Industrial Relations Commission of New South Wales in Court Session CITATION : Rodney Morrison v Bradley Dean Murray & Ors [2004] NSWIRComm 174 Prosecutor: Rodney Morrison Defendants: PARTIES : Bradley Dean Murray, First Defendant Michael John Barrett, Second Defendant Powercoal Pty Ltd, Third Defendant David Glen Coutts, Fourth Defendant FILE NUMBER: IRC3074, 3075, 3076 & 3077 of 2001 CORAM: Kavanagh J Occupational Health and Safety Act 1983: s48(1)(a) consent to prosecutions in writing by prescribed officer - consent to issue prosecution forms missing - whether copy documents, but not complete copies, as affirmed to by prescribed officer, persuasive as to the existence of consent documents before the issue of proceedings - submission rejected. Whether memorandum containing approval of recommendations to prosecute by prescribed officer are written consents to institute proceedings As to Prosecution against Powercoal: CATCHWORDS : Recommendation in memorandum as to prosecution under s15(1) and s16(1) of the OHS Act against company, Powercoal, had condition attached - a consultation process. Proceeding instituted under only s15(1) of the OHS Act - no direction as to alteration of approval - non conformity found in the circumstance. As to Prosecutions against three individual defendants: terms of recommendation approved by prescribed officer found to be vague and so general as to be not a written consent to institute that proceeding. Finding of no jurisdiction for Commission in court session to hear Applications - Question as to appropriate relief - to dismiss applications or stay applications? - issue as to appeal right if stay issued - reference as to issue made to Full Bench. Occupational Health and Safety Act 1983 Supreme Court (Summary Jurisdiction) Act 1967 LEGISLATION CITED : Trade Practices Act 1974 Evidence Act 1995 Industrial Relations Act 1996 Criminal Appeal Act 1912 WorkCover Authority of NSW v Lucon (Australia) Pty Ltd (2002) 112 IR 332 Rodney Morrison v Dartbrook Coal Pty Ltd and Tecrete Industries Pty Ltd [2002] NSWIRComm 127 Dever v Creevey, ex-parte Creevey (1992) 1 Qd.R 232 CASES CITED : Traveland Pty Ltd v Doherty (1982) 41 ALR 563 Rodney Morrison v United Collieries [2002] NSWIRComm173 Berwin v Donohoe (1915) 21 CLR 1 DPP v Cassell and Anor (1995) 80 A Crim R 160 HEARING DATES: 04/16/2002; 05/10/2004; 05/17/2004 DATE OF JUDGMENT: 07/23/2004 Prosecutor: Mr P.A. Johnson SC with Ms A.F. Backman of counsel Solicitors: Crown Solicitor's Office First Defendant (Bradley Murray) Mr I.H. Wallach of counsel LEGAL REPRESENTATIVES: Second Defendant (Michael Barrett) Mr M. L. Shume of counsel Third Defendant (Powercoal) Mr R.J. Buchanan QC Fourth Defendant (David Coutts) Mr I.H. Wallach of counsel Solicitors: Sparke Helmore JUDGMENT: - 41 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: KAVANAGH J Date : Friday 23 July 2004 IRC3074 of 2001 RODNEY MORRISON v BRADLEY DEAN MURRAY Prosecution under s15(1) & s50(1) of the Occupational Health and Safety Act 1983 IRC3075 of 2001 RODNEY MORRISON v MICHAEL JOHN BARRETT Prosecution under s15(1) & s50(1) of the Occupational Health and Safety Act 1983 IRC3076 of 2001 RODNEY MORRISON v POWERCOAL PTY LIMITED Prosecution under s15(1) of the Occupational Health and Safety Act 1983 IRC3077 of 2001 RODNEY MORRISON v DAVID GLEN COUTTS Prosecution under s15(1) & s50(1) of the Occupational Health and Safety Act 1983 INTERLOCUTORY JUDGMENT [2004] NSWIRComm174 1 These matters come before the Commission sitting in Court Session by way of Notices of Motion, one filed on behalf of each of four defendants, against whom it has been alleged breaches of the Occupational Health and Safety Act 1983. The Notices of Motion are being dealt with at an interlocutory stage of proceedings, before trial. The Notices of Motion are all similar and read as follows: 1. An order that the prosecution in matter number . . . be dismissed. 2. In the alternative, an order that the Prosecution be permanently stayed. 3. An order that the Respondent pay the Applicant's costs. The grounds and reasons in support of the Motions are as follows: 1. The prosecution should be dismissed in that: (a) The prosecution was invalidly commenced. (b) It would appear that as at the date the prosecution was commenced, the Prosecutor, Mr Rodney Morrison, did not possess a written consent of a Prescribed Officer (being the Director General of the Department of Mineral Resources) at the time the proceedings were instituted, pursuant to s48 of the Occupational Health and Safety Act . 2. In the alternative, the Prosecution should permanently stayed for an abuse of process as: (a) The Prosecutor, Mr Rodney Morrison, is not able to prove beyond reasonable doubt that he had the written consent of a Prescribed Officer (being the Director General of the Department of Mineral Resources) at the time the proceedings were instituted, pursuant to s48 of the Occupational Health and Safety Act . (b) To proceed with the Prosecution in circumstances where the Prosecutor is unable to prove its case is an abuse of process. (c) To proceed the Prosecution further without such consent is an abuse of process. History 2 On 3 May 2001, Rodney Morrison, filed four Applications for Orders instituting one charge against each of four defendants under the Occupational Health and Safety Act 1983 (the OHS Act). The four defendants named in the Applications were the corporation Powercoal Pty Ltd and the three employees of Powercoal at Wyee Colliery, Bradley Dean Murray, Mechanical Engineer in Charge; Michael John Barrett, Colliery Manager; David Glen Coutts, Maintenance Manager and Mine Engineer. 3 The Applications were supported by affidavits sworn on 3 May 2001 by Mr Morrison, who identified himself as Assistant Director, Performance Improvement, Division of Mine Safety and Environment, Department of Mineral Resources. Mr Morrison averred in paragraph 1 of his affidavit that he was authorised to institute the proceedings saying: I am a person authorised by the Director General of the DMR who is a Prescribed Officer pursuant to section 48 of the Occupational Health and Safety Act, 1983 to institute proceedings in this matter. He provided no evidence of the form of authorisation or its terms. 4 Powercoal was charged under s15(1) of the OHS Act and each of the three individual employees were charged pursuant to s50(1) and s15(1) of the OHS Act. 5 The Application for Order against Powercoal was pleaded in the following terms: . . . On or about 6 May 1999, at the Wyee Colliery, about four kilometres east north east of Wyee, in the State of New South Wales, the defendant, being an employer, failed to ensure the health, safety and welfare at work of all its employees, in particular, Kenneth John Sellers, Stephen Leon Saurins, Kenneth Bruce Johns and Paul Piper, in that it failed to provide such information, instruction and training as may be necessary to ensure the health and safety at work of the employer's employees contrary to section 15(1) of the Occupational Health and Safety Act , 1983. 6 The Applications for Order against the three individual defendants, Messrs Murray, Barrett and Coutts repeated the above and added: AND: The defendant, being a person concerned in the management of the above corporation, is deemed to have contravened the same section pursuant to s50(1) of the Occupational Health and Safety Act , 1983. 7 There were then 14 similar particulars pleaded by the prosecution and relied upon in each of the Applications filed against each defendant. It is not necessary to recite the particulars of the alleged breaches for the purpose of this interlocutory deliberation. 8 The time limit under the Act for commencing these prosecutions was midnight 7 May 2001. 9 Under s48(1) of the OHS Act, each charge must be instituted with the written consent of a relevantly prescribed officer. The OHS Act states: Section 48 Authority to prosecute (1) Proceedings for an offence against this Act or the regulations may be instituted only - (a) with the written consent of the Minister or a prescribed officer, or (b) an inspector, or (c) by the secretary of an industrial organisation of employees any member or members of which are concerned in the matter to which the proceedings relate. (2) In proceedings for an offence against this Act or the regulations, a consent to institute the proceedings, purporting to have been signed by the Minister or a prescribed officer, shall be evidence of that consent without proof of the signature of the Minister or prescribed officer, as the case may be. 10 Clause 3 of the Occupational Health and Safety (Administration) Regulation 1992 reads: 3. For the purposes of section 48(1)(a) of the Act, the Director-General of the Department of Mineral Resources is a prescribed officer in relation to the following proceedings: (a) proceedings for an offence against the Act concerning a place of work that is a mine within the meaning of the Coal Mines Regulation Act 1982, (b) proceedings for an offence against the Act concerning a place of work that is a mine within the meaning of the Mines Inspection Act 1901. 11 Therefore persons are empowered to act as prosecutor under the OHS Act in accordance with s48(1) of the 1983 Act and, specifically in relation to breaches of the OHS Act in Mines, that person must be the Director General of the Department of Mineral Resources in accordance with clause 3 of the Occupational Health and Safety (Administration) Regulation 1992. 12 With the commencement of the Occupational Health and Safety Act 2000 ("OHS Act 2000") on 1 September 2001, the provisions of Part 7 of the OHS Act 2000 extended to proceedings in respect of offences committed against the OHS Act 1983 where such proceedings were pending on the repeal of the 1983 Act: (Cl 13, Sch3, OHS Act 2000). Part 7 of the OHS Act 2000 applies therefore to any such proceedings (Cl 13(3), Sch3, OHS Act 2000). 13 For present purposes therefore, there is no material difference between s106(1)(b) of the OHS Act 2000 and s48(1)(a) of the OHS Act 1983. Nor is there any material difference between Cl 357, Occupational Health and Safety Regulation 2001 and Cl 3, Occupational Health and Safety Administration Regulation 1992 (since amended in 1999 and 2001). 14 Mr P.A. Johnson SC with Ms A.F. Backman of counsel appeared for the prosecution. Mr R.J. Buchanan QC appeared in the interests of the defendant, Powercoal Pty Limited. Mr I.H. Wallach of counsel appeared in the interests of the defendants, Bradley Dean Murray and David Glen Coutts. Mr M.L. Shume of counsel appeared in the interests of the defendant, Michael John Barrett. 15 The Movers of the Notices of Motion, that is, each defendant (herein referred to as the defendants) relied upon an affidavit of Mr Paul Cutrone sworn 15 November 2001, the affidavit of Ms Fiona Bigelli of 15 November 2001 and 12 December 2001; Consents to Institute Proceedings signed on 12 September 2001, 29 June 2001 and 13 August 2001. 16 The prosecutor, the respondent to each of the Notices of Motion (herein referred to as the prosecutor), relied on affidavits of Mr Rod Morrison sworn 14 December 2001 and 3 April 2002, affidavits of Mr Alan Coutts sworn 8 May 2001 and 22 March 2002 including attachments such as Confidential Memorandum from Mr Rod Morrison to Mr Alan Coutts of 22 March 2001, 26 March 2001 and affirmed Consent Orders. 17 At issue, originally, was whether the named prosecutor, Mr Rodney Morrison, was a prescribed person under s48(1) of the OHS Act and Clause 3 of the Occupational Health and Safety (Administration) Regulation 1992. Notwithstanding the named prosecutor was Mr Morrison and the content of his affidavit declared he was a person "authorised" to institute proceedings, Mr Coutts, the Director General of the Department of Minerals and Resources was, in accordance with Cl 3 of the Regulations, the Prescribed Officer at the relevant time for the purpose of s48(1) of the OHS Act. 18 After evidence, the prosecution conceded Mr Morrison was not a person "authorised" under the OHS Act to institute proceedings and Mr Coutts, as Director General of the Department of Minerals and Resources, was the prescribed officer. 19 The issue therefore became: was there in each circumstance a written consent by a prescribed officer, namely Mr Coutts, to validly institute each proceedings in accordance with s48(1) of the OHS Act? FACTS 20 Rodney Morrison, the named prosecutor in the Applications for Order, gave evidence by way of affidavit. He was not required for cross examination. The evidence of Mr Morrison reveals the procedures that were followed by the Department of Minerals and Resources in order to determine whether to instigate a prosecution under the Act were : 1. He, as Assistant Director Performance Improvement of the Department of Mineral Resources New South Wales, convenes an Assessment and Review Committee (ARC) of the Department whose responsibilities include recommending prosecutions for breaches of the Occupational Health and Safety Act in New South Wales. 2. The ARC recommendations are to be approved by the Director-General. 21 Mr Coutts, the Director General of the Department of Minerals and Resources, gave evidence in the proceedings. He added to Mr Morrison's evidence. He revealed the Department also requires a document headed "Consent to Institute Proceedings" which document he signs, as Director General, before the proceedings are instituted. It is usually the formal written Consent to Institute Proceedings. A copy of such Consent was tendered to demonstrate the Department's normal practice and relevantly reads: CONSENT TO INSTITUTE PROCEEDINGS Section 48(1)(a) Occupational Health and Safety Act 1983 (NSW) The Director-General of the New South Wales Department of Mineral Resources HEREBY CONSENTS to proceedings being instituted by Rodney Dale Morrison against . . . for an offence against section 15(1) and section 50(1) of the Occupational Health and Safety Act 1983 (NSW) DATED : At Sydney. Mr Alan Coutts Director General New South Wales Department of Mineral Resources 22 As to the procedures followed in the determination to institute proceedings in these matters, Mr Morrison revealed that on 19 March 2001, the ARC was convened, under his auspices, to consider the circumstances related to an incident at Wyee Colliery on 6 May 1999. 23 The ARC, by Memorandum of 22 March 2001, forwarded its Recommendations to the Director General. While some of the sections of the memorandum were blacked out by a claim of legal professional privilege by the prosecution, the following terms of the memorandum were revealed and are relevant: DEPARTMENT OF MINERAL RESOURCES CONFIDENTIAL MEMORANDUM A Matter Considered by the Assessment and Review Committee on 19/3/2001 To: Alan Coutts, Director General's Office - St Leonards From: Rod Morrison, Convenor Assessment and Review Committee Subject: ACCIDENT WYEE COLLIERY A Recommendation for the Department of Mineral Resources to prosecute Powercoal Pty Ltd and Messrs Barrett, Murray and Coutts Date: 22 March 2001 File: . . . . . . _________________________________________________________________ 1. Background 1.1 Accident On 6 May 1999, a drift haulage rope broke while a load was being lifted from the lower seam of the mine at Wyee Colliery. The load consisted of a dolly car containing four persons namely K Sellers driver, S Saurins, K Johns and P Piper. Attached to the dolly car was a flat top containing mine equipment. It is estimated the total weight was about 58.65 tonnes. As the conveyance was being raised, the haulage rope broke allowing the conveyance to travel down the drift. Three persons jumped off the conveyance and one person rode it to the bottom and as a result sustained minor injuries. The conveyance came to rest at the bottom of the drift. 1.2 Coronial Inquest There were no fatalities and hence no Inquest 2. Reference Documents . . . 2.1 Investigation Report . . . 2.2 Legal Advice by: . . . 2.3 Others . . . 3. Breaches 3.1 Potential Breaches of Legislation 3.1.1 Powercoal Pty Ltd - Sections 15(1) and 16(1) of the Occupational Health and Safety Act for failing to maintain and provide safe plant and for failing to provide training. 3.1.2 Mine Manager, Mechanical Engineer in Charge and Mine Electrical Engineer in Charge - Section 50(1) of the Occupational Health and Safety Act for having contravened Section 15(1) of that Act. 4 Legal Advice 4.1 . . . 4.2 Conclusions reached by Committee . . . the Committee had reached an unanimous decision to recommend to the Director General that a Prosecution be initiated against Powercoal Pty Ltd, subject to consultation being conducted with Powercoal Pty Ltd pursuant to the Premier's Memorandum and to recommend prosecutions against the Mine Manager, Mechanical Engineer in Charge and Mine Electrical Engineer in Charge. . . . 5 Matters Considered in Reaching Decision . . . 6. Recommendations The Committee recommends: . that the Department prosecute Powercoal Pty Ltd in respect of breaches of the OH&S Act Section 15(1) and 16(1) relating to the failure of a haulage rope at the Wyee Colliery on 6 May 1999, subject to consultation being undertaken with Powercoal Pty Ltd in accordance with the Premier's Memorandum. . that the Department prosecute M Barrett Mine Manager, B Murray Mechanical Engineer in Charge and David Coutts Mine Electrical Engineer in Charge. Approved (Signed) A Coutts Director General (26/3/01) 24 On 23 March 2001, the ARC members signed off on its recommendation to consult by way of a document: DEPARTMENT OF MINERAL RESOURCES CONFIDENTIAL ACCIDENT WYEE COLLIERY A Recommendation for the Department of Mineral Resources to consult with Powercoal Pty Ltd in accordance with the Premier's Memorandum No 97-26 =========================================================== The undersigned members of the ARC agree to the recommendations made for the advice of the Director General. Rod Morrison: signed (convenor) Frank Krstic: signed 23/3/01 (dated) Stede Coundouris: signed Rob Regan: signed 23/3/01 (dated) John Watson: signed 23/3/01 (dated) _________________________________________________________________ The recommendation of the ARC does not address anything but "consultation" in the heading. However in its body it refers generally to recommendations ". . . for the advice of the Director General". It is difficult to tell whether this is the original AR Committee decision or records a further meeting of the ARC after the decision was made to "consult". Nonetheless, the Director General on 26 March 2001 signed off on the decision to consult with Powercoal on two possible prosecutions. 25 The Recommendation was to prosecute Powercoal under both s15(1) and s16(1) of the OHS Act and required the Department to consult with Powercoal in accordance with procedures outlined in a Premier's memorandum which dealt with "Litigation involving Government Authorities". 26 On 21 April 2001, a consultation with Powercoal occurred. After the consultation the Department held a meeting and in discussion, not in writing, determined to proceed to prosecute but the Director General determined and directed that Powercoal should be offered a further conference to ensure the corporation "had ample opportunity to put its position". A deadline was set of 12 noon on 3 May 2001 for the consultation given the strictures imposed on the prosecution by the limitation period under the Act. 27 The offer of further consultation was conveyed to the solicitors for Powercoal. No further contact was made with the Department by Powercoal or, on behalf of Powercoal, through their solicitors. 28 On 3 May 2001, four Applications for Order which laid charges under the OHS Act were lodged in the Registry of the Industrial Relations Commission of New South Wales pleading one charge against each defendant, namely, Powercoal and Messrs Murray, Barrett and Coutts. 29 On 3 May 2001, the Department drafted a "Submission to the Minister" which submission was undated but signed off on various dates by relevant officers advising of the Department's intention to prosecute in these matters in the following terms: DEPARTMENT OF MINERAL RESOURCES - MINISTERIAL SUBMISSION Rec Find No: DMIN010123 File No.: C99/0367 SUBJECT: WYEE: OH&S MATTERS: CONSULTATION ISSUE Advice of intention to prosecute Powercoal Pty Ltd, a wholly owned subsidiary of Pacific Power for breach of occupational health and safety obligations. BACKGROUND . . . On the recommendation of the Assessment Review Committee, the Director General approved prosecution of Powercoal; M Barrett, Mine Manager; B Murray, Mechanical Engineer in Charge and David Coutts; Mine Electrical Engineer in Charge. . . . PRESENT POSITION While the consultation meetings may result in narrowing the issues presented to the Court, at this stage prosecution action is expected to be taken. The Ministerial submission was signed off as follows: (Signed A. Coutts) 3/5/01 DIRECTOR GENERAL (Signed Kelli Field) 7/5/01 POLICY ADVISOR (Signed) 8/5/01 CHIEF OF STAFF (Signed) 11/5/01 MINISTER Mr Coutts signed off the memorandum on 3 May 2001 with the following handwritten note: For information, Powercoal have not taken up the opportunity for a further meeting. Dept will proceed with prosecution action. Ms Field signed off the memorandum on 7 May 2001 with the following handwritten note: Prosecution action has begun. From the tone of the above, the submission was written prior to any final decision to prosecute. 30 On 3 May 2001, Mr Coutts signed a letter to the solicitor for Powercoal relevantly saying: . . . I have made a decision to prosecute Powercoal Pty Ltd for breaches under the Occupational Health and Safety Act . It is noted the Director General referred to "breaches" under the Act not "a breach" of the Act. 31 On 4 May 2001, Mr Morrison wrote a further Memorandum to the Director General, headed: TO: Alan Coutts, Director-General FROM: Rod Morrison, Assistant Director, Performance Improvement DATE: 4 May 2001 SUBJECT: Investigation into breakage of haulage rope of Wyee Colliery - 6 May 2001 . . . On the instruction of the Director-General, the summons for prosecution of Powercoal in this matter were executed and lodged. Similar action was taken in respect of the individuals involved. Mr M Barrett, Mine Manager, Mr B Murray, Mechanical Engineer in Charge and Mr D Coutts, Mine Electrical Engineer in Charge. Submitted for approval for acting (sic) being taken to prosecute Powercoal Pty Ltd in respect of breaches of the OH&S Act relating to the failure of a haulage rope and of the above individuals under Section 50(1) of the OH&S Act for having contravened Section 15(1) of that Act. (signed) Rod Morrison Assistant Director, Performance Improvement 3.5.01 (signed) (Approved) Director General, 3/5/01 32 The effect of this memorandum, which is relied upon by the prosecution as confirmation of the alleged written consent, is given particular consideration at paragraphs [90-91] of this judgment. It is noted that this Memorandum also states "the summons . . . were executed" inferring more than one charge was laid against Powercoal. 33 On 8 May 2001, Mr Coutts affirmed four affidavits with four documents attached. He affirmed the attached documents to be a: copy of a consent which was signed by myself and provided to Rodney Morrison, Assistant Director . . . prior to 3 May 2001. 34 Evidence revealed there should have been four such Consents, signed before 3 May 2001. None were produced. It appears after the Applications for Order were filed, a legal officer noted the Consents were not - as was the usual practice - attached to the Applications for Order as filed. The "copy" Consents were reproduced on 8 May 2001. They are unsigned and undated. They were affirmed by the Director General. The prosecution does not claim they are full copies of documents of the Consents it asserts were signed on or before 3 May 2001. SUBMISSIONS The Prosecution's submissions 35 The prosecution concedes for the Applications for Order to proceed the court must be satisfied, on the balance of probabilities, that written consent to institute proceedings was given by the Director General prior to the proceedings being instituted. The Prosecutor submits the court would be so satisfied in these matters. 36 The Prosecutor further submits the onus lies upon the defendants to demonstrate that they are entitled to relief from prosecution (Barron v Attorney General (NSW) (1987) 10 NSWLR 215 at 219 & 233; Ridgeway v The Queen (1994-1995) 184 CLR 19 at 43; Williams v Spautz (1992) 174 CLR 509 at 518-519). 37 The prosecution accepts Mr Morrison was not a prescribed officer for the purpose of s48(1)(a) of the OHS Act but submits the Director General was such a prescribed officer. It submits, as the prescribed officer, Mr Coutts gave written consent to the prosecutions before the proceedings were instituted by signing consents on or before 3 May 2001. Although the Consents to Institute Proceedings were not produced, the prosecution relies upon the particular recollection of the Director General as to the consent orders being brought into existence on or before 3 May 2001, the fact that copies were affirmed as early as 8 May 2001 and that the Director General has a recollection of signing them as one defendant carries his surname. 38 The prosecution further submits the prosecutions were also validly instituted by the Director General's approval on 26 March 2001 of the Recommendation as contained in the Memorandum of 22 March 2001. The approval also constituted the written consent. 39 The fact a process of consultation was to take place with Powercoal, in accordance with the Premier's Memorandum, the prosecutor submits, does not diminish the nature of the approval given by the Director General on 26 March 2001. 40 The prosecution concedes if matters were advanced on behalf of Powercoal which dissuaded the Department of Minerals and Resources from prosecution, then the decision to prosecute might have been reviewed. However, as such a circumstance did not arise, the decision to prosecute made in writing on 26 March 2001 was properly put into effect by the institution of proceedings at about 5.00 pm on 3 May 2001. 41 The prosecutor submits at no time did the Director General alter the decision to prosecute made in writing on 26 March 2001. The prosecutor concedes there were delays in the institution of the proceedings to allow the consultation in accordance with the terms of the Premier's Memorandum to be complied with, but submits there was no alteration in the written consent to prosecute of 26 March 2001. 42 Reliance is placed by the prosecution on a number of written Departmental records indicating the procedures followed before the decision to prosecute was put into effect. While it is not necessary for the prosecution to rely upon these written records individually to constitute "written consent" for the purpose of s48(1)(a) of the OHS Act, each of them, the prosecutor argues, satisfies that description. 43 The prosecutor submits generally: (a) the object or purpose of s48(1)(a) of the OHS Act was satisfied given the Director General's consideration of and approval for prosecution of the defendants prior to the prosecutions being instituted, and, (b) the technical requirement of s48(1)(a) of "written consent" was satisfied prior to the prosecutions of the defendants being instituted. The Defendants' Submissions 44 The defendants together make a number of general submissions then rely upon submissions specific to each of their circumstances. 45 The defendants submit the written consent of the prescribed officer to the institution of proceedings for an offence against the OHS Act must be given before the proceedings are instituted. The OHS Act requires, the defendants submit, the authority to prosecute must be possessed at the time the proceedings are instituted. 46 If a purported consent is in completely general terms, the defendants submit it will be impermissibly wide and ineffective. 47 The defendants submit the court should reject the proposition that Consent to Institute Proceedings documents were in existence prior to the institution of the proceedings. The court should find the affirmed "copy Consents" of 8 May 2001 have no evidentiary value. 48 The defendants submit it would be an abuse of process for the defendants to be subjected to a trial which, for reason of law, cannot result in a conviction being secured. As to Powercoal : 49 The defendants submit the court would not be satisfied from the evidence that there was a signed Consent to Institute Proceedings in existence prior to 3 May 2001. 50 Further, the recommendation for prosecution of Powercoal in the memorandum of 22 March 2001 and signed off by the Director General on 26 March 2001, the defendant submits, was conditional and much broader and, as no further written Consent to Prosecute was issued by a prescribed person, then the charge should be dismissed. Alternatively, the proceeding should be permanently stayed. As to Messrs Murray, Barrett and Coutts : 51 The three defendants, Messrs Barrett, Murray and Coutts, submit the court would not be satisfied from the evidence there were three signed "Consent to Institute Proceedings" in existence prior to 3 May 2001. 52 Further, the three defendants submit the terms of the Recommendations contained in the Memorandum of 22 March 2001 related to the prosecution of the three individual defendants are so broad as to constitute no Consent to Institute Proceedings against any of the three named defendants. Legal Principles 53 There are a number of legal principles applicable to a determination as to whether, in the circumstances, there was the requisite consent to prosecute. 54 In WorkCover Authority of NSW v Lucon (Australia) Pty Ltd (2002) 112 IR 332, the Commission sitting in Court Session stated "an Application for Summons" under the Rules might appropriately be considered as prescribed by the Rules as an Application for Order under the Supreme Court (Summary Jurisdiction) Act 1967 saying at [60]: . . . The effect of an order under s4(1)(a) is, in substance and in effect, "to summon" or "to summons" the person nominated to appear before the Court. The use therefore of the word "summons" and not "order" is of no consequence. It is trite that the law will usually look to the substance rather than the form of transactions and procedures to decide validity. and at [66]: . . . an objective consideration of the applications for summonses and the accompanying affidavits makes clear that they were applications for orders within the meaning of s4(1)(a) of the Summary Jurisdiction Act . The character of the documents is to be determined by considering their substantive character rather than by focusing on the manner in which they may be titled or upon the prosecutor's subjective intentions: The Queen v Loewenthal; Ex parte Blacklock (1974) 131 CLR 338 at 345 per Mason J; Minister for Youth and Community Services v Health and Research Employees' Association of Australia, NSW Branch (1987) 10 NSWLR 543 at 549 per Kirby P; and see also Taylor v Environment Protection Authority 50 NSWLR at 55-56 and Coulson v T Lambert Pty Ltd [1976] NSWAR 45 at 46. 55 These Applications for Order therefore have the effect of a summons to answer a charge where a defendant asserts the absence of consent to commence a prosecution, the point may be taken by motion to quash the indictment before the commencement of the trial or at any time during the trial (People v Bacon [1973] 1 NSWLR 87 at 95). 56 While the Commission in Court Session in Rodney Morrison v Joy Manufacturing Co Pty Ltd [2004] NSWIRComm 107 noted prosecutions of the present kind are not commenced by indictment but by an Application for Order, I have allowed the procedural point raised in the Notices of Motion to be heard before the commencement of trial. 57 Haylen J considered the proper construction of s48(1) in Rodney Morrison v Dartbrook Coal Pty Ltd and Tecrete Industries Pty Ltd [2002] NSWIRComm 127 saying [59]: In approaching the proper construction of s 48(1) the usual principles are applicable: the primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provision of the statute - the content, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed. Thus the process of construction must always begin by examining the content of the provision that is being construed. ( Project Blue Sky Inc. & ors v Australian Broadcasting Authority (1998) 194 CLR 355 [69] at 381). and at [60]: Although the Act imposes criminal penalties, s 48 is procedural - it forms no part of the offence and is not an element of the offence ( Price v Humphries; Turner v Tsaousis; Dever v Greevey; ex parte Creevey; MacCarron v Coles Supermarkets Aust. Pty Ltd). Thus, although the Act creates offences and provides a penalty, the ordinary rules of construction are applied - a strict approach is unnecessary (Beckwith v R (1976) 135 CLR 569 at 576 per Gibbs J). 58 In Dever v Creevey, ex-parte Creevey (1992) 1 Qd.R 232, Thomas J summarised the proposition which he viewed emerged from the Authorities dealing with a prosecution where the statute forbids its institution without an official consent. He proposed relevantly (at 247): 1 . . . 2 . . . 3 . . . 4 If at the end of the day it emerges that no consent exists, or that the consent is defective in the sense that the actual prosecution does not conform to it , the prosecution fails. 5 . . . 6 Amendments may be permitted but not to such extent as will convert a non-conforming prosecution into a conforming one, or a conforming prosecution into a non-conforming one. The extent of non-conformity in each case involves a question of degree. The question is really one of identity of the particular prosecution as the one to which the official has consented. It must be able to be seen as the same creature even though some of its features are differently described. Gilmore is a helpful example of a variance creating a different creature and Traveland of variances that did not. 59 It is for the defendant to show the written consent, which on its face, and without straining of words, does not relate to it (IR v Metz 31 TLR 401 as cited by Higgins J in Berwin v Donohoe (1915) 21 CLR 1 at 29). 60 In Traveland Pty Ltd v Doherty (1982) 41 ALR 563 (at 568) the Federal Court of Australia considered the effect and form of a Ministerial Consent under the Trade Practices Act 1974: It is clear from the provisions of s163(4) that the consent in writing of the Minister to the institution of a prosecution for an offence against the Act must be given before the proceedings are instituted. The sub-section contains no express provision as to the form which the consent should take or as to the detail or particularity with which the proceedings must be identified. The object of the requirement in s.163(4), that a prosecution shall not be instituted without the designated consent, is to protect the individual or corporation in danger of being charged, by ensuring that a prosecution will only be instituted if the Minister (or, where appropriate, his delegate) considers that it should. Consistently with that object, the requirements of s.163(4) will not be satisfied unless the Minister has in truth consented to the proceedings in question. It does not, however, follow that it is incumbent upon the Minister to restrict his consent to the institution of a prosecution for but one offence or that the consent should either define or particularize the precise offence or offences with which the prospective defendant should be charged. What is necessary is that the Minister should give his consent in terms which enable it to be said that the proceedings which are instituted have been instituted with his consent. It may be that this requirement precludes a consent being given in such wide terms as to be a consent to no proceedings in particular: see Crichton v Victorian Dairies Ltd [1965] V.R. 49 at p59). On the other hand, it does not preclude a consent to the institution of proceedings being worded in general terms with the identification of the precise offence, the particular wording of the charge and the content of any particulars being left to those responsible for the actual institution and conduct of the proceedings. 61 Section 48(1) of the OHS contains no express provision as to the form which the consent should take. While a general consent is permissible it cannot be in such mild terms as to consent to no prosecution in particular (Berwin v Donohoe (1915) 21 CLR 1 at 24-26,27-29,38; Crichton v Victorian Dairies Limited (1965) VR 49 at 59; R v Bacon (1973) 1 NSWLR 87 at 94G-95B; Gilmour v Midways Springwood Pty Limited (1980) 33 ALR 605 at 607.4; Water Board v Environment Protection Authority (1994) 83 LGERA 174 at 179.5; McConnell Dowell Constructions (Aust) Pty Ltd v Environment Protection Authority (CCA (NSW), 25 October 1996, unreported, BC9606890 at pages 13-14). 62 Schmidt J in Rodney Morrison v United Collieries [2002] NSWIRComm173 adopted the principles and reasoning enunciated in Berwin v Donohoe (1915) 21 CLR 1 by Isaacs J (at 24-26), with Powers and Higgins JJ in agreement, when she determined: . . . a challenge to consent in such a statutory scheme goes to jurisdiction and . . . the defendant raised the question of whether consent was given by the Director General to the . . . prosecutions, the presumption that consent had been given was displaced. The burden of proof thus fell upon the prosecutor to establish the Court's jurisdiction in these matters. 63 Her Honour in United Collieries then canvassed the application of these principles in Traveland Pty Ltd v Doherty by the Full Court of the Federal Court in Dever v Creevey (1992) 1 QdR 232 by the Queensland Supreme Court and in Palos Verdes Estates v Carbon (1992) 6 WAR 223 and MacCarron v Coles Supermarkets Australia Pty Ltd (2001) 23 WAR 355 by the Supreme Court of Western Australia. Her Honour as to the onus carried by the prosecutor who holds the burden of proof then determined at [70]: . . . I am of the view that proof to the criminal standard is not required in respect of consent to a prosecution under s48 of the Act. 64 I find, therefore, as to the validity of a Consent to Institute Proceedings under s48(1) of the OHS Act, the burden of proof falls upon the prosecution and the onus to be met by the prosecution is on the balance of probability. 65 In the present case, the proceedings for an offence against the OHS Act concern a place of work that is a mine. The "prescribed officer" for the purpose of s48(1)(a) of the OHS Act was therefore the Director General of the Department of Mineral Resources, namely, Mr Coutts. 66 The OHS Act does not provide for a prescribed form of written consent to be given for the purpose of s48(1)(a). Even if it did, strict compliance with such a form would not be necessary. Substantial compliance would be sufficient: (s80 Interpretation Act 1987). Further it is not essential that the requisite consent accompany the initiating process notwithstanding this was the practice of Powercoal. Consideration 67 As Higgins J stated in Berwin v Donohoe (1915) 21 CLR 1 (at 27): This is a very small objection, but it goes to jurisdiction. It is old but true law: If the Attorney General has not in fact consented to that prosecution, the prosecution must fail ( R v Rates (1911) KB 964). 68 To determine whether s48(1)(a) of the OHS Act was complied with, it is necessary to determine whether a written consent was given by the Director General of the Department who was, it is agreed, a prescribed officer in accordance with s48(1) of the OHS Act and Clause 3 of the Occupational Health and Safety (Administration) Regulation 1992, on or prior to 3 May 2001. 69 I must make a number of findings of fact from the evidence before there can be any determination as to whether there was the requisite written consent to prosecute under s48(1) in the circumstances before me. 70 Two propositions are to be considered: 1. That there was in existence four "Consent to Institute Proceeding" forms signed by the Director General, the prescribed officer, prior to the filing of the Applications for Order on 3 May 2001. 2. That the Memorandum of 22 March 2001, containing recommendations approved by the Director General on 26 March 2001 is the requisite written consent to institute proceedings. In support of this proposition the prosecution relies on other correspondence including the Memorandum dated 4 May 2001, a Ministerial Minute of 3 May 2001 as well as evidence of the procedures followed by the Department. As to the Consent to Institute Proceedings Forms : 71 The first proposition of the prosecution is that four Consent to Institute Proceedings Forms were signed prior to 3 May 2001 by the Director General. Those forms could not be produced. The evidence revealed a search was instigated after the Applications for Order were filed in the court on 3 May 2001. After the search was conducted and no forms were found, Mr Coutts, the Director General, affirmed on 8 May 2001, in four affidavits which had attached to each a Consent form unsigned, that they were "a copy" of a Consent he had signed "prior to 3 May 2001". He affirmed as to four separate Consents. His evidence as to his recollection of the four Consents prior to the filing of the Applications was as follows: Q. The consents were consents to institute proceedings? A. Correct. Q. Now the documents, I think you have agreed, were lodged some time in the afternoon of 3 May? A. I think that is correct, yes. Q. After the consultation process had closed? A. Correct. Q. May we take it that you did not sign the consent before you decided the proceedings would be instituted? A. That could be quite possible. It is not unknown for me having made a decision to prosecute in a particular matter to then have the consents prepared for my signature so that the necessary documentation was prepared on the basis that I am often not in the office and my availability can be a bit difficult to ascertain at times and that would have been the case in this particular matter. and: . . . Q. You are not able to say now, are you, when the consents were signed? A. I am not able to say on what date they were signed, no. Q. Your first affidavit said that you had signed these consents before 3 May? A. Correct. Q. Your second affidavit said you signed them on or before 3 May? A. Correct. Q. What was the reason for making that change? A. I think it was to perhaps be a little bit more precise. Given 3 May was the date on which we actually were lodging the proceedings that I couldn't be sure the exact date, although I was fairly confident it wasn't 3 May. Q. You say now, do you, having made this change to your affidavit, that it was a change to your evidence and it was a change that you made even though you thought it was likely they were signed before 3 May? A. I thought it was unlikely that they were signed on 3 May but, as I say, I cannot unequivocally say on what date they were signed. I mean the reason I recall signing them is because one of the defendants, as it happened, just happened to have the same surname as me so I was quite clear on the fact that I signed them. Q. That is in the case of Mr Cootes? A. Correct. Q. Between Thursday 3 May and Tuesday 8 May when you made the first the affidavit there were only two working days? A. Correct, Tuesday being the third working day. Q. And you suggest, do you, that they were lost, all four of them, to the point where no copy of the executed documents can be found anywhere in the plant? A. I do not suggest anything. It was reported to me, I think on Monday, that the consent documents could not be found with the papers that were lodged. I direct that a search be undertaken and those documents could not be found within the Department. I detected on a number of subsequent occasions that more detailed searches be undertaken and we still couldn't find those documents. Q. Not one copy of a single consent? A. That is correct. and: . . . Q. I would suggest to you it has nothing especial about it that arises out of your knowledge of what actually happened in this case, has it? A. . . . If you are asking me whether I signed them the answer is yes, because I have a clear recollection of signing them, both because of the number put before me, it was somewhat unusual, and the fact one of them was my namesake, which involved a quip from me because I am recommending prosecuting someone with the same name. 72 Therefore to persuade the Court that four Consents to Institute Proceedings were signed prior to 3 May 2001, Mr Coutts relies on the practice of the Department's Legal Office to send to him the Consent Forms after he approves the recommendations of the Committee; his particular recollection that there were a large number of prosecutions arising from the incident and his recollection that one of the defendants carried his surname. The original documents are not produced. No copies or filed copies are produced. There was no consent document filed with each prosecution as was the Department's practice. 73 Further, no contemporaneous memoranda has been produced which records or explains the loss of the four Consent to Institute Proceedings forms. There has been no document revealing the circumstances which brought into existence the 8 May 2001 affidavit and the "copy" of the Consents to Institute Proceedings. The only explanation afforded is after the court documents were filed the Consent documents, usually attached, could not be found within the Department and that situation caused the legal officer to draft copies (not exact) which the Director General then affirmed as to the four incomplete "copies" of Consents. 74 I find it relevant that while the Director General recalls he commented that one of the defendants carried the same surname as himself, that same surname had also appeared in the Memorandum of 22 May 2001, sighted and signed by the Director General on 26 March 2001. 75 There was also evidence to suggest within the same period the Director General was considering other prosecutions under the OHS Act related to other events. The Director General therefore had a number of matters related to Powercoal before him in the relevant period. 76 The "copies" of the Consents, as attached to Mr Coutts' affidavit, are not signed, are not dated, do not identify the offence to which consent is given and do not identify, by reference to any factual circumstance or date, the events to which any offence charged may be related. 77 Further, there was no reference made by Mr Morrison in his evidence to the existence of any such Consents to Institute Proceedings signed prior to 3 May 2001. While Mr Coutts in his affidavit stated the originals were signed by him and were then sent to Mr Morrison, Mr Morrison does not endorse this recollection. It is odd that four different Consents each have gone missing. 78 I reject any proposition that the Prosecution could rely on the Evidence Act, 1995 (s48(1)-(4)) to use the Consent copies as proof of the existence, or the content therein, of prior Consent to Institute Proceedings documents. 79 I have considered all the evidence placed before me. I am unable to conclude from that evidence that four Consents to Institute Proceedings came into existence prior to 3 May 2001. 80 I therefore reject the proposition the prescribed officer, the Director General of the Department of Mineral Resources, signed four written Consents to Institute Proceedings in accordance with s48(1)-(4) of the Act prior to the filing of these Applications for Order. The 22nd March 2001 Memorandum 81 The second proposition of the Prosecution is the Memorandum of 22 March 2001 containing the written recommendation to prosecute, and approved by the Director General on 26 March 2001, is the requisite s48(1) written Consent to Institute Proceedings by the prescribed officer. 82 The evidence reveals the memorandum of 22 March 2001 was not originally intended to serve as the formal Consent. Before the institution of proceedings the pro-forma form headed "Consent to Institute Proceedings" would be prepared by the Legal Branch of the Department for the signature of the Director General. However, as the authorities note s48(1) does not require a particular "form" to the Consent although the consent must be in writing. 83 In circumstances where those four Consents are all missing and, having found they did not exist on or prior to 3 May 2001, it is the earlier signed Approval of Recommendations by the Director General which approval is otherwise relied upon by the prosecution to be the valid consent. As to the Powercoal Recommendation 84 In the 22 March 2001 Memorandum, the Recommendation as to the prosecution of Powercoal was in the following terms: · that the Department prosecute Powercoal Pty Ltd in respect of breaches of the OH&S Act Section 15(1) and 16(1) relating to the failure of a haulage rope at the Wyee Colliery on 6 May 1999, subject to consultation being undertaken with Powercoal Pty Ltd in accordance with the Premier's Memorandum. 85 The Recommendation is for two prosecutions: one charge under s15(1) and the other under s16(1) of the OHS Act against Powercoal relating to the relevant issue. The recommendation names the relevant Act, two particular sections to be relied upon, the particular event and the date of the incident. I accept the terms of the recommendation against Powercoal could be held to be specific not general in its terms. 86 However, part of the condition attached to the consent to prosecute was the Department had to " consult" with Powercoal. Mr Coutts' evidence as to this consultation was: Q. Any consent signed before the consultation period was closed was obviously understood by you and everybody else to be qualified consent, would you accept that? A. I guess I would see it as a consent that could be withdrawn should I make a later decision not to proceed with the prosecution. Q. And a consent which could not be acted upon in the absence of a further indication from you that the prosecution was to be (sic) proceed? A. Under normal circumstances a consent would proceed on the basis of my original decision unless I was to direct otherwise. Q. I think you have agreed this morning that the institution of the proceedings awaited some further decision of yours after the consultation period was closed? A. That is correct. Q. And it is clear, isn't it, that the consent, if it had been signed earlier than noon on 3 May, could not have been acted upon until (a) after the afternoon of 3 May? A. In the Powercoal matter that we are talking about at the moment it would be fair to say that the consent would not be acted upon without some clarification with me by our legal counsel as to whether it should be done so and that clarification was given by me. 87 In accepting this evidence of Mr Coutts, in a consultation circumstance, as this was, he had to take a further explicit decision either to "clarify" the consent, or "direct otherwise". In normal circumstances, Mr Coutts said he would expect the original consent to proceed "unless I was to direct otherwise". However, these circumstances cannot be viewed as "normal". Consultation was conducted and proceedings were instituted but not in accordance with the alleged consent of 26 March 2001. If it was an approval, it was an approval for proceedings under s15(1) and s16(1) "subject to consultation". The court must therefore infer in accordance with Mr Coutts' evidence that he gave some further "direction". No written document, nor oral evidence of such a direction, which authorised the Department to discontinue a s16 prosecution but proceed with a s15(1) prosecution, has been placed before me. 88 For the "clarification", as Mr Coutts called it, the prosecution relied upon a number of Departmental documents, namely, a memorandum dated 4 May 2001, a Departmental contact with Powercoal's solicitors on or before 3 May 2001 and a Ministerial Submission dated 3 May 2001. An analysis of this documentation is necessary. There is no mention of the deletion of the s16(1) charge or any consideration to only proceed under s15(1) in any of these memoranda. 89 The memorandum dated 4 May 2001: DATE : 4 May 2001 SUBJECT : Investigation into breakage of haulage rope of Wyee Colliery – 6 May 2001 . . . On the instruction of the Director-General, the summons for prosecution of Powercoal in this matter were executed and lodged. Similar action was taken in respect of the individuals involved. Mr M Barrett, Mine Manager, Mr B Murray, Mechanical Engineer in Charge and Mr D Coutts, Mine Electrical Engineer in Charge. Submitted for approval for acting (sic) being taken to prosecute Powercoal Pty Ltd in respect of breaches of the OH&S Act . . . . 90 Although this memorandum is dated 4 May 2001, it is initialled by the Director General on 3 May 2001. Further, the incident referred to occurred on 6 May 1999 not 6 May 2001 as stated in the memorandum. The memorandum says "the summons . . . were executed" (emphasis added) and refers to Powercoal's prosecution for "breaches of the OH&S Act" inferring more than one prosecution was instituted. The memorandum is written in the past tense. Therefore, it must have come into existence after the filing of the Applications for Order. 91 The Memorandum of 4 May 2001 therefore could not constitute a written consent prior to the filing of the applications. Nor can it be held to be the "clarification" or "direction" that the Director General said was required to be in place before the Applications were filed as the memorandum is written in the past tense after, therefore, the proceedings were filed. A written Consent must issue before proceedings are instituted. Further, the tone of the document suggests a number of summonses against Powercoal were filed not a summons to prosecute under only one section of the OHS Act. Letter to Powercoal's solicitor on 3 May 2001 and The Ministerial submission by the Director General of 3 May 2001 92 I accept both documents were written before the Applications were filed. They do not refer to what specific prosecution is to be instituted. The Ministerial submission suggests more than one prosecution against Powercoal and the letter to the solicitors refers to "breaches" under the Act (see paras [29-30]). 93 I do not accept, in their terms, either correspondence endorses the alleged prior written consent of the Director General as the Prosecution submitted. In their form, both the letter and the Ministerial submission cannot be held to constitute written "Consent to Institute Proceedings" by a prescribed officer for the purposes of s48(1) of the OHS Act only in relation to a s15(1) prosecution. 94 At sometime there was a clarification or directive not to proceed with the s16(1) charge. There is no evidence as to when or why this decision, which altered the Recommendation of 26 March 2001, was made, or who made such a decision. 95 The alternative proposition is that the Director General was always of the view two summonses for breaches under the OHS Act would issue against Powercoal, one under s15(1) and one under s16(1). In such a circumstance, it could not be said the application which was instituted was that which had the written consent of the Director General. 96 There is no evidence the Director General consented to prosecute a s15(1) breach only. It was said in Traveland v Doherty (1982) 41 ALR 563 (at 568): What is necessary is that the Minister should give his consent in terms which enable it to be said that the proceedings which are instituted have been instituted with his consent. The prosecution relies upon the judgment of Haylen J in Rodney Morrison v Dartbrook Coal Pty Ltd and Tecrete Industries Pty Ltd [2002] NSWIRComm 127 where, it asserts, his Honour accepted and approved a Recommendation to Institute Proceedings in similar terms. I distinguish this authority. 97 In Dartbrook, Haylen J considered a memorandum of 21 February 2001 where the Director General approved the recommendation in the following terms at [8]): Recommendation . . . 6.1 The Committee recommends that a prosecution against Dartbrook Coal Pty Ltd and Tecrete Industries Pty Ltd be initiated by the Department, . . . . 6.2 The Committee recommends that provided 6.1 above is satisfied that a Statement of Facts be drafted, charges be filed and summonses issued by the Department. This action is recommended given that the statutory period for commencing a prosecution concludes on 31 March 2001. Mr Coutts hand wrote his approval of the recommendation in the following way: Report noted, approved to proceed in accordance with recommendation 6.1 and 6.2 above. 98 The matter then went back to the Committee on 19 March 2001. The Minutes of AR Committee state: Outcome The Committee confirms its earlier advice to recommend the prosecution of Dartbrook Coal Pty Ltd under s16(1) and Tecrete Industries Pty Ltd under s15(1) of the OH&S Act . . . The summons be redrafted by corporate counsel in the appropriate form for lodging with the Industrial Commission. A memorandum be prepared advising the Director General of progress in this matter. The Recommendation . . . reads: 6.1 The Committee recommends that a prosecution against Dartbrook Coal Pty Ltd and Tecrete Industries Pty Ltd be initiated by the Department, . . . The Director General approved this recommendation on 26 March 2001. 99 It was the second approval of Director General that was relied upon in Dartbrook by the prosecution before Haylen J as the prescribed officer's written consent. The second memorandum confirmed a reconsideration of matters by the AR Committee after the Director General put a condition on his approval. The second memorandum was then approved by the Director General. It is this second recommendation which the prosecution relied upon in the Dartbrook prosecution. There is no such reconsideration document in the matter before me. This second memorandum is signed by the Director General approving prosecution against Dartbrook on the same day as the prosecutions against Powercoal were recommended and approved. Haylen J's judgment reveals there was a statute of limitation pressure on the department related to that prosecution also. 100 It remains to consider whether the recommendation, approved by the Director General on 26 March 2001, which included a reference to a prosecution under s15(1) can be separated out and stand alone as the written consent. 101 I find this issue raises a difficult proposition. It is fact the Director General may have given a conditional approval to a prosecution under s15(1) and s16(1) of the OH&S Act. The approval was subject to consultation and after consultation the Director General gave evidence he had to "clarify" the charges. Can that approval by a signature and dating be read down to be a written consent to institute proceedings after consultation under s15(1) of the Act only allowing for the deletion of the s16(1) charge without explanation? 102 I am minded of the warning in WorkCover Authority of NSW v Lucon (Australia) Pty Ltd (2002) 112 IR 332 at [60] that attention must be focused on the substance of the documents and not what may be inferred as the intention of the makers. 103 The proceedings which were instituted must, as a matter of fact, be instituted with written consent and the prosecution which did proceed must be that one to which the prescribed officer has given written consent. 104 The actual prosecution which was instituted did not conform to the alleged consent of 26 March 2001. Even if it was a written consent, it was a consent to a prosecution under two sections of the OHS Act dependant on consultation. A further consideration is does the change represent a variation which puts the consent into the category of a non-conforming consent? In Dever v Creevey, it was held the extent of non conformity in each case involves a question of degree. (For a comparative analysis as to the issues of non conformity see Traveland v Doherty (1982) 41 ALR 563 and R v Moore (1947) W.N. (NSW) 133. Each case was determined on its particular facts). 105 Given that the Director General agreed his initial recommendation needed clarification before filing and that, in the circumstances, he would have had to give a further direction; that up until 3 May 2001 the recommendation of the Director General signed on 26 March 2001 needed clarification; that the letter to solicitors and Ministerial submission on 3 May 2001, the day of filing, still referred to breaches of the Act; that the memorandum of 4 May 2001 cannot be such a clarification as it is written in the past tense; that the recommendation as to a s16(1) prosecution did not proceed; that there is no clarification and no evidence as to why this non conformity occurred; that there was no written consent placed before the Director General which determined only a s15(1) charge proceed; that there is no evidence of any further re-consideration by an AR Committee as there was in the Dartbrook matter; that in the context of an awareness the Department issued formal Consent to Institute Proceedings which Consents are missing from this prosecution; that all the documentation suggests to the Director General that more than one prosecution was to proceed: I find the application which was instituted on 3 May 2001 under s15(1) of the Act against Powercoal is such as to satisfy there was no written consent by the prescribed officer to that prosecution which was instituted. 106 In the alternative, even if it be that the approved recommendation was a written consent to institute proceedings, it was a conditional written consent to institute proceedings under s15(1) and s16(1) of the OHS Act after consultation. I find there was a variation of that consent in the circumstances as outlined in para [105] above such as to make the proceedings which were instituted to be in such non conformance with the consent of 26 March 2001 as to be proceedings instituted without the written consent of the prescribed officer. 107 I do not believe the circumstances before me reveal the Application for Order instituted against Powercoal Pty Ltd on 3 May 2001 was that prosecution which was approved by the Director General as a prescribed officer on 26 March 2001. 108 I am not satisfied the Director General had laid before him sufficient detail to be able to conclude he made a written consent to proceed to prosecute Powercoal, after consultation, under s15(1) of the Act and under s15(1) of the OHS Act alone. 109 I am therefore not persuaded the Application for Order filed on 3 May 2001 when filed, was a proceeding instituted with the written consent of a prescribed officer. 110 I find therefore the court has no jurisdiction to hear the application for Orders against Powercoal Pty Ltd. As to the Consents to Institute Proceedings against Messrs Barrett and Coutts: 111 The 22 March 2001 Memorandum contained a Recommendation directed to the prosecutions of these three individual defendants. The Recommendation reads: that the Department prosecute M Barrett Mine Manager, B Murray Mechanical Engineer in Charge and David Coutts Mine Electrical Engineer in Charge. The recommendation does not mention the subject incident, the appropriate act or the relevant sections of any Act. 112 It is fact that the memorandum backgrounded the Director General as to the facts of the incident but I cannot be persuaded that the Court should presume to incorporate into the recommendation the words as contained in the memorandum under subsection 3 headed "Potential Breaches of the Legislation". That subsection 3 of the memorandum adds a reference to the OHS Act and a section. It states: 3.1.2 Mine Manager, Mechanical Engineer in Charge and Mine Electrical Engineer in Charge - Section 50(1) of the Occupational Health and Safety Act for having contravened Section 15(1) of the Act. However, this background does not connect the incident to the names of the individuals concerned while it mentions the OHS Act and relevant sections. 113 While there is no need for a consent to identify "the precise offence, the particular wording of the charge and the content of any particulars" and while a consent to the institution of proceedings can be issued in "general terms" it cannot be "in such wide terms as to be a consent to no proceedings in particular" (Crichton v Victorian Dairies Limited (1965) VR 49 at 59 as relied upon in Traveland v Doherty (1982) 41 ALR 563 at 568). 114 I do not find the 22 March 2001 Memorandum and the recommendation related to the three individual defendants as approved by the Director General, in its form or in its content, satisfies in any possible way a written consent to institute proceedings against these three individually named defendants as required under s48(1) of the OHS Act. 115 I find the Recommendation approved by the Director General on 26 March 2001, in its terms as contained in the 22 March 2001 Memorandum, is so general and in such wide terms as to be a consent to no proceedings in particular against any of the individual defendants. 116 I find therefore there was no written consents to institute proceedings by a prescribed officer in accordance with s48(1) of the OHS Act in place before the filing of the Applications for Order against the three named individual defendants on or prior to 3 May 2001. 117 I find therefore the court has no jurisdiction to hear the Applications for Order against Messrs Barrett, Murray and Coutts. ORDERS 118 I have made findings of fact which would ground a decision to order either a Dismissal of the proceedings or alternatively a Stay of the proceedings. The court invited submissions from all parties as to the effect of possible Orders on the Prosecution's right to appeal this interlocutory decision. The issue, as to the right of appeal of a prosecutor in such circumstances, arises given the recent decision of the Commission in Court Session in Rodney Morrison v Joy Manufacturing Co Pty Ltd [2004] NSWIRComm 107. The court considered the effect of s196 of the Industrial Relations Act 1996 (the IR Act) with s5F of the Criminal Appeal Act 1912 (the CA Act). 119 Section 196 of the IR Act lays down the procedure on appeal to the Full Bench of the Commission in criminal proceedings in the following terms: 196 Appeals from and references by members of Commission in criminal proceedings (1) This section applies (and the other provisions of this Part do not apply) to appeals and references to the Full Bench of the Commission in Court Session in respect of criminal proceedings taken before a judicial member of the Commission. (2) The Criminal Appeal Act 1912 applies to any such appeal or reference in the same way as it applies to an appeal or reference to the Court of Criminal Appeal in respect of criminal proceedings taken before a Judge of the Supreme Court in its summary jurisdiction. (3) For the purposes of subsection (2), a reference (however expressed) in the Criminal Appeal Act 1912: (a) to the Court of Criminal Appeal is taken to be a reference to a Full Bench of the Commission in Court Session, and (b) to the Supreme Court is taken to be a reference to the Commission in Court Session, and (c) to rules is taken to be a reference to rules of the Commission, and (d) to the Attorney General is taken to include a reference to the Minister, and (e) to the Director of Public Prosecutions is taken to include a reference to the prosecutor in the proceedings before the Commission in Court Session, and (f) to the registrar is taken to be a reference to the Industrial Registrar. (4) Subsection (2) does not apply to any provision of the Criminal Appeal Act 1912 relating to costs. 120 The CA Act enunciates the appeal rights of various Courts and at various stages of a trial. Relevantly, s5F states: 5F Appeal against interlocutory judgment or order (1) This section applies to: (a) proceedings (including committal proceedings) for the prosecution of offenders on indictment in the Supreme Court or in the District Court, and (b) proceedings under section 51A of the Justices Act 1902 , and (c) proceedings in Class 5 of the Land and Environment Court's jurisdiction (as referred to in section 21 of the Land and Environment Court Act 1979). (2) The Attorney General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in proceedings to which this section applies. (3) Any other party to proceedings to which this section applies may appeal to the Court of Criminal Appeal against an interlocutory judgment or order given or made in the proceedings: (a) if the Court of Criminal Appeal gives leave to appeal, or (b) if the judge, justice, justices or magistrate of the court of trial certifies that the judgment or order is a proper one for determination on appeal. (4) An appeal under this section shall, unless the Court of Criminal Appeal gives leave to adduce fresh, additional or substituted evidence, be determined on the evidence (if any) given in the proceedings to which the appeal relates. (5) The Court of Criminal Appeal may: (a) affirm or vacate the judgment or order appealed against, or (b) give or make an interlocutory judgment or order instead of the judgment or order appealed against. (6) If leave to appeal under this section is refused by the Court of Criminal Appeal, the refusal does not preclude any other appeal following a conviction on the matter to which the refused application for leave to appeal related. (7) A person may not appeal to the Court of Criminal Appeal under this section against an interlocutory judgment or order if the person has instituted an appeal against the interlocutory judgment or order to the Supreme Court under Part 5 of the Justices Act 1902. 121 In Joy Manufacturing, the Full Bench held the effect of the above provisions read together as at [53]: In so far as s5F is concerned, given our conclusion that the meaning of the term "indictment" is not extended by the definition in s2 of the Criminal Appeal Act to include "information" in its most frequently understood sense, "indictment" in s5F(1)(a) must be taken to refer to the regular criminal jurisdiction of the Supreme Court and not the summary jurisdiction of that Court. It follows that under s5F an appeal does not lie to the Full Bench of this Court from an interlocutory judgment or order of a judicial member of the Court made in the Court's summary criminal jurisdiction. And at [68]: We find that the Commission in Court Session does not have jurisdiction under the combined operation of s196 of the Industrial Relations Act and s5F of the Criminal Appeal Act to hear and determine this appeal against an interlocutory judgment or order made in proceedings to which s168 of the Industrial Relations Act applies. Further, for reasons we have given, the judgment and order of Marks J is not susceptible to appeal under the combined operation of s196 of the Industrial Relations Act and s5C of the Criminal Appeal Act. 122 Therefore if the court delivered a Stay of proceedings the prosecution would lose its appeal rights. 123 The prosecutor submits that an appropriate form of relief available in the event of a finding that the prosecutions were not validly instituted is that provided by the combined operations of s196 of the IR Act 1996 and s5AE of the CA 1912: Section 5AE provides: (1) At any time before the completion of proceedings before the Supreme Court in its summary jurisdiction, the Land and Environment Court in its summary jurisdiction or a Court of Coal Mines Regulation in its summary jurisdiction, the judge hearing the proceedings may, or if requested by the Crown must, submit any question of law arising at or in reference to the proceedings to the Court of Criminal Appeal for determination. (2) The Court of Criminal Appeal may make any such order or give any such direction to the court concerned as it thinks fit. 124 I accept for the provision of s5AE to be enlivened a request, pursuant to the section, can be made at any time up to the pronouncement of final orders (EPA v Land and Environment Court of NSW & Anor [2004] NSWCA 50). 125 I further accept, once the request is made, and it is made at the appropriate time, the trial judge should accede to the request. In DPP v Cassell and Anor (1995) 80 A Crim R 160 (at 164), Kirby P said in relation to s5B of the CAA 1916 (a similar section to section 5AE): Although the section is expressed in permissive terms, the obligation cast by it upon a judge of the District Court (as formerly upon the Chairman of Quarter Sessions) is a rigorous one. This was explained by Jordan CJ in Ex parte McGavin; Re Byrne and Ors (1945) 46 SR (NSW) 58 (FC), 60ff: The word 'may' is prima facie facultative only; but it was pointed out in MacDougall v Patterson (1851) 11 CB 755 at 773; 138 ER 672 at 672 that 'Where a statute confers an authority to do a judicial act in a certain case, it is imperative on those so authorised, to exercise the authority when the case arises and its exercise is duly applied for by a party interested and having the right to make the application. . . .' In my opinion it is the duty of a Chairman of Quarter Sessions to submit to the Court of Criminal Appeal any question of law which either party to the appeal may raise and ask to be so submitted unless, in his opinion, the question is so obviously frivolous and baseless that its submission would be an abuse of process. 126 I accept were the prosecutor to request me to submit a question to the Full Bench of the Commission then I must accede to the request for the following further reasons: s196 of the IR Act 1996 applies the provisions of the CA Act 1912 as to references to the Full Bench of the Commission in Court Session, in criminal proceedings by a judicial member of the Commission (s196(3)(e) of the Act and s7 of the Public Prosecution Act 1986). 127 The defendants concede on the authority of Joy Manufacturing at [53] if the Court stays these proceedings at this interlocutory stage there is no right of appeal. The defendants adopt the comment of the Full Bench as to appeal rights in such circumstances as are before me saying at [62]: . . . by means of a reference, by leave, to the Full Bench pursuant to 5AE of the Criminal Appeal Act to argue such a reference would have the effect of an appeal if leave is allowed. 128 The defendants alternatively submit if the Court ordered Dismissal of the proceedings an appeal is available under s5C of the CA Act 1912 which states: 5C Appeal against quashing of an indictment Where the Supreme Court or the District Court has quashed any information or indictment or any count thereof or the Supreme Court in its summary jurisdiction, in any proceedings to which the Crown was a party, has quashed any application made under section 246 (1) of the Criminal Procedure Act 1986 any charge specified in such an application, or the Land and Environment Court in its summary jurisdiction, in any proceedings to which the Crown was a party, has quashed any application made under section 41 (1) of the Land and Environment Court Act 1979 or any charge specified in such an application, or a Court of Coal Mines Regulation in its summary jurisdiction, in any proceedings to which the Crown was a party, has quashed any application made under section 246 (1) of the Criminal Procedure Act , as applied by section 152(3) of the Coal Mines Regulation Act 1982, or any charge specified in such an application, the Attorney-General or the Director of Public Prosecutions may appeal to the Court of Criminal Appeal against the order made, and such court may thereupon determine the appeal and if the appeal is sustained may make such order for the prosecution of the trial as may be necessary. 129 For authority in support of the above submission, the defendants rely upon the discussion in Joy Manufacturing at [60-61] and [66] and s196(3) of the IR Act: 60 It may well be the case that an application under s 4(1) of the Summary Jurisdiction Act can be regarded as an information. However, it is necessary to consider the context in which the term "information" is used. In Taylor v Environment Protection Authority, s 59 of the Pesticides Act provided that an offence could be disposed of by the Land and Environment Court sitting in its summary jurisdiction and that proceedings could be commenced by information. The EPA commenced the proceedings by way of a summons under Pt 75, r 7 of the Supreme Court Rules , as adapted by Pt 6, r 2(d) of the Land and Environment Court Rules . The Court of Appeal held that s 59(3) of the Pesticides Act was mandatory and required that proceedings had to be commenced by an information. The Court held that the summons was an information. 61 The circumstances before the Court of Appeal in Taylor v Environment Protection Authority were quite different to those that are before us. Even though, as we have said, an application under s 4(1) of the Summary Jurisdiction Act may, depending on its context, be an information, the context in which the word "indictment" is used in s 5F does not permit that conclusion for the reasons we have already addressed. . . . 66 There has been no order of the Court "quashing" any application under s 4(1) of the Summary Jurisdiction Act or any charge specified in such an application. The term "quashed" in the context of the first limb of s 5C was referred to in John L at 517 where Mason CJ, Deane and Dawson JJ said: the reference to an information being "quashed" in the first limb of s.5C should be construed as comprehending a decision by a judge of the Supreme or District Court dismissing an information on the ground that the information placed before the relevant court was insufficient properly to invoke the jurisdiction of the court in a case where proceedings are required to be commenced by information. 130 The defendants submit it is appropriate in the circumstances to dismiss the proceedings. 131 I accept there may well be an Appeal right following dismissal of proceedings in accordance with s196(3) of the IR Act and s5AC of the CA Act 1912. However I do not accept that in circumstances where I make no decision based on the merits of the matter, a dismissal of the proceedings is appropriate. I make Orders based upon a reasoning, that in circumstances there has not been a valid Consent to Institute Proceedings in any of these Applications for Order and the court therefore has no jurisdiction to hear the Applications. 132 These prosecutions reflect the consequence of a most serious incident and are prosecutions for alleged serious breaches of the OHS Act. Prosecution will be avoided by the defendants given the effect of the limitation clause under the statute, and the reasoning and possible order to Stay the proceedings. I believe, as a matter of fairness, it is proper to determine this matter in a manner which would preserve rights for the prosecution if they wish to pursue any appeal from my reasoning. 133 If requested, I would grant leave to the prosecution to apply for a Reference to the Full Bench of the Commission pursuant to s196 of the Industrial Relations Act 1996 and s5AE of the CA Act in the following draft terms: Given there were no written Consent to Institute Proceedings forms signed by the Director General on or before 3 May 2001, could the Memorandum of 22 March 2001 containing the signed Approval of Recommendations by the Director General on 26 March 2001 constitute a valid Consent to Institute Proceedings under s48(1) of the Occupational Health and Safety Act 1983. 134 I therefore publish my reasons with a DRAFT ORDER in the following terms: The Prosecutions in matters: No. 3074 of 2001 Rodney Morrison v Bradley Dean Murray No. 3075 of 2001 Rodney Morrison v Michael John Barrett No. 3076 of 2001 Rodney Morrison v Powercoal Pty Ltd No. 3077 of 2001 Rodney Morrison v David Glen Coutts be Stayed permanently. 135 The matter is to be re-listed in seven days from today's date as to the question of a Reference to the Full Bench of the Commission in Court Session. I will accept any suggestions from the parties as to the proposed wording of the reference to the Full Bench. 136 I stand the matter over for directions before me at 10am Friday 30 July 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.