connell [(1944) 69 CLR 407 at 432], in giving a decision in exercise of its jurisdiction or authority, a decision so given will be regarded as given in a purported and not a real exercise of jurisdiction, leaving the jurisdiction in law constructively unexercised, and the tribunal liable to the issue of a prerogative writ of mandamus to hear and determine the matter according to law …." 86 By way further example, in Powercoal Pty Ltd v Industrial Relations Commission (NSW) [2005] NSWCA 345, (2005) 156 A Crim R 269, a [57] (Spigelman CJ, Mason P and Handley JA agreeing), the failure to apply the criminal standard of proof in criminal proceedings was held to be a breach of "an inviolable restriction". See also Kirk Group Holdings, at [42]-[44] (Spigelman CJ, Beazley JA agreeing).

[78]

(5) Availability of appeal 87 The challenge brought by the prosecutor in relation to the conclusion of Schmidt J concerning the nature of the charges relied upon s 5C of the Criminal Appeal Act. That provision, so far as relevant, reads: " 5C Appeal against quashing of an indictment Where the Supreme Court … has quashed any information or indictment or any count thereof or the Supreme Court in its summary jurisdiction, in any proceedings to which the Crown was a party, has quashed any application made under section 246(1) of the Criminal Procedure Act 1986 or any charge specified in such an application, … the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against the order made, and such court may thereupon determine the appeal and if the appeal is sustained may make such order for the prosecution of the trial as may be necessary." 88 As noted above, certain terms are adapted by s 196(3) of the Industrial Relations Act, for the purposes of an appeal to the Full Bench of the Industrial Court. Thus, the Supreme Court is taken to be a reference to the Industrial Court; the Court of Criminal Appeal is to be a reference to a Full Bench, and the Director of Public Prosecutions is taken to include a reference to the prosecutor in the proceedings before the Industrial Court. 89 In its written submissions, the claimant asserted that the decision of the trial judge to dismiss so much of the charge as relied on s 10 of the OH&S Act did not equate to quashing an indictment, within the meaning of s 5C. That contention was not pressed in those terms and could not have been. The nature of the proceedings in the present case was not materially different from those considered by this Court in Ove Arup Pty Ltd v Industrial Court of New South Wales [2006] NSWCA 28; (2006) 149 IR 193, in which the Court upheld the jurisdiction of the Full Bench under s 5C of the Criminal Appeal Act at [30]-[72]. 90 That point aside, the claimant sought to raise other matters going to the availability of an appeal under s 5C. These are not easy to articulate in a coherent fashion but they seem to involve the following elements:

[81]

(3) if the prosecutor sought to appeal under s 5C, he was obliged to proceed expeditiously and the delay of 3.5 months in bringing the appeal was inappropriate. 91 It may be seen that each of these complaints goes to the conduct of the prosecutor and none relies upon any statutory inhibition with respect to the right of appeal. The first and third points reflect an ambivalence expressed by Schmidt J as to whether she had in fact made an order or not. On 11 May 2005 her Honour had stated, in relation to the charge under s 10(2) of the OH&S Act, that it "must be dismissed for a variety of reasons and I order accordingly". On 20 May 2005 her Honour stated in her judgment that she had "ordered that the offence charged under s 10 be dismissed": at [67]. However, on 3 June, and again on 5 and 12 August, she stated that she had not formally dismissed the charge: [2005] NSWIRComm 184 at [18]. The notice of appeal was filed on 30 August 2005. 92 There are differing, and limited, ways in which decisions and orders made in the course of criminal proceedings can be challenged. As already noted, s 5C of the Criminal Appeal Act provides for an appeal against the quashing of a charge, which will include the dismissal of a charge. However, according to the claimant, there is no power to challenge an order staying proceedings because s 5F of the Criminal Appeal Act does not apply to proceedings in the Industrial Commission. While there is authority for that proposition in the Full Bench of the Industrial Court, this Court has not yet been invited to rule upon that issue and is not invited to do so in the present case. That leaves the possibility that a question of law can be referred to the Full Bench for its consideration, prior to ordering a stay, but not thereafter. The need to seek a reference, and state questions, before an order is made, can give rise to what might otherwise seem an inappropriate foreshadowing of a form of appeal before a judgment has been delivered or, in a jurisdiction where no formality is required to make an order, the more unseemly interruption of a judgment to prevent an order being pronounced. In the present case, although the prosecutor sought to challenge her Honour's conclusions with respect to the charge under s 10(2) of the OH&S Act first by way of a reference of questions, he apparently became convinced (ironically, after her Honour had changed her own position in this regard) that it might be necessary to appeal because it appeared that the reference had been obtained too late. 93 If it were necessary to consider whether any prejudice had been caused to the claimant by the delay and the adoption of alternative means of review, such prejudice is difficult to identify. The claimant concurred in the propriety of a reference (though it did not necessarily approve of the form of the case referred) the reference in fact being made on 19 August 2005. The appeal, filed 11 days later, related to the matter raised by questions 1 and 2 of the reference. It cannot be said that the appeal was incompetent for that reason. 94 The second complaint concerned the asserted "election" to proceed with the other charge. How that affected the right to appeal was not explained. However, it seems clear that any ambiguity in the position adopted by the prosecutor arose, in substance, from uncertainty as to the correct procedure to adopt in relation to the interlocutory complaints raised by Rockdale Beef and the company's success in those respects before the trial judge. 95 In any event, much of the procedural history was agitated before the Full Bench, which saw no difficulty in the prosecutor adopting alternative processes for review, in circumstances where the doubt as to whether the trial judge had made orders or not would in fact need to be determined by the Full Bench, and could not depend ultimately upon the views of the trial judge herself. The Full Bench accepted that a more expeditious course should arguably have been taken in filing the appeal under s 5C, but did not consider, in the exercise of its discretion, that it should not hear the appeal: at [127]. No error has been demonstrated, of any kind, in this respect. It is not suggested that the Full Bench erred in concluding that her Honour had made a relevant order dismissing the charge under s 10(2); accordingly, an appeal under s 5C was available and no jurisdictional error was demonstrated in that regard.

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(6) Use of alternative charges 96 The next issue concerned the validity of the inclusion of two separate offences, expressed to be in the alternative, in the one charge. This complaint was dealt with by the Full Bench but was said to have been effectively determined by an earlier decision of the Full Bench in WorkCover Authority (NSW) (Inspector Singh) v ABB Australia Pty Ltd (2006) 151 IR 90. 97 The propriety of commencing proceedings in the form adopted by the prosecutor must commence with a consideration of the statutory provisions under which the charge was laid. The application for an order was made by the prosecutor in a document filed on 23 October 2003, after the repeal of the Supreme Court (Summary Jurisdiction) Act 1967 (NSW). Accordingly, Part 5 of Chapter 4 of the Criminal Procedure Act 1986 (NSW) applied in relation to proceedings for offences taken before the Commission. The order sought by the prosecutor was thus an order pursuant to s 246 of the Criminal Procedure Act, as that section applied in relation to an offence committed before its commencement, where no proceedings had then been commenced: Criminal Procedure Act, Schedule 2, cl 32. 98 Chapter 2, Part 2 of the Criminal Procedure Act applies "to all offences, however arising (whether under an Act or at common law), whenever committed and in whatever court dealt with": s 15(1). In that Part, the term "indictment" is defined to include any process by which criminal proceedings are commenced: s 15(2). Section 23 provides: " 23 Indictment may contain up to 3 similar counts (1) Up to 3 counts may be inserted in the same indictment, against the same person, for distinct offences of the same kind committed against the same person. (2) This section does not apply if more than 6 months have elapsed between the first and last of the offences. (3) Nothing in this section affects the right of the Crown to insert alternative counts in any indictment." 99 Subject to any contrary indication in the OH&S Act, that provision would appear to dispose of the present complaint. However, the claimant asserted that a different and more restrictive result followed from the operation of ss 30 and 31 of the OH&S Act. These provisions read: " 30. Alternative verdicts If in proceedings against a person for an offence against a provision of section 8 or 9 the court is not satisfied that the person contravened that provision but is satisfied that the act or omission concerned constituted a contravention of another provision of section 8 or 9, the court may convict the person of an offence against that other provision. 31. Multiple contraventions of general duties under Division 1 (1) More than one contravention of a provision of Division 1 by a person that arise out of the same factual circumstances may be charged as a single offence or as separate offences. (2) This section does not authorise contraventions of 2 or more of those provisions to be charged as a single offence. (3) A single penalty only may be imposed in respect of more than one contravention of any such provision that is charged as a single offence." 100 It is clear that neither of these provisions is directly relevant. Section 30 permits alternative verdicts where the offence proved is not that which has been charged. It is limited to ss 8 and 9, but is simply irrelevant to the present issue. Section 31 deals with charges, and permits the charging of more than one contravention of a provision as a single offence or as separate offences, in particular circumstances. That is not this case: the present charge does not allege multiple contraventions of a single provision. If it did, s 31 would allow for those contraventions to be charged as a single offence. However, pursuant to sub-s (2), to charge multiple contraventions as a single offence, it is necessary that they be contraventions of a single provision. It is not possible to find a necessary implication that two separate offences may not be combined in one charge, whether cumulatively or in the alternative. Section 31 is simply silent on that point, because it is directed to a different issue, namely the joinder of contraventions within a single offence, which might, under general law principles, have been bad for duplicity. 101 It is not necessary to consider whether this objection gave rise to a jurisdictional issue: the objection is not made out as a matter of law.

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(7) Essential elements of charge: s 10(2), OH&S Act 102 The next objection raised by the claimant concerned the elements of the charge under s 10. As noted above, two complaints were made in this respect. The first was that, because it appeared to be conceded by the prosecutor in the affidavit supporting his application to the Commission that the boning room, in which the accident occurred, was controlled by a company known as NAIQ Pty Ltd, and not the claimant, it followed that the prosecutor was not asserting that the claimant had full control of the premises or plant therein. Although that was not fatal, because, pursuant to sub-s 10(4), a person with "only limited control" could contravene s 10, nevertheless, where limited control was asserted, the extent of that control should, it was contended, have been specified. 103 Whether the extent of the control needed to be specified or not, no complaint could be made in relation to the validity of the charge. The charge asserted that the claimant failed to ensure that "plant … over which it had control" was safe and without risks to health. That constituted an unambiguous assertion (whether or not correct as a matter of fact) that the claimant had control over the relevant drag chain conveyor which was identified in the particulars as the item of plant. Accordingly, this complaint must fail. On the other hand, if there were a failure adequately to particularise the degree and nature of the control alleged over the relevant premises, that complaint will fall within the issues to be discussed below. 104 The second complaint has more substance. The substance of the claimant's contention was that the application made by the prosecutor in relation to the charge under s 10(2) was defective in that it failed to assert a critical element of the offence, namely that the plant was controlled by the defendant "in the course of a trade, business or other undertaking": see s 10(3)(d). The charge in relation to s 10(2) did not expressly make that allegation. This, it was said, was an essential legal element of the offence, absent which the application failed as a mechanism for commencing proceedings in the Court "for an offence against [the OH&S] Act": see OH&S Act, s 105(1) and [68] above. However, the contention so stated tended to obscure the questions to be addressed under the Criminal Procedure Act. These were:

[86]

(iii) If there were such a defect, did it invalidate the commencement of the proceedings? 105 Schmidt J said that there was a distinction between a failure to specify the legal elements of the offence and a failure to specify essential factual particulars: [2005] NSWIRComm 163 at [25]. The test which her Honour then applied was dependent upon characterising the various elements found in sub-ss (2), (3) and (4) of s 10 as either elements of the offence or as exceptions, to be proved by the defendant, if it sought to rely upon them. However, it is not clear that the various elements in s 10 readily fall into one category or another. For example, sub-s (3)(a) provides that the duties apply to premises under the control of an employer and used by employees, so long as they are not used "only" by employees of that employer. It was not suggested in the present case that the charge was bad because it failed to allege that persons who were not the employees of Rockdale Beef used the plant. Similarly, par (b) excludes premises occupied only as a private dwelling: there is no complaint that the abattoir was not expressly identified to be a place not used exclusively as a private dwelling. In relation to par (c), the fact that the duties extend to the means of access or exit from a place of work was simply irrelevant in the present case. Paragraph (d), on the other hand, specifies an essential element of an offence, namely that the control of the premises occur "in the course of a trade, business or other undertaking". Nevertheless, if the plant over which the defendant had control was, as alleged in the charge, "used by people at work" it seems unnecessary, as a practical matter, to assert that the plant was used in the course of a trade, business or other undertaking as it was to assert that the plant was used on premises that were not occupied only as a private dwelling. Nevertheless, the complaint must be assessed against the relevant legal requirements. 106 The first step in considering this challenge to the approach of the Full Bench is to identify the statutory requirements in relation to pleading a charge with respect to a particular offence. The second step is to consider the operation of statutory provisions in relation to alleged defects in the pleading. 107 The first step is addressed by reference to s 246 of the Criminal Procedure Act, which provides that the prosecutor may apply for an order that "a person alleged in the application to have committed an offence … must appear at a time and place specified in the order to answer the offence charged in the order": s 246(1)(a). The application is required to be made in accordance with "the rules": s 246(2). The Criminal Procedure Act defines "rules" as those rules made "for the purposes of a court to which the relevant provision applies": s 3(1). The Industrial Relations Commission Rules 1996 provide, in r 217B with respect to the commencement of criminal proceedings: "(2) The application 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 defendant is alleged to have committed an offence, and (e) the nature of the offence that is alleged. (3) The Commission may require the prosecutor to file, in support of the application for an order filed under subrule (1): (a) an affidavit verifying the allegations made in the application, and (b) a minute of the order claimed." 108 There is no dispute that r 217B was complied with, with the possible exception of par (2)(e), namely a statement as to the nature of the offence. 109 The requirements with respect to the commencement of proceedings may be seen to have two purposes: the first is to engage the jurisdiction of the Court to hear and determine the case; the second is to ensure procedural fairness to the defendant, by providing the defendant with sufficient information to allow it to defend the charge. The distinction is one of some importance. If insufficient has been done to engage the jurisdiction of the Court within any period of time limited for the institution of proceedings for an offence, then the proceedings may be a nullity. On the other hand, if properly commenced, questions of procedural fairness may be addressed once the defendant has been served with relevant process and had an opportunity to seek such particulars as it may require. The distinction may be identified by reference, on the one hand, to "the nature of the offence" and on the other to "the necessity of specifying the time, place and manner of the defendant's acts or omissions": see Johnson v Miller (1937) 59 CLR 467 at 486 (Dixon J), referring to the Justices Act 1921-1936 (SA), s 55 (see 59 CLR at 468-469 - footnote) which had its equivalent in s 11 of the Criminal Procedure Act. In the present case, the statutory requirements which form a precondition to the exercise of jurisdiction to hear and determine a case, pursuant to s 246 of the Criminal Procedure Act, require only, relevantly for present purposes, a statement of "the nature of the offence". 110 On the other hand, there are statements in the joint judgment in John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508 suggesting that both purposes must be satisfied in order to found jurisdiction: at p 519. That conclusion was reached disregarding "the effect of statutory provisions curing or precluding reliance upon a defect", the majority holding that there were no such provisions operating in the circumstances of that case. That gave rise to a question as to the validity of a charge laid under the Consumer Protection Act 1969 (NSW). The prosecution had complained that an advertisement published by the defendant was knowingly false or misleading in a material particular, but the charge did not identify the element of falsity. The majority judgment (of Mason CJ, Deane and Dawson JJ) stated at 520-521: "As has been seen, the information in the present case failed to identify an essential factual ingredient of the actual offence, namely, the 'material particular' in which the statement, which the appellant was alleged to have caused to be published, was false or misleading. That failure was not a merely technical one. It was fundamental. The impugned statement was the expression of a present intention to engage in future conduct, namely, to give 1,000 litres of free petrol to customers 'buying a car over $3,000.00' during the coming week-end. It would appear from the transcript of submissions made in the Court of Criminal Appeal that the informant relied upon the failure of the appellant to give some or all of those customers the promised free petrol. But those facts, even had they been included in the information, would not have indicated whether the statement was alleged to be false or misleading because at the relevant time the appellant lacked the intention to carry out its promise or for some other reason. The relevant time was, as the information recognized, the time at which the statement was made. At the most those facts would, in the absence of explanation of them, amount to evidence of lack of intention. But any number of supervening events could have frustrated the performance of a promise genuinely made. Whether it was the absence of intention or some other circumstance which was alleged to make the statement false or misleading does not appear from the information and consequently it failed to specify how the appellant was said to have committed the offence. In other words, the information failed to specify the 'manner of the [appellant's] acts or omissions' (cf. per Dixon J, Johnson v Miller (1937) 59 CLR at 486) or to provide 'fair information and reasonable particularity as to the nature of the offence charged': per McTiernan J (1937) 59 CLR at p501. In the result, the information was defective and insufficient to found proceedings against the appellant in respect of the alleged offence unless its failure to identify the 'material particular' in which the alleged statement was false or misleading was cured or overcome by some applicable statutory provision." 111 The second step is to consider the effect of statutory provisions which provide for the consequences of any alleged defects in the pleading. These provisions may be found in Chapter 2 of the Criminal Procedure Act, ss 11 and 12 of which provide: " 11 Description of offences The description of any offence in the words of an Act or statutory rule or other document creating the offence, or in similar words, is sufficient in law. 12 Short description of certain offences (1) For the purposes of this or any other Act, a summary offence … is taken to be sufficiently stated or described if it is stated or described by the use of a short expression that describes the offence in general terms. … (4) Nothing in this section affects any requirements made by or under this Act in relation to the form of a court attendance notice or any other document." 112 These provisions, relating to objection to documents commencing proceedings, found in Part 2 of Chapter 2 of the Criminal Procedure Act, applied in the present proceedings because the term "indictment" is defined to include any process or document by which criminal proceedings are commenced: s 15(2). Section 16 provides that an indictment is not "bad, insufficient, void, erroneous or defective on any of" a number of specified grounds, including "for want of an averment of any matter … necessarily implied": s 16(1)(b). Further, s 16(2) provides: "No objection may be taken, or allowed, to any indictment by which criminal proceedings (including committal proceedings) in a Local Court or for any other offence that is to be dealt with summarily are commenced, or to any warrant issued for the purposes of any such proceedings, on the grounds of: (a) any alleged defect in it in substance or in form, or (b) any variance between it and the evidence adduced at the proceedings for the offence charged in the indictment or warrant." 113 Where objection is taken, despite the terms of s 16, a court is empowered to remedy any identified defect pursuant to ss 21 and 22, which provide: " 21 Orders for amendment of indictment, separate trial and postponement of trial (1) If of the opinion that an indictment is defective but, having regard to the merits of the case, can be amended without injustice, the court may make such order for the amendment of the indictment as it thinks necessary to meet the circumstances of the case. … (3) If of the opinion that the postponement of an accused person's trial is expedient as a consequence of it having amended an indictment …, the court may make such order as appears necessary. (4) An order under this section may be made either before trial or at any stage during the trial. … (6) Any power of the court under this section is in addition to and not in derogation of any other power of the court for the same or similar purposes. 22 Amended indictment (1) If any indictment is amended, a note of the order for amendment is to be endorsed on the indictment, and the indictment in its amended form is to be treated as the indictment for the purposes of the trial and all proceedings in connection with or consequent on the trial. (2) Any verdict or judgment given after the amendment of an indictment is to have the same force and effect as if the indictment had originally been in its amended form." 114 The terms of s 16(2) of the Criminal Procedure Act, referred to above are in substance to the same effect as s 65(1) of the Justices Act 1902 (NSW), discussed in Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501 at 517 (Mahoney JA). The current form of s 16(1) may be understood to spell out in more detail, but not exclusively, the kinds of alleged defect which are not fatal. Furthermore, ss 17, 20 and 21 now make explicit the power to amend an indictment or other process commencing criminal proceedings. (The absence of such an express power was noted in Boral Gas, without any conclusion being reached as to the power of a trial judge to make a necessary amendment.) 115 The Full Bench identified the approach adopted by Schmidt J at [137], but noted that the prosecutor had argued that such elements of sub-s (3) and (4) as were relevant were properly identified as "essential factual particulars", a failure to include all of which in a charge did not render the charge incurable. Reference was made to the judgment of Sperling J in Taylor v Environment Protection Authority (2000) 50 NSWLR 48 at [25] and [26]. 116 In Taylor, Sperling J (Meagher JA and James J agreeing) noted the distinction between informations which fail "to specify the legal elements of the offence and those where essential factual particulars have not been given": at [26], see also at [20] and [21]. An equivalent of s 16(2) of the Criminal Procedure Act was held to save a defect of the latter kind (relating to essential factual particulars) but not the former (the legal elements of the offence). However, the passages in John L Pty Ltd to which his Honour referred in the judgment of Brennan J (in dissent) do not support the negative aspect of this conclusion: nor was that aspect in issue in Taylor. Rather, it is a provision in the form of s 11 which will not necessarily cure such a defect: Ex parte Graham; Re Dowling (1968) WN (Pt 1) (NSW) 270 at 280 (Asprey JA). Brennan J, referring to the judgment of Dixon J in Johnson v Miller, stated (at 163 CLR, 529): "The reference by Dixon J. to Smith v Moody was merely for the purpose of showing that there was authority for the proposition that the following of the words of the statute does not necessarily eliminate the obligation to furnish particulars. Referring to s 55 of the Justices Act (S.A.), which provided that a description in a complaint of an offence in the words of the relevant statute should be sufficient, his Honour said: 'But this relates only to the nature of the offence and does not dispense with the necessity of specifying the time, place and manner of the defendant's acts or omissions ( Smith v Moody )'." 117 The defect identified by Brennan J in the course of that discussion was the failure to specify "the manner in which the alleged advertisement was false or misleading": p 529. That was a defect, the consequences of which could be avoided by operation of an equivalent to s 16(2). His Honour then stated (at p.530): "Griffith CJ stated the effect of such a provision in Hedberg v Woodhall (1913) 15 CLR 531 at 534-535: 'Up to the end of the first half of last century innumerable objections could be taken in cases before magistrates. Then came the Acts called Jervis's Acts , which did away with many of them. One of those Acts … provides … that no objection shall be taken or allowed to any information for any alleged defect therein in substance or in form. That apparently means that if objections are taken that really do not go to the merits of the case the magistrate is not to stay his hand, but to proceed to dispose of the case on the merits.' In this respect the authority of Hedberg v Woodhall has never been doubted. In Johnson v Miller the correctness of Hedberg v Woodhall on this aspect was clearly accepted by Latham CJ. 118 The second authority relied upon by Sperling J was Stanton v Abernathy (1990) 19 NSWLR 656 at 667. That case involved a matter in respect of which Gleeson CJ stated that the information in John L Pty Ltd gave "a good deal more particularity than is contained in the information the subject of the present appeal": p 667A. However, his Honour then went on to consider the operation of an equivalent of s 16(2) and stated: "In relation to the matter of want of particularly, the conclusion reached by Yeldham J, to the effect that s 30 [of the Justices Act ] deprived the appellant of the benefit of his argument at the level of a consideration of the technical validity of the information (as distinct from the level of a consideration of the requirements of natural justice) is precisely in accordance with the reasoning of Brennan J in the High Court in John L Pty Ltd ."

[87]

(Section 30(1) of the Justices Act was the equivalent of s 16(2), in relation to indictable offences; s 65 was the equivalent provision in relation to summary offences.) 119 These authorities do not in terms support the proposition that s 16(2) will not save an information which fails to specify an essential legal element of the offence. 120 It is true that there are statements in some cases which suggest that s 16(2) (and its predecessors) would not cure all defects and, in particular, a failure to allege "all the ingredients of the statutory offence": see Ex parte Lovell; Re Buckley (1938) 38 SR(NSW) 153 at 168 (Jordan CJ). However, in summarising the law (at p 173) the Chief Justice stated, in relation to the predecessor to s 16(2): "Section 65 of the Justices Act , 1902, does not enable a magistrate to convict of an offence upon an information which discloses no offence, or to convict of an offence alleged in the information if the evidence does not support that offence, or to convict of an offence established by the evidence if it is a different offence from that charged in the information. … If the magistrate convicts upon an information or charge which discloses no offence, or for an offence with which the accused has not been duly charged, the conviction is bad." 121 In Boral Gas, at p 517, Mahoney JA stated: "But on a literal approach, s 65 would offer no assistance if the defect lay in, for example, a mis-statement of the offence such that it could be corrected only by the deletion of the existing statement of it and the substitution of a corrected statement. In Ex parte Lovell; Re Buckley (at 168), Jordan CJ saw the English decisions of the equivalent legislation as establishing that it did not apply 'if it appears that the information does not allege all the ingredients of the statutory offence' or that the evidence did not prove it. Accordingly, absent power in the lower Court to amend the information to remove the particular defects, statutory provisions such as s 65 do not remove all the defects for which proceedings on the information may be restrained or convictions quashed." 122 At a time when the trial court lacked an express power to amend an information, there was an important distinction to be drawn between the provision of particulars (which could be ordered) and amendment of the information itself. That distinction is no longer of importance and s 16(2) should not be read down as if it were. Rather, the relevant principle is that there may be defects which are capable of remedy and defects which are not. The appropriate classification should be considered on a principled basis, and not by use of labels, seeking to distinguish between "essential legal elements" and "essential factual particulars". Cases where an objection in relation to the specification of an essential element of an offence has been upheld, in circumstances where a legislative regime exists, equivalent to that under the Criminal Procedure Act, were not identified in the course of the present proceedings. None of the cases discussed so far was such a case. However, an example, referred to by Sperling J in Taylor, was Ex parte Thomas; Re Otzen (1947) 47 SR(NSW) 261. That case involved an offence under the National Security Regulations, by supplying a declared service at a price exceeding the maximum permitted under the regulation. The Full Court held that the charge of supplying bottled beer together with corkage for an undivided remuneration (at a rate above the maximum rate) was not an offence under the regulation. Jordan CJ stated (p 263): "It was sought to get over this by appeal to s 65 of the Justices Act , 1902, and a contention that there had been a mere variance. But it has been decided over and over again that a person cannot be convicted upon an information that does not charge an offence, and that s 65 does not meet such a case: Ex parte Lovell … . The proper course, when this occurs is to amend the information so as to make it allege an offence known to the law and triable before the magistrate; and for the magistrate then to allow any adjournment reasonably necessary to give the defence an opportunity of meeting the charge."

[90]

However, their Honours treated that characterisation as not involving a failure to plead an essential legal element and hence concluded that the trial judge erred: at [173]. This conclusion, following the summary of the defendants' submission, tended to elide two separate questions: namely, whether the essential legal element had been pleaded and, secondly, whether it had been adequately particularized. 125 If the Full Bench resolved a question as to the validity of the charge by reference to a wrong legal standard, there might be a nice question as to whether it was an error within jurisdiction or constituted a constructive failure to exercise the jurisdiction of the Court. However, they were right to find error on the part of the trial judge, for a reason which might have been slightly differently expressed. The error lay in the fact that the failure to plead that the conduct in question took place in circumstances where the relevant plant was controlled in "the course of a trade, business or other undertaking" was a failure to allege an essential legal element of the offence. Nevertheless, the complaint did not involve a fundamental issue, going to the fairness of the prosecution, and should better be described as a complaint "at the level of technical validity", adopting the language of Gleeson CJ in Stanton: see [118] above. Because the charge stated that the plant was "used by people at work" and asserted that the plant was in the control of the defendant, there is little substance in the complaint that it was not alleged to be controlled in the course of a trade, business or other undertaking. Further, the identification of the plant as a "drag chain conveyor" also gave rise to the inference that it was machinery of a kind used in the course of a trade, business or other undertaking. 126 If it were thought necessary, in the interests of procedural fairness, to make express reference to the relevant business in the charge, the prosecution was entitled to rely upon the material set out in the affidavit of Inspector Wolf, in support of the application. That affidavit asserted that the drag chain conveyor was located at the "Boning Room of Rockdale Beef": par 5. The boning room was described as being "at the abattoir": par 6. The abattoir was said to be "owned by" Rockdale Beef: par 10. Whether any further particulars were required may be doubted in these circumstances, but the case was one in which, had there been a difficulty, amendment of the pleading would have been available: see Stanton v Abernathy (1990) 19 NSWLR 656 at 667 and 671G-672F (Gleeson CJ, Priestley and Meagher JJA agreeing). Whatever flaws there may be in relation to the charge under s 10(2), they do not demonstrate invalidity of a kind which would require this Court to hold that the jurisdiction of the Industrial Court had not been adequately invoked. Accordingly, even on that approach there was no jurisdictional error in the decision of the Full Bench. 127 Both Schmidt J and the Full Bench gave consideration to the judgments in the High Court in Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 which upheld the proposition that, in the context of s 21 of the Occupational Health and Safety Act 1985 (Vic), the onus fell on the prosecution to prove that there had been a failure to maintain "as far as was practicable" a safe working environment. The question of reasonable practicability was an essential element of the offence and did not constitute an "exception, exemption, proviso, excuse or qualification", for the purposes of s 168 of the Magistrates (Summary Proceedings) Act 1975 (Vic), the proof of which lay upon the defendant. There was no error in the pleading and the only relevance of the case is the discussion of what may constitute part of an offence and what elements constitute a "qualification". The case addressed the validity of the charge only to the extent that there was a separate assumption that all matters required to be proved by the prosecution must be expressly pleaded. 128 The operation of Chapter 2, Part 2 of the Criminal Procedures Act has been considered recently by this Court in Knaggs v Director of Public Prosecutions [2007] NSWCA 83 by Campbell JA, Mason P and Tobias JA agreeing. In that case, summary proceedings had been instituted in a Local Court by the issue of a court attendance notice. The notice identified the section of the Crimes Act under which the charge was laid, described the charge as "assault occasioning actual bodily harm" and stated that the offence had occurred between the hours of 8am and 5.30pm on a particular day "at Potts Point". It was further alleged that the defendant "did assault [the identified victim] thereby occasioning actual bodily harm to her". 129 The defendant in those proceedings challenged the validity of his conviction on the basis that the notice was defective and invalid because it failed to comply with ss 172 and 175 of the Criminal Procedure Act, by failing to "briefly state the particulars of the alleged offence" and in failing to follow "the prescribed form in this regard": see at [4] and [10]. The Court dismissed the challenge, Campbell JA reasoning first by what was described as "direct construction of the statute" and, secondly, by reliance upon "extrinsic aids to construction". The former course involved reference to principles of general application, as applied in relation to administrative decision-making and in civil proceedings: at [32]-[46]. It is not necessary to follow that approach in the present case, as the second approach, which relies upon the legislative history and case-law in relation to summary criminal procedure, is sufficient, as set out at [63]-[83] of Knaggs. 130 That history demonstrates that it has long been sufficient to describe the nature of an offence by use of the statutory language: see ss 145A of the former Justices Act 1902 (NSW) and Ex parte Lovell; Re Buckley (1938) 38 SR(NSW) 153 at 174 (Jordan CJ, Davidson and Halse Rogers JJ agreeing) and now s 11. However, it does not follow that all the words of the statute must be used, nor that, where the specific provision is adequately identified, all the legal elements must be expressly identified. For example, some may be necessarily implied from what is described, for the purposes of s 16(1)(b). 131 The fact that s 16(2) (and its predecessors) has been held not to apply in relation to necessary particulars, does not mean that it has no effect in relation to a statement as to the nature of the offence. In Knaggs, Campbell JA noted that the deficiencies in a court attendance notice could be "so gross that as a matter of construction s 16(2)(a) would be read as not applying to them": at [48]. That may be conceded, in circumstances where doubt is left as to the precise offence which is sought to be charged; but that is not this case. Where an offence is identified, in terms which admit of no uncertainty or ambiguity, it would be to ignore the purpose and intended effect of s 16(2) to find that proceedings had not been validly commenced because a phrase had been omitted which described a particular element of the offence which was in substance an extended description of the circumstances in which the section operated, rather than an additional element. In other words, the allegation that a person had control of plant used by people at work, the plant being identified as a drag chain conveyor, is not advanced by saying that the plant was controlled in the course of a business. However, if that were a defect and a matter of substance, it nevertheless fell within the literal terms of s 16(2). 132 More broadly, whether a defect is of a kind that might not be covered by s 16(2)(a) must be judged by reference to the purpose of the statutory requirements not complied with and the likely effect of the non-compliance in relation to the purpose for which the notice is given. If the notice could be read as not clearly identifying the offence charged, or at least "the nature of" that offence, in some material respect, the defect might be outside the scope of the remedial provision. The effect of s 16(2) may be seen to weaken the mandatory statutory requirement with respect to notice, by removing a basis of invalidity. However, its operation will not depend on the good faith of the prosecutor, but on the effect of the notice. The test for validity will differ from that applied in relation to privative clauses: see R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598 at 616; Plaintiff S157/2002 v The Commonwealth (2003) 211 CLR 476 at [19]-[20] (Gleeson CJ) and [57]-[60] (Gaudron, McHugh, Gummow, Kirby and Hayne JJ). On the other hand, the construction to be given to s 16(2) will involve reconciliation between its terms and those of a provision imposing a requirement with which there has been defective compliance: c.f. Plaintiff S157 at [69] and [77]. 133 Section 16(2) (and related provisions) do not reveal an intention to deprive a defendant of a fair trial. The possibility of a need for remedial amendment is recognised in ss 17 and 21. If irremediable unfairness would result from a particular defect, that defect might well fall outside the terms of s 16(2). No such unfairness was demonstrated in relation to the charge under s 10(2).

[92]

Question 4: Was it correct in law to hold in [162] that on the state of the evidence as it was before me it was an abuse of process 'in a case where the identity of the proper defendant is at issue' for the prosecutor to '[advance] a case that the existence of the agency is irrelevant to ascertaining whether it is the defendant or the partnership which is the employer; who conducted the undertaking, and at whose place of work the risk to safety arose' and to '[propose] to do no more than raise the issue in evidence and then to call evidence relevant to the case it advances, leaving it to the defendant, if it wishes to advance a defence, to lead evidence which establishes the agency and that the partnership is the employer, conducted the undertaking and at whose place of work the risk arose'?" 135 The Full Bench was concerned that question 3 did not purport to raise an issue expressly determined in the judgment, and that it "could not reasonably be said to paraphrase any part of" the judgment of Schmidt J: at [53]. Nor was the answer in dispute in any sense requiring resolution by the Full Bench. The Full Bench therefore declined to answer the question on the basis that it had little utility: at [56]. There is no challenge to that conclusion, although it might be thought that question 3 was closer to a true question of law than question 4 and that it sought to encapsulate the underlying legal principle which was more discursively identified in question 4. 136 The claimant challenged, before the Full Bench, the propriety of answering question 4. It was said, with some force, not to constitute an appropriate question of law but rather, to involve questions of fact and law. However, the Full Bench concluded that it raised for consideration the question whether Schmidt J "was correct in holding that the prosecutor's conduct amounted to an abuse of process that could not be remedied thereby warranting a permanent stay of the proceedings": at [58]. That formulation required identification of "the prosecutor's conduct", as found by Schmidt J. It also required that the question be understood as asking whether the conduct was capable of amounting to an abuse of process of a relevant kind. Otherwise, it would not identify a question of law. 137 Question 4 arose from the judgment of Schmidt J given on 27 May 2005. At that point, her Honour having dismissed charges under s 10(2), the only question was whether the charge under s 8(2) of the OH&S Act should proceed. That charge alleged that Rockdale Beef was "an employer", which failed to ensure that people other than its employees were not exposed to identified risks. Rockdale Beef denied that it was "an employer"; rather, it asserted it was merely an "agent" for two companies which ran the abattoir as part of their joint business. 138 As her Honour noted, there was no reason why an "agent" should not have employees: at [75]. She also held at [76]: "I am satisfied that this material provided a prima facie basis for the view that the abattoir where the accident had occurred was the defendant's place of work and that it had occurred in the course of its undertaking …. This flowed naturally from the defendant's advice that it had employees and that they were working at the abattoir." 139 Putting to one side the manner in which the reference was formulated and the form in which findings of fact were articulated, the point of substance between the parties may be identified in the following terms. The prosecutor was of the view that the claimant was an employer, as alleged in the charge. It intended to put before the Commission (and did put before the Commission) evidence which supported a finding to that effect. The claimant, on the other hand, wished to contend that it was not an employer (although that was not the capacity engaged by s 8(2)) and wished to have before the Commission evidence, which included primarily an agreement between it and the two corporations for which it managed the business, which it said demonstrated that they, not it, were the joint employers of such employees as were claimed to be those of the claimant. 140 Precisely why the claimant sought to have the agreement proved by the prosecution was somewhat obscure. Nor was it clear why (or even whether) it would suffer prejudice in defending itself if it were necessary for it to tender the agreement, which the prosecution considered irrelevant to its case. No issue was raised as to the failure of the prosecution to disclose material available to it, which might assist the defence: indeed, all of the material which the claimant apparently wished to have the prosecution tender was in the prosecution "brief" which was disclosed to it. Furthermore, the documents in question had been produced by the claimant, or with its knowledge. 141 The key to her Honour's finding that to permit the prosecution to proceed would avoid an irremediable abuse of process, may be found in several places in her Honour's judgment of 27 May 2005. Thus, at [66] her Honour stated: "The onus falls on the prosecutor to establish, to the requisite degree, that the facts were as portrayed in its opening. The prosecutor has an obligation to put the relevant material before the Court, which will permit those factual issues to be determined. In meeting that obligation it cannot ignore or fail to tender material which does not assist the prosecution case. To so approach the proceedings would involve an abuse, which the Court would not permit." 142 Further, at [152] her Honour stated: "Contrary to the prosecution's assertion, the prosecutor's obligation is not one which can be approached on the basis that, if it wishes, the defendant can lead such material, in order to make out a defence. This statutory scheme creates certain absolute obligations. It also imposes a particular onus on a prosecutor, who seeks to establish that those obligations have not been met and that an offence has been committed. There are defences provided in the statute, which only arise for consideration, once an offence has been made out. They do not include a defence of the kind asserted by the prosecutor. The onus to make out the case the prosecution alleges, to the necessary criminal standard, can only be met by the prosecution leading in its case, all of the evidentiary material which will provide a fair opportunity for the factual matters in issue between the parties to be determined by the Court." 143 Before the Full Bench the argument (and the discussion in the judgment) ranged broadly across issues concerning the scope of the responsibility of the prosecution, the nature of the evidence before the Court, the legal relevance of the allegation of agency and the extent to which it was appropriate for the Full Bench to look beyond the "findings" set out in the reference. At [103] their Honours identified five considerations, to which it will be necessary to return. Their conclusion was expressed, at [104]: "The situation thus described provided no basis for a permanent stay to be ordered. Her Honour had accepted that the prosecution had a prima facie case; there were clearly triable issues before the Court. The existence of an agency did not, per se , prove the defendant was not liable under s 8(2) of the OHS Act. The prosecution had not determined its position regarding the defence material going to the existence of an agency; it needed the opportunity to assess whether it would tender all or some of the material. There was no obligation on the prosecutor to tender material in the possession of the defence where its provenance was uncertain or it was unreliable. Finally, there were avenues open to the trial judge to control the proceedings and avoid unfairness short of ordering a permanent stay." 144 At a substantive level, the claimant contended that the Full Bench had understated the obligation of the prosecutor. Properly understood, it was said, the prosecutor had an obligation to put before the Court "all arguably credible and relevant evidence": Subramaniam v The Queen (2004) 79 ALJR 116 at [57]. The management agreement fell within that category. 145 As will appear in relation to the invocation of the supervisory jurisdiction of this Court - see below, (10) Supervision of prosecutor - the claimant asserted that there was misconduct on the part of both the prosecutor (Mr Wolf) and on the part of counsel appearing for the prosecutor. However, in relation to the matters raised by questions 3 and 4 of the stated case, it would appear that the challenge was directed to the conduct of the proceedings by counsel. Certainly the authorities relied upon in support of the claimant's contentions all deal with the proper conduct of counsel for the prosecution. 146 There are a number of difficulties with this contention. The first is that, except in most unusual circumstances, it would be inappropriate for a trial judge to intervene to stop proceedings before the end of the prosecution case, on the basis that the prosecutor did not intend to call particular evidence. Secondly, as might be expected, a one-phrase summary of the prosecutor's duty is unlikely to be useful when extracted from its context, so as to suggest an absolute and inflexible legal principle. The principle, as stated in Subramaniam, was in terms of a duty "to present the case fairly and completely", as identified in Richardson v The Queen (1974) 131 CLR 116 at 119, and other well know authorities: Subramaniam at [54]. The Court also quoted with approval the remarks of Smith ACJ in R v Lucas [1973] VR 693 at 696 to the effect that "a prosecution must be conducted with fairness towards the accused and with a single view to determining and establishing the truth". How the principle of fairness will operate in particular cases, may be illustrated by Richardson itself. In the page referred to in Subramaniam, the following passage occurs in the judgment of Barwick CJ, McTiernan and Mason JJ, after rejecting the proposition that the prosecution was under a duty to call any eye-witness, whether his or her testimony would tend to inculpate or exculpate the accused and that a breach of that duty would entitle the accused to a retrial. Their Honours continued: "Any discussion of the role of the Crown prosecutor in presenting the Crown case must begin with the fundamental proposition that it is for him to determine what witnesses will be called for the prosecution. He has the responsibility of ensuring that the Crown case is properly presented and in the course of discharging that responsibility it is for him to decide what evidence, in particular what oral testimony, will be adduced. He also has the responsibility of ensuring that the Crown case is presented with fairness to the accused. In making his decision as to the witnesses who will be called he may be required in that particular case to take into account many factors, for example, whether the evidence of a particular witness is essential to the unfolding of the Crown case, whether the evidence is credible and truthful, whether in the interests of justice it should be subject to cross-examination by the Crown, to mention but a few." 147 There will be occasions when the conduct of the prosecution may require a trial judge to intervene during the course of the prosecution case, to abort the trial. Prejudicial statements in the presence of the jury, or to the media which are published during the trial, may provide examples. But, it would only be in an extreme case that a trial judge would properly intervene on the basis of the prosecution's exercise of judgment in presenting its case. Such interventions, whether at the invitation of the defendant or otherwise, will run a serious risk of subverting the orderly course of the trial. None of the cases stating the manner in which a breach of the obligations of the prosecution may operate unfairly so as to require a retrial, suggest such an intervention during the course of the prosecution case. So far as the substance of the complaint raised by the claimant is concerned, there is no basis for interfering with the conclusions reached by the Full Bench.

[93]

(9) Stated case: proper procedure 148 On a procedural level the claimant alleged that the Full Bench had misconceived its function in dealing with a question of law, by going to the evidence before the trial judge and itself making findings of fact, some of which were inconsistent with those made by the trial judge. One such finding concerned the willingness of the prosecutor to reconsider its position and, if it thought appropriate at a later time, but during its case, tender relevant documentary material, such as the management agreement. 149 The power to state a case relied upon by the prosecutor before the trial judge, was found in s 5AE of the Criminal Appeal Act 1912, as applicable in the Industrial Court: Industrial Relations Act, s 196. That provision empowered the judge hearing the proceedings to "submit any question of law arising at or in reference to the proceedings" to the Full Bench "for determination". It further empowered the Full Bench to "make any such order or give any such direction to the court concerned as it thinks fit": s 5AE(2). 150 Traditionally, the power is conferred to state a case with respect to a question of law: see Merchant Service Guild of Australasia v Newcastle and Hunter River Steamship Co Ltd [No. 1] (1913) 16 CLR 591 at 628-643 (Isaacs J). Other provisions contain no such limitation: see Judiciary Act 1903 (Cth), s 18 and New South Wales v The Commonwealth (1926) 38 CLR 74 at 82. However, where that which is to be submitted is a question of law, the Court to which the case is stated is in terms limited to a determination of that question, although it may be entitled to make appropriate orders or directions, as it thinks fit, in the exercise of the jurisdiction conferred. However, it does not follow that the Court can decide questions of fact: rather, it has been held that the Court can neither make findings of fact, nor draw inferences, unless a power to do so is specifically conferred by the relevant enactment: see Mack v Commissioner of Stamp Duties (NSW) (1920) 28 CLR 373 at 381 (Isaacs J); The Queen v Rigby (1956) 100 CLR 146 at 150-151 (Dixon CJ, McTiernan, Webb, Kitto and Taylor JJ), applied by Gibbs J in Brisbane City Council v Valuer-General (Qld) (1978) 140 CLR 41 at 58 (Stephen, Mason, Murphy and Aickin JJ agreeing). In The Queen v Rigby, the Court acknowledged that, in the absence of an explicit statement of fact, the Court might be able to gather the necessary facts from the construction of the case itself as stated, but distinguished that circumstance from one where the Court was required to reach conclusions of fact itself: p 152. Despite the absence of objection, it was held that the case stated was incompetent because it was not in a form which enabled the Court to decide any question of law. 151 Similar problems can arise where separate questions are identified for determination, which do not involve fact-finding and on a basis which does not involve sufficient facts found or agreed: see Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334 at [50]-[58]. In any event, in the present case s 5AE did not confer jurisdiction on the Full Bench to determine questions of fact. 152 The procedural complaint thus has merit and the willingness of the Full Bench to answer the "question" as formulated might well involve jurisdictional error, in misconceiving the limits of its powers within the proper scope of a stated case. However, there are discretionary reasons why this Court should not intervene. Despite the approach taken by the Full Bench to the exercise of its jurisdiction with respect to question 4, it was clearly correct to conclude that, as a matter of law, no irremediable unfairness had arisen, nor was it in any sense inevitable that the prosecution, if it proceeded, would be unfair to the claimant. In short, the evidence before Schmidt J, relied on by the claimant, was not capable of demonstrating that, even if the prosecutor did not tender the management agreement and other documentary material, the prosecution would be unfair. A properly formulated question would have resulted in the proceedings being remitted, as they were, for further hearing. To uphold the claimant's challenge on the basis that the stated case was flawed would invite an application to amend the stated case, with the same consequence as that reached by the Full Bench, namely that the trial should not have been stayed on this ground.

[94]

(10) Supervision of prosecutor 153 As a final alternative, if this Court were not minded to hold that the answer given by the Full Bench to the question concerning abuse of process should be set aside, then the claimant invited this Court to determine for itself, in the exercise of its general supervisory jurisdiction under ss 23, 65 and 69 of the Supreme Court Act, that the conduct of the prosecutor was such that the prosecution should be permanently stayed in any event. 154 This application gave rise to a number of questions. First, it required separate consideration to be given to the position of the prosecutor himself and the position of counsel for the prosecution. Although this distinction was conceded, as was the possibility that different principles would apply to each, it remained unclear as to precisely how and on what basis the claimant said that each should be restrained. If, for example, there was some breach of obligation on the part of counsel, no order was sought against counsel, and it is difficult to see how a permanent stay in relation to the prosecution could result from the refusal of counsel briefed in the matter to take a particular course. There may be circumstances in which this Court will control the conduct of counsel, but in such extraordinary circumstances, the appropriate order would seem to be a stay of proceedings pending replacement of counsel, a course which was taken in MG v R [2007] NSWCCA 57. That would not involve a permanent stay. 155 The conduct of a trial, and matters such as pre-trial disclosure, are the responsibility of counsel (where counsel is briefed) having carriage of the proceedings on behalf of the informant or other prosecutor. That is the true focus of the present complaint. It is true that pre-trial conduct, which does not directly involve the legal practitioner presenting the case may have consequences for the trial, such as where evidence has been illegally obtained, a confession is held to be involuntary or where delay has prejudiced the possibility of a fair trial. It is also possible that relief may be granted where a party has instituted proceedings for an improper purpose: see, eg, Williams v Spautz (1992) 174 CLR 509. Where the conduct of a prosecutor bringing proceedings in another Court constitutes an abuse of process, it may properly be said that relief sought in this Court invokes its supervisory jurisdiction pursuant to s 23 of the Supreme Court Act: see Spautz at 532 (Brennan J) referring also to the judgment of McHugh JA in this Court in Herron v McGregor (1986) 6 NSWLR at 250-252. However, as a superior court has "inherent jurisdiction" to stay proceedings which are an abuse of its process, it would be a rare case in which, where an appeal lies to this Court, the supervisory jurisdiction of this Court could properly be invoked as a separate head of jurisdiction: compare Spautz at 518 (Mason CJ, Dawson, Toohey and McHugh JJ). 156 Secondly, whatever orders were sought in relation to the prosecution pending before Schmidt J, there was a further question as to whether s 179 would affect the supervisory jurisdiction of this Court in its operation to such proceedings; the claimant contended it did not. Thirdly, if it were held that s 179 did not in terms apply it would be necessary to consider orders which had the effect of setting aside the answer given by the Full Bench in relation to question 4, to avoid practical inconsistency between orders. However, these questions can be put aside on the basis that, as noted above, the circumstances as found by her Honour did not give rise to a proper basis for a permanent stay of the proceedings.

Rockdale Beef Pty Limited v Industrial Relations Commission of NSW and Anor

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Judgment (97 paragraphs)

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Legislation Cited (13)

Cases Cited (49)

Cited By (50)