WorkCover Authority of NSW (Inspector Mauger) v Ridge Consolidated Pty Ltd

Industrial Relations Commission (NSW)|1999-12-03|Before: Kavanagh J, Wright J, Marks JJ, Mr P

Industrial Relations Commission of New South Wales in Court Session

CITATION : WorkCover Authority of NSW (Inspector Mauger) v Ridge Consolidated Pty Ltd [2000] NSWIRComm 6 PARTIES : PROSECUTION: WorkCover Authority of NSW (Insp Mauger) DEFENDANT: Ridge Consolidated Pty Ltd FILE NUMBER: IRC1311 of 1999 CORAM: Kavanagh J Practice and Procedure Occupational Health and Safety Act 1983 Application to strike out summons - requirement of rules of Industrial Relations Commission CATCHWORDS : Jurisdiction of the Court Powers under Industrial Relations Act 1996 Legal precedent Obligation of Prosecutor to provide full particulars Costs against respondent Application denied. Occupational Health and Safety Act 1983 LEGISLATION CITED : Supreme Court (Summary Jurisdiction) Act 1967 Industrial Relations Act 1996 Eric Alexander Higgins v Avoca Estate Agency Pty Ltd (unreported, (Wright J, President, Hungerford and Marks JJ) 3 December 1999, Nos IRC3470, 3471 of 1998) CASES CITED : WorkCover Authority of New South Wales (Inspector Rodney Dubois) v Concrete Constructions Group Limited (unreported, Wright J, President, 20 May 1999, No. IRC5242 of 1997) Boral Gas NSW Pty Limited v McGill 58 IR 363 Smith v Corrective Services Commission of New South Wales (1980) 147 CLR 134 HEARING DATES: 11/15/1999 DATE OF JUDGMENT: 02/23/2000

PROSECUTION: Mr P.M. Skinner (Barrister) SOLICITOR Carroll & O'Dea

LEGAL REPRESENTATIVES: DEFENDANT: Mr F.C. Corsaro (Barrister) SOLICITOR Colin Biggers & Paisley

JUDGMENT: 1 This matter came before the Commission by way of notice of motion. The mover of the notice of motion is a defendant ("the defendant") named in a summons issued under s16(1) the Occupational Health and Safety Act, 1983 ("the Act") which summons pleads: The Defendant, being an employer, on 24 March, 1997 at the site of the construction of additional carriageway lanes to the M4 Motorway, at a place about 700 metres west of Church Street, Parramatta DID FAIL to ensure that persons not in its employment and in particular Pietro Panebianco, were not exposed to risks to their health or safety arising from the conduct of its undertaking while they were at its place of work contrary to section 16(1) of the Occupational Health & Safety Act, 1983 in such case made and provided.

The particulars of the contravention by the Defendant are: 1. The Defendant failed to instruct Mr Panebianco that he was not to work near to or in the vicinity of gaps in the concrete protection barrier. 2. The Defendant failed to prevent persons and, in particular, Mr Panebianco from working within three (3) metres of traffic travelling at speeds up to and in excess of 60kph without providing a physical protection barrier. 3. The Defendant failed to supervise persons and, in particular, Mr Panebianco so as to ensure that no person did not carry out work near to or in the vicinity of the gaps or entry points in the concrete protection barrier. 4. The Defendant failed to ensure SWR provided concrete protection barriers to isolate the area where the work was to be carried out prior to the work commencing. 5. The Defendant failed to relocate work so that persons and, in particular, Mr Panebianco were not working in the proximity of the known gaps or entry points in the concrete protection barrier. 6. The Defendant failed to implement a system whereby as work progressed towards one of the known gaps or entry points in the concrete protection barrier, that gap or entry point was relocated away from construction work that was being undertaken and in so failing to prevent persons from working in areas where there was a risk to health and safety. 7. The Defendant failed to request the erection by SWR of suitable protection barriers inside the construction site so as to protect workers from being struck by motor vehicles entering work areas through one of the gaps or entry points. 8. The Defendant failed to ensure that all persons and, in particular, Mr Panebianco had undertaken the site induction process prior to commencing work.

2 Ms Skinner, of Counsel, represented the prosecution (the respondent to notice of motion) and Mr Corsaro of Counsel represented the defendant (the applicant to the notice of motion).

3 On 24 March 1997, Mr Pietro Panebianco, a concreter, was struck by a motor vehicle while at work. He suffered fatal injuries. The deceased was patching the edge of a concrete slab near the eastbound carriageway of the M4. At that point in the road there was a twenty metre wide gap in the concrete barrier, which concrete barrier was intended to protect the workers from passing traffic. Mr Panebianco was about a metre in from the moving traffic. A car on the road lost control, passed through the gap in the concrete barrier and struck Mr Panebianco, killing him.

4 The summons was filed on 23 March 1999, one day prior to the time limit set under statute for the filing of the prosecution.

5 The Rules of the Industrial Relations Commission of New South Wales ("IR Rules") set out the procedures to be followed for the issuing of a prosecution under the Act. 6 IR Rule 219 states: RULE 219 PROSECUTIONS 219(1) [Commencement of proceedings] Proceedings before the Commission for an offence (other than contempt) must, unless otherwise provided, be commenced by application for summons, must be accompanied by an affidavit verifying the allegations made in the application and 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

(d) the Act and the section under which the application is made; and

(e) the nature of the breach or offence which is alleged; and

(f) particulars of any payment which it is alleged the defendant has failed to make, and whether an application is to be made pursuant to s358 for an order in respect of those payments.

219(2) [Application accompanied by summons] The application must also be accompanied by a summons, addressed to the defendant, for signature by or on behalf of the Registrar.

RULE 220 ISSUE OF SUMMONS 220 Where an application for a summons has been filed and it appears to the Registrar to be properly filed, the Registrar must issue the summons, commanding the defendant to appear before the Commission on the day and at the place specified. (Emphasis added)

7 The rules therefore require to be filed, before a summons is issued, an application for summons and an affidavit in support of summons verifying the allegations. Such were filed. The application for summons relevantly reads: The Defendant, being an employer, on 24 March, 1997 at the site of the construction of additional carriageway lanes to the M4 Motorway, at a place about 700 metres West of Church Street, Parramatta DID FAIL to ensure that persons not in its employment and in particular, Pietro Panebianco, were not exposed to risks to their health or safety arising from the conduct of its undertaking while they were at its place of work contrary to section 16(1) of the Occupational Health & Safety Act, 1983 in such case made and provided. The particulars of the contravention by the Defendant are: 1. At all material times the Defendant was the occupier of a construction site and was in charge of the site and all areas in which work was being performed pursuant to the Defendants undertaking at that site on the M4 Motorway near Church Street, Parramatta. 2. The Defendant failed to ensure that persons and, in particular, Mr Panebianco, were instructed that they were not to work near to or in the vicinity of gaps in the concrete protection barrier. 3. The Defendant failed to prevent persons and, in particular, Mr Panebianco from working within three (3) metres of traffic travelling at speeds up to and in excess of 60kph without providing a physical protection barrier. 4. The Defendant failed to supervise persons and, in particular, Mr Panebianco so as to ensure that persons did not carry out work near to or in the vicinity of the gaps or entry points in the concrete protection barrier. 5. The Defendant failed to ensure that all areas in which work was to be performed were provided with concrete protection barriers prior to the work commencing so as to isolate the area where the work was to be carried out from traffic streams and vehicle movements. 6. The Defendant failed to relocate work so that persons and, in particular, Mr Panebianco were not working in the proximity of the known gaps or entry points in the concrete protection barrier. 7. The Defendant failed to implement a system whereby as work progressed towards one of the known gaps or entry points in the concrete barrier fence, that gap or entry point was relocated away from construction work that was being undertaken and in so failed to prevent persons from working in areas where there was a risk to health and safety. 8. The Defendant failed to institute systems of work or supervision methods by which the location of and purpose to which gaps in the concrete protection barriers, and the arrangement or work in relation to those gaps, was communicated to persons not in its employment. 9. The Defendant failed to ensure that all persons and, in particular, Mr Panebianco, had undertaken the site induction process prior to commencing work. 10. The Defendant failed to have in place a system by which persons were not permitted to commence work prior to the induction process having been completed.

8 The application for summons lists two further particulars than those in the summons but that is of no relevance to this issue. The affidavit in support of application for summonses exposes the technical point on which the defendant relies in this application to strike out the summons. It relevantly reads: 3. The Defendant contracted with Hitex Concrete Pty Limited ("Hitex") that Hitex would provide the work of one of its Hitex employees to assist in the performance of the contract works and on 24 March, 1997 Hitex supplied the services of a labourer Pietro Panebianco to the Defendant. 4. On 24 March, 1997 Mr Panebianco was directed to perform concrete patching duties by Mr Garrick Maybury, a site supervisor in the employ of the Defendant, notwithstanding that Mr Panebianco had not undertaken the site induction procedures prior to commencing work at the said site. 5. By 24 March, 1997 SWR Constructors Pty Limited ("SWR") the principle company having as its undertaking the widening of the Motorway had constructed a concrete protection barrier at the said site so as to separate the work or construction area from lanes of moving traffic. 6. The protection barrier was not continuous but was so constructed that there were six (6) gaps (or entry points) left in the concrete barrier fence. 7. The Defendant was aware of the nature and location of the gaps in the concrete barrier fence. 8. On 24 March, 1997 Mr Panebianco was performing concrete patching work pursuant to instructions of the Defendant adjacent to one of the known gaps in the concrete barrier fence approximately 700 metres west of Church Street, Parramatta. 9. On 24 March, 1997 and at a point approximately 700 metres east of Church Street a motor vehicle registered number SGU-055 driven by Stephen Lawrence Wells entered the work area through a gap in the concrete barrier fence. 10. The vehicle struck Mr Panebianco and as a result of the impact, Mr Panebianco was killed. And such further particulars as shall be required on request. (Emphasis added)

9 It is to this affidavit in support of the application for summons that the notice of motion directs itself in that the defendant alleges it does not verify, as it should, allegations contained in the summons.

10 In the notice of motion, the grounds relied upon are: 3. IR Rule 219 provides that the application for the issue of a Summons must be accompanied by an affidavit verifying the allegations made in the Application for summons and must state, among other things, "the nature of the breach or offence which is alleged".

The Affidavit failed to properly verify the allegations in the application. It did not verify that the alleged offence arose as a result of the defendant's undertaking. It did not verify in what respects there was any undertaking by the defendant.

The Affidavit failed to properly verify the allegations in the application. It did not verify that the alleged offence occurred at the defendant's place of work.

In the circumstances, the Summons is invalid and void.

Alternatively, in these circumstances, the Summons is liable to be set aside or dismissed.

The Summons is also deficient because it does not identify in what respects it is alleged that the offence arose as a result of the defendant's undertaking.

In all of the circumstances, if the Summons is not liable to be set aside or dismissed, the proceedings should be stayed.

11 The notice of motion requests: 1. An order setting aside or dismissing the summons. 2. Alternatively a permanent stay of the proceedings. 3. Costs. 4. Such further or other orders as may be appropriate in the circumstances.

12 The defendant submitted the affidavit failed to properly verify the allegations in the application. IR Rule 219 provides the application for the issue of a summons must be accompanied by an affidavit "verifying the allegations made in the application for summons" and must state, among other things, "the nature of the breach or offence which is alleged" (IR Rule 219(1)(e)). In the circumstances, the defendant submits, the summons is invalid and void; alternatively, it should be set aside or dismissed.

13 The question before the Commission therefore is: is the summons fundamentally flawed if it does not, through the affidavit to the application for summons verify an allegation? If such verification through the affidavit is mandatory under the rules is the summons therefore incurable? Both parties have conceded this is a technical point and a question of interpretation of the effect of IR Rule 219 has never been before the Court.

14 The summons directs itself to a breach by the defendant of s16(1) of the Act. Section 16(1) states: 1. Every employer shall ensure that persons not in the employer's employment are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at his place of work.

15 The employer's "undertaking" and "place of work" are statutory matters fundamental to the charge. This is a charge heard under the criminal jurisdiction of the Commission in Court Session. The affidavit states relevantly: 5. By 24 March, 1997 SWR Constructors Pty Limited ("SWR") the principle (sic) company having as its undertaking the widening of the Motorway had constructed a concrete protection barrier at the said site so as to separate the work or construction area from lanes of moving traffic.

16 This paragraph verifying the allegation of "undertaking" misdirects itself. This is the only particular which refers to an "undertaking". The particular refers to a third party's undertaking not to the defendant's undertaking. It therefore does not provide the information required.

17 Accordingly and appropriately, the defendant's solicitors sent a Request for Particulars to solicitors for the prosecution. Quite inappropriately, and in objectionable terms, the prosecution denied the request. Correspondence from the defendant to the WorkCover Authority dated 22 June 1999 directly to the issue requested: What does the informant allege was the defendant's undertaking that gave rise to the relevant exposure to the risks alleged by the informant?

18 In reply, through their solicitors, the WorkCover Authority acknowledged the letter in the following terms: We refer to your request for further and better particulars dated 22 June 1999. We are anxious to make available to you the information necessary to allow you to understand the nature and extent of the charges brought against your client. May we respectfully suggest the type of particulars you have requested would be more appropriate for an action based on negligence rather than a criminal prosecution. If you care to recast the particulars we will be pleased to provide answers to any particular request. We advise, however, if you insist upon an answer to the letter as forwarded, we anticipate our position would be that most of the requests do not go to the nature of extent of the charge or an understanding of it and are therefore inappropriate.

19 Since the expressed disdain and dismissiveness of this reply by the prosecutor, no further and better particulars as to the defendant's "undertaking" have since been provided.

20 It is submitted, by the defendant, that the affidavit failed to properly verify the allegation in the application. Specifically it did not verify that the alleged offence arose as a result of the defendant's "undertaking". It did not verify in what respect there was any "undertaking" by the defendant. It did not identify in what respects an offence arose as a result of the defendant's "undertaking". The affidavit did not verify that the alleged offence occurred at the defendant's place of work.

21 The risk to health and safety must arise "from the conduct of the employer's undertaking while they were at his place of work" for a prosecution under s16(1). The conduct of the employer's undertaking and the employer's place of work are essential ingredients of the charge and as has been held there can be only one offence pleaded under s16(1) (see Boral Gas NSW Pty Limited v McGill 58 IR 363).

22 The defendant submits the language of IR Rule 219 is the language of mandate, not discretion. It submits the court cannot sanction any laxity in the commencement of a criminal process and this Rule should be strictly construed and the Commission should apply the established rule of strict construction of a penal statute or an Act which affects the personal liberty of the subject in its application.

23 Alternatively the defendant submits, IR Rule 220 provides for the Registrar to issue a summons after the Registrar is satisfied that the application for summons has been properly filed. A failure to comply with the Rule means that there is no effective agreed process commencing proceedings against the defendant. The defendant submits as the application and affidavit in support did not properly verify the allegations in the summons as it did not state or verify what was the defendant's undertaking, or even verify the offence occurred at the defendant's place of work the Registrar should not have issued the summons.

24 The prosecution submits there are sufficient particulars for the defendant to know what is alleged to be their undertaking within the other particulars. I do not accept this submission. Criminal prosecutions require severe standards to be applied. The affidavit's contents give an indication the prosecutor had no understanding of what particulars as to "undertaking" were required. The performance of the employer's undertaking is fundamental to the nature of the breach pleaded and as such the defendant's undertaking should be particularised correctly.

25 The prosecution submits the opening words of the rule make the rule meaningless. The Rule read literally requires the "proceedings" to state various matters, not the "documents" commencing the proceedings. Alternatively, even if Rule 219 is deemed to prescribe the contents of the documents, nothing in the Rule refers to the requirement to state anything about the defendant's undertaking. The prosecution submits in a full reading of the documents filed the defendant's "undertaking" is clearly defined. In the alternative the prosecution submits if the defendant is disadvantaged by some lack of particularity in the originating process, the court has ample power to remedy that by making the appropriate orders for the provision of particulars.

26 The prosecutor submits that the general power confirmed on the Court under sub-s 163(1)(c) allows the court to deal on the merits without regard to technicalities or legal forms. It submits the Rules are deliberately wide and flexible and it is the intent of the legislature, that such an application as this, based upon a technical point and legal form, should not be considered appropriate under the circumstances. The prosecution submits the upholding of a technical interpretation goes against the spirit and intent of the legislation: not only the legislation that establishes the Industrial Relations Commission in Court Session but also that of the Act under which the summons issues.

27 The powers and procedures of the Industrial Relations Commission of New South Wales in Court Session are set out expressly and are read, in relation to criminal proceedings, by reference to the Supreme Court (Summary Jurisdiction) Act 1967.

28 The Commission and the Commission in Court Session are constituted by the Industrial Relations Act 1996. The Act under Chapter 4 Part 5 outlines the "Procedure and Powers of commission" through from s 162 to s 184. Relevant to the question before the Court are s163 which is headed "Rules of evidence and legal formality" and s168 - headed "Criminal Procedure".

Section 163 relevantly reads: 163(1) [Commission not bound by the rules of evidence] The Commission: (a) is not bound to act in a formal manner; and (b) is not bound by the rules of evidence and may inform itself on any matter in any way that it considers to be just; and (c) is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. 163 (2) [Rules of evidence apply to commission in court session] However, the rules of evidence and other formal procedures of a superior court of record apply to the Commission in Court Session.

Section 168 states: (1) [Proceedings for an offence] Proceedings for an offence in respect of which proceedings are taken before the Commission in Court Session are to be dealt with summarily by the Commission. (2) [Supreme Court (Summary Jurisdiction) Act, 1967 applies] The Supreme Court (Summary Jurisdiction) Act 1967 applies to any such proceedings in the same way as it applies to proceedings that may be taken before the Supreme Court in its summary jurisdiction. . . . (4) The provisions applied by this section prevail over any other provisions of this Part for the purposes of proceedings for an offence.

NOTE: See section 196 with respect to the procedure on appeal to the Full Bench in criminal proceedings

Supreme Court (Summary Jurisdiction) Act, 1967 (NSW):

Section 6 - Defects and variances in process (1) No objection shall be taken or allowed to any application referred to in, or to any order or warrant made or issued under, section 4 or 5 by reason of any alleged defect in it in substance or in form or by reason of any variance between it and the evidence adduced at the proceedings for the offence charged in the application or order.

(2) The Judge hearing the proceedings for any such offence shall:

(a) where it appears to the Judge that any variance between any such application or order and the evidence adduced in respect of the offence charged in the application or order is such that the defendant has been misled by the variance; and (b) the defendant applies for an adjournment of the hearing, adjourn the hearing.

29 In a reading of the combined effect of the provisions of ss163 & 168(2) of the Industrial Relations Act 1996 and ss6 and 8 of the Supreme Court (Summary Jurisdiction) Act 1967, the practice and procedure as to the taking and receiving of evidence in this matter is formal and defects and variance in process can be righted provided the prosecutor provides adequate identification of the factual nature and content of the act or omission constituting the offence (see Boral Gas NSW Pty Limited v McGill 58 IR 363 at 394 per Hill J). This proposition has been endorsed by Wright J, President in WorkCover Authority of New South Wales (Inspector Rodney Dubois) v Concrete Constructions Group Ltd (unreported, Wright J, President, 20 May 1999, No. IRC5242 of 1997) (on appeal) in holding: As Hill J observed in Boral Gas ((1995) 37 NSWLR 150 at 173) there is wide divergence of judicial opinion in relation to the failure to identify in an information all essential factual ingredients of the offence alleged therein. His Honour however concluded, on the authority of the judgments of Gleeson CJ and Brennan J (as his Honour then was) in Stanton and John L respectively, that the defects and any resultant invalidity at common law were avoided or overcome by s6 of the Summary Jurisdiction Act (see the discussion in Boral Gas at 174-176). In this respect, because of the similar approach taken by Fisher CJ (at 158-159), Hill J's judgment represents the holding of the Court.

30 There had been an intervening act pursuant to IR Rule 220 by the Registrar to determine the summons was properly filed before it was issued. In truth this is an appeal from a decision of the Registrar. 31 The case was argued before the Court as a simple technical point. However, once the summons was issued the Court is seized of jurisdiction and must look at the Rule in the context of legal precedent and the obligations of the Court under the relevant Acts.

32 There is no claim in this matter that the summons does not cover the essential factual ingredient of the charge.

33 Wright J, President, in Concrete Constructions Group Ltd summarised the law to be applied to in an assessment of the validity of a summons saying: The requirements of valid process commencing summary criminal proceedings have been the subject of much judicial consideration; as has the related question of particulars as to such process. Notwithstanding the width of judicial writing on the subject, the application of the principles in particular situations presents some difficulties. The resolution of the difficulties in this area is, however, assisted by the approach of Gleeson CJ in Stanton v Abernathy (1990) 19 NSWLR 656 (at 666): … in considering arguments about want of particularity of criminal charges, the context in which the argument is raised may be of importance, and certain distinctions need to be borne in mind. The difference between what is necessary for an indictment, and what is sufficient in the form of an information may be important. Again, authorities dealing with the adequacy of informations which give rise to summary convictions are not necessarily a safe guide to the position in relation to informations which found committal proceedings, especially when regard is had to the historical importance of enabling superior courts to review convictions by magistrates on jurisdictional grounds as well as the importance that once attached to the basis of jurisdiction appearing on the face of the conviction or the initiating process. Finally, a distinction that has been emphasised in a number of cases is that between the matter of what constitutes sufficient particularity to support the validity of an information, and the question whether in the exercise of his or her discretion a magistrate should order the prosecution to provide further and better particulars to a defendant.

34 Then adopting the reasoning of Hill J in Boral, Wright J, President held: In my opinion, the information in this case, as amplified by the particulars provided, does not allege more than one offence and is not ambiguous and does not give rise to duplicity. However, I consider that the particulars which have been provided are deficient and do not properly specify or identify the factual ingredients of the alleged offence. They do not remedy the deficiency in the information and give rise to uncertainty. In my view, they fail properly to specify the actual nature, content and causes of the risks involved to persons not in the employment of the appellant and which arose out of the conduct of the appellant's undertaking on the day in question. That is, the particulars should specify "how" or in what manner the appellant contravened the section. The respondent should therefore be required, if necessary by order, to supply proper particulars of the precise nature, content and cause(s) of the risks (arising out of the conduct of the undertaking) to persons not in the employment of the appellant while they were at its place of work on 2 June 1991.

35 The President in a later matter before the Full Bench of this court in Eric Alexander Higgins v Avoca Estate Agency Pty Ltd (unreported, (Wright J, President, Hungerford and Marks JJ) 3 December 1999, Nos IRC3470, 3471 of 1998 at 4) as to an information held: . . . the requirement at common law is that an information must identify the essential factual ingredients of the offence charge. That is, the information must specify the time, place and manner of the defendant's acts or omissions. (See WorkCover Authority of NSW (Inspector Rodney Dubois) v Concrete Constructions Group Limited (unreported, No IRC97/5242, 20 May 1999) at 18 and in reliance on Johnson v Miller (1937) 59 CLR 467, John L Pty Ltd v Attorney-General ( NSW) (1987) 163 CLR 508, Stanton v Abernathy (1990) 19 NSWLR 656 at 666 and R v Saffron (1988) 17 NSWLR 395 at 445)

and further: . . . there was an obligation on the prosecution to provide an appropriately framed information, appropriately particularised. In circumstances where that had not occurred, the obligation was at least to provide precise and detailed particulars. . . . There was continual reticence on the part of the prosecution to fulfil its duty.

36 In Concrete Constructions (at 26) there is mention of the affidavit of the prosecutor stating: Nevertheless, a number of the matters raised by the defendant appear to indicate that the particulars provided suffer from a lack of clarity, and possible lack of completeness, and thus a probable lack of particularity. I make this observation notwithstanding the more detailed affidavit sworn by the prosecutor, which is relied upon by the prosecution in part answer to the defendant's submissions. In those circumstances, the prosecutor should be required to provide full particulars of the matters relied upon. I do not consider that the affidavit of the prosecutor, notwithstanding any greater detail provided therein, is a substitute for appropriate particularity.

37 While these authorities enunciate the principles to be applied where there is consideration to striking a summons for want of an essential factual ingredient they also observe how a summons or lack of particularity to a summons can be rectified.

38 The defendant relies on the view expressed by the High Court in Smith v Corrective Services Commission of New South Wales (1980) 147 CLR 134 at 139 where the Court held: The expectation to which we refer is reinforced by the established principle of statutory interpretation requiring strict construction of a penal statute, or an Act which affects the personal liberty of a subject: Maxwell on Interpretation of Statutes, 12th ed. (1969), p239; Marcotte v Deputy Attorney-General (Canada) (1974) 51 DLR (3d) 259 at 264; Board of Fire Commissioners (NSW) v Ardouin (1961) 109 CLR 105 at 116, Watson v Marshall and Caden (1971) 124 CLR 621at 629, 649.

39 The attack on the summons here is made by way of a breach of an alleged mandatory provision in the IR Rules.

40 However, the prosecutor also relies on IR Rule 88(1): RULE 88 WAIVER OF COMPLIANCE WITH PROCEDURAL REQUIREMENTS (1) [Application to waiver compliance] Application to a tribunal to waive strict compliance with any procedural requirement or to exempt any party from compliance with any such requirement either before or after the occasion for compliance arises, may be made by notice of motion or orally in the course of the proceedings and if made separately must, unless the tribunal otherwise directs, be supported by affidavit.

41 The prosecutor made the application, the Court allowed the application and did not direct affidavits be filed but heard oral submissions. There are other rules of the Commission reflecting the broad power of IR Rule 88. IR Rule 224(1) of the Industrial Relations Act 1996 states: Rule 224 AMENDMENT OF PROCESS

(1) [AMENDMENT AT ANY TIME] The Commission may, on the application of any party at any time during the proceedings or made, in writing, to the Registrar, at any time, allow an amendment to be made of any process upon such terms as to adjournment, the times within which any matter or thing may be done in connection with the proceedings, and service of notice of the amendment, as the Commission thinks fit.

42 In a reading of IR Rule 219 with the provisions of the Industrial Relations Act 1996 although strict requirements must be applied to a criminal prosecution, the provisions of the Act may well allow for the Court to give orders in proceedings for further clarifying steps to be taken by a prosecutor. Importantly, however, the reasoning of Hill J in Boral, as adopted as the proper approach of this Court in Concrete Constructions, makes clear defects and any resultant invalidity at common law are avoided or relevantly saved by s6 of the Supreme Court (Summary Jurisdiction) Act 1967 (Stanton v Abernathy & Anor (1990) 19 NSWLR 656 at 667 per Gleeson CJ).

43 Further, the Court finds an offence has been disclosed in the summons. This was a good information from the time it issued in that the summons identified the essential factual ingredients of the charge. It specifies the "time, place and manner" of the Ridge Consolidated Pty Ltd's act that defines the breach as is required under s16(1) of the Act.

44 Further the Court finds "the undertaking" has been pleaded as an essential factual ingredient of a breach under s16. While the particular, as to what is alleged to be the defendant's undertaking, has not been properly verified in the affidavit of the prosecutor or following the defendant's proper request for particulars, the authorities and the associated legislative provisions allow any defect can be cured by the provision of precise and detailed particulars. The prosecutor has therefore not breached Rule 219. The prosecutor has stated in the affidavit the nature of the breach which is alleged.

45 The affidavit also provides verification as "to the nature of the breach or offence" which is alleged. What the particulars in the affidavit of the prosecutor suffer from is the lack of clarity and completeness: . . . I do not consider that the affidavit of the prosecutor, notwithstanding any greater detail provided therein, is a substitute for appropriate particularity. (see Wright J, President, Concrete Constructions )

46 What is required is further and better particulars. The effect of any order requiring further particulars will not act as an amendment to create a valid information for the first time after the statutory period for the taking of proceedings has expired (see Tregilgas v Howie (1926) S.A. States Report 122 at 126). While the legislature has set a time limit within which an information must be laid and a defendant is entitled to receive the benefit of this time limit the information as issued properly identifies the essential ingredient of the offence.

47 As the provision of proper particulars will not have the effect of alleging an offence different from that which is presently alleged in the summons there is no question as to the summons being issued outside the statutory time limit. (See Gilmour v Midways Springwood Pty Ltd ((1980) 49 FLR 36 at 39; see also Chaudhary & Anor v Ducret (1985) 11 FLR 163).

48 I order the prosecutor to provide the defendant with the appropriate particulars.

49 I dismiss the application to strike out the summons. COSTS 50 As to the question of costs, the Court finds the words of Wright J, President in Higgins are most appropriate and repeats them: . . . there was an obligation on the prosecution to provide an appropriately framed information, appropriately particularised. In circumstances where that had not occurred, the obligation was at least to provide precise and detailed particulars. . . . There was continual reticence on the part of the prosecution to fulfil its duty. It is regrettable that such observations would need to be made.

51 His Honour then added the following comment: It is to be expected, these observations now having been made, they should not have to be repeated in subsequent judgments of this court.

52 The circumstances revealed in this application where the prosecution, following a proper request, refused to provide appropriate particulars, are such as to persuade me against giving the usual orders as to costs following a determination. The prosecutor must meet its obligations to a defendant to fully and properly fulfil its duty.

53 Accordingly, the Court makes the following orders: 1. Orders sought in the defendant's notice of motion are declined.

Costs of the notice of motion are awarded to Ridge Consolidated Pty Ltd.

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.

At a glance

Court

Decision date

Before

Source

Judgment (79 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (10)

Cited By (1)