Industrial Relations Commission of New South Wales in Court Session CITATION : WorkCover Authority of NSW (Inspector Maltby) v State Rail Authority of New South Wales & Ors [2001] NSWIRComm 120 Matter Number IRC 5431 of 1999 __________________________________ PROSECUTOR: WorkCover Authority of New South Wales (Inspector Maltby) DEFENDANT/APPLICANT ON MOTION: State Rail Authority of New South Wales Matter Numbers IRC 5460-5466 of 1999 __________________________________ PROSECUTOR: WorkCover Authority of New South Wales (Inspector Mansell) DEFENDANT/APPLICANT ON MOTION: TMG International Pty Limited Matter Numbers IRC 5468 - 5471 of 1999 __________________________________ PARTIES : PROSECUTOR: WorkCover Authority of New South Wales (Inspector Mansell) DEFENDANT/APPLICANT ON MOTION Ove Arup Consult Pty Limited Matter Numbers IRC 5472 - 5477 of 1999 __________________________________ PROSECUTOR: WorkCover Authority of New South Wales (Inspector Mansell) DEFENDANT/APPLICANT ON MOTION Arup Partner Pty Limited Matter Numbers IRC 5478 - 5483 of 1999 __________________________________ PROSECUTOR: WorkCover Authority of New South Wales (Inspector Mansell) DEFENDANT/APPLICANT ON MOTION Ove Arup Pty Limited FILE NUMBER: 5431 of 1999, 5460 - 5483 of 1999 CORAM: Schmidt J Occupational Health and Safety - notices of motions seeking dismissal of prosecutions - prosecution out of time under s49(4) of the Occupational Health and Safety Act 1983 - prosecutors' failure to provide particulars within time ordered - failure to comply with the Court's Rules when initiating proceedings - failure of the prosecutors who launched the prosecutions to form the view that the proceedings were available to be brought - abuse of process - issuing of summonses under s4 of the Supreme Court (Summary Jurisdiction) Act 1967 declined - proceedings dismissed CATCHWORDS : Practice and Procedure - failure to comply with Rule 215 on commencement of prosecution - failure to comply with Court's orders regarding provision of particulars - extension of time refused Statutory Interpretation - s49(4) of the Occupational Health and Safety Act 1983 Coroners Act 1980 LEGISLATION CITED : Industrial Relations Act 1996 Occupational Health and Safety Act 1983 Supreme Court (Summary Jurisdiction) Act 1967 Environment Protection Authority v Sydney Water Corporation Limited (1997) 98 A Crim R 481 Director of Public Prosecutions v Shirvanian (1998) 44 NSWLR 129 Johnson v Miller (1937) 59 CLR 467 CASES CITED : Maxwell v The Queen [1995-96] 184 CLR 501 McConnell Dowell Constructors (Aust) Pty Limited v Environment Protection Authority [2000] NSWCCA 367 (13 September 2000) Page v Walco Hoist Rentals Pty Limited (1999) 87 IR 286 Ridge Consolidated Pty Ltd v WorkCover Authority of New South Wales (Inspector Mauger) [2000] NSWIRComm 151 Whitten v Hall & Anor (1993) 29 NSWLR 680 HEARING DATES: 04/23/2001; 04/24/2001 DATE OF JUDGMENT: 05/31/2001 PROSECUTOR: Mr Hislop QC with Mr Schume of counsel SOLICITORS: Moray & Agnew Solicitors DEFENDANTS: STATE RAIL AUTHORITY OF NEW SOUTH WALES Mr Garling QC with Mr Grogin of counsel SOLICITORS: Mallesons Stephen Jaques LEGAL REPRESENTATIVES: TMG INTERNATIONAL PTY LIMITED Mr Phillips of counsel SOLICITORS: Bull Son & Schmidt Solicitors OVE ARUP CONSULT PTY LIMITED ARUP PARTNER PTY LIMITED OVE ARUP PTY LIMITED Mr Grady of counsel SOLICITORS: Phillips Fox Solicitors JUDGMENT: - 50 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Schmidt J DATE: 31 May 2001 Matter Number IRC 5431 of 1999 WORKCOVER AUTHORITY OF NSW (INSPECTOR MALTBY) v STATE RAIL AUTHORITY OF NEW SOUTH WALES Prosecution under s17(1)(a) of the Occupational Health and Safety Act 1983 Matter Number IRC 5460 of 1999 WORKCOVER AUTHORITY OF NSW (INSPECTOR MANSELL) v TMG INTERNATIONAL PTY LIMITED Prosecution under s17(1)(a) of the Occupational Health and Safety Act 1983 Matter Number IRC 5461 of 1999 WORKCOVER AUTHORITY OF NSW (INSPECTOR MANSELL) v TMG INTERNATIONAL PTY LIMITED Prosecution under s16(1) of the Occupational Health and Safety Act 1983 Matter Number IRC 5462 of 1999 WORKCOVER AUTHORITY OF NSW (INSPECTOR MANSELL) v TMG INTERNATIONAL PTY LIMITED Prosecution under s16(1) of the Occupational Health and Safety Act 1983 Matter Number IRC 5463 of 1999 KCOVER AUTHORITY OF NSW (INSPECTOR MANSELL) v TMG INTERNATIONAL PTY LIMITED Prosecution under s16(1) of the Occupational Health and Safety Act 1983 Matter Number IRC 5464 of 1999 WORKCOVER AUTHORITY OF NSW (INSPECTOR MANSELL) v TMG INTERNATIONAL PTY LIMITED Prosecution under s17(1)(a) of the Occupational Health and Safety Act 1983 Matter Number IRC 5465 of 1999 WORKCOVER AUTHORITY OF NSW (INSPECTOR MANSELL) v TMG INTERNATIONAL PTY LIMITED Prosecution under s17(1)(a) of the Occupational Health and Safety Act 1983 Matter Number IRC 5466 of 1999 WORKCOVER AUTHORITY OF NSW (INSPECTOR MANSELL) v TMG INTERNATIONAL PTY LIMITED Prosecution under s17(1)(a) of the Occupational Health and Safety Act 1983 Matter Number IRC 5467 of 1999 WORKCOVER AUTHORITY OF NSW (INSPECTOR MANSELL) v OVE ARUP CONSULT PTY LIMITED Prosecution under s17(1)(a) of the Occupational Health and Safety Act 1983 Matter Number IRC 5468 of 1999 WORKCOVER AUTHORITY OF NSW (INSPECTOR MANSELL) v OVE ARUP CONSULT PTY LIMITED Prosecution under s16(1) of the Occupational Health and Safety Act 1983 Matter Number IRC 5469 of 1999 WORKCOVER AUTHORITY OF NSW (INSPECTOR MANSELL) v OVE ARUP CONSULT PTY LIMITED Prosecution under s16(1) of the Occupational Health and Safety Act 1983 Matter Number IRC 5470 of 1999 WORKCOVER AUTHORITY OF NSW (INSPECTOR MANSELL) v OVE ARUP CONSULT PTY LIMITED Prosecution under s17(1)(a) of the Occupational Health and Safety Act 1983 Matter Number IRC 5471 of 1999 WORKCOVER AUTHORITY OF NSW (INSPECTOR MALTBY) v OVE ARUP CONSULT PTY LIMITED Prosecution under s16(1) of the Occupational Health and Safety Act 1983 Matter Number IRC 5472 of 1999 WORKCOVER AUTHORITY OF NSW (INSPECTOR MANSELL) v ARUP PARTNER PTY LIMITED Prosecution under s16(1) of the Occupational Health and Safety Act 1983 Matter Number IRC 5473 of 1999 WORKCOVER AUTHORITY OF NSW (INSPECTOR MANSELL) v ARUP PARTNER PTY LIMITED Prosecution under s17(1)(a) of the Occupational Health and Safety Act 1983 Matter Number IRC 5474 of 1999 WORKCOVER AUTHORITY OF NSW (INSPECTOR MANSELL) v ARUP PARTNER PTY LIMITED Prosecution under s16(1) of the Occupational Health and Safety Act 1983 Matter Number IRC 5475 of 1999 WORKCOVER AUTHORITY OF NSW (INSPECTOR MANSELL) v ARUP PARTNER PTY LIMITED Prosecution under s17(1)(a) of the Occupational Health and Safety Act 1983 Matter Number IRC 5476 of 1999 WORKCOVER AUTHORITY OF NSW (INSPECTOR MANSELL) v ARUP PARTNER PTY LIMITED Prosecution under s16(1) of the Occupational Health and Safety Act 1983 Matter Number IRC 5477 of 1999 WORKCOVER AUTHORITY OF NSW (INSPECTOR MANSELL) v ARUP PARTNER PTY LIMITED Prosecution under s17(1)(a) of the Occupational Health and Safety Act 1983 Matter Number IRC 5478 of 1999 WORKCOVER AUTHORITY OF NSW (INSPECTOR MANSELL) v OVE ARUP PTY LIMITED Prosecution under s16(1) of the Occupational Health and Safety Act 1983 Matter Number IRC 5479 of 1999 WORKCOVER AUTHORITY OF NSW (INSPECTOR MANSELL) v OVE ARUP PTY LIMITED Prosecution under s16(1) of the Occupational Health and Safety Act 1983 Matter Number IRC 5480 of 1999 WORKCOVER AUTHORITY OF NSW (INSPECTOR MANSELL) v OVE ARUP PTY LIMITED Prosecution under s17(1)(a) of the Occupational Health and Safety Act 1983 Matter Number IRC 5481 of 1999 WORKCOVER AUTHORITY OF NSW (INSPECTOR MANSELL) v OVE ARUP PTY LIMITED Prosecution under s16(1) of the Occupational Health and Safety Act 1983 Matter Number IRC 5482 of 1999 WORKCOVER AUTHORITY OF NSW (INSPECTOR MANSELL) v OVE ARUP PTY LIMITED Prosecution under s17(1)(a) of the Occupational Health and Safety Act 1983 Matter Number IRC 5483 of 1999 WORKCOVER AUTHORITY OF NSW (INSPECTOR MANSELL) v OVE ARUP PTY LIMITED Prosecution under s17(1)(a) of the Occupational Health and Safety Act 1983 JUDGMENT 1 Judgment in these matters was given on 29 August 2000. Then before the Court were notices of motion filed by each of the defendants seeking the dismissal of the prosecutions as having been commenced after the expiration of the limitation period provided by s49 of the Occupational Health and Safety Act 1983 ('the OH&S Act'). 2 The arguments advanced by the parties at the earlier hearing concerned the proper construction of s49 of the OH&S Act and the way in which the prosecutions had been commenced. This included the prosecutors' compliance with the Court's Rules and the response adopted to requests for the provision of particulars. At paragraphs 69 to 71 of the earlier judgment, I concluded: 69 It follows from all of these circumstances, that in reality, the question which now arises is whether orders should be made under s4 of the Supreme Court (Summary Jurisdiction) Act . Until satisfied that these prosecutions were brought within time, it is not appropriate for such orders to be made. 70 In that context, I have concluded, not without some hesitation, that in this case the proper course is for the prosecutor to be given an opportunity to consider this judgment, including whether all of these prosecutions are properly available to be pursued, in light of the proper construction of s49(4) of the OH&S Act and to then provide the relevant particulars to the defendants in respect of those prosecutions which are to be pursued. I also note that it is relevant to this conclusion that some of these offences have been alleged to have been committed on 5 December 1995, in circumstances where the Coroner was investigating events which occurred on 4 December. 71 In the light of that conclusion, I also take the view that it is not appropriate that the defendants' motions be dealt with to finality at this stage, because it may be that their applications will not be resolved by the particulars so provided. The defendants, in my view, should not be denied the opportunity to further press these applications, once the prosecutor has provided such particulars. 3 The orders made in the judgment were: 1. Within 28 days of this judgment, the prosecutor is to provide each of the defendants with particulars of any prosecution which will be pressed, identifying the part or parts of the Coroner's report or proceedings at the inquest or inquiry from which it appears that the offence charged has been committed. 2. The parties have liberty to have these matters restored to the list on suitable notice. 4 The prosecutors pursued all of the prosecutions which were considered in the earlier judgment. The defendants now pursue their applications that each of the prosecutions be dismissed, for a variety of reasons. 5 The arguments advanced for the various defendants fell into a number of broad categories. They went to the prosecutors' failure to provide the particulars within the time ordered; to the prosecutors' failure to comply with the requirements of the Rules when initiating the proceedings; the failure to call any evidence from either of the two prosecutors, as to what was in their minds when the prosecutions were launched; to alleged inadequacies of the particulars provided and the failure of the particulars provided to demonstrate either that the defendants had been charged with offences which they appeared to have committed, having regard to the material relied upon, or that such offences otherwise appeared from the material relied upon. 6 The prosecutions here under consideration were brought under either ss16 or 17 of the OH&S Act. Sections 16(1) and 17(1) provide: 16 (1) Every employer shall ensure that persons not in the employer's employment are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work. 17 (1) Each person who has, to any extent, control of - (a) non-domestic premises which have been made available to persons (not being the person's employees) as a place of work, or the means of access thereto or egress therefrom; or (b) any plant or substance in any non-domestic premises which has been provided for the use or operation of persons at work (not being the person's employees), shall ensure that the premises, the means of access thereto or egress therefrom or the plant or substance, as the case may be, are or is safe and without risks to health. 7 Section 49(4) of the OH&S Act provides: If a coroner's inquest or inquiry is held and it appears from the coroner's report or proceedings at the inquest or inquiry that an offence has been committed against this Act or the regulations, proceedings in respect of that offence may be instituted, despite anything to the contrary in this section, within 2 years after the date the report was made or the inquest or inquiry was concluded, as the case may be. 8 The prosecution submitted that some of the arguments advanced had already been decided against the defendants in the earlier judgment and could not be further argued in these proceedings. While it was conceded that the particulars had been provided one day late, it was submitted that an order extending time would here be granted. It was also submitted that whether the prosecution was within time did not depend upon the views formed by the prosecutors. It was further argued to be unnecessary for evidence to be adduced as to what was in the prosecutors' minds when the prosecutions were launched. The requirements of s49(4) of the OH&S Act were either satisfied or not, which could be objectively determined from the coronial material relied upon. It was also argued that while the particulars provided were voluminous, this reflected the material from the coronial proceedings which demonstrated that it there appeared that the offences with which the defendants had been charged had been committed. It followed that the defendants' motions would be dismissed, the orders required under s4 of the Supreme Court (Summary Jurisdiction) Act 1967 would now be issued in each case and the hearing of each of the charges would proceed. 9 The orders which the prosecution sought in each case were filed after the hearing, on 3 May 2001. 10 The question which thus now arises for final determination is whether these prosecutions were launched within time, having regard to the particulars relied upon, so as to permit the summonses under s4 of the Supreme Court (Summary Jurisdiction) Act to be issued. In order for that question to be determined in light of the material provided to the defendants, the prosecution seeks an extension of the time provided in the order of 29 August 2000, but seeks the exercise of no other discretion in its favour from the Court. 11 I turn then to the various arguments advanced for the defendants. I will deal first with the complaint that the prosecutor failed to provide the particulars within the time ordered in the earlier judgment. While an application for an order extending time was made for the prosecution, it is relevant to note that it was not made until after the prosecution had heard the submissions which had been advanced for the defendants about that matter, at the further hearing. 12 These proceedings were not determined to finality in the earlier judgment, because a discretion under s170(3) of the Industrial Relations Act 1996 ('the Act') was exercised in favour of the prosecutors. This allowed the prosecutors, who to that point had plainly failed to meet the obligation which fell upon them at the outset, to inform the Court and the defendants as to the basis upon which it was asserted that the prosecutions which were not brought within the limitation period provided in s49(1) of the OH&S Act, were available to be brought within the time prescribed by s49(4), to do so. It cannot be overlooked that this opportunity was given in circumstances where no reference at all to s49(4) had been made by the prosecutors in the initiating process, as required by the Rules. Nor had the material relied upon been referred to in the prosecutors' supporting affidavits. No particulars had been provided as to what had been relied upon, when requested by the defendants. Nor had any evidence been led about this matter at the earlier hearing of the defendants' motions, when the opportunity to put on such evidence arose, it then falling on the prosecution to demonstrate that the charges had been laid within time. Thus it was that by the orders of 29 August, the prosecutors were given a final opportunity to address the deficiencies in their approach to that point. 13 As I noted in paragraph 57 of the earlier judgment, I was somewhat troubled about the exercise of the discretion in favour of the prosecution under s170(3) of the Act, in the context of those failures. It follows that the orders enabled the prosecutors to address what was, on any view, a real deficiency in the approach which had been taken to that point. This was made clear in the earlier judgment. That in those circumstances the prosecutors did not comply with the Court's orders in relation to the provision of particulars, did not appeal from them and did not seek to be otherwise relieved of them prior to the hearing in April 2001, thus raises a matter of serious concern. 14 When the further hearing commenced, the prosecution tendered the particulars which had been provided out of time, with some deletions, but led no other evidence. No application for any extension of time for compliance with the Court's order was then made. In their submissions the defendants thus relied upon the prosecutions' failure to comply with the Court's orders, as a further basis for dismissal of the proceedings. 15 In advancing their arguments, it was submitted for the defendants that the whole history of these prosecutions threw doubt on the requisite views having been formed at the relevant time by the prosecutors, that these prosecutions were brought within time. The offences which were the subject of the various charges were said to have taken place between 10 November and 5 December 1995. The ordinary time for prosecution thus expired in December 1997. The coronial proceedings concluded in May 1997 and the Coroner gave his report in October 1997, still within the ordinary time for a prosecution to be launched in accordance with s49(1) of the OH&S Act. The extended time in s49(4) expired on 17 October 1999. The prosecutions were not launched until 12 October 1999 and even then, the obligations imposed upon the prosecutors to identify that s49(4) of the OH&S Act was relied upon were not met. Further, the prosecutor then simply refused to provide the defendants with any particulars of what had been relied upon in concluding that the prosecution was brought within time, when requested to do so by the defendants. Nor did the prosecution bring forward any evidence before the Court at the hearing where the defendants' motions challenged the prosecutions as having been brought within time. 16 The defendants also relied upon the fact that during the earlier hearing of their motions, the prosecution sought an adjournment, after the defendants had put their submissions, indicating that: '… if the matter is, as is suggested by my learned friend, then it would seem to me a certain course would be appropriate to take …' 17 Despite this, when the hearing resumed, the prosecutions were pressed. It was in that context submitted for the defendants to be relevant that in the earlier judgment, I ultimately expressed serious doubts as to the exercise of a discretion in favour of the prosecutors, which had only been sought from the Court after the above adjournment. 18 The lateness and circumstances in which that application was made, was a factor in the hesitation which I expressed in exercising that discretion. What persuaded me to that course included the construction of s49(4) of the Act upon which the prosecutors seemed to have been acting and the fact that there was then still not before the Court any evidence as to the basis upon which the prosecutors had determined that the prosecutions were available to be pursued under s49(4). So it was that on 29 August 2000, rather than dismissing the proceedings, as the defendants sought, orders were made to permit the prosecutors to address the problems which their approach had given rise to. 19 In that context, at the further hearing of their motions, it was argued for the defendants to be relevant, that even when the prosecutors had been granted the relief belatedly sought, so as to permit them to rectify their failures, still they did not comply with the orders made by the Court, even though there had been no appeal made against them. There was no suggestion that the time provided in the order had been inadequate, nor had any application for any extension of time been made, nor any explanation advanced as to why the order had not been complied with. In those circumstances, the position of the defendants was that if any application were later to be made for a further indulgence to be granted in favour of the prosecutors in response to the defendants' submissions, that such an application would be opposed by the defendants and rejected by the Court. 20 The application was, of course, then made for the prosecution. No evidence was, however, advanced in support of the application. Reference was made in submissions by Mr Hislop QC, to the fact that the particulars were provided but one day late and that other courts had made changes to their practices to take account of the Olympics period, although it was not known what arrangements this Court had made. It was also submitted to be relevant that no prejudice had resulted for the defendants by the prosecutions' delay, it having been put in the prosecutors' written submissions that: 'It is accepted that the documentation was delivered one day late but that delay could not have prejudiced the applicants/defendants, the order having been made in August 2000 in relation to a hearing date set in December 2000 for April 2001.' 21 The submission, however, put for one of the defendants, TMG International Pty Limited by Mr Phillips of counsel, which was not contested, was that the particulars initially provided but one day late were later supplemented by further particulars. When that occurred is unclear. 22 It was further submitted for the prosecution to be relevant that the particulars which were provided demonstrated that the prosecutions had been launched within time and thus it followed, that it would be a 'travesty of justice', if the extension sought were not granted. 23 That these submissions did not advance any good reason for the failure to comply with the Court's order is apparent. From the defendants' point of view the position was a clear one. In the absence of any demonstration in accordance with the Court's August 2000 order, that the prosecutions were brought within time, their motions should have been granted and the prosecutions dismissed. 24 In those circumstances it can hardly be concluded that the defendants suffered no detriment in having to further press their motions in these proceedings, when the prosecutors sought to press all of the prosecutions, despite having failed to comply with the Court' orders. 25 It is in those circumstances that the prosecutors' application for a further indulgence arises to be considered. That there is a public interest in prosecutors complying with the orders of the Court, particularly when the Court has exercised a discretion in their favour in circumstances where they have already failed to abide by the Court's Rules, cannot be doubted. 26 That there is another important public interest which here arises for consideration also cannot be doubted, namely the proper prosecution of offences committed under the OH&S Act. It follows that the proper balance between these various interests in this case, is one which cannot be lightly disposed of. 27 Here, I have to take the view that the breach of the Court's orders was neither trivial nor minor, given the circumstances in which they were made, and notwithstanding that the amount of delay involved was seemingly not great. There was no complaint made about the time provided in the Court's orders, either at the time they were made, or during the recent proceedings. The judgment and orders were not the subject of any appeal. When it became apparent to the prosecution that the orders could not be complied with, it was open to approach the defendants and the Court for an extension of time. That this opportunity was not availed of, but the orders simply breached, is thus a serious matter. 28 At the time the earlier judgement was given, the alternative to the exercise of the discretion in favour of the prosecution was to then dismiss the proceedings, the prosecution having failed to demonstrate at the hearing that the prosecutions were launched within time. The defendants object to the prosecution now being given, in effect, a third opportunity to do so. 29 Relevant to a consideration of the prosecutors' application, is one of the other complaints advanced for the defendants. At the further hearing the prosecution had the opportunity to put evidence before the Court as to the basis upon which the prosecutors had formed the view that the prosecutions were brought within time. No such evidence was called at the earlier hearing, nor was it called at the resumed hearing. This was a further matter upon which the defendants relied. 30 The particulars which were provided late to the defendants were not provided on the basis that they reflected what was in the prosecutors' minds at the time the prosecutions were launched, but rather, as it was put by Mr Hislop, what could now be objectively advanced from the coronial material as indicating that the prosecutions were brought within the time specified in s49(4) of the OH&S Act. When those particulars were tendered, certain parts were deleted. This was explained as reflecting those aspects of the coronial material which was not already in evidence in these proceedings. 31 The evidence thus was in a position where the only inference properly available, was that the particulars relied upon did not reflect what had been in the prosecutors' minds when they launched these proceedings, as to whether the prosecutions were available to be launched pursuant to s49(4). The explanation given in the earlier part of the proceedings, that the prosecutors' refusal to provide the defendants with the particulars which they had sought, had resulted from the broad construction of s49(4) of the OH&S Act upon which they were proceeding, indeed suggested that the prosecutors had not turned their minds to consider whether the particular offences with which the defendants had been charged, appeared from the coronial material to have been committed and were thus available to be pursued at that time. 32 This position was confirmed by the submissions advanced for the prosecution at the resumed hearing. It was then put that the prosecutors' views about whether the prosecutions were within time were entirely irrelevant, because the question of whether a particular offence appeared from the coronial material could be objectively determined. So it followed, that whether the prosecutions were brought within time could also be determined on that basis alone. 33 At paragraph 49 of the earlier judgment, I found that: 'Patently, both the prosecutor and the Court must be satisfied, at the outset, that the prosecution proposed is not beyond time. That will flow from a satisfaction that the offence with which the defendant is to be charged is an offence which appears to have been committed having regard to the Coroner's report or the proceedings.' 34 At the further hearing it was not submitted by any party that this conclusion was wrong. I can see no proper basis for departure from that view. At paragraph 65 of the earlier judgement, I went on to observe that at that point there had been no 'identification as to what the prosecutor relied upon as establishing that the defendant in each prosecution has been charged with an offence which appears from the Coroner's report or proceedings to have been committed.' 35 In reality, that position persisted at the resumed hearing. It follows that the proper inference from all that has been put for the prosecution is that there could be no such identification in these proceedings, because when the prosecutions were commenced the prosecutors did not turn their minds to this question and thus were not in a position to put that material before the Court when the proceedings were commenced. 36 It was argued by Mr Grady of counsel appearing for the Ove Arup Group defendants, that it had been now demonstrated that contrary to the agreed position in Ridge Consolidated Pty Ltd v WorkCover Authority of New South Wales (Inspector Mauger) [2000] NSWIRComm 151, the steps required by the Court's Rules to be complied with in order for the proceedings to be validly commenced had not been followed by the prosecutors in these cases. On this basis alone, it was submitted, all of the proceedings should be dismissed. Paragraph 33 of Ridge was particularly relied upon. There it was said: 'We consider that the same distinction is relevant in relation to the present statutory and regulatory scheme. Once the relevant requirements under Rule 219(1) have been complied with, the proceedings have been properly and validly instituted and any subsequent non-compliance with the requirements are, at most, irregularities which either may not be relevant or are capable of being cured.' 37 It follows that a question which thus arises, is whether a prosecution brought outside the time prescribed in s49(1) of the OH&S Act, in circumstances where the prosecutor has not considered whether the offences charged were available to be brought within the time specified in s49(4), and has not met the requirements of the Rules in relation to that matter, may now be pursued, after the prosecution has been challenged as having been brought out of time. Is the prosecution now entitled to look to the coronial material in search of matters which could have provided a basis for the view that the charge laid was available to be brought within the time provided by s49(4), had the prosecutors turned their minds to that question? 38 I am not persuaded that such an approach to the question of the time fixed by s49(4) of the OH&S Act is properly available. 39 The defendants, of course, seek the dismissal of the proceedings, in part because the prosecutors failed to form the view, which they say was necessary to be formed before the prosecutors acted to launch the proceedings, that they were within time. As I have already noted, it seems that the failure to form such a view, arose at least in part from the fact that the prosecutors were acting upon a wrong construction of s49(4) of the OH&S Act. 40 Having in mind the decision of the Full Court in Page v Walco Hoist Rentals Pty Limited (1999) 87 IR 286, it is difficult to understand how the construction of the OH&S Act upon which the prosecutors were proceeding and which was rejected at the earlier hearing, could have been thought to have been available, consistent with the judgment in Walco. After all, there it was common ground (at p287), that: '(d) Prior to the relevant date, the prosecutor was in possession of evidence which the prosecutor considers was evidence of a prima facie case that the defendants had committed the offences charged on or before 6 February 1996. (e) No new facts or analysis of facts concerning the offences charged was disclosed to the prosecutor by the coroner's report or by the proceedings before the coroner.' 41 In those circumstances the Full Court held (at pp292-293): 'On the agreed facts, we are satisfied that it appears from the coroner's report of 17 September 1996 and from the proceedings at the inquest on that date into the death of Mr. Dorrington at the subject construction site at The Entrance that offences against the Occupational Health and Safety Act have been committed as charged in the respective summonses filed herein on 17 April 1998.' 42 Here, by way of contrast, there was no evidence that the prosecutors had ever formed a view that the offences with which the defendants were charged appeared to have been committed from the coronial material, let alone that the defendants had committed them. The latter of course, may not have been critical, at the point at which the prosecution was launched. It seems to me, however, that the former was. 43 The dismissal or stay of these proceedings involves the exercise of the Court's power to prevent an abuse of its process. For a discussion of this concept in criminal proceedings, see Director of Public Prosecutions v Shirvanian (1998) 44 NSWLR 129 at 133 -138 per Mason P. 44 There reference was made to a decision of Campbell J in Whitten v Hall & Anor (1993) 29 NSWLR 680, where his Honour ordered the stay of criminal proceedings in circumstances where an information was laid before a decision to prosecute was made, so as to preserve the position and to enable further information to be obtained and considered, before a summons was issued. The effect was that while the information was laid before the expiry of the 6 month limitation period applicable in that case, the summons was not issued until over 7 months later. 45 Here, by way of contrast, there was a decision to prosecute made, absent any proper consideration of whether the charges in question were available to be brought, given the time limits imposed in s49(4) and a failure to put such material before the Court. The prosecutions were launched within days of the expiry of two years from the date of the Coroner's report, that being the only matter relied upon in the advice given to the Registrar by the prosecution as to the time of launching the prosecution outside the time prescribed by s49(1) of the OH&S Act. 46 As I have earlier found, when launching these prosecutions the prosecutors had an obligation under the Rules to put the basis upon which the proceedings were being brought before the Court. That obligation was not met, nor were the particulars which the defendants later sought in relation to that failure provided. When the matter was last before me, no evidence was called from the prosecutors as to these matters. Nor was any led in these further proceedings, where the defendants also complained that the prosecutor did not abide by the Court's order, either as to the time within which particulars were ordered to be provided, nor in the proper provisions of the particulars themselves. In my view, there is a proper basis for much of the defendants' complaints. 47 In coming to this view, I have had regard to the approach of the Court of Criminal Appeal to the institution of criminal proceedings before the Land and Environment Court in McConnell Dowell Constructors (Aust) Pty Limited v Environment Protection Authority [2000] NSWCCA 367 (13 September 2000) and cases there referred to. It was there observed at paragraphs 42 to 49 in the judgment of Spigelman CJ, (with whom Grove and Kirby JJ agreed), that a criminal charge must contain not only the legal elements of an alleged offence, but also the essential factual ingredients of the offence. There is a distinction to be drawn between such 'essential factual ingredients' and the further particulars as to factual matters provided by the prosecution to ensure that a defendant is able to prepare the defence. Essential particulars discussed in Johnson v Miller (1937) 59 CLR 467 at 486, include 'the time, place and manner of the defendant's acts or omissions' (per Dixon J). 48 This distinction is of some significance here, because as well as acting on the basis that it was not necessary for the prosecutors to have formed a view when launching the prosecutions that they had been brought within time, the prosecution also relied upon the well established rule that in order for an offence to be proven at a hearing, the essential elements alleged in a summons need to be established, but failure to establish a particular is not fatal. (See Environment Protection Authority v Sydney Water Corporation Limited (1997) 98 A Crim R 481.) So, it was argued in these proceedings by the prosecution, it followed that it was not necessary for it to be demonstrated that the particulars given of the offence with which the defendants here have been charged, appeared from the coronial material, in order for the offence charged to be brought within the time fixed by s49(4) of the OH&S Act. 49 Again, it seems to me that this approach is problematic. Section 49(4) requires that the offence with which a defendant is to be charged, appears from the coronial material to have been committed. As noted in Walco, what is required is satisfaction that the offence charged appears to have been committed from that material - not that it has been committed in fact. That is, however, an entirely different matter to whether the prosecution can later make out the charge, or any aspect of it. In order for an offence to be brought within the time provided in s49(4), the requirements there specified must be met - namely that the offence charged must appear to have been committed from the coronial material. Charges cannot be brought in respect of matters which do not appear from the coronial material. 50 What this statutory requirement imposes for a prosecutor, of necessity, is that some care be taken in the drafting of a charge, if the extended time provided by s49(4) of the OH&S Act is to be availed of. A failure to give any thought to whether an offence with which a defendant is proposed to be charged, appears to have been committed from the coronial material will, of necessity, give rise to the risk that the offence will be brought out of time, because the material does not support the charge. This is why the question of whether the offence appears from the coronial material is a matter to which a prosecutor should turn his or her attention, when the prosecution is launched, rather than when the prosecution is challenged as being out of time. 51 This consequence of s49(4) is patent, having in mind the requirements there imposed. That it was a consequence which the Parliament intended, cannot be doubted. Had it been otherwise, the time for bringing a charge in a case where there are proceedings before the Coroner, would have been extended only by reference to the date of the Coroner's report or the conclusion of the coronial proceedings. Parliament did not adopt that approach. Rather, it extended time in but a narrower class of cases - namely, where the offence appears to have been committed from the coronial material. The extension is not even granted in cases where it appears that the offence may have been committed, or could have been committed. Prosecutors are bound by the consequences of this statutory approach. 52 It follows that the question which the prosecutor must pose to him or herself when launching a prosecution is this - Is there a rational basis in the coronial material for the view that the offence with which the defendant is proposed to be charged, appears to have been committed? The material which answers that question positively, is the basis upon which the prosecution may be launched within the time prescribed by s49(4). Logically, that is the material upon which the prosecution would rely in order to demonstrate that the prosecution was brought within time, as required by the Rules and it is that material to which a judge of this Court would refer in determining whether to issue a summons under the Supreme Court (Summary Jurisdiction) Act. 53 There are many offences which here arise for consideration, but these points are well illustrated by reference to the charge laid against the SRA. One of the submissions advanced for the SRA by Mr Garling QC was that the particulars provided as to the parts of the coronial material which it was said in its case demonstrated objectively that it had appeared that the offence with which the SRA had been charged had been committed, did not in fact provide a rational basis for such a view to be formed. The prosecution submitted that this argument was wrong, but also submitted that it was not necessary in any event for the prosecution to make out a basis in the coronial material for the offence, as particularised, in every respect, in order for the offence to be brought within the time specified in s49(4). 54 The SRA was charged with the following offence: Between 10 November and 5 December 1995 at Kogarah in the state of New South Wales, the defendant being a person who had, to any extent, control of non-domestic premises, to wit, the Kogarah Railway Station and adjoining areas which had been made available to persons (not being the Defendant's employees) as a place of work for the purpose of upgrading the Kogarah Railway Station contrary to section 17(1)(a) of the Occupational Health & Safety Act , 1983 failed to ensure that the said premises were safe and without risks to health in that it had a charged gas supply line situated in an area where construction work was designed to occur. 55 A number of particulars of the offence were provided. As to the essential elements of the offence, the time specified was plainly between 10 November and 5 December and the place, the Kogarah Railway station and adjoining areas. As to the manner of the acts and omissions relied upon, they included 'that it had a charged gas supply line situated in an area where construction work was designed to occur'. The other particulars provided were to this effect: 1. The State Rail Authority of New South Wales (SRA) engaged a consortium of TMG International Pty Limited, Edwards Madigan Torzillo Briggs Pty Limited, Group One Interiors Pty Limited and three further corporations namely Ove Arup Pty Limited and Ove Arup Consult Pty Limited and Arup Partners Pty Limited that traded as Ove Arup and Partners pursuant to a registered business name. 2. The consortium operated and traded under the trading name of Capital Works Management (CWM). 3. The SRA engaged CWM for the design, the tender process and the supervision to completion of the upgrading of a number of SRA facilities including the Kogarah Station Upgrade (KSU). 4. Because of the nature and difficulty of the work place at the KSU which was situated adjacent to a railway station being used continuously by passenger trains and in the centre of the Kogarah Shopping Centre, safety was an acute problem. 5. The SRA engaged CWM to supervise the safety aspects of all contractors contracted to perform the construction work including Abigroup Contractors Pty Limited. 6. The SRA was the owner and occupier of the KSU and had control to a degree pursuant to the terms of the engagement with CWM and had the duty and authority to supervise the performance of all aspects of the work and ensure that the work was done in a safe manner and without risks to health. 7. Pursuant to that authority the SRA instructed an employee to work as the KSU supervisor and charged him with the duty of ensuring the work was conducted in accordance with the contracts and in a safe manner without risks to health. 8. On or about 18 October 1995 the Defendant engaged Abigroup Contractors Pty Limited (Abigroup) to perform construction work on the Kogarah Station Upgrading ("KSU"). 9. On or about 8 November 1995 Abigroup engaged Josef & Sons Contracting Pty Ltd to perform work including the demolition of shops 3, 5, 7 and 9 Railway Parade, Kogarah (the Building) as part of the KSU. 10. Prior to the demolition of the Building a request was made to AGL Gas Networks Limited ("AGL") to disconnect the gas supply to Shops 3 and 7. 11. On or about 10 November 1995, John Princi, an employee of AGL attended and cut and capped the gas supply line to Shop 7 Railway Parade, Kogarah. 12. The gas supply line was cut and capped within one metre of the alignment of the Building which left approximately two metres of the charged gas supply line within the KSU where construction was designed to occur. 13. The gas supply line remained charged. 14. The Building was mechanically felled by the use of an excavator which commenced on or about 21 November 1995 and was completed by 4 December 1995. 15. Prior to 4 December 1995 the gas supply line became exposed when an excavator was used to remove the footings of the Building. 16. A stake was used to mark the gas supply line when it became exposed. 17. On 4 December 1995 Robert Campbell used a 7-8 tonne Daewoo excavator on the eastern side of the KSU to create a batter. 18. The excavator was used to create the batter in the area where the gas supply line was situated. 19. The Defendant failed to prevent the operation of earth moving machinery on the construction area close to the charged gas supply line. 20. On 4 December 1995 the integrity of the charged gas supply line was broken when the line became detached at an elbow joint adjacent to the Family Amusement Zone (FAZ), located at 13 Railway Parade, Kogarah. 21. The detachment of the gas supply line at the elbow joint allowed gas which was under pressure within the line to escape. 22. At approximately 2.00 p.m. on 4 December 1995 there was a gas explosion in the vicinity of FAZ. 23. At approximately 4.00 p.m. on 4 December 1995 a second gas explosion occurred in the vicinity of FAZ. 24. The gas explosions were of sufficient extent and severity that persons were injured thereby. 25. The existence of a charged gas supply line situated in an area where construction work was designed to occur was inherently dangerous. 26. A charged gas supply line in the area where work was to be performed with machinery was unsafe and a risk to health. 27. The Defendant failed to inspect the KSU or have in place a regime of reporting about the conduct of the construction work so that the premises could be kept safe and without risks to health. 28. The Defendant failed to record the nature of the gas hazard and the proposed method of dealing with the hazard in the Work Method Statement. 56 The question which is here before the Court for consideration is not whether the prosecutor had sufficient material upon which to launch such a prosecution, but rather whether the coronial material was such as to permit the SRA to be charged with that offence, within the extended time provided by s49(4) of the OH&S Act. 57 The material relied upon by the prosecution in the particulars provided demonstrated that the offence was not brought within time. Reference to only a few matters will explain why this conclusion was unavoidable. 58 The particulars provided by the prosecution as to the coronial material which made it appear that this offence had been committed, provided in part: failed to ensure that the said premises were safe and without risks to health in that a charged gas supply line was situated in an area where construction work was designed to occur: From Coronial Report: (paragraph 10): "I am also satisfied that the gas was disconnected to the excavation site on 10 November, 1995, and Mr Bustanmente [ sic ] (Abigroup) was present, and at his request, was recapped further away from the building to be demolished. WorkCover Inspector Mansell described the procedure used to disconnect the gas service as being at best inadequate, no maps were maintained by AGL showing where the pipes were located and it was not reasonable to allow pressurised gas pipes to remain in place while demolition work is being carried out. He also describe the stake and bunting marker on the construction site as inadequate. I accept these criticisms as being justified in the circumstances." (paragraph 25(2)): "The failure of Josef & Sons and Abigroup to make an appropriate application to the WorkCover Authority, their failure to ensure that the workplace site was a safe as possible by the proper disconnection and marking of the 'live' gas pipe, together with the failure of Josef & Sons to ensure that the excavator operator carrying out the batter work on 4 December, 1995, was made fully aware of the danger of working too close to the pipe, leads to the conclusion that there was a clear lack of car with regard to workplace safety on the construction site." (paragraph 25(3)) : "It was clearly open to Josef & Sons and Abigroup to continually check the construction site as work progressed and if it became evident that the work may lead into the area of the 'live' gas pipe then efforts could have been made to contact AGL with a view to removing the offending pipe." (paragraph 25(4)): "The practice of marking services with a 'star picket' or 'wooden stake' and 'brightly coloured bunting' should be reassessed by Industry as on this occasion the method of marking the gas pipe was, to say the least, inadequate." (paragraph 25(5)): "Under no circumstances should a live gas pipe be allowed to exist on the site of major industrial works, such as was occurring in this case." (paragraph 43): "I find that on 4 December, 1995, certain real and personal property situate at 13-15 Railway Parade, Kogarah, was destroyed by an explosion as a result of a gas pipe being damaged when excavation work was being carried out on property adjacent to the Kogarah Railway Station." (paragraph 44): "I find that on 13 December, 1995, MINA BAKHOUM, at Concord Hospital, died of the effects of complications of thermal burns sustained on 4 December, 1995, at Railway Parade, Kogarah, when gas exploded as the result of a gas pipe being damage when excavation work was being carried out on property adjacent to the Kogarah Railway Station." (paragraph 45): "I find that on 15 December, 1995, GREGORY MAYBURY, at Westmead Hospital, died of the effects of complications of thermal burns sustained on 4 December, 1995, at Railway Parade, Kogarah, when gas exploded as the result of a gas pipe being damaged when excavation work was being carried out on property adjacent to the Kogarah Railway Station." 59 It was submitted for the SRA that there was no doubt that an element of the offence with which it was charged was that "it had a charged gas supply line" situated in the specified area. The particulars provided information in relation to a different allegation, namely, that "a charged gas supply line was situated" in that area. It followed, so it was argued, that the particulars provided were in relation to a different offence and were not adequate to make out this aspect of the offence actually charged. This was because it was never suggested in the coronial proceedings and it was never in the prosecutors' minds, that the SRA had a charged gas supply line at this site. The coronial material made it clear that the pipeline in question belonged to AGL, in accordance with its statutory charter and not to the SRA. The SRA had not been charged with an offence that it, for example, knew or should have known of the whereabouts of a gas supply line owned by AGL at the site. It followed that the coronial material pointed to, did not make it appear that the offence with which the SRA had in fact been charged, had been committed and that the offence had therefore been brought out of time and must be dismissed. 60 For the prosecution it was submitted that the SRA was seeking to rely upon what was plainly a typographical error in the particulars provided and that, in order for the offence with which the SRA had been charged, to be brought within the time provided in s49(4), it was not necessary to point to coronial material which suggested that the gas line belonged to the SRA. Rather, it was sufficient to show that it had permitted AGL's gas line to remain charged while the construction work proceeded. 61 The submissions of the SRA as to this matter must plainly be correct. The offence with which it was charged does not appear from the coronial material relied upon to have been committed, there being nothing which indicated that the SRA had a gas supply line situated in the location in question. All of the material pointed to AGL having such a line located in that area. This conclusion was further confirmed by reference to other of the particulars provided, which lead to the same conclusion. Particular 4 and the coronial material relied upon provided: 4. Because of the nature and difficulty of the work place at the KSU which was situated adjacent to a railway station being used continuously by passenger trains and in the centre of the Kogarah Shopping Centre, safety was an acute problem: From the Coronial Report : Introduction (a)) : "Two explosions occurred in an about the premises known as the 'Family Amusement Zone' ('FAZ'), located at 13 Railway Parade, Kogarah, on 4 December 1995." (paragraph 1) : "One of the shopkeepers, Mr Hatzikiriakos went to the worksite at about 1:40pm and saw the excavator working and spoke to workmen there about leaking gas. Chris Stoeski then went to the footpath where the smell of gas was coming from and on hearing gas coming up through the cracks and joins in the footpath gave directions for the area to be barricaded off". (paragraph 43) : "I find that on 4 December, 1995, certain real and personal property situate at 13-15 Railway Parade, Kogarah, was destroyed by an explosion as a result of a gas pipe being damaged when excavation work was being carried out on property adjacent to the Kogarah Railway Station." From Coronial Proceedings: (Statement of Barrie J Bourchier, Detective Senior Constable of Police, to Police – 30/08/1996 – Exhibit 3 – paragraph 8): "The Family Amusement Zone is one of a number of shops located on the western side of Railway Parade which is the main street of the Kogarah shopping centre. Railway Parade at this point runs in a north to south direction. The rear of these shops from the border of the railway line." (Exhibit 35 - 3 x A4 photographs) (Police photographs 7, 8, 9 ,11, 12, and 13) (Josef photographs M, P, O) (Inquest Transcript of 30 April 1997 – line 22, page 83 to line 35, page 85 – Evidence of Bill Yazbeck – Cross-Examination by Mr Maconachie): "Q. As the station master on 4 December 1995 your responsibilities were directed to making sure that the trains ran on time through your station is that correct? A: That's correct." (CWM Submissions – paragraph 4): "The construction work performed by Abigroup under its contract with the SRA required the demolition of certain areas surrounding the Station, including a number of shops on the western side of Railway Parade. One of these shops was the fish and chip shop located at 7 Railway parade ("The fish and chip shop"). (CWM Submissions – paragraph 6): "There was an AGL natural gas connection to the fish and chip shop." 62 For the SRA it was submitted that the coronial material referred to said nothing about the nature and difficulty of this workplace, nor why safety was there an acute problem. Furthermore, reliance was in part wrongly placed upon submissions advanced for CWM, which could not provide a rational basis for a conclusion that an offence with which the SRA was to be charged appeared from the material. 63 The prosecutor submitted that all that was necessary for the coronial material relied upon to be relevant, was that there was a danger created which was not safe and did not involve risks to health, as required by s17 of the OH&S Act. 64 To my mind, the prosecutors' submission cannot be correct. The coronial material must support the view that the charge laid reflected an offence which appeared from the coronial material to have been committed, in something other than the general terms which were suggested. 65 Particular 28 and the particulars of the coronial material relied upon provided: The Defendant failed to record the nature of the gas hazard and the proposed method of dealing with the hazard in the Work Method Statement: From the Coronial Proceedings: (Statement of Ray Furfaro programme Manager Station Upgrading SRA, Exhibit 3, to Police – 5 December 1996, Annexure A – paragraph 2): "During 1993 it was decided to outsource the management of the Station Upgrading Programme. To this end tenders were called which resulted in a joint venture made up of four companies being awarded a contract by State Rail for management of the Station Upgrading programme. The four companies were formerly awarded the management contract on 1 August 1994 and have since renamed themselves "Capital Works Management" (CWM). The roles and responsibilities of the contract with CWM are contained within a full technical specification but in essence require CWM to arrange tendering to projects through State Rail's contract facilities then manage all site works to completion. I am appointed Superintendent for the contract between SRA and CWM." (Statement of Ray Furfaro Programme Manager Station Upgrading SRA, Exhibit 3, to Police – 5 December 1996, Annexure A – paragraph 3): "During the early part of 1995, CWM in conjunction with State Rail's Contract Division and the designing architect compiled the technical documentation for extensive upgrading works at Kogarah Station. The plans required a new station to be built virtually adjacent to the existing station and required the demolition of 3 shops owned by SRA along Railway Parade." (Statement of Ray Furfaro Programme Manager Station Upgrading SRA, Exhibit 3, to Police – 5 December 1996, Annexure A – paragraph 5): "The superintending organisation for the Abigroup contract is nominated as CWM and CWM have appointed Gary Dilly as the Contract Superintendent." (Statement of Ray Furfaro Programme Manager Station Upgrading SRA, Exhibit 3, to Police – 5 December 1996, Annexure A – paragraph 7): "One of my roles in the Station Upgrading Programme is to ensure the acceptance of projects by Executive, Staff, Unions, and Councils. To assist in this process I attended Kogarah Station on the following dates: 1/11/95, 7/11/95, 8/11/95, 23/11/95 and 29/11/95." (Statement of Eddie Blackwell, Senior Project Manager Station Upgrading, SRA, Exhibit 3, to Police 5 December 1996, Annexure A - paragraph 5): "During 1993 it was decided to outsource the management of Station Upgrading. Public tenders were called and a contract awarded to a consortium called Capital Works Management (CWM)." (Statement of Eddie Blackwell, Senior Project Manager Station Upgrading, SRA, Exhibit 3, to Police 5 December 1996, Annexure A - paragraph 6): "The roles and responsibilities of the contract are detailed in a full specification but in short, CWM manage agreed projects from initiation of concept drawings through site construction to the final commissioning and handing over." (Statement of Eddie Blackwell, Senior Project Manager Station Upgrading, SRA, Exhibit 3, to Police 5 December 1996, Annexure A - paragraph 7): " During the early part of 1995 CWM in conjunction with State Rail and the designing architect put together the specification for the major upgrading works which were to take place at Kogarah Station." (Statement of Eddie Blackwell, Senior Project Manager Station Upgrading, SRA, Exhibit 3, to Police 5 December 1996, Annexure A - paragraph 9): "In the contract between State Rail and Abigroup the Superintendent is CWM and their appointed representative is Mr Gary Dilly." (Statement of Eddie Blackwell, Senior Project Manager Station Upgrading, SRA, Exhibit 3, to Police 5 December 1996, Annexure A - paragraph 10): "One of my roles in the Station Upgrading Group is to carry out random site inspections to examine site safety and report to CWM and the Contractor on site any potential safety problems that may occur." 66 For the SRA it was submitted that it was apparent that in none of the coronial material relied upon was any reference made to a 'Work Method Statement'. It followed that there was simply no support to be found in the coronial material for the offence with which the SRA was in fact charged. For the prosecutor it was submitted to be unnecessary for support for all aspects of the charge to be found in the coronial material. For the reasons earlier given, I cannot accept that submission as accurately reflecting what s49(4) requires. 67 This review amply illustrates the importance of both the prosecutor, when initiating the proceedings, as well as the Court when considering whether to issue a particular summons under s4 of the Supreme Court (Summary Jurisdiction) Act, turning their minds to the question of whether the prosecution is brought within the time fixed by s49(4) of the OH&S Act. Here the offence with which the SRA was charged does not have the necessary foundation in the coronial material relied upon. The consequence of the prosecutor's failure to turn his or her mind to that matter at the outset and to put such material before the Court when launching the prosecution, has of course been that the SRA has had to pursue its notice in these contested proceedings. 68 Unless it be thought that it was only the offence with which the SRA was charged which suffered from difficulties such as this, I make it plain that that was not the case, as is further indicated below. I do not however propose to deal with each prosecution in detail, having in mind the conclusion which I have otherwise reached about the defendants' motions. 69 There is, it seems to me, an obvious public interest in prosecutors not commencing prosecutions which are not available to be brought within the time prescribed by s49(4). The time for that question be considered by a prosecutor is before the prosecution is launched, not after it is challenged by the defendant charged as being brought beyond time. Nor should a discretion under s170(3) of the Act in favour of the prosecution be needed, so that the prosecutor's failure to put before the Court at the hearing the basis upon which it is said that the prosecution was brought within time can be remedied. That discretion having nevertheless been exercised, the exercise of a further discretion should certainly then not be required, in order to remedy the prosecutor's failure to comply with the Court's order in its favour. On any view, such an approach must involve an abuse of process by the prosecution. 70 This conclusion, in my view, accords with the approach which Courts generally adopt to decisions made by prosecutors. In Maxwell v The Queen [1995-96] 184 CLR 501, Dawson and McHugh JJ observed at 512 'Our courts do not purport to exercise control over the institution or continuation of criminal proceedings, save where it is necessary to do so to prevent an abuse of process.' It was further said at 513 - 514: 'In R v Brown the indictment charged the accused with the offence to which he was prepared to plead guilty and the trial judge was not invited to approve anything. But s 394A of the Crimes Act expressly gives the Crown the right to elect to accept a plea of guilty to a lesser offence than that charged in the indictment and there is no reason to think that a court has the power to supervise the making of that election or to intervene, save to prevent an abuse of process, any more than it has where the accused pleads guilty to a lesser offence which is charged in the indictment. The decision whether to charge a lesser offence, or to accept a plea of guilty to a lesser offence than that charged, is for the prosecution and does not require the approval of the court. Indeed, the court would seldom have the knowledge of the strengths and weaknesses of the case on each side which is necessary for the proper exercise of such a function. The role of the prosecution in this respect, as in many others, "is such that it cannot be shared with the trial judge without placing in jeopardy the essential independence of that office in the adversary system" ( R v Apostilides (1984) 154 CLR 563 at 575). In R v Brown (1989) 17 NSWLR 472 at 479 the Court of Criminal Appeal recognised the substantial practical limitations upon the power of the courts to control the exercise by prosecuting authorities - in that case the Director of Public Prosecutions - of their discretion in such matters as the choice of the offence with which an accused is to be charged or the acceptance of a plea of guilty to a particular charge. The Court rightly observed that the most important sanctions governing the proper performance of a prosecuting authority's functions are likely to be political rather than legal. Nevertheless, the Court concluded that in an appropriate case a court may need to give effect to its own right to prevent an abuse of its process. That conclusion in undoubtedly correct, but the need for a court to exercise its inherent power to protect its own process should in this context rarely, if ever, arise. A mere difference of opinion between the court and the prosecuting authority could never give rise to an abuse of process. No doubt a court may, if it thinks it desirable to do so, express its view upon the appropriateness of a charge or the acceptance of a plea and no doubt its view will be accorded great weight. But if a court does express such a view, it should recognise that in doing so it is doing no more than attempting to influence the exercise of a discretion which is not any part of its own function and that it may be speaking in ignorance of matters which have properly motivated the decision of the prosecuting authority The court's power to prevent an abuse of its process is a different matter and the question of its exercise could only arise in this context if the prosecuting authority were seen to be acting in an irresponsible manner. That, as experience happily tells, is seldom, if ever, likely to occur.' 71 Similarly at 534, Gaudron and Gummow JJ observed: 'It ought now be accepted, in our view, that certain decisions involved in the prosecution process are, of their nature, insusceptible of judicial review. They include decisions whether or not to prosecute (See Connelly v Director of Public Prosecutions [1964] AC 1254 at 1277; R v Humphrys [1977] AC 1 at 46; Barton v The Queen (1980) 147 CLR 75 at 94-95, 110), to enter a nolle prosequi (See R v Allen (1862) 1 B & S 850 [121 ER 929]; Barton v The Queen (1980) 147 CLR 75 at 90-91), to proceed ex officio (See Barton v The Queen (1980) 147 CLR 75 at 92-93, 104, 107, 109), whether or not to present evidence (See, eg, R v Apostilides (1984) 154 CLR 563 at 575) and, which is usually an aspect of one or other of those decisions, decisions as to the particular charge to be laid or prosecuted (See R v McCready (1985) 20 A Crim R 32 at 39; Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 at 604-605). The integrity of the judicial process - particular, its independence and impartiality and the public perception thereof - would be compromised if the courts were to decide or were to be in any way concerned with decisions as to who is to be prosecuted and for what (Barton v The Queen (1980) 147 CLR 75 at 94-95; Jago v District Court (NSW) (1989) 168 CLR 23 at 38-39, 54, per Brennan J; at 77-78, per Gaudron J; Williams v Spautz (1992) 174 CLR 509 at 548, per Deane J; Ridgeway v The Queen (1995) 184 CLR 19 at 74-75, per Gaudron J.' 72 Here, the question with which the Court is concerned is not whether or not someone should have been prosecuted, that question does not arise. Rather, what requires consideration is whether the decision to prosecute having been made, it was available to be pursued, having in mind the time limits imposed by s49(4) of the OH&S Act. I take the view that it was not properly open to the prosecutors to launch these prosecutions without forming a view about that matter, having in mind the provisions of s49(4). The approach adopted has led to an abuse of process, which the defendants are entitled to resist. 73 It follows in all of these circumstances, that the further application by the prosecution for time to provide particulars, after the time ordered in August 2000, should be refused. 74 I have been influenced in that conclusion by various of the other arguments advanced by the defendants and will thus deal with them too. It is relevant to note as to these matters that as appears from the Coroner's report, some of the defendants were parties to a joint venture known as 'CWM'. The SRA had appointed CWM to perform certain work in connection with the upgrading of the Kogarah railway station, where on 4 December 1995, a gas explosion occurred. The circumstances of that explosion were the subject of the coronial proceedings here in question. 75 In the earlier judgment, consistent with the decision in Walco, I had concluded that s4(4) of the OH&S Act was concerned with the appearance of an offence, rather than the identity of the offender. In the case of the CWM joint venturers, it was, nevertheless, argued at the further hearing that in order to come within the extended time limit provided by s49(4) of the OH&S Act, it was insufficient for the prosecutor to point to evidence and findings in the coronial material concerning CWM alone. The prosecutor was also obliged, so it was argued, to demonstrate on the material relied upon, that the defendant charged with particular failures under the OH&S Act had committed the offence charged, including, for instance, that it had contractual responsibilities in respect of such aspects of the joint venture. 76 These submissions were advanced in a context where not only the particulars provided by the prosecution in relation to the coronial material referred to a great deal of material concerning CWM and not the individual defendants, who were not referred to at all, but also where the actual offences with which the individual defendants were charged referred to failures of CWM, rather than to their own failures. 77 For the prosecution it was argued that the defendants' submissions as to this matter were wrong, for essentially two reasons. The first, that I had already concluded in the earlier judgment that identity of the offender was a matter to be established at the hearing of the prosecution and was not a matter which had to appear from the coronial material, in order for the charge to be brought within the time provided in s49(4) of the OH&S Act. The second was that because the defendants were joint venturers in CWM, itself not a legal entity, it followed that identification of CWM was a sufficient basis for a connection to be established between the defendants and the particular offences with which they were charged. 78 In this respect it seems to me that while the arguments advanced for the prosecution were correct, so far as they went, they did not deal with the substance of the complaints now advanced in defendants' submissions. Plainly, s49(4) would not permit a prosecutor to launch a prosecution against someone who, on the coronial material, had no apparent connection at all with the offence in question. That, however, is not the case here in relation to the CWM joint venturers, who it seems had entered a management agreement with the SRA in relation to the work being performed at the time of the explosion. Part of the complaint was that while the necessary connection between CWM and the offences charged might appear from that material, there was no such connection made in the material between the charges and the individual joint venturers who had been charged with the offences. It was, however, also further complained that the defendants had been charged with failures which CWM had committed, rather than with their own failures and that difficulty was not a matter which could be treated as if it only concerned the identity of an offender. 79 It was common ground that CWM was a joint venture with no independent legal existence apart from the individual joint venturers. It follows that it was upon them that any obligations flowing under the OH&S Act in connection with the work performed by CWM fell. 80 In my view, in those circumstances, it was unnecessary, in order for the requirements of s49(4) of the OH&S Act to have been met, for the coronial material to have unravelled the obligations which flowed from the contractual arrangements between the joint venturers, as between themselves and indeed, with the SRA or others. 81 It may, for example, have been the case that the joint venturers took on certain rights and obligations in their contractual arrangements with the SRA, which made them vulnerable to prosecution under ss16 and 17 of the OH&S Act in the circumstances which gave rise to the events investigated by the Coroner. That would have been because the OH&S Act imposed various obligations upon each of them in respect of what they had taken on. It may also have been the case that, as between themselves, the joint venturers sought to arrange their affairs so that various of the parties to the joint venture had different roles and responsibilities in relation to the matters agreed with the SRA. 82 Whether any such arrangements existed, and if they did, whether they had the result of deflecting responsibilities and obligations which otherwise arose under the OH&S Act for individual joint venturers, are no doubt questions which could arise in a prosecution brought against an individual joint venturer. I cannot, however, see how such things are matters which it would be necessary to have appeared from the coronial material, in order for the time for prosecution in s49(4) of the OH&S Act to be satisfied. Matters such as these, it seems to me, go to the identification of the offender, rather than whether or not a particular offence appeared from the coronial material. 83 It follows, it seems to me, in the case of the charges brought against the CWM joint venturers, that identification of CWM in the coronial material could have provided a sufficient connection with the individual joint venturers, for the purposes of s49(4), in respect of offences with which they were charged, so long as these charges, when laid, concerned alleged failings of the individual joint venturer. That, however, is not how the charges were framed. For example, the defendant TMG International Pty Limited was charged with the following offence: 'Between 10 November 1995 and 4 December 1995 at Kogarah in the state of New South Wales, the defendant being a person who had, to any extent, control of non-domestic premises, to wit, the Kogarah Railway Station and adjoining areas which had been made available to persons (not being the Defendant's employees) as a place of work contrary to section 17(1)(a) of the Occupational Health & Safety Act , 1983 failed to ensure that the said premises were safe and without risks to health in that it had a charged gas supply line situated in an area where construction work was designed to occur.' 84 Control of non-domestic premises, is a feature of the offence. It was, however, not alleged that the defendant had such control. What was pointed to in the particulars of the offence charged and the coronial material relied upon, was that CWM had the relevant control and responsibilities. Particulars 7 & 8 and the material relied upon provided, for example: 7. CWM had control of the KSU to a degree pursuant to the terms of the engagement with the SRA and had a duty to supervise the performance of the work and ensure that the work was done in a safe manner and without risks to health: From the Coronial Proceedings: (Statement of Ray Furfaro, Programme Manager Station Upgrading SRA, Exhibit 3, to Police 5 December 1996 – Annexure A – paragraph 2): "During 1993 it was decided to outsource the management of the Station Upgrading Programme. To this end tenders were called which resulted in a joint venture made up of four companies being awarded a contract by State Rail for management of the Station Upgrading Programme. The four companies were formally awarded the management contract on 1 August 1994 and have since renamed themselves "Capital Works Management" (CWM). The roles and responsibilities of the contract with CWM are contained within a full technical specification but in essence require CWM to arrange tendering of projects through State Rail's contract facilities then manage all site works to completion. I am appointed Superintendent for the contract between SRA and CWM." (Statement of Ray Furfaro, Programme Manager Station Upgrading SRA, Exhibit 3, to Police 5 December 1996 – Annexure A – paragraph 3): "During the early part of 1995, CWM in conjunction with State Rail's Contract Division and the designing architect compiled the technical documentation for extensive upgrading works at Kogarah Station. The plans required a new station to be built virtually adjacent to the existing station and required the demolition of 3 shops owned by SRA along Railway Parade." (Statement of Ray Furfaro, Programme Manager Station Upgrading SRA, Exhibit 3, to Police 5 December 1996 – Annexure A – paragraph 5): "The superintending organisation for the Abigroup contract is nominate as CWM and CWM have appointed Gary Dilly as the Contract Superintendent." (Statement of Eddie Blackwell, Senior Project Manager Station Upgrading, SRA, Exhibit 3, to Police 5 December 1996 – Annexure A – paragraph 5): "During 1993 it was decided to outsource the management of Station Upgrading. Public tenders were called and a contract awarded to a consortium called Capital Works Management (CWM)." (Statement of Eddie Blackwell, Senior Project Manager Station Upgrading, SRA, Exhibit 3, to Police 5 December 1996 – Annexure A – paragraph 6): "The roles and responsibilities of the contract are detailed in a full specification but in short, CWM manage agreed projects from initiation of concept drawings through site construction to the final commissioning and handing over." (Statement of Eddie Blackwell, Senior Project Manager Station Upgrading, SRA, Exhibit 3, to Police 5 December 1996 – Annexure A – paragraph 7): " During the early part of 1995 CWM in conjunction with State Rail and the designing architect put together the specification for the major upgrading works which were to take place at Kogarah Station." (Statement of Eddie Blackwell, Senior Project Manager Station Upgrading, SRA, Exhibit 3, to Police 5 December 1996 – Annexure A – paragraph 9): "In the contract between State Rail and Abigroup the Superintendent is CWM and their appointed representative is Mr Gary Dilly." (Statement of Eddie Blackwell, Senior Project Manager Station Upgrading, SRA, Exhibit 3, to Police 5 December 1996 – Annexure A – paragraph 10): "One of my roles in the Station Upgrading Group is to carry out random site inspections to examine site safety and report to CWM and the Contractor on site and any potential safety problems that may occur." (CWM Submissions – paragraph 2): "On or about 29 July 1994 Capital Works Management ('CWM') was appointed by the SRA to provide project management services to the SRA in relation to the said Stations Upgrade Project, which included the refurbishment and development of the Station." (CWM Submissions – paragraph 3): "CWM was appointed superintendent of the contract between the SRA and Abigroup. The role of CWM as superintendent was to ensure that the conditions of the contract between the SRA and Abigroup were being carried out satisfactorily. CWM did not contract with any party other than the SRA. CWM was not the developer of the site, not the occupier of the site, and the only work it 'performed' on the site was that of superintending the contract between the SRA and Abigroup. CWM had not subcontractors." 8. Pursuant to the terms of the engagement CWM appointed a superintendent charged with the duty of ensuring the work was conducted in accordance with the contracts in a safe manner without risks to health: From Coronial Proceedings: (Statement of Ray Furfaro, Programme Manager Station Upgrading SRA, Exhibit 3, to Police 05/12/1996 – paragraph 5): "The superintending organisation for the Abigroup contract is nominated as CWM and CWM have appointed Gary Dilly as the Contract Superintendent." (Statement of Eddie Blackwell, Senior Project Manager Station Upgrading SRA, Exhibit 3, to Police 5 December 1996 – Annexure A – paragraph 9): "In the contract between State Rail an Abigroup the Superintendent is CWM and their appointed representative is Mr Gary Dilly." (Additional Statement of Peter G Deane, General Manager, Abigroup – to WorkCover, Inspector Maltby – 12/03/1996 – part Exhibit 37 – additional in answer to Q47): "Re Breach of Section 15 of OH&S Act. Additional to answer: (1) Please refer to our additional answer to Question 18. Also, during the course of the demolition works Abigroup site personnel and Capital Works Management, the Project Managers, were on site discussing protection of services and public safety on a continual basis. The Superintendent had no problems with our protection set-up." (Inquest Transcript – 01/05/1997 – page 6, lines 46-50 – Evidence of Eddie Blackwell – Cross examination by Mr Maconachie): "Q. Did your responsibilities extend to the work that was being performed outside the railway corridor? A. The day to day running of that project was the responsibility of the superintendent and the superintendent at that stage was CWM for that contract." (CWM Submissions – paragraph 3): "CWM was appointed superintendent of the contract between the SRA and Abigroup. The role of CWM as superintendent was to ensure that the conditions of the contract between the SRA and Abigroup were being carried out satisfactorily. CWM did not contract with any party other than the SRA. CWM was not the developer of the site, not the occupier of the site, and the only work it 'performed' on the site was that of superintending the contract between the SRA and Abigroup. CWM had no subcontractors." (CWM Submissions – paragraph 21): "No persons from either Abigroup or CWM were present on-site on 4 December 1995, only Josef & Sons personnel, as it was a Union picnic day, and as described above, no work was to be undertaken except for the removal of machinery." 85 For the prosecutor it was submitted by Mr Hislop as to these matters that: 'What is put against us is that it was necessary for the prosecutor to go further and establish from the Coroner's material the identity of each of the members of the consortium, CWM. Now that is what your Honour held did not have to occur and it was a nonsense really, when one thinks about it, if that was a correct statement of the law, it would mean you could have an entity which is not a legal entity in the sense it has no separate status, and even though it commits the most horrendous offences with the most horrendous results, section 49(4) would not apply if the Coroner did not happen to distinguish the members so that consortium from the consortium itself. But in any event the matter has been determined by your Honour adversely to the defendants in this regard.' 86 The submission in my view must be rejected. CWM was not a legal entity and while references to it in the coronial material might provide a rational basis for an appearance of an offence by an individual joint venturer, reference to failures of CWM in the actual offence with which a particular defendant is charged, cannot be a substitute for an allegation that the defendant has failed to meet the statutory obligation imposed upon it by the OH&S Act. 87 Section 49(4) of the OH&S Act deals with the circumstances in which the time of launching a prosecution outside the usual 2 year limitation period arises, those circumstances being concerned, as I have already found, with an offence appearing from coronial proceedings, not the identity of the offender being established. 88 Section 49(4) is not concerned with the evidentiary burden which will later fall on the prosecutor if a particular charge is pressed against a particular defendant at a hearing, to demonstrate that the offence was committed by the defendant charged. Nevertheless, for the reasons which I have earlier given, it will be necessary for the prosecution to form the view that the offence charged was brought within time. In that context, it cannot be sufficient for the offence which the prosecutor lays against a CWM joint venturer to allege that failure to meet the statutory obligation was the failure of an unincorporated joint venture, in which the defendant participated, rather than its own failure. 89 It was also argued for the defendants that the prosecutor, by s49(4) of the OH&S Act, was restricted to relying upon information before the Coroner, which was in the form of evidence admissible at a criminal trial. The prosecutors were also said not to be entitled either to paraphrase such material, or to rely upon other material which may have been obtained later, to establish that the prosecution was brought within time. 90 I cannot entirely agree with those submissions. The question of whether a prosecution is brought within time, is different to whether the prosecutor has sufficient evidence to lead to a conviction at a subsequent hearing. Both are undoubtedly important, but they are different considerations. 91 In forming the view as to whether the prosecution was available to be launched within the time provided in s49(4) of the OH&S Act, only the coronial material may be relied upon. I say 'coronial material', here as elsewhere, to include both the report and proceedings referred to in s49(4). The prosecutor may, of course, be in possession of other material, which could be relied upon in a trial to establish guilt. Such material will be relevant no doubt to the decision as to whether the prosecution should be launched. It is, however, not relevant to the question of whether the prosecution was brought within time. 92 I take the view that the argument that the prosecutor could not rely upon all of the evidence before the Coroner, for the purpose of forming a view as to whether the prosecution was within time under s49(4), but only the evidence which was in admissible form, must be rejected. 93 In the first place, the section speaks neither of evidence before the Coroner, nor of such of the evidence which could be tendered at a criminal trial as admissible evidence, as being the material from which the appearance of the offence must come. It is rather 'the Coroner's report or proceedings at the inquest or inquiry' which is referred to. The section could plainly have been structured more narrowly by reference only to admissible evidence, but it was not. 94 That it was not, militates against the construction urged for the defendants, which would require the plain words of the section to be read down in a significant way. That approach would have to be adopted in circumstances where the Coroners Act 1980 itself makes plain that a much broader class of material could come before the Coroner, where the rules of evidence do not apply. (See s33). It follows, it seems to me, that the construction urged is one at odds with the plain English meaning of the words used in s49(4) of the OH&S Act and one at odds with the structure of the Coroners Act 1980 as well. There is no ambiguity in the words of the section which would call for such a departure from the ordinary sense of the words used. It follows that it is a construction which must thus be rejected. 95 As to the arguments in relation to any reliance which the prosecutor might place upon submissions advanced before the Coroner, I take the view that they are not entirely irrelevant to the operation of s49(4). It was argued for the defendants that an offence could not appear from submissions advanced before the Coroner, so as to satisfy the requirements of s49(4) of the OH&S Act. In my view, that argument must be rejected. After all, it is quite possible for a person later charged with an offence under the OH&S Act, to have earlier advanced in submissions to the Coroner, an acceptance that an offence under the OH&S Act had been committed, or that an element of the offence existed. For instance, it could readily be imagined that a concession that a person was the employer of persons injured in a workplace accident, or the owner or occupier of premises at which such an accident had occurred, or that the system of supervision of work which was in place had broken down, could be made in submissions put before a Coroner by or for that person. 96 Even though the prosecutor might later be put to proof of such matters at a trial, in my view such submissions would provide an ample basis for a prosecutor to come to the view that it appeared from the proceedings that either an offence had been committed, or in the case of the other examples, that one element of the offence existed. The submissions would, after all, be part of the proceedings at the inquest or inquiry, indeed, they could be referred to in the Coroner's report. 97 It does not follow from this approach however, that a prosecutor could rely upon submissions advanced by one party at the coronial proceedings, in which allegations were made about another party, in order to form the view that it appeared from the proceedings that an offence appeared with which the second party was charged. That, it seem to me, would be quite different to admissions made by a party as to its own position, conduct and responsibilities. 98 The view that an offence appeared from the coronial proceedings must have some rational basis. Assertions or allegations by one party in submissions to the Coroner as to what another party's position, conduct or responsibilities were, or should have been, cannot provide a rational basis for the view that an offence appears to have been committed, which that other person is charged with. 99 These conclusions are of some significance here. Again, reference to the SRA will demonstrate the point. In the particulars with which it was provided, reference was made to submissions advanced to the Coroner for CWM. On my approach, it follows that while the prosecutor may have had regard to submissions advanced to the Coroner for CWM, in coming to the view that the offences with which the CWM joint venturers were to be charged appeared from the coronial material to have been committed, the same conclusion was not available in relation to the offences with which the SRA was charged. As to the SRA, regard may have been had to the submissions, if any, which it advanced to the Coroner, in coming to a view as to the offence with which it was charged, but those submissions could not have been relevant to the question of whether the offences with which the other defendants were to be charged appeared from the coronial material. 100 For the CWM joint venturers this was also of some significance because it was not only the submissions of the SRA to which reference was made in the particulars with which it was provided, but also submissions of other entities referred to in the coronial material, who were not members of this joint venture. In my view, such material cannot provide support the conclusion that an offence with which the CWM joint venturers have been charged, appears to have been committed. 101 I finally deal with the defendants' complaints about the voluminous nature of the particulars provided. I take the view that such a complaint of itself cannot provide a proper basis for the orders sought in the motions. 102 The parts of the coronial material upon which the prosecutors relied in order to demonstrate that the prosecutions were brought within time was certainly voluminous. The fact that there may be a great deal of material from which a particular offence appears in a particular case, cannot itself be a subject of complaint. What reference it may be necessary to make to such material will obviously depend upon the complexity of the proceedings before the Coroner and the offence with which the defendant is to be charged. 103 Here, the prosecution went to some trouble to indicate clearly what was relied upon in relation to each part of the offence charged and the particulars provided in relation to that offence, on an 'objective basis'. I have already dealt with the difficulty inherent in that approach, which did not reflect the views of the prosecutors who launched the prosecutions. That, I think, in this case has led to great difficulty. 104 In very many instances in the particulars provided, it was difficult to see what possible connection existed between the charge and the coronial material which it was said supported the appearance of that aspect of the charge. The material earlier quoted in relation to the SRA and TMG International prosecutions demonstrates some of this difficulty and explains the complaints which the defendants advanced as to the voluminous nature of the particulars provided. It was an approach significantly at odds with that adopted by the prosecutor in Walco, for example, and again illustrates the problem created by a failure to properly consider whether a charge which is proposed to be pursued is within time, at the time that the prosecution is to be launched. 105 Against those conclusions, I return then again to the question of the prosecutor's failure to comply with the Court's orders. As I have said earlier, there is an obvious public interest in offences against the OH&S Act being prosecuted. Nevertheless, as I observed in the earlier judgement, in enacting s49 of the OH&S Act, the Parliament did not see fit to generally extend time in every case where there is a coronial inquiry. Those provisions of the OH&S Act which deal with the time within which prosecutions may be launched must also be observed and given effect. 106 Here, a discretion was earlier exercised in favour of the prosecution having the first mentioned public interest in mind, in the circumstances I have outlined. There is also a public interest in prosecutors, like defendants, complying with their obligations under the Rules of the Court and the orders which the Court makes in the criminal proceedings, brought before it. Here there was a failure to meet those obligations, in circumstances where the orders were made so that the prosecution could rectify its earlier deficiencies. 107 To my mind, it is not an appropriate use of the discretion available under s170 of the Act, to ensure, effectively by trial and error, that a prosecutor is slowly brought to the position where the obligations which arise at outset, when the proceedings are initiated, are met. In this case, I have, of course, also taken the view that the prosecutors' failure to consider whether the offences with which these defendants were charged were available to be brought when they were launched, has led to an abuse of process in respect of which the defendants are entitled to relief. This became apparent at the further hearing. The prosecutions' endeavour to demonstrate that the offences were available to be brought on a search of the coronial material to find an objective basis for that view, was not conducted within the time ordered by the Court and did not in any event demonstrate that the coronial material supported the view that it there appeared that the offences charged had been committed. In all of these circumstances the proper course is for the Court to accede to the orders sought by the defendants. Orders 108 I reserve the question of costs. If they are not agreed, the parties have liberty to approach in relation to that matter. 109 For all of those reasons, I decline to issue the summonses sought under s4 of the Supreme Court (Summary Jurisdiction) Act 1967 and order that each of the proceedings be dismissed. ------------------------ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.