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

JUDGMENT: - 18 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: KAVANAGH J Date: Tues 6 August 2002

IRC5432 of 1999 WORKCOVER AUTHORITY OF NSW (INSP MALTBY) v ABIGROUP CONTRACTORS PTY LIMITED Prosecution under s15(1) of the Occupational Health and Safety Act 1983 IRC5433 of 1999 WORKCOVER AUTHORITY OF NSW (INSP MALTBY) v ABIGROUP CONTRACTORS PTY LIMITED Prosecution under s16(1) of the Occupational Health and Safety Act 1983 IRC5434 of 1999 WORKCOVER AUTHORITY OF NSW (INSP MALTBY) v ABIGROUP CONTRACTORS PTY LIMITED Prosecution under s16(1) of the Occupational Health and Safety Act 1983 IRC5436 of 1999 WORKCOVER AUTHORITY OF NSW (INSP MALTBY) v ABIGROUP CONTRACTORS PTY LIMITED Prosecution under s15(1) of the Occupational Health and Safety Act 1983 IRC5438 of 1999 WORKCOVER AUTHORITY OF NSW (INSP MALTBY) v ABIGROUP CONTRACTORS PTY LIMITED Prosecution under s16(1) of the Occupational Health and Safety Act 1983

IRC5502 of 1999 WORKCOVER AUTHORITY OF NSW (INSP MANSELL) v LUIS BUSTAMANTE Prosecution under s19(a) of the Occupational Health and Safety Act 1983 IRC5503 of 1999 WORKCOVER AUTHORITY OF NSW (INSP MANSELL) v LUIS BUSTAMANTE Prosecution under s19(a) of the Occupational Health and Safety Act 1983 INTERLOCUTORY JUDGMENT (No 2) (AS TO APPLICATION OF PROSECUTION TO CALL FURTHER EVIDENCE) [2002] NSWIRComm 187

1 The Prosecution makes application to call further evidence. The application arises from an objection/application brought by the Defendants after the close of evidence in a trial related to charges brought for breaches of the Occupational Health and Safety Act 1983. The Defendants brought their objection/application in the following terms: 1. The time limit for the commencement of proceedings under s49(1) of the Occupational Health and Safety Act on the face of the documents was not complied with and the proceedings are out of time.

2. In accordance with s49(4) of the Act with reference to the WorkCover Prosecutions against both Abigroup and Mr Bustamante there was no evidence before the court related to the Coronial proceedings in which it could be found that s49(4) was activated and, accordingly, the proceedings are out of time.

2 The Hon J.W. Shaw QC with Mr P.M. Skinner appears for the Prosecution. Mr B.D. Hodgkinson SC appears for the Defendants. Tendered in the application to call further evidence are affidavits of Ms Susan Jean Tankard for the Prosecution and Mr Luke Travis Connolly for the Defendants. Both affidavits address the chronology related to this litigation. The court has also been assisted by oral and written submissions from both parties.

3 It is necessary to trace the history of this litigation to place the application in its context and to consider its legal status. History 4 The President, Wright J issued a number of Orders to appear in relation to Summonses issued under the Occupational Health and Safety Act 1983 for alleged breaches of the Act against Abigroup Contractors Pty Ltd and Mr Luis Bustamante, the foreman of Abigroup Contractors. The summonses were issued under s15(1), s16(1) and s19(a) of the Act and relate to an explosion on a demolition site during the upgrade work being done at the Kogarah Railway Station. The explosion occurred on 4 December 1995.

5 Prior to the hearing, by way of Notices of Motion (in each matter), the Defendants sought: 1. An order setting aside the Orders made in this matter. 2. A declaration that the Orders, or some of them made in this matter, were made outside the time limits prescribed by Section 49(1) of the Act.

In the alternative, a declaration in the following terms: . . . the Respondent (to the motion) has failed to satisfy the requirements of section 49(4) of the Act.. . . In the alternative, a declaration in the following terms: The Coroner's Report or the proceedings do not disclose a rational basis for the view that the offence(s) or some of them appear to have been committed. 6 At the hearing of the Notices of Motion before the Commission sitting in Court Session, Mr Shaw raised a preliminary point as to the court's jurisdiction to consider the Motions. Mr Shaw submitted that the privative provisions of the Industrial Relations Act 1996 (the IR Act), namely s179 of the IR Act, protected the Orders made by Wright J, President. The court held s179 precluded the challenge to the validity of the orders made by Wright J, President on 7 February 2001 (see WorkCover Authority of NSW (Insp Maltby) v Abigroup Contractors Pty Ltd & Anor [2001] 110 IR 152). As to the attack on the Orders arising under s49(1) & s49(4) the Occupational Health and Safety Act 1983 as particularised in the Notices of Motion, the court refused to issue such orders or declarations and held the Defendants' submissions were matters which could be determined at trial. The Notices of Motion, in all matters, were dismissed. 7 The judgment of this court as to the effect of s179 was not appealed. The Defendants made application for an extension of time to appeal the decision of Wright J, President, to issue the Orders. The Full Bench of the Industrial Relations Commission sitting in Court Session refused the Application for Leave to Appeal ((2001) 112 IR 139).

8 The matters came back to this court for the hearing of the alleged breaches of the Occupational Health and Safety Act 1983 by Abigroup Contractors Pty Ltd and Mr Luis Bustamante as per the Orders issued by Wright J, President.

9 At a Directions Hearing on the future conduct of the prosecutions (31 January 2002), Mr Hodgkinson, for the Defendants, raised the outstanding issues in the following terms: The question of the failure to comply with the requirements of section 49 of the Occupational Health and Safety Act 1983 as meaning these proceedings are commenced out of time and therefore their continuation is an abuse of the Commission's process. The second issue was an alternate issue and that is we identified even if that primary point were wrong there is a restriction on what can be dealt with because of the way the Coronial proceedings went forth, that is, these charges did not arise as they must at least in part from the Coronial record of proceedings. . . .

. . . Could we say this, we may not pursue the second of those issues at the outset, but we will pursue the first of the issues. . . .

If we pursue the second of the arguments, we will move the Court to deal with it on the voir dire . (emphasis added) 10 The charges then went to hearing. A plea of not guilty by each defendant was entered to each charge. During the Prosecution's case, mention was made by the Defendants of the future application related to an "abuse of process" (that had been pleaded in the Notice of Motion and held to be a matter for trial and which had been re-mentioned by the Defendants at directions hearings). For example: 27.2.2002 Defendants: . . . we have indicated that we are likely to seek to resurrect the opportunity to argue that technical point on abuse of the process. . . . Prosecution: . . . It would assist the Prosecution immensely if, just in very short form - even only half a page - the defence could outline the nature of the application they propose to make. . . .

15.2.2002 - Defendants' counsel in cross examination, Inspector Maltby of the WorkCover Authority of New South Wales:

Defendants: In what circumstances did you see these particulars of proposed charges?

The Prosecution objected to question. The witness was stood down. Prosecution: There is a principle of criminal law that cuts across all jurisdictions, in that prosecutorial decisions of this nature are not reviewable by the court unless the defendant can raise some sort of issue as to abuse of process raised by them, which may or may not then lead to a relevant line of inquiry as to whether there were some mala fides or something in the prosecutor.

Defendants: It does go to the question of abuse of process. The prosecutor is on notice that we have intended to bring such an application in the course of these proceedings, as is the court. It should come as no surprise. 20.3.2002 - after the close of the case for the Prosecution:

Defendants: . . . we have indicated through out this trial that we will at an appropriate time advance this argument as to abuse of process. Now seems to be the appropriate time given that all of the evidence of the Prosecution is before your Honour. Court: Is there only an application related to abuse of process that I am going to be asked to hear. . . . Defendants: Essentially we say that these proceedings have been commenced out of time. As a consequence of being commenced out of time, no valid finding of breach can be entered against the defendant. 11 The Defendants then brought this application. The application was termed an "abuse of process" objection. Directions were given as to the conduct of the Defendants' application. Mr Skinner said of the court's directions related to submissions: Prosecution: I put a slight caveat on that because I don't know what I will be facing. 12 The Defendants, outlined their application in submissions as follows: . . . . 4. None of the documents filed by the Prosecutor in an attempt to initiate the actions refer to either the fact of a coronial inquiry or to any reliance upon section 49(4) of the 1983 OH&SA; and 5. The Prosecutor has failed to comply with rule 219 of the Commission's Rules. . . .

The Defendants relied upon the reasoning of Schmidt J (see WorkCover Authority of New South Wales (Inspector Maltby) v State Rail Authority of New South Wales (2000) 101 IR 271 (the 1st SRA decision); (see WorkCover Authority of New South Wales (Inspector Maltby) v State Rail Authority of New South Wales [2001] 108 IR 121 (the 2nd SRA decision) (31 May 2001) to submit the obligation on a Prosecution seeking to rely on s49(4) is to determine from a Coroner's record or proceedings at an inquest or inquiry that an offence has been committed. That obligation, the Defendants submitted, was imposed upon the Prosecution at the outset, that is, before commencement of the proceedings and should be specified in the summonses. Similarly, they submitted compliance with Rule 219 had therefore not been observed before the issuing of summonses.

13 On receipt of the submissions of the Defendants, the Prosecution made an application to recall two witnesses on the voir dire submitting: Prosecution: . . . we make that application for abundant caution. It is our primary submission that their (the WorkCover Inspector's) state of mind at the time they issued the proceedings is not justiciable, the defendant not having discharged any evidentiary onus to indicate that mala fides is in issue. However, unless your Honour were to rule in our favour on that submission now for abundant caution we would propose to call the evidence in any event to establish there was no mala fides The Defendants opposed the application. The court held: . . . I am satisfied from a reading of all transcripts, both leading up to trial, from transcript of the trial, from judgment of this court, that the prosecutor has had notice of a claim to be led at some time through the trial, at the appropriate time, that there was an abuse of process in the issuing of the summonses before me. I am satisfied that that issue and another issue was stood over to trial in the prior judgment of this court. I am satisfied from a reading of the transcript that when some evidence was led, the prosecutor was sufficiently cautious as to that evidence to take an objection. I am further satisfied that the defendant revealed that the questions did go to the questions of abuse of process. The prosecutor takes objection to some inferences that are being made in relation to the evidence that has been led. In my view, that question is to be canvassed in the hearing of the abuse of process application. It is my view that the application of the prosecutor to call further evidence should be rejected.

14 The court, having denied the application to call further evidence and arising from the Defendants' application, determined to send two questions to a Full Bench pursuant to s196 of the IR Act and s5AE of the Criminal Appeal Act 1912 (No 16). Those questions (one amended) read: (1) Whether the Prosecutors have failed to comply with Rule 219 of the IRC Rules in that they failed to refer in any of the Applications for Summons, Affidavits in Support of Application for Summons, and Summonses for Prosecution filed on 12 October 1999 in the Registry of the Commission in these proceedings ; (words highlighted reflect the amended question.) (a) the fact of a Coronial Inquiry; and/or (b) s49(4) of the Occupational Health and Safety Act 1983.

(2) If the answer to question 1(a) or (b) is "Yes" whether some or all of the Summonses and/or the proceedings must be dismissed.

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.

16 The Full Bench then in an ex tempore decision (unreported, IRC1851 of 2002, 29 April 2002) dealt with the referred questions from this trial in the following way: . . . We answer the first question 'No': see WorkCover Authority of New South Wales (Inspector Keenan) v Lucon (Australia) Pty Limited [2002] NSWIRComm 68.

. . . We answer the second question in the same way. That is, 'Does not arise'. . . .

17 The matter came back before me as the Judge at first instance to continue the trial. The Defendants took no further objection nor made any further application nor pressed their prior application. The case proceeded. The Prosecution had closed its case. The Defendants went into evidence and tendered documentation. They then closed their case.

18 A new application was then brought on much narrower grounds than the first application brought at the close of the Prosecution's case which was dealt with by the Full Bench through the referred questions. This application reflected the decision of Lucon. The application was in terms as outlined in para 1 above. Submissions of the Defendants on the application 19 The Defendants plead the limitation provisions under the Occupational Health and Safety Act 1983 operate as a plea in bar to the Prosecutions or alternatively provide a defence to the charges. The Defendants submit the Commission in Court Session must find a failure by the Prosecution to ascertain, before commencing proceedings, the particular charges relied upon can be identified from a Coronial Report of proceedings. That is, the Prosecution has failed to establish a basis for the reliance on the extended time limit under s49(4) of the Act and therefore has failed, on the evidence, to establish the appropriate consideration.

20 The Defendants submit no document filed by the Prosecution when bringing the charge, referred to a Coronial Inquiry, a Coroner's Report or reliance upon s49(4) of the Occupational Health and Safety Act 1983. Further, there is no evidence of the content of the Coronial proceedings or report before the Commission in Court Session during the presentation of the prosecution case at trial. It was submitted there is no evidence that a Coroner's Report was issued. As a consequence, the Defendants submit the limitation period, as prescribed by section 49(1) allowing two years from the date of the alleged offence for the Prosecution, had expired on 4 December 1997. Therefore, all the proceedings against the Defendants were commenced out of time.

21 Further, the Defendants submit re-opening the Prosecution case will incur significant prejudice to the Defendants. They will be required to consider whether they need to apply to further cross examine Prosecution witnesses. The Defendants will also need to consider whether to seek to re-open their cases in order to respond to any further evidence led by the Prosecution. Consequently, the Defendants submit they will be exposed to substantial, further costs, delay and forensic disadvantage in the determination of the proceedings.

Submissions of the Prosecution 22 The Prosecution relies on an affidavit of Susan Jean Tankard, instructing solicitor for the Prosecution in support of the application to call further evidence. This affidavit put before the court the chronological history of the litigation.

23 It is the primary submission of the Prosecution an application to call further evidence should be allowed. The Prosecution submits a limitation consideration brought in the form now before the Commission in Court Session is analogous with the law as developed on consideration of the validity of a summons and the granting of a required "consent to prosecute". The Prosecution relies on the authority of Price v Humphries [1958] 2 QB 353 which, the Prosecution submits, is directly on point. The relevant applicable principle the Prosecution submits is the presumption a summons is good. There is, therefore, no need for the Prosecution to take any further steps unless objection is raised. Further, Price v Humphries is authority for the submission such an objection should be taken by a defendant before the case for the Prosecution is closed.

24 As to the question of being "on notice" it is the Prosecution's submission that it did not know the form of any objection nor what argument it was to meet. The Prosecution submits this is an interlocutory matter and it would be, at the end of long and expensive litigation, against the public interest if the court did not accept evidence related to the interlocutory matter.

25 The Prosecution submits, on examination of the evidence up to 14 May 2002, the defence has consistently argued, in alleging s49(4) of the Act does not apply, that it would rely on the subjective test as outlined by Schmidt J in the SRA cases. The Prosecutions would therefore be required to show it had consciously made a decision that s49(4) applied. The Prosecution, on that test, would have been required to put before the court evidence as to what was in the Prosecution's mind at the time the proceedings commenced. The Defendants now seek to make out the test is an objective test and this can only be met by taking the court to the content of the Coronial Proceedings and the Coronial Report. The Prosecution submits such evidence could not have been admitted at the trial and could only be put before the court after a specified application is made by the Defendants.

26 The Prosecution further relies upon the IR rules, in particular Rules 68 and 69 which, unless the court otherwise directs, requires any interlocutory or other application in relation to proceedings already commenced to be made by motion. Submissions of the Defendants in reply 27 The Defendants in reply submit any analogy to "the consent to prosecute" cases is not necessary given the decision of the NSW Court of Criminal Appeal in EPA v Bathurst City Council (1995) 89 LGERA 79. The case is authority, the Defendants submit, for the proposition that once the limitation period is raised as an issue, "however it may be raised", the prosecution carries the onus. As the issue was raised prior to the close of the prosecution case, it did not meet the onus it carried to prove the proceedings were commenced within the relevant time limit.

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.

33 Authorities differ on the correct legal characterisation of a Prosecution commenced outside a time limitation. An objection to such a Prosecution has been described as a plea in bar or, alternatively, as a defence. Lucon addresses the legal characterisation of such a prosecution: 90 There appears to be some difference of approach as to the accurate way to characterise limitation provisions in criminal proceedings. One view is that limitation provisions operate as a plea in bar to Prosecution: see for example, R v Tait (1995) 80 A Crim R 374 at 377; R v. Cooling [1990] 1 QD R 376 at 378; (1989) 44 A Crim R 171 at 173. The other view is that a limitation provision operates as a defence: Pearce v. BHP Steel (AWI) Pty Ltd (1998) 8 Tas R 337 at 339, (1998) 85 IR 305 at 306 and Adams v. Chas S Watson Pty Ltd (1938) 60 CLR 545 at 553.

91 The critical point for present purposes, however, is that made in R v Cooling ([1990] 1 QD R at 378), where Thomas J said, with the concurrence of Ambrose J: Commencement of the Prosecution within the prescribed time limit is not an element of the offence, and there is no requirement that the indictment show compliance with such requirement on the face of the indictment.

92 . . . limitation provisions do not affect the jurisdiction of a court but rather provide a defence or plea in bar.

34 The Defendants properly conceded the distinction between characterisation as a plea in bar, or a defence, while arguable, does not distract from the following relevant principles: i) commencement of proceedings within a statutory limitation period does not constitute an element of the offence: WorkCover Authority of NSW (Inspector Keenan) v Lucon (Australia) Pty Limited [2002] NSWIRComm 68 at [91]-[92]; Mansell v TMG International Pty Limited [2002] NSWIRComm 112 at [85]-[88]; R v Cooling (1989) 44 A Crim R 171 at 173 ii) a conviction upon a prosecution commenced outside a limitation period is unlawful: Tait (1995) 80 A Crim R 374 at 377; R v Cooling (1989) 44 A Crim R 171 at 174-175 iii) a statutory limitation period on the commencement of criminal proceedings cannot be waived, or made the subject of negotiation, as if it were a private privilege: Tait (1995) 80 A Crim R 374 at 378; R v Cooling (1989) 44 A Crim R 171, per Derrington J at 175 and iv) a statutory limitation period does not deprive an appropriate court of the jurisdiction to determine whether or not proceedings were commenced in time. Parisienne Basket Shoes Pty Limited v Whyte (1938) 59 CLR 369 at 377, 385, 388-389, 392; Adams (Deputy Commissioner of Taxation) v Chas S Watson Pty Limited (1938) 60 CLR 545 at 553, 559.

35 The Commission sitting in Court Session accepts the principles arising from the "consent to prosecute" cases can guide it in its consideration as to commencement of proceedings within a statutory time limit. Those principles have been enunciated through a number of relevant authorities. The Court develops its reasons for accepting such analogy as it considers the relevant principles and when evidence is required to prove compliance with a provision of the Act. The "consent to prosecute" cases examine when proof is required that at the issue of summonses the requirements of an Act have been complied with. A similar issue is raised by the defendants in their application, namely: at the issue of the Orders were the requirements of s49(4) met and when must the prosecution prove the requirements were met.

36 The presumption of regularity, that is, a summons is good as to form, is old law. In Berwin v Dononhoe (1915) 21 CLR 1 (at 25), the court held the necessary consent may be presumed in the same way that regularity of proceedings may be generally presumed.

37 Price v Humphries supports the proposition a prosecutor, before objection is taken, is entitled to a presumption of regularity in that a summons is good. The reasoning of Devlin J is relevant (at 357): . . . Proceedings in summary jurisdiction of this sort are instituted by the laying of an information and the issue of a summons, and, when the summons is issued, that is the institution of the proceedings. The point, therefore, at which the consent or authority must be proved is when the summons is issued, and it is the duty of the clerk to the justices if application is made to him, as it generally is, for the laying of the information or the issue of the summons, to see that the requirements ... are complied with, otherwise the summons will be bad. Accordingly, when the matter comes before the court the point that has to be determined, . . . is whether the summons be good or bad, . . .. The usual practice is for the prosecution to produce the formal document to show that the summons was properly issued.

38 The Defendants distinguish the authority of Price v Humphries saying the presumption cannot, in this case, be inferred as there is no evidence in the trial of either a Coronial Inquiry or Coronial Report. Further, as Lucon is authority that s49(4) does not have to be pleaded on the face of the summonses, the prosecution had an onus to prove the summonses were issued in accordance with the requirement of s49(4) at trial and within the prosecution's case. However, mention was made throughout the trial that there had been a Coronial Inquiry. Evidence in this application, including that contained in Ms Tankard's affidavit suggest, Wright J, President, who issued the summonses, had relevant Coronial material placed before him. In the circumstances, I do not accept the authority of Price v Humphries should be distinguished. Given the presumption of regularity, there is no requirement for a court, at trial, to be satisfied as to a time limitation until an objection is raised: (see Price v Humphries and Lucon). The presumption of regularity was a valid presumption in the summonses before me.

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.

40 The question is when was the objection taken by the Defendants. The Defendants rely upon the authority of EPA v Bathurst City Council (1995) 89 LGERA 79 which considered when, for the purposes of a limitation period, an offence of pollution of waters was complete. On appeal, the Environment Protection Authority conceded that it bore the onus of proving that the Prosecution was commenced within the limitation period. Hunt CJ at CL commented by way of a footnote to the judgment (at 80, footnote 2): . . .Although the limitation period does not constitute an element of the offence, once the issue is raised ( and however it may be raised ), the prosecution bears the onus of establishing beyond reasonable doubt that the offence was committed within the relevant time before the proceedings had been commenced: R v Lewis [1979] 1 WLR 970 (at 973); Rabczynski v Morrison [1988] WAR 71 at 73-74; R v Cooling [1990] 1 Qd R 376 at 378-379. [emphasis added] Applying this statement of principle to these proceedings, the Defendants submit the Prosecution was obliged to lead evidence in support of its reliance on s49(4) before the close of the Prosecution case as s49(4) had been clearly raised as an issue of contention from the very outset of the proceedings. The Defendants submit the EPA v Bathurst City Council is authority for the proposition once the issue was raised, and however it was raised, the Prosecution then carries the onus.

41 I do not accept the words found as a footnote to a decision, as are these words of Hunt CJ, are authority for the proposition that notice of an objection or the threat that an application is to be brought in the nature of an abuse of process takes away from the Defendants the obligation to fairly raise an objection formally before the court.

42 The court is of the view Lord Goddard CJ in Price v Humphries relevantly added to the views expressed by Devlin J when he said (at 359): In a case such as this justices would do well to bear in mind that there is a distinction between an objection which goes to the merits and one which goes only to procedure. If it goes to the merits and the prosecution have failed to prove something upon which the guilt or innocence of the defendant depends, justices must be very careful about allowing cases to be re-opened and must consider the doctrine laid down in Rex v. Day 27 Cr App R 168. But if it is only a matter which goes to procedure, as this does. . ., then I do not think that they ought to allow an objection which has been, so to speak, kept up the sleeve until the last minute, so that when the prosecution have been induced to say: 'We have closed our case,' it is then said: 'You have not proved consent.' I think that if they bear in mind the difference between an objection which goes to the merits and one which only goes to procedure, many of the difficulties will be cleared up.

43 The objection, I find is not a matter which goes to the merits as to whether the Prosecution has failed to prove an element of the offences as charged. I find the objection raised by the Defendants is one which goes to procedure. The Rules of the Industrial Relations Commission of NSW also support the view the Prosecution should be given notice as to the terms of any procedural objection to be made within a trial. And, in Lucon at [108] the Full Bench held : . . . By their very nature, issues of abuse of process cannot be dealt with in merely abstract or hypothetical contexts . . .

44 If analogy is accepted to guide the court as to the relevant legal principles, the Defendants submit the reasoning in Thompson v The Queen (1989-1990) 169 CLR 1, where the locality had to be determined to found jurisdiction, is a more appropriate guide to the court in its consideration on the limitation issue. The High Court held it was desirable for a judge to seek a special verdict upon the issue of jurisdiction, if it was raised. I do not believe this case should be distinguished. In that case, the issue as to jurisdiction was raised by way of application early in the trial. In this trial, the application was brought before the court after the evidence was completed. The terms used in Thompson assist me in my consideration, whether the consideration be by way of a special verdict, a voir dire or a re-opening. I believe evidence should be taken upon the issue of time limitation, now the application is raised.

45 In a recent judgment of this Commission sitting in Court Session in Rodney Morrison and Dartbrook Coal Pty Limited v Tecrete Industries Pty Limited [2002] NSWIRComm 27, Haylen J canvassed many Australian authorities as to consents. In an examination of the nature of a statute prescribing the steps to be taken before prosecution, Haylen J in Tecrete Industries Pty Limited (at 30) recited a number of propositions emerging from the authorities and relied on the words of Thomas J in Dever v Creevey; ex parte Creevey (1992) 1 Qd R 232 (at 247): (1) Unless the defendant raises the point, it is not necessary that evidence of the consent be placed before the court. In the absence of any issue in relation to it will be presumed, or at least its absence will not stand in the way of a conviction. (2) The defence may raise the point at any time, and it is not limited to doing so before the prosecution closes it case. (3) Once the issue is raised, the prosecution bears the onus of showing compliance with the statutory requirement. (4) If at the end of the day it emerges that no consent exists, or that the consent is defective in the sense that the actual prosecution does not conform to it, the prosecution fails. (5) If the point is raised after the close of the prosecution case the court has a discretion, but leave will ordinarily be granted to reopen the case to prove the consent. (6) Amendments may be permitted but not to such extent as will convert a non-conforming prosecution into a conforming one, or a conforming prosecution into a non-conforming one. . . .

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.

48 The court has considered the submissions of the Defendants as to the burden and costs that would be borne by them if the application of the Prosecution was to succeed and in the future conduct of the trial it may have to make application to call further evidence. The court at the close of proceedings will hear, with consideration, any application related to costs expended by the Defendants associated with the leave granted.

49 These matters are to be re-listed for directions as to a timetable for further evidence on the procedural point: that is whether there has been compliance by the Prosecution with the provisions of s49(4) of the Occupational Health and Safety Act 1983.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.