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

Industrial Relations Commission (NSW)|2001-07-01|Before: Schmidt J

Introduction (a)) : "Two explosions occurred in an about the premises known as the 'Family Amusement Zone' ('FAZ'), located at 13 Railway Parade, Kogarah, on 4 December 1995."

(paragraph 1) : "One of the shopkeepers, Mr Hatzikiriakos went to the worksite at about 1:40pm and saw the excavator working and spoke to workmen there about leaking gas. Chris Stoeski then went to the footpath where the smell of gas was coming from and on hearing gas coming up through the cracks and joins in the footpath gave directions for the area to be barricaded off".

(Statement of Barrie J Bourchier, Detective Senior Constable of Police, to Police - 30/08/1996 - Exhibit 3 - paragraph 8): "The Family Amusement Zone is one of a number of shops located on the western side of Railway Parade which is the main street of the Kogarah shopping centre. Railway Parade at this point runs in a north to south direction. The rear of these shops from the border of the railway line."

(Exhibit 35 - 3 x A4 photographs) (Police photographs 7, 8, 9 ,11, 12, and 13) (Josef photographs M, P, O)

(Inquest Transcript of 30 April 1997 - line 22, page 83 to line 35, page 85 - Evidence of Bill Yazbeck - Cross-Examination by Mr Maconachie):

"Q. As the station master on 4 December 1995 your responsibilities were directed to making sure that the trains ran on time through your station is that correct? A: That's correct."

(CWM Submissions - paragraph 4): "The construction work performed by Abigroup under its contract with the SRA required the demolition of certain areas surrounding the Station, including a number of shops on the western side of Railway Parade. One of these shops was the fish and chip shop located at 7 Railway parade ("The fish and chip shop").

(CWM Submissions - paragraph 6): "There was an AGL natural gas connection to the fish and chip shop."

62 For the SRA it was submitted that the coronial material referred to said nothing about the nature and difficulty of this workplace, nor why safety was there an acute problem. Furthermore, reliance was in part wrongly placed upon submissions advanced for CWM, which could not provide a rational basis for a conclusion that an offence with which the SRA was to be charged appeared from the material. 63 The prosecutor submitted that all that was necessary for the coronial material relied upon to be relevant, was that there was a danger created which was not safe and did not involve risks to health, as required by s17 of the OH&S Act. 64 To my mind, the prosecutors' submission cannot be correct. The coronial material must support the view that the charge laid reflected an offence which appeared from the coronial material to have been committed, in something other than the general terms which were suggested. 65 Particular 28 and the particulars of the coronial material relied upon provided: The Defendant failed to record the nature of the gas hazard and the proposed method of dealing with the hazard in the Work Method Statement:

(Statement of Ray Furfaro programme Manager Station Upgrading SRA, Exhibit 3, to Police - 5 December 1996, Annexure A - paragraph 2): "During 1993 it was decided to outsource the management of the Station Upgrading Programme. To this end tenders were called which resulted in a joint venture made up of four companies being awarded a contract by State Rail for management of the Station Upgrading programme. The four companies were formerly awarded the management contract on 1 August 1994 and have since renamed themselves "Capital Works Management" (CWM). The roles and responsibilities of the contract with CWM are contained within a full technical specification but in essence require CWM to arrange tendering to projects through State Rail's contract facilities then manage all site works to completion. I am appointed Superintendent for the contract between SRA and CWM."

(Statement of Ray Furfaro Programme Manager Station Upgrading SRA, Exhibit 3, to Police - 5 December 1996, Annexure A - paragraph 3): "During the early part of 1995, CWM in conjunction with State Rail's Contract Division and the designing architect compiled the technical documentation for extensive upgrading works at Kogarah Station. The plans required a new station to be built virtually adjacent to the existing station and required the demolition of 3 shops owned by SRA along Railway Parade."

(Statement of Ray Furfaro Programme Manager Station Upgrading SRA, Exhibit 3, to Police - 5 December 1996, Annexure A - paragraph 5): "The superintending organisation for the Abigroup contract is nominated as CWM and CWM have appointed Gary Dilly as the Contract Superintendent."

(Statement of Ray Furfaro Programme Manager Station Upgrading SRA, Exhibit 3, to Police - 5 December 1996, Annexure A - paragraph 7): "One of my roles in the Station Upgrading Programme is to ensure the acceptance of projects by Executive, Staff, Unions, and Councils. To assist in this process I attended Kogarah Station on the following dates: 1/11/95, 7/11/95, 8/11/95, 23/11/95 and 29/11/95."

(Statement of Eddie Blackwell, Senior Project Manager Station Upgrading, SRA, Exhibit 3, to Police 5 December 1996, Annexure A - paragraph 5): "During 1993 it was decided to outsource the management of Station Upgrading. Public tenders were called and a contract awarded to a consortium called Capital Works Management (CWM)."

(Statement of Eddie Blackwell, Senior Project Manager Station Upgrading, SRA, Exhibit 3, to Police 5 December 1996, Annexure A - paragraph 6): "The roles and responsibilities of the contract are detailed in a full specification but in short, CWM manage agreed projects from initiation of concept drawings through site construction to the final commissioning and handing over."

(Statement of Eddie Blackwell, Senior Project Manager Station Upgrading, SRA, Exhibit 3, to Police 5 December 1996, Annexure A - paragraph 7): " During the early part of 1995 CWM in conjunction with State Rail and the designing architect put together the specification for the major upgrading works which were to take place at Kogarah Station."

(Statement of Eddie Blackwell, Senior Project Manager Station Upgrading, SRA, Exhibit 3, to Police 5 December 1996, Annexure A - paragraph 9): "In the contract between State Rail and Abigroup the Superintendent is CWM and their appointed representative is Mr Gary Dilly."

(Statement of Eddie Blackwell, Senior Project Manager Station Upgrading, SRA, Exhibit 3, to Police 5 December 1996, Annexure A - paragraph 10): "One of my roles in the Station Upgrading Group is to carry out random site inspections to examine site safety and report to CWM and the Contractor on site any potential safety problems that may occur."

66 For the SRA it was submitted that it was apparent that in none of the coronial material relied upon was any reference made to a 'Work Method Statement'. It followed that there was simply no support to be found in the coronial material for the offence with which the SRA was in fact charged. For the prosecutor it was submitted to be unnecessary for support for all aspects of the charge to be found in the coronial material. For the reasons earlier given, I cannot accept that submission as accurately reflecting what s49(4) requires. 67 This review amply illustrates the importance of both the prosecutor, when initiating the proceedings, as well as the Court when considering whether to issue a particular summons under s4 of the Supreme Court (Summary Jurisdiction) Act, turning their minds to the question of whether the prosecution is brought within the time fixed by s49(4) of the OH&S Act. Here the offence with which the SRA was charged does not have the necessary foundation in the coronial material relied upon. The consequence of the prosecutor's failure to turn his or her mind to that matter at the outset and to put such material before the Court when launching the prosecution, has of course been that the SRA has had to pursue its notice in these contested proceedings. 68 Unless it be thought that it was only the offence with which the SRA was charged which suffered from difficulties such as this, I make it plain that that was not the case, as is further indicated below. I do not however propose to deal with each prosecution in detail, having in mind the conclusion which I have otherwise reached about the defendants' motions. 69 There is, it seems to me, an obvious public interest in prosecutors not commencing prosecutions which are not available to be brought within the time prescribed by s49(4). The time for that question be considered by a prosecutor is before the prosecution is launched, not after it is challenged by the defendant charged as being brought beyond time. Nor should a discretion under s170(3) of the Act in favour of the prosecution be needed, so that the prosecutor's failure to put before the Court at the hearing the basis upon which it is said that the prosecution was brought within time can be remedied. That discretion having nevertheless been exercised, the exercise of a further discretion should certainly then not be required, in order to remedy the prosecutor's failure to comply with the Court's order in its favour. On any view, such an approach must involve an abuse of process by the prosecution. 70 This conclusion, in my view, accords with the approach which Courts generally adopt to decisions made by prosecutors. In Maxwell v The Queen [1995-96] 184 CLR 501, Dawson and McHugh JJ observed at 512 'Our courts do not purport to exercise control over the institution or continuation of criminal proceedings, save where it is necessary to do so to prevent an abuse of process.' It was further said at 513 - 514: 'In R v Brown the indictment charged the accused with the offence to which he was prepared to plead guilty and the trial judge was not invited to approve anything. But s 394A of the Crimes Act expressly gives the Crown the right to elect to accept a plea of guilty to a lesser offence than that charged in the indictment and there is no reason to think that a court has the power to supervise the making of that election or to intervene, save to prevent an abuse of process, any more than it has where the accused pleads guilty to a lesser offence which is charged in the indictment. The decision whether to charge a lesser offence, or to accept a plea of guilty to a lesser offence than that charged, is for the prosecution and does not require the approval of the court. Indeed, the court would seldom have the knowledge of the strengths and weaknesses of the case on each side which is necessary for the proper exercise of such a function. The role of the prosecution in this respect, as in many others, "is such that it cannot be shared with the trial judge without placing in jeopardy the essential independence of that office in the adversary system" ( R v Apostilides (1984) 154 CLR 563 at 575). In R v Brown (1989) 17 NSWLR 472 at 479 the Court of Criminal Appeal recognised the substantial practical limitations upon the power of the courts to control the exercise by prosecuting authorities - in that case the Director of Public Prosecutions - of their discretion in such matters as the choice of the offence with which an accused is to be charged or the acceptance of a plea of guilty to a particular charge. The Court rightly observed that the most important sanctions governing the proper performance of a prosecuting authority's functions are likely to be political rather than legal. Nevertheless, the Court concluded that in an appropriate case a court may need to give effect to its own right to prevent an abuse of its process. That conclusion in undoubtedly correct, but the need for a court to exercise its inherent power to protect its own process should in this context rarely, if ever, arise. A mere difference of opinion between the court and the prosecuting authority could never give rise to an abuse of process. No doubt a court may, if it thinks it desirable to do so, express its view upon the appropriateness of a charge or the acceptance of a plea and no doubt its view will be accorded great weight. But if a court does express such a view, it should recognise that in doing so it is doing no more than attempting to influence the exercise of a discretion which is not any part of its own function and that it may be speaking in ignorance of matters which have properly motivated the decision of the prosecuting authority The court's power to prevent an abuse of its process is a different matter and the question of its exercise could only arise in this context if the prosecuting authority were seen to be acting in an irresponsible manner. That, as experience happily tells, is seldom, if ever, likely to occur.'

71 Similarly at 534, Gaudron and Gummow JJ observed: 'It ought now be accepted, in our view, that certain decisions involved in the prosecution process are, of their nature, insusceptible of judicial review. They include decisions whether or not to prosecute (See Connelly v Director of Public Prosecutions [1964] AC 1254 at 1277; R v Humphrys [1977] AC 1 at 46; Barton v The Queen (1980) 147 CLR 75 at 94-95, 110), to enter a nolle prosequi (See R v Allen (1862) 1 B & S 850 [121 ER 929]; Barton v The Queen (1980) 147 CLR 75 at 90-91), to proceed ex officio (See Barton v The Queen (1980) 147 CLR 75 at 92-93, 104, 107, 109), whether or not to present evidence (See, eg, R v Apostilides (1984) 154 CLR 563 at 575) and, which is usually an aspect of one or other of those decisions, decisions as to the particular charge to be laid or prosecuted (See R v McCready (1985) 20 A Crim R 32 at 39; Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 at 604-605). The integrity of the judicial process - particular, its independence and impartiality and the public perception thereof - would be compromised if the courts were to decide or were to be in any way concerned with decisions as to who is to be prosecuted and for what (Barton v The Queen (1980) 147 CLR 75 at 94-95; Jago v District Court (NSW) (1989) 168 CLR 23 at 38-39, 54, per Brennan J; at 77-78, per Gaudron J; Williams v Spautz (1992) 174 CLR 509 at 548, per Deane J; Ridgeway v The Queen (1995) 184 CLR 19 at 74-75, per Gaudron J.'

72 Here, the question with which the Court is concerned is not whether or not someone should have been prosecuted, that question does not arise. Rather, what requires consideration is whether the decision to prosecute having been made, it was available to be pursued, having in mind the time limits imposed by s49(4) of the OH&S Act. I take the view that it was not properly open to the prosecutors to launch these prosecutions without forming a view about that matter, having in mind the provisions of s49(4). The approach adopted has led to an abuse of process, which the defendants are entitled to resist. 73 It follows in all of these circumstances, that the further application by the prosecution for time to provide particulars, after the time ordered in August 2000, should be refused. 74 I have been influenced in that conclusion by various of the other arguments advanced by the defendants and will thus deal with them too. It is relevant to note as to these matters that as appears from the Coroner's report, some of the defendants were parties to a joint venture known as 'CWM'. The SRA had appointed CWM to perform certain work in connection with the upgrading of the Kogarah railway station, where on 4 December 1995, a gas explosion occurred. The circumstances of that explosion were the subject of the coronial proceedings here in question. 75 In the earlier judgment, consistent with the decision in Walco, I had concluded that s4(4) of the OH&S Act was concerned with the appearance of an offence, rather than the identity of the offender. In the case of the CWM joint venturers, it was, nevertheless, argued at the further hearing that in order to come within the extended time limit provided by s49(4) of the OH&S Act, it was insufficient for the prosecutor to point to evidence and findings in the coronial material concerning CWM alone. The prosecutor was also obliged, so it was argued, to demonstrate on the material relied upon, that the defendant charged with particular failures under the OH&S Act had committed the offence charged, including, for instance, that it had contractual responsibilities in respect of such aspects of the joint venture. 76 These submissions were advanced in a context where not only the particulars provided by the prosecution in relation to the coronial material referred to a great deal of material concerning CWM and not the individual defendants, who were not referred to at all, but also where the actual offences with which the individual defendants were charged referred to failures of CWM, rather than to their own failures. 77 For the prosecution it was argued that the defendants' submissions as to this matter were wrong, for essentially two reasons. The first, that I had already concluded in the earlier judgment that identity of the offender was a matter to be established at the hearing of the prosecution and was not a matter which had to appear from the coronial material, in order for the charge to be brought within the time provided in s49(4) of the OH&S Act. The second was that because the defendants were joint venturers in CWM, itself not a legal entity, it followed that identification of CWM was a sufficient basis for a connection to be established between the defendants and the particular offences with which they were charged. 78 In this respect it seems to me that while the arguments advanced for the prosecution were correct, so far as they went, they did not deal with the substance of the complaints now advanced in defendants' submissions. Plainly, s49(4) would not permit a prosecutor to launch a prosecution against someone who, on the coronial material, had no apparent connection at all with the offence in question. That, however, is not the case here in relation to the CWM joint venturers, who it seems had entered a management agreement with the SRA in relation to the work being performed at the time of the explosion. Part of the complaint was that while the necessary connection between CWM and the offences charged might appear from that material, there was no such connection made in the material between the charges and the individual joint venturers who had been charged with the offences. It was, however, also further complained that the defendants had been charged with failures which CWM had committed, rather than with their own failures and that difficulty was not a matter which could be treated as if it only concerned the identity of an offender. 79 It was common ground that CWM was a joint venture with no independent legal existence apart from the individual joint venturers. It follows that it was upon them that any obligations flowing under the OH&S Act in connection with the work performed by CWM fell. 80 In my view, in those circumstances, it was unnecessary, in order for the requirements of s49(4) of the OH&S Act to have been met, for the coronial material to have unravelled the obligations which flowed from the contractual arrangements between the joint venturers, as between themselves and indeed, with the SRA or others. 81 It may, for example, have been the case that the joint venturers took on certain rights and obligations in their contractual arrangements with the SRA, which made them vulnerable to prosecution under ss16 and 17 of the OH&S Act in the circumstances which gave rise to the events investigated by the Coroner. That would have been because the OH&S Act imposed various obligations upon each of them in respect of what they had taken on. It may also have been the case that, as between themselves, the joint venturers sought to arrange their affairs so that various of the parties to the joint venture had different roles and responsibilities in relation to the matters agreed with the SRA. 82 Whether any such arrangements existed, and if they did, whether they had the result of deflecting responsibilities and obligations which otherwise arose under the OH&S Act for individual joint venturers, are no doubt questions which could arise in a prosecution brought against an individual joint venturer. I cannot, however, see how such things are matters which it would be necessary to have appeared from the coronial material, in order for the time for prosecution in s49(4) of the OH&S Act to be satisfied. Matters such as these, it seems to me, go to the identification of the offender, rather than whether or not a particular offence appeared from the coronial material. 83 It follows, it seems to me, in the case of the charges brought against the CWM joint venturers, that identification of CWM in the coronial material could have provided a sufficient connection with the individual joint venturers, for the purposes of s49(4), in respect of offences with which they were charged, so long as these charges, when laid, concerned alleged failings of the individual joint venturer. That, however, is not how the charges were framed. For example, the defendant TMG International Pty Limited was charged with the following offence: 'Between 10 November 1995 and 4 December 1995 at Kogarah in the state of New South Wales, the defendant being a person who had, to any extent, control of non-domestic premises, to wit, the Kogarah Railway Station and adjoining areas which had been made available to persons (not being the Defendant's employees) as a place of work contrary to section 17(1)(a) of the Occupational Health & Safety Act , 1983 failed to ensure that the said premises were safe and without risks to health in that it had a charged gas supply line situated in an area where construction work was designed to occur.' 84 Control of non-domestic premises, is a feature of the offence. It was, however, not alleged that the defendant had such control. What was pointed to in the particulars of the offence charged and the coronial material relied upon, was that CWM had the relevant control and responsibilities. Particulars 7 & 8 and the material relied upon provided, for example: 7. CWM had control of the KSU to a degree pursuant to the terms of the engagement with the SRA and had a duty to supervise the performance of the work and ensure that the work was done in a safe manner and without risks to health:

(Statement of Ray Furfaro, Programme Manager Station Upgrading SRA, Exhibit 3, to Police 5 December 1996 - Annexure A - paragraph 2): "During 1993 it was decided to outsource the management of the Station Upgrading Programme. To this end tenders were called which resulted in a joint venture made up of four companies being awarded a contract by State Rail for management of the Station Upgrading Programme. The four companies were formally awarded the management contract on 1 August 1994 and have since renamed themselves "Capital Works Management" (CWM). The roles and responsibilities of the contract with CWM are contained within a full technical specification but in essence require CWM to arrange tendering of projects through State Rail's contract facilities then manage all site works to completion. I am appointed Superintendent for the contract between SRA and CWM."

(Statement of Ray Furfaro, Programme Manager Station Upgrading SRA, Exhibit 3, to Police 5 December 1996 - Annexure A - paragraph 3): "During the early part of 1995, CWM in conjunction with State Rail's Contract Division and the designing architect compiled the technical documentation for extensive upgrading works at Kogarah Station. The plans required a new station to be built virtually adjacent to the existing station and required the demolition of 3 shops owned by SRA along Railway Parade."

(Statement of Ray Furfaro, Programme Manager Station Upgrading SRA, Exhibit 3, to Police 5 December 1996 - Annexure A - paragraph 5): "The superintending organisation for the Abigroup contract is nominate as CWM and CWM have appointed Gary Dilly as the Contract Superintendent."

(Statement of Eddie Blackwell, Senior Project Manager Station Upgrading, SRA, Exhibit 3, to Police 5 December 1996 - Annexure A - paragraph 5): "During 1993 it was decided to outsource the management of Station Upgrading. Public tenders were called and a contract awarded to a consortium called Capital Works Management (CWM)."

(Statement of Eddie Blackwell, Senior Project Manager Station Upgrading, SRA, Exhibit 3, to Police 5 December 1996 - Annexure A - paragraph 6): "The roles and responsibilities of the contract are detailed in a full specification but in short, CWM manage agreed projects from initiation of concept drawings through site construction to the final commissioning and handing over."

(Statement of Eddie Blackwell, Senior Project Manager Station Upgrading, SRA, Exhibit 3, to Police 5 December 1996 - Annexure A - paragraph 7): " During the early part of 1995 CWM in conjunction with State Rail and the designing architect put together the specification for the major upgrading works which were to take place at Kogarah Station."

(Statement of Eddie Blackwell, Senior Project Manager Station Upgrading, SRA, Exhibit 3, to Police 5 December 1996 - Annexure A - paragraph 9): "In the contract between State Rail and Abigroup the Superintendent is CWM and their appointed representative is Mr Gary Dilly."

(Statement of Eddie Blackwell, Senior Project Manager Station Upgrading, SRA, Exhibit 3, to Police 5 December 1996 - Annexure A - paragraph 10): "One of my roles in the Station Upgrading Group is to carry out random site inspections to examine site safety and report to CWM and the Contractor on site and any potential safety problems that may occur."

(CWM Submissions - paragraph 2): "On or about 29 July 1994 Capital Works Management ('CWM') was appointed by the SRA to provide project management services to the SRA in relation to the said Stations Upgrade Project, which included the refurbishment and development of the Station."

(CWM Submissions - paragraph 3): "CWM was appointed superintendent of the contract between the SRA and Abigroup. The role of CWM as superintendent was to ensure that the conditions of the contract between the SRA and Abigroup were being carried out satisfactorily. CWM did not contract with any party other than the SRA. CWM was not the developer of the site, not the occupier of the site, and the only work it 'performed' on the site was that of superintending the contract between the SRA and Abigroup. CWM had not subcontractors."

Pursuant to the terms of the engagement CWM appointed a superintendent charged with the duty of ensuring the work was conducted in accordance with the contracts in a safe manner without risks to health:

(Statement of Ray Furfaro, Programme Manager Station Upgrading SRA, Exhibit 3, to Police 05/12/1996 - paragraph 5): "The superintending organisation for the Abigroup contract is nominated as CWM and CWM have appointed Gary Dilly as the Contract Superintendent."

(Statement of Eddie Blackwell, Senior Project Manager Station Upgrading SRA, Exhibit 3, to Police 5 December 1996 - Annexure A - paragraph 9): "In the contract between State Rail an Abigroup the Superintendent is CWM and their appointed representative is Mr Gary Dilly."

(Additional Statement of Peter G Deane, General Manager, Abigroup - to WorkCover, Inspector Maltby - 12/03/1996 - part Exhibit 37 - additional in answer to Q47): "Re Breach of Section 15 of OH&S Act. Additional to answer: (1) Please refer to our additional answer to Question 18. Also, during the course of the demolition works Abigroup site personnel and Capital Works Management, the Project Managers, were on site discussing protection of services and public safety on a continual basis. The Superintendent had no problems with our protection set-up."

(Inquest Transcript - 01/05/1997 - page 6, lines 46-50 - Evidence of Eddie Blackwell - Cross examination by Mr Maconachie): "Q. Did your responsibilities extend to the work that was being performed outside the railway corridor? A. The day to day running of that project was the responsibility of the superintendent and the superintendent at that stage was CWM for that contract."

(CWM Submissions - paragraph 21): "No persons from either Abigroup or CWM were present on-site on 4 December 1995, only Josef & Sons personnel, as it was a Union picnic day, and as described above, no work was to be undertaken except for the removal of machinery."

85 For the prosecutor it was submitted by Mr Hislop as to these matters that: 'What is put against us is that it was necessary for the prosecutor to go further and establish from the Coroner's material the identity of each of the members of the consortium, CWM. Now that is what your Honour held did not have to occur and it was a nonsense really, when one thinks about it, if that was a correct statement of the law, it would mean you could have an entity which is not a legal entity in the sense it has no separate status, and even though it commits the most horrendous offences with the most horrendous results, section 49(4) would not apply if the Coroner did not happen to distinguish the members so that consortium from the consortium itself. But in any event the matter has been determined by your Honour adversely to the defendants in this regard.'

86 The submission in my view must be rejected. CWM was not a legal entity and while references to it in the coronial material might provide a rational basis for an appearance of an offence by an individual joint venturer, reference to failures of CWM in the actual offence with which a particular defendant is charged, cannot be a substitute for an allegation that the defendant has failed to meet the statutory obligation imposed upon it by the OH&S Act. 87 Section 49(4) of the OH&S Act deals with the circumstances in which the time of launching a prosecution outside the usual 2 year limitation period arises, those circumstances being concerned, as I have already found, with an offence appearing from coronial proceedings, not the identity of the offender being established. 88 Section 49(4) is not concerned with the evidentiary burden which will later fall on the prosecutor if a particular charge is pressed against a particular defendant at a hearing, to demonstrate that the offence was committed by the defendant charged. Nevertheless, for the reasons which I have earlier given, it will be necessary for the prosecution to form the view that the offence charged was brought within time. In that context, it cannot be sufficient for the offence which the prosecutor lays against a CWM joint venturer to allege that failure to meet the statutory obligation was the failure of an unincorporated joint venture, in which the defendant participated, rather than its own failure. 89 It was also argued for the defendants that the prosecutor, by s49(4) of the OH&S Act, was restricted to relying upon information before the Coroner, which was in the form of evidence admissible at a criminal trial. The prosecutors were also said not to be entitled either to paraphrase such material, or to rely upon other material which may have been obtained later, to establish that the prosecution was brought within time. 90 I cannot entirely agree with those submissions. The question of whether a prosecution is brought within time, is different to whether the prosecutor has sufficient evidence to lead to a conviction at a subsequent hearing. Both are undoubtedly important, but they are different considerations. 91 In forming the view as to whether the prosecution was available to be launched within the time provided in s49(4) of the OH&S Act, only the coronial material may be relied upon. I say 'coronial material', here as elsewhere, to include both the report and proceedings referred to in s49(4). The prosecutor may, of course, be in possession of other material, which could be relied upon in a trial to establish guilt. Such material will be relevant no doubt to the decision as to whether the prosecution should be launched. It is, however, not relevant to the question of whether the prosecution was brought within time. 92 I take the view that the argument that the prosecutor could not rely upon all of the evidence before the Coroner, for the purpose of forming a view as to whether the prosecution was within time under s49(4), but only the evidence which was in admissible form, must be rejected. 93 In the first place, the section speaks neither of evidence before the Coroner, nor of such of the evidence which could be tendered at a criminal trial as admissible evidence, as being the material from which the appearance of the offence must come. It is rather 'the Coroner's report or proceedings at the inquest or inquiry' which is referred to. The section could plainly have been structured more narrowly by reference only to admissible evidence, but it was not. 94 That it was not, militates against the construction urged for the defendants, which would require the plain words of the section to be read down in a significant way. That approach would have to be adopted in circumstances where the Coroners Act 1980 itself makes plain that a much broader class of material could come before the Coroner, where the rules of evidence do not apply. (See s33). It follows, it seems to me, that the construction urged is one at odds with the plain English meaning of the words used in s49(4) of the OH&S Act and one at odds with the structure of the Coroners Act 1980 as well. There is no ambiguity in the words of the section which would call for such a departure from the ordinary sense of the words used. It follows that it is a construction which must thus be rejected. 95 As to the arguments in relation to any reliance which the prosecutor might place upon submissions advanced before the Coroner, I take the view that they are not entirely irrelevant to the operation of s49(4). It was argued for the defendants that an offence could not appear from submissions advanced before the Coroner, so as to satisfy the requirements of s49(4) of the OH&S Act. In my view, that argument must be rejected. After all, it is quite possible for a person later charged with an offence under the OH&S Act, to have earlier advanced in submissions to the Coroner, an acceptance that an offence under the OH&S Act had been committed, or that an element of the offence existed. For instance, it could readily be imagined that a concession that a person was the employer of persons injured in a workplace accident, or the owner or occupier of premises at which such an accident had occurred, or that the system of supervision of work which was in place had broken down, could be made in submissions put before a Coroner by or for that person. 96 Even though the prosecutor might later be put to proof of such matters at a trial, in my view such submissions would provide an ample basis for a prosecutor to come to the view that it appeared from the proceedings that either an offence had been committed, or in the case of the other examples, that one element of the offence existed. The submissions would, after all, be part of the proceedings at the inquest or inquiry, indeed, they could be referred to in the Coroner's report. 97 It does not follow from this approach however, that a prosecutor could rely upon submissions advanced by one party at the coronial proceedings, in which allegations were made about another party, in order to form the view that it appeared from the proceedings that an offence appeared with which the second party was charged. That, it seem to me, would be quite different to admissions made by a party as to its own position, conduct and responsibilities. 98 The view that an offence appeared from the coronial proceedings must have some rational basis. Assertions or allegations by one party in submissions to the Coroner as to what another party's position, conduct or responsibilities were, or should have been, cannot provide a rational basis for the view that an offence appears to have been committed, which that other person is charged with. 99 These conclusions are of some significance here. Again, reference to the SRA will demonstrate the point. In the particulars with which it was provided, reference was made to submissions advanced to the Coroner for CWM. On my approach, it follows that while the prosecutor may have had regard to submissions advanced to the Coroner for CWM, in coming to the view that the offences with which the CWM joint venturers were to be charged appeared from the coronial material to have been committed, the same conclusion was not available in relation to the offences with which the SRA was charged. As to the SRA, regard may have been had to the submissions, if any, which it advanced to the Coroner, in coming to a view as to the offence with which it was charged, but those submissions could not have been relevant to the question of whether the offences with which the other defendants were to be charged appeared from the coronial material. 100 For the CWM joint venturers this was also of some significance because it was not only the submissions of the SRA to which reference was made in the particulars with which it was provided, but also submissions of other entities referred to in the coronial material, who were not members of this joint venture. In my view, such material cannot provide support the conclusion that an offence with which the CWM joint venturers have been charged, appears to have been committed.

101 I finally deal with the defendants' complaints about the voluminous nature of the particulars provided. I take the view that such a complaint of itself cannot provide a proper basis for the orders sought in the motions. 102 The parts of the coronial material upon which the prosecutors relied in order to demonstrate that the prosecutions were brought within time was certainly voluminous. The fact that there may be a great deal of material from which a particular offence appears in a particular case, cannot itself be a subject of complaint. What reference it may be necessary to make to such material will obviously depend upon the complexity of the proceedings before the Coroner and the offence with which the defendant is to be charged. 103 Here, the prosecution went to some trouble to indicate clearly what was relied upon in relation to each part of the offence charged and the particulars provided in relation to that offence, on an 'objective basis'. I have already dealt with the difficulty inherent in that approach, which did not reflect the views of the prosecutors who launched the prosecutions. That, I think, in this case has led to great difficulty. 104 In very many instances in the particulars provided, it was difficult to see what possible connection existed between the charge and the coronial material which it was said supported the appearance of that aspect of the charge. The material earlier quoted in relation to the SRA and TMG International prosecutions demonstrates some of this difficulty and explains the complaints which the defendants advanced as to the voluminous nature of the particulars provided. It was an approach significantly at odds with that adopted by the prosecutor in Walco, for example, and again illustrates the problem created by a failure to properly consider whether a charge which is proposed to be pursued is within time, at the time that the prosecution is to be launched. 105 Against those conclusions, I return then again to the question of the prosecutor's failure to comply with the Court's orders. As I have said earlier, there is an obvious public interest in offences against the OH&S Act being prosecuted. Nevertheless, as I observed in the earlier judgement, in enacting s49 of the OH&S Act, the Parliament did not see fit to generally extend time in every case where there is a coronial inquiry. Those provisions of the OH&S Act which deal with the time within which prosecutions may be launched must also be observed and given effect. 106 Here, a discretion was earlier exercised in favour of the prosecution having the first mentioned public interest in mind, in the circumstances I have outlined. There is also a public interest in prosecutors, like defendants, complying with their obligations under the Rules of the Court and the orders which the Court makes in the criminal proceedings, brought before it. Here there was a failure to meet those obligations, in circumstances where the orders were made so that the prosecution could rectify its earlier deficiencies. 107 To my mind, it is not an appropriate use of the discretion available under s170 of the Act, to ensure, effectively by trial and error, that a prosecutor is slowly brought to the position where the obligations which arise at outset, when the proceedings are initiated, are met. In this case, I have, of course, also taken the view that the prosecutors' failure to consider whether the offences with which these defendants were charged were available to be brought when they were launched, has led to an abuse of process in respect of which the defendants are entitled to relief. This became apparent at the further hearing. The prosecutions' endeavour to demonstrate that the offences were available to be brought on a search of the coronial material to find an objective basis for that view, was not conducted within the time ordered by the Court and did not in any event demonstrate that the coronial material supported the view that it there appeared that the offences charged had been committed. In all of these circumstances the proper course is for the Court to accede to the orders sought by the defendants.

Orders 108 I reserve the question of costs. If they are not agreed, the parties have liberty to approach in relation to that matter. 109 For all of those reasons, I decline to issue the summonses sought under s4 of the Supreme Court (Summary Jurisdiction) Act 1967 and order that each of the proceedings be dismissed. ------------------------

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.

Statutory Interpretation - s49(4) of the Occupational Health and Safety Act 1983 Coroners Act 1980 LEGISLATION CITED : Industrial Relations Act 1996 Occupational Health and Safety Act 1983 Supreme Court (Summary Jurisdiction) Act 1967 Environment Protection Authority v Sydney Water Corporation Limited (1997) 98 A Crim R 481 Director of Public Prosecutions v Shirvanian (1998) 44 NSWLR 129 Johnson v Miller (1937) 59 CLR 467 CASES CITED : Maxwell v The Queen [1995-96] 184 CLR 501 McConnell Dowell Constructors (Aust) Pty Limited v Environment Protection Authority [2000] NSWCCA 367 (13 September 2000) 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 Whitten v Hall & Anor (1993) 29 NSWLR 680 HEARING DATES: 04/23/2001; 04/24/2001 DATE OF JUDGMENT: 05/31/2001

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