Inspector Stevens v Ford [2011] NSWIRComm 10 (1 March 2011)

Last Updated: 15 March 2011

Industrial Relations Commission New South Wales

Case Title:	Inspector Stevens v Ford
Medium Neutral Citation:	[2011] NSWIRComm 10
Hearing Date(s):	11 February 2011
Decision Date:	01 March 2011
Jurisdiction:
Before:	Staff J
Decision:	In Matter No IRC 1252 of 2009 Inspector Erinn Stevens v Nicholas Worthington Ford 1. The notice of motion filed by the defendant is dismissed. 2. The defendant shall pay the prosecutor's costs in respect of his motion to strike out, as agreed or, as assessed. 3. Leave is granted to the prosecutor to file an amended application for order in the terms as set out in Annexure A to the notice of motion. 4. The prosecutor is to pay the defendant's costs in respect of the notice of motion seeking leave to amend the applications for order, as agreed or, as assessed. In Matter No IRC 1253 of 2009 Inspector Erinn Stevens v Stephen Patrick Harrison 1. The notice of motion filed by the defendant is dismissed. 2. The defendant shall pay the prosecutor's costs in respect of his motion to strike out, as agreed or, as assessed. 3. Leave is granted to the prosecutor to file an amended application for order in the terms as set out in Annexure A to the notice of motion. 4. The prosecutor is to pay the defendant's costs in respect of the notice of motion seeking leave to amend the applications for order, as agreed or, as assessed.
Catchwords:	NOTICES OF MOTION - OCCUPATIONAL HEALTH AND SAFETY - PRACTICE AND PROCEDURE - notices of motion - s 8(1), s 8(2), s 9, s 26(1) of the Occupational Health and Safety Act 2000 - Orders sought by defendants that applications for order be dismissed - whether incurably defective - principles - applications for order identify essential elements of the offences - particulars of acts or omissions - particulars of measures that should have been taken may be implied or inferred from particulars - notices of motion dismissed - notices of motion by prosecutor to amend applications for order granted - COSTS - Occupational Health and Safety Act 2000, s 8(1), s 8(2), s 9, s 26(1) - Criminal Procedure Act 1996, s 16(2), s 246(2) - Industrial Relations Act 1996, s 168, s 170 - Industrial Relations Commission Rules 1996, r 217B(1).
Legislation Cited:	Criminal Procedure Act 1986 Industrial Relations Act 1996 Industrial Relations Commission Rules 1996 Judiciary Act 1903 (C'th) Occupational Health and Safety Act 1983 Occupational Health and Safety Act 2000
Cases Cited:	Downey v Acting District Court Judge Boulton (no. 5) [2010] NSWCA 240; (2000) 272 ALR 705 DPP v Esso Australia Pty Ltd [2001] VSC 263; (2001) 124 A Crim R 200 Inspector Hamilton v John Holland Pty Ltd [2010] NSWIRComm 72; (2010) 194 IR 189 James Borodin v R, Irene Borodin v R, ED v R, Bogomiagkov v R [2006] NSWCCA 83 John Holland Pty Ltd v Industrial Court of New South Wales; Parsons Brinckerhoff (Australia) Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 338 Kirk v Industrial Relations Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1; (2010) 239 CLR 531 Knaggs v Director of Public Prosecutions [2007] NSWCA 83; (2007) 70 A Crim R 366 Mark Anthony Clark (1993) 71 A Crim R 58 Morrison v Chevalley [2010] NSWIRComm 116; (2010) 198 IR 30 Rockdale Beef Pty Limited v Industrial Relations Commission of NSW [2007] NSWCA 128; (2007) 165 IR 7
Texts Cited:
Category:	Procedural and other rulings
Parties:	Inspector Erinn Stevens (Prosecutor) Nicholas Worthington Ford (First Defendant) Stephen Patrick Harrison (Second Defendant) Attorney-General for New South Wales (Intervenor)
Representation
- Counsel:	R Reitano of counsel (Prosecutor) A Moses SC with D O'Neil of counsel (Second Defendant) K Richardson of counsel (Intervenor)
- Solicitors:	WorkCover Authority of New South Wales (Prosecutor) Beazley Singleton Lawyers (First Defendant) HWL Ebsworth Lawyers (Second Defendant) Crown Solicitor's Office (Intervenor)
File number(s):	IRC 1252 and 1253 of 2009
Publication Restriction:

Judgment

1

This judgment determines firstly notices of motion filed by the defendant Harrison, and subsequently the defendant Ford, seeking orders that the applications for order be dismissed for invalidity. The relief sought is refused. Secondly, the prosecutor seeks leave to file amended applications for order. Leave is granted.

Defendant Harrison's notice of motion

2	On 24 March 2010, Stephen Patrick Harrison ("the defendant Harrison") filed a notice of motion in Matter No IRC 1253 of 2009 seeking:

1. The matter of Inspector Erinn Stevens (WorkCover Authority of New South Wales) v Stephen Patrick Harrison, Matter No IRC 1253 of 2009 to be struck out or dismissed.

2. In the alternative to Order 1, the matter of Inspector Erinn Stevens (WorkCover Authority of New South Wales) v Stephen Patrick Harrison, Matter No IRC 1253 of 2009 to be permanently stayed.

3	The notice of motion relied upon the following grounds and reasons:

1. The Application for Order filed by the Prosecutor was defective and the subsequent Order made by the Court on 21 August 2009 was a nullity and no proceedings were, or are before the Court.

2. The Prosecutor has failed to comply with the requirements of section 8(1) of the Occupational Health and Safety Act 2000 (NSW).

3. The Prosecutor has failed to comply with the requirements of section 8(2) of the Occupational Health and Safety Act 2000 (NSW), and Section 26 of the Occupational Health and Safety Act 2000 (NSW).

4. The Prosecutor has failed to comply with the requirements of section 26 of the Occupational Health and Safety Act 2000 (NSW).

5. The Prosecutor's failing in grounds 1, 2, 3 and 4 above arises from the failure of the Prosecutor to plead the elements of the offence as mandated in the judgment of Kirk v Industrial Relations Commission & Anor [2010] HCA 1.

6. If the matter proceeds in the current form the Defendant will be denied his right to a fair trial as he will not be able to engage the defence provisions under section 28 of the Occupational Health and Safety Act 2000 (NSW).

7. The prosecutor has failed to detail in the Application for Order the measures which should have been taken by the Defendant, and the actin which was, or is required to address the risk. By not having so described the offence the Prosecutor has not addressed the matter properly the subject of the charge. This deficiency renders the charge against the Defendant bad at law. The proceedings should be dismissed, see for example Rule 217B(2), Part 27A of the Industrial Relations Commission Rules, section 168(2) of the Industrial Relations Act 1996 (NSW), and section 264(1) of the Criminal Procedure Act 1986 (NSW).

4	An affidavit of William Alexander Douglas Vorbach, solicitor for the defendant Harrison, was filed in support of the notice of motion. Excluding formal parts, it read:

2. On 21 August 2009 an Application for Order was filed in the Industrial Court of NSW.

3. On 21 August 2009, an Order was made by Staff J of the Industrial Court of NSW requiring the Defendant to answer charges for offences against section 8(2) or in the alternative section 8(1) of the Occupational Health and Safety Act 2000 (NSW), and section 26 of the Occupational Health and Safety Act 2000 (NSW).

4. On 3 February 2010, prior to the Defendant entering a plea to the charges, the High Court of Australia handed down its judgment in the matter of Kirk v Industrial Relations Commission & Anor [2010] HCA 1.

Section 78B Notice

5	On 23 December 2010, the defendant Harrison issued a notice under s 78B of the Judiciary Act 1903 (C'th) (" Judiciary Act ") raising the following constitutional questions:

(1) whether the Charge ought be struck out, dismissed or permanently stayed on the basis that the charge laid against the Defendant was in excess of the Industrial Court's jurisdiction and amounted to jurisdictional error in accordance with the principles enunciated in Kirk Group Holdings Pty Ltd v WorkCover Authority of NSW (2010) 230 CLR 531 ( Kirk ) ( Issue 1 ); and further or in the alternative

(2) whether the Charge, inter alia, ought be dismissed on the basis that s. 26 of the Occupational Health and Safety Act 2000 (NSW) (the OHS Act ) pursuant to which the Defendant is charged, is invalid in that it violates the principles that underlie Ch III of the Australian Constitution ( Issue 2 ).

6

The Attorney-General for New South Wales intervened in the proceedings pursuant to s 78A of the Judiciary Act . Ms K Richardson of counsel, who appeared for the Attorney-General of New South Wales, submitted that Issue 1 did not raise a constitutional issue. I agree. In respect of Issue 2, all parties properly accepted that the Full Court of the Industrial Court of New South Wales had already determined in Morrison v Chevalley [2010] NSWIRComm 116; (2010) 198 IR 30 that s 26 of the Occupational Health and Safety Act 2000 (" OHS Act ") was valid.

7	It was acknowledged by all parties that I was bound to apply the decision in Chevalley in these proceedings. It follows that accordingly, the defendant Harrison's contention that s 26 of the OHS Act is invalid must be rejected.

Defendant Ford's notice of motion

8

Nicholas Worthington Ford ("the defendant Ford"), being an employer, was charged with a breach of s 8(1) of the OHS Act in failing to ensure the health, safety and welfare of all his employees, in particular, Hamish Crombie-Smith. The particulars of the risk and the particulars of the acts and omissions of the defendant Ford in failing to eliminate the risk were in identical terms to the particulars relied upon in the application for order brought against the defendant Harrison. In the alternative, the defendant Ford was charged with a breach of s 9 of the OHS Act . The particulars relied upon were identical to those relied upon in the s 8(1) charge.

9	During the hearing of the notice of motion for strike out in the defendant Harrison matter, Mr P Beazley, solicitor who appeared for the defendant Ford, sought leave to file a notice of motion seeking similar orders to those sought by the defendant Harrison. Leave was granted.

Application for Order

10

The defendant Harrison, being a director of Australian Independent Contractors Agency Pty Ltd ("AICA"), was deemed to have contravened s 8(2) of the OHS Act by virtue of s 26(1) in that AICA, being an employer, on 23 August 2005, at 6 Verona Street, Strathfield in the State of New South Wales, in that it failed to ensure that persons not in its employment, in particular, Hamish Crombie-Smith, were not exposed to risks to their health or safety. The particulars of the charge were that AICA:

(a) failed to ensure the provision and maintenance of a safe system of work for the removal of a diseased/dying tree at the site;

(b) failed to ensure the undertaking of an adequate risk assessment in relation to work involving the removal of a diseased/dying tree at the site;

(c) failed to ensure the provision of such plant and equipment as was necessary to ensure the health and safety of people performing work involving the removal of a diseased/dying tree at the site;

(d) failed to ensure any or any adequate supervision of people performing work involving the removal of a diseased/dying tree at the site;

(e) failed to ensure the provision of such information, instruction and training as was necessary to ensure the health and safety of people performing work involving the removal of a diseased/dying tree at the site;

(f) failed to ensure the assessment or adequate assessment of the skills, training and abilities of people to conduct arboreal work safely;

(g) failed to provide people of sufficient skill, training and ability to conduct arboreal work safely.

As a result of the abovementioned failures, Hamish Crombie-Smith was placed at risk of injury and received fatal injuries.

11

In the alternative, the defendant Harrison was charged with a breach of s 8(1) of the OHS Act by virtue of 2 6(1) of the OHS Act by failing to ensure the health and safety of all its employees, in particular, Hamish Crombie-Smith. The particulars of the s 8(1) charge were identical to those relied upon in respect of the s 8(2) charge.

Defendant Harrison's submissions re strike out

12

Mr A Moses SC appeared with Mr D O'Neil of counsel for the defendant Harrison and submitted that the application for order was defective on two bases. Firstly, that it did not disclose an offence known to the law because it failed to identify the measures that should have been taken, but were not taken, on the part of the employer to address the alleged risk: see Kirk v Industrial Relations Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1; (2010) 239 CLR 531 (" Kirk ") at [31] - [32]; and Downey v Acting District Court Judge Boulton (no. 5) [2010] NSWCA 240; (2010) 272 ALR 705 at [31] - [33].

13

Senior counsel submitted that the application for order and the Court's orders could not be cured by the subsequent provision of further particulars and/or by amendment. It was submitted that the failure to plead the measures that the employer should have taken, but did not, meant that the charge failed to plead the essential ingredients which could not be remedied: see Downey at [44] - [45], [49]. It followed that the application for order was required to disclose an offence and it did not do this.

14	The second basis upon which it was contended that the application for order was defective was that the prosecutor failed to particularise the acts and omissions of the defendant Harrison as a director of AICA.

15

Mr Moses submitted that the defences in s 28 recognised that an individual director should not be held criminally responsible for a contravention of the OHS Act unless the individual was in a position to influence the contravention. Accordingly, the focus in any prosecution pursuant to s 26 of the OHS Act must be on the conduct of the director in order to permit the director to engage the defences available to him/her pursuant to the OHS Act. No act or omission perpetrated by the defendant Harrison was identified in the application for order.

16

Senior counsel conceded that the High Court of Australia in Kirk did not consider, nor decide, whether the prosecutor was required to plead and particularise the charge so as to enable an individual director to avail himself of the defences under s 50 of the Occupational Health and Safety Act 1983 (" OHS Act 1983"). However, by parity of reasoning, it was submitted this must follow from the result in Kirk . To the extent that the Full Bench in Chevalley found that it was not necessary to plead the acts and omissions against a director, it was submitted that Chevalley was wrongly decided.

Defendant Ford's submissions re strike out

17

Mr Beazley, in a practical sense, adopted the submissions of Mr Moses, submitting that as a matter of fairness and justice, if I were to find in favour of the defendant Harrison, by parity of reasoning, I should make similar findings in respect of the defendant Ford, because the particulars in his matter were in identical terms to those relied upon by the prosecutor in the Harrison matter.

Prosecutor's submissions re strike out

18

Mr R Reitano of counsel, who appeared for the prosecutor, opposed the orders sought by the defendants. Counsel submitted that as the application for order in respect of the defendant Harrison, described the offence under s 8(2), or alternatively s 8(1) of the OHS Act , in the words of the statutory provision, that the application for order met the requirements of identifying the legal nature of the offence. It specified the time, date and place at which the offence was committed; the acts and omissions of the defendant Harrison giving rise to the offence, and could not be described as being grossly deficient in identifying, on its face, what offence was being alleged. It followed that s 16(2) of the Criminal Procedure Act 1986 (" CP Act" ) could not be read as having no application: see Inspector Hamilton v John Holland Pty Ltd [2010] NSWIRComm 72; (2010) 194 IR 189; Knaggs v Director of Public Prosecutions [2007] NSWCA 83; (2007) 70 A Crim R 366; Rockdale Beef Pty Limited v Industrial Relations Commission of NSW [2007] NSWCA 128; (2007) 165 IR 7.

19	Mr Reitano further submitted that it was wrong to suggest, as was submitted by Mr Moses, that the offence is "not known to law" because it does not identify the so-called "measures that should have been taken (but were not taken) ... ".

20

Counsel submitted that nothing in Kirk , at [31] - [32] or elsewhere, supported the submission that the measures need to be identified in the charge in order to disclose the legal nature of the charge. Counsel submitted that the charge here does in fact disclose the measures that should have been taken and were not taken, as set out in the particulars. If there was any deficiency in the particulars, which was not conceded, counsel submitted it would have been open to provide further particulars, or to amend the charge: see Rockdale Beef per Basten JA at [126]; John Holland Pty Ltd v Industrial Court of New South Wales ; Parsons Brinckerhoff (Australia) Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 338 at [79] and [118] per Spigelman CJ and at [141] per Giles JA.

21

Counsel contended that the issue in Kirk arose because of the inadequacy of the particulars. It was the conviction that was invalid, not the application for order. This was because the particulars in Kirk did not allege anything by way of an act or omission that could relevantly be the subject of a defence.

22

Counsel submitted that the plurality in Kirk acknowledged that "further particularisation" of the charge would have rectified any inadequacy in the particulars (see Kirk at [30]). Moreover, that further particulars might later be provided, it was submitted, was specifically envisaged by the High Court in Kirk at [28] - [30].

23

This approach was consistent with that applied by the Supreme Court of New South Wales, Court of Appeal in John Holland at [78], [141]. The form of further particularisation of more general allegations of measures or acts or omissions had also been accepted more generally, counsel submitted, relying on DPP v Esso Australia Pty Ltd [2001] VSC 263; (2001) 124 A Crim R 200.

24	Mr Reitano submitted that the defendant Harrison's submissions in respect of s 26 of the OHS Act completely misunderstood its operation. Furthermore, the submissions were directly contrary to the judgment of the Full Bench of this Court in Chevalley .

25	Mr Reitano contended that it followed from the fact that the acts or omissions of directors are not elements of the offence, that there was no need to plead or prove their acts or omissions: see Chevalley at [86] - [99].

Consideration

26	The essential question for determination is whether the applications for order failed to meet firstly, the mandatory requirements of the various statutory provisions and secondly, the principles established by the High Court in Kirk . These questions should be answered in the negative.

27	The jurisdiction of this Court to order the attendance of defendants is governed by a combination of the OHS Act , the Industrial Relations Act 1996 (" IR Act "), the CP Act and the Industrial Relations Commission Rules 1996 (now repealed) (" IRC Rules ").

28	Specifically, jurisdiction was brought about by the following provisions:

(a) Section 105(1) of the OHS Act which provides that proceedings for offences against the OHS Act are to be dealt with summarily and permitted them to be dealt with either before a Local Court constituted by a Magistrate sitting alone, or before the Industrial Relations Commission in Court Session (taken to be the Industrial Court);

(b) Section 168 of the IR Act which provides that proceedings before the Industrial Court in respect of offences are to be dealt with summarily and that Ch 4 Pt 5 of the IR Act applies to them;

(c) Section 246 of the CP Act which provides that a prosecutor can apply for an order that the person who is alleged to have committed an offence appear before the Court to answer the charge;

(d) Rule 217B(1) of the IRC Rules , which provides that proceedings before the Industrial Court have to be commenced by an application for order which states (inter alia) the nature of the offence alleged.

29	It follows that the jurisdiction of this Court is dependent upon the Court making an order that the defendant is required to answer a charge in relation to an offence under the OHS Act : see Kirk at [20].

30	Spigelman CJ, Beazley and Giles JA agreeing in John Holland observed at [46] - [47]:

[46] Section 246(2) of the Criminal Procedure Act and r 217B of the Industrial Relations Commission Rules, set out at [22] and [26] above, are both expressed in mandatory terms:

An application under s 246 of the Criminal Procedure Act " must " be in accordance with the Rules.

Rule 217B(1) of the Rules requires that an application " must " be made under s 4(1) of the Supreme Court Summary Jurisdiction Act.

Rule 217B(2) provides that an application " must " state, relevantly, the nature of the offence alleged.

Rule 217C(3) requires that service " must " be effected in the manner specified in the Rules there identified.

[47] These provisions constitute a direct route to the proposition that a failure to identify the nature of the offence constitutes jurisdictional error. An Application under s 246(1)(a) of the Criminal Procedure Act requires an accused to answer "to the offence charged in the order". Section 246(2) and r 217B, as noted, both use the word "must". The reasoning in Kirk gives these mandatory requirements specific content.

31	Spigelman CJ, after analysing s 246(2) of the CP Act and r 217B of the IRC Rules observed that they were both expressed in mandatory terms.

32

Following the decision of the High Court in Kirk , there can be no dispute that the prosecutor is required to firstly, identify the deficiencies in the system of work which are said to contravene the OHS Act and secondly, to identify the measures which it states should have been taken: see Kirk at [26], [28].

33

The plurality in Kirk stated that the lack of specific content to the allegations which were the subject of the particulars in the charge, rendered it impossible to defend the charges effectively. The defendants in that matter were required to negate all possible actions that might conceivably be taken by them, rather than just establish that any specific measures pleaded by the prosecutor were beyond the scope of what was "reasonably practicable". The plurality observed at [28] after analysing the statements of the offences, "needless to say, the appellants could not have known what measures they were required to prove were not reasonably practicable." All members of the Court agreed that the defect was a sufficient basis for the convictions to be quashed, was an error in the construction of s 15 and s 16 of the OHS Act 1983 and thus a wrong understanding of what constituted an offence that led to the convictions in the Kirk matter.

34

The relevant charges in these matters satisfy the essential legal elements of the offence under s 8(1) and s 8(2) of the OHS Act . The charges specify the time, date and place of the offence; the name and address of the defendant; that the defendant's employees were exposed to risk and that the risk arose at the defendant's place of work and from its undertaking.

35

The applications for order therefore identified the legal nature of the offence and, in my view, there was no uncertainty or ambiguity. Furthermore, the applications cannot be described as "grossly deficient" in identifying, on its face, what offence was being alleged, such that s 16(2) of the CP Act would be read as having no application to it.

36	To my mind, what clearly emerges from the High Court's decision in Kirk is that it is no longer sufficient to allege that as a consequence of a series of unspecified failures on the part of the employer, there remained present general risks to the health and safety of others.

37

The plurality stated at [30] in Kirk that "the matter should not have proceeded without further particularisation of the acts and omissions said to found the charges." I read the High Court's decision in Kirk as accepting that if further particulars had have been provided by the prosecutor, the charges may have been valid. It was the particularisation of the charge, that being, the failure to identify the acts or omissions the subject of the charges (what measures the company in Kirk could have taken, but did not take), which resulted in the charge being invalid.

38	Similarly Spigelman CJ's observations in John Holland at [78], although needing to be read in the context of that case, were to the same effect. The Chief Justice observed at [78]:

Where words of general application are used such as "adequate system of ground support" or "adequate system of communication" they may give rise to an application for further better particulars. However, in this context, such terminology does not fail to identify a "particular measure" within the reasoning of Kirk . What is alleged in each respect against the applicant in terms of a failure to take specific steps is clearly pleaded. What is an "adequate system of ground support" is identified in the following further particulars, ie, compliance with the original design, thicker shotcrete, effective rock bolding. Similarly, what is an "adequate system of communication" is also specified in the sub-particulars on benching, rockbolt failures, etc.

39	The Chief Justice was referring to the terminology used in the application for order in the John Holland case. The observations of Giles JA at [141] also need to be read in the same context.

40	It is essential to bear in mind that a critical distinction made by the High Court in Kirk and the Court of Appeal in John Holland was in respect of whether a defect in an application for order discloses an offence known to law, or is invalid.

41

Where the application for order has resulted in a conviction, as was the position in Kirk , and it is ultimately found to be "grossly defective" because of a failure to plead an essential legal element of the offence charged (the measure), such defect is fatal and any conviction is required to be quashed as the defendant was never the subject of a valid charge.

42	However, where a challenge is brought by the defendant, for example, prior to a plea, and it is determined that the application for order was defective, such deficiency may be curable by the provision of further particulars, or the prosecutor seeking leave to amend.

43	The critical question that needs to be determined in respect of the applications for order in these matters, is whether any alleged defect is capable of being remedied. In other words, if the particulars failed to identify a specific measure, can one be implied from the particulars?

44

The Court of Appeal in Knaggs makes clear that an absence of particulars or inadequate particulars in a Court Attendance Notice, does not in itself, lead to the proceedings being invalid or a nullity. There is nothing in Kirk which is inconsistent with the principle in Knaggs . The decision in Kirk did not hold that the applications in that case were nullities or invalid: see Kirk at [30]. Rather, the decision in Kirk , at [35] and [74], is authority for the proposition that the measures to be taken by the defendant were not properly identified at any stage during the course of the trial and therefore the defendant was unable to consider a defence.

45

An inadequacy of particularity in an application for order is capable of being remedied pursuant to s 16(2) of the CP Act and s 170 of the IR Act , where the statement of offence clearly identifies the nature of the offence charged, provided that there is no uncertainty or ambiguity, and any such inadequacy is to be treated as an irregularity that does not nullify the proceedings: John Holland (Industrial Court) at [38] - [39], [57], [79], [101] and Rockdale Beef at [121] - [123], [130] - [133].

46	Spigelman CJ in John Holland observed at [79] that the possibility of further particularisation does not detract from the validity of the charge.

47

As I have already observed, the defendant Harrison submitted that the charges did not identify the measures he should have taken to avoid the risk of injury in respect of the removal of a diseased/dying tree and that it was not sufficient for the prosecutor to rely on the contention that the measures were implicit in the particulars.

48

The first particular does not expressly state the measure by which the risk could have been avoided, but to my mind, the defendant could not have been under any misunderstanding as to the measure that the defendant should have taken, namely, that its employees, or non-employees, should not climb a diseased tree. They should have utilised an alternate method to remove the tree other than having to climb it. This may also be implied from particular (c). Particular (d) provides that the defendant Harrison "failed to ensure any (or any adequate) supervision". The defendant could challenge this particular by way of defence and call evidence that he did provide supervision. Alternatively, the defendant could argue that it was not reasonably practicable to provide any supervision, or seek further and better particulars of what supervision the prosecutor contends that he should have provided. See observations of the Chief Justice at [78] and Giles JA at [141] in John Holland .

49

Similar observations may be made in respect of particular (f) "the failure to ensure the assessment or adequate assessment of the skills, training and abilities of persons engaged to conduct the arboreal work". The prosecutor's case in respect of this particular was that that there was no assessment. The defendant could defend this particular by calling evidence of how it assessed the skills, training and ability of those it engaged, or argue that it was not reasonably practicable to do so. In respect of particulars (e) "failed to ensure the provision of such information, instruction and training" and (g) "failure to provide people of sufficient skill, training and ability", the defendant could seek further particularisation of what would have been sufficient and why from the prosecutor.

50	Although the particulars may have been inadequate or deficient, such failures are not sufficient to render the applications for order void.

51	In Knaggs , Campbell JA, Mason P and Tobias JA agreeing, stated at [48]:

... The wording of section 16(2) is broad, and its reference to a defect in a CAN "in substance or in form" is capable of applying, as a matter of language, to a failure to state the particulars of the alleged offence. It may be that, in some circumstances, there are deficiencies in a CAN so gross that as a matter of construction section 16(2)(a) would be read as not applying to them: cf The King v Hickman & Others; ex parte Fox & Clinton [1945] HCA 53; (1945) 70 CLR 598. There is no need to decide whether that is so, as the argument we are asked to consider in this application is whether, when the CAN identified all the elements of the offence, any failure to comply with section 175(3)(b) has the effect that the proceedings purportedly commenced by the CAN that breaches that requirement are void.

52	I find that the Industrial Court has had its jurisdiction properly invoked. The defendants' notices of motion are dismissed. The defendants should pay the prosecutor's costs.

Prosecutor's notices of motion to amend

53	On 11 June 2010, the prosecutor filed notices of motion seeking leave be granted to amend the particulars of the application for order as reflected in an amended application for order annexed to the notice of motion in respect of each of the above prosecutions.

54	The grounds and reasons relied upon were:

1. Following the recent decision of Kirk v Industrial Relations Commission of New South Wales, Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1 ("Kirk") the Applicant seeks to add greater particularity in referring to the alleged acts or omissions which constitute the offence as set out in the Amended Application for Order.

55	An affidavit of Karen Jean Lockerby solicitor, was filed in support of the notices of motion. It rehearsed in a similar fashion, the background as set out in the affidavit of Mr Vorbach.

56

The prosecutor sought to amend the applications for order to avoid any possible dispute about the defendants not being clearly on notice in respect of the allegations brought against them. Of course, any procedural fairness issues that may potentially arise may be dealt with by the provision of further particulars: see Kirk at [30] and Spigelman CJ at [78] - [79] in John Holland.

57	The defendant Harrison sought further particulars. The prosecutor provided further particulars by letter dated 18 December 2009, which relevantly read:

The prosecution case is that both (alternative) charges particularise a risk to Hamish Crombie-Smith. That risk arose from Mr Crombie-Smith climbing and working in a diseased tree at 6 Verona Street Strathfield on 23 August 2005. The relevant risk is one of serious injury or death as a result of falling from the said tree as a result of the tree's structural weakness. It is the prosecutor's case that Mr Crombie-Smith should not have been climbing the tree or alternatively that he should have ceased climbing the tree. Alternative means of felling the tree should have been utilised. For example, an elevated work platform ("cherrypicker"), crane or similar device could and should have been sufficiently trained and instructed to recognise the nature of the disease from which the tree suffered and the implications of that disease for the structural integrity of the tree and the appropriate means to fell the tree. AICA should have itself provided and/or made sure that Nicholas Ford provided to Messrs Crombie-Smith and Maples a safe system of work that eliminated or controlled the risks identified above. The means adopted to achieve that end might have included consultation, specific contractual provisions and periodic on-site inspections, monitoring and audits. A comprehensive and adequate risk assessment identifying the nature and extent of the disease within the tree should have been conducted prior to work commencing. AICA should also have reviewed the qualifications and experience of Messrs Crombie-Smith and Maples prior to sending them to Mr Ford so as to ensure that they had sufficient knowledge and understanding of local tree diseases (noting that both were trained in the United Kingdom), including the type encountered in the tree at the Strathfield premises. AICA should have arranged for Messrs Crombie-Smith and Maples to receive any training necessary to equip them with an understanding of local tree diseases. The prosecutor otherwise refers you to the contents of the affidavit in support of the application for order.

58

Mr Reitano submitted that these particulars and the charges adequately specify the nature of the allegations against the defendant Harrison, such that further particulars were unnecessary. I agree. However, the prosecutor seeks to avoid any suggestion that the defendant might make of a lack of particularity and therefore seeks to amend the application for order.

59

Both defendants opposed the amendment. In summary, Mr Moses relied upon the judgment of the High Court in Kirk and the observations of the Full Bench of this Court in John Holland , particularly at [70] where the Court observed " it matters not at all whether the acts or omissions creating the risk are to be regarded as essential legal elements or essential factual ingredients. Both are required to be pleaded."

60	Senior counsel submitted that in contrast to the particulars in John Holland (Industrial Court), and also those considered in Chevalley , the charges and particulars are "uncertain and gross" and as such the prosecutor should not be allowed to amend.

61	Senior counsel contended that the particulars in the prosecution against the defendant Harrison, failed to inform the defendant either directly or by inference as to what measures it had failed to take.

62

Mr Beazley opposed the amendment on the ground that it would not be in the interests of justice. Mr Beazley observed that the act or omission occurred on 23 August 2005, the coronial inquest concluded on 23 August 2007 and that the proceedings were not commenced until 21 August 2009, two days before the statutory time limit.

63

Mr Beazley submitted that 5.5 years had passed since the act or omission occurred and that proper particulars should have been provided in accordance with the IR Rules at the time the application for order was filed. It was further submitted that the long delay in resolving these prosecutions was prejudicial to his client. It was contended that the effect of the amendment, if allowed, was for the prosecutor to start its case again. Part of the delay has arisen due to the successful applications by the defendants that these matters not proceed until various challenges brought before this Court and the Court of Appeal were determined ( John Holland and Judgment of this Court in Chevalley ).

64	The plurality in Kirk stated at [14]:

A statement of an offence must identify the act or omission said to constitute a contravention of s 15 or s 16. It may be expected that in many instances the specification of the measure which should have been or should be taken will itself identify the risk which is being addressed. The identification of a risk to the health, safety and welfare of employees and other persons in the workplace is a necessary step by an employer in discharging the employer's obligations. And the identification of a risk which has not been addressed by appropriate measures must be undertaken by an inspector authorised to bring prosecutions under the Act. But it is the measures which assume importance to any charges brought. Sections 15 and 16 are contravened where there has been a failure, on the part of the employer, to take particular measures to prevent an identifiable risk eventuating. That is the relevant act or omission which gives rise to the offence.

65	In applying the principles in Kirk , the Full Bench of this Court in John Holland observed at [57] and [72]:

[57] ... If there were any deficiency in the manner in which the particulars were expressed it would not render the charges invalid. Rather, it would be open to the trial judge to order an amendment or for further particulars to be provided or for the defendant to seek further and better particulars: Rockdale Beef at [126] per Basten JA referring to Stanton v Abernathy at 667, 671-672.

...

[72] ... Even if it could be contended that the acts or omissions were essential legal elements and were required to be identified in the Applications in juxtaposition with other legal elements, at best, in our opinion, it may be said the Applications contained a defect in form, which is unobjectionable (s 16(2) of the Criminal Procedure Act) or would be regarded as an irregularity (s 170 of the Industrial Relations Act ) .

66	In these matters, the applications for order describe the offences in terms of the relevant sections of the OHS Act that create those offences.

67

The requirement of identifying the legal nature of the offence and the essential legal elements of the offence can be found in the charge. In my view, there is no uncertainty or ambiguity in respect of the charges, nor, can it be established that the deficiencies in the applications for order are "so gross that as a matter of construction s 16(2)(a) would be read as not applying to them": see Rockdale Beef at [131] and Knaggs at [148].

68

Each of the defendants, on being served with the application for order, ought have known that what was being alleged against them was that a risk arose in respect of work being carried out on a diseased tree and that the defendants failed to ensure a safe system of work for the removal of the tree. That risk was of a non-employee (or employee) falling from the tree. No steps were taken to undertake a risk assessment, or to determine what plant and equipment was necessary to ensure the health and safety of persons performing the work. There was also pleaded a failure to provide supervision and undertake an assessment of the skills, training and ability of those carrying out the work.

69	Furthermore, the defendant Harrison sought further particulars which were provided.

70

The Full Bench in John Holland (Industrial Court) at [70] noted the reasoning of Basten JA in Rockdale Beef where his Honour observed that the issue "should be considered on a principled basis, and not by use of labels, seeking to distinguish between 'essential legal elements' and 'essential factual particulars' " at [122]. The Full Bench took his Honour's observations to refer to:

... the necessity of ascertaining the substance of the Application for Order and in so doing, considering whether or not the alleged breach is clearly set out together with the identification of the acts or omissions alleged of the defendant. This approach is not an exercise involving nitpicking technicality but simply addresses the need to ensure that the defendant is apprised of the breach alleged under the statute and the acts and omissions by which that breach was committed.

71

I have already determined that the acts or omissions may be implied or inferred from a proper consideration of the charges. I am not persuaded that the charges are uncertain and so gross that the amendments should be rejected. Unlike Kirk , here the defendant Harrison has not yet entered a plea and the defendant Ford has pleaded not guilty. No trial dates have been set, and the defendants have been on notice for some considerable period of time of the prosecutor's application to amend. Further particulars have already been provided to the defendant Harrison.

72

I find in these circumstances, there is no prejudice to the defendants occasioned by the amendments to the applications for order sought by the prosecutor. Nor, in my view, will such amendments result in an injustice to the defendants: see Mark Anthony Clark (1993) 71 A Crim R 58 at 69; James Borodin v R, Irene Borodin v R, ED v R, Bogomiagkov v R [2006] NSWCCA 83 at [20], [25].

73	Pursuant to s 16(2) of the CP Act and/or s 170 of the IR Act , I grant leave to amend each of the applications for order in accordance with the amended applications annexed to the notices of motion filed by the prosecutor.

ORDERS

74	The Court makes the following orders:

In Matter No IRC 1252 of 2009 Inspector Erinn Stevens v Nicholas Worthington Ford

1. The notice of motion filed by the defendant is dismissed.

2. The defendant shall pay the prosecutor's costs in respect of his motion to strike out, as agreed or, as assessed.

3. Leave is granted to the prosecutor to file an amended application for order in the terms as set out in Annexure A to the notice of motion.

4. The prosecutor is to pay the defendant's costs in respect of the notice of motion seeking leave to amend the applications for order, as agreed or, as assessed.

In Matter No IRC 1253 of 2009 Inspector Erinn Stevens v Stephen Patrick Harrison

1. The notice of motion filed by the defendant is dismissed.

2. The defendant shall pay the prosecutor's costs in respect of his motion to strike out, as agreed or, as assessed.

3. Leave is granted to the prosecutor to file an amended application for order in the terms as set out in Annexure A to the notice of motion.

4. The prosecutor is to pay the defendant's costs in respect of the notice of motion seeking leave to amend the applications for order, as agreed or, as assessed.

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