Whittens Pty Ltd v Judge Fong Lim & Anor [2021] NTSC 9

found Complaint was valid, the duplicity could be cured by Work Health

Authority electing the factual basis on which to proceed and could be

amended - order of certiorari sought - whether Complaint fails to identify

the duty alleged to be owed by the plaintiff - whether Complaint fails to

articulate reasonably practicable measures that should have been

implemented but were not implemented and fails to specify any measure was

reasonably practicable - whether Complaint fails to set out that an

individual was exposed to risk of serious injury or death due to alleged

breach of duty - whether particulars of Complaint are prolix, illogical and

so uninformative that legal and factual elements of offence cannot be

discerned from particulars of Complaint - whether Complaint cannot be

amended because invalid and limitation period expired - whether Complaint

bad for duplicity - whether amended Complaint suffers same defects as

Work Health and Safety (National Uniform Legislation) Act 2011 (NT) ss 12A, 19, 28, 32, 232

Local Court (Criminal Procedure) Act 1928 (NT) ss 22A, 55, 163, 164, 181, 183

Baiada Poultry v Glenister [2015] VSCA 344; Kirk v Industrial Court (NSW) (2010) 239 CLR 531; R v Commercial Industrial Construction Group Pty Ltd [2006] VSCA 181; (2006) 14 VR 321; S Kidman & Co Ltd v Lowndes [2016] NTCA 5; (2016) 314 FLR 358, applied.

Bunnings Forest Products v Shepherd [1998] WASCA 199; Chugg v Pacific Dunlop Ltd [1990] HCA 41; (1990) 170 CLR 249; Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163; Diemould Tooling Services Pty Ltd v Oaten [2008] SASC 197; (2008) 101 SASR 339; Director of Public Prosecutions v JCS Fabrications Pty Ltd [2019] VSCA 50; Director of Public Prosecutions v Kypri [2011] VSCA 257; (2011) 33 VR 157; Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd [2016] VSCA 55; (2016) 49 VR 676; Doja v R [2009] NSWCCA 303; (2009) 198 A Crim R 349; Harrison v President of the Industrial Court of Queensland [2016] QCA 89; Industrial Court in Kirk v Industrial Relations Commission (2010) 239 CLR 531; John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42; (1987) 163 CLR 508; Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467; NK Collins Industries Pty Ltd v President, Industrial Court (Qld) [2013] QCA 179; [2014] 2 Qd R 304; Orr v Hunter Quarries Pty Ltd [2019] NSWDC 634; S Kidman & Co Ltd v Lowndes (2015) 36 NTLR 103; S v R [1989] HCA 66; (1989) 168 CLR 266; SafeWork NSW v The Austral Brick Co Pty Ltd [2018] NSWDC 387; Step v Atkins [2008] NTCA 5; Work Health Authority v Whittens Pty Ltd & Kawasaki Heavy Industries Ltd [2020] NTLC 12, referred to.

First Defendant: Solicitor for the Northern Territory

Second Defendant: Solicitor for the Northern Territory

Whittens Pty Ltd v Judge Fong Lim & Anor [2021] NTSC 9

• [1] In a pre-trial hearing in the Local Court, the plaintiff argued that the complaint ('Complaint') made by the second defendant on 1 November 2019 against the plaintiff was invalid, could not be amended to cure the invalidity as the limitation period for commencing proceedings had expired and, in the alternative, was bad for duplicity.
• [2] The Complaint charges the plaintiff with an offence against s 32 of the Work Health and Safety (National Uniform Legislation) Act 2011 (NT) ('WHS Act') following the workplace death of an employee of the plaintiff ('the deceased') on 29 November 2017 ('the death').
• [3] On 24 November 2020, the first defendant (sitting as the Local Court) determined that the Complaint was valid and could be amended and that the Complaint's duplicity could be cured by the second defendant making an election as to the factual basis upon which it would proceed. The plaintiff has sought judicial review and an order in the nature of certiorari quashing the decision of the first defendant. The plaintiff has also sought an order that the Complaint be dismissed.
• [4] The grounds upon which the plaintiff's motion is based are set out in its originating motion filed on 5 November 2020. The first defendant has not taken any active role in the proceedings. The second defendant has defended the validity of the Complaint and resists the orders sought by the plaintiff.

• [5] The plaintiff seeks judicial review of the Local Court's decision, rather than appealing therefrom, because ss 163 and 164 of the Local Court (Criminal Procedure) Act 1928 (NT) ('LCCPA') limit the right of a party to appeal from the Local Court to the Supreme Court to an appeal from "a conviction, order, or adjudication" of the Local Court. An appeal under these provisions only lies against a final order, not an interlocutory order.[1] An order that a complaint may be amended and proceeded with is an interlocutory order, not a final order.[2]
• [6] In S Kidman & Co Ltd v Lowndes [2016] NTCA 5; (2016) 314 FLR 358 ('Kidman'), the Court of Appeal observed (at [132]) that a relevant function of a valid indictment is to confer jurisdiction on the court.[3] The Court therefore accepted (at [132]) that proceeding to determine a charge and enter a conviction on an invalid indictment would amount to jurisdictional error and ground the grant of prerogative relief. The Court observed (at [131]) that an error on the part of an inferior court comprised of a mistaken assertion or denial of the existence of jurisdiction would be a jurisdictional error,[4] as would purporting to exercise jurisdiction where an essential condition to its existence in a particular matter had not been satisfied.
• [7] The focus of the application for judicial review must be the order made by the Local Court, rather than its reasoning.[5] The Local Court dismissed the plaintiff's application for the Court to strike out the Complaint and allowed the second defendant's application to amend the Complaint in the form of the proposed amended Complaint. The references to the Local Court's reasoning below is made in passing and cognisant of its proper place in this proceeding.
• [8] If it is a jurisdictional error to determine and convict on an invalid indictment (which it plainly is), it can be accepted that it is a jurisdictional error not to dismiss an invalid complaint, but instead to allow it to be amended outside the limitation period.
• [9] The plaintiff argued that the Local Court's order permitting amendment to the Complaint and the finding that the duplicity in the Complaint could be addressed by the prosecution's election also comprised jurisdictional errors. In Kidman (at [132]), the Court of Appeal doubted whether such orders could comprise jurisdictional errors, as opposed to errors within jurisdiction, but found no error in any event.
• [10] The plaintiff argued that the order permitting amendment was a jurisdictional error because the proposed amended Complaint was invalid. It also argued that the Complaint is so duplicitous that it is impossible to identify the necessary legal and factual ingredients of the charged offending, such that it is invalid. I will address those matters in due course but it is sufficient to say at the outset that, as they are founded upon the invalidity of the process charging the offending conduct, they may also be accepted to invoke the issue of jurisdictional error.

• [11] This ground alleges that the Complaint is invalid as it fails to identify the duty alleged to be owed by the plaintiff under s 19 of the WHS Act.
• [12] Section 32 of the WHS Act provides that a person commits a Category 2 offence if: (a) the person has a health and safety duty; (b) the person fails to comply with that duty; and (c) the failure exposes an individual to a risk of death or serious injury or illness. The term "health and safety duty" is defined to mean a duty imposed under Part 2, Division 2, 3 or 4 (s 4). Part 2, Division 2 contains s 19.
• [13] Section 19(1) imposes a duty on a person conducting a business or undertaking[6] in relation to the health and safety of: (a) workers engaged, or caused to be engaged, by the person; and (b) workers whose activities in carrying out work are influenced or directed by the person, while the workers are at work in the business or undertaking. This is a duty to two classes of workers while the workers are at work in the business or undertaking.[7]
• [14] The term "worker" is defined by s 7(1), which provides that a person is a worker if the person carries out work in any capacity for a person conducting a business or undertaking, including work as an employee; a contractor or subcontractor; an employee of a contractor or subcontractor; an employee of a labour hire company who has been assigned to work in the person's business or undertaking; an outworker; an apprentice or trainee; a student gaining work experience; a volunteer; or a person of a prescribed class[8].
• [15] Section 19(2) imposes a duty on a person conducting a business or undertaking in relation to the health and safety of "other persons".
• [16] Section 19(1) is capable only of application to workers (as defined) and s 19(2) is capable only of application to persons other than workers.[9]
• [17] The Complaint does not expressly identify which of the s 19 duties (that under s 19(1) or that under s 19(2)) is alleged not to have been complied with.
• [18] To be valid, the Complaint must (relevantly) contain a statement of the specific offence with which the accused person is charged (s 22A(1), LCCPA), which is satisfied if the Complaint, either in the charge or in its particulars, gives the accused a reasonably clear and intelligible statement of the specific offence with which the accused is charged (s 181, LCCPA[10]).[11]
• [19] Where the offence alleged is against s 32 of the WHS Act, s 22A of the LCCPA (as qualified by s 181) requires specification of the relevant subsection of s 19 in the Complaint or some other wording of the Complaint which makes it plain, to a reasonable accused giving reasonable consideration to the words of the Complaint in the context, which subsection of s 19 is being invoked.[12] The sufficiency of the Complaint must be determined ex facie by reference to the terms of the Complaint itself.[13]
• [20] The Local Court held[14] that it was clear the Complaint was referring to the duty under s 19(1) because it refers to "worker" or "workers" and not to "other persons".
• [21] The formal charge in the Complaint identifies the health and safety duty under s 19 of the WHS Act as to ensure that the health and safety of "workers at work" is not put at risk from work carried out as part of the plaintiff's business or undertaking. It alleges that the failure to comply with this duty "exposed workers to whom the duty was owed" to a risk of serious injury or death.
• [22] The plaintiff argued that the use of the term "workers" in the Complaint is ambiguous because the Complaint particularises that, as well as the plaintiff's "workers" (who would fall within s 19(1)), there were persons present at the INPEX Onshore LNG Facility at Darwin ('INPEX construction site') to do work for or under the influence or direction of persons other than the plaintiff. That is, they were "workers" doing work at the site, but they were engaged by, or their work activities were influenced or directed by, some person outside of the plaintiff's business or undertaking. It was said that both:

(a) in the ordinary sense of the word "workers"; and

(b) in the technical sense of the word "workers" as used in the WHS Act, from the perspective of that other person,

those persons would be "workers", but they would, for the purposes of a charge against the plaintiff, fall within s 19(2).

• [23] The plaintiff argued that, in particular, paragraph 1 of the Complaint required an inference that there were persons doing work other than the employees of the plaintiff at the relevant work location. Paragraph 1 of the Complaint states that the plaintiff performed construction work as a subcontractor under a contract with Kawasaki Heavy Industries Ltd on the construction of the INPEX construction site. The plaintiff also pointed to many paragraphs of the particulars in the Complaint which refer to "workers".
• [24] To the extent that the plaintiff placed reliance on the fact that there were many workers (that is, persons doing work) present at the INPEX construction site, this is a fact outside the face of the Complaint, and as such cannot inform its proper construction for this purpose.
• [25] In my view, a reasonable accused giving reasonable consideration to the words of the Complaint in the context would understand the references in the Complaint to "workers" as a reference to those persons who work in the plaintiff's business or undertaking (and so are captured by s 19(1)) and not someone else's business or undertaking (who would be captured by s 19(2)). The plaintiff's duty to "workers" in their capacity as "workers" under s 19 is found in s 19(1) and is confined to those persons engaged by or whose activities are influenced or directed by the plaintiff and to their work in the plaintiff's business or undertaking. Other persons falling outside of that confined class are not, from the plaintiff's perspective, "workers". It is the plaintiff's perspective that matters because it is a charge against the plaintiff for breach of a health and safety duty owed by the plaintiff.
• [26] The language of the charge of the Complaint confirms this because it refers to the plaintiff having a health and safety duty in relation to workers at work and to workers to whom the duty was owed. In addition, the particulars of the Complaint allege that the plaintiff performed construction work, which was identified by the term "the Works" (paragraph 1), that in performing the Works, the plaintiff was a person conducting a business or undertaking (paragraph 2), that the plaintiff employed workers for the performance of the Works (paragraph 3), and that the plaintiff had a health and safety duty to workers employed by it for the performance of the Works (paragraph 4). The references in the particulars of the Complaint to "workers" thereafter would reasonably be construed as references to the workers mentioned in these initial paragraphs.
• [27] In my view, a reasonable accused would reasonably comprehend the language of the Complaint by reference to the language of the provisions of the statute under which the charge is brought, and would attribute to that language the statutory definitions of the words used. A reasonable accused charged with a breach of a statutory provision would reasonably construe the charge by reference to the terms of the statute, including defined terms.
• [28] By the terms of the charge and its particulars, the Complaint makes it plain which subsection of s 19 is being invoked and thereby satisfies the requirement of s 22A of the LCCPA to give the accused a reasonably clear and intelligible statement of the offence charged. Ground 1(i) is not made out.

• [29] These grounds allege that the Complaint is invalid as it fails to: (ii) articulate a specified measure that it is alleged was reasonably practicable and should have been implemented by the plaintiff but was not implemented; and (iii) specify that any measure referred to in the pleading was reasonably practicable.
• [30] The health and safety duty in s 19(1) of the WHS Act is to ensure, so far as is reasonably practicable, the health and safety of the workers referred to. The term "reasonably practicable" is defined by s 18 to mean that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including: (a) the likelihood of the hazard or the risk concerned occurring; (b) the degree of harm that might result from the hazard or the risk; (c) what the person concerned knows, or ought reasonably to know, about: (i) the hazard or the risk; and (ii) ways of eliminating or minimising the risk; (d) the availability and suitability of ways to eliminate or minimise the risk; and (e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with the available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.
• [31] To be valid, the Complaint must contain (relevantly) such particulars as are necessary for giving reasonable information as to the nature of the charge (s 22A(1), LCCPA), which is satisfied if the Complaint gives the accused a reasonably clear and intelligible statement of the factual manner in which the plaintiff's acts or omissions are alleged to constitute the specific offence, ie of the essential factual ingredients of the actual offence (s 181, LCCPA).[15]
• [32] The Local Court held[16] that the particulars in paragraph 13 of the Complaint were sufficient identification of the reasonably practicable measures the plaintiff could have taken in the circumstances to ensure the health and safety of the deceased.
• [33] In Kidman, the Court of Appeal held, in relation to the offence against s 32 of the WHS Act by reference to the duty in s 19, as follows (at [99]-[101]):

Where, as in this case, a criminal offence is created by reference to a duty to ensure so far as is reasonably practicable an outcome cast in general terms, the contravention of that statutory command can only be constituted by a state of affairs brought about as the result of an act or omission or a number of acts or omissions by the defendant.[17] The statutory requirement ... [to] provide reasonable information as to the nature of the charge ... will extend to the identification of the particular acts or omissions giving rise to the state of affairs constituting the contravention. In fact, a failure to allege in the complaint the act or omission said to constitute the offence may result in a conviction for which there was no jurisdiction.[18]

That requirement is not obviated simply because the legislation does not cast an onus on the defendant to establish particular excuses or justifications provided under the statutory scheme.[19] In either case the defendant must engage on the question of the existence or otherwise of the asserted act(s) or omission(s) and the question of reasonable practicability.

...[T]he terms of the complaint in this case ... go no way towards describing the act or omission said to constitute the relevant failure, the factual matters constituting the relevant risk, or the state of affairs the appellant is said to have failed to ensure in terms similar to the non-exhaustive formulations in subs 19(3) of the WHS Act. The complaint makes no attempt to identify what reasonably practicable measures the appellant could have taken in the circumstances to ensure the health and safety of the deceased.

• [34] Summarising the observations of the Court of Appeal in Kidman, the breach of duty comprising the element of the offence in s 32(b) of the WHS Act occurs upon a particular act or omission by the accused that gives rise to a state of affairs which is similar to what is described in the non-exhaustive formulations in s 19(3). The act or, most commonly, the omission can comprise a failure to undertake one or more reasonably practicable measures that would have eliminated or minimised the relevant risk to the health and safety of workers.
• [35] The plaintiff placed considerable emphasis upon the observations of the High Court in Kirk at [12] and [14], where the majority observed

that the generally stated duty in the New South Wales counterpart[20] to s 19(1) or (2) of the WHS Act is contravened when a measure should have been taken by an employer to obviate an identifiable risk; that the relevant provisions are contravened where there has been a failure, on the part of an employer, to take a particular measure or particular measures to prevent an identifiable risk eventuating; and that that is the relevant act or omission which gives rise to the offence. Further, the plaintiff emphasised the observations at [17] and [19], where the majority observed that the breach of the provision alleged to constitute the offence is "the measure not taken, the act or omission of the employer"; that the question as to what was or was not reasonably practicable for the employer to have undertaken is directed to the measures so alleged; and that it is the employer's act or omission with respect to those measures which had to be identified in the statement of any offence charged under the provisions.

• [36] The Court of Appeal's analysis in Kidman culminating in the passages cited in paragraph [33] above made reference to some of the High Court's observations in Kirk (see, for example, at [54]), but the focus of the analysis was on authorities dealing with similar procedural statutes to those applicable here, which were not the subject of the decision in Kirk. I do not read the Court of Appeal's observations to hold that the only way to ensure the validity of a complaint charging a breach of s 32 of the WHS Act is to specify the detailed actions which it was reasonably practicable for the accused to take. Nor is that how the High Court's observations in Kirk have been read. In Baiada Poultry v Glenister [2015] VSCA 344 at [48]- [49] ('Baiada'), the majority of the Victorian Court of Appeal (Ferguson and McLeish JJA) held as follows:[21]

It is plain that a charge under [the Victorian counterpart of s 32 of the WHS Act] must identify the act or omission which constitutes a contravention of the section. In our opinion, the reasoning in Kirk does not support the proposition that this requires specification of the detailed actions which it was reasonably practicable for the defendant to take. Kirk concerned a trial that had been heard and determined on the basis of charges which were particularised almost entirely in terms of the words of the statute, in circumstances were the onus of proof on the question of reasonable particularity lay on the defendant. Such particulars, as well as failing to inform the defendant of the substance of the charge, amounted in effect to little more than a statement of the statutory offence.

References in the plurality's judgment to 'particular measures' need to be read in that light. The fundamental requirement is that the act or omission that constituted the contravention be specified. Analysis of a failure to do so in terms of the need to specify a 'measure' or a 'particular measure' does not say anything as to the degree of particularity required. It serves, instead, to emphasize what is the relevant act or omission which gives rise to the offence, namely the measure or measures which the defendant has failed to take to prevent an identifiable risk eventuating. The convictions in Kirk stemmed from charges which wholly failed to identify any such measure. That sufficed to require the convictions to be set aside. Baiada's submissions sought to attribute too much significance to the plurality's use of the word 'measure'.

• [37] In that case, the charge-sheet that was held (at [54]) to be valid specified that the breach of the provision resulted from a failure to ensure that the processing line was not operating when it was being cleaned by the deceased, and to ensure that there was an adequate system to prevent contact with the processing line when it was being cleaned.
• [38] The plaintiff argued that the Complaint does not adequately identify the reasonably practicable measure or measures the prosecution says would have eliminated or minimised the specified risk to the health and safety of the workers. In particular, it argued that, firstly, the Complaint does not expressly or adequately identify anything as a reasonably practicable measure or action that should have been taken by the plaintiff to obviate the risk, and that, secondly, nor does it allege the plaintiff failed to take those measures, or to have those measures in place, which failure constituted the breach of duty in s 32(b). In my view, the plaintiff's arguments need to be considered cognisant of the observations of the Court in Baiada set out in paragraph [36] above.
• [39] The second defendant argued that the relevant risk is identified in paragraphs 11-12 of the Complaint, the reasonably practicable measures that should have been taken to eliminate or minimise the risk are identified in paragraph 13, and the alleged failures to take those measures are identified in paragraphs 17 to 24 (failures to enforce compliance with the safe work method comprised of the measures in paragraph 13) and paragraphs 25 to 38 (failures to remain in the work space and supervise the workers on the night of the death so as to enforce compliance with the safe work method).
• [40] Paragraph 11 of the Complaint states that, to do the work, the workers were required to work from mobile scaffold buggies attached to an overhead beam just below the roof of a tank which was filled with a substance called perlite to a depth of approximately two metres. Paragraph 12 states that if a worker fell from the scaffold buggy into the perlite they would almost certainly be completely engulfed by the perlite and would suffocate almost immediately, so the work exposed workers to a risk of serious injury or death. These paragraphs clearly identify the relevant risk to the health and safety of workers. So much was accepted by the plaintiff in oral submissions.
• [41] Paragraph 13 states as follows:

The actions required to be taken to eliminate or mitigate the risk of serious injury or death included:

1. a competent supervisor/leading hand to be available to ensure all personnel involved in the task understand their roles and responsibilities and confirm that all nominated isolations and permits are in place;
2. workers to never work alone in the Confined Space workspace[22];

1. workers to be wearing a harness with double lanyard at all times in the Confined Space workspace;

1. prior to entry into the Confined Space workspace one lanyard is hooked to the suspension cable or approved beam and must be in Fall Restraint. The second lanyard is to be attached to an approved anchor point prior to removing the first lanyard;
2. a Buddy check of equipment shall be conducted prior to entry into the Confined Space work space;
3. a qualified Sentry must be on duty at all times and maintain communications with all workers in the Confined Space work space;
4. the Confined Space Sentry shall:
   1. be aware of the hazards during entry and exit to the confined space, including information on the signs and consequences of exposure;
   2. be fully conversant with the roles, responsibilities and tasks of this position;
   3. be aware of possible behavioural effects of Hazard exposure in Confined Space Entries;
   4. notify Emergency Response Services (ERS) of entry and exit of the confined space at the start and completion of the work each shift;
   5. continuously maintain an accurate record of Confined Space Entrants in the confined space and ensure that all personnel are recorded entering and exiting the confined space on the Confined Space Entry/Exit Log Sheet;
   6. remain outside the confined space during confined space activities until relieved by another Confined Space Sentry and under no circumstances shall enter the confined space or attempt to rescue;
   7. communicate with Confined Space Entrants as necessary to monitor entrant status and to alert Confined Space Entrants of the need to evacuate the space if required.

• [42] The Complaint charges the plaintiff with (relevantly in relation to this issue) having a duty to ensure, so far as is reasonably practicable, that the health and safety of workers at work is not put at risk from work and with failing to comply with its duty, which failure exposed the workers to a risk of serious injury or death. It then, by particulars, identifies (in paragraphs 11-12) the risk of serious injury or death and identifies (in paragraph 13) "actions required to be taken to eliminate or mitigate the risk".
• [43] It is sufficiently clear, from both the introductory words to paragraph 13 and from its content, that the actions contained in paragraph 13 comprise the steps, actions or measures which the Complaint alleges would have eliminated or minimised the relevant (and earlier identified) risk. Essentially, the paragraph describes a safe system or method for the doing of the work which gives rise to the relevant risk.
• [44] There is no express allegation that the measures in paragraph 13 are "reasonably practicable". It is clear that a provision like s 19 places the onus upon the prosecution to show that the means which should have been employed to remove or mitigate a risk were practicable.[23] However, as the Victorian Court of Appeal held in Baiada at [23] and [28], the onus of proof is not determinative of the essential elements of the offence and what was required to be included in the Complaint. The plaintiff accepted (properly, in my view) that the absence of those specific words would not vitiate the charge. However, the plaintiff submitted that their absence has a dramatically negative impact on the ability of the plaintiff accused to understand what is alleged to be the act or omission the subject of the charge.
• [45] The plaintiff argued that paragraph 13 could be read as setting out measures which the plaintiff should have had in place, but did not have in place, or it could be read as setting out measures which the plaintiff had in place, but which were not complied with. The plaintiff's argument appeared to be that the former would have been a permissible way to charge an offence against s 32, but the latter was not because there was no identification of the act or omission of the plaintiff comprising the substance of the charge. The latter construction was said to be supported by the subsequent paragraphs which allege that certain employees did not do some of the things listed in paragraph 13.
• [46] The second defendant argued that paragraph 13 purported to do no more than identify measures which the plaintiff should have had in place to eliminate or minimise the risk, and that other paragraphs of the Complaint made the allegations about the plaintiff's non-compliance with or non-fulfilment of them.
• [47] In those following paragraphs, the Complaint:

(a) alleges that the leading hand was required to be present and supervise all personnel involved and ensure they understood their roles and responsibilities (paragraph 20);

(b) alleges that there were multiple occasions up to and including the night of the death on which workers did not comply with the requirement to remain continuously attached to the overhead beam by one or more lanyards ('the requirement') (paragraph 21);

(c) alleges failures by the plaintiff's employees to make any record or report about those occasions, stop the work or take disciplinary action against the non-complying workers (paragraphs 22 and 23);

(d) alleges that those failures contributed to a workplace tolerance of non-compliance with the requirement, which exposed the workers to the risk of serious injury or death (paragraph 24);

(i) the leading hand left a worker working alone in the Confined Space workspace, and left the workers working in the Confined Space workspace unsupervised (paragraph 27);

(ii) the deceased entered the Confined Space workspace and was not hooked up (paragraph 28);

(iii) the deceased left a worker working alone in the Confined Space workspace (paragraph 29);

(iv) the deceased entered the Confined Space workspace alone (paragraph 30);

(v) his co-workers did not perform a buddy check on him before he did so (paragraphs 31 and 32);

(vi) when workers were inside the Confined Space workspace, the Sentry left the post and there was no Sentry on duty (paragraph 34);

(vii) a worker entered the Confined Space workspace without wearing a harness and not hooked up (paragraph 35); and

(viii) the leading hand "should have been present and supervising the workers in the Confined Space workspace at all times and should have": identified the matters referred to in paragraphs (i) to (vi) above; immediately directed the deceased to hook up and remain hooked up; or stopped the work; or removed the deceased from the work and stood him down; or removed the Sentry from the role of Sentry (paragraph 38).

• [48] Particularly as regards those paragraphs mentioned in subparagraphs (b) and (e) above, it is readily apparent that the Complaint thereby identifies instances of non-compliance by employees of the plaintiff with the safe work measures identified in paragraph 13. In doing so, it is plain that the Complaint alleges that the plaintiff had the paragraph 13 measures in place, but they were not followed by workers.
• [49] The plaintiff's submission was that the Complaint does not allege that any failure to undertake or implement the paragraph 13 measures constituted the plaintiff's alleged breach of duty.
• [50] The Complaint expressly asserts that:

(a) in failing to take one or more of the actions in paragraph 38, the plaintiff "through" its leading hand failed to comply with a health and safety duty (paragraph 39); and

(b) by the failures particularised in paragraph 23, "through" various of its employees, the plaintiff failed to comply with a health and safety duty to the workers working in the Confined Space workspace (paragraph 41).

• [51] By paragraphs 39 and 41, the Complaint asserts that the plaintiff failed to comply with a health and safety duty (which logically must be the health and safety duty the subject of the charge[24]), which failures were identified by reference to instances of non-compliance by the plaintiff's employees (in paragraphs 38 and 23) with the measures identified in paragraph 13. By these somewhat indirect paths, the Complaint does, in my view, sufficiently allege that the failure to undertake the paragraph 13 measures constituted the plaintiff's breach of duty.[25] The allegation is that the plaintiff company failed to ensure that its employees followed the safe system or method for the doing of the work, ie the actions in paragraph 13 which were required to alleviate the relevant risk.
• [52] The second defendant submitted that the substance of the offending identified by the Complaint is a failure of supervision which manifested in the failures of the workers to follow the safe work measures. That is certainly the thrust of the allegations in paragraphs 38 and 23 of the Complaint, particularly paragraph 38.
• [53] The plaintiff argued that the Complaint's references to the acts or omissions of the plaintiff's employees as the plaintiff's failure to comply with its duty mean the Complaint improperly identifies and describes the essential factual elements of the offence. The plaintiff argued that the rules of attribution of vicarious liability do not apply because of the nature of the offence, which is a failure of the accused to have in place the reasonably practicable measure or measures which would have eliminated or minimised the relevant risk. Reliance was placed on the decision of the Victorian Court of Appeal in Director of Public Prosecutions v JCS Fabrications Pty Ltd [2019] VSCA 50 ('JCS'), which was said to reject this approach.
• [54] The case was an application for leave to appeal from an interlocutory decision of the trial judge to permit one of the defendants (referred to as 'JMAL') under an indictment charging a breach of the Victorian counterpart of s 19(2) of the WHS Act, to rely on certain paragraphs in its defence. Those paragraphs involved assertions that JMAL had employed an experienced employee to perform the relevant work, provided him with instruction and training on the safe conduct of the operation, expected that he would do the work in accordance with the instruction and training and the established safe system of work, and that even if he failed to follow the system, the prosecution would still have to prove that there was a reasonably practicable measure which JMAL should have taken to maintain the system. In the passages of the decision relied on by the plaintiff (at [45] and following), the Court was dealing (at [45]) with a submission on behalf of the prosecution to the effect that, if the employee had failed to take a step which would have eliminated or reduced the risk, JMAL would have committed the charged offence, no matter what other evidence was led or other matters were established; ie that an individual failure by an employee on a single unforeseen occasion necessarily constitutes a failure to maintain an otherwise safe system, no matter what prior steps the employer may have taken. Counsel for JMAL characterised this approach as the imposition of vicarious criminal liability.
• [55] The Court rejected the prosecution's approach (at [46]). The Court held (at [47]) that R v Commercial Industrial Construction Group Pty Ltd [2006] VSCA 181; (2006) 14 VR 321 ('CICG') establishes that the relevant issue is not whether the employer's acts and omissions are to be "attributed" to the employer, but rather, whether, on the evidence of the employee's acts and omissions, the employer has taken all reasonably practicable measures. The Court stated (at [47]) that CICG makes clear that an employer cannot "disown" the acts of the employee, but does not stand for the proposition that nothing other than the acts or omissions of an employee, which cause an accident or relevant event, are relevant. The Court held (at [51]) that an employer cannot "disown" the acts or omissions of an employee, so issues of attribution do not arise. The Court held (at [51]) that the employee's acts or omissions may be sufficient in themselves to establish the commission of an offence by JMAL, but the evidence of those acts and omissions is not the only evidence that is relevant or potentially relevant, and JMAL is not precluded from leading evidence seeking to establish that everything reasonably practicable was done.
• [56] The plaintiff's argument is not sustained or supported by this decision. It clearly recognises and accepts that a body corporate may commit an offence under the s 19(2) counterpart by an employee's acts or omissions. The observation that the rules of attribution do not arise is in no way a rejection of the possibility that a company may commit this kind of offence by or through the acts of its employees. The rules of attribution do not arise because they are unnecessary in the context of this kind of offence.
• [57] That was the conclusion of the Victorian Court of Appeal in CICG. The case involved an appeal against the sentence imposed following a guilty plea to an offence under the then Victorian counterpart of s 19(1) of the WHS Act. An accident occurred when a site manager had instructed an employee to work on a roof knowing that the scaffolding was unsafe. Counsel for the defendant company had argued that, as a consequence of the rules of attribution, the company was liable for a breach of the provision committed by its employee site manager. The Court held (at [22]) that the submission proceeded from a false premise because no question of attribution arose or could have arisen in the proceeding. This was so because (at [23]) what was in issue in an offence under the provision was whether the company had failed to provide and maintain a safe working environment and, in particular, a safe system of work. There was no issue as to whether, as a matter of law, the acts and omissions of the employee were the acts and omissions of the company itself; rather the issue was whether, on the evidence of the employee's acts and omissions, and the resultant serious risks to which employees were exposed, the company had done everything reasonably practicable to ensure the safety of its employees. The Court held (at [25]) that it is immaterial at what level in an organisation the safety breach occurs. The employer company is liable because it personally has failed to do what the law requires it to do and it is personally, not vicariously, liable so there is no need to find someone (the "brains" of the organisation) for whose act the person with the duty can be held liable for the act or omission. The Court concluded (at [30]):

...[O]n the proper construction [of the provision] no rules of attribution are called for. The only question is whether the employer company has done everything that it was (reasonably) practicable to do to ensure the safety of its employees. If not, the company has breached its duty. It is irrelevant to the question of liability where the failure occurred.

• [58] It follows that to charge the plaintiff with a breach of its health and safety duty by reference to the acts or omissions of its employees is not to attribute liability vicariously[26] and cannot lead to the conclusion that the essential factual ingredients of the offence are not contained in the Complaint.
• [59] The plaintiff sought to distinguish CICG on the basis that it was decided before the High Court's decision in Kirk and that, following Kirk, a single failure to follow a safe system of work or some other reasonably practicable measure or measures could not constitute an offence of this kind. The submission is inconsistent with the decision in JCS, which adopted (at [34]-[39]) without equivocation the observations of the Court in CICG.
• [60] The plaintiff also submitted that all CICG and JCS allowed was evidence about the acts or omissions of employees to establish the company's breach of duty, but they did not allow the company's breach of duty to be pleaded by reference to the acts or omissions of employees. I do not see why a complaint cannot allege, in a case where the breach will be established through evidence of the acts or omissions of employees, that a company has breached a duty under s 19(1) of the WHS Act through the acts or omissions of its employees. To do so is simply to identify the factual manner of the company's breach of duty.
• [61] Essentially, what the Complaint does is identifies a safe work method, alleges that the plaintiff's workers did not follow that method, and alleges that their failures to do so comprised a breach of the plaintiff's duty to ensure the health and safety of its workers under s 19(1) of the WHS Act. It is obvious that at base what is alleged is that the plaintiff failed to ensure its workers followed the safe work method, essentially by a failure to supervise their work. Consequently, it seems to me that the Complaint gives the plaintiff a reasonably clear and intelligible statement of the factual manner in which the plaintiff's acts or omissions are alleged to constitute the specific offence.
• [62] Grounds 1(ii) and (iii) are not made out.

• [63] This ground alleges that the Complaint is invalid as it fails to set out the essential element of the offence in s 32(c) of the WHS Act, namely that an individual was exposed to a risk of serious injury or death as a result of the alleged breach of duty.
• [64] The element in the offence under s 32(c) is that the failure to comply with the health and safety duty exposes an individual to a risk of death or serious injury or illness. That element can only be made out by proving that it was the failure to have in place reasonably practicable measure(s) that caused an identified individual to be exposed to the risk of death or serious injury on a specified occasion.
• [65] As already stated in paragraph [31] above, the requirements of s 22A of the LCCPA will be satisfied if the Complaint gives the accused a reasonably clear and intelligible statement of the factual manner in which the plaintiff's acts or omissions are alleged to constitute the specific offence, ie of the essential factual ingredients of the actual offence (s181, LCCPA).
• [66] The Local Court did not make any express finding about this ground, but it would be caught by the Court's general rejection of the plaintiff's submissions about invalidity of the Complaint.[27]
• [67] The plaintiff argued that the Complaint does not allege the necessary causal connection between the reasonably practicable measure required to comply with the duty and the exposure, of a specified worker, to the risk caused by the failure to have it in place.
• [68] The Complaint alleges that:

(a) various reasonably practicable measures should have been taken to eliminate or minimise the relevant risk (paragraph 13);

(b) on the night of the death, the plaintiff's employee failed to take them or ensure they were taken (paragraph 38);

(c) by the employee's failures in paragraph 38, the plaintiff through the employee failed to comply with its health and safety duty (paragraph 39);

(d) "[t]hrough [the employee's] failure to comply with a health and safety duty, [the plaintiff] exposed all of the workers in the Confined Space workspace to the risk of serious injury or death" (paragraph 40);

(e) those workers, six in total including the deceased, are identified by name (paragraph 25).

• [69] In my view, it is sufficiently clear that paragraph 40 alleges that the plaintiff's failure to comply with its duty on the night of the death exposed the six named individuals to a risk of death or serious injury. The plaintiff argued that the words of paragraph 40 were confusing because all workers have their own duties under s 28 of the WHS Act. The duty in s 28 is (relevantly) a duty to take reasonable care for the worker's own health and safety and to take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons. In my view, read in context, the words in paragraph 40 "[t]hrough [the employee's] failure to comply with a health and safety duty" are sufficiently referable to the allegation in paragraph 39 that the plaintiff, through the employee, failed to comply with its duty. It seems to me that a reasonable accused giving reasonable consideration to the words of the Complaint in the context would understand that the element of the offence in s 32(c) of the WHS Act will be established by proof of the failures of the identified employee, which are said to establish the plaintiff's failure to comply with its duty, and which exposed the named individuals to risk of death or injury.
• [70] The other path of offending described in the Complaint is as follows:

(a) a reasonably practicable measure to eliminate or mitigate the relevant risk was for workers working in the Confined Space workspace to be continuously hooked up (paragraph 13(c) and (d));

(b) there were multiple occasions on which workers were not hooked up as required (paragraph 21);

(c) no employees recorded those occasions or took any action in respect of them (paragraphs 22 and 23);

(d) the failure to record or take action exposed workers to risk of serious injury or death because it contributed to a workplace tolerance of non-compliance with the requirement to be hooked up at all times (paragraph 24);

(e) through the acts and omissions particularised in paragraphs 23 and 24, the plaintiff failed to comply with a health and safety duty (paragraph 41); and

(f) the plaintiff's failure in paragraph 41 exposed the workers in the Confined Space workspace to the risk of serious injury or death (paragraph 42).

• [71] By either of these two sets of allegations, the Complaint provides a reasonably clear and intelligible statement of the factual manner in which the plaintiff's acts or omissions are alleged to constitute the specific offence, and in particular, of the essential factual ingredient in s 32(c). Ground 1(iv) is not made out.

• [72] This ground alleges that the Complaint is invalid because the essential legal and factual elements of the offence cannot be discerned from the particulars of the Complaint, which are prolix, illogical and so uninformative as to what the prosecution case is that they cannot be regarded as falling within s 181 of the LCCPA.
• [73] The text and effect of s 181 of the LCCPA is set out in paragraphs [18] and [31] above. Ultimately, the plaintiff accepted that the issues raised by ground 2 are necessarily part of the process of analysis which the Court must undertake in determining ground 1. In undertaking that analysis, I have considered in detail the language, structure and content of the particulars of the Complaint.
• [74] It follows from my conclusions in respect of ground 1 that the assertion that the essential legal and factual elements of the offence cannot be discerned from the particulars of the Complaint must be rejected. I have found that they can reasonably be discerned and that s 22A (read with s 181) of the LCCPA is satisfied.
• [75] The plaintiff's reliance on Bunnings Forest Products v Shepherd [1998] WASCA 199 ('Bunnings') does not take the matter anywhere. The case was an appeal against conviction for an offence against the Western Australian counterpart of s 19(1) of the WHS Act.
• [76] In determining that appeal, the Full Court made a number of observations about the particulars served on the defendant, including that they contained numerous highly prejudicial allegations to do with immaterial hazards that were said to be present at the workplace but which had nothing to do with the risk in question on the prosecution case. Anderson J (Franklyn and Ipp JJ agreeing) held that this caused a "blemish on the trial amounting to a substantial miscarriage of justice". The plaintiff sought to paint the allegations in the Complaint about the failures of the plaintiff's employees in the same light. As the second defendant pointed out, the allegations in the Complaint all relate to the single relevant risk (of a worker falling into the perlite and suffocating) and failures to comply with the safe work measures directed to addressing that risk. They are nothing like the highly prejudicial and irrelevant allegations contained in the particulars in Bunnings.
• [77] Anderson J also observed that the further and better particulars served on the defendant were uninformative as to what the prosecution case really was and that the complaint was open to the objection that it was fundamentally deficient in that it failed to identify the essential factual ingredients of the actual offence charged. Whether that conclusion is open in relation to any particular complaint depends entirely upon the content of the complaint in issue. I have already held that, as regards the Complaint in these proceedings, it is not deficient.
• [78] In a similar but reverse way, the plaintiff urged on the Court examples of how a charge for a breach of s 32 by reference to s 19(1) of the WHS Act could be done properly.[28] There is no single "right" way to draft an initiating complaint or particulars. There is no doubt that the Complaint could have been drafted differently and in a way that may have been easier to comprehend. However, that is not the issue. Consequently, considering how the Complaint could have been drafted or particularised better provided little assistance in determining its validity.
• [79] Ground 2 is not made out.

• [80] This ground alleges that the Complaint cannot be amended pursuant to s 183 of the LCCPA because it is invalid and the limitation period[29] has expired.
• [81] Given the absence of any material provided to the plaintiff prior to the expiry of the limitation period other than the contents of the Complaint,[30] this ground can only succeed if the Complaint is invalid.[31] The second defendant accepts that, if the Complaint is invalid, it cannot now be amended because to do so would be to bring a fresh charge outside of the limitation period.
• [82] Given my conclusions set out above that the Complaint is not invalid, this ground must fail.

• [83] These grounds allege that, if the Complaint is valid:

(b) it cannot be amended to the form of the proposed amended Complaint because it suffers the same defects as the Complaint, namely that it is invalid as alleged in ground 1, that amendment would charge a new offence out of time as alleged in ground 3 and that it is duplicitous as alleged in ground 4 (ground 5).

• [84] The Local Court concluded that the particulars in the Complaint include a plea of alternative circumstances,[32] and that Court required the second defendant to make an election as to what set of factual circumstances it was relying on, ie the series of failures on the night of the death or the series of failures in the period before that.[33] The Local Court also found that there was no real prejudice to the plaintiff in permitting the Complaint to be amended because the Complaint was valid, so amendment would not permit a fresh charge to be brought out of time.[34]
• [85] If the Complaint is valid, the Local Court had jurisdiction to decide the charges laid in it and to deal with all other matters of criminal procedure in relation to it. A duplicitous charge is not, simply for duplicity, invalid; it may be proceeded on by various means, including amendment, provision of particulars or an election of the prosecution as to the charge it will proceed with.[35]
• [86] The plaintiff argued that the Complaint was so duplicitous it does what Evatt J said of the complaint in Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467 at 495, namely converts the court's exercising of a strictly judicial function (that of determining guilt or innocence of a single offence as charged) into an administrative commission of inquiry into the question whether, in respect of the multiple (in that case, thirty) possible occasions when an offence as described in the charge might have been committed, the defendant could exculpate himself in respect of all of the possible occasions, after which the prosecutor would then elect (ie select) his strongest case and obtain a conviction. For that reason, the complaint in that case was dismissed. But in that case, the complaint suffered from latent duplicity and the prosecutor had refused to amend it, provide particulars or make an election as to which of the thirty possible factual instances of breach that might fall within its charge he was going to pursue. Here, the second defendant has accepted that it must make the election which the Local Court has determined will cure the duplicity.
• [87] The plaintiff argued that the Complaint is duplicitous in a way that cannot be cured by the usual means. What this argument boiled down to, however, was an argument that the offence with which the plaintiff is charged cannot be sufficiently discerned from the Complaint, essentially for the reasons already put in relation to grounds 1 and 2.
• [88] Ground 5 is internally illogical. It presumes the validity of the Complaint, but asserts the invalidity of the proposed amended Complaint because it has the same defects as the Complaint, namely invalidity (including such duplicity as to result in invalidity) or the charging of a fresh offence out of time, which also rests on invalidity.
• [89] Given my conclusions set out above that the Complaint is not invalid, these grounds must fail.

• [90] The plaintiff's originating motion and summons dated 5 November 2020 are dismissed. I will hear the parties as to costs.

[1] Step v Atkins [2008] NTCA 5 at [30]- [32], [36], [39] per Thomas J (Martin CJ and Southwood J agreeing).

[2] S Kidman & Co Ltd v Lowndes (2015) 36 NTLR 103 at [5] per Southwood J.

[3] Citing Doja v R [2009] NSWCCA 303; (2009) 198 A Crim R 349 at [5]- [7]; John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42; (1987) 163 CLR 508 at 518; Harrison v President of the Industrial Court of Queensland [2016] QCA 89 at [88]- [93] per Jackson J (McMurdo P and Morrison JA agreeing).

[4] This was the way the High Court characterised the error of the Industrial Court in Kirk v Industrial Relations Commission (2010) 239 CLR 531 ('Kirk') at [74], namely as an inferior court acting beyond jurisdiction by entertaining a matter outside the limits of its functions or powers. Reference was there made by the High Court to the third of the examples of jurisdictional error given by the High Court in Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 177-178.

[5] Kidman at [138]. The Local Court's reasons are reported as Work Health Authority v Whittens Pty Ltd & Kawasaki Heavy Industries Ltd [2020] NTLC 12 ('Reasons').

[6] The term "person conducting a business or undertaking" is defined by s 5.

[7] S Kidman & Co Ltd v Lowndes (2016) 36 NTLR 110 at [23] per Southwood J.

[8] No classes are prescribed in the Work Health and Safety (National Uniform Legislation) Regulations 2011.

[10] Section 181 provides as follows: "It shall be sufficient in any information or complaint, if the information or complaint gives the defendant a reasonably clear and intelligible statement of the offence or matter with which he is charged".

[11] Section 181 operates as a qualification to this requirement in s 22A: Kidman at [70], [102], [135].

[12] Kidman at [61], [73]-[82] (referring to Director of Public Prosecutions v Kypri [2011] VSCA 257; (2011) 33 VR 157), at [83]-[86] (referring to Harrison v President of the Industrial Court of Queensland [2016] QCA 89). Section 55 of the LCCPA has no application in relation to a provision like s 19 of the WHS Act: Kidman at [79].

[15] Section 181 operates as a qualification to this requirement in s 22A: Kidman at [70], [91]-[92], [95], [102]. Section 55 of the LCCPA does not abrogate this requirement: Kidman at [93]-[94].

[17] Citing Diemould Tooling Services Pty Ltd v Oaten [2008] SASC 197; (2008) 101 SASR 339 at [22]- [25].

[18] Citing NK Collins Industries Pty Ltd v President, Industrial Court (Qld) [2013] QCA 179; [2014] 2 Qd R 304 at [60].

[19] Referring to Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467; Kirk v Industrial Court (NSW) (2010) 239 CLR 531.

[20] The workplace health and safety legislation of the various jurisdictions as referred to in the authorities considered in these reasons is not uniformly consistent. I have used the term "counterpart" to indicate a provision which bears some similarity to, and has the same or similar objects and subjects as, the identified provision of the WHS Act, whether or not the provision is identical.

[21] These observations were cited with approval by the Victorian Court of Appeal in Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd [2016] VSCA 55; (2016) 49 VR 676 at [133]- [134] per Maxwell P, Redlich and Whelan JJA. In that case, the particulars of the charge were simply that the accused should have supervised the rigging of the plant to ensure the correct procedure was followed for attaching a section of the crane. The Court held (at [134]) there was no need for specification of the detailed actions which it was reasonably practicable for the company to take.

[22] The term "Confined Space workspace" was defined by paragraph 7 of the Complaint as the area of the Works in the tank known as Tank 2.

[23] Kirk at [16], citing Chugg v Pacific Dunlop Ltd [1990] HCA 41; (1990) 170 CLR 249.

[24] The Complaint charges the plaintiff (relevantly in relation to this issue) with having a health and safety duty under s 19 of the WHS Act to ensure that the health and safety of workers at work is not put at risk from work and with failing, on 29 November 2017, to comply with its health and safety duty. The failures in both paragraphs 39 and 41 are capable of being seen as failures occurring on 29 November 2017.

[25] See, for example, R v Commercial Industrial Construction Group Pty Ltd [2006] VSCA 181; (2006) 14 VR 321 at [50].

[26] Nor is it to rely upon s 43BL of the Criminal Code (which is applied to offences under the WHS Act by s 12A of that Act), which attributes the physical elements of an offence committed by an employee, agent or officer of a body corporate acting within the scope of their employment or authority to the body corporate. The Local Court's reliance upon this provision (see Reasons at [59]-[60]) was misplaced.

[28] Reference was made to the analysis set out in SafeWork NSW v The Austral Brick Co Pty Ltd [2018] NSWDC 387 at [35]- [42], [43]-[73] and [74]-[75] and to the particulars set out in Orr v Hunter Quarries Pty Ltd [2019] NSWDC 634 at [34].

[29] The limitation period is prescribed by s 232 of the WHS Act. The parties agree that the relevant limitation period was that in s 232(a), and that it expired on 30 November 2019: see the Statement of Agreed Facts, [1].

[30] See the Statement of Agreed Facts, [2]-[4].

[31] Kidman at [104], [117]-[119].

[35] See, for example, Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467 at 489 per Dixon J; S v R [1989] HCA 66; (1989) 168 CLR 266 at 274 per Dawson J, at 282 per Toohey J, at 287 per Gaudron and McHugh JJ.