Industrial Relations Commission of New South Wales in Court Session CITATION : Inspector Fiona Stewart v Siemens Dematic Pty Ltd (formerly Mannesmann Dematic Colby Pty Ltd) [2001] NSWIRComm 285 PROSECUTOR: Inspector Fiona Stewart PARTIES : DEFENDANT: Siemens Dematic Pty Ltd (formerly Mannesmann Dematic Colby Pty Ltd) FILE NUMBER: IRC 163 of 2001 CORAM: Haylen J Occupational Health and Safety Act, 1983 - s 16 - challenge to initiating process - verifying affidavit an alleged abuse of process if sworn without relevant knowledge - ability to cure an irregularity - particulars amount to three separate offences - duplicity - additional partiuclars not subject of original order - abuse of process - failure of additional particulars to specify time, place and manner in which offence committed - oppressive conduct by prosecutor - permanent stay - principles for permanent stay - notices of motion dismissed Practice and procedure - Occupational Health and Safety Act 1983 - s 16 challenge to initiating process - verifying affidavit an alleged abuse of process if sworn without relevant knowledge - ability to cure an irregularity - particulars amount to three separate offences - duplicity - additional partiuclars not subject of original order - abuse of process - failure of additional particulars to specify time, place and manner in which offence committed - oppressive conduct by prosecutor - permanent stay - principles for permanent stay - notices of motion dismissed CATCHWORDS : Industrial Relations Act 1996 s 168 s 170 Occupational Health and Safety Act 1983 s 48 s 49A Occupational Health and Safety Act 2000 Pt 7 s 31 s 139(1) s 141 Sch 3 cl 13(1) cl 17 LEGISLATION CITED : Supreme Court (Summary Jurisdiction) Act 1967 s 4(1) s 6 Evidence Act s 65(2) Industrial Relations Commission Rules Pt 28 r 219 r 217B(1) & (3) Federal Court Rules O 49 Boral Gas (NSW) Pty Ltd v Magill (1995) 58 IR 363. Concrete Constructions Group Ltd v WorkCover Authority of NSW (Inspector Dubois) (2000) 99 IR 16 Coombs v Patrick Stevedores Holdings Pty Ltd (2001) 103 IR 417 De Romanis v Sibraa [1977] 2 NSWLR 264 at 291 Environment Protection Authority v Sydney Water Corp. Ltd (1997) 98 A Crim R 481 Ex parte Ormsby and Sons Pty Ltd, Re Mason (1964) 81 WN (Pt1) NSW 286 at 290-291. Jago v The District Court of NSW (1989) 168 CLR 23 McConnell Dowell Constructors (Aust) Pty Ltd v Environment Protection Authority [2000] NSWCCA 367 (13 September 200, Spigelman CJ, Grove and Kirby JJ) CASES CITED : McGerty v Dairy Farmers Co-Operative Ltd (1989) 43 A Crim R 308 Newbury v Smith (1991) 36 IR 314 Ridge Consolidated v WorkCover 2000 100 IR 156 R v Brentford Justices, ex parte Wong [1981] QB 445 at 450 R v Hamzy (1994) 74 A Crim R 341 R v Merriman [1973] AC 584, R v Naismith [1961] 1 WLR 952 Whitten v Hall (1993) 29 NSWLR 680 WorkCover Authority (NSW) (Inspector Penfold) v Fernz Construction Materials Ltd (1999) 91 IR 119 at 126 HEARING DATES: 10/02/2001; 10/03/2001; 10/04/2001 DATE OF JUDGMENT: 11/09/2001 PROSECUTOR: Mr B J Gross QC with Mr B Docking SOLICITOR: Mr G Phillips Carroll & O'Dea LEGAL REPRESENTATIVES: DEFENDANT: Mr R J Burbidge QC with Mr I Latham SOLICITOR: Mr D Gardner Cutler Hughes & Harris JUDGMENT: - 45 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: HAYLEN J 9 November 2001 Matter No. IRC 163 of 2001 Inspector Fiona Stewart v Siemens Dematic Pty Ltd (formerly Mannesmann Dematic Colby Pty Ltd). Prosecution under s 16(1) of the Occupational Health and Safety Act 1983. JUDGMENT [2001] NSWIRComm 285 1 By order dated 24 January 2001 a judicial member of the Industrial Relations Commission of New South Wales in Court Session ordered the defendant to appear before a Judge of the Commission to answer the offence alleged by the prosecutor set out in the application for order filed in the Industrial Registry on 12 January 2001. That application alleged a breach of s 16(1) of the Occupational Health and Safety Act 1983 in that on 14 January 1999, at its factory premises at 24 Narabang Way, Belrose in the State of New South Wales, the defendant, being an employer, failed to ensure that persons not in its employment, and in particular, Shalishkumar Patel, were not exposed to risks to their health and safety arising from the conduct of its undertaking while they were at its place of work. The particulars of the charge were specified as follows: (a) the defendant was at all material times an employer and employed persons. (b) the defendant was at all material times in possession and control of its factory premises at 24 Narabang Way, Belrose in the State of New South Wales. (c) the defendant contracted BMP Electrical Pty Ltd [ACN 000569 620) to carry out electrical work at the said premises; (d) BMP Electrical Pty Ltd at all material times was an employer and employed Shalishkumar Patel; (e) the defendant failed to ensure that a place of work under its control, to wit, the main factory electrical switchboard room at the premises, was maintained in a condition that was safe and without risks to health and in particular: (i) failed to ensure that water did not leak on to the main electrical switchboard situated in the said room from overhead air conditioning pipes; (ii) failed to ensure that the floor space around the main switchboard was clear of stored material. (f) the defendant failed to maintain means of access to and egress from the said switchboard room that was safe and without risks to health; (g) as a result of the said failures, Shalishkumar Patel sustained fatal injuries. 2 On the Thursday before the five day hearing which was to commence on the following Tuesday after the intervention of a long weekend, the defendant filed and served a notice of motion. The motion sought that the summons be dismissed or, alternatively, that the proceedings be stayed permanently. The notice of motion specified the following grounds and reasons: 1. On 24 January 2001, Her Honour Justice Kavanagh pursuant to s 4(1) of the Supreme Court (Summary Jurisdiction) Act 1967 ordered the Defendant to appear to answer the offence alleged set out in the Application for Order filed on 12 January 2001. 2. The offence alleged was that Mannesmann Dematic Colby Pty Limited had 'failed to ensure that people not in its employment … were not exposed to risks to their health or safety arising from the conduct of its undertaking while they were at its place of work'. 3. Particulars of that charge included: (e) that Mannesmann Dematic Colby Pty Limited failed to ensure that a switchboard room under its control was maintained in a condition that was safe and without risks to health, and in particular: (i) failed to ensure that water did not leak onto the switchboard from overhead air conditioning pipes; and (ii) failure to ensure that the floor space around the main switchboard was clear of stored material; and (f) that Mannesman Dematic Colby Pty Limited failed to maintain a means of access to and egress from the said switchboard that was safe … (g) as a result of the said failures, Shalishkumar Patel sustained fatal injuries. 4. The omissions of the Defendant that constitute the offence as pleaded are: (i) failure to ensure that water did not leak, (ii) failure to ensure the floor was clear of stored material and (iii) failure to maintain safe means of access to and egress from the said switchboard each of which is said to have resulted in the death of Shalishkumar Patel. 5. The allegation of three offences in the same Summons is bad for duplicity. As the Prosecutor has declined to elect upon which of the charges she seeks to proceed, the Summons should be dismissed. 6. The Prosecutor on 18 September 2001 has purported to expand the charge by the addition of four sets of factual matters not referred to in the Application for Order or the Affidavit in Support, and has asserted her intention to adduce evidence in support of those additional matters. 7. No order had been made in respect of those additional matters. For the Prosecutor to proceed upon them amounts to an abuse of process. It can be seen that, in essence, the defendant alleged that the summons was bad for duplicity and further that the prosecutor, in adding four factual matters by way of letter to the defendant had expanded the charges and had done so without an order made under the Supreme Court (Summary Jurisdiction) Act and that such an expansion was an abuse of process. 3 On the same day the defendant also filed and served a Notice of Motion seeking to set aside a summons for production filed by the prosecution on 6 September alleging that the summons was a fishing expedition, was not based upon a reasonable supposition that the documents sought would be capable of being used as evidence, that the summons was not issued for a legitimate forensic purpose, that a number of the documents sought were irrelevant, that the summons was so wide as to be oppressive and that in substance it was an application for discovery and was covered in any event by the privilege against self incrimination. At the hearing senior counsel for the prosecutor indicated that there were discussions between the parties and it was likely that the differences between them would be resolved. I mention this matter to indicate a certain flurry of activity which occurred just prior to the commencement of the hearing and the defendant's reaction to it. 4 At the commencement of the hearing senior counsel for the prosecutor indicated that independently of a concern raised by the defendant an issue had arisen concerning the manner in which the proceedings were commenced relying as it did on the affidavit of Inspector Stewart in obtaining an order under s 4(1) of the Supreme Court (Summary Jurisdiction) Act 1967. The essence of that issue was whether or not Inspector Stewart, who had not been the investigating inspector in relation to this matter, had sufficient knowledge of the matter to form a view that a prosecution was warranted and thus to swear the affidavit in support of the application for an order permitting the proceedings to be commenced. In the event, the defendant undertook to file a notice of motion in order to formally raise that issue and to challenge the proper commencement of the proceedings. 5 On the second day of the hearing the defendant duly filed in Court a Notice of Motion seeking a declaration that the application for order filed by Inspector Stewart and issued upon the defendant on 24 January 2001 was invalidly issued. A further declaration was sought that the summons issued was out of time for a valid prosecution and that there be an order that the summons be dismissed. In the alternative to the declaration that the summons was issued out of time for a valid prosecution, an order was sought that the proceedings be permanently stayed. The grounds and reasons in support of the motion were as follows: 1. The Application for Summons filed on 12 January 2001 was supported only by an Affidavit deposed by Inspector Fiona Stewart. 2. The said Affidavit did not verify the allegations made in the Application for Summons, the deponent having no personal knowledge of the matters to which she deposed . 3. The said Affidavit did not state that the deposed had a belief in the matters set out in the Affidavit nor state any source or ground for any information and belief. 4. The Affidavit referred to in 1 above was invalid and could not therefore be used by the Prosecutor in support of the Application for Order. 5. Without an accompanying Affidavit no Application for Order can be properly made and no proceedings have been validly commenced. 6. The Summons issued is out of time having been more than two years after the alleged offence. This judgment deals with these preliminary issues. 6 As indicated earlier, the particulars of the charge allege that the defendant had contracted BMP Electrical Pty Ltd to carry out electrical work at its factory in Belrose. BMP had employed Shalishkumar Patel who was engaged on 14 January 1999 to work on the main electrical switchboard in the switchboard room of the defendant's factory. BMP had been contracted to supply and install the necessary electrical works during the building phase of the project. BMP had in turn sub-contracted the design component of that electrical work to another company, Enginuity Pty Limited. In early December 1998 the new factory together with its office complex had been completed but BMP continued to work on the site under a separate contractual arrangement with the defendant which required BMP to carry out additional electrical work including the relocation and commission of machinery and equipment at the site. 7 On 14 January 1999 the general manager of BMP, Mr Lucanus, as site manager attended, a site meeting called by the defendant's management. Following that meeting Mr Lucanus instructed Mr S. Patel to assist him in performing three jobs at the factory: (i) the installation of two exit lights; (ii) the installation of two new outlets; (iii) the installation of a single-phase circuit breaker on the factory main switchboard. Because of the lack of necessary cable for the other jobs it was decided to commence by installing the single-phase circuit breaker on the main electrical switchboard which was located in the main factory switchroom. Mr Lucanus instructed Mr S. Patel to take the cover off the switchboard and to get the circuit breaker and associated gear ready for the task of installation. Mr Lucanus left Mr Patel alone in the switchroom while taking a call on his mobile phone outside the room. While Mr Lucanus was absent an explosion took place. Mr Patel was seen running out of the internal switchroom into the factory with his body and clothing on fire. He sustained severe burns to 60 per cent of his body and subsequently died as a result of those burns on 21 January 1999 in Royal North Shore hospital. The explosion caused extensive heat and fire damage to the factory main switchboard and the contents of the switchroom. 8 A thorough search of the switchboard and the switchboard room was carried out following the explosion. No insulated tools were found and Mr Lucanus stated that he was unaware if Mr Patel was using an insulated tool at the time of the incident. 9 Four days prior to the incident Mr Lucanus had heard the sound of running water in the switchroom and had noticed water drops on some pipes that were running through the switchroom at the ceiling level directly above the main switchboard. Mr Lucanus had contacted the defendant's superintendent of works and told him to fix the water problem because otherwise the switchboard would blow up. Mr Lucanus inspected the switchroom the following day and could not see any water on the pipe. He had pulled the top cover off the switchboard on that occasion and had seen no water present in the board or on top of the board. 10 On the day before the accident another employee of BMP, Mr Ledua, was in the main swtichroom with Dhitesh Patel (the brother of the deceased Shalishkumar Patel). Mr Ledua heard water noises near the main switchboard and climbed on top of the switchboard to investigate. There he noticed water dripping from an air conditioning pipe on to the board. Mr Ledua reported what he saw to Mr Lucanus and Mr Lucanus apparently said that this had already been reported to the defendant. On the day of the accident Mr Lucanus did not check the main switchboard for leaking water nor did he carry out any other risk assessment of the main switchboard or the switchboard room prior to instructing Mr S. Patel to perform his work. 11 The prosecution alleged that the defendant did not ensure that the problem of water on or around the switchboard , which was reported to the defendant on approximately 11 January 1999, was rectified nor did the defendant carry out any risk assessment of the switchboard prior to allowing contractors to perform live work on the switchboard. Further, at the time of the accident, the switchboard room was being used by BMP as a storeroom to store electrical cables, tools and other materials which were being kept on the floor of the switchroom. In order to ensure the security of this material the external door to the switchroom was kept closed and held closed with a piece of rope, a step take apparently to prevent the materials from being stolen. The prosecution alleged that Mr Patel was not able to run outside through this external door after the explosion when he caught alight on the day of the accident. Mr Lucanus had stated that when the building work had been finished, BMP had been instructed by the defendant to remove its storage sheds from the site but to use the main switchroom as its storeroom. 12 The prosecution also alleged that neither BMP nor the defendant carried out any risk assessment of the access and egress to the main switchroom prior to the accident, especially noting the hazard created by the external door being kept permanently shut and secured by a rope. Further, it is said that at the time of the accident Mr S. Patel was not wearing suitable protective clothing for working on live electrical equipment and that BMP did not have a documented system or procedure for working on or near live electrical equipment. In addition, while Mr Patel did possess electrical qualifications from India, he was not a licensed electrician in Australia and had received no formal or documented training from BMP in relation to working on live electrical equipment. 13 In summary, these were the matters raised in the prosecution's affidavit in support of the application for an order under s 4(1) of the Supreme Court (Summary Jurisdiction) Act. 14 Two affidavits were read in support of the defendant's motion to dismiss the summons or alternatively to permanently stay the summons. Mr Gardner, a partner in the firm acting for the defendant, referred to particulars (e), (f) and (g) of the charge and noted that the affidavit of the prosecutor of 12 January 2001 involved an allegation, firstly, that water was dripping on to the defendant's electrical switchboard prior to the accident; secondly, that the defendant instructed its electrical contractor to store equipment in the switchroom in consequence of which Shalishkumar Patel was not able to run outside when the accident occurred; and, thirdly, that the external door to the switchroom had been secured on the outside with a piece of rope a consequence of which was that Shalishkumar Patel was not able to run outside when the accident occurred. It was then noted that by letter dated 18 September 2001 the prosecutor provided further and better particulars which added to the three allegations arising from the original summons. This letter appeared to repeat, in a different form, the existing particulars but added four new particulars. On the eve of the commencement of the hearing, two of these additional particulars were notified by the prosecutor as not being pressed, although that action itself, late in the day, brought further complaint from the defendant. For present purposes, it is sufficient to note that the following two matters were added in the prosecutor's letter of 18 September 2001: (d) failed to ensure there was no working on live electrical equipment in or about the defendant's factory; (e) failed to carry out a risk assessment. It was alleged that each new particular raised factual circumstances different from the original particulars appearing in the summons. 15 Mr Gardner's evidence was that on 17 September 2001 the prosecutor had advised an intention to call witnesses including witnesses from whom no statement appeared in the prosecution Brief of Evidence which had been served on the defendant on 5 March 2000. On the next day a statement of one of those witnesses was served. On 24 September the prosecutor gave notice, said to be out of time, under s 65(2) of the Evidence Act in respect of four witnesses whose statements appeared in the prosecution Brief of Evidence. On the same day a further letter confirmed the intention of the prosecutor to press the "further and better particulars" served by letter dated 18 September 2001. On 24 September 2001 a further letter was received from the prosecutor responding to a request for advice as to the documents upon which an expert witness for the prosecution, a Mr Clarke, had relied. On 26 September 2001 a further letter was received from the prosecutor stating that the expert witness, Clarke, had paid regard to certain photographs which the prosecution had served that day and had also accessed all WorkCover documents in the prosecution brief. In an annexure to that letter 39 sets of documents were listed which were said to have been available to Mr Clarke for the purposes of his report. Several were not in the brief of the prosecution previously served on the defendant. 16 Mr Gardner said that on 25 September 2001 he had written to the solicitors for the prosecutor asserting multiplicity in the summons and inviting the prosecutor to elect, if so minded, on which matter she would proceed. 17 In relation to material recently served on the defendant, Mr Gardner said that on 17, 18 and 19 September 2001 the prosecutor served material comprising approximately 80 pages. On 25 September 2001 he wrote to the prosecutor to ascertain whether that material was to be relied upon and its purpose. On 26 September 2001 the prosecutor by letter advised that it would rely upon such material as had been served. On 26 September the prosecutor also served photographs and a plan on the defendant. By letter dated 27 September 2001 the prosecutor advised of the intention to call the author of a report which was contained in the prosecution brief. 18 Mr Gardner stated that should the prosecutor be permitted to rely upon the additional material and the additional particulars contained in its letter of 18 September 2001, it would require technical explanation and would introduce new and complex technical issues which the defendant had no proper opportunity to address. This evidence was relied upon to support the defendant's allegation of an abuse of process raised in its notice of motion. A further complaint was made that the proposal by the prosecutor to rely upon statements of witnesses who were not able to be called and who were primary witnesses in relation to a specific particular, resulted in a disadvantage to the defendant which required that proceedings based on that allegation be stayed. 19 The managing director of the defendant, Mr Sexton, stated that in early February 2001 the defendant had been served with a copy of an order dated 24 January 2001 together with an application for order and the affidavit of Inspector Stewart in relation to this prosecution. The application followed a two year investigation by WorkCover of the accident which took place on 14 January 1999 in which Shalishkumar Patel had died. He said that the three specific charges alleged in the application had been investigated by the defendant and as a result it had elected to plead not guilty to the charges. Since that time the defendant had spent considerable time, money and effort to prepare its defence. The matter was set down for hearing commencing 2 October 2001 and the defendant was prepared to meet the three specific categories of charges on the dates set. 20 Mr Sexton said he was surprised to receive the letter of 18 September 2001 from solicitors for the prosecutor providing further and better particulars and in fact adding new matters to the charge. The matter had already been investigated by WorkCover and employees of the defendant had given clear statements and responses to specific questions asked of them. He could not understand why new charges were being added seven months after the first application and just two weeks before the scheduled hearing date. Mr Sexton stated that the new particulars had caused severe difficulty because his engineering director was absent at the time the new particulars were received and was not due to return until shortly before the hearing. A lot of time and money had been spent preparing the case in response to the first three charges and to properly prepare the case in relation to the new matters would require new experts to be engaged to separately address technical issues such as circuit settings and the highly technical matters referred to concerning switchboard separation. It should be mentioned here that these last two matters were ones ultimately not pressed by the prosecutor but were apparently "on the table" for more than a week and were not withdrawn until just shortly before the hearing commenced. 21 Overall, Mr Sexton said that the defendant was not able to prepare an adequate defence in relation to the additional matters within a period of two weeks especially in view of the fact that the company had been placed under extreme pressure to finalise the preparation of its original case. He expressed the view that the defendant could not properly defend itself when it was presented with this new material in such a general way and without the necessary time to prepare a response. Mr Sexton was not asked to clarify his affidavit in light of the withdrawal of two of the additional matters particularised by the prosecution, nor was he cross-examined as to what was involved in adequately preparing the case on the additional material recently sent to the defendant as well as the steps that were necessary to fully prepare for the additional two matters particularised by the prosecution. EVIDENCE REGARDING THE COMMENCEMENT OF THE PROCEEDINGS 22 The prosecutor, Inspector Stewart, gave evidence that she understood that an investigation was carried out by Inspector May in relation to the accident which occurred on 14 January 1999. She confirmed that it was her signature on the application for Order and that she had sworn the affidavit in support of the Application for Order. 23 Inspector Stewart accepted that she had played no active role in the investigation of the accident which had been conducted by Inspector May assisted by Inspector Marshall. She could not remember whether Inspector May had asked her to complete the documents for the filing of the application for an Order nor did she have any specific recollection of signing the documents, although she was able to identify her signature on them. 24 She was asked to attend the Elizabeth Street office of WorkCover by an employed solicitor, Ms Reid. She believed she went to the office at the request of the legal officer to sign the application on behalf of Inspector May. She understood the documents had been prepared by Ms Reid as a solicitor for WorkCover and that they accurately set out the outcome of the investigation of the accident by Inspector May and also the allegations which would be made on behalf of the WorkCover Authority as a result of that investigation. Her evidence in this regard was not based upon a recollection of the events but was based upon "practice and experience". 25 Inspector Stewart's recollection was that she was not involved with the case, although she knew of the case because she worked with Inspector May who was working on it. Her knowledge of the case was gained from a general interest in the work carried out by her colleague, Inspector May, but nothing beyond that. 26 When at the WorkCover office with Ms Reid she could not recall having a conference about the matter but does remember that the documents for the application were already prepared. Inspector Stewart was not sure as to which specific documents were there nor did she remember if she was asked to read through the documents. She did not remember the exact conversation with Ms Reid. 27 In cross-examination, it was put to Inspector Stewart, and she agreed, that it was her understanding that she had no choice but to sign the document because Inspector May was not there; she was being told by a superior within the organisation, someone in the legal department, that because of Inspector May's absence it would be necessary for her to sign the relevant documents. 28 Inspector Stewart had no recollection of actually reading through the documents and she was not sure whether or not she simply signed the documents as directed. That was a possibility. She did not read through a collection of background documents dealing with the investigation and the accident before signing the application for order and the affidavit. 29 Ms Reid's evidence was that upon getting the prosecution file she read it and then proceeded to draft the pleadings based upon her assessment of that material. 30 It was her belief that she had contacted Inspector Stewart to attend the office in Elizabeth Street, which she did. She recalled Inspector Stewart coming to her office in Elizabeth Street in the early afternoon of 12 January 2001 which was the date on which the proceedings were due to be filed in order to meet the statutory time limit for the commencement of a prosecution under the Act. When Inspector Stewart arrived she was shown into a conference room which was connected to the legal service branch and Ms Reid handed her all of the documentation that she was to sign. Ms Reid let her read through the documents and she believed she left the Inspector alone in the conference room for that purpose. Ms Reid returned to the conference room and went through the documentation with Inspector Stewart and discussed with her that documentation. They both then signed the documents and Ms Reid administered the appropriate oaths for the affidavit and witnessed Inspector Stewart's signature of the documents. 31 As Ms Reid recalled, Inspector Stewart read the application for order, the proposed summons and prosecution document and the affidavit in support of the application. It was Ms Reid's normal practice to ask the deponents to read the contents of the affidavit to ensure that the contents were true and correct and, if so, to administer the appropriate oath and then sign the documents herself. This practice was observed on this occasion with Inspector Stewart and at no stage did the Inspector take issue with either the commencement of the prosecution or the formulation of the matters in the documents. 32 In cross-examination Ms Reid confirmed that she asked Inspector Stewart whether or not she was happy to sign the documents. She did not give the Inspector any other material to read other than the affidavit and the application, but was satisfied that the Inspector was prepared to sign all documents. 33 Inspector May, in evidence, confirmed that she had carried out an investigation into the accident which occurred on 14 January 1999 at the defendant's premises. She was assisted in that investigation by Inspector Marshall. 34 Inspector May confirmed that a number of difficulties had arisen including personal illness which left her in a position where the proceedings had to be commenced just as she was about to take leave. She said that she spoke to Inspector Stewart and asked her if she was happy to be the informant and Ms Stewart had agreed to do so. Inspector May briefed Inspector Stewart about the case while handing over the file; she explained the whole of the investigation and what was required. Inspector May asked Inspector Stewart if she had any problem dealing with the case but Inspector Stewart did not seem "phased" by performing the task asked of her. 35 In their discussion, Inspector May spoke of what had happened with the investigation into the fatality and also explained the effect of the outcome of the investigation and what facts had been ascertained. Inspector May had put together a summary of events together with her recommendations which were given to the legal branch. Inspector May was relying on the legal branch to pull all these matters together and to hand it over to Inspector Stewart. 36 In cross-examination Inspector May said that Inspector Stewart was happy to undertake the task that she had asked of her and also confirmed that she was relying on the legal department to take steps in relation to the prosecution. It was her expectation that the legal department would do what was necessary to ensure that the proper processes continued to be followed. She anticipated that somebody would have a session with Inspector Stewart so that she might be fully familiarised with the investigation and checking it out, if necessary, if she felt that was appropriate to do so. THE SUBMISSIONS 37 For the defendant it was submitted: (a) that the commencement of the proceedings were a nullity; (b) that the charge was bad for duplicity; (c) as a subsidiary to duplicity the additional particulars supplied by letter dated 18 September 2001 could not properly be taken into account; (d) that the matter be stayed because the proceedings as currently constituted are oppressive; secondly, that there had been such procedural irregularity (whilst curable pursuant to the provisions of s 170 of the Industrial Relations Act) it ought not to be cured but ought to the be subject of an order under sub-section (4) such that the Commission exercises its wide discretion not to further proceed; thirdly, that there had been insufficient particularity of at least the two additional matters sought to be added by the letter of 18 September 2001; and, lastly, in relation to the two additional matters there is a lack of identification of time, place and manner which is so fundamental as to make it inappropriate that they should be permitted to proceed. 38 The defendant's broad propositions were that it was faced with a case which was unknowable, which was not in accord with the requirements that both the common law and authorities of the Commission in Court Session say are needed and, finally, it was confronted with a mass of material which was uncertain in its operation in that the defendant did not know whether reliance was to be placed upon it or whether or not it was required in some way to meet it. 39 In relation to the challenge to the effectiveness of the initiating documents it was noted that the application stated that Inspector Stewart's affidavit verified the allegations made and was attached to the application seeking an order. That was said by the defendant to be a reference to the requirement of Pt 28 of the Industrial Relations Commission Rules and in particular a reference to r 219. That rule provided: Proceedings before the Commission for an offence other than contempt must unless otherwise provided be commenced by application for summons and be accompanied by an affidavit verifying the allegations made. Certain matters were to be stated in the application. 40 From the opening given by the prosecutor, and from later evidence, it was submitted that Inspector Stewart had no knowledge of the matters to which she swore, primarily because of the absence of Inspector May who actually carried out the investigation. It was said that the supporting affidavit merely nominated the section of the Act as required by r 219 but did not in any way seek to verify the allegations. The affidavit did accurately record that two other Inspectors had attended the worksite and had carried out an investigation. Where the affidavit spoke of the investigation revealing certain matters it was submitted that that material would be inadmissible because the deponent had no personal knowledge of the matters whatsoever, the investigation being carried out by Inspectors May and Marshall. It was accepted by counsel for the defendant that this affidavit did not need to be read for the purposes of maintaining the proceedings but that it was simply open to the defendant to see if the proceedings were properly commenced. The requirement of the Act was that proceedings be instituted: s 49 of the 1983 Act is repeated in the new Act in a similar way, requiring proceedings to be commenced within two years of the act or omission alleged to have constituted the offence. 41 The defendant then relied upon Ridge Consolidated v WorkCover (2000) 100 IR 156 for the proposition that, where defects in initiating the proceedings may be cured by the defendant's appearance or by order of the Court, nevertheless, the date in question to be looked at is that upon which an order was made by the presiding judge. It was submitted that the affidavit is deficient in that it purported to do no more than state the contents of a document prepared by another person, was lacking in averment that the deponent believed that which the document contained or the use of some similar formula such that there was plainly a deficiency in the commencing documentation. The effect of that was to force the prosector back to the order itself which is dated 24 January 1999 which was outside the time limit set by s 49. 42 In relation to the challenge based upon duplicity, the defendant noted that the allegation under s 16(1) of the Act alleged certain acts or omissions on 14 January 1999, but it would be demonstrated from other material that the date moved around quite considerably. The defendant saw the particulars as alleging three separate matters: that water leaked on to the switchboard; that the floor space was not clear; and, that the defendant failed to maintain means of access. 43 It was said to be appropriate to recognise that in a broad general sense these matters arose at the same time and at the same place but only in a broad sense. The first particular about the water dripping was now said to come from air conditioning pipes and that is a part of the switchboard and in the switchboard room associated with the top section of the switchboard. The particulars then moved from the overhead section to the floor of the switchroom, which was not clear of stored material. This is said to have impeded the exit of Mr Patel or perhaps required him to pass by an area of danger in order to get out. Thirdly, the particulars asserted that the defendant failed to maintain means of access that were safe. That is said to flow from the fact that an outside door was locked, and from other documents supplied to the defendant, it became clear that it was locked from the outside. It was also said a piece of rope secured the door in a closed position - that rope itself being on the inside of the door. The defendant submitted that these were three different propositions, but accepted that it may be said by the prosecution that they all arose out of the one set of circumstances, seeking to invoke s 49A of the 1983 Act or, alternatively, s 31 of the new Act. This required consideration of the fact that the new Act repealed the 1983 Act with certain savings. The defendant submitted that the savings provisions, found in Sch 3 of the new Act, which came into operation on 1 September 2001, resulted in the savings provisions being limited to Pt 7 of the new Act. That did not include s 31. 44 A further issue raised by the defendant was that, whereas the affidavit supporting the application for Order particularised three matters, there were now two further allegations raised against the defendant. These issues had turned up in the last few weeks before the hearing. The prosecution had opened by referring to the fact that there was a site meeting, but no mention was made at that meeting of work to be performed at this place. That may have consequences for the contractor but the defendant was at a loss as to what consequence it had for it: the purpose of the site meeting itself was so that others, such as the defendant, could be informed of what work was to be performed. 45 In relation to Mr Patel exiting the room, it seemed as though he did so through the door which is now said to have been closed by a rope; there was nothing in the statements seen so far of an allegation about any ropes. 46 A report from an expert, Mr Clarke, suggested that an explosion was caused by some conductive item touching the switchboard. That sounded to the defendant like a tool had become connected with two busbars which accorded with the defendant's own experts. The report obtained by the prosecution did not give much of a clue as to what was to be met by way of expert evidence by the defendant. The report then mentioned that the risk of a tool short-circuiting live conductors was removed if specialised tools were used. The only statement provided to the defendant was that after the accident the sub-contractor required insulated tools to be purchased by their its employees; there was nothing whatsoever to suggest that Mr Patel on the day was using an insulated tool. It also appears that, at the end of a search, no such insulated tool was found amongst the debris at the switchroom site. 47 The report then went back to four days prior to the incident, when Mr Lucanus said he saw some water drops on pipes. In the prosecution's opening it became clear that the prosecution was relying on condensation forming on the outside of a pipe. It was now clear from the prosecution's opening that they were talking about condensation, and not about a leaking pipe. Nevertheless, the defendant had been served with a number of reports, some early in the process and some very late, of an expert nature which appeared to proceed on the basis that what was happening was the leaking of water from the sewerage. It seems to have been accepted that pure water (such as condensation) is not a conductor and it therefore needed something else to become a conductor. Thus, in the prosecution's opening, it was postulated that water dripping through the switchboard dried on a continuing basis so that a residue built up because of picking up dust or some other substance. Thus, the dripping of condensed water could become a conductor. That was one theory advanced by an expert although there was also the theory that the likely cause was a tool falling into the works. 48 Thus, the defendant submitted, it was attempting to discern the case which was brought against it after all this material was served. The defendant said it was in "hopeless confusion". The confusion continued because, after Mr Lucanus' initial complaint about water leaking which could blow up the switchboard, on the following day he pulled the cover off the switchboard and found no water. This appeared to the defendant to discount dripping water as causally connected to the explosion and the fatal injuries received by Mr Patel. 49 In relation to the use of the switchroom as a store room, it was not until the morning of the first hearing day that the defendant understood that there was any allegation about a piece of rope on the inside of the door. There was nothing of that kind in the material served on the defendant. 50 In the material served on the defendant there was a statement from Mr Dhitesh Patel. He said that, after the accident occurred, he spent time with his brother prior to the arrival of the ambulance and in the presence of other persons. He gave a version of events upon which, apparently, the prosecution intended to rely. His brother told him that he felt some water on his hand when working on the switchboard - water was coming from the top, being water from the toilet pipe. A leak from the toilet pipe had since been disavowed by the prosecution. However, the statement was that there was water leaking from the joint of the toilet pipe. He was doing all the right things, checking that the circuit was tight enough and not loose and once he checked the circuit breaker everything was okay, then he felt water on his hand and looked up and saw sparking on the top. He dropped his screwdriver and ran out. At the same time everything was blowing up. A string had been tied on the door to keep it closed because the room was being used as a storeroom and it was to prevent goods being stolen. Because the door was locked he had to run from the room using the other door and he was running into the area which was blowing up and which made him worse. That was the case that the defendant was preparing to meet together with statements from Mr Matthews and other documents in relation to the three particulars. 51 Over the last two weeks before the hearing things changed as set out in Mr Gardner's affidavit. Of particular note was the letter from the prosecutor dated 17 September 2001 advising that it intended to call 22 witnesses but was having difficulty in locating Mr D Patel and some other witnesses; it was proposed to rely on the provisions of the Evidence Act to tender their statements. The operation of the Evidence Act and the Industrial Rules required the giving of reasonable notice of such an intention, that notice being specified as 21 days by the Rules of the Commission. The hearing was, however, to commence well within the 21 days. The letter of 18 September 2001 was unheralded and not in reply to anything; it was close to the hearing date and provided four additional particulars. Each of those particulars were analysed to indicate the problems that they created for the defendant, both as to the case to be met and what specifically was being alleged. Senior counsel for the defendant accepted that some of the particulars which had been added by the letter of 18 September 2001 had been withdrawn at 8 45 am on the first day of the hearing, namely, 2 October 2001 but the simple withdrawal of reliance on those particulars did not detract from the effort required to meet this newly particularised case in a relatively short time and the difficulties it caused the defendant in the preparation of its overall case. 52 There was a further letter dated 24 September 2001 from the prosecutor indicating that Mr D Patel was missing and that his statement would be sought to be admitted pursuant to the provisions of s 65(2) of the Evidence Act. The same approach was taken to the evidence of Mr Matthews. In relation to the additional particulars, the defendant wrote to the prosecutor and asked if the prosecutor intended to press those new particulars. The prosecutor confirmed that it would press the additional particulars. An issue then arose as to what matters were relied upon by Mr Clarke in preparing his report. The prosecutor informed the defendant there was additional material, including photographs. On 26 October 2001 the defendant received a series of photographs which were said to be those to which Inspector Clarke had regard at the time of his report. A list of additional documents considered by Inspector Clarke was provided by the prosecutor with a request as to which of them were required by the defendant. The prosecutor had also indicated a number of documents relating to the Coroner's report had been provided in early September 2001. Discussion at the bar table during argument indicated that one or two documents may not have been served on the defendant, including a summary of recommendations or opinions of the Inspector at the Coroner's Inquiry, which would not be relied upon by the prosecution but which would be made available to the defendant. 53 On 19 September 2001 a report of Enginuity Pty Limited was served. On analysis by the defendant it seemed to add marginally to the type of case already disclosed by other material served by the prosecutor and, although noting that the cause of the initial arcing fault had not yet been established, there were a number of possibilities itemised as to the cause of the arcing. One such possible cause was identified as leaking of water rather than dripping condensation from the air conditioning pipe. The report pointed to the fact that the damage to the upper section of the switchboard was directly below the cable entry point, suggesting a means by which the water may have penetrated, but there was nothing provided to the defendant to support this approach. Photographs and other material simply showed the whole of the structure had been completely destroyed. The report then had a discussion of certain items of safe operation which were not provided in or at the switchboard. This material was disclosed to the defendant on 19 September 2001, and on 26 September 2001 the prosecution indicated to the defendant that it relied upon all material served upon the defendant by the prosecutor. 54 On 27 September 2001, the Thursday before the hearing was to commence on the following Tuesday, the prosecution sent a letter advising that it had a summons returnable on that day addressed to Mr Thompson who had prepared a report for the sub-contractor BMP. The letter stated that should the report be produced then it was proposed to call Mr Thomson on the following Friday 5 October 2001. In the same letter the prosecutor advised that one witness had been found but not others listed as witnesses to be called by the prosecutor. 55 Later, on 27 September 2001, presumably after the summons to produce had been dealt with, the prosecutor served a copy of M0r Thomson's report together with some photographs. This report caused considerable concern to the defendant because it was said to embark upon "a whole number of new ideas". This report apparently proceeded on the basis of what the deceased told his brother and involved the presence of water. At this stage Mr D Patel was not available and his evidence was to be dealt with under s 65(2) of the Evidence Act. 56 The report also raised a wholly new idea, namely, the possibility that a screwdriver could have dropped, might be excluded by the presence of "interphase barriers". That was a wholly new idea which had to be considered, firstly, as to whether they were present in the switchboard and whether they could act in such a way as to exclude the possibility of a dropped screwdriver causing the electrical explosion. The report proceeded on the basis that there was some sparking or arcing occurring in the switchboard which Mr Patel had attempted to move away from very quickly. Up until this material had been received, the defendant was proceeding on the basis that the switchboard exploded in consequence of which Mr Patel suffered fatal injuries. A statement was repeated that water was coming from a joint above the switchboard. This appeared to be an expert making a case based upon water leaking from toilet pipe joints, which was entirely new and carried with it potential argument about pollution, that is, the water not being pure and therefore being a conductor. A further idea was then canvassed as to the advisability of having turned the power off before this work was started. This seemed to be a notion since picked up in more recent correspondence by the prosecutor. A notion was also introduced of an insulated electrician's screwdriver, a proposition, the defendant said, which had not emerged until that time. The report then dealt with extensive technical matters. There were pages of such material requiring the defendant to scrutinise it in order to see what use was being made of the material. There was also introduced discussion about insulation in a way that had not been canvassed previously. A further suggestion was that the circuit breaker settings should have been changed so as to cut in more effectively and more quickly. This appeared to have been an idea picked up in a later particularisation served by the prosecution in its letter of 18 September 2001. In short, it was said that there were new ideas raised, all at variance with everything understood about the facts by the defendant, and conveyed to the defendant during the considerable period of time it had been otherwise being preparing the case on an understood and established basis. 57 The case opened by the prosecution was that water, in a condensate form, making its way down the cable, through the cable entry point to get into the cabinet in such a quantity as to boil away over a period of time but leaving a residuum of such magnitude as to enable an arc to be created. There were elements of this case in the material served upon the defendant. Mr Thompson's report was different. Further, if the case was to proceed on the basis that water dripped over a period of time to enable a build up, Mr Thompson thought that might take up to 35 days. That would be different to the charge which was permitting water to drop on to this fitting on 14 January 1999. There was also a theory in Mr Thompson's report whereby air may have been caught or contained within the switchbox such as that when the cover was removed it allowed a sweep of oxygen to come in, thus resulting in the explosion. Further, it seemed there was a proposition that polluted water had itself in some way broken down a laminated timber busbar. All of these variations simply caused more confusion for the defendant in having to work out the case it had to face. 58 On Thursday and Friday before the hearing further material was served upon the defendant by the prosecutor. This all occurred just before a long weekend and forced upon the defendant a re-preparation of its case. 59 The letter of 18 September 2001 was indicative of the aggressive way in which this prosecution had been conducted. After the particulars had been added to there was then a "series" of material served relevant to it, culminating on Friday afternoon with the defendant receiving photographs which made up part of Mr Thompson's report and which supported the additional particulars. The defendant was left the weekend to wrestle with these matters, and then some of those matters were not pressed and the defendant was not advised of this until just before the hearing commenced. The introduction of so many red herrings or false issues had been enormously time consuming and had detracted considerably from the type of preparation which the defendant expected to undertake. This approach, it was submitted, demonstrated an extraordinarily cavalier attitude on the part of the prosecution. 60 The prosecutor's answers to these submissions were numerous. Some of the answers are compelling while others require closer analysis. In essence, the prosecutor submits that the approach urged by the defendant involves crippling the criminal law by technicalities and that, properly approached, the proceedings were validly commenced in accordance with the rules of the Commission and that the application for orders specified the time, place and manner of the offence. Even if wrong in relation to this submission, the operation of s 170 of the Industrial Relations Act 1996 or s 6 of the Supreme Court (Summary Jurisdiction) Act 1967 would operate to save or cure any defect of the nature relied upon by the defendant. Further, there was no duplicity because only one charge was specified and this was not altered by the fact that there were a number of particulars of the way in which the offence was committed. In relation to the more general attack, the prosecution submitted that there could be no embarrassment or surprise to the defendant because on a proper analysis of the material supplied all the necessary material to defend the case had been in the hands of the defendant in a timely way which permitted it to prepare its case and to know which case it had to meet. In addition, the prosecution said that the defendant's approach was erroneous in that it required the Court to supervise the institution of the prosecution and the maintenance of the proceedings in such a way as to be contrary to established principle. This was no part of the Court's proper function. 61 In relation to the issue of the presence of water either by condensation or from a leaking pipe the prosecutor pointed out that these issues were raised in Inspector Stewart's affidavit and an interview statement of Mr Sexton dated September 2000 and in a statement of Mr Lucanus of September 1999. It was submitted that these matters were live issues for a considerable period of time and were issues on which the defendant was on notice. There appeared to be no complaint about the material supplied in relation to using the switchroom as a storage room in an inappropriate way and thus creating a risk to safety. The question of access and egress from the switchroom was dealt with in Inspector Stewart's affidavit. The issue of working with live electricity was dealt with directly and indirectly in a number of paragraphs of the affidavit of Inspector Stewart. The statements of Mr Digby and Mr Beck, served on the defendant, dealt with this issue and what instructions had since been given in relation to working "live". The issue of the failure to conduct a risk assessment was raised in two paragraphs of Inspector Stewart's affidavit. It was noted that Mr Sexton's affidavit did not raise any serious complaint in relation to the allegations about working live and failing to conduct a risk assessment. Even in relation to the two additional particulars now not pressed by the prosecution, it was submitted that there was adequate material provided in advance of the hearing to the defendant which would have permitted it to prepare and conduct its defence. 62 As to the commencement of proceedings, the prosecutor submitted that r 217B applied to this particular proceeding rather than the r 219, which required an affidavit to be filed in support of an application for an order to commence proceedings under the Occupational Health and Safety Act. Rule 217B(1) required that proceedings before the Commission in Court Session for a relevant offence, unless otherwise provided, must be commenced by an Application for an Order under s 4(1) of the Supreme Court (Summary Jurisdiction) Act 1967, as applied to the Commission by s 168 of the Industrial Relations Act 1996. The form of the application was set out and what must be stated in it, and sub-rule 3 provided that the Commission may require the prosecutor to file, in support of an application for an order filed under sub-rule 1, an affidavit verifying the allegations made in the application and/or a minute of the order claimed. The prosecutor submitted that r 217B was clearly an easing of the stricter requirements of the former r 219. In this regard it was noted that the Full Court in Ridge Consolidated Pty Ltd v WorkCover Authority of New South Wales (Inspector Mauger) [2000] 100 IR 156, in dealing with the apparently stricter provision of r 219, nevertheless held that a challenge based upon an affidavit which did not verify all the grounds sought in the summons failed because all that was required to validly commence a proceeding under the Occupational Health and Safety Act (and in accordance with r 219) was the filing of a summons. The prosecutor submitted that it would be an odd result that, following the introduction of r 217B which on its face imposed a less onerous obligation on the commencement of proceedings, the approach of the Full Court in Ridge would not prevail. 63 In relation to the challenge based upon alleged duplicity, the prosecutor submitted that s 49A of the 1983 Act did survive the repealing Act for relevant purposes but in any event was not needed. Even if there was duplicity it would not lead to the proceedings being dismissed but would merely require that the prosecution be put to its election as to which matter it wished to proceed upon. 64 In the present case there was only one offence alleged, namely, that the defendant had failed to ensure that a place of work under its control, the main factory electrical switchboard at its premises, was maintained in a condition that was safe and without risk to health. Where a number of acts of a similar nature committed by one defendant are connected with one another in the time and place of their occurrence or by their common purpose in such a way that they could fairly be regarded as forming part of the same transaction or criminal enterprise, there is no duplicity (R v Merriman [1973] AC 584; R v Hamzy (1994) 74 A Crim R 341). These cases emphasised, so it was submitted, that it was unreal to present anything other than the total picture of the activities alleged against the defendant. Moreover, the prosecution only had to establish one of the particulars alleged in order to succeed against the defendant. 65 Concerning the application for permanent stay of the proceedings, the prosecutor submitted that there was no justification for such an order. It had been consistently stated by the superior courts that a permanent stay should only be granted in rare or special circumstances and it would require some fundamental defect which goes to the root of the trial such that there is nothing that a trial judge can do in the conduct of a trial to relieve against the unfair consequences flowing from the prosecutor's acts or omissions. This was not such a case. 66 The prosecutor also noted that at no stage had the defendant sought an adjournment because of the nature or volume of material recently supplied by the prosecution. It was submitted that ultimately the issue is whether the defendant could have a fair trial and that involved consideration of whether or not there were case management procedures and simple rulings on evidence and admissibility which might be used by the court to ensure that the defendant received a fair trial. Any combination of these measures was available, if necessary, to protect the defendant against unfairness in the conduct of the trial. DELIBERATION 67 By the conclusion of the submissions it was accepted by all parties that the commencement of these proceedings was governed by r 217B, a rule which commenced operation a few months prior to the filing of the application for an Order. It therefore followed that pursuant to r 217B(3) an affidavit verifying the allegations made in the application was not a mandatory requirement and that an order under s 4(1) of the Supreme Court (Summary Jurisdiction) Act 1967 could be made in the absence of a verifying affidavit. It was a matter solely for a judge of the Commission as to whether or not a verifying affidavit was required. The point made by the defendant, however, was that in providing an affidavit by a person who had no knowledge of the investigation and who was unable to verify the matters necessary to commence a prosecution, the Commission was deprived of an opportunity to consider whether or not a direction should be made under r 217B(3). It is implicit in this argument that, had the Commission made such a direction, the affidavit of Inspector Stewart could not amount to an affidavit "verifying the allegations made in the application". 68 The defendant's argument proceeds on the basis that Inspector Stewart had no knowledge of the investigation, or otherwise was so removed from the process of evaluation of material relevant to whether or not a prosecution should be launched as to make it impossible for her to properly swear a verifying affidavit in accordance with the provisions of the Rules. On a consideration of all of the evidence, I am not convinced that the defendant's contention in this regard is correct. The position might be different if there was no more to consider than Inspector Stewart's sworn evidence. Her evidence was that she understood Inspector May had conducted an investigation into this incident, but she could not recall whether Inspector May asked her to fulfil the role involved in initiating the proceedings in the Commission, nor did she have any specific recollection of signing the documents which were filed in the Commission's registry but which she was able to identify as carrying her signature. She could not recall when she was asked to see the solicitor from WorkCover, Ms Reid, nor did she have any recollection of being involved in the case. She could not recall being involved in a conference with Ms Reid and she was unsure of what documents were shown to her by Ms Reid when she attended the legal branch offices of WorkCover. She could not recall the exact conversation she had with Ms Reid nor did she have a recollection of actually reading through the documents provided to her by Ms Reid. She was not sure if she simply signed the documents. She did understand the documents prepared by Ms Reid to accurately set out the outcome of the investigations of the accident by Inspector May and that they were to form the allegations made on behalf of the WorkCover Authority as a result of that investigation. Inspector Stewart knew of the case and that Inspector May was working on the case, and that the statutory time limit was coming up soon because of working with Inspector May and having a general interest in the work carried out by Inspector May as a colleague. 69 The evidence of Inspector May was much more positive and detailed. She was able to recount the variety of personal and work circumstances which led her to a position where she was aware that the statutory time limit to commence proceedings in this case was fast approaching and that her own circumstances would not allow her to sign the necessary documentation and swear the supporting affidavit after the matter had been submitted to the legal branch. It was in those circumstances that she spoke to Inspector Stewart and asked her if she was prepared to be the informant because of the looming limitation on the capacity to commence the proceedings. They were working together at the time and Inspector May briefed her about the case because she was not prepared to hand over a file to someone without briefing them on its contents; she explained the whole investigation to Inspector Stewart. She informed Inspector Stewart of what was required and asked her if she had any problem with performing the role involved in commencing the proceedings, and she was told by Inspector Stewart that she was prepared to perform that task. Inspector May said she had explained to Inspector Stewart what had happened with the investigation, the fact that it involved a fatality, the fact that it involved two parties, that it involved an employer and told her the outcome of the investigations and what facts had been ascertained. She prepared a summary of events together with her recommendations which had been prepared for the legal branch. It was her expectation that the legal branch would pull it all together by providing the necessary documentation for filing in the registry of the Commission. 70 Ms Reid said she had read the prosecution file which contained factual statements, interviews and reports that had been gathered in the course of the investigation which was under the control of Inspector May. She then proceeded to draft the pleadings based upon her own assessment of the material. There was a note on the file from Inspector May concerning her unavailability in relation to signing the documents - she read that note and made contact with Inspector Stewart to come to the office of the legal branch. When Inspector Stewart attended the office she was shown into a conference room and Ms Reid handed her all of the documentation that she had to sign and she was left to read through those documents. She was left in the room alone for that purpose and then Ms Reid returned and went through the documentation with her and discussed the documentation with the Inspector. She asked the Inspector to read the contents of her affidavit and to ensure that the contents were true and correct and, if so, to then sign the affidavit. Inspector Stewart took no issue with the content of the documents nor with the commencement of the proceedings and Ms Reid then witnessed her signature. In cross-examination Ms Reid said that she had asked Inspector Stewart whether she was happy to sign the documents which the Inspector confirmed. 71 On this material I am satisfied that, despite Inspector Stewart's own lack of memory, she was in fact at the time sufficiently informed and briefed about the investigation and had sufficient opportunity to make up her own mind on the question of the appropriateness of commencing proceedings to have sworn a verifying affidavit if called upon by a member of the Commission pursuant to r 217B(3). I have reached this conclusion even though Inspector Stewart was led in cross-examination to agree that when she signed the document in Ms Reid's office she did so in compliance with a direction from a senior officer. Nevertheless, both Inspector May and Ms Reid discussed with her the investigation and the desirability of commencing proceedings under the Act. The evidence strongly suggests that Inspector Stewart satisfied herself on these matters prior to swearing the verifying affidavit. Further, it is clear from paragraphs 7 and 8 of Inspector Stewart's affidavit that the investigation was carried out by other inspectors and what that investigation revealed. The investigating inspectors were named as Inspectors May and Marshall. It therefore cannot be assumed that, when the affidvit was considered by a judicial member of the Commission for the purposes of making an order, that the member would have been left with the impression that Inspector Stewart had personally investigated the accident. If anything, paragraphs 7 and 8 would have raised the issue of Inspector Stewart's lack of involvement in the investigation: no further verifying affidavit was required. This is not surprising in circumstances where there was evidence of an investigation carried out by WorkCover inspectors, together with the results of that investigation - the Commission was entitled to proceed on the basis that after legal advice, a considered view had been reached that a prosecution under s 16(1) was warranted. 72 This was not a case like Whitten v Hall (1993) 29 NSWLR 680. In that case a constable had laid an information in circumstances where at the time he did not have necessary expert evidence to support the charge and had simply commenced the proceedings in order to bring it within the time limit for such matters. The process also involved a primary decision maker who was not the constable and the evidence before the court demonstrated that that person had not yet made a decision to prosecute. Thus, the matter fell within that class of case where there was a deliberate attempt to gain further time in which to reach the necessary decision and obtain the necessary evidence to prosecute (R v Brentford Justices; ex-parte Wong [1981] QB 445 at 450. A prosecution commenced in such circumstances was an abuse of process. In the present case there was no additional evidence to be obtained nor was the decision to commence a prosecution dependent upon the decision of another person. There was no commencement of proceedings simply to "stop the clock" of the time limitation while evidence was being gathered to see if there had indeed been an offence committed. 73 In the course of addresses senior counsel for the defendant accepted that a verifying affidavit supporting an application for an order did not have to be read for the purposes of the proceedings. The defendant asserted that it was entitled to investigate and challenge the manner in which the proceedings were commenced and to do so on the basis that the "deponent had no knowledge of the matters to which she was … asked to swear by reason of the absence of the inspector who apparently carried out the inquiries". Section 48 of the Occupational Health and Safety Act 1983 nominated the persons who could commence proceedings and that provision included an Inspector such as Inspector Stewart. There was no requirement for a preliminary hearing and thus considerable importance is said to be attached to the requirements of s 48 and r 217B. While I can accept much of what has been submitted by the defendant on the importance of commencing a prosecution under the Act and that there may be grounds to challenge the commencement of a proceeding on the basis of an abuse of process, I do not consider that the evidence in this case discloses any such abuse. 74 Although concerned with the previous stipulations of r 219, consideration needs to be given to the judgment of the Full Court in Ridge Consolidated Pty Ltd v WorkCover Authority of New South Wales (Inspector Mauger) (2000) 100 IR 156. In that matter, the defendant sought orders setting aside or dismissing the summons or, in the alternative, a permanent stay of the proceedings on the grounds that the accompanying affidavit did not verify the application as was required by r 219 in that it did not verify that the alleged offence arose as a result of the appellant's undertaking, that it did not verify in what respects an undertaking was conducted by the appellant, and it did not verify that the alleged offence occurred at the appellant's place of work. Thus it was said that the affidavit failed to verify properly the allegations in the application and the consequent summons was bad. At first instance it was held that, although involving a criminal prosecution, the provisions of the Industrial Relations Act may well allow the Court to give orders in proceedings for further clarifying steps to be taken by a prosecutor and this may even involve curing defects through the application of s 6 of the Supreme Court (Summary Jurisdiction) Act 1967. On appeal, the Full Court stated that s 4(1) of the Summary Jurisdiction Act, when read with r 219(1) of the Commission's Rules required the proceedings to be commenced by the filing in the registry of an application for summons stating the various matters set out in the rule. On the proper construction of those provisions it was held that the proceedings were properly and validly commenced when, without more, the application is filed in the registry. It was noted that this construction was supported by the judgment in the Court of Criminal Appeal in McGerty v Dairy Farmers Co-Operative Limited (1989) 43 A Crim. A 308. (see par 28 - 32 inclusive). The necessary step to commence the proceedings was the filing of an application for an order and the issuing of a summons. If there was any irregularity, such as with the verifying affidavit, that could be considered as an irregularity and should not invalidate proceedings which have been duly commenced within time. On the approach of the Full court in Ridge, if there was an invalidity or irregularity in the verifying affidavit of Inspector Stewart, that was a matter, if necessary, which could be cured by the application of s 6 of the Supreme Court (Summary Jurisdiction) Act with s 170 of the Industrial Relations Act. It should, however, be noted that the rule being considered by the Full Court in Ridge was somewhat more stringent than the provisions of r 217B which applies to the present case. I accept the prosecutor's submission that it would be an odd and unintended result for the provisions of r 217B to be treated in such a way as to lead to the result that this summons be regarded as a nullity or that the proceedings be otherwise stayed because of some irregularity found in the verifying affidavit. It may therefore be of little moment whether or not the evidence supports the conclusion that I have reached as to the state of Inspector Stewart's knowledge and capacity to swear a verifying affidavit because, if there was any such irregularity in that verifying affidavit consistent with the judgment of the Full Court in Ridge, it is a matter that could be rectified. 75 What I have said in the foregoing paragraphs is sufficient to dispose of this challenge mounted by the defendant. The defendant did refer to other cases, including single member judgments of the Commission, but in the light of the judgment of the Full Court in Ridge, I do not consider it necessary to canvass those issues, some of which I was advised, in any event, were subject to appeal proceedings. Nor do I consider it necessary to deal with the extensive submissions for the prosecutor to the effect that the Court should not become involved in reviewing the commencement of the prosecution or the performance of the prosecution, relying upon McConnell Dowell Constructors (Aust) Pty Ltd v Environment Protection Authority [2000] NSWCCA 367 (13 September 2000, Spigelman CJ, Grove and Kirby JJ). It is sufficient for me to indicate that there is some force in that submission. 76 The next issue concerns the challenge based upon the alleged duplicity of the charges. The defendant relied upon what was described as the clear differences in the particulars: water leaking onto the switchboard; the floor space not being clear and the failure to maintain a means of clear access. The problem was now said to be exacerbated by the additional two particulars, namely, the failure to ensure that there was no working on live electrical equipment and the failure to carry out a risk assessment. It should be immediately stated that in no relevant sense is this challenge supported because of the claim made by the defendant that there is now a confusing, if not contradictory, range of materials, reports and statements relied upon by the prosecution. That material is directed to the more general challenge and the application for a permanent stay. 77 When this prosecution was commenced, s 49A(1) provided that more than one contravention of, so far as is relevant here, s 16, by a person "… that arises out of the same factual circumstances may be charged as a single offence or as separate offences". Sub-section 3 provided that a single penalty only may be imposed in respect of more than one contravention of any such section that is charged as a single offence. It is clear from the Minister's second reading speech that this provision was introduced to overcome the problems of duplicity which were bedevilling the Act as disclosed in Boral Gas (NSW) Pty Ltd v Magill (1995) 58 IR 363. It seems abundantly clear that the provision was aimed at overcoming technical objections such as the present submission for the defendant. 78 In my view, the prosecution is correct in submitting that it charged but one offence in relation to which a number of particulars were supplied. What is required is that the contravention "arise out of the same factual circumstances". In this case the dripping water, whether it be from a sewer pipe or from condensation on an air-conditioning pipe above the switchboard, the cluttered state of the switchboard room, the inability to escape any dangerous situation that arises in the switchboard room, a failure to ensure that there was no working on live electrical equipment and the failure to carry out a risk assessment of the work on this day are particulars that are so closely linked that it may be said of them that they "arise out of the same factual circumstances". The risk of working on this particular switchboard was capable of involving all of these various elements without spreading into separate and different offences. These particularised matters are not so unconnected as to fall outside the approach permitted in s 49A of the Act. 79 A similar issue was dealt with by the Wright J, President in Coombs v Patrick Stevedores Holdings Pty Limited (2001) 103 IR 417 where, amongst other matters, the defendant argued that a number of particulars in proceedings brought under s 15(1) of the Act were in fact separate charges and therefore bad for duplicity. The peculiarity of that case was that it involved conduct over a period of time and was thus an allegation in the nature of a continuing offence. Perhaps in only a minor way is that element present in this case. His Honour considered s 49A of the Act and its history and stated that it was sufficient to note that it permits a prosecutor to lay charges in ways which might not be available but for its enactment, and to some extent at least, it goes some way to minimising the practical consequences of charges which appear to involve some overlap and possible double jeopardy, at least in the sense considered by the High Court in Pearce v The Queen (1998) 194 CLR 610. His Honour was able to conclude in that case that there was only one charge and that was not altered by a number of particulars: indeed, the approach was contemplated by s 49A. In my view that analysis has equal force in the present case and I am of the view that no duplicity arises. 80 The prosecutor relied upon the judgment of the Court of Criminal Appeal in The Environment Protection Authority v Sydney Water Corporation Limited (1997) 98 A Crim R 481 and in particular the following passage in the judgment of Gleeson CJ, speaking for the court: In a preliminary ruling, which has not been challenged, Talbot J held that it was appropriate for the prosecution to be conducted upon the basis that only a single offence was being alleged, and rejected a submission that the alleged failure in respect of each of the above items must be regarded as a separate offence. In his ruling on that point, Talbot J said: 'Evidence of lack of maintenance in respect of any one or more components of the plant might be used to show that the industrial plant as a whole was not maintained in an efficient condition. It is open for the prosecution to establish that the individual items … form part of the industrial plant which is subject to the obligation created by condition L4. (The prosecutor) particularised the allegation of breach of condition L4 by identifying parts of the industrial plant which the prosecution claims were not maintained in breach of the condition.' Charging a single offence in such circumstances is consistent with authority and practice in criminal cases. (see, for example, DPP v Merriman [1973] A C 584; (1972) 56 Cr App R 766; Hamzy (1994) 74 A CrimR 341.) 81 There is no novelty in provision being made for a number of offences to be dealt with in the one information or summons. In Newbury v Smith (1991) 36 IR 314, Gray J referred to the rules of the Federal Court dealing with prosecutions noting they were to be commenced by summons upon information and were to contain specified matters. His Honour then repeated an observation he had made in Steele v Mayne Nickless Ltd (1990) 34 IR 112 at 113: As I read the provisions of Order 49 of the Federal Court Rules and the forms referred to in the Schedule to those Rules there appears to me to be no difficulty about the inclusion in an information or a summons of reference to more than one offence. To the extent to which the Court in Dillon v Chin made reference to the existence of a practice, whereby only one charge could be the subject of a single proceeding, my experience as to a practice in relation to the bringing of criminal proceedings, in this Court differs substantially from that statement. His Honour then continued: Since making those remarks in Steele's case, my conviction that what was said in Dillon v Chin is wrong has been fortified. In Evans v Federated Ironworkers Association of Australia (1968) 11 FLR 437, the Commonwelath Industrial Court deplored the practice of making each separate charge the subject of a separate information and summons. In Linehan v Australian Public Service Association (4th Division Officers) (1982) 2 IR 470 at 479; 66 FLR 90 at 107, Fitzgerald J said: One minor complication which has intruded when the dispute has concerned the process of inferior courts has been that, in such cases, statute has required not merely that each charge or count relate to only one offence but that each information or summons be similarly confined. The basis for the additional restrictions seems to have been to ensure a separate hearing for each separate offence, perhaps to avoid embarrassment to magistrates … the current practice of commencing separate proceedings in this Court even in respect of what are plainly connected activities, as in the present matters, presumably stems from a misconception that separate process for each separate offence is a general aspect of duplicity and uncertainty, and is in my view unwarranted. I do not consider that such a course is required by the use of the singular number in Order 49, Rule 1(1) and Rule 2(1) of the Court's Rules. Compare Bowling v General Motors-Holden's Pty Ltd (1975) 8 ALR 197, at 219 from which it appears that the Australian Industrial Court was prepared to permit three alleged offences to be tried on a single information provided that they were separately charged. This case does no more than indicate that, by provisions such as s 49A of the Act or Order 49 of the Federal Court Rules, procedures may be permitted whereby arguably more than one offence is dealt with in the same summons. My reference to Newbury should not be taken as an acceptance that, in this case, except for the operation of s 49A, the summons would be duplicitous: but full effect is to be given to s 49A of the Act. 82 Finally, it is worth referring to the often cited judgment in Regina v Naismith [1961] 1 WLR 952. In that case, which was heard by three judges sitting at a Courts Martial Appeal Court, a question was raised as to whether a charge was duplicitous because it alleged that the appellant caused grievous bodily harm to a named person with intent to do him grievous bodily harm or to maim, disfigure or disable him. The court noted that the Army Rules Procedure provided that each charge should state one offence only. In dealing with a submission that more than one offence was charged on a proper consideration of the charge sheet the court stated: It then becomes necessary to look at s 18 of the Offences against the Person Act, 1861, to see what it provides. It seems to this Court that that section provides for three species of assaults, and provides for a number of possible intents with which those assaults may have been committed. It is urged on behalf of the appellant that by a process of arithmetic one may find enmeshed in the provisions of that section something like fifteen or twenty possible alternative offences. It seems to this Court that the proposition with which Mr Garth Moore started his argument is the right approach. That approach is to keep in mind the distinction between a section creating two or more offences and a section creating one offence but providing that that offence may be committed in more than one way. It seems to this Court that so far as the intents specified in Section 18 are concerned, they are variations of method rather than creations of separate offences in themselves. It is probably true to say that the species of assault mentioned in that section, of which there are three, are each in themselves different offences, that is to say, wounding, causing grievous bodily harm and shooting, but that difference does not affect the result of this case in the least because the only act or species of assault alleged was causing grievous bodily harm. The duplicity, if there be any, is said to arise out of the alterative intents which are mentioned in the particulars. If this were a matter to be tried at assizes, there is no doubt that an indictment containing a count mutatis mutandis with this charge sheet would be perfectly good. Rule 5 of the Indictments Rules was inserted to cover this sort of case. It provides: '(1) where an enactment constituting an offence - I pause to emphasise the singular - states the offence to be the doing or the omission to do any one of any different acts in the alternative, or the omission to do any act in any one of any different capacities, or with any one of any different intentions, or states any part of the offence in the alternative, the acts, omissions, capacities, or intentions, or other matters stated in the alternative in the enactment, may be stated in the alternative in the court charging the offence.' I emphasise again that it is the count charging the offence, albeit, there are alternatives stated in that count. It is a single charge and a single offence. 83 Having considered the nature of the particulars and the charge alleged under s 16(1) of the Act and in light of the authorities referred to above, I am satisfied that the defendant's challenge based upon the allegation of duplicity must fail. 84 A further submission was made by the defendant that neither s 49A of the 1983 Act nor s 31 of the new Occupational Health and Safety Act 2000 would be effective to permit duplicitous charges because the 1983 Act was repealed by the 2000 Act and the Savings and Transitional provision in Sch 3 had limited application. The submission seems to be that the Savings and Transitional provisions of the new Act only preserved those matters found in Pt 7 of the new Act; s 31 of the new Act, which is the equivalent of s 49A of the 1983 Act, is not to be found in Pt 7 of the new Act; therefore, on the repeal of the 1983 Act, the flexibility permitted by s 49A was not preserved. A closer examination of the 2000 Act, in my view, does not yield such a surprising result. The 2000 Act was assented to on 26 June 2000 and was proclaimed to commence on 1 September 2001 (Gazette 129 of 24 August 2001). Section 139(1) of the 2000 Act repeals the Acts specified in Schedule 1. Schedule 1 includes the Occupational Health and Safety Act 1983. Section 141 of the 2000 Act makes provisions for savings and transitional matters and provides that Schedule 3 has effect. Clause 13(1) of Schedule 3 provides as follows: Part 7 (Criminal and Other Proceedings) extends (subject to this clause) to proceedings in connection with the former Act in the respective offences committed against the former Act before its repeal in respect of any related matter that continues to have force or effect . (2) This clause applies whether any such proceedings are pending on the repeal of the former Act or whether the proceedings are instituted after that repeal. (3) Part 7 applies with such modification as are prescribed by the regulations or are as necessary for the purposes of applying that Part to any proceedings. (4) … (5) in this clause, former Act includes any Act or provision of an Act that is repealed by this Act. Part 7, Criminal and other Proceedings, of the 2000 Act deals with a variety of matters including summary procedure for offences (s 105), authority to prosecute (s 106), time for instituting proceedings for offences (s 107), penalty notices for certain offences (s 108), evidentiary statements (s 109), onus of proof concerning reasonable excuse (s 110). Part 7 also deals with court orders in connection with offences, proceedings against the Crown and Government Agencies and sentencing guidelines. The equivalent of s 49A of the 1983 Act, which is s 31 of the 2000 Act, clearly does not fall within Pt 7. However, the savings and transitional provisions do not stop, in a relevant sense, at cl 13. Clause 17 of Sch 3 is entitled "General Saving" and provides as follows: Anything done under an Act or a provision of an Act repealed by this Act that has any force or effect immediately before its repeal is taken to have been done under the corresponding provision of this Act subject to any express or implied provision to the contrary in this Act or the regulations made under this Act. I cannot accept that cl 13 operates as an express or implied provision in relation to s 49A so as to detract from the general operation of cl 17 of Sch 3. The legislature had introduced a particular amendment to the 1993 Act when introducing s 49A in 1997. Wright J, President spoke of that history in Coombs v Patrick Stevedores (supra, especially at par 25). The introduction of the provision occurred at a time when there were a number of proceedings in the Commission raising the issue of duplicity in proceedings under the 1983 Act. The clear legislative purpose of s 49A was to provide some flexibility in commencing a proceeding for one offence but in a way which would permit a number of contraventions arising out of the same factual circumstances to be charged. The utility of that approach is obvious and seems consistent with the provisions referred to by Gray J in Newbury v Smith . Given that legislative history in relation to the 1983 Act it would require clear and unambiguous language to bring about an effective suspension of s 49A on the repeal of the 1983 Act for matters which were already commenced but which would permit precisely the same provision in s 31 to apply to actions commenced under the 2000 Act. I was directed to nothing in the relevant second reading speech or in the explanatory memorandum accompanying the Bill which touches on this matter or which would support the defendant's submission. I am therefore unable to accept the approach urged by the defendant on this matter. 85 It is next appropriate to consider two matters which appear to be related. Firstly, the defendant complains that on the material that has more recently been supplied by the prosecutor in support of the various particulars, including the new particulars, the time when the offences are alleged to have taken place has become somewhat fluid. This appears to be a specific reference to an allegation that dripping water may have built up over a period of time through a process of dropping onto and into the switchboard, picking up some contaminants such as dust and then drying, with the same process repeated day after day. Consideration of the charge clearly demonstrates that it alleges an offence under s 16(1) of the Act that, on 14 January 1999, at its factory premises at 24 Narabang Way, Belrose the defendant, being an employer, failed to ensure that persons not in its employment and in particular, Shalishkumar Patel, were not exposed to risk to their health or safety arising from the conduct of its undertaking while they were at its place of work. I accept the prosecutor's submission that this is one offence and it specifies, the time, place and manner in which the offence was committed. Further, as recognised by the Wright J, President in Coombs, it does not necessarily follow that particulars provided as to a process of work or the like which is said to have commenced outside the period of charge is necessarily unavailable as a proper particular. His Honour could envisage circumstances where fairness to the defendant might require a particularisation of events outside the limitation period. For the same reasons, although the particular incident took place at a nominated date, that should not prevent the prosecutor from supplying to the defendant, and relying upon, material which pre-dates that time and which explains or assists in offering an explanation of what occurred on the nominated date. I see no irregularity in this approach by the prosecutor. The related matter is whether or not the prosecutor may properly add the additional particulars contained in the letter of 18 September of which only two are now pressed. I accept the analysis conducted by the prosecutor that the two additional particulars do not raise totally new matters but deal with matters that were clearly exposed to the defendant in the various documents contained in the Brief of Evidence and, indeed, mentioned in Inspector Stewart's affidavit in support of the Application for an Order. It is clear from decisions in this jurisdiction, more recently Concrete Constructions Group Limited v WorkCover Authority of New South Wales (Inspector Dubois) (2000) 99 IR 16, where the Full Court adopted the approach of Walton J, Vice-President, in WorkCover Authority (NSW) (Inspector Penfold) v Fernz Construction Materials Limited (1999) 91 IR 119 at 126 for the proposition that the common law does not require that the information contain all material that the defendant may require upon an application for particulars for preparation of a defence, citing De Romanis v Sibraa [1977] 2 NSWLR 264 at 291 and itself applying Ex parte N. Ormsby and Sons Pty Limited; re Mason (1964) 81 WN(Pt 1) NSW 286 at 290-291. Once it is accepted that particulars are not be equated with the charge itself, made under s 16 of the Act, then it must also be accepted that the charge is not being added to by the supply of further and better particulars. The late supplying of further and better particulars or the late addition of particulars in certain circumstances may cause unfairness to the defendant, and a variety of relief may be available to the court ranging from a refusal to permit reliance on the additional particulars, because they involve an abuse of process, to an adjournment on suitable conditions to allow the defendant to properly prepare its case. Subject to matters raised later in this judgment, I can see no impediment to the addition of the two particulars arising from the prosecutor's letter of 18 September last, especially in view of the fact that it appears that some notice of these matters was given in various material supplied to the defendant prior to that date. 86 The final matter concerns the application for a stay because of procedural irregularity and the oppressive conduct alleged of the prosecutor. The principles applicable to such an application were not contested in these proceedings. In Jago v The District Court of New South Wales (1989) 168 CLR 23 the High Court dealt with the basis upon which a criminal trial would be stayed permanently as an abuse of process brought about by delays. Mason CJ stated that, subject to statutory provisions to the contrary, a court possesses the power to control and supervise proceedings brought in its jurisdiction and that power included powers to take appropriate action to prevent injustice: justice in this context has a limited meaning, although the power is not to be confined to closed categories. The Chief Justice went on to state: In any event, a permanent stay should be ordered only in an extreme case and the making of such an order on the basis of delay alone will accordingly be very rare; re Cooney (1987) 31 A Crim.R. 256 at pp 263 - 264. To justify a permanent stay of criminal proceedings, there must be a fundamental defect which goes to the root of the trial 'of such a nature that nothing that a trial judge can do in the conduct of the trial can relieve against its unfair consequences'; Barton (1980) 140 CLR at p 111, per Wilson J [at 34]. Earlier in his judgment the Chief Justice noted that the power was discretionary and would be used in the most exceptional circumstances to order that a criminal prosecution be stayed. Having identified the purpose of preventing injustice to the accused, the Chief Justice noted that it necessarily followed that other orders may be made in cases of undue delay in order to prevent injustice. There was no reason to confine the discretionary power of the court by arbitrarily stipulating that a stay is the only proper remedy for undue delay. In relation to the test of fairness his Honour stated: The test of fairness which must be applied involves a balancing process, for the interests of the accused cannot be considered in isolation without regard to the community's right to expect that persons charged with criminal offences are brought to trial: see Barton (1980) 147 CLR at pp 102 - 106; Sang (1980) [AC at p 437]; Carver v Attorney-General (NSW) 1987 29 A.Crim.R 24 at pp 31 - 32. At the same time, it should not be overlooked that the community expects trials to be fair and to take place within a reasonable time after a person has been charged [at 33]. Brennan J stated that the power to stay a criminal prosecution served a dual purpose of preventing an abuse of process or the prosecution of a criminal proceeding in a manner which would result in a trial which is unfair when judged by reference to accepted standards of justice. However his Honour noted: A power to ensure a fair trial is not a power to stop a trial before it starts. It is a power to mould the procedures of the trial to avoid or minimise prejudice to either party. Examples of such an exercise of discretionary power were offered in Bell v Director of Public Prosecutions. It was the power exercised in Barton, the power to adjourn a trial until the committal proceedings were held. A power of temporary adjournment is commonly exercised to prevent injustice … When an obstacle to a fair trial is encountered, the responsibility cast on a trial judge to avoid unfairness to either party but particularly to the accused is burdensome, but the responsibility is not discharged by refusing to exercise the jurisdiction to hear and determine the issues. The responsibility is discharged by controlling the procedures of the trial by adjournments or other interlocutory orders, by rulings on evidence and, especially, by directions to the jury designed to counteract any prejudice the accused might otherwise suffer [at 46, 47]. In a similar vein, Gaudron J said: The nature of the power to grant a permanent stay of proceedings itself reveals an important principle which confines its exercise. The power is, in essence, a power to refuse to exercise jurisdiction. It is thus to be exercised in the light of the principle that the conferral of jurisdiction imports a prima facie right in the person invoking that jurisdiction to have it exercised. In this context it is relevant to note the remarks of Deane J in re Queensland Electricity Commission; ex parte Electrical Trade Union of Australia (1987) 61 ALJR 393 at 399, that the 'prima facie right to insist upon the exercise of jurisdiction is a concomitant of a basic element of the rule of law, namely, that every person and organisation, regardless of rank, condition or official standing, is amenable to the jurisdiction of the courts and other public tribunals'. Thus the power is one that is readily seen as exercisable (whether in civil or criminal proceedings) only in exceptional cases or, as was said by this Court in refusing special leave to appeal in a Attorney-General (NSW) v Watson [1987] 20 Leg.Rep SL 1, 'sparingly, and with the utmost caution' [at 76]. 87 On the material that has been presented I do not doubt that the volume of material and the flurry of activity which occurred shortly before the commencement of the hearing left the defendant in a state of some uncertainty as to the nature of the case it had to meet. It is regrettable that the additional statements, reports and other material was not served on the defendant in a more appropriate time frame although I have no knowledge of the circumstances which face the prosecution and which may have led to the late service of this material. What I am able to say about the defendant's complaints is that they do not meet the standard set in Jago for a permanent stay. The circumstances outlined in the defendant's affidavit evidence make it clear that this is a case where by adjournment and other procedural directions the potential unfairness to the defendant can be overcome. 88 As it happens the extensive argument on these notices of motion and my decision to reserve judgment because of the seriousness and complexity of the issues raised, means that the defendant will have an effective adjournment. Once the parties have had an opportunity to consider these reasons I will list the matter for further directions. At that time I would expect the defendant to seek whatever directions are appropriate in order that the nature of the prosecution is clarified and the numerous questions it has raised on the motion for a stay be resolved so that there may be a fair trial. 89 It follows from the views that I have expressed above that the defendant's notices of motion are dismissed. 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