JUDGMENT No. 707 @°? CATCHWORDS Criminal Law and Procedure - information and summons - whether duplicity, ambiguity or uncertainty - amerdment - Limitation period expired - whether injustice to defendart Practice and Procedure - Federal Court Rules - amendment - whether provis.ons applicable 11 criminal proceecings. e Industrial Law - employer and employee - i:smissai ty r2ason of proser Ded circumstances - foom of allegat.on Pal information and summons. Conciliation and Arbitration Act 1904 3s. S(lifta' (fi, (LA) (a)(t), f4) oan - / ' . far 7 , N Crimes Act 1914 ss. 21(1) (ce), 21AC2* /-' woe \ Federal Tourt Ruies 0.13 R.2. AUSTRALASTAN MEAT INDUSTRY EMPLOYEES UNION v SUNLAND ER ENTERPRISES PTY. UTD. , HEATH DAWN ALDOUS AND DONALD CHARLES ALDOUS Nos. I30, I31, 133, 134, I36, I37, 138, 139, 140, I4l, 142, T43, 144, 145, I50, I51, 152 and [53 of 1987 Gray J. BRISBANE 8TH DECEMBER 1987 IN THE FEDERAL COURT OF AUSTRALIA ) ) QUEENSLAND DISTRICT REGISTRY ) Nos. 130, I31, 133, 134, 136, ) ) I37, 138, 239, I40, I41, 242, INDUSTRIAL DIVISION T43, 144, 145, 250, [51, 152 and 153 of 1987 AUSTRALASTAN MEAT INDUSTRY EMPLOVEES "JNZION Prosecutor and SUNLAND ENTERPRISES PTY. LTD., HEATHER DAWN ALDOUS and DONALD CHARLES ALDOUS Defendants REASONS FOR JUDGMENT? JUDGE: Gray J. DATE: 8th December 1987 PLACE: Brisbane Twenty-four informations were called on for trial on 7th December 1987. Three defendants are involved, each being the subject of eight informations. The defendants are a company, now known a5 Sunland Enterprises Pty. Ltd., formerly as Aidous Investments Pty. Ltd., Heather Dawn Aldous and Donald Charles Aldous. Each defendant 3) is alleged to trade under the name "Suniand Wholesale Meats". ach information alleges that the defendant concerned has committed an offence against s.5 of the Conciliation and Arbitration Act 1904 ("the Act") in relation to a particular employee. Eight employees are involved. The allegations presently made are best summarized as follows. In matters nos. I 30, I 38 and I 39 of 1987, the defendants are alleged to have dismissed Peter Svenson by reason of the circumstance that he was a member of the Australasian Meat industry Employees' Union ("the Unzon"), an organization of employees registered pursuant to the Act. Similar ailegaticns are made in matters I 31, I 40 and I 41 of 1987 about Michael Svenson, I 32, I 48 and I 49 of 12987 about Michael Hughes, <= 33, i 42 and I 43 of 1987 about Christopher Collins, © 34, © 44 and I 45 of 1987 about Selwyn Cannon and = 37, I 52 and I 53 of 1987 about David Clarke. In natters nos. I 36, I 50 and f 51 of 1987, the defendants are alleged to have dismissed George Hughes by reason of the circumstance that he was a member of 'he Union, and in the alternative are alieged to have dismissed him by reason of the circumstance that he was a ielegate of the Union. In matters nos. I 35, I 46 and I 47 of 1987, 'he defendants are alleged to have threatened to dismiss Robert Coxen by reason of the circumstance that he was a member of the Union. Parts of 3.5 of the Act should be set out: "€L) An employer shall not dismiss an employee, or injure him in his employment, or alter his position to his prejudice, by reason of the circumstance that the employee - (a) is...or proposes...to become, an officer, delegate or member of an organization... 'f) being an officer, delegate or member of an organization, has done, or proposes to do, an act or thing which is lawful for the purpose of furthering or protecting the industrial interests of the organization or its members, being an act or thing done within the limits of authority expressly conferred on him by the organization in accordance with the rules of the organization. Penalty: $400 (1A) An employer shali not threaten to dismiss an employee, or to injure him in his employment, or to alter his position to his prejudice - fa) by reason of the circumstance that the amployee is, or proposes to become, an officer, delegate or member of an organization... (c) with intent to dissuade the employee, being an officer, delagate or member of an organization, from doing an act 3r thing of the xind tn relation to which patagraph (1)(£) applies Penalty: $400. He Tn any proceedings for an offance against 'this section, if ait the relevar' facts and circumstances, other than the reason or intent set gut in the charge as being the reason wr intent of an action alleged in the charge, are proved, it lies upon the person charged to srove that that action was not actuated by 'that reason or taken with that intent." Before any pleas were entered, or any Jecision was made as to whether the various matters could be heard 'Cogether, Miss Simpsor of sounsel for the prosecutor sought leave t3 amend 2ighteen of 'the twenty-four informations and summonses. The applications for Leave to amend were opposed by Mr. Murdoch of <taunsel for the jefendants. E) h 1 effeer of the a ubsranti py it alternative allegations in the informations relating to George Hughes, that he was dismissed by reason of the circumstance that he pyroposed t to become a member of the Union, and to add alternative allegations based on the circumstance referred to in s.5(1)(f) and on threats to dismiss by reason of the circumstance that each was a member of the Union, or by reason of the circumstance referred to 1n 3.5(1A)(c), in @ach of the informations relating to Peter Svenson, Michael Svenson, Christopher Collins, Selwyn Cannon and David Clarke. Me. Murdoch referred to the fact that each cifance is alleged to have been committed on, or "on or about", a date in September 1986, and argued that each proposed amendment would have the effect of allowing new charges to be laid outside the limitation pveriod set out in s.21(1)(c} of the Crimes Act 1914, for offences where the punishment involved is a pecuniary penalty only anc no term of imprisonment 1s mentioned, namely one year after the commission of 'he offence. Me. Murdoch also relied on arguments that 'the psropcsed amendments would create ambiguity, uncertainty and duplicity. The general power of the Court to amend an information and summons for an offence is not in doubt. Order i3 r.2 of the Federa Court Rules provides: "2. .¢€1) The Court may, at any stage of any proceeding, on application by any party or of its own motion, order that any document in the proceeding be amended, or that any party have leave to amend any document in the proceeding, in either case in such manner as the Court thinks fit. (2) All necessary amendments shail be made for the purpose of determining the reat questions raised by or otherwise depending on the proceeding, or of correcting any defect or error in any proceeding, or of avoiding multiplicity of proceedings." These provisions are no less apt in criminal than in civil proceedings. There is also s.21A of the Crimes Act 1914, which should be set out in full: "211A. (1) If at the hearing of any indi information or summons any objection is taxen for an alleged defect therein in substance or in form, or if objection is taken to any variance between the indictment, information or summons and the evidence adduced at the hearing in support thereof, the Court may make such amendment in the indictment, information or Summons as appears to it to be desirable or to be necessary to enable the ral question in dispute to be determined. (2) If in any such case the Court considers shat the defendant has been misled by the form in which the aindictment, information or summons has been made sut, it may adjourn the nearing of the case for such period as it thinks fit and may wake such order as to the costs of the adjournment as it thinks proper. (3) The power of the Court under sub-section {l) shall not be exercised in cases where the Court considers that the required amendments cannot be made without injustice to the defendant." _ No evidence having been led in support of any of the charges, no occasion for the operation of s.21A has arisen yet. Ther2 is no doubt, however, that to amend informations at the outset of a triai, 1£ they are to be amended, is beneficial to a defendant, by giving motirze of the case which must be met, and reduces the need 'for ad fournments and the recalling of witnesses for further cross-examination. The arguments relating to ambiguity, uncertainty and duplicity can be dealt with briefly. It was put that by alleging inconsistent circumstances as alternatives, the proposed amendments would be bad for duplicity or ambiguity. Concentration was on the case of George Hughes, and the allegations that he was dismissed on the one hand for being a member of the Union, and on the other for proposing to become one. E.ther Mr. Hughes was a member, or he was proposing to become one, it was said. I ido not ragard the charging of inconsistent alternatives as amounting to duplicity or ambiguity. A defendant knows well the case which must be net, and that a convict.on can only vesult on one of the alternatives, if at ali. Ner am impressed by Mr. Murdoch's argument as to uncertainty, which +233 heavily on the fact that the proposed amendments charge offences as having been committed "on or about" certain dates. "On or about" 135 a time-honoured phrase in the law. In the context of an allegation of dismissal of a named person, alleged to have been an employee of the lefendant, it creates 0 difficult in conveying the nature of the ¥Y ying case which must be met. Of much greater importance 1s the argument based on the limitation period in s.21(1)(c) of the Crimes Act 1914. Theis oa fundamental principle of law that a court will not permit amendment of a proceeding where to do so will remove an immunity given to another party by a statutory period of limitation. In -tivil cases, this principle is known as' the rule in Weldon v. Neal (1887) 19 Q.3.D. 394, that no amendment will be permitted which will add a new cause of action which is statute-barred at the time when the amendment is sought. This principle also applies in the criminal law. As Fitzgerald J. said in Linehan v. Australian Public Service Association (Fourth Division Officers) (1982) 66 F.L.R. 90, at p. 112, ",..it is readily comprehensible that, in the conraxt 2£ ss.21 and Z1A of the Crimes Act, it should be seen as impermissible for the prosecutor to add essential allegations for the first time after the time for a prosecution has expired." The question 153, what are "essential allegations" 1m this context? In R. v. Wakeley £1929] 1 K.B. 588, she Court of Criminal Appeal upheld an amendment = char wQ ing we the allegation of the time at which an offence was committed, <2 e time more than 5 months befor? the amendment was made, "hat being 'he r tion period. In Ered Wakefield Pty. utd. Vv. Dowd a (1979) 20 3.A.S.R. 328, the Court heid that an amendment to change the cr relevant iimit word "licence" to "permission" in an information should not have been allowed, as it involved the charging of a separate offence from that charged originally, after the Limitation period had expired. In Gilmour ov. Midways Springwood Pty. Etd. (1980) 49 F.L.R. 36 az op. 39, Brennan J. said: "Counsel for the informant seeks an amendment to the informations in order to bring them ants conformity with the consent given by the Minister. But if the amendments would have the effect of alleging offences different from 'hose which are presently alleged in the znformation, the application must be refused, for the time limited for the commencement of the prosecution of the offences contained in the proposed amendments has now expired. Although an amendment to an information can be allowed outside the time limited by statute for the commencement of the prosecution of an offence charged in the information (R. v. Wakeley £19203 1 K.B. 688) when the offence proposed by the amendment arises out of the same facts, it seems to me that the immunity from prosecution which s.21(l)(c) of the Crimes Act confers may not be circumvented by the exercise of a power to amend under s.21A of the Crimes Act. Indeed, to deprive the defendant of the benefit of $.21(1)(c) would be an injustice which, by force of s.21A(3), would preclude the exercise of the vower of amendment." Amendment to particulars, itheut aitering the offence charged, may take place after the limitation period has expired; see Videon vw. Barcy Burroughs Pty. Std. (1981) 53 F.L.R. 425, at pp. 443-444. Applying these principies to the present applicatiors, 7 is zn no doubt that the applications to add alternative allegations cf threats to dismiss, based on 3.5(1A)}(a) and ic) of the Act must fail. An examination of 3.5 makes it clear that a threat to dismiss is a compietely separate offence from a dismissal. The offences are created by separate sub-sections, enacted at different times, each with 1ts own provision for a penalty. An attempt to lay a fresh information, charging an offence under s.5(1A) alleged to have been zommitted in September 1986, would fall foul of 5.21{(1)(c)} of the Crimes Act 1914. It may be that, 1f confusion arose as to whether an act of which evidence was given on the hearing of a charge under s.5(1) amounted to a dismissal or a threat to dismiss, 3.21A of the Crimes Act 1914 would permit amendment in normal circumstances. Where such amendment would result in the laying of a separate charge dutside the limitation period, however, it would amount to "injustice" against the defendant, and would be barred by s.21A(3) of the Crimes Act 1914. The question of the addition of alternative allegations under 3.5(1)(a) and (f) of the Act is more difficult. It has been held that the essence of an offence created by 5s.5(1) 18s dismissal, injuring in employment, or altering an employee's position to his prejudice, by reason of one or more of the proscribed circumstances. For this reason, it is permissible to allege in an information, for instance, 2 singie act of dismissal, by reason of several of 'he proscribed circumstances, either cumulatively or alternatively. See Bowling v. General Motors-Holdens Pty. Ltd. (1975) 8 A.L.R 197, at po. 7217-218, in the judgment of Woodward J., with whom the sther two members of "he Australian Industrial Court agreed on thi3 point, and Noack v. General Motors-Hoiden's Ltd. (1985) ll F.C.R. 122, at op. 123-1204. Mr. Murdoch argued that these two decisions ar3 not binding on me, and that I should refuse to follow them, and should hold that gach of the tircumstances alleged in the lettered paragraphs of 35.5(1), in conjunction with one of the elements in the opening words of the sub-section, creates a separate offence. He relied on Gilmcur WA Midway3 Springwood Pty. Btd. (1980) 49 F.L.R. 36, and Travetand Pty. Ltd. ev. Doherty (1982) 41 A.O.R. 563, both cases concerned with prosecutions under 3.53 of the Trade Practices Act 1974. It 215 true that I am not bound by a decision of the Australian Industrial Court, or a deczsion of a single judge of this Tourt following 16, My natural inclination to follow such decisions when they relate to the specific legislation with which I am dealing is reinforced by my conviction in the present case that Bowiirg's Case and Noack's Case are both correct as to the interpretation of s.5. There are obvious distinctions in form between s.5(1) of the Act and s.53 of the Trade Practices Act 1974, not the least of which is the presence of the relevant verbs in the opening words of the former, and their absence from the latter. In deciding the present applications, the strict question whether the lettered paragraphs of s.5(1) of the Act create separate offences for the purpose of pleading is not crucial. The reality 15 that, if a defendant were acquitted of a charge of dismissing an employee Dy reason of a circumstance alleged in s.5(1l)(a', for instance, a separate information alleging dismissal by reason of 2 circumstance proscribed by another paragraph of s.5(1: may well result in a conviction. The gist of the offence is dismissal, Dut eacn of [en the prosccribe circumstances in association with a d.s5m1ssal wil support a conviction. There may be circumstances in which a 3econd information would have to be dismissed. An example would be a case in which the first information resulted in a finding "hat the employee . concerned had not been dismissed. An issue estopvel would then prevent a second charge from resulting in a finding that a dismissat had occurred, In the ordinary case, however, where dismissal of the empioyee was proved or admitted, but the employer succeeded in establishing that the dismissal was not actuated by the circumstance alleged, a second prosecution might well succeed. Such a second prosecution cleariy could not he launched outside the limitation period. Another way of approaching the problem is to ask whether the present prosecutor could now lay new informations, alleging that the defendants had dismissed one of the employees concerned by reason of the circumstance referred to in s.5(1)(f). Plainly, any such new information would be outside the limitation period. T am therefore of the view that the attempts to add allegations based on s.5(1)(£), and the attempts to add an alternative wT yp e oO ase er] relacing to wu allegation based on proposed membership in r rs George Hughes, are ina similar positron cto the proposed amendments based on s.5(1A). The fact that the defendants carr the onus of proof on some issues by reason of 5.5(4) of the Act, and that 'he prosecutor may be surprised by reasons advanced far the conduct of che defendants in chery avidencs, cannot affect "his position. For these reasons, I hold that the proposed amendments ars all out of time, and that 'o allow them to be made would amount to "injustice" to the defendants, within s.21A(2) of the Crimes Act 1914. The appi:cations for leave to amend are refused. >] Appearances Prosecutor: Miss C. Simpson Instructing solicitors: Poter: Wood & Co. Defendants: Mr. J. Murdoch = ie) sra ui nyw wr a iy ao ns a) i?)u ft ua Instructing solicitors he ta . Iocertify that this and the preceding = eleven (11) pages are a true copy of the Reasons for Judgment of the Honourable Justice Gray. Dated: Zh pecevuha IMASb Associate Nelarve Ev %