Rodney Morrison v Dartbrook Coal Pty Ltd and Tecrete Industries Pty Ltd.

Rodney Morrison v Dartbrook Coal Pty Ltd and Tecrete Industries Pty Ltd. - [2002] NSWIRComm 127 - NSWIRComm 2002 case summary — Zoe

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Occupational Health and Safety Act 1983 s 15(1) s 16(1) s 48(1)(a) Occupational Health and Safety (Administration) Regulation 1992 LEGISLATION CITED : Supreme Court (Summary Jurisdiction) Act 1967 4(1) Common Law Procedure Act Criminal Procedure Act s 55 Public Sector Management Act 1988 s 12 Barton v Croner Trading Pty Ltd (1984) 3 FCR 95 Bedingfeld v Keogh (1912) 13 CLR 601 at 604 Beckwith v R (1976) 135 CLR 569 at 576 Berwin v Donohoue (1915) 21 CLR 1 25 Brebner v Bruce (1950) 82 CLR 161 Bruce v Jarrett (1926) SASR 96 Callahan v WorkCover Authority of NSW (1996) NSW IRC 47 Dever v Creevy ex parte Creevy (1992) 1 Qd.R 232 Ex parte Smith (1918) 35 WN (NSW) 54 Ex parte Stuart re Mead and ors (1930) 47 WN (NSW) 60 Ex parte Wright Heaton and Co (1895) Vol. X11 WN (NSW) 25 Gilmour v Bastian (1917) 24 CLR 14) Gilmour v Bastian (1918) 34 WN (NSW) 239 Gilmour v Midways Springwood Pty Ltd (1980) 3 A.Crim.R 197 Gouriet v Union of Post Office Workers [1977] 3 WLR 300 at 310 Holland v Jones (1917) 23 CLR 149 Kemp John Graham v Gough and Gilmour Holdings Pty Ltd NSW CCA (unreported 14 February 1995) CASES CITED : McConnell Dowell Constructions (Aust) Pty Ltd v Environmental Protection Authority [2000] NSWCCA 367 at paragraph [11], McDonnell v Smith (1918) 24 CLR 409 MacCarron v Coles Supermarket Australia Pty Ltd (2001) 23 WAR 353 at [34] Palos Verdes Estates Pty Ltd v Carbon (1992) 6 WAR 223 Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 per Brennan J at 610 Price v Humphries [1958] 2 QB 353, Project Blue Sky Inc. & ors v Australian Broadcasting Authority (1998) 194 CLE 355 [69] at 381) Re Water and Sewerage Employees - Wages Division (Metropolitan) Award and ors. (1983) 4 IR 67 at 72 Rabczynski v Morrison (1988) WAR 71 R v Bacon (1973) 1 NSWLR 87 R v Turner [1910] 1 KB 346 R v Waller (1910) 1 K.B. 364 367 Shulz v Virgin (1966) SASR 94 Thompson v Goold & Co [1910] AC 409 at 420) Thompson v The Queen (1989) 169 CLR 1 Traveland Pty Ltd v Doherty (1982) 63 FLR 41 at 46 Turner v Tsaousis (1974) 7 S.A.S.R 408,

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4 It appeared to be common ground that the prosecutor, when filing the application for order on 27 March 2001, did not attach a copy of the written consent to his affidavit or otherwise disclose the terms of the written consent to which he referred in his application. At the callover, an order was sought and made that the prosecutor provide the defendants with a copy of the written consent within seven days. In response to that order, solicitors acting for the prosecutor provided a copy of what was claimed to be the written consent to institute proceedings dated 26 March 2001. That was the only document supplied in compliance with the order to provide the defendant with a copy of the written consent. The document supplied was a five page memorandum carrying the heading "Department of Mineral Resources" and underneath it the words "Confidential". Under the word "memorandum" appeared the words: "a matter considered by the Assessment and Review Committee on 19/3/2001". The memorandum was addressed to Alan Coutts, the Director General's Office - St Leonards and was stated to be from Rod Morrison, Convenor, Assessment and Review Committee. The subject was stated to be "fatal accident Raydon Rich, Dartbrook Colliery" and below that the following was entered - "a progress report on the prosecution against Dartbrook Coal Pty Ltd and Tecrete Industries Pty Ltd". The document was dated 20 March 2001. The document gave background to the accident wherein Raydon Rich was killed whilst assisting in the task of installing crib roof supports in an underground coal mine. The document then dealt with various matters under the headings of "Coronial Inquest", "relationship between Dartbrook and Tecrete", "memorandum to Director General", "reference documents", "breaches", "matters considered in reaching decision" and "Recommendations". Under the heading "Breaches", a sub-heading dealing with potential breaches of legislation, Dartbrook Coal Pty Ltd is mentioned in relation to s 16(1) of the Act and Tecrete Industries Pty Ltd in relation to s 15(1) of the Act. The recommendation was in the following terms: The Committee recommends that the prosecution against Dartbrook Coal Pty Ltd and Tecrete Industries Pty Ltd be initiated by the Department …

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SUBMISSIONS 15 For Dartbrook, it was submitted that summary prosecutions are commenced by, and in the name of, an individual. It was said that in summary matters prosecutions were notionally private and that there was a historical right, well recognised, whereby an individual wishing to see the law enforced could bring a private prosecution. In Gouriet v Union of Post Office Workers [1977] 3 WLR 300 at 310, the House of Lords described this as an historical role "which goes right back to the earliest days of our legal system". Thus, "Laws of Australia" (Volume 11.4, Chapter 3, paragraph 10) noted: Historically, prior to the development of police forces, the principal responsibility for law enforcement lay with private citizens. At common law, therefore, the general rule is still that any individual may file a charge alleging the commission of an offence against an enactment for the benefit of the public at large. The principal means of limiting private prosecutions are: statutory controls on who may initiate prosecutions under particular Acts; the requirement of the consent of a public official in certain cases; and, in the higher courts, the power vested in the Director of Public Prosecutions to take over and terminate prosecutions which were privately initiated. In summary matters, all prosecutions are notionally private, in that the police officer, or other public official, is acting as informant in a personal capacity in his or her own name and not, as in indictable offences, on behalf of the Crown. The informant, or his or her authorised representative, conducts the prosecution personally, or through counsel as though it were a private suit. The costs, which may be awarded to the successful informant who is acting in an official capacity (for example, police, municipal by-laws officers and other summary prosecutors), are paid to the agency for which he or she works. In relation to some summary offences, the legislature has limited the categories of persons who may file or lay a charge, information or complaint, thereby effectively excluding private prosecution. In other cases, the legislation nominates authorised informants without necessarily limiting private prosecutions.

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17 Attention was also drawn to a judgment of the High Court in Brebner v Bruce (1950) 82 CLR 161. In that case, a police constable had laid a complaint under Regulation 63 of the Telephone Regulations which made it an offence to use objectionable, obscene or offensive language whilst using any telephone. The police constable did not obtain authority from the Postmaster General but reliance was placed on s 13 of the Crimes Act which provided that unless the contrary intention appears in the Act or regulation creating the offence, any person might institute proceedings for the summary conviction of any person in respect of any offence against a law of the Commonwealth punishable on summary conviction. In his judgment Fullagar J quoted from the judgment of Hood J (speaking for the court) in Steane v Whitchell (1906) V.L.R. 704, where his Honour said: … we may start with the proposition that, generally speaking, any person may be the informer, but sometimes the statute giving the penalty allows only particular persons to be informers. In the absence of sufficient indication to the contrary, if the penalty is given to the party aggrieved he must be the informer; or else it must appear that the information is laid at his instance, and if the enactment is framed solely and exclusively for the benefit of a particular body of persons, the information must be laid with the authority of that body of persons: Burns v Justice of the Peace (30th ed.), vol. i, p 1106, titled Conviction. The presumption thus being that any person may be the informant, we then look to the Statute imposing the penalty to see if there be any express or implied limitation. There are three classes of Statutes in the construction of which questions of this kind have frequently arisen. In the first class the fact the offence is of a public nature - Cole v Coulton (1980) 2 El & El 695 [121 E.R. 261]; Sargood v Veale (1891) 17 V.L.R. 660; Lizars v Sabelberg (1905) V.L.R. 608 - or that the Legislature has shown that it intended it to be dealt with as an offence of a public nature by providing that it be heard in the ordinary manner and before the ordinary tribunals (R v Stewart (1896) 65 L.J M.C. 83), has led the Court to the conclusion, in the absence of some fairly plain indication to the contrary, that any member of the public may prosecute. In the second class the destination of the penalties or the nature and description of the offence, as one in which only certain persons or bodies, or certain classes of persons are interested, has resulted in a decision that the information must not be in the name of any person other than one of those indicated. In these cases, if nothing more appears, the information must be laid or exhibited by, or must at least show on its face that it is laid at the instance and with the authority of the persons or one of the persons interested: …The third class differs from the second in that the Legislature has, by further or other provisions, shown an intention that an officer or employee, or it may be a person authorized for the purpose, may lay an information in his own name, though for the benefit of the person or persons interested" (at 173-174).

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19 To similar effect was the judgment of Ferguson J in Gilmour v Bastian (1918) 34 WN (NSW) 239. That matter arose out of a municipal election where the point was taken that the prosecution had not been authorised by or on behalf of the council. His Honour expressed the view that the issue depended upon the provisions of the Fines and Penalties Act and then stated: So in every case where a penalty is imposed by an Act it is necessary to look at the Act to see first: whether the right to sue for the penalty is expressly given to any person, and secondly, whether the Act makes any specific direction for the appropriation of the penalty. Now, Section 191 of the Local Government Act provides that penalties imposed by the Act or ordinances, may be recovered in a summary way before any two justices. It says nothing about the person who may sue for a penalty, but it goes on to provide how the penalty shall be appropriated; it "shall, when recovered be paid to the council …". It follows the exact words of Section 5 of the Fines and Penalties Act; it uses the same expression, "when recovered, shall be paid". So that, if there were nothing else in question, it would be clear that as the right to proceed for the penalty is not expressly given to any person by name or designation it might be sued for by any person whomsoever, although no part of the penalty when recovered was to go to him. But it is contended that there are other sections in the Local Government Act by which the right to proceed for a penalty is expressly given to some person by name or designation. Section 193 has been referred to, but I do not think it touches this question. It assumes that the council has taken proceedings of some sort, and then simply makes the necessary incidental provision as to those proceedings … So I think the Fines and Penalties Act is conclusive on the question, and that this penalty may be recovered by any person who choses to proceed for it, although when it is recovered the amount is to be paid to the council (at 240-241). It is to be noted that the judgment was affirmed on appeal ( Gilmour v Bastian (1917) 24 CLR 14).

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20 The terms of s 48 require the written consent to be given before the proceedings are instituted. This was said to be consistent with the judgment of the Full Federal Court in Traveland Pty Ltd v Doherty (1982) 63 FLR 41 at 46. The Full Court also noted that the sub-section there under consideration made no express provision as to the form the consent should take or as to the detail or particularity with which the proceedings must be identified. Similarly, in Ex parte Smith (1918) 35 WN (NSW) 54 Ferguson J dealt with an objection after conviction that the prosecution was not taken with the written consent of the Attorney-General or the Minister for Defence or a person authorised in writing by the Attorney-General or the Minister for Defence. In that case, there was no evidence that the prosecutor had the written authorisation of the Attorney-General or the Minister. In relation to the intention and operation of such a provision, Ferguson J stated: I think that the intention of the Act was to prevent unauthorised and possibly malicious proceedings by irresponsible persons. It has been contended that as the Act does not provide that the written consent must be given before the proceedings are instituted it is sufficient if the Attorney-General or the Minister for Defence adopts the proceedings at any time before the hearing. I think that would defeat the object of the section, and, in my opinion, the consent must be obtained before the prosecution is instituted. On appeal to the High Court, that approach was upheld in McDonnell v Smith (1918) 24 CLR 409. It is of interest that the court endorsed the cases referred to by Rich J during argument. Rich J is noted as stating that the necessity for getting the prescribed consent to a prosecution was a check on irresponsible persons who might heatedly, although from patriotic motives, institute proceedings. The mischief aimed at by the sub-section was the harassing of people by frivolous prosecutions. He then asked: "Must not the initial stage of the proceedings be sanctioned by some responsible person?" (at 411).

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25 In Shulz v Virgin (1966) SASR 94, Walter AJ was dealing with provisions of the South Australian Health Act which permitted proceedings to be instituted with the authority of the Central Board of Health or the local Board of Health for a particular district. The section provided that the authority could be either general or particular and may be proved by the production of the authority in writing under the hand of the Chairman or the Secretary of the Board. Walters AJ stated that clearly the intention of the legislature in enacting this provision was to restrict the operation of the general rule that any person may lay a complaint or information for an offence against a legislative provision for the benefit of the general public, independently of any authority from the party or parties to whom the penalties are to be awarded. Applying the judgment in McDonald v Smith, his Honour accepted that the initial stage of the proceedings must be sanctioned by some responsible person. In this case, no evidence was adduced either by the inspector or in any other way which established that he was authorised to institute the proceedings. His Honour expressed the view that it was not proper to ask the justices to take judicial notice of the fact that the inspector was the proper officer of the Board: in any event, the mere identification of the respondent as the inspector of the local board did not prove that he was the officer of the board, nor did it prove that he possessed the powers which might or might not have been conferred upon him by the board. It was not appropriate to apply a presumption of regularity in relation to the institution of such proceedings as might properly be applied in England, where the justices' clerk is ordinarily a person who has qualifications as a barrister or a solicitor of the Supreme Court and whose function it is to advise justices on points of law. Such persons were called upon to satisfy themselves that the proceedings were properly commenced but his Honour hesitated to extend that presumption to every complaint received by Justices of the Peace in a country town where every summons is issued on a complaint. Finally, his Honour adopted the approach of Napier J in Bruce v Jarrett (1926) SASR 96: I may add that the necessity for due proof of the required forms of procedure arises as a matter of law … The Court cannot control the exercise of discretions conferred upon the Board, and forms of procedure do not necessarily ensure the exercise of a sound discretion; but the Court can and should insist on being satisfied that the Board has gone through the forms which, if attended to, would remind it of its responsibility.

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27 The Full Court of the Queensland Supreme Court in Dever v Creevy, ex parte Creevy (1992) 1 Qd.R 232 gave consideration to a question of the authority to take a prosecution in circumstances where the authority was not tendered in the Local Court but was before the Full Court on appeal, "for all purposes". The Fair Trading Act provided that proceedings for an offence against the Act "shall not be instituted without the Commissioner's consent first had and obtained". Before the Magistrate, the point was taken that the authority of the prosecutor had not been proved. The Magistrate noted that there appeared to be on the file an authority by the Commissioner to commence the proceedings although it was not known how it came to be on the file: senior counsel for the defendant objected to it being tendered in the proceedings. The document was not tendered in the proceedings before the Magistrate and counsel for the prosecutor relied on the provisions of the Evidence Act that the authority of any person to take any proceedings shall be presumed unless the contrary is proved. The Full Court, nevertheless, held that where an issue as to the existence of a requisite consent to prosecute was raised then the prosecution was obliged to prove it if its case was not to fail. The matter was resolved on appeal, however, because of the court's power to consider new evidence: the document was tendered in the appeal proceedings and was accepted by counsel for the appellant as being before the court "for all purposes". 28 Dever v Creevey provides a particular example because of a specific statutory power, whereby an authority not proved at first instance may be proved on appeal. McPherson ACJ gave a brief history of provisions requiring consent or authority before proceedings could be instituted, noting that provisions in a similar form had been in use "for a very long time". His Honour noted that during and after the Revolution of 1688 criminal informations were much abused in England and that, in 1692 by statutory provision, the filing of private informations were prevented except by express order of the court. In England a further enactment was necessary to restrict the power of private individuals to prefer a Bill of Indictment before a Grand Jury. In Knowlden v The Queen (1864) 5B. and S. 532; 122 E.R. 930, the Court of Queens Bench held that it was not necessary for the requisite consent to be averred in the indictment and left to the jury at trial to decide as a question of fact whether such authority existed. In R v Waller (1910) 1 K.B. 364, 367, the Court of Criminal Appeal held that the prosecution was not called upon to prove the consent of the Director of Public Prosecutions as part of its case before the jury; the matter would not arise unless objection was taken by the accused, in which event it was a question "in each particular case as to the evidence that the court would require to satisfy itself whether there is any ground for the objection". His Honour considered a variety of authorities, many of which were referred to in the current proceedings, and then concluded: The decisions are by no means easy to reconcile. It is, however, clear that if the requisite consent has not in fact been given before proceedings are instituted, and the omission to obtain it emerges in the course of the case, the prosecution must fail: ex parte Stuart; re Mead (1930) 47 WN (NSW) 60; Timaru Transport Co Ltd v Ministry of Transport [1980] 2 NZLR 638, 647. … It is, I think, also clear from the decisions in that and other cases that the requisite consent is not to be considered as in the nature of an element of the offence. It is one of procedure: Price v Humphries [1958] 2 Q.B. 353; Turner v Tsaousis (1974) 7 SASR 488 …(at 236).

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31 In Palos Verdes Estates Pty Ltd v Carbon (1992) 6 WAR 223, the Full Court of the Supreme Court of Western Australia gave consideration to the Minister's consent to commence a prosecution in circumstances where the consent was not before the court but a letter to the Crown Law Department purportedly signed by the Minister, stating that he had consented to the prosecution some months previously. In dealing with how a signature of an authorising person may be proved, Malcolm CJ referred to R v Turner [1910] 1 KB 346 where the Court of Criminal Appeal was asked to consider how the consent of the Director of Public Prosecutions should be proved. In that case, Channell J, giving judgment for the court, said: In our opinion, without laying down a general rule as to what would be necessary in every possible case, it would be sufficient if some person who has been in correspondence with the Director of Public Prosecutions gives evidence to the effect that he received the document in the ordinary course of correspondence and believes it to be signed by the Director of Public Prosecutions (at 357-358). The Chief Justice then noted that, generally, the necessary consent is given either by signature of a form of consent as in Berwin v Donohoe and Turner or by endorsement of the consent on the complaint or information itself as in Holland v Jones (1917) 23 CLR 149. Speaking of the purpose of such provisions, the Chief Justice said: The purpose of provisions requiring the consent of the Attorney-General or a Minister to the institution of a prosecution is to ensure than no-one is harassed by a frivolous prosecution and that the prosecution is sanctioned by a responsible person: see McDonnell v Smith (1918) 24 CLR 409 at 411, per Rich J, in argument which was adopted by the court in dismissing the appeal (at 412). The Attorney-General or the Minister is under a duty to examine the facts and make a decision whether or not to consent to or authorise the prosecution as "an official act". Any challenge to the fact that he had may result in the prosecution being required to prove that he had …(at 229). The Chief Justice concluded that a statement by way of instructions by letter informing the Crown Law Department that a consent was given earlier was not itself a "consent" for the purposes of the Act - I would have no difficulty in holding that a form of consent for the purposes of Section 114(1)(a) purporting to be signed by the Minister and contained in a separate document or endorsed upon the complaint would constitute the signature an 'official signature' and the document an 'official document' within the meaning of Section 56(b) of the Evidence Act. In the present case, however, we have a "statement" in the form of a letter addressed to the Crown Law Department stating: 'This is to advise that in October 1989 I gave the Chief Executive Officer … consent to proceed with prosecution …". Thus the statement is an out of court statement relating to the fact of consent. As such, it is, on the face of it, objectionable on the ground of hearsay if it refers to an oral consent. If it refers to a consent in writing it is objectionable on the ground that it is secondary evidence of a document without proof that the document is unavailable because it has been lost or destroyed. I appreciate that the consent referred to in Section 114(1)(a) is not one which is necessarily required to be in writing (at 231).

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33 In the light of these authorities, the following submissions were made on behalf of Dartbrook - (a) The Occupational Health and Safety Act 1983, which created the offence, breach of which is alleged in the present proceedings, excluded the general common law rule and limited the right to institute proceedings for an offence against the Act or Regulation. (b) The consent in writing of the Director General of the Department of Mineral Resources (the relevant prescribed officer) was required for the institution of the present proceedings - s 48(1)(a) of the Act and Clause 3 of the Occupational Health and Safety Administration Regulation, 1992. (c) The procedure in summary proceedings before the Commission in Court Session is governed by s 168 of the Industrial Relations Act 1996. That section applies the Commission's rules in lieu of the rules made under the Supreme Court Act. (d) Rule 217B requires that proceedings be commenced by application for an order stating "the capacity in which the prosecutor is taking the proceedings". (e) The normal practice of the Department is for the Director General, Mr Coutts, to sign a formal "consent to institute proceedings" naming the person to whom such consent is being given. (f) The application filed on 27 March 2001 alleged that Rodney Morrison was 'a person who has received the written consent of the Director General of the Department of Mineral Resources to institute this prosecution under s 48 of the Occupational Health and Safety Act 1983 …' . (g) An affidavit in support of the application averred that Mr Morrison was "empowered under s 48 of the Occupational Health and Safety Act 1983 to institute proceedings in this matter". No further detail was provided. (h) No "consent to institute proceedings" in accordance with the Department's normal practice was executed. Instead, the prosecution relies upon a "confidential" internal memorandum dated 20 March 2001, containing a large amount of material claimed to be privileged, which concludes with the recommendation that a prosecution "be initiated by the Department". The recommendation was endorsed "approved" by the Director General on 26 March 2001. This memorandum does not constitute a written consent for Mr Morrison to institute proceedings in his own name. (i) In accordance with the general law and the requirements of the Commission's rules, when read together with s 48(1)(a), it is clear that any written consent to institute proceedings under s 48(1)(a) had to authorise the prosecutor personally before the proceedings could be instituted by him - this accords with the Department's normal practice. (j) The application for an order proceeded expressly on the false premise that Mr Morrison was "a person who has received the written consent of the Director General" presumably upon the assumption that the normal and necessary steps have been taken. (k) The premise upon which the proceedings were commenced is, upon examination, unsustainable. The necessary element for the validity of the proceedings is missing. The pre-conditions set by s 48(1)(a) is not, in fact, satisfied. No written consent to the institution of the proceedings by Rodney Morrison was ever given. (l) The oversight is incurable. It cannot be remedied by reference to the memorandum of 20 March 2001 which read at its highest, provides a general internal approval to proceed to prosecution action by the Department but does not itself satisfy the remaining formal steps which needed to be taken, including that the Director General give his consent to the prosecutor in writing prior to the institution of the proceedings .

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35 Dartbrook relied on transcript of proceedings before Kavanagh J and a bundle of forms, whereby the Director General had consented to certain prosecutions being commenced by Mr Morrison, as establishing a standard practice within the Department. It was submitted that the issue in this case was whether a document which did not conform to that standard practice was capable legally of being regarded as consent to institute proceedings. It was accepted that the practice might have no statutory or regulatory status and, while it was an administrative practice, it: (a) accorded with the law and legal requirements to commence a prosecution; (b) it could be contrasted with the purpose of the memorandum which is relied upon in this case. The Department had a practice for the purpose of giving consent to the institution of proceedings - that was different from the memorandum relied upon in this case and the memorandum did not have that purpose. 36 The Director General's memorandum was no more than an internal document acknowledging that the matter might proceed to prosecution and in that sense was similar to the memorandum of 21 February which contained a recommendation for prosecution although it was not relied upon as proving the authority under s 48 of the Act. The February memorandum was a recommendation to proceed with the prosecution subject to the advice of counsel - the March memorandum was entitled "A Progress Report". It was said that the memorandum of 20 March was one of a series of internal memoranda which result ultimately in the Director General being satisfied that the matter is sufficiently developed and that proceedings can be commenced but it represented no more than internal approval for the continuing of the further steps which then became necessary, namely, that there would need to be executed formal consents and documents prepared and lodged in the Commission. The document contained privileged material and was clearly unintended to satisfy the provision of a document to meet public scrutiny if required to become available.

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61 It is appropriate to commence the task of answering these questions of construction by considering what the courts have said about the object of provisions which require consent, authority, approval or like terms in order that a prosecution may be taken or continued. Legislatures, over the years, have used a variety of descriptions, but to the same effect (Kemp v Gough & Gilmour Holdings). The necessity for consent is a check on irresponsible persons who might heatedly, although from patriotic motives, institute proceedings: the mischief aimed at by such sections is the harassing of people by frivolous prosecutions thus requiring proceedings to be sanctioned by some responsible person (per Rich J in McDonnell v Smith (1918) 24 CLR 409 at 411); the object of such a provision is that no one should commence a suit or lay an information unless directed to do so by the nominated body, be it the council, a by-law committee or the mayor (Ex parte Wright Heaton & Co (1895) Vol XII WN (NSW) at 11); the intention of such a provision is to prevent unauthorised and possibly malicious prosecutions by irresponsible persons (Ex parte Smith (1918) 35 WN (NSW) 54); the general purpose to be served by such a provision is to prevent frivolous or vexatious proceedings (McConnell Dowell Constructions (Aust) Pty Ltd v Environmental Protection Authority [2000] NSWCCA 367 at paragraph [11]; such provisions have a purpose of preventing busybodies from bringing trivial complaints and to protect persons from being charged unless a responsible officer considers it appropriate (per Thomas J in Dever v Creevy; ex parte Creevy (1992) 1 Qld.R 232, adopting the Full Federal Court in Traveland v Doherty (1980) 63 FLR 41 at 46); the prosecution must be sanctioned by some responsible person and the court is to be satisfied that the board has gone through the forms which would remind it of its responsibilities (Shulz v Virgin (1996) SASR 49, adopting Bruce v Jarrett (1926) SASR 96); and, when considering consent to a prosecution, the Attorney-General is under a duty to examine the facts and to make a decision whether or not to consent to or authorise a prosecution (Palos Verdes Estates v Carbon (1992) 6 WAR 223 at 229). The importance of this line of authority is that the emphasis is upon avoiding frivolous or vexatious prosecutions and ensuring that proper consideration is given to allowing a prosecution to commence: these are broad and general considerations and, importantly, do not direct attention to compliance with administrative steps, nor are such administrative steps deemed to be necessary as a matter of principle in order that there be a valid consent.

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As pointed out by the Full Federal Court in Traveland in relation to a similar provision, there is no express provision as to the form of the consent or as to the detail or particularity with which proceedings must be identified. In Australia, it has long been established that authority to prosecute in general terms will be sufficient where the statutory provision is itself in general terms. (see, more recently Water Board v Environment Protection Authority (1994) 83 LGERA 174 at 179). Thus, in Berwin, an authority in the following terms was held to be effective: The Attorney-General of the Commonwealth hereby consents to a prosecution being instituted against Arthur George Berwin for an offence against the Trading against the Enemy Act. Of this provision, Isaacs J said: No one other section than Section 3 requires such consent and the presumption is that the consent was given with reference to Section 3. No other prosecution or offence or challengeable conduct on the part of Berwin within the purview of the Act is suggested. In short, there is nothing but the present set of circumstances to which, so far as it appears, the consent could possibly have reference, and the consent was entrusted to the Crown officer Donohoe actually prosecuting in this particular case. But if it is to be presumed that the Attorney-General has done his duty in examining the circumstances of this case, his consent in the terms in which he has given it is sufficient. And that is the conclusion to which I come. If that is not to be the presumption, the written consent is to be treated as a memorandum under the Statute of Frauds, it would be disastrous. A complicated set of circumstances may be reviewed by the Attorney-General, and his consent to a prosecution under the Act may be given in general terms leaving to it to the Crown Solicitor to formulate the charge. If the precise form of a charge were necessary to be stated, then the provisions of the Justices Acts and the Crimes Act permitting amendments and guarding against the old fatalities for variances would be inoperative. If the defence definitely challenges the fact that the Attorney-General has examined the facts of that particular case, the prosecution may be put to prove that he has; but, as I say, no such challenge was made here. The objection was merely as to the form of the documents (at 26 - 27). In relation to this form of authority given by the Attorney-General, Higgins J stated: It is said that this consent is not sufficiently specific, does not specifically refer to this particular prosecution. It is not pretended that there is any other prosecution to which it could possibly refer. There is only one offence specified in the information, an offence under Section 3 (see Acts Interpretation Act 1904, Section 8); and there is no offence mentioned in the Acts that requires the consent of the Attorney-General except an offence against Section 3. It is quite true that the words and the written consent might also be applicable to some other offence than that specified in the information; but the words are distinctly applicable to that so specified … Inasmuch as the prosecution in this case answers the description of the prosecution to which consent has been given, it is not necessary for the prosecutor to give evidence identifying the former with the latter. It is for the accused to rebut the presumption that the consent refers to this prosecution (Seewall v Evans; Leake on Contracts, 5th Ed. p 137). It is for the accused to show that the written consent which on its face and without any straining of words, can fit this prosecution, does not relate to it (and see R v Metz). Even if there were two prosecutions to which the consent would be equally applicable, evidence would be admissible to show to which the consent is applicable; the consent would not be a bad consent. There would be a sufficient description even if evidence had to be given to show to which prosecution the consent referred (Shardlow v Cottrell; Plant v Bourne). (at 28-29).

[78]

69 In resolving this issue, I have been guided by the judgment of French J in Commissioner of Taxation v Citibank Ltd (1989) 20 FCR 403. In that case, the Full Court of the Federal Court was considering provisions of the Income Tax Assessment Act whereby the Commissioner or a person authorised by him had full and free access to all buildings, places, books, documents and other papers for any purpose of the Act. A simple form of authority given by the Commissioner was, at first instance, held to be invalid. The Full Court overturned that finding and, in particular, French J considered whether an authorisation must be directed to a specific proposal to enter some building or place and examine documents therein. His Honour expressed the view that the verbiage of the section contemplated the existence of an authority in general terms, and continued: A judicial requirement for such authorisation involved the imposition of a procedural safeguard on the exercise of the Commissioner's power. The concept of curially imposed procedural safeguards is not entirely novel. Rules of natural justice are an obvious example. In my opinion, however, it is not open to the Court in the present case to create a new category of rules which would impose a procedural fetter on the exercise of this quite 'wide' statutory power in order to ensure that its repository gives due regard to common law rights. It follows from the above that the written authority to be produced on demand pursuant to s 263(2) will constitute proof of a general authorisation if it contains a statement by the Commissioner that the officer is so authorised. There can be no superadded requirement that it show on its face the premises to be searched and the books, documents and other papers which are the subject of the search. In this regard, the approach which would generally require these details to be shown reflects the imposition of ancillary procedural rules that cannot be found in the language of the section. … in the context of Section 263(2) the only relevant question is whether each of the authorisations constituted "an authority in writing signed by the Commissioner stating that the officer was authorised to exercise powers under this section". As to the first point, the fact that the authorisations refer to the exercise of powers under other Acts does not alter their character for the purposes of s 263(2). (at 434).

[81]

72 It is also erroneous to suggest, as put by the defendants, that only a "person" can be given an authority to prosecute under s 48(1)(a), as a matter of general legal principle quite apart from the construction of s 48. As already mentioned, the Full Federal Court in Barton v Croner Trading Pty Ltd (1984) 3 FCR 95, allowed an authority granted by one Minister to another Minister, without naming that Minister, and rejected an attack that an authority so granted did not comply with the statutory provision by not granting the authority to "a person". The attack that an authority had to name a particular Minister and could not be ambulatory, was rejected. I have pointed out earlier in this judgment that on its proper construction the terms of s 40(8)(1)(a) does not require the grant of a consent "to a person" - it merely requires that there be consent to the prosecution. On a consideration of the numerous cases which have been canvassed in this matter the defendants' proposition as a matter of legal principle or logic fails. This is especially so once it is accepted that: (a) a general authority is valid and effective; (b) no particular form of consent or authority is required; (c) the detail or particularity of the proceedings need not be identified; (d) it is not necessary to allege all the elements of the offence in the consent; (e) a signature of a form of consent is sufficient; (f) the consent or authority may be contained in a separate document to the information or summons; (g) a general authority is not invalid as amounting to an impermissible delegation; (h) all that is required is the signature of the designated person in order to institute the proceedings; (i) that the holder of an office, from time to time, is effective in nominating a person who may take a prosecution; (j) it is erroneous to impose superadded conditions and administrative requirements upon a general consent; (k) the presumption is that the designated officer granting the authority has performed his duties; and (l) the authority or consent to prosecute is a matter of procedure as is the issue of a summons - then it is impossible to see why the consent must name the person who is to prosecute the case to which consent had been given. While it might offend a tidy mind that a consent under s 48(1)(a) of the Act does not name the person to undertake the prosecution, the section simply does not require it - as dealt with earlier in this judgment the object of this type of consent provision is to ensure that a responsible person considers the matter and that unreasonable or vexatious prosecutions are not commenced. 73 The defendants then argue that the purpose and intent of the memorandum of 20 March 2001 was not to grant a consent to a nominated person to commence a prosecution. The memorandum was said to be no more than a decision to commence a prosecution with the intention that the usual documentation and standard form of consent nominating a specified officer, usually Mr Morrison from the Department, as the person to take the proceedings. In this respect, it is again to be recalled that in Traveland the Full Federal Court held that a general provision like s 48 of the Act does not preclude a consent to the institution of proceedings being worded in general terms with the identification of the precise offence, the particular wording of the charge and the content of any particulars being left to those responsible for the actual institution and conduct of the proceedings. The court there contemplated that not only the particulars of the charge but also the persons responsible for the actual institution and conduct of the proceedings need not form part of the consent for the consent to be valid. Similarly, in Berwin the prosecutor does not seem to be named in the general authority which the High Court considered to be valid.

[82]

74 In my view, this particular challenge is to be decided by reference to the substance of the memorandum of March 2001 rather than being diverted by its form as an internal memorandum apparently crippled, so the defendants would have it, for the purposes of s 48 of the Act by containing "evidentiary material". It is well established and accepted that courts will look to the substance of a matter rather than its form to determine its character (Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 per Brennan J at 610) noting the difference between the substance of an action as distinct from its form as recognised in Krishna Behari v Brojeswari Chowdranee (1875) LR 2 IndApp 283; and in an industrial context, in Re Water and Sewerage Employees - Wages Division (Metropolitan) Award and ors. (1983) 4 IR 67 at 72). Indeed, in Traveland, the Full Federal Court stated that the conclusion they had reached was that the proceedings were, in nature and in substance, proceedings to the institution of which the Minister had given his written consent (at 49). More recently, the Full Court of the Commission in Court Session, in Workcover Authority of NSW v Lucon (Australia) Pty Ltd [2002] NSWIRComm 68, has added to this line of authority. At paragraph 60 of the judgment the Full Court stated that "an application for summons" under the Rules might appropriately be considered as an available method prescribed by the Rules for an application for an order under the Summary Jurisdiction Act - The effect of an order under s 4(1)(a) is, in substance, and in effect, 'to summon' or 'to summons' the person nominated to appear before the Court. The use therefore of the word 'summons' and not 'order' is of no consequence. It is trite that the law will usually look to the substance rather than the form of the transaction and procedures to decide validity. Of particular significance to the present debate is the conclusion stated by the Full Court at paragraph 66 - In any case, an objective consideration of the applications for summonses and the accompanying affidavits makes clear that they were applications for orders within the meaning of s4(1)(a) of the Summary Jurisdiction Act. The character of the documents is to be determined by considering their substantive character rather than by focussing on the manner in which they may be titled or upon the prosecutor's subjective intentions: The Queen v Loewenthal; ex parte Blacklock (1974) 131 CLR 338 at 345 per Mason J; Minister for Youth and Community Services v Health and Research Employees Association of Australia, NSW Branch (1987) 10 NSWLR 543 at 549 per Kirby P; and see also Taylor v Environment Protection Authority 50 NSWLR at 55-56 and Coulson v T Lambert Pty Ltd [1976] AR NSW 45 at 46.

[83]

75 In this case, the evidence discloses consideration on two occasions by the Director General of whether prosecutions should be commenced against the defendants. The February memorandum accepted that there was a case against the defendants and that prosecutions should be commenced subject to further consideration, apparently by legal representatives. The second memorandum of March 2001 contained considerable detail concerning the fatal accident and concluded with a recommendation to the Director General that prosecutions should be commenced against the defendants. The memorandum, in terms, sought the approval of the Director General to commence the prosecution. The memorandum served no other purpose and that purpose is clear on its face and was not materially altered by being labelled a "progress report". The memorandum itself did not contemplate that approval by the Director General would be subject to some further step such as the signing of a standard form of consent, such that only when that step was taken was it contemplated that authority was given for the prosecutions. The Departmental practice relied upon by the defendants demonstrates that there was a well understood process: Mr Morrison convened the Review Committee; the Review Committee considered each case where prosecution action under the Act was possible; if the Review Committee formed the view that prosecution action was warranted it would set out the facts and the reasons why the Committee had reached that view; the recommendation would then be sent to the Director General; if the Director General approved of the recommendation, steps would be taken to draw the appropriate charge within the Department and Mr Morrison, acting as prosecutor, would institute proceedings in the appropriate place. In Mr Coutts' evidence before Kavanagh J, he made it clear that when he received the recommendation of the Review Committee that was the point at which a decision was made. If he accepted the recommendation then he would approve the prosecution being initiated in the Commission. In my view, it is at this point, when the Director General signs the recommendation approving the prosecution, that consent under s 48(1)(a) is given. The standard form document used by the Department is subsequently signed and represents no more than evidence of the decision made by the Director General to consent to the prosecution.

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Cases Cited (29)