WorkCover Authority of NSW (Inspector Keenan) v Lucon [2002] NSWIRComm 68 | Case summary

Industrial Relations Commission (NSW)|1986-08-01|Before: Wright J, Walton J, Hungerford J, Cripps CJ

For the reasons we have given we consider that view, although expressly stated to be tentative, was correct. 112 Before concluding, we should refer to one other feature of the defendants' submissions. The defendants sought generally, as to many of the elements of their arguments as to construction, to rely on and to emphasise the particular approach which courts have traditionally taken to the construction to penal statutes or penal provisions, in effect, to ground the contention that because of the nature of the proceedings any doubt as to the construction of relevant provisions should be resolved in their favour. 113 The general approach to be adopted in construing provisions of the kind which now require consideration was dealt with in the judgment of the Full Bench of this Court in Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 at 629 - 630, where it was said: [41] We consider that the appellant's reliance upon the line of cases in relation to the construction of penal statutes exemplified by the judgments in Beckwith v The Queen and Waugh v Kippen is misplaced. For example, in Waugh v Kippen it was stated, at 164: The modern approach in construing penal statutes was stated by Gibbs J. (as he then was) in Beckwith v. The Queen (1976) 135 CLR 569, at p 576 as follows: "The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences: see R. v. Adams (1935) 53 CLR 563, at pp 567 - 568; Craies on Statute Law , 7th ed. (1971), pp 529 - 534. The rule is perhaps one of last resort". The reference to the rule being one perhaps of last resort requires, because of certain submissions in this matter, some explanation. It means, generally speaking, that the rule only applies to require that an ambiguity as to the meaning of the provision be resolved in favour of an accused if the ambiguity is one which persists after the ordinary rules of construction have "run out". See, for example, Barker v The Queen at 355 and Chew v The Queen at 632. In the latter case, the court spoke of a situation where "all other indicia [have] failed". That is not the case here. However, there is a more fundamental difficulty with the appellant's arguments relying upon this principle of construction. As the above statements from Waugh v Kippen and Beckwith v The Queen illustrate, the principle applies where a court is construing a statute creating an offence so that the court will construe such a statute in favour of the subject by refusing to extend the operation of the statute creating the offence where the statute is ambiguous. That is not the issue in this case. The provision which creates the relevant offence is s 15 of the Act. Section 51A is clear on its face that it does not create any offence. Rather, it deals with the penalties available in relation to offences created by other sections of the Act, such as s 15, s 16 , s 17 and s 18. 114 We consider that passage represents the approach which should be adopted in the present reference although we would also add reference to the similar approach taken by Debelle J of the Court of Criminal Appeal of South Australia in Director of Public Prosecutions (Cth) v WJB (2000) 117 A Crim R 64 at 67 - 68 where his Honour said: [15] [Senior counsel] for the respondent sought to avoid this conclusion by calling in aid the principle of statutory interpretation which requires strict construction of a penal statute or of a statute which affects the personal liberty of the subject: see, for example, Smith v Corrective Services Commission (NSW) (1980) 147 CLR 134 at 139. But that principle only applies in the case of ambiguity or doubt. As Walsh J said in Watson v Marshall (1971) 124 CLR 621 at 629, when noting that one must have regard to the warning in McLaughlin v Fosbery (1904) 1 CLR 546 at 559: "[I]n the interpretation of a Statute affecting personal liberty, supposition as to the intention of the legislature has no place. The function of the Court is limited to interpreting and giving effect to its will as expressed in the Statute."

[16] To like effect are the remarks of Gibbs J in Beckwith v The Queen (1976) 135 CLR 569 at 576 …

[17] By analogy, this rule should be applied to the construction of a provision concerning a sentence of imprisonment: Lee Vanit v The Queen (1997) 72 ALJR 1 per Kirby J at 13. In other words, one must first apply the ordinary rules of statutory construction. Earlier observations of Kirby J in Lee Vanit v The Queen (supra) at 9, reinforce this conclusion. His Honour pointed out that the task of the court is to give meaning to the purpose of Parliament as expressed in the words which it has chosen. That meaning will be afforded, bearing in mind that the judicial task is to seek out and to declare the preferable construction of the legislation when more than one interpretation competes for acceptance. In this case, the application of those rules discloses the meaning of the section and no ambiguity or doubt remains. The intention of the Parliament is manifest from the terms of s 19AQ when read as a whole and in its statutory context. The third question referred 115 In view of the conclusion that the summonses purportedly issued by the Registrar did not have the legal effect of requiring the defendant to appear, the third question does not arise. The fourth question referred 116 In considering the first and second questions we found that the applications were not invalid because they were not made directly to a judge and that the applications were not invalid because of any failure to refer to s 49(4) or to specify the basis upon which s 49(4) was said to apply. The defendants did not submit that the applications were invalid for any other reasons. 117 The conclusion in Ridge that proceedings for an offence against the Occupational Health and Safety Act are validly commenced when a valid application is made in accordance with r 219(1) was not, we consider, seriously challenged by the defendants and is, as we have indicated, correct. The proceedings in the present matters, therefore, were validly commenced by the applications for summonses filed in the Registry. No question of curing any invalidity in these applications arises. 118 In answering the first question we found that the summonses issued by the Registrar did not have the legal effect of requiring the defendants to appear before the Court (see paragraph [55]). In Ridge (100 IR at 171), in its reasons for refusing leave to appeal on the question of whether the Registrar had power to issue the summonses, the Court observed that, as the applications were properly commenced (or alternatively validated by s 170 of the Industrial Relations Act ), it was open to the trial judge to charge the defendant pursuant to s 4(1) of the Summary Jurisdiction Act . That stage had not then been reached in those proceedings. 119 An important issue to be considered, therefore, is whether there is any reason why it may not be open to a judge in the present proceedings to consider whether orders should be made pursuant to s 4(1)(a) of the Summary Jurisdiction Act . Since that stage has not yet been reached in these proceedings, it is not appropriate for us to consider whether the orders should be made. The only question we need to consider here is whether it is open to a judge to consider whether to make the orders. 120 We do not see any reason why a judge in the present proceedings may not be able to consider whether to make orders against the defendants. In McGerty v Dairy Farmers Co-operative Ltd , the Court of Criminal Appeal considered proceedings which had been commenced by the appellant against the respondent in the Land and Environment Court alleging that the respondent had committed offences against the Clean Waters Act 1970. The appellant had attempted to commence the proceedings, within the prescribed limitation period, by filing a summons in the registry of the Court claiming an order that the respondent appear before a judge to answer the alleged offence. The procedure adopted by the appellant was in accordance with that established for the initiation of proceedings by Part 75, Division 2, and by Part 7 r 6 of the Supreme Court Rules , which was made applicable by the Land and Environment Court Rules (the filing of a summons under the Supreme Court Rules was the equivalent of the filing of an application for summons under r 219(1) of the Commission's Rules). 121 After the initiation of the proceedings by the filing of the summons in the registry, the Registrar purported to make the order sought in the summons requiring the defendant to appear before the court on a particular date. Section 41 of the Land and Environment Court Act 1979 was in terms similar to s 4(1) of the Summary Jurisdiction Act although the rules referred to were the Supreme Court Rules, which applied to proceedings of the relevant type under Part 6, r 2 and Part 7 of the Land and Environment Court Rules. 122 The appellant conceded that the Registrar had no power to make this order and therefore applied for an order by a judge under s 41. The application was heard by a judge after the six month limitation period for the commencement of proceedings had expired. The judge refused to make the order sought. 123 The Court determined that the proceedings were properly commenced within time by the filing of the summons in accordance with the rules (43 A Crim R at 311 per Loveday J and Gleeson CJ; Newman J concurring at 312). The primary judge was therefore held to have erred in failing to consider the application made in accordance with s 41. 124 Gleeson CJ stated (43 A Crim R at 311) that: The scheme is that when an order to a person that he attend court to answer a particular charge within the court's summary jurisdiction is made it issues in response to the filing of a summons seeking such an order. The rules require that the summons be filed and that the prosecutor shall also lodge with the Registrar copies of a minute of the order sought. An application for the order may be made ex parte. It is a matter for the court, having regard to the exigencies of its business, to decide exactly when and where a judge will consider the summons and any supporting material.

An order may or not be made on the day on which the summons is filed, but where an order is made then, should a question arise as to when the proceedings were commenced, the answer to that question is that they were commenced when the summons was filed. (emphasis added) 125 It should be emphasised that in the scheme considered in McGerty it was the filing of a summons seeking an order that the person attend court to be charged which commenced the proceedings. In the present scheme, it is the filing of an application for summons in accordance with r 219(1) which commences the proceedings. We consider that the approach in McGerty is therefore applicable in the present proceedings. The applications for summonses in accordance with r 219(1) validly commenced the proceedings. An "application for summons" under r 219(1) is a valid method prescribed by the rules for an application to be made for an order under s 4(1) of the Summary Jurisdiction Act . The fact that the Registrar had no power to issue the purported summonses, therefore, cannot in any way detract from the jurisdiction of a judge to consider the applications in accordance with s 4(1). At an appropriate time a judge will therefore be required to consider the applications filed. 126 The approach adopted by Marks J in WorkCover Authority of New South Wales (Inspector Lancaster) v Re-Car Consolidated Industries (Wagga) Pty Ltd was consistent with that in McGerty . See also the judgment of Boland J in WorkCover v Red Lea Chickens . 127 We now turn to consider Mr Barker's submission that it would be unjust to allow a prosecutor to be able to make a fresh application to a judge having first applied under an invalid rule to the Registrar. He said that the nature of the injustice was that the prosecutions would be commenced out of time. 128 The difficulty with this submission is that proceedings for offences under the Occupational Health and Safety Act are not commenced by the making of an order under s 4(1) of the Summary Jurisdiction Act but rather by the making of an application in accordance with r 219(1) and s 4(1) for an order to be made under the section. The time within which proceedings "may be instituted" in accordance with s 49(1) and s 49(4) of the Occupational Health and Safety Act is the time within which an application must be filed under s 4 of the Summary Jurisdiction Act in accordance with r 219(1): see M cGerty per Gleeson CJ (43 A Crim R at 311). 129 On the other hand, depending upon the approach adopted by the judge in considering the applications, it is possible that the defendants may be able, at that point, to argue that it would be unjust or an abuse of process to issue orders pursuant to s 4(1)(a) against them: see, for example, Whitten v Hall (1993) 29 NSWLR 680. 130 We also note that Mr Shaw argued, in accordance with Ridge , that s 12 of the Summary Jurisdiction Act applied so that the appearance of the defendants at the hearing of the notice of motion was sufficient to rectify any invalidity and allow the proceedings to commence. We do not accept that s 12 applies in the particular circumstances of the present matter. The defendants have appeared only to challenge the validity of the summonses which purportedly required their attendance. 131 Schmidt J considered similar circumstances in WorkCover Authority of New South Wales (Inspector Maltby) v State Rail Authority of New South Wales (2000) 101 IR 271 at 292. Her Honour concluded that s 12 did not apply as the defendants had not yet appeared at the time and place appointed for the hearing of the prosecutions. We consider that conclusion is applicable in the present matters and, as such, the present circumstances are distinguishable from those in Ridge. 132 The resolution of the issues in these proceedings does not, therefore, require us to consider the possible operation of s 6 of the Summary Jurisdiction Act or s 170 of the Industrial Relations Act . We indicate, however, that we consider the conclusion in Ridge (100 IR at 169 - 170) that s 170 is capable of applying to summary proceedings for offences under the Occupational Health and Safety Act is correct for the reasons set out in that judgment; there is no general inconsistency between s 6(1) of the Summary Jurisdiction Act and s 170 of the Industrial Relations Act ; and nothing was said in the submissions in these proceedings which would lead us to doubt in any way the correctness of what was held in that judgment. 133 The Full Court in Manpac Industries Pty Ltd (formerly t/as Pacific Concrete & Quarries Pty Ltd) v WorkCover Authority of New South Wales (Inspector Glass) (2001) 106 IR 435 at [44] rejected the submission that s 170 has no application to proceedings for offences under the Occupational Health and Safety Act , relying upon the reasoning in Ridge. Manpac was a case in which errors in the summons were capable of being corrected by the application of either s 6(1) of the Summary Jurisdiction Act or by s 170 of the Industrial Relations Act (at [46]). 134 We consider that it is unnecessary to answer any of the questions referred to the extent that they relate to the process issued by the Registrar or which may be issued in future in these proceedings. For the reasons we have given, we consider that the questions should be answered as set out subsequently. Answers to questions referred and orders 135 We answer the questions referred as follows and make the following additional orders:

The questions referred are answered as follows: Question 1 Question: Whether each of the prosecutions should have been commenced by application to a Judge of the Industrial Relations Commission of New South Wales in Court Session having regard to:

(a) Section 47(1)(b) of the Occupational Health and Safety Act 1983;

(b) Section 168 of the Industrial Relations Act 1996; and

(c) Sections 2, 3, and 4(1)(a) of the Supreme Court (Summary Jurisdiction) Act 1967. Answer: The answer to this question is, strictly, "No". If, however, the words "application to a Judge" are to be read as "application pursuant to s 4(1) of the Supreme Court (Summary Jurisdiction) Act 1967, as incorporated into the Industrial Relations Act 1996 by s 168 of that Act", the answer would be "Yes". It is inappropriate and potentially misleading to describe such an application as an "application to a Judge".

Question 2 Question: Whether, if the Registrar had power to issue such summonses, he could lawfully do so in the absence of material before him justifying an extension of the limitation period as provided by Section 49(4) of the Occupational Health and Safety Act having regard to Rule 220 and his duty to exercise a judicial discretion? Answer: It is not necessary to answer this question, except to state that applications filed in the Registry under r 7 of the Industrial Relations Commission Rules for the purpose of obtaining orders under s 168 of the Industrial Relations Act 1996 and s 4(1) of the Supreme Court (Summary Jurisdiction) Act 1967, where the prosecutor is relying on s 49(4) of the Occupational Health and Safety Act 1983, are not required to include or make reference to:

Question 3 Question: Whether the summonses were validly issued if not signed by the Registrar or on his behalf? Answer: Does not arise.

Question 4 Question: Whether the invalidity can now be cured outside of the limitation period prescribed by Section 49(1) and Section 49(4) of the Occupational Health and Safety Act . Answer: Does not arise.

The proceedings are remitted to Walton J, Vice-President, to be dealt with in accordance with these reasons and the answers provided to the questions referred and to consider whether orders should be made in these proceedings pursuant to s 168 of the Industrial Relations Act 1996 and s 4(1) of the Supreme Court (Summary Jurisdiction) Act 1967.

The defendants shall pay the prosecutor's costs of the reference. ____________________

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.

PARTIES : DEFENDANTS: Lucon (Australia) Pty Limited Leighton Contractors Pty Limited Lurgi (Australia) Pty Limited FILE NUMBER: IRC 5148 of 2000 CORAM: Wright J President; Walton J Vice-President; Hungerford J CATCHWORDS : Occupational health and safety - Practice and Procedure - References of questions of law to Full Bench - Commencement of Occupational Health and Safety proceedings before Industrial Relations Commission in Court Session - Construction of relevant provisions of Industrial Relations Act 1996, Supreme Court (Summary Jurisdiction) Act 1967 and Industrial Relations Commission Rules 1996 - Identification of steps necessary for valid commencement of proceedings - Whether necessary for initiating process to state reliance on Coronial proceedings - Interrelationship between the Industrial Relations Act and the Supreme Court (Summary Jurisdiction) Act - Validating provisions - Questions answered in part - Matter returned to trial judge. Coroners Act 1980 s 19 Criminal Appeal Act 1912 s 5AE Land and Environment Court Rules Part 7 Industrial Relations Act 1996 s 163 s 168 s 170 s 185 s 193 s 196 Industrial Relations Commission Rules 1996 r 7 r 218 r 219 r 220 Industrial Relations Commission Rules (Amendment No. 3) 2000 Interpretation Act 1987 s 3 s 21 s 32 LEGISLATION CITED : Justices Act 1902 s 60 Land and Environment Court Act 1979 s 41 Occupational Health and Safety Act 1983 s 15 s 16 s 17 s 47 s 49 Occupational Health and Safety Act 2000 Pesticides Act 1978 s 59 Police Service Act 1990 s 181D s 181G Supreme Court Rules 1970 Part 6 r 2 Part 7 r 6 Part 75 Div 2 Supreme Court (Summary Jurisdiction) Act 1967 s 2 s 3 s 4 s 6 s 12 Supreme Court (Summary Jurisdiction) Crimes Amendment Act 1979 Abigroup Contractors Pty Ltd v Maltby [2002] NSWIRComm 18 Adams v Chas S Watson Pty Ltd (1938) 60 CLR 545 Baker v Macleod (unreported, Land and Environment Court, Cripps CJ, 1 August 1986) Barton v The Queen (1980) 147 CLR 75 Browne v Commissioner for Railways (1935) 36 SR (NSW) 21 Capral Aluminium Ltd v WorkCover Authority of New South Wales (2000) 49 NSWLR 610 Clutha Developments Pty Ltd v Barry (1989) 18 NSWLR 86 Commonwealth of Australia v Evans Deakin Industries Limited (1986) 161 CLR 254 Commonwealth of Australia v Verwayen (1990) 170 CLR 395 Coulson v T. Lambert Pty Ltd [1976] AR NSW 45 Director of Public Prosecution (Cth) v WJB (2000) 117 A Crim R 64 Director of Public Prosecutions, South Australia v B (1998) 194 CLR 566 Downey v Pryor (1960) 103 CLR 353 Federal Commissioner of Taxation v Northumberland Development Co Pty Ltd (1995) 138 ALR 89 Harrington v Lowe (1996) 190 CLR 311 John L. Pty Ltd v Attorney General for the State of New South Wales (1987) 163 CLR 508 Lynch v GC Schmidt Pty Limited (1995) 59 IR 205 Manpac Industries Pty Ltd (formerly t/as Pacific Concrete & Quarries Pty Ltd) v WorkCover Authority of New South Wales (Inspector Glass) (2001) 106 IR 435 Maxwell v The Queen (1996) 184 CLR 501 McConnell Dowell Constructors (Aust) Pty Limited v Environment Protection Authority (2000) 50 NSWLR 127, [2000] NSWCCA 367 McGerty v Dairy Farmers Co-operative Ltd (1989) 43 A Crim R 308 Minister for Youth and Community Services v Health and Research Employees' Association of Australia, NSW Branch (1987) 10 NSWLR 543 CASES CITED : Oswald v New South Wales Police Service (1999) 90 IR 42 Page v Walco Hoist Rentals Pty Limited (1999) 87 IR 286 Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 Pearce v BHP Steel (AWI) Pty Ltd (1998) 8 Tas R 337, (1998) 85 IR 305 Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166 Qantas Airways Ltd, Ex parte, Re Horsington (1969) 71 SR (NSW) 291 Queen v Baker [1999] ACTSC 93 Queen v Loewenthal, Ex parte Blacklock (1974) 131 CLR 338 R v Cooling [1990] 1 QdR 376, (1989) 44 A Crim R 171 Ridge Consolidated Pty Ltd v WorkCover Authority of New South Wales (Inspector Mauger) (2000) 100 IR 156 Shanahan v Scott (1957) 96 CLR 245 State of New South Wales v Macquarie Bank Ltd (1992) 30 NSWLR 307 Tait (1995) 80 A Crim R 374 Taylor v Environment Protection Authority (2000) 50 NSWLR 48 Van Huisstede v Commissioner of Police (2000) 98 IR 57 Virtue v New South Wales Department of Education and Training (1999) 92 IR 428 Whitten v Hall (1993) 29 NSWLR 680 WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (No 2) (2000) 101 IR 92 WorkCover Authority of New South Wales (Inspector Lancaster) v Re-Car Consolidated Industries (Wagga) Pty Ltd (unreported, Marks J, 14 July 1999) WorkCover Authority of New South Wales (Inspector Maltby) v State Rail Authority of New South Wales (2000) 101 IR 271 WorkCover Authority of New South Wales (Inspector Maltby) v State Rail Authority of New South Wales & Ors (2001) 108 IR 121 WorkCover Authority of NSW (Insp McMartin) v Milltech Pty Limited [2000] NSWIRComm 246 WorkCover v Red Lea Chickens [2000] NSWIRComm 168 WCA v Rigby Jones Engineering Pty Ltd [2000] NSWIRComm 237 HEARING DATES: 02/12/2001; 02/13/2001; 05/25/2001; 08/22/2001 DATE OF JUDGMENT: 04/19/2002

[38] Once it is accepted that s 170 applies to these proceedings, the effect of s 170(3) is to bring about a situation where any failure to comply with the Industrial Relations Act or a Rule of the Commission in relation to the institution or conduct of proceedings before it is to be treated, not as a nullity, but as an irregularity. This construction should not be seen as inconsistent with the requirements of fairness, the proper administration of justice or the rights of an accused to a fair trial. Section 170 provides (for example in sub-section (4) thereof), wide powers in the Commission to set aside the proceedings, or a step taken in the proceedings, in circumstances where it considers it just and appropriate to do so. In any event, as recently observed by the Court of Appeal in Director of Public Prosecutions v West [2000] NSWCA 103 at 24: There is a legitimate public interest in the conviction of those guilty of crime so long as the fairness of the trial is not compromised ( Ridgeway v The Queen (1995) 184 CLR 19 at 32, 75). 42 Ridge was followed by the Full Bench of the Court Session in WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd (No 2) (2000) 101 IR 92. The Court there considered a notice of motion which raised the question of whether the proceedings had been properly and validly commenced because r 219 and r 220 required that the summons be issued by the Registrar or expressly on his behalf. The summons in that case had also been signed, by a member of the Registry staff, "For" the Registrar. The Court dealt with the matter (101 IR at 101) by applying Ridge at [25] to [40]. 43 Ridge also has been followed by single judges of the Court Session on a number of occasions. See, for example, WorkCover Authority of New South Wales (Inspector Maltby) v State Rail Authority of New South Wales (2000) 101 IR 271; WorkCover v Red Lea Chickens [2000] NSWIRComm 168; WCA v Rigby Jones Engineering Pty Ltd [2000] NSWIRComm 237; and WorkCover Authority of NSW (Insp McMartin) v Milltech Pty Limited [2000] NSWIRComm 246. 44 The defendants sought leave, to the extent necessary, to argue that aspects of the judgment in Ridge had been incorrectly decided. Mr Shaw argued that leave should not be granted, as to do so would be contrary to the practice of the Full Bench of the Commission and the Commission in Court Session, and of other intermediate appellate courts in reviewing prior judgments, as would lead to instability in the legal regime dealing with prosecutions under the Occupational Health and Safety Act . Mr Shaw referred to Lynch v GC Schmidt Pty Limited (1995) 59 IR 205, Clutha Developments Pty Ltd v Barry (1989) 18 NSWLR 86 at 99 - 100 per Gleeson CJ, and Proctor v Jetway Aviation Pty Ltd [1984] 1 NSWLR 166 at 171 per Moffitt P. Mr Shaw accepted, however, that it was appropriate for the defendants to be allowed to fully pursue their submissions and that the Full Bench could determine the question of leave subsequently. 45 It is the practice of the Full Bench of this Court and of its predecessors to require parties to seek leave to re-argue the correctness of previous judgments at the Full Bench level: Lynch v GC Schmidt Pty Limited at 208 - 209, Oswald v New South Wales Police Service (1999) 90 IR 42 at 43; cf Clutha Developments Pty Ltd v Barry at 99 - 100. The significance of the issues in this matter do not, of themselves, in our view warrant the grant of leave to reargue the correctness of a recently delivered judgment. However, we have decided to grant leave in this matter because not all of the issues arising here were determined finally in Ridge. The first question referred 46 We now deal with the first question referred. In Ridge , the Court held (100 IR at 167, 169) that proceedings for offences are validly commenced when an application has been filed in accordance with the requirements of r 219(1). The Court also observed, however (100 IR at 167): It may be that, in 1996, when the Industrial Relations Commission Rules were drafted the terms of the Summary Jurisdiction Act were not fully taken into account. It may also be the case that, since the Industrial Relations Act came into force in September 1996, the procedure contemplated by s 168 and the Summary Jurisdiction Act has not been followed by the Registry or the Commission in relation to the initiation of such proceedings. That is a question upon which we do not consider it necessary to express a final view. 47 The defendants' central argument in these proceedings is that the procedure in s 4(1) of the Summary Jurisdiction Act , applied by s 168 of the Industrial Relations Act , is the only legal procedure for requiring persons to appear before the Court to answer the offences charged. The defendants argue this proposition has these consequences: (1) the Registrar has no power to summons persons to appear in Court to answer charges; the purported summonses issued by the Registrar were, therefore, of no legal effect; and (2) an application under r 219(1) must be made to a judge. Since the applications in these matters were made to the Registrar they were invalid. 48 The arguments will be considered in that order. We note, however, that neither question 1 nor any of the other questions asks in terms for a determination of whether the Registrar had power to issue the summonses. Questions 2 and 3, however, appear to arise only if the Registrar did have power to issue the summonses. We therefore propose to consider whether the Registrar had power to issue them.

[52] If this view were wrong, it would mean that no matter how long out of time a prosecution might appear to be, a summons under the Occupational Health and Safety Act would have to be issued by the Court upon application by a prosecutor. That proposition is, in my view, extraordinary and plainly wrong. It cannot be the case that the question of whether a prosecution is brought within time is to be left for determination as a part of the prosecution itself. This is a matter about which the prosecutor and the Court must have a basis for satisfaction when the proceedings are commenced. 88 It will be observed that her Honour concluded (101 IR at 289 in [51]) that, if the prosecutor sought to rely upon s 49(4), r 219(1)(d) required that provision to be specified in the application and that r 219(1)(e) required that the application also specify "what it was in the Coroner's report or the proceedings on which the prosecutor relied". 89 As indicated earlier, the Full Bench provided copies to the parties of written submissions in other proceedings in which similar issues were argued. The parties in these proceedings were invited to make such further submissions as they considered appropriate. The submissions by the prosecutor in those proceedings dealt with the relevance of time limitation provisions in criminal proceedings. The authorities referred to included R v Cooling [1990] 1 QdR 376, (1989) 44 A Crim R 171; Pearce v BHP Steel (AWI) Pty Ltd (1998) 8 Tas R 337, (1998) 85 IR 305; and The Queen v Baker [1999] ACTSC 93. 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, 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.

[59] Part 6 r 2(2) of the Land and Environment Court Rules provides: "Despite subrule (1) a summons seeking an order pursuant to section 41 of the Act is to be accompanied by the affidavits intended to be relied on by the prosecutor as establishing prima facie proof of the offence charged." 102 The Court concluded that a judge was not required to be satisfied that there was a prima facie case against a defendant before he or she could make an order under s 41 of the Land and Environment Court Act . The Court observed (at [69]) that this conclusion was supported by authorities "concerning the undesirability of judicial involvement in the prosecution process". Reference was made to Baker v Macleod (unreported, Land and Environment Court, Cripps CJ, 1 August 1986) and to the judgments of the High Court in Barton v The Queen (1980) 147 CLR 75, Maxwell v The Queen (1996) 184 CLR 501 and Director of Public Prosecutions, South Australia v B (1998) 194 CLR 566, and the Court held at [70] to [74]: [70] As Viscount Dilhorne put it in Director of Public Prosecutions v Humphrys [1977] AC 1 at 26: "A judge must keep out of the arena. He should not have or appear to have any responsibility for the institution of a prosecution."

WorkCover Authority of NSW (Inspector Keenan) v Lucon

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