Industrial Relations Commission of New South Wales in Court Session CITATION : Inspector Dell v TAFE Commission [2004] NSWIRComm 196 PROSECUTOR Inspector Brian Dell PARTIES : DEFENDANT TAFE Commission FILE NUMBER: IRC 610 and 819 of 2003 CORAM: Boland J CATCHWORDS : Occupational Health and Safety - Prosecution under ss 15(1) and 16(1) of the Occupational Health and Safety Act - Interlocutory judgment - Applications to amend applications for order to change name of defendant - Misnomer - TAFE Commission not emanation of the Crown - Defendant did not oppose such application - Application granted - Order amended in terms sought Occupational Health and Safety Act 1983 LEGISLATION CITED : Supreme Court (Summary Jurisdiction) Act 1967 (Repealed) Technical and Further Education Commission Act 1990 CASES CITED : Manpac Industries Pty Ltd (formerly t/as Pacific Concrete & Quarries Pty Ltd) v WorkCover Authority of New South Wales (Inspector Glass) [2001] NSWIRComm 190 HEARING DATES: 06/30/2004 DATE OF JUDGMENT: 07/14/2004 PROSECUTOR: Mr D O'Neil of counsel Solicitor: Ms K Wildermoth WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: DEFENDANT Mr M Shume of counsel Solicitor: Mr G McCann Sparke Helmore JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: BOLAND J Wednesday 14 July 2004 Matter No IRC 610 of 2003 INSPECTOR BRIAN DELL v TAFE COMMISSION Prosecution under section 16(1) of the Occupational Health and Safety Act 1983 Matter No IRC 819 of 2003 INSPECTOR BRIAN DELL v TAFE COMMISSION Prosecution under section 15(1) of the Occupational Health and Safety Act 1983 Interlocutory Judgment [2004] NSWIRComm 196 1 In February 2003 Inspector Brian Dell of the WorkCover Authority of New South Wales made applications for orders pursuant to s 4(1) of the Supreme Court (Summary Jurisdiction) Act 1967 that the defendant appear before the Court to answer charges under s 15(1) and s 16(1) of the Occupational Health and Safety Act 1983. The defendant named in the applications was the Crown in the Right of the State of New South Wales (The Department of Education and Training and Technical and Further Education Commission). The orders sought were subsequently made by the Court. 2 Between March 2003 and April 2004 the matters were the subject of a series of adjournment applications by the defendant. In April 2004 the Court was advised that the prosecution intended to amend its applications. The amendments included a change to the name of the defendant to the "TAFE Commission". Mr M L Shume, counsel for the defendant, drew attention to the name change but indicated, nonetheless, that he had been instructed to consent to the amended applications. The Court indicated it needed to be satisfied that, in considering amendments involving a change to the name of the defendant, it was not dealing with new applications that, by virtue of s 49A of the Occupational Health and Safety Act, would be out of time. 3 The applications related to an incident that occurred on 28 February 2001 at the Tamworth Campus of the New England Institute of TAFE. It was alleged in the original applications that the defendant, being an employer, failed to ensure the safety of a number of personnel (employees and students) when sparks from welding ignited acetylene leaking from a pipe and caused an explosion. 4 Gary Pollock, the director of the Institute and an employee of the Department of Education and Training, was interviewed by Inspector Dell on 4 September 2002. Mr Pollock was asked whether he was authorised to speak on behalf of "TAFE NSW" in relation to the incident that occurred on 28 February 2001 and he replied "Yes." He was further asked what the relationship was between TAFE NSW and the Department of Education and Training and he replied: TAFE NSW is a part of the Department of Education and Training, it is part of the broad umbrella of the Department including school education and TAFE. 5 Mr Pollock was further asked about the relationship between TAFE NSW and the New England Institute of TAFE and replied: The New England TAFE is part of TAFE NSW. It operates within the policy parameters and the arrangements set up across the State by TAFE NSW. 6 In answer to the question whether TAFE NSW was an employer in its own right Mr Pollock answered: TAFE NSW is an employer for all of the staff apart from the senior executive service and we are employed by the Department of Education and Training. But all other staff that work for the Institute here are employed by TAFE NSW, by the TAFE Commission. 7 Graeme William Miller, a welding teacher at the Tamworth Campus, and a person allegedly placed at risk on 28 February 2001, was also interviewed by Inspector Dell and in answer to the question as to who was his employer on that date, replied "New South Wales TAFE Commission." Another teacher, Allan Gerard Phipps, also allegedly placed at risk, answered the same question by saying "TAFE NSW." The other persons allegedly place at risk were students undertaking training in welding at the time of the explosion. The charge in relation to Messrs Phipps and Miller was laid under s 15(1), whereas the charge in relation to the students was laid under s 16(1). 8 The affidavits in support of the original applications under s 4(1) of the Supreme Court (Summary Jurisdiction) Act contained the following statements: 3 At all material times, pursuant to provisions of the Technical and Further Education Commission Act 1990, the Technical and Further Education Commission (known as "TAFE NSW") was a statutory body representing the defendant, and members of staff of TAFE NSW were employees of the defendant. 4 At all material times the defendant (Department of Education and Training) was responsible for the operation and management of TAFE NSW including the Tamworth Campus of the New England Institute of TAFE, situated at Janison Street, Tamworth, in the State of New South Wales. 5 At all material times the defendant (TAFE NSW) organised and delivered courses of study for students and provided equipment for that purpose. 9 It is clear from the decision of the Full Bench in Manpac Industries Pty Ltd (formerly t/as Pacific Concrete & Quarries Pty Ltd) v WorkCover Authority of New South Wales (Inspector Glass) [2001] NSWIRComm 190 that the substitution of a new defendant is impermissible. However, the amendment of the name of the true defendant (being the entity or person always intended to be prosecuted) to correct a misnomer or misdescription is permissible. 10 The affidavits in support of the applications for order are quite confused and confusing. Paragraph 3 refers to TAFE NSW as a "statutory body" representing the defendant, which I take was a reference to the Crown in the Right of New South Wales. Paragraph 4 refers to the defendant as being the Department of Education and Training. Paragraph 5 refers to the defendant as being TAFE NSW. 11 The Technical and Further Education Commission, or TAFE Commission, is an entity established by the Technical and Further Education Act 1990. The Department of Education and Training is an emanation of the Crown and quite separate, for the purpose of prosecutions under the Occupational Health and Safety Act, from the entity that is the TAFE Commission. 12 In drawing up the charges, the prosecutor seems to have thought that there were two emanations of the Crown, namely the Department and the TAFE Commission and that both emanations were inculpated in the alleged offence. 13 The prosecutor, by his amended applications, now does not wish to proceed against the Crown in its emanation as the Department of Education and Training but only against the TAFE Commission, which he no longer describes as the Crown. Given that it appears to me the prosecutor, in his original applications: (a) mistakenly believed the TAFE Commission was an emanation of the Crown but, nevertheless, named the TAFE Commission in his original applications as inculpated in the alleged offences; (b) that he is seeking to pursue charges against that entity which employed the teachers that are the subject of the charge in matter No IRC 819 of 2003; such entity appearing to be the TAFE Commission; (c) that he is seeking to pursue charges in matter No IRC 610 of 2003 against the entity conducting an undertaking at the Tamworth Campus of the New England Institute of TAFE in Janison Street, Tamworth, such entity appearing to be the TAFE Commission; and (d) that the defendant consents to the amended application, I do not consider I should refuse the proposed amendments. 14 I am satisfied that by allowing the prosecutor to pursue the charges against the TAFE Commission in his amended applications I am not substituting a new defendant. Rather, I am merely allowing the prosecutor to delete the Department of Education and Training as a defendant and to correct a mistake as to the name of the defendant in that the TAFE Commission is not an emanation of the Crown and should not be referred to as such. 15 I would add, however, although the prosecution may have misunderstood the record of interview of Mr Pollock, that was no excuse for its failure to properly name the defendant in its original applications. The confusion created by the applications and affidavits in support do not reflect favourably upon the prosecution and demonstrates a lack of proper consideration to a fundamental issue. Nevertheless, as I have already indicated, I do not consider the proposed amended applications seek to substitute a new defendant and having regard to the defendant's consent to the proposed amended applications I do not propose to refuse the amendments. 16 I order that the applications for order in matter Nos IRC 610 of 2003 and IRC 819 of 2003 are amended in the terms of the amended applications for order filed in Court on 2 April 2004. ______________________________ 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.