WORKCOVER AUTHORITY OF NSW (INSP MALTBY) v ABIGROUP CONTRACTORS PTY LIMITED, WORKCOVER AUTHORITY OF NSW - [2002] NSWIRComm 187 - NSWIRComm 2002 case summary — Zoe

NSWNSWIRComm

WORKCOVER AUTHORITY OF NSW (INSP MALTBY) v ABIGROUP CONTRACTORS PTY LIMITED, WORKCOVER AUTHORITY OF NSW

[2002] NSWIRComm 187

Industrial Relations Commission (NSW)|2002-08-06|Before: Kavanagh J, The Hon J, Mr P

View original source

At a glance

Source facts

Court

Industrial Relations Commission (NSW)

Decision date

2002-08-06

Before

Kavanagh J, The Hon J, Mr P

Source

Original judgment source is linked above.

Judgment (57 paragraphs)

[1]

CITATION : WORKCOVER AUTHORITY OF NSW (INSP MALTBY) v ABIGROUP CONTRACTORS PTY LIMITED, WORKCOVER AUTHORITY OF NSW (INSP MANSELL) v LUIS BUSTAMANTE [2002] NSWIRComm 187 PROSECUTION: WORKCOVER AUTHORITY OF NSW (INSP MALTBY) WORKCOVER AUTHORITY OF NSW (INSP MANSELL) PARTIES : DEFENDANTS: ABIGROUP CONTRACTORS PTY LIMITED LUIS BUSTAMANTE

[2]

FILE NUMBER: IRC5432,5433,5434,5436,5438,5502,5503 of 1999 CORAM: Kavanagh J CATCHWORDS : Defendants' application no evidence before court as to time limitation requirement re s49(4) of Occupational Health and Safety Act 1983 - Application of Prosecution to call further evidence - presumption of regularity found until objection taken - leave granted to call evidence LEGISLATION CITED : Occupational Health and Safety Act 1983 Industrial Relations Act 1996 WorkCover Authority of New South Wales (Inspector Keenan) v Lucon (Australia) Pty Limited (2002) 112 IR 332 Price v Humphries [1958] 2 QB 353 EPA v Bathurst City Council (1995) 89 LGERA 79 CASES CITED : Thompson v The Queen (1988) 169 CLR 1 Berwin v Dononhoe (1915) 21 CLR 1 Rodney Morrison and Dartbrook Coal Pty Limited v Tecrete Industries Pty Limited [2002] NSWIRComm 27 Dever v Creevey, ex parte Creevey (1992) 1 Qd R 232 HEARING DATES: 07/12/2002 DATE OF JUDGMENT: 08/06/2002

[26]

15 While the Full Bench was considering the above referred questions, a Full Bench of the Commission sitting in Court Session handed down a decision in WorkCover Authority of New South Wales (Inspector Keenan) v Lucon (Australia) Pty Limited (2002) 112 IR 332. Relevant to the consideration of the Full Bench on the referred questions, the Full Bench determined in Lucon there was no requirement under Rule 219 that s49 be mentioned in the initial application for orders for there to be valid proceedings. Lucon also dealt with the findings of Schmidt J in the SRA cases. The Full Bench said: 93 . . . . We consider that reliance on (or reference to such reliance on) the time limits in s49(1) or s49(4) is not an element of offences under the Occupational Health and Safety Act . It therefore follows that in so far as her Honour held that r219(1)(d) requires that the application for summons and accompanying affidavit must state that s49(4) is relied upon, her Honour was in error. The application is made under the provisions which create the offences (for example, s15,16 or 17 in the present matters) and not under s49(4). Similarly, compliance with s49(4) does not form part of "the nature of the breach or offence which is alleged" and, therefore, r219(1)(e) does not require specification of the details of, or the basis for reliance on, s49(4). . . . 94 There is therefore no lack of validity in any of the applications by reason of any failure to specify a reliance upon the extended time limit in s49(4) or the basis for any reliance of that provision; and, for reasons which we now discuss, any such so-called "failure" does not affect the mandate in s4(1)(a) of the Summary Jurisdiction Act. And: 116 . . . the applications were not invalid because of any failure to refer to s49(4) or to specify the basis upon which s49(4) was said to apply. . . .. The authority of Lucon determined therefore that at the time of the issuing of the Orders, compliance with Rule 219 does not require the orders to state s49(4) is relied upon.

[38]

28 The Defendants distinguish the case of Price v Humphries as relied upon by the Prosecution submitting, even if the authorities relating to the "consent" to prosecute are analogous, in Price v Humphries, Devlin J addresses his finding to circumstances where there was a presumption that the Clerk to the Justice or the Justice who issued the summons had satisfied him/herself as to consent. Mr Hodgkinson submits there can be no such presumption by the Commission in Court Session as the Full Bench of the Commission in Lucon at [104] determined it was inappropriate to consider the limitation period when an application for the issue of summons was being considered. 29 In the alternative the Defendants submit, if analogy is required, a safer analogy is the principles formulated by the High Court in Thompson v The Queen (1988) 169 CLR 1 which addressed the procedure where there was issue as to a court's territorial jurisdiction to try an offence. By analogy, it is submitted a similar approach is appropriate in the present case with respect to the need for the Prosecution to call evidence to prove that s49(4) of the Act applies. The rationale of the majority in Thompson v The Queen was that location must be proved to found the authority of the court to enter a lawful judgment upon conviction or acquittal (see (1988) 169 CLR 1 at 12, 39). That rationale applies with equal force to the application of s49(4) of the Act the Defendants submit. 30 The Defendants therefore submit evidence to support the application of s49(4) ought to have been led before the close of the Prosecution case as the Defendants had clearly raised the issue of contention from the outset of the proceedings. The Defendants summarised their case with reliance placed on: (i) the directly applicable authority of the NSW Court of Criminal Appeal in EPA v Bathurst City Council ; (ii) by analogy with the principles formulated by the High Court in Thompson v The Queen , and (iii) by analogy with the principles consistently supported by (a proper reading of) the consent to prosecute cases. 31 In accordance with legal principles, the Defendants submit, the Prosecution should not now be allowed the exceptional remedy of being permitted to re-open its case. The failure to lead evidence in the Prosecution case to deal with the issue of s49(4) when, clearly, it ought to have been foreseen, is a sufficient and appropriate basis to deny the Prosecution's application to re-open its case. Consideration 32 Section 49 of the Occupational Health and Safety Act 1983 relevantly states: 49. Time for instituting proceedings for offences (1) Notwithstanding anything in any other Act, proceedings for an offence against this Act or the regulations may be instituted within the period of 2 years after the act or omission alleged to constitute the offence. (2) . . . (3) . . . (4) If a coroner's inquest or inquiry is held and it appears from the coroner's report or proceedings at the inquest or inquiry that an offence has been committed against this Act or the regulations, proceedings in respect of that offence may be instituted, despite anything to the contrary in this section, within 2 years after the date the report was made or the inquest or inquiry was concluded, as the case may be. Given the date on the summonses and the date of the incident, the prosecution must have issued the summonses, the Defendants allege, relying on the provisions of s49(4) in order for the charges to have been brought within the time limitation under the Act.

[47]

39 The court in Price v Humphries then considered a similar circumstance (but related to a consent to prosecute) to the circumstances before this court: The question we have to determine is: what is the position if he fails to do so as he did in this case? I think that the position has been dealt with, and the law has been fully laid down in Rex v Waller [1910] 1 KB 364; 26 TLR 42 . . . where Lord Alverstone CJ (quoting the court) in Rex v Turner [1910] 1 KB 346 at 366 said: '. . . No doubt the giving of the consent is a condition which must be satisfied in fact, and unless it has in fact been given the indictment ought not to be allowed to go before the grand jury. But how far or under what circumstance that fact need be proved at the trial is a different matter. . .' At 358: . . . prima facie the position was that the summons had been properly issued and there was no need for the prosecution to take any further step unless objection was taken. If objection is taken, then they must be in a position to prove it . . . Rex v Day (1940) 27 Crim App R 168; [1940] 1 All ER 402 lays it down that if the matter is one of substance the prosecution ought not to be allowed to open its case. On the other hand, there are authorities which show if the matter is one of technicality, such as the proof of a statutory rule or order, or something of that sort, then the justices should allow the prosecution case to be re-opened. But where what is in issue is simply the question of whether proceedings are properly authorized, no question really arises about re-opening the prosecution case at all. . . . if the prosecution is allowed without objection to close its case then the prosecution has done all that is necessary and the summons is presumed to be a good one and properly authorized. If the defence wants to challenge that and take objection, they should take their objection before the prosecution case is closed, and having taken their objection the burden will pass to the prosecution to produce the evidence they have which shows the proceedings were duly authorized. Given the presumption of regularity it is not until the objection is taken that the burden passes to the prosecution to produce evidence.

[54]

46 During the trial, despite mutterings, no formal objection was raised before the court by the Defendants until after the close of the Prosecution case. While broader issues had been raised in the interlocutory Notice of Motion before me, the court ruled they were to be dealt with at the appropriate time in the trial. The form of any objection to be pursued was not made clear to the Prosecution during the presentation of its case even though there was mention of an "abuse of process" application to come. Price v Humphries refers to "when the matter comes before the court". The first application, as distinct from the threats that had been made, was brought by the Defendants to the Court after the close of the Prosecution's case. While the first application was dealt with by the Full Bench and not otherwise pursued, this new application was not brought until after the close of the Defendants' case at the end of the trial. Price v Humphries and R v Waller are authority for the propositions any objection of such a nature should be raised prior to the close of the Prosecution case and, if raised later, leave to call evidence should be granted. 47 On Lord Goddard's view, the objection of the Defendants at this stage in the proceedings ought be disallowed. However, in the use of my discretion I believe the interests of justice and fairness to both parties requires the Defendants should be allowed to raise its objection and leave should be granted to the Prosecution to call further evidence. In so ruling I take into account while formal notice of the application was not brought earlier, the Prosecution was aware there was an issue, not clearly defined, or not redefined which was alive in the proceedings. The authorities I find support the proposition, as the issue is of a procedural nature, it should have been properly raised by the Defendants before the court prior to the close of the Prosecution's case and if raised after, leave should be granted for the Prosecution to call evidence to meet the application. In the use of the court's discretion I so order.