WorkCover Authority of New South Wales (Inspector Woodington) v Australand Holdings Limited and Sassall Glass and Joinery Pty Limited

Industrial Relations Commission (NSW)|2006-07-12|Before: Staunton J, Mr P, Staff J

CITATION: WorkCover Authority of New South Wales (Inspector Woodington) v Australand Holdings Limited and Sassall Glass and Joinery Pty Limited [2006] NSWIRComm 242

PROSECUTION: WorkCover Authority of New South Wales (Inspector Woodington) PARTIES: DEFENDANTS: Australand Holdings Limited Sassall Glass and Joinery Pty Limited

CATCHWORDS: Occupational health and safety - order sought allowing the prosecutor to amend the original summonses - issue of whether amendments created new offences and were therefore statute barred - comparative consideration of the original and amended summons disclose no difference to the respective substantive offences - distinction to be drawn between the essential legal elements of an offence and the essential factual particulars of that offence - provisions of s 16(2) of the Criminal Procedure Act applying - changes to facts in amended particulars does not create a new offence - whether the Court should exercise discretion pursuant to s 170 of the Industrial Relations Act and make the amendments sought in the interests of justice - considerable delay occasioned by amendments made - public interest and case management considerations relevant - amendments sought by the prosecutor in the amended application granted.

Crimes Act 1914 Criminal Procedure Act 1986 LEGISLATION CITED: Industrial Relations Act 1996 Occupational Health and Safety Act 1983 Occupational Health and Safety Act 2000 Trade Practices Act 1974

Chaudhary v Ducret (1986) 11 FCR 163 Concrete Constructions v WorkCover Authority of New South Wales (2000) 99 IR 16 Gilmour v Midways Springwood Pty Limited (1980) 49 FLR 36 Mainbrace Constructions Pty Limited v WorkCover Authority of New South Wales (Inspector Charles) (2001) 102 IR 84 R v Saffron (1989) 17 NSWLR 395 CASES CITED: Sali v SPC Limited (1993) 67 ALJR 841 State of Queensland and anor v J L Holdings Pty Limited (1997) 189 CLR 146 Taylor v Environment Protection Authority (2000) 50 NSWLR 48 Videon v Barry Burroughs Pty Limited (1981) 53 FLR 425 WorkCover Authority of New South Wales v Abigroup and anor (2003) 126 IR 11 WorkCover Authority of New South Wales v Fernz Construction Materials Limited (1999) 91 IR 119

PROSECUTION: Mr P Strickland SC SOLICITORS: WorkCover Authority of NSW Legal Group

DEFENDANT - AUSTRALAND HOLDINGS LIMITED: Mr H Dixon SC LEGAL REPRESENTATIVES: SOLICITORS: Minter Ellison

DEFENDANT - SASSALL GLASS & JOINERY PTY LTD: Mr G Hatcher and Mr R Moore of counsel SOLICITORS: Maguire & McInerney

Matter No IRC 1174 of 2005 WorkCover Authority of New South Wales (Inspector Woodington) v Australand Holdings Limited

Prosecution arising under s 8(2) of the Occupational Health and Safety Act 2000

Matter No IRC 1175 of 2005 WorkCover Authority of New South Wales (Inspector Woodington) v Sassall Glass and Joinery Pty Limited

Prosecution arising under s 8(2) of the Occupational Health and Safety Act 2000

1 I have before me a notice of motion filed by the prosecution seeking an order allowing the prosecutor to amend the original summonses filed with respect to both defendants on 7 March 2005 and issued pursuant to an order made by Staff J on 10 March 2005. The amendments made go to the particulars pleaded to the respective offences. 2 The prosecutor's application to amend is objected to by both defendants on the basis that the amendments made to the particulars create a new offence with respect to each defendant and are accordingly statute barred pursuant to s 107 of the Occupational Health and Safety Act 2000 (the Act). 3 The prosecution contends that the changes made to the particulars do not create new offences which, it was said, remain unchanged. Accordingly, it was submitted, the only issue to consider was whether the Court should exercise the discretion it has pursuant to s 170 of the Industrial Relations Act 1996 and make the amendments sought 'in the interests of justice'. 4 The original summonses allege an offence against each defendant arising under s 8(2) of the Act. 5 On 20 June 2005, the defendant Sassall Glass and Joinery Pty Limited (Sassall) entered a plea of not guilty to the offence alleged and particularised in the original summons. On 9 August 2005, the defendant Australand Holdings Limited (Australand) did likewise. 6 There are two other defendants charged with an offence arising from the same factual circumstances that ground the alleged offences of Sassall and Australand. Those defendants are Skyrise Installations Pty Limited (Skyrise) and a director of Skyrise, Mr Dominic Vullo. 7 Skyrise has been charged with an offence arising under s 8(1) of the Act. Mr Vullo has been charged with an offence in similar terms under s 8(1) relying on the deeming provisions of s 26(1) of the Act. 8 On 20 June 2005, Skyrise and Mr Vullo entered a plea of guilty to their respective offences. Accordingly, they are not parties to these interlocutory proceedings. 9 On 16 August 2005, I listed the defended matters concerning Australand and Sassall for hearing commencing 10 July 2006 for a period of ten days. 10 On 7 June 2006, some four weeks before the trial was listed to commence, and after a period of ten months since the matters were last before me, the prosecutor filed the notice of motion that is the subject of these interlocutory proceedings. 11 The grounds for the application to amend were contained in an affidavit of Mr Raymond Plibersek, a solicitor employed by the WorkCover Authority who deposed relevantly as follows: [2] On or about 15 March 2006, Mr Strickland SC was first briefed to appear in this matter because the previously briefed Counsel was unavailable for the hearing. [3] Mr Strickland SC was involved in back to back trials until approximately mid-2006. [4] Commencing on 22 May 2006, the following witnesses were conferenced by Mr Strickland, Ms Liddle and myself. (a) Inspector Clive Woodington; (b) Mr Ashley McCue; (c) Mr Matthew Church; (d) Mr John Murphy; (e) Mr Anthony Gordon; (f) Mr Charles Harper; and (g) Mr Dominic Vullo. [5] At the completion of the conferences with the witnesses, Mr Strickland gave certain advice to the WorkCover Authority. [6] As a result of that advice an Amended Application for Order was filed with the Court on 30 May 2006. [7] Additional statements by some of the witnesses which we conferenced will be served shortly.

[8] The original Application for Order no longer reflects the evidence that the prosecution anticipates will be adduced from the witnesses the prosecution proposes to call. Furthermore, in order for the Defendants to clearly understand the Prosecution's case, I took the view that the particulars should be amended to reflect the evidence that the prosecution proposes to lead.

Mr Plibersek's statement in para [8] above that the original summonses no longer reflected the evidence the prosecution proposed to call was seen by the defendants as a critical factor in the objections raised to the amended particulars. I will return to consider that issue later in this judgment. 12 As I understand it, in order to prosecute the amended summons, it is intended to serve additional evidentiary material on the defendants. The witnesses listed in [4] of Mr Plibersek's affidavit above have already provided statements. Those statements have been included in the prosecution brief. It would appear, as a consequence of the conferences held involving senior counsel, further witness statements from the persons named are to be prepared and served. That has not yet been done. 13 Given all the above, it was clear the matters could not proceed as scheduled. By consent, the two week hearing was vacated and certain costs orders made in favour of the defendants. Additional costs issues relevant to costs thrown away remain to be determined. 14 The above background will be further relevant in my considerations going to s 170 of the Industrial Relations Act. Relevant facts and considerations

15 In order to better understand the issue in these proceedings, it is necessary to relevantly compare the original summonses charged against the amended summonses now sought by the prosecutor. This can best be illustrated as follows:

(i) Matter No IRC 1174 of 2005: WorkCover Authority of New South Wales v Australand Holdings Limited:

Original Summons Amended Summons The defendant, being an employer, on 29 March 2003 at approximately 11:30 am at a commercial development site known as Rhodes Corporate Park at 1 Homebush Bay Drive Rhodes, New South Wales (the premises):

Did fail contrary to section 8(2) of the Act: The defendant, being an employer, on 29 March 2003 at approximately 11:30am at a commercial development site known as Rhodes Corporate Park at 1 Homebush Bay Drive Rhodes, New South Wales ("the premises"): to ensure that persons other than its employees were not exposed to risks to their health or safety arising from the conduct of its undertaking while they were at its place of work in that William Hill, being a person who was at its place of work and employed by Skyrise Installations Pty Ltd, to engage in the installation of curtain wall panels in circumstances which exposed him to a risk to his health or safety by reason of the weight of the panels being installed relative to the capacity of the lifting equipment being used and by reason of an inadequate system of fall protection: Did fail contrary to section 8(2) of the Act: [1] The Defendant was at all material times the head contractor for the building project. [2] Sassall Glass & Joinery Pty Ltd (Sassall) was the Defendant's principal subcontractor for the manufacture and installation of the curtain wall panels. to ensure that persons other than its employees were not exposed to risks to their health or safety arising from the conduct of its undertaking while they were at its place of work in that William Hill, being a person who was at its place of work and employed by Skyrise Installations Pty Ltd, to engage in the installation of curtain wall panels in circumstances which exposed him to a risk to his health or safety by reason of the weight of the panels being installed relative to the capacity of the lifting equipment being used and by reason of an inadequate safety line system: [3] Skyrise Installations Pty Ltd (Skyrise) was Sassall's subcontractor for the installation part of that subcontract. [1] The defendant was at all material times the head contractor for the building project. [4] The Defendant failed to ensure that Sassall provided or maintained a safe system of work for installing the curtain walls panels (the panels) in that Sassall failed to ensure that the weight of the panels was properly and accurately identified and communicated to Skyrise. [2] Sassall Glass & Joinery Pty Ltd (Sassall) was the defendant's principal subcontractor for the manufacture and installation of the curtain wall panels. [5] The Defendant failed to ensure that Skyrise provided or maintained a safe system of work in that Skyrise failed to ensure that the weight of the panels did not exceed the Working Load Limit (WLL) of the crane which was lifting the panels. [3] Skyrise Installations Pty Ltd was Sassall's subcontractor for the installation part of that subcontract. [6] The Defendant failed to supervise the employees of Sassall with a view to ensuring that the weight of the panels was properly and accurately identified and disclosed to Skyrise. [4] Sassall supplied the wrong weight for the curtain wall panels that were to be installed. [7] The Defendant failed to supervise the employees of Skyrise with a view to ensuring that the employees of Skyrise knew about the correct weight of the panels or that weight of the panels did not exceed the WLL of the crane. [5] The lifting equipment was not designed to lift panels of the correct weight. [8] The Defendant failed to ensure that any proper risk assessment or control measures were undertaken either by its own employees or by the employees of Sassall or Skyrise to eliminate or minimise the risk of an accident occurring as a result of the crane lifting panels in excess of its WLL. [6] There was no system for clearly identifying panel weights. [9] The Defendant failed to ensure that Sassall or Skyrise provided or maintained a safe system of work for working at heights in that Skyrise failed to ensure that William Hill, an employee of Skyrise, had appropriate fall protection equipment (such as a retractable lanyard) when he was working at heights. [7] There was no system for ensuring the panel weights that were provided were appropriate and accurate. [10] The Defendant failed to ensure that Sassall or Skyrise provided or maintained a safe system of work for working at heights in that Skyrise failed to ensure that William Hill was using appropriate fall protection equipment (such as a retractable lanyard) when the safety fence was open or when he was moving the crane close to the edge of the building. [8] The crane that was used to lift the panels into place was incapable of safely lifting the panels in question and as a result toppled off the fourth floor of the premises being constructed. [11] The Defendant failed to ensure that William Hill was [9] The method of putting the panels into place, once raised to the correct height, involved an open safety gate and a safety line lanyard that was both fixed and too short, leading William Hill to operate equipment without a lanyard attached to the safety line. adequately supervised either by its own employees or [10] When the lifting equipment toppled due to being over- Skyrise or Sassall in relation to having appropriate fall weight relative to that equipment, Mr Hill also fell off protection equipment (such as a retractable lanyard) the building. when he was working at heights or using appropriate fall protection equipment when the safety fence was open or when he was moving the crane close to the edge of the building.

(ii) Matter No IRC 1175 of 2005: WorkCover Authority of New South Wales v Sassall Glass and Joinery Pty Limited: Original Summons Amended Summons The defendant, being an employer, on 29 March 2003 at approximately 11:30 am at a commercial development site known as Rhodes Corporate Park at 1 Homebush Bay Drive Rhodes, New South Wales (the premises): The defendant, being an employer, on 29 March 2003 at approximately 11: 30 am at a commercial development site known as Rhodes Corporate Park at 1 Homebush Bay Drive Rhodes, New South Wales (the premises): Did fail contrary to section 8(2) of the Act Did fail contrary to section 8(2) of the Act to ensure that persons other than its employees were not exposed to risks to their health or safety arising from the conduct of its undertaking while they were at its place of work in that William Hill, being a person who was at its place of work and employed by one of its subcontractors, Skyrise Installations Pty Ltd, to engage in the installation of curtain wall panels in circumstances which exposed him to a risk to his health or safety by reason of the weight of the panels being installed relative to the capacity of the lifting equipment being used and by reason of an inadequate safety line system: [1] The defendant was at all material times the principal subcontractor for the manufacture and installation of the curtain wall panels at the premises. to ensure that persons other than its employees were not exposed to risks to their health or safety arising from the conduct of its undertaking while they were at its place of work in that William Hill, being a person who was at its place of work and employed by Skyrise Installations Pty Ltd, to engage in the installation of curtain wall panels in circumstances which exposed him to a risk to his health or safety by reason of the weight of the panels being installed relative to the capacity of the lifting equipment being used and by reason of an inadequate system of fall protection: [1] Australand Holdings Ltd (Australand) was at all material times the head contractor for the building project. [2] The defendant supplied Skyrise with the wrong weight for the curtain wall panels that were to be installed. [2] The Defendant was the principal subcontractor for the manufacture and installation of the curtain wall panels. [3] The lifting equipment was not designed to lift panels of the correct weight. [3] Skyrise Installations Pty Ltd (Skyrise) was Sassall's subcontractor for the installation part of that subcontract. [4] There was no system for clearly identifying panel weights. [4] The Defendant failed to provide or maintain a safe system of work for installing the curtain walls panels (the panels) in that it failed to ensure that the weight of the panels it supplied to Skyrise was properly and accurately identified and was communicated to Skyrise. [5] There was no system for ensuring the panel weights that were provided were appropriate and accurate. [5] The Defendant failed to ensure that the employees of Skyrise were properly supervised by its own employees or the employees of Skyrise or Australand with a view to ensuring that the weight of the panels did not exceed the Working Load Limit (WLL) of the crane which was lifting the panels. [6] The crane that was used to lift the panels into place was incapable of safely lifting the panels in question and as a result toppled off the fourth floor of the premises being constructed. [7] The method of putting the panels into place, once raised to the correct height, involved an open safety gate and a safety line lanyard that was both fixed and too short, leading William Hill to operate equipment without a lanyard attached to the safety line. [6] The Defendant failed to ensure that any proper risk assessment or control measures were undertaken either by it own employees or by the employees of Skyrise or Australand to eliminate or minimise the risk of an accident occurring as a result of the crane lifting panels in excess of its WLL.

[8] When the lifting equipment toppled due to being over-weight relative to that equipment, Mr Hill also fell off the building. [7] The Defendant failed to ensure that Skyrise provided or maintained a safe system of work for working at heights in that Skyrise or Australand failed to ensure that William Hill, an employee of Skyrise, had appropriate fall protection equipment (such as a retractable lanyard) when he was working at heights or failed to ensure that he was using appropriate fall protection equipment when the safety fence was open or when he was moving the crane close to the edge of the building.

[8] The Defendant failed to ensure that William Hill was adequately supervised either by its own employees or Skyrise or Australand in relation to having appropriate fall protection equipment (such as a retractable lanyard) when he was working at heights or using appropriate fall protection equipment when the safety fence was open or when he was moving the crane close to the edge of the building.

Putting aside for the moment the particulars pleaded, comparative consideration of the original and amended summons pleaded with respect to both defendants discloses no difference to the substantive offence with the exception of the phrase, where emphasised above, of 'inadequate system of fall protection' instead of 'inadequate safety line system'. 17 It should be noted at this point, it was not agreed by the defendants that the phrase 'inadequate system of fall protection' was in essentially similar terms to the original phrase 'inadequate safety line system'. 18 For my part, for reasons I will shortly detail, I see no substantive difference in the substituted phrase now used by the prosecutor. It simply better describes, inter alia, the genesis of the risk to safety that arose in the conduct of the respective defendants' undertaking. On one view, that phrase is not integral to the essential legal elements of the offence charged but goes more to the necessary particularity required to be provided as part of the essential factual particulars of the offence. See Concrete Constructions v WorkCover Authority of New South Wales (2000) 99 IR 16 at [40]. 19 Insofar as any amendment is sought to be made to the respective summonses, s 16(2) of the Criminal Procedure Act 1986 provides: No objection may be taken, or allowed, to any indictment by which criminal proceedings (including committal proceedings) in a Local Court or for any other offence that is to be dealt with summarily are commenced, or to any warrant issued for the purposes of any such proceedings, on the grounds of: (a) any alleged defect in it in substance or in form, or (b) any variance between it and the evidence adduced at the proceedings for the offence charged in the indictment or warrant. 20 The provisions contained in s 16(2) above have their origins in what is often referred to as a Lord Jervis provision. As was expressed in Taylor v Environment Protection Authority (2000) 50 NSWLR 48 at 57: A distinction is drawn between informations which fail to specify the legal elements of the offence and those where essential factual particulars have not been given. Where an information fails to specify the essential legal elements of the offence, the information is not saved by a Lord Jervis provision: Ex parte Price : (1899) 20 LR (NSW) 343. ex parte Bartlett ; (1896) 17 LR (NSW) 108. Ex parte Thomas ; Re Otzen ; (1947) 47 SR (NSW) 261. ex parte Burnett; Re Wicks ; [1968] 2 NSWR 11 . Boral Gas (NSW) Pty Ltd v Magill . (1993) 32 NSWLR 501 per Mahoney JA at 517. Where, however, the legal elements of the offence are specified and the defect lies only in a failure to specify essential factual particulars - such as the time, place, or the manner of the offence - a Lord Jervis provision will operate: John L Pty Ltd ; per Brennan J at 529, 531. Stanton v Abernathy ; (1990) 19 NSWLR 656 per Gleeson CJ at 667. R v Cassell ; (1996) 2 NSWCR 89. R v Duff . (1924) 41 WN (NSW) 23. 21 As is evident, the changes made by the prosecutor in the amended summons are to be found in the particulars. In that sense, I agree with counsel for the prosecution that the issue before me is the distinction to be drawn between the essential legal elements of an offence and the essential factual particulars of that offence which, when taken together, comprise the essential factual ingredients necessary to ground a valid indictment. The distinction is important. As was said by Fisher J in Videon v Barry Burroughs Pty Limited (1981) 53 FLR 425 at 444: ... there has always been a clear dichotomy between an offence as stated in an information and summons and the particulars of the relevant conduct. Such dichotomy is in my view determinative of this issue. Reasonable information is required of the acts or omissions constituting that conduct, because in the words of Gibbs J. "the defendant to a proceeding" is entitled to be "fairly apprised of the case he has to meet. . . " ( Total Australia Ltd v Trade Practices Commission (2) ). It is however the offence with which he is prosecuted which has to be clearly and unequivocally identified , both in the consent and the summons. (emphasis added) 22 The legal elements of offences charged under s 16(1) of the Occupational Health and Safety Act 1983, as the statutory predecessor to s 8(2) of the Occupational Health and Safety Act 2000, were considered by the Full Bench of the Court in Mainbrace Constructions Pty Limited v WorkCover Authority of New South Wales (Inspector Charles) (2001) 102 IR 84 at [12] as follows: In Inspector Page v Woolworths Ltd (unreported, CT93/1044, 9 September 1994), Peterson J, correctly in our view, identified four elements the prosecution needs to prove beyond reasonable doubt in order to establish an offence under s16(1). These we paraphrase as follows: 1. the defendant was an employer; 2. there were persons not employees exposed to risks to their health and safety;

the risk arose from the conduct of the defendant's undertaking; and 4. the exposure to risk was at the defendant's place of work. 23 In WorkCover Authority of New South Wales v Abigroup and anor (2003) 126 IR 11 at [273] Kavanagh J reaffirmed the above elements and added:

There is a further element to the s 16(1) charge. The prosecution must prove beyond reasonable doubt there is a causal nexus between the breach and the risk to the person not in the defendant company's employ. 24 I would concur with the further element as identified above, adding only that the causal nexus to be established is between the breach and the risk to safety of the person or persons not in the defendant's employ.

25 In the amended summonses, the prosecution contends the proposed amendments are not amendments to the essential legal elements of the respective offences but are amendments or variations to the essential factual particulars of the offences.

26 In support of that contention, the prosecution submitted it could have pleaded the respective offences against both defendants relying solely on reciting the substantive offence which remains unchanged with the exception of the substitution of the phrase 'inadequate system of fall protection' earlier referred to. Using the summons charged with respect to Australand as an example, the prosecution submitted the offence could have been pleaded as follows: On 29 March 2003 at approximately 11.30 am at a commercial development site known as Rhodes Corporate Park at 1 Homebush Bay Drive, Rhodes, NSW, the defendant, being an employer, failed to ensure that persons other than its employees were not exposed to risks to their health or safety arising from the conduct of its undertaking while they were at its place of work in that William Hill, being a person who was at its place of work and employed by Skyrise Installation Pty Ltd to engage in installation of curtain wall panels in circumstances which exposed him to risk to his health or safety by reason of:

(a) the weight of the panels being installed relative to the capacity of the lifting equipment being used and;

(b) an inadequate system of fall protection . (emphasis added)

Further particulars of the allegations against you are contained in further particulars of the charge, a copy of which is attached. 27 I would agree. On any view, the legal elements of the offence have been identified. That is, the prosecutor has recited the offence arising under s 8(2) of the Act alleging: · the defendant was an employer; · there were persons not employees exposed to risks to safety, specifically Mr Hill; · the risk to safety arose from the conduct of the defendant's undertaking, that being the work undertaken at the commercial development site identified. Specifically, the work being undertaken by Mr Hill involved the lifting and installing of certain panels utilising lifting equipment; · exposure to the risk to safety was at the defendant's place of work, that being the commercial development site nominated; · there was a causal nexus between the breach and the risk to the safety of Mr Hill, that being by reason of the weight of the panels being installed relative to the capacity of the lifting equipment being used and by reason of an inadequate system of fall protection. 28 See also the decision of the Full Bench of the Court in Concrete Constructions Group Limited v WorkCover Authority of NSW (2000) 99 IR 16. In that matter, the Full Bench considered issues going to the essential legal elements of an offence under s 16(1) of the Occupational Health and Safety Act 1983. In doing so, the Court also considered the validity of the summons having regard to the essential legal elements distinguished from essential factual particulars. 29 The particular offence being considered in these proceedings had been pleaded as follows: The defendant, being an employer, on 26 April 1996 at the Woronora Water Filtration Plan construction site, Woronora Dam, Woronora Dam Road, Waterfall, in the State of New South Wales did fail to ensure that persons not in its employment, in particular Joseph Sheary and Anthony Fathers, were not exposed to risks to their health or safety arising from the conduct of its undertaking while they were at its place of work contrary to Section 16(1) of the Occupational Health and Safety Act 1983 in that the defendant did fail to provide systems of work, to wit, systems of cleaning the interior of the clean water tank no. 2 that were safe and without risks to health in such case made and provided. (emphasis added)

The particulars of the charge are the defendant failed to provide: (a) systems to assess the appropriate work method for cleaning the interior of the clear water tank; (b) systems to comply with the Occupational Health and Safety (Confined Spaces) Regulation 1990; (c) systems to assess the oxygen levels within the tank prior to work commencing; (d) systems of on-site emergency response for persons within the tank; (e) as a result of the said failures, Joseph Sheary drowned and Anthony Fathers was placed at risk of injury.

30 In relation to the above offence as pleaded, the Full Bench said at [40] as follows: However, we find, as did Wright J, President, the elements of an offence which a summons must identify under s16, that is the time, place and nature of the offence, are clearly present in the summons and the essential factual ingredients are pleaded. There is sufficient particularity to identify and meet the offence. (See Insp Page v Woolworths Limited at 7,8; CSR Limited t/as CSR Wood Panels at 12 (elements); Saffron (No.1) 1988, 36 ACrimR 262 at 309, per Hunt AJA; Stanton v Abernathy & Anor (1990) 19 NSWLR 656 at 666 per Gleeson CJ. The additional words in the summons commencing with the words "in that" merely particularise the relevant failure as alleged namely, the failure to ensure that certain non-employees were not exposed to risks to their health or safety . We find the summons pleads the essential factual ingredient of the actual offence. (emphasis added) 31 Reference to the words 'in that' in the above passage can be found in the recital of the offence charged in para [29] above. 32 Further, reference to essential factual ingredients of an indictment is, in my view, reference to the requirement that for an indictment to be valid it must, when taken together, identify the essential legal elements of the offence as well as fair and reasonable particularity as to the nature of the offence charged. As was expressed by Walton J Vice-President in WorkCover Authority of New South Wales v Fernz Construction Materials Limited (1999) 91 IR 119 at 126: At common law, a valid indictment must identify the essential factual ingredients of the offence charged. Applying the principles in Johnson v Miller (1937) 59 CLR 467, an information must specify the time, place and manner of the acts or omissions of the defendant upon which the Crown relies (per Dixon J at 486) and fair information and reasonable particularity as to the nature of the offence charged (per McTiernan J at 501) (see also John L Pty Ltd v A-G (NSW) (1987) 163 CLR 508 at 520-521 and Saffron (No 1) at 445; 309). 33 Returning to the offences pleaded in these proceedings and as earlier indicated, I see no substantive difference in the words used in the amended summons of 'inadequate system of fall protection' instead of the words 'inadequate safety line system' as constituting a new or different offence. 34 The particulars recited in the original summonses make it abundantly clear that one of the factual issues relied upon by the prosecutor in establishing a risk to safety to Mr Hill was that Mr Hill operated the relevant crane without his lanyard attached to the safety line because the safety line lanyard was, in all the circumstances, 'both fixed and too short'. Because of that, as the original particulars state, 'when the lifting equipment toppled ... Mr Hill also fell off the building'. 35 It is abundantly clear, in my view, that what is being alleged at all times, as part of the defendant's overall system of work and further particularised, is an inadequate system of fall protection. That is, the prosecution has pleaded, in working at the defendant's undertaking and at it's place of work, Mr Hill was exposed to a risk to his safety in the work he was performing involving the raising of certain panels to a height using a particular type of crane and that risk to safety arose because, inter alia, there was inadequate fall protection measures in place that involved his lanyard and safety line. 36 I accept that in amending the particulars going to fall protection, the prosecution identify alleged factual matters going to inadequate fall protection measures that includes matters that go beyond a safety line system simpliciter (See amended particulars 9, 10 and 11 in relation to Australand and amended particulars 7 and 8 in relation to Sassall). Nevertheless, those amended particulars do not, in my view, alter the substantive offence charged nor the legal elements that constitute it. If anything, the prosecution has identified with greater particularity the factual circumstances underpinning the risk to safety and its causation. 37 Turning generally to the particulars pleaded in the prosecutor's amended summonses. It is the particulars recited in the amended summons that both defendants contend renders the offence charged in the summons being a different offence and accordingly out of time. 38 Reference to the amended particulars reveals particulars 1, 2 and 3 remain unchanged, identifying as they do the respective defendants, including Skyrise, and each defendant's role in the work being performed. That is, Australand was the head contractor, Sassall was the principal sub-contractor for the manufacture and installation of the particular work identified and Skyrise was Sassall's sub-contractor for the installation component of that work. 39 The remaining amended particulars recited essentially particularise two fundamental system failures identified in the recital of the substantive offence. That is, firstly, the system failures particularised going to the inadequate fall protection measures I have already mentioned (particulars 9, 10 and 11 in relation to Australand and particulars 7 and 8 in relation to Sassall). The second system failures particularised, which for current purposes I would describe as relative weight/lifting capacity failures, are those going to the weight of the panels being installed relative to the capacity of the lifting equipment being used and include matters such as supervision and risk assessment (particulars 4, 5, 6, 7 and 8 in relation to Australand and particulars 4, 5 and 6 in relation to Sassall). 40 In my view, those expanded particulars do no more than identify with greater precision the particular acts or omissions of the respective defendants relied upon by the prosecutor in order to establish the respective offences. 41 Central to the defendant's contentions that the amended particulars constitute a new offence is the reliance placed on the decision of the Full Court of the Federal Court in Chaudhary v Ducret (1986) 11 FCR 163, particularly the minority decision of Jenkinson J. 42 In that matter, the prosecutor had been granted leave at first instance to amend the particulars of the offences alleged pursuant to ss 79 and 163 of the Trade Practices Act 1974 (Cth). The nub of the offences charged was that the defendants had advertised for sale various carpets in advertisements that, it was alleged, constituted misleading statements. 43 The defendants appealed against the first instance decision granting leave to the prosecution to amend a number of the particulars on the basis the new particulars created a new charge that was outside the limitation period prescribed by s 21(1)(c) of the Crimes Act 1914 (Cth). In support of that submission it was said the original particulars, properly construed, asserted, inter alia, that the advertisements had falsely implied the defendants had previously offered the carpets at higher prices specified in the advertisements whereas the substituted particulars asserted, inter alia, that the advertisements falsely implied it was the Melbourne retail carpet market that had offered such carpets at those higher prices. 44 By majority, the Full Court (Northrop and Davies JJ) dismissed the appeal determining that, having regard to the original offences charged and particularised and the substituted particulars pleaded, no new offence had been created. In doing so, both Davies and Jenkinson JJ observed there could be circumstances where particulars were sought to be amended that could create a new and different charge. As Davies J said at 176-177: In the present case, no amendment has been made with respect to the charge as stated in the information or as stated in the summons. ... However, the particulars of the charge have been re-stated so as to raise different allegations as to why the advertisement was misleading.

I accept that that course may, in a particular case, raise an allegation of such significance that it could be said that a new offence was being charged. The question is, however, whether, in the present instance, that occurred. 45 While acknowledging the above possibility, Davies J joined with Northrop J in dismissing the appeal, coming to the view there was not such a substantial change in the nature of the allegations made in the substituted particulars as to particularise a new offence. 46 In upholding the appeal Jenkinson J said relevantly at 184-185: When, after the expiration of the period prescribed by that section in respect of an offence, amendment is sought of any of the allegations as to what the ultimate facts are which constitute the commission of that offence, the amendment should in my opinion be granted if the changes sought to be made merely afford a more precise identification of a unique set or combination of circumstances previously indicated as the ultimate facts, but should be refused, except perhaps in certain circumstances, if any of the changes sought to be made result in a change in the substance of any of those ultimate facts. Changes of the latter kind should in my opinion be refused because to allow them would be to permit to be carried on the prosecution of an offence - that is to say the offence constituted by the existence of the ultimate facts alleged after amendment - the commencement of which had not been within the prescribed period. 47 In considering the amended particulars pleaded, Jenkinson J came to the view that rather than merely causing a more precise identification of the 'ultimate facts', the amendments caused a change in the substance of two of the 'ultimate facts' so that it could be said a new offence had been created. 48 I have to say it is not clear to me what Jenkinson J meant when he referred to particulars as containing 'a change in the substance of the ultimate facts' sufficient to create a new offence. However, as I understand the submission put, reliance on the view expressed by Jenkinson J in Chaudhary v Ducret above centres around the argument that the amended particulars contain changes in the ultimate facts relied upon by the prosecutor sufficient to create a new offence. 49 For example, counsel for Sassall pointed to particular 6 as pleaded in the original summons when compared with particular 5 in the amended summons as evidence of the difference in 'ultimate facts' to be established. 50 Particular 6 in the original summons in relation to Sassall stated: The crane that was used to lift the panels into place was incapable of safely lifting the panels in question and as a result toppled off the fourth floor of the premises being constructed. 51 Particular 5 in the amended summons states: The defendant failed to ensure that the employees of Skyrise were properly supervised by its own employees or the employees of Skyrise or Australand with a view to ensuring that the weight of the panels did not exceed the Working Load Limit (WLL) of the crane which was lifting the panels. 52 There is, it was submitted, a fundamental difference in the two particulars. That is, particular 6 in the original summons asserted that the crane 'was incapable of safely lifting the panels in question' whereas failure 5 in the amended summons recites the defendant's failure as being a failure to ensure 'that the weight of the panels did not exceed the Working Load Limit (WLL) of the crane'. The amended particular, it was submitted, created new 'ultimate facts' to be established such as to render the offence a new offence. I do not agree. 53 To the extent that the amended summons now recites the above particular differently does not, in my view, alter the legal elements of the offence charged. What it does do is merely afford a more precise and reasonable particularity as to the nature of the offence charged and the particular acts or omissions relied upon relevant to the risk to safety and it's causation. That new and somewhat different evidence is to be relied upon by the prosecutor in support of the amended particular recited does not alter the fact that the essential legal elements of the offence remain unchanged. What has been done by the prosecutor, properly in my view, is to amend the particulars in order to better capture the nature and entirety of the evidence the prosecution proposes to lead to establish the respective offence charged. 54 As well, I am not persuaded the defendants can draw any particular comfort from Jenkinson J's views as expressed above in support of their contention that the amended particulars in these proceedings constitute a new offence. That is, his Honour acknowledged that amendments to particulars should be granted 'if the changes sought to be made merely afford a more precise identification of a unique set or combination of circumstances previously identified as the ultimate facts ...'. The ultimate facts to be established in the offence charged in these proceedings with respect to each defendant has not changed, it seems to me. That is, arising from the defendants' undertaking and at its place of work, the defendants failed to ensure the health, safety and welfare at work of a person not in their employ, namely Mr Hill. As well, within the recital of the substantive offence which remains essentially unchanged, the prosecutor has identified the factual basis of the risk to safety and the causal nexus relied upon. 55 What the respective defendants have been charged with is an offence that alleges, in the first instance, an overall failure to ensure the health, safety and welfare at work of non-employees. That absolute duty is to be found in s 8 of the Act titled Duties of employers. Section 8(1) deals with the duty of employers to employees and s 8(2) deals with the duty of employers to persons other than employees. As s 8(1) provides, that absolute duty extends (without limitation) as follows: (a) ensuring that any premises controlled by the employer where the employees work (and the means of access to or exit from the premises) are safe and without risks to health, (b) ensuring that any plant or substance provided for use by the employees at work is safe and without risks to health when properly used, (c) ensuring that systems of work and the working environment of the employees are safe and without risks to health, (d) providing such information, instruction, training and supervision as may be necessary to ensure the employees' health and safety at work, (e) providing adequate facilities for the welfare of the employees at work. 56 In my view, the above provisions extending the duty of employers to employees applies no less to the duty owed by employers to non-employees under the counterpart obligation arising under s 8(2). The absolute duty of employers under ss 8(1) and 8(2) of the Act are subject of course to the statutory defences available under s 28 of the Act. 57 In their respective considerations, both Davies and Jenkinson JJ made reference to the decision of Brennan J in Gilmour v Midways Springwood Pty Limited (1980) 49 FLR 36. As well, the defendants in these proceedings rely in part upon Gilmour v Midways to support their contention that that amended particulars pleaded by the prosecution constitute a new offence. In Gilmour v Midways, Brennan J dealt with offences arising under s 53(a) of the Trade Practices Act 1974 (Cth) relating to the supply of goods, specifically motor vehicles. Pursuant to s 163(4)(b) of the Trade Practices Act, prosecutions for offences against the Act required the consent in writing of the Minister. The Minister gave his consent to the prosecutions in certain terms. Subsequently, informations that were laid were in different terms from the terms to be found in the Minister's consent. In determining that the charges laid were in such different terms from those consented to by the Minister so as to create a new offence, Brennan J said: The offences created by s 53 of the Trade Practices Act have a number of elements. Each combination of elements together constitutes an offence different from the others created by the same section. That is not to say that the facts which would support a conviction for one offence under s 53 might not at the same time support a conviction for another of the offences created by the same section. However, the question now relevant is not related to the evidence necessary to support a charge , but to the identity of the particular offences charged.

For present purposes, it is necessary to determine whether conduct of a kind specified in one of the lettered paragraphs of s 53 when combined with the several alternatives in the introductory part of that section constitutes differing offences. In my opinion it does. It is an offence for a corporation in trade or commerce "in connexion with the supply of goods or services" to do any of the acts specified in the lettered paragraphs of the section. It is another offence for a corporation in trade or commerce "in connexion with the promotion by any means of the supply of goods or services" to do the same acts. It is immaterial that the same body of evidence might support a conviction for either offence. A sufficiency of evidence to support a conviction for either offence does not establish the identity of the two offences. 58 As the above passage confirms, it is abundantly clear his Honour was considering different offences arising by virtue of the particular provisions of s 53 when marrying the alternative provisions in the introductory part of s 53 with the conduct specified in the lettered paragraphs that followed. No such situation arises in relation to an offence arising under s 8(2) of the Act. There is but one offence. 59 On behalf of the prosecutor it was submitted the original particulars could have been left as they were without amendment and the prosecution could have led the evidence they proposed to rely upon subject to the Court's ruling as to prejudice arising to the defendants that the evidence led went outside the original particulars recited. On that point, the prosecution relied on the view expressed by Hunt A-JA in R v Saffron (1989) 17 NSWLR 395 at 447 as follows: Where a party seeks to lead evidence in support of his pleaded case which is outside the particulars which have been supplied in support of that case, it is for the trial judge to consider whether such evidence unfairly amounts to a case of which the other party has had insufficient warning: Vlasic v Federal Capital Press of Australia Pty Ltd (1976) 9 ACTR 1 at 6. ... and further at 448: There is no logical reason why the Crown should not be entitled in the appropriate case to lead evidence which is within the charge pleaded in the indictment but outside its particulars, in accordance with principles discussed by the High Court in Dare v Pulham . It would in every case be advisable that the particulars be amended, but the absence of an amendment is not fatal. ... 60 I would agree the prosecutor could have proceeded without amending the particulars. That course would, ultimately, undoubtedly have led to objections on the part of the defendants which may well have had the effect of creating the same delay the amended particulars has caused. Those are not matters going to the validity of the summons on the grounds submitted by the defendants. 61 Having regard to the above considerations and submissions received, I am satisfied the application by the prosecutor to amend the summons with respect to each defendant is a variation to the essential factual particulars of the offences charged and permissible within the proper application of s 16(2) of the Criminal Procedure Act. 62 I turn now to whether, in accordance with s 170 of the Industrial Relations Act, in the exercise of my discretion, it is in the interests of justice to amend the respective summonses in the terms proposed. 63 The background to the application has already been detailed by me in paras [5] to [14] of this judgment. 64 I have to say, it is a matter of considerable concern to me that the prosecutor's application to amend the summons has come so late in the history of these prosecutions and their allocation for hearing. The defendants have already had to wait nearly two years from the date of the incident giving rise to the alleged offence (29 March 2003) until the order for the summons to issue was made by Staff J (10 March 2005). 65 Further, both Sassall and Australand did seek further particulars from the prosecution solicitors prior to entering their respective pleas of not guilty in June and August 2005 respectively. 66 By all accounts, for a period of nearly ten months, the prosecution did not turn its attention to the need to amend the particulars until the trial was looming and senior counsel became involved. That is, on any view, a generally unsatisfactory state of affairs and one clearly warranting the adjournment granted. 67 The approach a court must take in exercising it's discretion to allow amendments to pleadings was considered by the High Court in State of Queensland and anor v J L Holdings Pty Limited (1997) 189 CLR 146. In that matter, involving civil litigation, Kiefel J at first instance refused leave to the respondents to amend their defence pleadings. In doing so, her Honour expressed her principal reason for doing so as follows: I have, in the context of this case, where there is only a period of about six months from the time that leave was sought to the commencement of the hearing, taken the view that the most relevant consideration is whether the amendments would jeopardise those hearing dates. If that were the case, I would be inclined to disallow the amendments. Such an approach takes account that the loss of the hearing at that time could be said to amount to severe prejudice to the applicant, particularly since the matter, I would think, would be unlikely to be relisted until the following year. It also takes account of a shift in attitude and that in these times a party's 'right' to present their case or their defence is viewed as subject to some limitation. 68 On appeal, the Full Court of the Federal Court, by majority (Whitlam and Sundberg JJ) dismissed the appeal relying on the judgment of Toohey and Gaudron JJ in Sali v SPC Limited (1993) 67 ALJR 841 at 849. In doing so, the majority concluded: Unless we are to mouth the repeated cautions about discretionary judgments, case management, efficiency, practice and procedure, and the advantages of the managing judge, only to ignore them when it comes to the crunch, this appeal must be dismissed.

69 Ultimately, the High Court (Dawson, Gaudron and McHugh JJ) upheld an appeal from the majority decision of the Full Court stating at 155 as follows: In this case, which is of a commercial nature, the litigants are on the one side a developer and on the other side government, and there is nothing which would indicate any personal strain which would justify the conclusion that costs are not an adequate remedy for prejudice caused by the amendment sought to the pleadings.

In our view, the matters referred to by the primary judge were insufficient to justify her Honour's refusal of the application by the applicants to amend their defence and nothing has been made to appear before us which would otherwise support that refusal. Justice is the paramount consideration in determining an application such as the one in question. Save in so far as costs may be awarded against the party seeking the amendment, such an application is not the occasion for the punishment of a party for its mistake or for its delay in making the application. Case management, involving as it does the efficiency of the procedures of the court, was in this case a relevant consideration. But it should not have been allowed to prevail over the injustice of shutting the applicants out from raising an arguable defence, thus precluding the determination of an issue between the parties. In taking an opposite view, the primary judge was, in our view, in error in the exercise of her discretion. 70 Kirby J also upheld the appeal. In doing so, he commented as to those matters which would tend to argue against the exercise of the discretion available under s 170 of the Industrial Relations Act. As he said at 170-171: Considerations which tend to argue against the grant of an indulgence include many ... Thus, the failure of a party to offer anything by way of explanation for a late application has been held relevant. So has the blamelessness of the resisting party and the extent to which the applicant is at fault in its breach of clear directions. Courts now take into account the strain which litigation may place upon those involved and the natural desire of most litigants to be freed, as quickly as possible, from the anxiety, distraction and disruption which litigation causes. In my view this is not a consideration limited to litigation by natural persons or involving private citizens. Because justice cannot be measured solely in monetary terms, costs orders are not necessarily an adequate balm to the other party. Thus, the proximity of the hearing is clearly a most important consideration. An opposing party is entitled to have taken into account the consequences of an indulgence, especially where it would cause disarray at the last minute to its preparation of the trial. Similarly, the length of time that the proceedings have been pending before the application is made will often be a relevant consideration. The longer the time, the more reasonable it may be to expect that the parties, or their lawyers, should have earlier appreciated, and raised, the point in issue. If a consequence of the indulgence is truly a necessity to postpone a trial date, this will be a most important consideration . Its importance increases with the congestion of court lists and the difficulty, particularly in the case of a lengthy trial, of securing early replacement dates. The extent to which a new issue would give rise to a substantial and new case in reply is also relevant. (emphasis added) 71 In these proceedings, the trial has already been vacated and certain costs orders made. On any view, it is clear that a new trial date is now many months away, particularly given the prosecution now wish the defendants Skyrise and Mr Vullo to be dealt with before Australand and Sassall face a new trial as it is the prosecutions intention to call Mr Vullo at the trial of Australand and Sassall. Overall, given that the incident giving rise to the offences occurred in 2003, four years or more will have elapsed before the individuals to be called will be required to give their recollection of events relevant to the facts and circumstances of the offences. On any view, that is an extremely long time. 72 A factor operating in favour of the prosecution is that if they had proceeded with the original particulars, there would have come a point, it seems to me, when the defendants would have raised objections going to unfair prejudice to the evidence being led as being outside the particulars pleaded. It is quite probable those objections would have led to delay of the kind now being confronted. 73 Further, in terms of case management and the efficient use of court resources, it was possible to largely utilise the time vacated by allocating, at short notice, other matters into the time made available. 74 Finally, these proceedings are criminal in nature. That does not excuse the prosecutor from the criticism I have expressed as to the unsatisfactory situation this application has created. It does, however, in my view, mean that in the interests of justice, the exercise of discretion should take into account public policy together with public interest considerations underpinning the legislation in ensuring offences alleged under the Occupational Health and Safety Act are heard and determined. 75 In all the circumstances I believe that, on balance, the amendments to the summons sought by the prosecutor in the amended application for order should, in the interests of justice, be granted pursuant to s 170 of the Industrial Relations Act. 76 In conclusion, I summarise my findings as follows: (i) To amend the summons with respect to each defendant is a variation to the essential factual particulars of the offences charged and permissible within the proper application of s 16(2) of the Criminal Procedure Act . (ii) The amendments to the summons sought by the prosecutor in the amended application for order should, in the interests of justice, be granted pursuant to s 170 of the Industrial Relations Act .

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Trade Practices Act 1974(Cth)

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