WorkCover Authority of New South Wales (Inspector Stephen Jones) v Rockdale Beef Pty Ltd, WCA of NSW

CATCHWORDS: OH & S - Notice of Motion filed by each defendant that each matter be struck out - defendants argued that Application for Order does not specify all the essential legal elements of the charge, s 10(1) OH & S Act - application fails to state extent of control, nature of duty, date of breach & specifications of business. Held: Application for order contains all essential legal elements - must distinguish between necessity to specify essential legal elements of offence and necessity to furnish essential factual particulars - identification of the essential legal elements of a statutory offence is a question of construction - matters which are essential legal elements of the offence which need to be pleaded are those contained in ss10(3) and (4) - each of the defendants' motions dismissed - costs reserved.

Criminal Procedure Act 1986 Industrial Relations Act 1996 LEGISLATION CITED: Industrial Relations Commission Rules 1996 Supreme Court (Summary Jurisdiction) Act 1967 Occupational Health and Safety Act 2000

Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501 Inspector Ross Wolf v Rockdale Beef Pty Ltd [2005] NSWIRComm 163 CASES CITED: John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508 Johnson v Miller (1937) 59 CLR 467 Kirk Group Holdings Pty Ltd v Workcover Authority of New South Wales [2006] NSWCA 172 Taylor v Environment Protection Authority (2000) 50 NSWLR 48

PROSECUTOR Mr P Skinner of counsel SOLICITOR: Ms L Barnes WorkCover Authority of New South Wales

DEFENDANTS Mr G Hatcher SC with Mr M Easton of counsel SOLICITOR: Mr P Terrett Terrett Lawyers

• 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

1 These proceedings concern prosecutions instituted by Inspector Stephen Jones of the Workcover Authority of New South Wales against three defendants. The defendants are, respectively, Rockdale Beef Pty Ltd (Matter No. 6660), Renod Holdings Pty Ltd (Matter No. 6663) and MC Meats (Rockdale) Pty Ltd (Matter No. 6664). The proceedings are constituted by an Order issued by a judicial member of the Industrial Court of New South Wales on 19 December 2005 which, in return, refers to an offence charged in an Application for Order dated 16 December 2005 signed by the prosecutor and which is annexed to the Order. Each of the defendants is charged with a breach of s 10(1) of the Occupational Health and Safety Act 2000 ("the Act"). Each of the Applications for Order is, relevantly, in the same terms. I set out hereunder the Application for Order filed in the proceedings against the defendant Rockdale Beef Pty Ltd, discussion of which will govern the proceedings against all defendants.

"INSPECTOR STEPHEN JONES of the WorkCover Authority of New South Wales at 104-110 Banna Avenue Griffith in the State of New South Wales, an Inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 and empowered under section 106 of the Occupational Health and Safety Act 2000 to institute proceedings in the within matter, CHARGES that ROCKDALE BEEF PTY LIMITED ACN 003 789 991 , a company whose registered office is located at Suite 2004, Level 20, BT Tower, 1 Market Street, Sydney 2000 in the State of New South Wales, (defendant), on 20 December 2003 at Regulator Road Yanco in the State of New South Wales (Premises)

1. controlled the Premises - which were used by people as a place of work, not used only by employees of the defendant, not occupied only as a private dwelling, and controlled in the course of a business; and
2. failed to ensure that the premises were safe and without risks to health; contrary to section 10(1) of the Occupational Health and Safety Act 2000 . Particulars : The defendant failed to ensure that the premises in particular a livestock unloading ramp built thereon used by John Jarman and Peter Ferguson as a place of work was safe and without risks to health. As a result of the defendant's failures John Jarman and Peter Ferguson were placed at risk as to their health and safety, and John Jarman received serious injuries.

Pursuant to s 246 of the Criminal Procedure Act 1986 I hereby apply for the issue of an order requiring the said ROCKDALE BEEF PTY LIMITED to appear before the Industrial Court of New South Wales in answer to the said charge.

My affidavit 16 December 2005 verifying the allegations made in this application is attached.

2 Each of the defendants is charged with a breach of s 10(1) of the Act. S 10 is in the following terms:

S 10 Duties of controllers of work premises, plant or substances (1) A person who has control of premises used by people as a place of work must ensure that the premises are safe and without risks to health. (2) A person who has control of any plant or substance used by people at work must ensure that the plant or substance is safe and without risks to health when properly used. (3) The duties of a person under this section: (a) do not apply to premises, plant or substances used only by employees of the person, and (b) do not apply to premises occupied only as a private dwelling or to plant or substances used in any such premises, and (c) extend to the means of access to or exit from a place of work, and (d) apply only if the premises, plant or substances are controlled in the course of a trade, business or other undertaking (whether for profit or not) of the person. (4) In this section, a person who has control of premises, plant or substances includes: (a) a person who has only limited control of the premises, plant or substances (in which case any duty under this section applies only to the matters over which the person has control), and (b) a person who has, under any contract or lease, an obligation to maintain or repair the premises, plant or substances (in which case any duty under this section applies only to the matters covered by the contract or lease). 3 Each of the defendants has filed a motion seeking that the proceedings be dismissed, that the Application for Order in each matter be struck out and that the Order dated 19 December 2005 be quashed. 4 The grounds and reasons included with each notice of motion refer to the manner in which each charge is framed. There is an allegation that each defendant "controlled" the premises described and failed to ensure that the premises were safe and without risks to health as provided for in s 10(1). Each defendant asserts that the charge has failed to specify "all of the essential legal elements" of the charge. 5 The first essential legal element that the prosecutor is said to have failed to specify relates to control of the premises. Each of the charges brought against each of the defendants arises out of the same incident and, therefore, each of the three defendants is charged with having been in control of the relevant premises. Correspondence between the solicitors for the defendants and the prosecutor, in which the nature of the allegations to be brought against each defendant by the prosecutor has been refined, demonstrates that as against each defendant the prosecutor will allege that it had, to some extent, control of the subject premises. However, the prosecutor does not allege that any one defendant had exclusive control of the premises. It is therefore asserted on behalf of each defendant that the charge "fails to state the extent of that control, the matters over which the Defendant is alleged to have had control or the nature of the duty applying to such matters as referred to in subsection 10(4) of the Act." It is obvious that questions of the matters over which a person has control is a reference to the provisions of subsection (4)(a). 6 The next matter raised in the defendants' motions is that the Application for Order and the Order "failed to specify any date or dates upon which the defendant is alleged to have breached the duty proscribed by s 10(1) of the Act to which the charge relates." This is said to be an essential element of the charge. 7 Thirdly, it is alleged that although the Application for Order and Order state that the defendants controlled premises in the course of a business, there is a failure to state what the business was or whether the business "is alleged to be the business of the defendant or of some other person as required by subsection 10(3)(b)." 8 In order to determine the matter, it is first necessary to have regard to what are the essential legal ingredients of the offence. It is a trite observation that a valid charge at law must state every essential legal ingredient of the offence, (see, for example, Mahoney JA in the New South Wales Court of Appeal in Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501 at 516-517, Mason CJ, Deane and Dawson JJ in the High Court of Australia in John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508 at 519-521.) 9 It is important, however, to distinguish the necessity to specify the essential legal elements of the offence from the necessity to furnish "essential factual particulars". The distinction and its consequences are succinctly described by Sperling J in the New South Wales Criminal Court of Appeal in Taylor v Environment Protection Authority (2000) 50 NSWLR 48. At 57 His Honour said:

[25] Section 43 of the Land and Environment Court Act 1979 provides, so far as is material, that no objection shall be taken or allowed to any application (ie the summons) referred to in, or to any order made under s 41, by reason of any alleged defect in it in substance or in form. This is what is known as a Lord Jervis provision. Similar provisions are to be found in the Justices Act 1902 , ss 30 and 65. [26] 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.

10 Meagher JA and James J agreed with His Honour's reasons for judgment. 11 I should emphasise that my only concern, for the purpose of this interlocutory judgment, is whether the Application for Order and Order in each of the proceedings has failed to specify all of the essential legal elements of each charge. I am not concerned whether all of the essential factual particulars have been given and whether there is any other deficiency in terms of particularity. Nor am I concerned with whether or not there is an equivalent of the Lord Jervis Act and whether or not the Court is empowered to amend an Application for Order and Order where the Application for Order has been applied for on oath (see, for example, the comment of Mahoney JA in connection with the laying of an information on oath in Boral Gas at 516). 12 It is a trite observation that there is no magic incantation that will allow a court to identify what are the essential legal elements of a statutory offence. It is a question of construction of the statute. 13 A discussion of the essential legal elements of the offence created by s 10 of the Act is to be found in the judgment of Schmidt J in this Court in Inspector Ross Wolf v Rockdale Beef Pty Ltd [2005] NSWIRComm 163. 14 In essence, Schmidt J was concerned in determining the same issues with which I am confronted in these proceedings. They were described by Her Honour in the following manner:

[29] It was the defendant's case that the essential legal elements of an offence in respect of the duties imposed by s10 appear in ss10(1) or 10(2), necessarily as understood by the provisions of ss10(3) and (4). Those elements must be specified in the charge and must be proven by the prosecutor at the trial, in order for the offence to be made out. This approach accorded with that of the High Court in Chugg v Pacific Dunlop Limited (1990) 170 CLR 249. [30] It was the prosecutor's case that the essential legal elements of the offence with which the defendant had been charged under ss10(2), all appeared within that section. Section 11 of the Criminal Procedure Act was relied upon. What was contained in ss10(3) and (4), did not form a part of the offence; those matters did not have to be proved by the prosecution, in order to make out the offence; they were matters which a defendant could establish, for example, by way of defence of a charge. 15 It will be noted that there is a reference to s 11 of the Criminal Procedure Act. This provides that "The description of any offence in the words of an Act or statutory rule or other document creating the offence, or in similar words, is sufficent in law." 16 I am unsure as to whether s 11 of that Act applies to these proceedings. There is a reference to that Act in s 168 of the Industrial Relations Act 1996 which is in the following terms:

S 168 Criminal procedure (1) Proceedings for any offence in respect of which proceedings are taken before the Commission in Court Session are to be dealt with summarily by the Commission. (2) Part 5 of Chapter 4 of the Criminal Procedure Act 1986 applies to proceedings for an offence taken before the Commission in Court Session. (3) Nothing in subsection (2) affects the operation of section 170. (4) The provisions applied by this section prevail over any other provisions of this Part for the purposes of proceedings for an offence. 17 It will be seen that Part 5 of Chapter 4 of the Criminal Procedure Act applies. That Part is entitled "Summary Jurisdiction of Supreme Court and other Higher Courts". By s 171 of that Act, a Judge includes a Judge of this Court. However, s 11 is not included within that Part. 18 There is reference in Rule 217B of the Industrial Relations Commission Rules 1996 to the requirements of an Application for an Order. There is a reference to the Supreme Court (Summary Jurisdiction) Act 1967, which has been repealed. The history and its potential impact on proceedings in this Court is the subject of discussion in the judgment of Basten JA in the New South Wales Court of Appeal in Kirk Group Holdings Pty Ltd v Workcover Authority of New South Wales [2006] NSWCA 172 (see at paragraph [71] and following). Spigelman CJ and Beazley JA agreed in His Honour's observations. For present purposes I shall assume nothing turns on this. 19 Rule 217B is in the following terms:

Rule 217B Prosecutions (1) Proceedings before the Commission in Court Session for an offence (other than contempt) must, unless otherwise provided, be commenced by an application for an order under section 4 (1) of the Supreme Court (Summary Jurisdiction) Act 1967 (as applied to the Commission by section 168 of the Industrial Relations Act 1996). (2) The application must state: (a) the name and address of the person by whom the proceedings are brought ( "the prosecutor"), and (b) the capacity in which the prosecutor is taking the proceedings, and (c) the name and address of the person against whom the proceedings are brought ( "the defendant"), and (d) the Act and the section under which the defendant is alleged to have committed an offence, and (e) the nature of the offence that is alleged. (3) The Commission may require the prosecutor to file, in support of the application for an order filed under subrule (1): (a) an affidavit verifying the allegations made in the application, and (b) a minute of the order claimed.

20 It will be observed that r 217B(2)(e) requires the Application for Order to state "the nature of the offence that is alleged." I have not been asked by the parties to determine whether the Application for Order and Order refer cumulatively to the "nature of the proceedings". 21 For present purposes, I shall ignore the provisions of s 11 of the Criminal Procedure Act because I am able to deal with these proceedings without relying on its provisions. 22 After reviewing a number of authorities and upon analysis of the provisions of s 10, Schmidt J concluded that the matters referred to in subparagraphs (3) and (4) of s 10 are matters which are essential legal elements of the offence and which need to be pleaded within the charge. I respectfully agree with Her Honour's reasoning and Her Honour's conclusion. In doing so I am mindful that a full bench of this Court is currently reserved on an appeal from Her Honour's judgment. However the parties agreed that the decision on appeal may not impact on this part of Her Honour's judgment. 23 I should add that if I had been called upon to construe the provisions of s 10 without the benefit of the reasons for judgment of Schmidt J, I would have come to the same conclusion. It is clear that the control of premises is an essential ingredient of the offence. However, in the context of control it is impossible and impermissible to ignore that the control of the premises must be carried out in the course of a trade, business or other undertaking as provided for in s 10(3)(d). It is also necessary to acknowledge the provisions of s 10(4)(a) that allow a limited control as opposed to exclusive control to form the basis for the bringing of a charge. 24 In the context of premises it is impossible to ignore the requirement that those premises be occupied other than solely as a private dwelling as required by s 10(3)(b). 25 Furthermore, the premises must be used by people other than employees of the defendant as a place of work in a general sense. 26 There are other features of s 10 with which I need not deal because I am presently only involved in the identification of what are the essential legal ingredients of the offence. 27 Having regard to these observations, it is now necessary to see whether each and every essential legal ingredient has been adequately dealt with in the Application for Order and Order. 28 It should be observed that the Application for Order sets out the following matters: (1) the name of the prosecutor and the authority of the prosecutor to institute proceedings; (2) the name of the defendant; (3) the premises; (4) the fact that the defendant "controlled" the premises; (5) that the premises were used by people as a place of work; (6) the fact that the premises were not used only by employees of the defendant; (7) that the premises were not occupied only as a private dwelling; (8) that the premises were controlled in the course of a business; (9) that there had been a failure to ensure that the premises were safe and without risks to health, as provided for in s 10(1) of the Act; (10) the date on which such failure was said to have occurred. 29 The particulars identified a livestock unloading ramp at the premises and the names of two persons with respect to whom there was said to have been a risk to their health and safety.

30 In my opinion, the Application for Order contains all of the essential legal ingredients to which I have referred. 31 The defendants submitted that a reference to control of the premises without any limitation was an impermissible formulation of the essential legal ingredient because, as was clear from particulars furnished by the prosecutor, the case to be mounted by him was to the effect that each defendant did not have sole and exclusive control of the premises but only a limited control. In that subsection (4) of s 10 includes within the concept of control a reference to limited control, it is, in my opinion, permissible to refer to control without further specificity when considering the inclusion of an essential legal ingredient of the charge. Of course, the same may not be true of disputes concerning particulars with which I am not currently concerned. 32 The defendants submitted also that the duty, which is limited by the limited control as referred to in s 10(4)(a), was also an essential legal element of the offence. Again, using the same approach I would conclude that a reference to the existence of the duty without further limitation is sufficient to include that essential legal ingredient of the offence. Again, this does not take into account any later argument with respect to particularisation. 33 In the same way, the defendants took issue with the cryptic description in the Application for Order of the control of the premises "in the course of the business". It was said, that this did not constitute "fair information and reasonable particularity as to the nature of the offence charged." This is a reference to well-known observations in the High Court of Australia in Johnson v Miller (1937) 59 CLR 467. True it is that there are observations by Dixon J (as His Honour then was) at 486 and following and by Evatt J at 495 and following with respect to the necessary particularisation of a charge. However, these observations go more to the essential factual ingredients of the offence and the application of the equivalent of Lord Jervis' Act to the proceedings rather than to any discussion of what are the essential legal ingredients of the offence. As I have pointed out on a number of occasions, I am dealing only with the latter matter and to this extent I reject the defendants' submissions. In my opinion, having stated that control of the premises was undertaken in the course of a business, this is a sufficient statement of an essential factual ingredient. 34 Finally, I would add that there is a reference to the place and date on which the offence occurred. 35 In all of the circumstances, I conclude that the motions brought by the defendants must fail because each of the Applications for Order and therefore each of the Orders set out the essential legal ingredients of the offence. 36 Accordingly, each of the notices of motion is dismissed. There seems no reason why costs should not follow the event. In any event, however, I shall reserve costs.

Orders 37 In each of the proceedings, the defendant's notice of motion is dismissed. Costs are reserved. Liberty to apply with respect to costs.

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