WorkCover Authority of NSW (Inspector Maltby) v State Rail Authority of New... [2000] NSWIRComm 170 | Case summary

WorkCover Authority of NSW (Inspector Maltby) v State Rail Authority of New... [2000] NSWIRComm 170 | Case summary | Zoe

DEFENDANT/APPLICANT ON MOTION: Ove Arup Pty Limited FILE NUMBER: 5431, 5460, 5461, 5462, 5463, 5464, 5465, 5466, 5467, 5468, 5469, 5470, 5471, 5472, 5473, 5474, 5475, 5477, 5478, 5479, 5480, 5481, 5482, 5483 of 1999 CORAM: Schmidt J Occupational Health and Safety - notices of motion seeking dismissal of prosecutions - prosecutions commenced after expiration of limitation period - proper construction of s49 of the Occupational Health and Safety Act 1983 - whether prosecutor failed to comply with the requirements of Rule 219 of the Commission's Rules - effect of s170 of the Industrial Relations Act 1996 - requirements of s4 of the Supreme Court (Summary Jurisdiction) Act 1967 - proceedings not a nullity- prosecutor ordered to provide particulars of matters relied on in accordance with s49(4) of the Occupational Health and Safety Act 1983 - proceedings stood over - orders under s4 of the Supreme Court (Summary Jurisdiction) Act 1967 to be further considered CATCHWORDS : Practice and procedure - Rule 219 of the Commission's Rules and s170 of the Industrial Relations Act 1996 - proceedings not a nullity - discretion to order particulars exercised Occupational Health and Safety Act 1983 Industrial Relations Act 1996 Industrial Relations Commission Rules LEGISLATION CITED : Supreme Court (Summary Jurisdiction) Act 1967 WorkCover Legislation Amendment Act 1995 Coroners Act 1980 Industrial Arbitration Act 1940 Page v Walco Hoist Rentals Pty Limited (1999) 87 IR 286 Ridge Consolidated Pty Ltd v WorkCover Authority of New South Wales (Inspector Mauger) [2000] NSWIRComm 151 Stanton v Abernathy (1990) 19 NSWLR 656 CASES CITED : Campbell v Broken Hill Proprietary Ltd [1960] AR 593 Ex parte Qantas Airways Ltd, Re Horsington (1969) 14 FLR 415 Electronic Rentals Pty Ltd v Anderson (1971) 124 CLR 27 Smith v Corrective Services Commission of NSW (1980) 147 CLR 134 HEARING DATES: 06/21/2000; 06/23/2000; 08/21/2000 DATE OF JUDGMENT: 08/29/2000

4 It was common ground that each of the prosecutions arose out of events culminating on 4 December 1995, with an explosion at a construction site at Kogarah railway station, which were the subject of a coronial inquest and inquiry. The proceedings before the Coroner went over 12 days between 9 December 1996 and 14 May 1997, with the Coroner's findings being given on 17 October 1997. 5 The summonses were all issued on 12 October 1999, together with numerous other summonses. This was outside the limitation period fixed by s49(1) of the OH&S Act and shortly prior to the expiry of the limitation period fixed by s49(4), if that provision applied to the summonses. In all, seventy seven prosecutions were commenced in the Registry in connection with these matters on the one day. 6 The proceedings were each commenced by application for summons, filed together with an affidavit verifying the application sworn by the prosecutor and a draft summons for signature by the Industrial Registrar. 7 No reference was made in any of those documents to the proceedings before the Coroner or that the application was brought in accordance with the time limit prescribed by s49(4) of the OH&S Act. It followed that on the face of the documents the applications for prosecution were filed beyond the time limits fixed by s49(1) of the OH&S Act. 8 They were, nevertheless, accepted when filed in the Registry and the summonses were issued after an enquiry was made by Registry staff of the prosecutor's solicitor, who advised by telephone that there had been a coronial inquest and that s49(4) of the OH&S Act was relied on. On the approach of the defendants, in those circumstances the summonses were a nullity, because the prosecutor had failed to comply with the requirements of Rule 219 of the Commission's Rules. Rules 219 and 220 applied to the application. They provide: '219. (1) 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:

Section 49 of the Occupational Health and Safety Act and the Judgment in Page v Walco Hoist Rentals Pty Limited 27 Against that background, I turn to the construction of s49 of the OH&S Act. Sections 15, 16, 17 and 49 of the OH&S Act provide: 15. Employers to ensure health, safety and welfare of their employees (1) Every employer shall ensure the health, safety and welfare at work of all the employer's employees. (2) Without prejudice to the generality of subsection (1), an employer contravenes that subsection if the employer fails: (a) to provide or maintain plant and systems of work that are safe and without risks to health, (b) to make arrangements for ensuring safety and absence of risks to health in connection with the use, handling, storage or transport of plant and substances, (c) to provide such information, instruction, training and supervision as may be necessary to ensure the health and safety at work of the employer's employees, (d) as regards any place of work under the employer's control: (i) to maintain it in a condition that is safe and without risks to health, or (ii) to provide or maintain means of access to and egress from it that are safe and without any such risks, (e) to provide or maintain a working environment for the employer's employees that is safe and without risks to health and adequate as regards facilities for their welfare at work, or (f) to take such steps as are necessary to make available in connection with the use of any plant or substance at the place of work adequate information: (i) about the use for which the plant is designed and about any conditions necessary to ensure that, when put to that use, the plant will be safe and without risks to health, or (ii) about any research, or the results of any relevant tests which have been carried out, on or in connection with the substance and about any conditions necessary to ensure that the substance will be safe and without risks to health when properly used. (3) For the purposes of this section, any plant or substance is not to be regarded as properly used by a person where it is used without regard to any relevant information or advice relating to its use which has been made available by the person's employer. (4) If in proceedings against a person for an offence against this section the court is not satisfied that the person contravened this section but is satisfied that the act or omission concerned constituted a contravention of section 16, the court may convict the person of an offence against that section. Maximum penalty: 5,000 penalty units in the case of a corporation or 500 penalty units in any other case. 16. Employers and self-employed persons to ensure health and safety of persons other than employees at places of work (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 the employer's place of work. (2) Every self-employed person shall ensure that persons not in the person's employment are not exposed to risks to their health or safety arising from the conduct of the person's undertaking while they are at the person's place of work. (3) If in proceedings against a person for an offence against this section the court is not satisfied that the person contravened this section but is satisfied that the OH&S Act or omission concerned constituted a contravention of section 15, the court may convict the person of an offence against that section. Maximum penalty: 5,000 penalty units in the case of a corporation or 500 penalty units in any other case.

28 Section 49(4) of the OH&S Act was inserted into the Act in 1995, commencing on 1 February 1996, but with effect in respect of acts or omissions constituting an offence 'which occurred within two years before the commencement of the subsection.' (See clause 13 of Schedule 8 - Savings and Transitional Provisions of the WorkCover Legislation Amendment Act 1995.) It follows that the provisions of s49(4) were operative at the date of the offences alleged in these proceedings, namely between 10 November and 5 December 1995. 29 This is, however, only the case if the circumstances contemplated in s49(4) existed in respect of each of the prosecutions which arises here for consideration. That is, it must be shown in each case that from the Coroner's report or the proceedings that 'it appears … that an offence has been committed', in order to permit the institution of proceedings in respect of the offence outside the ordinary two year limitation period imposed by s49(1). In making that observation, I put to one side for the moment, the arguments advanced as to the proper approach to s49(4) when proceedings before the Coroner have concluded with a report. I will return to this question below. 30 The limitation period, so understood, is of real importance to the initiation of a prosecution. In order for a prosecution launched outside the period prescribed in s49(1) to be competent, it must be brought within the extension provided for in s49(4). Proceedings being commenced before the Coroner will not of themselves activate the extension period provided in s49(4). 31 In enacting the OH&S Act, Parliament obviously took a particular view as to the public interest which was being served by the offences which it created. The limitation periods prescribed in s49 of that OH&S Act are, however, another and equally important aspect of the public interest which the Parliament was acting to protect. The legislation balanced on the one hand, the conduct which it proscribed and on the other, the time within which prosecutions in respect of such proscribed conduct must be launched. 32 It is obvious that neither a prosecutor nor this Court is at liberty to ignore the Parliamentary intent inherent in s49. It follows that a prosecutor should not launch a prosecution unless satisfied that it is brought within the limitation period prescribed by s49 of the OH&S Act and that the Court should not permit a summons to be issued, unless it too is so satisfied. 33 In the usual case, such satisfaction is readily attainable. It will be obvious from the face of the initiating process whether or not a prosecution is brought within the time limit prescribed by s49(1), having regard to the date of the offence which is alleged. If more than two years has elapsed since that date, the prosecutor should not seek to launch a prosecution and the Court should not issue a summons in respect of such an offence, because the time for prosecution has expired. It is but stating the obvious to note that it would be an injustice to require a defendant to meet a charge which is brought outside the limitation period fixed by the Parliament in respect of such offences. 34 The same broad concepts apply in cases where s49(4) of the OH&S Act arises for consideration. They are, however, of somewhat more difficult application. The legislature has not seen fit to enact a broad extension of time for prosecution under the OH&S Act in every case where there is a coronial inquest or inquiry. It could have done so, but did not. It elected to extend time in a more limited class of cases. 35 Here the approach of the prosecutor to the construction of s49(4) proceeded on the broadest possible construction of the subsection. In effect, in the prosecutor's view, so long as either the Coroner's report or the proceedings make it appear that someone had committed an offence under the OH&S Act or regulations, the prosecutor is free to prosecute any person in respect of that offence, or any other offence under the OH&S Act or regulations, whether referred to in the proceedings or the Coroner's report or not. As I understood the argument, the only limitation appeared to flow from a relevant connection between the subject matter of the prosecution and the events which were the subject of the proceedings before the Coroner. This would have the result that persons who had not appeared before the Coroner or had not had an opportunity to be heard by the Coroner might be charged in connection with offences under the OH&S Act arising out of circumstances considered or touched upon in those proceedings, so long as the Coroner's report made it appear that an offence under the OH&S Act had been committed by someone. 36 To illustrate the construction it is useful to refer to an example raised in submissions. It would mean that, in this case, the occupier of the premises at which the explosion had occurred or the employer of those working there could be charged with an offence under the OH&S Act, within the extension contemplated in s49(4), even if the only offence which it appeared from the Coroner's report or proceedings had been committed was one committed by the Commissioner of Police, in connection with the attendance of police officers, who were responding to the aftermath of the explosion. 37 The defendants' approach was to a quite different effect. On their approach, not only was there a need for identity between the offence charged and the report or proceedings before the Coroner, which made it 'appear that an offence had been committed' under the OH&S Act, but also a need for the offender to be identified in the report or the proceedings. 38 It seems to me that neither approach can be correct. In Walco, the Full Court had before it a number of questions of law referred by the President, Justice Wright. At p288, the Court noted that the sole issue in the case was 'whether, and if so, in what circumstances, subs (4) of s49 prevails over subs (1) thereof in fixing the time within which proceedings for offences against the OH&S Act are to be instituted where a Coroner's inquest or inquiry is held'. 39 That question arose in circumstances where there were facts agreed between the parties, which included that the inquest was conducted on the same day as the Coroner gave his report; that prior to the inquest the prosecutor was in possession of evidence of a prima facie case that the defendants had committed the offences charged and that nothing new was disclosed in the proceedings or the Coroner's report. 40 In Walco, the Full Court concluded at p289 that s49(4) laid down two tests for it to take effect, namely that a Coroner's inquest or inquiry is held and that it appears from the report or proceedings that an offence has been committed. It went on to conclude at pp292-3 that in the case there in question, it appeared from both the report and the proceedings 'that offences under the Occupational Health and Safety Act have been committed as charged in the respective summonses filed herein.' 41 This latter conclusion flowed from the Full Court's consideration of the second aspect of s49(4), namely, that if it appears from the Coroner's report or the proceedings that an offence under the OH&S Act has been committed, then 'proceedings in respect of that offence' may be instituted within 2 years after the date the report was made or the proceedings concluded. These latter words of s49(4) plainly contemplate a prosecution in respect of 'that offence' proceeding and no other. 42 Adopting that approach to the construction of s49(4), with which I agree, it follows that contrary to the construction urged for the prosecutor, a prosecution may only be launched in the time prescribed by s49(4), if it appears from the Coroner's report or the proceedings that the offence with which the defendant has been charged, namely 'that offence', has been committed. 43 The consequence is that a prosecution may be launched within the time extended by s49(4), in respect of any offence which appears from the Coroner's report or the proceedings to have been committed, but no others. 44 As to the construction urged for the defendants, the conclusion I have reached is that s49(4) does not require that the Coroner's report or the proceedings identify the offender. It is the offence with which s49(4) is concerned, not the offender. 45 This conclusion flows not only from the plain words of s49(4) OH&S Act, which do not expressly require the offender to be identified, but also from a consideration of the scheme of the OH&S Act itself. Sections 15, 16 and 17, for example, create offences which include failures of employers, self employed persons, those who engage contractors and those who control particular premises. In such prosecutions, difficult questions can arise as to whether a particular person is an employee or a contractor, or if in employment, who the employer is. 46 In that context, that s49(4) would be concerned with the appearance that an offence has been committed, rather than with the question of who the offender might be, is hardly surprising. That is particularly so, given that the extension is granted in the context of proceedings before the Coroner. 47 Sections 22 and 22A of the Coroners Act 1980, for example, preclude a Coroner identifying a person who appears to have committed an offence. In the context of that prohibition, it would seem extraordinary to conclude that it was intended in s49(4) of the OH&S Act that the identity of an offender be required to be established by the Coroner's report. It would thus seem to follow from the construction advanced for the defendants that a significant part of s49(4) would, in reality, have no work to perform, it not being intended by the Coroners Act that the Coroner would identify persons who have committed offences. That result militates obviously against the construction for which the defendants contended. Furthermore, while identity of an offender might be established in the proceedings before the Coroner, it is difficult to envisage that questions such as the identity of an employer or whether a person was an employee or not would ever arise for consideration. Such matters may very well require determination in order that the identity of an offender be established. 48 It follows, as was submitted for the prosecution, that establishment of the identity of the offender is a matter for the prosecutor to establish in the prosecution brought under the OH&S Act and not a precondition to the extension of time provided for in s49(4). 49 There were other aspects of the construction of s49(4) which were argued. I will deal with these later. It is convenient to deal at this point, however, with the question of what must be done by both the prosecutor and the Court in launching a prosecution under the OH&S Act, in circumstances to which s49(4) applies, having in mind what I have already concluded as to its proper construction. Patently, both the prosecutor and the Court must be satisfied, at the outset, that the prosecution proposed is not beyond time. That will flow from a satisfaction that the offence with which the defendant is to be charged is an offence which appears to have been committed having regard to the Coroner's report or the proceedings. 50 In this case there was no evidence that the prosecutor was so satisfied. Neither the application, the proposed summons nor the prosecutor's affidavit made mention of these matters at all. The prosecutor was not called to give evidence. Further, the prosecutor refused to give the defendants particulars of what it was in the report or the proceedings on which the prosecutor had relied in coming to the view that it appeared the offences with which they had been charged had been committed. 51 The prosecutor plainly failed in that refusal. There had, in my view, also been an earlier failure to comply with the requirements of Rule 219(d). The prosecutor is thereby obliged to state the act and the section under which the application was made. Given that all of the applications on their faces were outside the ordinary limitation period provided for prosecutions under the OH&S Act, it is in my view unarguable that a reference to s49(4) was required. Further, Rule 219(e) required that the nature of the offence alleged be specified. In my view, this also required specification of what it was in the Coroner's report or the proceedings on which the prosecutor relied. 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 OH&S 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. 53 The next matter to be considered is whether the prosecutor's failures to comply with the requirements of Rule 219 operated so as to make the proceedings a nullity, as the defendant's argued. 54 I have concluded, not without some difficulty I might add, that they did not. Following the views expressed by the Full Court in Ridge at paragraph 38, I have come to the view that the proper conclusion is that the deficiencies are such as to attract the provisions of s170 of the 1996 Act. That view flows from the conclusion that s170 applies to these proceedings. Were that view wrong, it would follow that these prosecutions would have to be dismissed. Section 170 provides: (1) The Commission may, in any proceedings before it, make any amendments to the proceedings that the Commission considers to be necessary in the interests of justice. (2) Any such amendment may be made: (a) at any stage of the proceedings, and (b) on such terms as the Commission thinks fit (including, if it can award costs in the proceedings, terms as to costs). (3) If this Act, the regulations or a rule of the Commission is not complied with in relation to the institution or conduct of proceedings before the Commission, the failure to comply is to be treated as an irregularity and does not nullify the proceedings, any step taken in the proceedings, or any decision in the proceedings. (4) For the purposes of subsection (3), the Commission may wholly or partly set aside the proceedings, a step taken in the proceedings, or a decision in the proceedings.

55 In Ridge the interaction between s170 of the 1996 Act and s6 of the Supreme Court (Summary Jurisdiction) Act was not discussed. The latter section is however relevantly concerned with defects in substance or form in an application brought under that Act. The former is relevantly concerned with a failure to comply with regulations or rules of the Commission in the institution or conduct of proceedings before the Commission. On their face, these are different matters. 56 There is no reason to doubt that s170 applies to these proceedings. Section 168 itself refers to proceedings for an offence being taken before the Commission in Court Session. In Ridge it was held at paragraph 35 that s168(4) did not have the effect of making the provisions of s170 irrelevant to proceedings to which s168 applies. That is a view consistent with other provisions of the 1996 Act, such as s169(5), which expressly provides that that section does not apply to criminal proceedings before the Commission in Court Session. No such exclusion appears in s170 of the 1996 Act. 57 Section 170, of course, provides a discretion in the Commission. In this case its exercise is somewhat troubling. The prosecutor submitted that rather than the prosecutions being dismissed, in these proceedings the proper approach would be to provide the prosecutor with an opportunity to give the defendants the particulars relied upon. Having in mind not only the prosecutor's refusal, thus far to provide the defendants with such particulars, but also the approach adopted at the hearing to the question of the identification of the offences which the prosecution said appeared from the Coroner's report or the proceedings to have been committed, I have been in some doubt as to whether the discretion should be exercised. 58 It was obvious that the prosecutor's approach flowed from the construction of s49(4) of the OH&S Act which was advanced, as Mr Hislop submitted. Nevertheless, two matters have concerned me. The first is that I can see no reason why the prosecutor's obligation to give particulars in relation to what offences it says appear from the Coroner's report or proceedings, so as to enliven s49(4), is any different to the obligation which the prosecutor has to give particulars of the offence charged. 59 That obligation has oft been discussed. It was particularly described by Gleeson CJ (as he then was) in Stanton v Abernathy (1990) 19 NSWLR 656 at 671-2: I have already indicated my views as to what would constitute adequate particulars. It is simply not good enough for the prosecution to rely upon the totality of the transcript …'

60 I similarly take the view that it is here not good enough for the prosecutor to refer to the totality of the Coroner's report, the transcript and the exhibits in the proceedings before the Coroner and to take the view that it is a matter for the defendants to establish that a prosecution is not brought within the time extended by s49(4). 61 My second concern arises in relation to s4 of the Supreme Court (Summary Jurisdiction) Act. Apart from the public interest which lies in prosecutions which are beyond time not being pursued by a prosecutor or permitted by the Court, it is difficult to see why the decision to issue a summons in accordance with s4 of that Act is not one which should be exercised judicially. With that in mind the prosecutor's failure to identify in the materials placed before the Court, when the proceedings were commenced or even at this hearing, those aspects of the Coroner's report or proceedings which it was said made it appear that an offence had been committed must be considered. In my view, these are not insignificant matters. 62 In Campbell v Broken Hill Proprietary Ltd [1960] AR 593 at 598-601, McKeon J considered the need for affidavits sworn in verification of offences alleged under the former Industrial Arbitration Act 1940, to demonstrate sufficient facts to show that there was a good cause of action. While a different statutory scheme was there under consideration, that approach was not similar to that discussed by Sugerman JA in Ex parte Qantas Airways Ltd. ; Re Horsington (1969) 14 FLR 415 at 423-424. '(1) That in receiving a complaint and issuing a summons thereon (a fortiori in receiving an information where there is for the justice the further question whether a warrant should be issued in the first instance - Justices Act , s. 59) a justice is not acting merely ministerially in the sense that he is bound to issue his summons upon the mere receipt of the complaint. He is not bound to act mechanically or as a mere rubber stamp. He has a discretion to be exercised by him ( Justices Act , s.60) and upon whose exercise a judicial mind is to be brought to bear. He must, that is to say, act "judicially" in the second of the senses earlier referred to, which is not the sense which was relevant in the two decisions of the High Court just cited: this latter is the sense referred to by Isaacs J. (as he then was in Huddart, Parker & Co. Pty. Ltd. v . Moorehead (1909) 8 C.L.R., at p. 383), citing from Palles C.B. in Reg. v. Local Government Board [1902] 2 I.R. 349, at p.373. He may, according to the cases earlier cited, refuse to issue his summons if there is no prima facie case or the proceeding is vexatious, and perhaps on other grounds as well - for example, that the complaint is out of time or that the complainant is not authorized by law to lay it, or that some necessary consent has not been obtained.

64 To my mind, it cannot be doubted that in issuing a summons under s4 of the Supreme Court (Summary Jurisdiction) Act a judge of this Court or of the Supreme Court is not bound to act either mechanically or as a rubber stamp. It is inconceivable that a judge would be bound to issue a summons in respect of a prosecution under the OH&S Act, plainly brought out of time. There must be something put forward by a prosecutor which permits the judge to form a view that the summons should be issued, it being within the time prescribed by s49(4). What has been pointed to at this stage, simply does not permit any view to be formed as to that matter. 65 While the report of the Coroner was tendered, as well as the transcript of those proceedings and some of the exhibits, there has in reality as yet been no identification as to what the prosecutor relied upon as establishing that the defendant in each prosecution has been charged with an offence which appears from the Coroner's report or proceedings to have been committed. 66 That position can be contrasted with the situation which arose for consideration before the Full Court in Walco. As earlier noted, the facts there agreed included that prior to the inquest the prosecutor was in possession of evidence of a prima facie case that the defendants had committed the offences charged and that nothing new was disclosed in the proceedings or the Coroner's report. The Full Court, having considered the material before it was able to be satisfied that it appeared from both the Coroner's report and the proceedings that the offence with which the defendant had been charged had been committed. 67 Here no such agreements were advanced. Neither the Court nor the defendants are yet aware of the prosecutor's view of what makes it appear from the Coroner's report or proceedings at the inquest or inquiry that an offence has been committed against the OH&S Act or regulations in any of the prosecutions here under consideration. 68 Unlike Ridge, the answer to this dilemma cannot be found in s12 of the Supreme Court (Summary Jurisdiction) Act. The defendants here have as yet not appeared at the time and place appointed for hearing of these prosecutions. None has yet been appointed. These proceedings rather concern applications brought by the defendants to have the summonses struck out. 69 It follows from all of these circumstances, that in reality, the question which now arises is whether orders should be made under s4 of the Supreme Court (Summary Jurisdiction) Act. Until satisfied that these prosecutions were brought within time, it is not appropriate for such orders to be made. 70 In that context, I have concluded, not without some hesitation, that in this case the proper course is for the prosecutor to be given an opportunity to consider this judgment, including whether all of these prosecutions are properly available to be pursued, in light of the proper construction of s49(4) of the OH&S Act and to then provide the relevant particulars to the defendants in respect of those prosecutions which are to be pursued. I also note that it is relevant to this conclusion that some of these offences have been alleged to have been committed on 5 December 1995, in circumstances where the Coroner was investigating events which occurred on 4 December. 71 In the light of that conclusion, I also take the view that it is not appropriate that the defendants' motions be dealt with to finality at this stage, because it may be that their applications will not be resolved by the particulars so provided. The defendants, in my view, should not be denied the opportunity to further press these applications, once the prosecutor has provided such particulars. 72 These conclusions leave the other questions of construction of s49(4) raised by the defendants to be considered. 73 In Walco, the Full Bench rejected a construction of s49(4) there advanced by the defendant, which required that something new appear at the inquest or inquiry or in the Report, not previously known to the prosecutor, in order for the extension of time provided to be activated. It was formally submitted before me that Walco was wrongly decided as to this aspect. It was also argued that there was here nothing put by the prosecutor, either in initiating the proceedings or in answer to particulars later sought, which established that anything, whether already known or not, had made it appear from the inquiry or the Coroner's report, that any of the defendants had committed any offence under the OH&S Act or Regulations. Indeed, in the case of the State Rail Authority of New South Wales, it was relevant, so it was put, that the only comments made about it by the Coroner were in entirely exculpatory terms. 74 The conclusions which I have already reached in relation to the provision of particulars deals for the moment with the second argument. As to the first, I am bound to reject it, having regard to the judgment in Walco. 75 In Walco, another argument was rejected by the Full Court that 'it had not been shown that a prima facie case on the charges was put before the Coroner or was contained in his report', as incorrectly confusing the question of whether the summonses were brought within the relevant limitation period with the question of whether the necessary elements for the offences had been established, at least on their face, for them to be proven (see pp289-91). It was concluded by the Full Court that all that had to be found in order for the summons to be determined as valid, was that it appeared from the Coroner's report or the inquest that an offence had occurred. 76 Walco was also formally submitted to have been wrongly decided as to this aspect. It was also argued here that there still remained the ordinary obligation falling upon a prosecutor, to form the view that an offence had been committed and that it was one available to be prosecuted in accordance with s49 of the OH&S Act. Hand in hand with that obligation went the necessity to put before the Industrial Registrar sufficient material so as to enable the Registrar to carry out his function of deciding whether to issue a summons initiating the prosecution. Here, there was no evidence that the prosecutor had formed the necessary views and further, the prosecutor had failed to meet the obligation to put the necessary material before the Registrar, thereby leading the Registrar into error, given that on the face of the material the prosecution was brought contrary to the limitation period provided by s49(1) of the OH&S Act. The proper inference, it was submitted, was that the prosecution had not formed the relevant view and hence the summons should be dismissed. 77 I have already dealt with the need to follow the judgment in Walco and thus reject the first argument. As to the second argument, I take the view that it must be rejected having in mind the conclusion which I have reached as to the provision of particulars. 78 In Walco, the circumstances were not, as here, that the proceedings before the Coroner had taken place over a number of days, with a substantial adjournment before the Coroner's report was given. That circumstance was relevant to a construction of s49(4) here advanced for the defendants, which was not considered in Walco, namely that where a Coroner's report was given, a prosecutor was not entitled to rely on the proceedings in the inquest before the Coroner, as well as on the Coroner's report, in coming to the view that it appeared that an offence under the OH&S Act had been committed. 79 Another construction of s49(4) advanced was that if the proceedings were relied on in any of the prosecutions as giving rise to the appearance that an offence had occurred, rather than such an appearance flowing from the report of the Coroner, these prosecutions would not fall within the extended time provided in s49(4) and must be dismissed. This would follow because the proceedings concluded in May 1997 and the prosecutions were brought in December 1999. 80 I take the view that neither of these constructions of s49(4) is available on a proper reading of the subsection. As noted in Walco, the Coroners Act does not provide for a Coroner to make a 'report'. In my view, the document issued by the Coroner on 17 October 1997 is however a 'report' such as contemplated by s49(4) of the OH&S Act. It was the document which recorded the Coroner's findings from the proceedings before him, as contemplated by s22 of the Coroners Act. Such a document plainly falls within the ordinary meaning of the word 'report'. 81 The Coroners Act contemplates that coronial proceedings may conclude in a number of ways, not all of which involve the making of findings. In my view, the two year period provided for in s49(4) flows from the date of the conclusion of the proceedings before the Coroner if no report is given. If a report is given, then that is the time from which the two years run. That, however, does not preclude reliance being placed on an offence appearing from the proceedings in the event that the report is given some time after the conclusion of the proceedings. 82 I reject that construction of s49(4). While reliance was placed on the concluding words of the section 'proceedings in respect of that offence may be instituted, …within two years after the date the report was made or the inquest or inquiry was concluded, as the case may be', in my view they do not govern the earlier words 'it appears from the Coroner's report or proceedings at the inquest or inquiry that an offence had been committed against this Act or the regulations.' 83 It follows that in considering whether it appears that an offence has been committed under the OH&S Act, s49(4) permits regard to be had to both the proceedings and the report, if both are present in a particular case and only the proceedings, if no report is made by the Coroner. 84 The correctness of that conclusion can be tested by considering the consequence of the alternative construction advanced. It would seem impossible that the commission of an offence under the OH&S Act would ever appear from the Coroner's report, but not also appear from the proceedings. It is, however, possible that an offence would appear from the proceedings but not be referred to in the report. If the defendants' construction were correct, the consequence would be that the offence, so appearing in the proceedings but not the report, could not be prosecuted. 85 The result of a Coroner's decision not to make reference in a report to an offence which appeared to have been committed under the OH&S Act, for reasons which seemed appropriate having regard to the tasks which fell to be performed under the Coroners Act, would be to preclude prosecution during the extended period contemplated in s49(4). This result, in my view, is one comfortably available on the face of the section. 86 In that light, any restriction of an appearance that an offence has been committed to the report or the proceedings, if a reference to that matter appears in both is artificial, to say the least and the construction advanced must for that additional reason be rejected. 87 I am conscious of the view of the High Court in Smith v Corrective Services Commission of NSW (1980) 147 CLR 134 at 139, that penal sanctions or those which affect the personal liberty of a subject must be strictly construed. I cannot, however, see that these conclusions on the proper construction of s49(4) of the OH&S Act conflict with that requirement. 88 I do not deal with the questions of costs but reserve them for later consideration.

WorkCover Authority of NSW (Inspector Maltby) v State Rail Authority of New South Wales & Ors

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