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 [2000] NSWIRComm 170 Matter Number IRC 5431 of 1999 PROSECUTOR: WorkCover Authority of NSW (Inspector Maltby) DEFENDANT/APPLICANT ON MOTION: State Rail Authority of New South Wales _______________________________________ Matter Numbers IRC 5460 - 5466 of 1999 PROSECUTOR: WorkCover Authority of NSW (Inspector Mansell) DEFENDANT/APPLICANT ON MOTION: TMG International Pty Limited _______________________________________ Matter Numbers IRC 5468 - 5471 of 1999 PROSECUTOR: PARTIES : WorkCover Authority of NSW (Inspector Mansell) DEFENDANT/APPLICANT ON MOTION: Ove Arup Consult Pty Limited _______________________________________ Matter Numbers IRC 5472 - 5477 of 1999 PROSECUTOR: WorkCover Authority of NSW (Inspector Mansell) DEFENDANT/APPLICANT ON MOTION: Arup Partner Pty Limited _______________________________________ Matter Numbers IRC 5478 - 5483 of 1999 PROSECUTOR: WorkCover Authority of NSW (Inspector Mansell) DEFENDANT/APPLICANT ON MOTION: Ove Arup Pty Limited FILE NUMBER: 5431, 5460, 5461, 5462, 5463, 5464, 5465, 5466, 5467, 5468, 5469, 5470, 5471, 5472, 5473, 5474, 5475, 5477, 5478, 5479, 5480, 5481, 5482, 5483 of 1999 CORAM: Schmidt J Occupational Health and Safety - notices of motion seeking dismissal of prosecutions - prosecutions commenced after expiration of limitation period - proper construction of s49 of the Occupational Health and Safety Act 1983 - whether prosecutor failed to comply with the requirements of Rule 219 of the Commission's Rules - effect of s170 of the Industrial Relations Act 1996 - requirements of s4 of the Supreme Court (Summary Jurisdiction) Act 1967 - proceedings not a nullity- prosecutor ordered to provide particulars of matters relied on in accordance with s49(4) of the Occupational Health and Safety Act 1983 - proceedings stood over - orders under s4 of the Supreme Court (Summary Jurisdiction) Act 1967 to be further considered CATCHWORDS : Practice and procedure - Rule 219 of the Commission's Rules and s170 of the Industrial Relations Act 1996 - proceedings not a nullity - discretion to order particulars exercised Occupational Health and Safety Act 1983 Industrial Relations Act 1996 Industrial Relations Commission Rules LEGISLATION CITED : Supreme Court (Summary Jurisdiction) Act 1967 WorkCover Legislation Amendment Act 1995 Coroners Act 1980 Industrial Arbitration Act 1940 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 Stanton v Abernathy (1990) 19 NSWLR 656 CASES CITED : Campbell v Broken Hill Proprietary Ltd [1960] AR 593 Ex parte Qantas Airways Ltd, Re Horsington (1969) 14 FLR 415 Electronic Rentals Pty Ltd v Anderson (1971) 124 CLR 27 Smith v Corrective Services Commission of NSW (1980) 147 CLR 134 HEARING DATES: 06/21/2000; 06/23/2000; 08/21/2000 DATE OF JUDGMENT: 08/29/2000 PROSECUTOR: Mr Hislop QC with Mr Shume of counsel SOLICITORS: Moray & Agnew Solicitors DEFENDANTS: STATE RAIL AUTHORITY OF NEW SOUTH WALES Mr Garling QC and Mr Grogin of counsel SOLICITORS: Tress Cocks & Maddox Solicitors & Notaries _______________________________________ 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 Greenwood SC with Mr Grady of counsel SOLICITORS: Phillips Fox Solicitors JUDGMENT: - 46 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Schmidt J DATE: 29 August 2000 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 These matters were heard together, by agreement. Each involved a notice of motion filed by the defendant seeking the dismissal of the prosecution in question 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'). The motions were later amended to raise questions as to how the proceedings had been commenced. 2 The issues thus raised for consideration concerned not only the proper construction of s49 of the OH&S Act, but also whether the proceedings were a nullity, having in mind the way in which they had been commenced. The construction questions arose in the context of an earlier consideration of the section by a Full Bench of the Court in Page v Walco Hoist Rentals Pty Limited (1999) 87 IR 286. The questions as to the commencement of the proceedings are to be considered in the context of another recent Full Court judgment in Ridge Consolidated Pty Ltd v WorkCover Authority of New South Wales (Inspector Mauger) [2000] NSWIRComm 151. The circumstances 3 The prosecutions were brought for various offences alleged under ss16 and 17 of the OH&S Act. To illustrate, one of the summonses in respect of each of the three defendants, provided: 'Matter Number IRC 5431 of 1999 - State Rail Authority of New South Wales 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 risk to health in that it had a charged gas supply line situated in an area where construction work was designed to occur. Particulars of the charge are: 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. Matter Number IRC 5460 of 1999 - TMG International Pty Ltd On 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 risk to health in that it had a charged gas supply line situated in an area where construction work was designed to occur. The Particulars of the charge are: 1. The Defendant was a participant in an unincorporated joint venture, known as the Stations Upgrade Joint Venture. 2. The participants of the joint venture registered a business name, Capital Works Management (CWM), which name it used for the purpose of identifying the joint venture in its trading activities. 3. The State Rail Authority of New South Wales (SRA) engaged the Defendant and the other participants in CWM for the design, the contract tender process and the supervision to completion of the upgrading work of a number of SRA facilities including the Kogarah Station Upgrading (KSU). 4. On or about 18 October 1995 Abigroup Contractors Pty Limited (Abigroup) was engaged by the SRA to perform construction work on the KSU. 5. On or about 8 November 1995 Abigroup engaged Josefs & Sons Contracting Pty Limited (Josefs) to perform work including the demolition of Shops 3, 5, 7 and 9 Railway Parade, Kogarah (the Building) as part of the KSU. 6. 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. 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. 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. 9. On or about 10 November 1995, John Princi, an employee of AGL Gas Networks Limited (AGL), attended and cut and capped the gas supply line to shop 7 Railway Parade, Kogarah. 10. 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. 11. The gas supply line remained charged. 12. Prior to 4 December 1995 the gas supply line became exposed when an excavator was used to remove the footings of the Building. 13. A stake was used to mark the gas supply line when it became exposed. 14. On 4 December 1995 Robert Campbell used a 7-8 tonne Daewoo excavator on the eastern side of the KSU to create a batter. 15. The excavator was used to create a batter in the area where the gas supply line was situated. 16. The Defendant failed to prevent work from being performed on 4 December 1995 when safety officers were not present at the KSU. 17. The Defendant failed to prevent the operation of earth moving machinery on the construction area close to the charged gas supply line. 18. 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. 19. The detachment of the gas supply line at the elbow joint allowed gas which was under pressure within the line to escape. 20. At approximately 2.00 p.m. on 4 December 1995 there was a gas explosion in the vicinity of FAZ. 21. At approximately 4.00 p.m. on 4 December 1995 a second gas explosion occurred in the vicinity of FAZ. 22. The gas explosions were of sufficient extent and severity that persons were injured thereby. 23. The existence of a charged gas supply line situated in an area where construction work was designed to occur was inherently dangerous. 24. The Defendant failed to ensure the charged gas supply line at the KSU was adequately protected. 25. The Defendant failed to ensure the gas supply line on the KSU was adequately identified. 26. The Defendant failed to ensure the gas supply line on the KSU was adequately marked. 27. The Defendant failed to ensure that the premises over which it had control to a degree were safe and without risks to health. 28. The Defendant failed adequately to supervise Abigroup and Josefs in the performance of their duties to ensure that the KSU was safe and without risks to health. 29. The Defendant failed adequately to inspect the KSU or have in place a regime of reporting about the conduct of construction work so that the KSU could be kept safe and without risks to health. 30. The Defendant failed to have the demolition site examined by competent specialists for the purpose of determining explosive materials or conditions which would be a risk to health or safety. 31. 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. Matter Number IRC 5467 of 1999 - Ove Arup Group On or about 10 November 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. The Particulars of the charge are: 1. The Defendant was a participant in an unincorporated joint venture known as the Stations Upgrade Joint Venture. 2. The participants of the joint venture registered a business name, Capital Works Management (CWM), which name it used for the purpose of identifying the joint venture in its trading activities. 3. The State Rail Authority of New South Wales (SRA) engaged the Defendant and the other participants in CWM for the design, the contract tender process and the supervision to completion of the upgrading work of a number of SRA facilities including the Kogarah Station Upgrading ("KSU"). 4. On or about 18 October 1995 Abigroup Contractors Pty Limited (Abigroup) was engaged by the SRA to perform construction work on the KSU. 5. On or about 8 November 1995 Abigroup engaged Josefs & Sons Contracting Pty Limited (Josefs) to perform work including the demolition of Shops 3, 5, 7 and 9 Railway Parade, Kogarah (the Building) as part of the KSU. 6. 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. 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. 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 contracts in a safe manner without risks to health. 9. On or about 10 November 1995 John Princi, an employee of AGL Gas Networks Limited (AGL), attended the KSU and cut and capped the gas supply line to Shop 7 Railway Parade, Kogarah. 10. 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. 11. The gas supply line remained charged. 12. The existence of a charged gas supply line situated in an area where construction was designed to occur was inherently dangerous. 13. The Defendant failed to ensure the charged gas supply line at the KSU was adequately protected. 14. The Defendant failed to ensure that the gas supply line on the KSU was adequately identified. 15. The Defendant failed to ensure the gas supply line on the KSU was adequately marked. 16. The Defendant failed to ensure that the KSU over which it had control to a degree was safe and without risks to health. 17. The Defendant failed adequately to supervise Abigroup and Josefs in the performance of their duties to ensure that the KSU was safe and without risks to health. 18. The Defendant failed adequately to inspect the KSU or have in place a regime of reporting about the conduct of construction work so that the KSU could be kept safe and without risks to health. 19. The Defendant failed to have the demolition site examined by competent specialists for the purpose of determining explosive materials or conditions which would be a risk to health or safety. 20. 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. 4 It was common ground that each of the prosecutions arose out of events culminating on 4 December 1995, with an explosion at a construction site at Kogarah railway station, which were the subject of a coronial inquest and inquiry. The proceedings before the Coroner went over 12 days between 9 December 1996 and 14 May 1997, with the Coroner's findings being given on 17 October 1997. 5 The summonses were all issued on 12 October 1999, together with numerous other summonses. This was outside the limitation period fixed by s49(1) of the OH&S Act and shortly prior to the expiry of the limitation period fixed by s49(4), if that provision applied to the summonses. In all, seventy seven prosecutions were commenced in the Registry in connection with these matters on the one day. 6 The proceedings were each commenced by application for summons, filed together with an affidavit verifying the application sworn by the prosecutor and a draft summons for signature by the Industrial Registrar. 7 No reference was made in any of those documents to the proceedings before the Coroner or that the application was brought in accordance with the time limit prescribed by s49(4) of the OH&S Act. It followed that on the face of the documents the applications for prosecution were filed beyond the time limits fixed by s49(1) of the OH&S Act. 8 They were, nevertheless, accepted when filed in the Registry and the summonses were issued after an enquiry was made by Registry staff of the prosecutor's solicitor, who advised by telephone that there had been a coronial inquest and that s49(4) of the OH&S Act was relied on. On the approach of the defendants, in those circumstances the summonses were a nullity, because the prosecutor had failed to comply with the requirements of Rule 219 of the Commission's Rules. Rules 219 and 220 applied to the application. They provide: '219. (1) Proceedings before the Commission for an offence (other than contempt) must, unless otherwise provided, be commenced by application for summons, must be accompanied by an affidavit verifying the allegations made in the application and must state: (a) the name and address of the person by whom the proceedings are brought (the prosecutor); and (b) the capacity in which the prosecutor is taking the proceedings; and (c) the name and address of the person against whom the proceedings are brought (the defendant); and (d) the Act and the section under which the application is made; and (e) the nature of the breach or offence which is alleged; and (f) particulars of any payment which it is alleged the defendant has failed to make, and whether an application is to be made pursuant to section 358 for an order in respect of those payments. (2) The application must also be accompanied by a summons, addressed to the defendant, for signature by or on behalf of the Registrar. 220. Where an application for a summons has been filed and it appears to the Registrar to be properly filed, the Registrar must issue the summons, commanding the defendant to appear before the Commission on the day and at the place specified. 9 During the course of the hearing a further question arose as to whether it was indeed the Industrial Registrar who had issued the summonses, given the signature appearing on each of them. 10 In that respect, s208 of the Industrial Relations Act 1996 ('the 1996 Act') and Rule 7(3) provided: 208. Functions of Industrial Registrar and Deputy Industrial Registrar (1) The Industrial Registrar has the functions conferred or imposed on the Industrial Registrar by or under this or any other Act or law. (2) A Deputy Industrial Registrar may exercise the functions of the Industrial Registrar: (a) as directed by the Industrial Registrar, and (b) during the absence of, or a vacancy in the office of, the Industrial Registrar. (3) Anything done or omitted by a Deputy Industrial Registrar in exercising a function of the Industrial Registrar has effect as if it had been done or omitted by the Industrial Registrar. (4) The regulations may make provision for or with respect to the functions of the Industrial Registrar Registrar to receive and submit all documents filed 7. (3) Where the signature of the Registrar is required on any document, a rubber stamp or other facsimile of that signature may be affixed to the document by such officer as the Registrar authorises.' 11 The evidence demonstrated that the various applications and other documents filed had not been considered by the Registrar and that the summons issued had not been signed by him or by a Deputy Industrial Registrar. The Registrar may have seen one of the summonses. He had, however, instructed Registry staff that they be issued, after being informed that the prosecutor would rely on s49(4) of the OH&S Act. The Registrar had some concern that this information had not been put before the Court in the initiating material, because he was aware that the section provided that '…if there are Coronial Proceedings an extension of time may be available to commence proceedings.' He, however, took the view that the summonses should be issued, instructing that 'It is not for us to decide the time issue. While you are correct to raise the issue, if WorkCover are saying that there has been an inquest and an extension to time, then we are to issue the process.' 12 The provisions of the Supreme Court (Summary Jurisdiction) Act 1967 also apply to the proceedings. Section 4(1) provides that: 'Upon an application being made by any person (in this Act referred to as the "prosecutor" in accordance with the rules, a Judge shall make an order - (a) ordering any person alleged in the application have committed an offence punishable in the Court in its summary jurisdiction to appear at a time and place specified in the order to answer to the offence charged in the order; or (b) ordering the apprehension of any such person for the purpose of the person's being brought before a Judge to answer to the offence charged in the order.' 13 No such order has yet been issued. 14 Before the hearing commenced, particulars were sought by some of the defendants, one such request and the response was: '9. It is noted that this summons relates to an alleged breach of the Act which occurred on or about 10 November 1995 and the proceedings were filed on 12 October 1999 well beyond the 2 year limitation period found in s49(1) of the Act. Does the prosecutor rely upon the provisions of the s49(4) of the Act? If so, please with precision identify what part or parts of the Coroner's Report or proceedings at the inquest or inquiry where it appears that an offence of the kind charged herein has been committed. 15 The response was: '9. Yes, This is a matter which is before the Court on a preliminary point to which you are a party and our submissions have already been served upon you.' 16 The prosecutions submissions did not, however, identify what was relied on in either the Coroner's report or proceedings. 17 During the course of the hearing the judgment in Ridge was given. On the resumed hearing the submission for the prosecution was that the effect of the judgment was to permit any irregularities in the commencement of these proceedings to be cured. The prosecutions were commenced within the time contemplated by s49(4) of the OH&S Act, with the filing in the Registry of the application for summons and supporting affidavit in accordance with the requirements of Rule 219. There was no requirement that any reference be made in these documents on the reliance placed by the prosecutor on s49(4) of the OH&S Act. In any event, any subsequent difficulties with the issuing of the summonses which flowed from a failure to refer to that provision were overcome when the defendants appeared before the Court. Furthermore, such difficulties were curable and not so as to result in the proceedings being a nullity. 18 The approach of the defendants was that Ridge was wrongly decided, but that, in any event, it did not deal with the issues which arose here for consideration. What required determination here was whether the prosecutor had failed to comply with the requirements of Rule 219, so that there was no competent prosecution on foot before the Court, which could be the subject of an order curing any irregularities. Ridge was not in point as it had dealt with circumstances where there was no question that the prosecutor had complied with the relevant requirements of Rule 219 in initiating the prosecution. The appearances 19 The following appearances were announced during the hearing: · Mr Hislop QC with Mr Shume of counsel for the prosecutor; · Mr Garling QC and Mr Grogin of counsel for State Rail Authority of New South Wales ('SRA'); · Mr Phillips of counsel for TMG International Limited; and · Mr Greenwood SC with Mr Grady of counsel for Ove Arup Pty Limited, Arup Partner Pty Limited, Ove Arup Consult Pty Limited. 20 The cases advanced for the defendants were identical in some respects but not in others. I have not distinguished, in my consideration, which defendant advanced the various matters which require determination. The evidence 21 Evidence was called from Mr Barrie Bourchier, Detective Sergeant, Police of Auburn Police Station. Many documents were also tendered. The Judgment in Ridge Consolidated Pty Ltd v WorkCover Authority of New South Wales (Inspector Mauger) 22 The Full Court there held at paragraphs 24 to 31: 24 The appellant's primary submission relies on the terms of Rules 219 and 220 of the Industrial Relations Commission Rules . The argument, as we understand it, is that for proceedings to be properly and validly commenced the application for summons must be accompanied by an affidavit verifying the allegations made. The application must also be accompanied by a summons addressed to the defendant, for signature by or on behalf of the Registrar. The fact that the affidavit filed did not properly verify the application filed rendered the summons that issued and the proceedings invalid. The particular failures identified as to verification were failures to verify the allegation that the defendant was an employer and to specify and verify the defendant's undertaking. The appellant placed great emphasis on the criminal nature of the proceedings and the importance in that context of the appropriate requirements to commence proceedings being complied with. 25 There are three significant difficulties with the submission made, and particularly so in light of the concessions made by the appellant as to the lack of defect in form or substance in the application for summons filed or in the terms of the summons issued. First, it involves a misunderstanding of the way in which the relevant provisions operate, and particularly as to how those provisions operate in relation to the commencement of proceedings. Second, they fail to take into account relevant authorities on the issue which, in our view, are correct and in respect of which nothing has been put in these proceedings which could lead to doubts as to the correctness of them. Third, the submission overlooks the fact and effect of s 170 of the Industrial Relations Act which has the effect of validating any proceedings which may not have been commenced in accordance with the relevant requirements of the statute or the Rules. We shall deal with each of these points briefly. 26 We preface our discussion with some short background. Section 168 of the statute deals with proceedings taken before the Commission in Court Session for, inter alia , breaches of the Occupational Health and Safety Act . In summary, it provides that the Summary Jurisdiction Act applies to any proceedings in the same way as it applies to any proceedings that may be taken before the Supreme Court in its summary jurisdiction and, for that purpose, a reference in the Summary Jurisdiction Act to the Supreme Court is taken to be a reference to the Commission in Court Session and a reference to rules is taken to be a reference to the Commission's Rules. 27 A consideration of the relevant provisions of the Summary Jurisdiction Act and the Commission's Rules indicates that the relevant provisions are, respectively, s 4(1)(a) and Rule 219(1). It may be that, in 1996, when the Industrial Relations Commission Rules were drafted the terms of the Summary Jurisdiction Act were not fully taken into account. It may also be the case that, since the Industrial Relations Act came into force in September 1996, the procedure contemplated by s 168 and the Summary Jurisdiction Act has not been followed by the Registry or the Commission in relation to the initiation of such proceedings. That is a question upon which we do not consider it necessary to express a final view. We consider, however, that Rule 219(1) does provide a scheme which operates effectively when read in conjunction with s 168 of the Industrial Relations Act and s 4(1) of the Summary Jurisdiction Act . 28 On its proper construction, s 4(1) of the Summary Jurisdiction Act when read with Rule 219(1) of the Commission's Rules requires proceedings to be commenced by the filing in the Registry of an application for a summons stating the matters set out in paragraphs (a) to (e) of Rule 219(1) (and, where relevant, stating the matters in paragraph (f)) and which must be accompanied by an affidavit verifying the allegations made. On the proper construction of those provisions the proceedings are properly and validly commenced when, without more, the application is filed in the Registry. So much, as we have said, is clear on the face of the relevant provisions. Nevertheless, that construction is supported by the judgment of the Court of Criminal Appeal in McGerty v Dairy Farmers Co-operative Ltd (1989) 43 A Crim R 308. In that case, Loveday J held at 311 (in a judgment concurred in by Gleeson CJ and Newman J) in relation to similar but not identical provisions: The difficulty, as I see it, in relation to such an argument is that it ignores the rules to which I have already referred. The proceedings in the present case were proceedings which were required, by Pt 75, r 7 and by Pt 7, r 6 to be commenced by the filing of a summons. The summons was filed in the registry as provided by Pt 7, r 6(2). The rules are explicit as to this and differ from the procedure applicable to the laying of an information before a justice. (emphasis in original) 29 The argument to which his Honour was referring, and which was rejected by the court as relating to different provisions and different circumstances entirely, was an argument based on the judgments of the High Court in John L Proprietary Limited v Attorney General for New South Wales 1987) 163 CLR 508 at 516 and Electronic Rentals Pty Ltd v Anderson (1971) 124 CLR 27 at 39. The Chief Justice, although concurring in the judgment of Loveday J, added short observations which included the following: I agree. The question of the method and time of commencement of the present proceedings is to be resolved as a matter of the construction of the rules of this Court, which are, by virtue of the provisions of Pt 6, r 2 of the Land and Environment Court Rules , deemed to form part of the rules of the Land and Environment Court. The provisions of Pt 75, rr 6, 7, 8, and 9 and Pt 7, r 6 of this Court, to my mind, make it clear that the method of commencement of proceedings such as these is by filing in court a summons. The time of commencement is the time of filing the summons. 30 It is also relevant to observe that in John L Proprietary Limited , the High Court (Mason CJ, Deane and Dawson JJ) held, at 514, that proceedings were commenced or instituted under the Summary Jurisdiction Act by the filing of a summons in the Supreme Court. However, because the Supreme Court Rules are relevantly displaced in favour of the Commission's Rules in proceedings such as the present, the counterpart to the filing of a summons is the filing of an application for summons. Accordingly, the construction we consider appropriate is also confirmed by this finding in John L Proprietary Limited . 31 Reference should also be made to the judgment of Marks J in WorkCover Authority of New South Wales (Inspector Lancaster) v Re-car Consolidated Industries (Wagga) Pty Ltd (unreported, Marks J, Matter Nos. IRC97/4663, 4664 and 4666, 14 July 1999) at 3 - 7. In that judgment, his Honour dealt with similar but not identical submissions to those put in these proceedings. It was not necessary for his Honour to deal with all of the matters with which we are concerned and it was necessary for his Honour to deal with some matters with which we are not concerned. It is sufficient, therefore, to indicate that to the extent his Honour dealt with matters with which this judgment is concerned, we observe that our conclusions are consistent with those of his Honour and that his Honour also relied upon the judgment of the Court of Criminal Appeal in McGerty .' 23 At paragraphs 33, 34 and 38 it was concluded that: '33 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. 34 In any event, we consider that nothing turns upon any subsequent irregularity in this matter because of the fact that both parties subsequently appeared before the Court. We note in that regard the terms of s 12 of the Summary Jurisdiction Act which provide that if both parties appear at the time and place appointed for hearing, or to which the hearing or further hearing has been adjourned, the judge shall proceed to hear the case. We consider that the terms of that provision result in the circumstance where both parties appear before the judge is sufficient to enable the proceedings validly to continue to a conclusion. … 38 Once it is accepted that s 170 applies to these proceedings, the effect of s 170(3) is to bring about a situation where any failure to comply with the Industrial Relations Act or a Rule of the Commission in relation to the institution or conduct of proceedings before it is to be treated, not as a nullity, but as an irregularity. This construction should not be seen as inconsistent with the requirements of fairness, the proper administration of justice or the rights of an accused to a fair trial. Section 170 provides (for example in sub-section (4) thereof), wide powers in the Commission to set aside the proceedings, or a step taken in the proceedings, in circumstances where it considers it just and appropriate to do so. In any event, as recently observed by the Court of Appeal in Director of Public Prosecutions v West [2000] NSWCA 103 at 124: There is a legitimate public interest in the conviction of those guilty of crime so long as the fairness of the trial is not compromised ( Ridgeway v The Queen (1995) 184 CLR 19 at 32, 75).' 24 In these proceedings, I am bound to follow the conclusions reached by the Full Court in Ridge, with the result that if the requirements of Rule 219 were met by the prosecution, irregularities in the institution of these proceedings are curable and not a nullity. Furthermore, in that event, if the parties appear before the Court, at the time and place appointed for hearing, there is no need for an order in accordance with s4 of the Supreme Court (Summary Jurisdiction) Act to be issued. 25 The further conclusion in Ridge at paragraph 38 that 'any failure to comply with the Industrial Relations Act or a Rule of the Commission in relation to the institution or conduct of proceedings before it is to be treated, not as a nullity, but as an irregularity', may be obiter, given the issue there before the Court. It is, however, a conclusion to which regard must be had, particularly given the reference there made to the provisions of s170 of the 1996 Act. 26 I further note in Ridge the Full Court declined to consider the requirements of s4(1) of the Supreme Court (Summary Jurisdiction) Act (at p29-30). That issue arises here for consideration. Section 49 of the Occupational Health and Safety Act and the Judgment in Page v Walco Hoist Rentals Pty Limited 27 Against that background, I turn to the construction of s49 of the OH&S Act. Sections 15, 16, 17 and 49 of the OH&S Act provide: 15. Employers to ensure health, safety and welfare of their employees (1) Every employer shall ensure the health, safety and welfare at work of all the employer's employees. (2) Without prejudice to the generality of subsection (1), an employer contravenes that subsection if the employer fails: (a) to provide or maintain plant and systems of work that are safe and without risks to health, (b) to make arrangements for ensuring safety and absence of risks to health in connection with the use, handling, storage or transport of plant and substances, (c) to provide such information, instruction, training and supervision as may be necessary to ensure the health and safety at work of the employer's employees, (d) as regards any place of work under the employer's control: (i) to maintain it in a condition that is safe and without risks to health, or (ii) to provide or maintain means of access to and egress from it that are safe and without any such risks, (e) to provide or maintain a working environment for the employer's employees that is safe and without risks to health and adequate as regards facilities for their welfare at work, or (f) to take such steps as are necessary to make available in connection with the use of any plant or substance at the place of work adequate information: (i) about the use for which the plant is designed and about any conditions necessary to ensure that, when put to that use, the plant will be safe and without risks to health, or (ii) about any research, or the results of any relevant tests which have been carried out, on or in connection with the substance and about any conditions necessary to ensure that the substance will be safe and without risks to health when properly used. (3) For the purposes of this section, any plant or substance is not to be regarded as properly used by a person where it is used without regard to any relevant information or advice relating to its use which has been made available by the person's employer. (4) If in proceedings against a person for an offence against this section the court is not satisfied that the person contravened this section but is satisfied that the act or omission concerned constituted a contravention of section 16, the court may convict the person of an offence against that section. Maximum penalty: 5,000 penalty units in the case of a corporation or 500 penalty units in any other case. 16. Employers and self-employed persons to ensure health and safety of persons other than employees at places of work (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. (2) Every self-employed person shall ensure that persons not in the person's employment are not exposed to risks to their health or safety arising from the conduct of the person's undertaking while they are at the person's place of work. (3) If in proceedings against a person for an offence against this section the court is not satisfied that the person contravened this section but is satisfied that the OH&S Act or omission concerned constituted a contravention of section 15, the court may convict the person of an offence against that section. Maximum penalty: 5,000 penalty units in the case of a corporation or 500 penalty units in any other case. 17. Persons in control of workplaces, plants and substances used by non-employees to ensure health and safety (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. Maximum penalty: 5,000 penalty units in the case of a corporation or 500 penalty units in any other case. (2) Where a person has, by virtue of any contract or lease, an obligation of any extent in relation to: (a) the maintenance or repair of any premises referred to in subsection (1) (a) or any means of access thereto or egress therefrom, or (b) the safety of, or the absence of risks to health arising from, any plant or substance referred to in subsection (1) (b), that person shall be treated, for the purposes of subsection (1), as being a person who has control of the thing to which the person's obligation extends. (3) A reference in this section to a person having control of any thing is a reference to a person having control of the thing in connection with the carrying on by the person of a trade, business or other undertaking (whether for profit or not). 49. Time for instituting proceedings for offences (1) Notwithstanding anything in any other Act, proceedings for an offence against this Act or the regulations may be instituted within the period of 2 years after the act or omission alleged to constitute the offence. (2) Proceedings for an offence against section 18 (Manufacturers, suppliers etc to ensure health and safety as regards plant substances for use at work) may be instituted, despite subsection (1): (a) within 2 years after the act or omission alleged to constitute the offence, or (b) within 6 months after it first becomes apparent to the WorkCover Authority that the act or omission alleged to constitute the offence has occurred, whichever provides the longer time for proceedings to be instituted. (3) Proceedings for an offence against section 27 (Notification of accidents and other matters) may be instituted, despite subsection (1): (a) within 2 years after the act or omission alleged to constitute the offence, or (b) within 6 months after the WorkCover Authority first becomes aware of the act or omission alleged to constitute the offence, whichever provides the longer time for proceedings to be instituted. (4) 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.' 28 Section 49(4) of the OH&S Act was inserted into the Act in 1995, commencing on 1 February 1996, but with effect in respect of acts or omissions constituting an offence 'which occurred within two years before the commencement of the subsection.' (See clause 13 of Schedule 8 - Savings and Transitional Provisions of the WorkCover Legislation Amendment Act 1995.) It follows that the provisions of s49(4) were operative at the date of the offences alleged in these proceedings, namely between 10 November and 5 December 1995. 29 This is, however, only the case if the circumstances contemplated in s49(4) existed in respect of each of the prosecutions which arises here for consideration. That is, it must be shown in each case that from the Coroner's report or the proceedings that 'it appears … that an offence has been committed', in order to permit the institution of proceedings in respect of the offence outside the ordinary two year limitation period imposed by s49(1). In making that observation, I put to one side for the moment, the arguments advanced as to the proper approach to s49(4) when proceedings before the Coroner have concluded with a report. I will return to this question below. 30 The limitation period, so understood, is of real importance to the initiation of a prosecution. In order for a prosecution launched outside the period prescribed in s49(1) to be competent, it must be brought within the extension provided for in s49(4). Proceedings being commenced before the Coroner will not of themselves activate the extension period provided in s49(4). 31 In enacting the OH&S Act, Parliament obviously took a particular view as to the public interest which was being served by the offences which it created. The limitation periods prescribed in s49 of that OH&S Act are, however, another and equally important aspect of the public interest which the Parliament was acting to protect. The legislation balanced on the one hand, the conduct which it proscribed and on the other, the time within which prosecutions in respect of such proscribed conduct must be launched. 32 It is obvious that neither a prosecutor nor this Court is at liberty to ignore the Parliamentary intent inherent in s49. It follows that a prosecutor should not launch a prosecution unless satisfied that it is brought within the limitation period prescribed by s49 of the OH&S Act and that the Court should not permit a summons to be issued, unless it too is so satisfied. 33 In the usual case, such satisfaction is readily attainable. It will be obvious from the face of the initiating process whether or not a prosecution is brought within the time limit prescribed by s49(1), having regard to the date of the offence which is alleged. If more than two years has elapsed since that date, the prosecutor should not seek to launch a prosecution and the Court should not issue a summons in respect of such an offence, because the time for prosecution has expired. It is but stating the obvious to note that it would be an injustice to require a defendant to meet a charge which is brought outside the limitation period fixed by the Parliament in respect of such offences. 34 The same broad concepts apply in cases where s49(4) of the OH&S Act arises for consideration. They are, however, of somewhat more difficult application. The legislature has not seen fit to enact a broad extension of time for prosecution under the OH&S Act in every case where there is a coronial inquest or inquiry. It could have done so, but did not. It elected to extend time in a more limited class of cases. 35 Here the approach of the prosecutor to the construction of s49(4) proceeded on the broadest possible construction of the subsection. In effect, in the prosecutor's view, so long as either the Coroner's report or the proceedings make it appear that someone had committed an offence under the OH&S Act or regulations, the prosecutor is free to prosecute any person in respect of that offence, or any other offence under the OH&S Act or regulations, whether referred to in the proceedings or the Coroner's report or not. As I understood the argument, the only limitation appeared to flow from a relevant connection between the subject matter of the prosecution and the events which were the subject of the proceedings before the Coroner. This would have the result that persons who had not appeared before the Coroner or had not had an opportunity to be heard by the Coroner might be charged in connection with offences under the OH&S Act arising out of circumstances considered or touched upon in those proceedings, so long as the Coroner's report made it appear that an offence under the OH&S Act had been committed by someone. 36 To illustrate the construction it is useful to refer to an example raised in submissions. It would mean that, in this case, the occupier of the premises at which the explosion had occurred or the employer of those working there could be charged with an offence under the OH&S Act, within the extension contemplated in s49(4), even if the only offence which it appeared from the Coroner's report or proceedings had been committed was one committed by the Commissioner of Police, in connection with the attendance of police officers, who were responding to the aftermath of the explosion. 37 The defendants' approach was to a quite different effect. On their approach, not only was there a need for identity between the offence charged and the report or proceedings before the Coroner, which made it 'appear that an offence had been committed' under the OH&S Act, but also a need for the offender to be identified in the report or the proceedings. 38 It seems to me that neither approach can be correct. In Walco, the Full Court had before it a number of questions of law referred by the President, Justice Wright. At p288, the Court noted that the sole issue in the case was 'whether, and if so, in what circumstances, subs (4) of s49 prevails over subs (1) thereof in fixing the time within which proceedings for offences against the OH&S Act are to be instituted where a Coroner's inquest or inquiry is held'. 39 That question arose in circumstances where there were facts agreed between the parties, which included that the inquest was conducted on the same day as the Coroner gave his report; that prior to the inquest the prosecutor was in possession of evidence of a prima facie case that the defendants had committed the offences charged and that nothing new was disclosed in the proceedings or the Coroner's report. 40 In Walco, the Full Court concluded at p289 that s49(4) laid down two tests for it to take effect, namely that a Coroner's inquest or inquiry is held and that it appears from the report or proceedings that an offence has been committed. It went on to conclude at pp292-3 that in the case there in question, it appeared from both the report and the proceedings 'that offences under the Occupational Health and Safety Act have been committed as charged in the respective summonses filed herein.' 41 This latter conclusion flowed from the Full Court's consideration of the second aspect of s49(4), namely, that if it appears from the Coroner's report or the proceedings that an offence under the OH&S Act has been committed, then 'proceedings in respect of that offence' may be instituted within 2 years after the date the report was made or the proceedings concluded. These latter words of s49(4) plainly contemplate a prosecution in respect of 'that offence' proceeding and no other. 42 Adopting that approach to the construction of s49(4), with which I agree, it follows that contrary to the construction urged for the prosecutor, a prosecution may only be launched in the time prescribed by s49(4), if it appears from the Coroner's report or the proceedings that the offence with which the defendant has been charged, namely 'that offence', has been committed. 43 The consequence is that a prosecution may be launched within the time extended by s49(4), in respect of any offence which appears from the Coroner's report or the proceedings to have been committed, but no others. 44 As to the construction urged for the defendants, the conclusion I have reached is that s49(4) does not require that the Coroner's report or the proceedings identify the offender. It is the offence with which s49(4) is concerned, not the offender. 45 This conclusion flows not only from the plain words of s49(4) OH&S Act, which do not expressly require the offender to be identified, but also from a consideration of the scheme of the OH&S Act itself. Sections 15, 16 and 17, for example, create offences which include failures of employers, self employed persons, those who engage contractors and those who control particular premises. In such prosecutions, difficult questions can arise as to whether a particular person is an employee or a contractor, or if in employment, who the employer is. 46 In that context, that s49(4) would be concerned with the appearance that an offence has been committed, rather than with the question of who the offender might be, is hardly surprising. That is particularly so, given that the extension is granted in the context of proceedings before the Coroner. 47 Sections 22 and 22A of the Coroners Act 1980, for example, preclude a Coroner identifying a person who appears to have committed an offence. In the context of that prohibition, it would seem extraordinary to conclude that it was intended in s49(4) of the OH&S Act that the identity of an offender be required to be established by the Coroner's report. It would thus seem to follow from the construction advanced for the defendants that a significant part of s49(4) would, in reality, have no work to perform, it not being intended by the Coroners Act that the Coroner would identify persons who have committed offences. That result militates obviously against the construction for which the defendants contended. Furthermore, while identity of an offender might be established in the proceedings before the Coroner, it is difficult to envisage that questions such as the identity of an employer or whether a person was an employee or not would ever arise for consideration. Such matters may very well require determination in order that the identity of an offender be established. 48 It follows, as was submitted for the prosecution, that establishment of the identity of the offender is a matter for the prosecutor to establish in the prosecution brought under the OH&S Act and not a precondition to the extension of time provided for in s49(4). 49 There were other aspects of the construction of s49(4) which were argued. I will deal with these later. It is convenient to deal at this point, however, with the question of what must be done by both the prosecutor and the Court in launching a prosecution under the OH&S Act, in circumstances to which s49(4) applies, having in mind what I have already concluded as to its proper construction. 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. 50 In this case there was no evidence that the prosecutor was so satisfied. Neither the application, the proposed summons nor the prosecutor's affidavit made mention of these matters at all. The prosecutor was not called to give evidence. Further, the prosecutor refused to give the defendants particulars of what it was in the report or the proceedings on which the prosecutor had relied in coming to the view that it appeared the offences with which they had been charged had been committed. 51 The prosecutor plainly failed in that refusal. There had, in my view, also been an earlier failure to comply with the requirements of Rule 219(d). The prosecutor is thereby obliged to state the act and the section under which the application was made. Given that all of the applications on their faces were outside the ordinary limitation period provided for prosecutions under the OH&S Act, it is in my view unarguable that a reference to s49(4) was required. Further, Rule 219(e) required that the nature of the offence alleged be specified. In my view, this also required specification of what it was in the Coroner's report or the proceedings on which the prosecutor relied. 52 If this view were wrong, it would mean that no matter how long out of time a prosecution might appear to be, a summons under the OH&S Act would have to be issued by the Court upon application by a prosecutor. That proposition is, in my view, extraordinary and plainly wrong. It cannot be the case that the question of whether a prosecution is brought within time is to be left for determination as a part of the prosecution itself. This is a matter about which the prosecutor and the Court must have a basis for satisfaction when the proceedings are commenced. 53 The next matter to be considered is whether the prosecutor's failures to comply with the requirements of Rule 219 operated so as to make the proceedings a nullity, as the defendant's argued. 54 I have concluded, not without some difficulty I might add, that they did not. Following the views expressed by the Full Court in Ridge at paragraph 38, I have come to the view that the proper conclusion is that the deficiencies are such as to attract the provisions of s170 of the 1996 Act. That view flows from the conclusion that s170 applies to these proceedings. Were that view wrong, it would follow that these prosecutions would have to be dismissed. Section 170 provides: (1) The Commission may, in any proceedings before it, make any amendments to the proceedings that the Commission considers to be necessary in the interests of justice. (2) Any such amendment may be made: (a) at any stage of the proceedings, and (b) on such terms as the Commission thinks fit (including, if it can award costs in the proceedings, terms as to costs). (3) If this Act, the regulations or a rule of the Commission is not complied with in relation to the institution or conduct of proceedings before the Commission, the failure to comply is to be treated as an irregularity and does not nullify the proceedings, any step taken in the proceedings, or any decision in the proceedings. (4) For the purposes of subsection (3), the Commission may wholly or partly set aside the proceedings, a step taken in the proceedings, or a decision in the proceedings. 55 In Ridge the interaction between s170 of the 1996 Act and s6 of the Supreme Court (Summary Jurisdiction) Act was not discussed. The latter section is however relevantly concerned with defects in substance or form in an application brought under that Act. The former is relevantly concerned with a failure to comply with regulations or rules of the Commission in the institution or conduct of proceedings before the Commission. On their face, these are different matters. 56 There is no reason to doubt that s170 applies to these proceedings. Section 168 itself refers to proceedings for an offence being taken before the Commission in Court Session. In Ridge it was held at paragraph 35 that s168(4) did not have the effect of making the provisions of s170 irrelevant to proceedings to which s168 applies. That is a view consistent with other provisions of the 1996 Act, such as s169(5), which expressly provides that that section does not apply to criminal proceedings before the Commission in Court Session. No such exclusion appears in s170 of the 1996 Act. 57 Section 170, of course, provides a discretion in the Commission. In this case its exercise is somewhat troubling. The prosecutor submitted that rather than the prosecutions being dismissed, in these proceedings the proper approach would be to provide the prosecutor with an opportunity to give the defendants the particulars relied upon. Having in mind not only the prosecutor's refusal, thus far to provide the defendants with such particulars, but also the approach adopted at the hearing to the question of the identification of the offences which the prosecution said appeared from the Coroner's report or the proceedings to have been committed, I have been in some doubt as to whether the discretion should be exercised. 58 It was obvious that the prosecutor's approach flowed from the construction of s49(4) of the OH&S Act which was advanced, as Mr Hislop submitted. Nevertheless, two matters have concerned me. The first is that I can see no reason why the prosecutor's obligation to give particulars in relation to what offences it says appear from the Coroner's report or proceedings, so as to enliven s49(4), is any different to the obligation which the prosecutor has to give particulars of the offence charged. 59 That obligation has oft been discussed. It was particularly described by Gleeson CJ (as he then was) in Stanton v Abernathy (1990) 19 NSWLR 656 at 671-2: I have already indicated my views as to what would constitute adequate particulars. It is simply not good enough for the prosecution to rely upon the totality of the transcript …' 60 I similarly take the view that it is here not good enough for the prosecutor to refer to the totality of the Coroner's report, the transcript and the exhibits in the proceedings before the Coroner and to take the view that it is a matter for the defendants to establish that a prosecution is not brought within the time extended by s49(4). 61 My second concern arises in relation to s4 of the Supreme Court (Summary Jurisdiction) Act. Apart from the public interest which lies in prosecutions which are beyond time not being pursued by a prosecutor or permitted by the Court, it is difficult to see why the decision to issue a summons in accordance with s4 of that Act is not one which should be exercised judicially. With that in mind the prosecutor's failure to identify in the materials placed before the Court, when the proceedings were commenced or even at this hearing, those aspects of the Coroner's report or proceedings which it was said made it appear that an offence had been committed must be considered. In my view, these are not insignificant matters. 62 In Campbell v Broken Hill Proprietary Ltd [1960] AR 593 at 598-601, McKeon J considered the need for affidavits sworn in verification of offences alleged under the former Industrial Arbitration Act 1940, to demonstrate sufficient facts to show that there was a good cause of action. While a different statutory scheme was there under consideration, that approach was not similar to that discussed by Sugerman JA in Ex parte Qantas Airways Ltd. ; Re Horsington (1969) 14 FLR 415 at 423-424. '(1) That in receiving a complaint and issuing a summons thereon (a fortiori in receiving an information where there is for the justice the further question whether a warrant should be issued in the first instance - Justices Act , s. 59) a justice is not acting merely ministerially in the sense that he is bound to issue his summons upon the mere receipt of the complaint. He is not bound to act mechanically or as a mere rubber stamp. He has a discretion to be exercised by him ( Justices Act , s.60) and upon whose exercise a judicial mind is to be brought to bear. He must, that is to say, act "judicially" in the second of the senses earlier referred to, which is not the sense which was relevant in the two decisions of the High Court just cited: this latter is the sense referred to by Isaacs J. (as he then was in Huddart, Parker & Co. Pty. Ltd. v . Moorehead (1909) 8 C.L.R., at p. 383), citing from Palles C.B. in Reg. v. Local Government Board [1902] 2 I.R. 349, at p.373. He may, according to the cases earlier cited, refuse to issue his summons if there is no prima facie case or the proceeding is vexatious, and perhaps on other grounds as well - for example, that the complaint is out of time or that the complainant is not authorized by law to lay it, or that some necessary consent has not been obtained. 63 This judgment was cited with approval by the High Court in Electronic Rentals Pty Ltd v Anderson (1971) 124 CLR 27 at 41 per Windeyer J with whom Barwick CJ and Owen J agreed. At p39, it was said: '"A summons", said Lord Goddard C.J., "is the result of a judicial act. It is the outcome of a complaint which has been made to a magistrate and upon which he must bring his judicial mind to bear and decide whether or not on the material before him he is justified in issuing a summons" : R. v. Wilson; Ex parte Battersea Borough Council [1948] 1 K.B. 43, at pp. 46-47. This does not mean that the issuing of a summons is a judicial act in the same sense as is an adjudication to determine the rights of parties. Probably it would be better described as an administrative or ministerial act, or, as this Court said in Donohue v. Chew Ying (1913) 16 C.L.R. 364, as a matter of procedure. But, however described, a justice who receives an information must decide whether or not he should issue a summons. He has a discretion and he must exercise it in a judicial manner. This is well shewn in the learned judgments of the Supreme Court of New South Wales in Ex parte Qantas Airways Ltd, ; Re Horsington (1969 ) 71 S.R. (N.S.W.) 291 ; 90 WN. (Pt 2) 55. A justice must not arbitrarily refuse to issue a summons. If, without some good and sufficient reason, he refuses to do so after he has received and considered an information or complaint duly laid, mandamus will lie : see e.g. R. v. Scott ; Ex parte Church [1924] S.A.S.R. 220.' 64 To my mind, it cannot be doubted that in issuing a summons under s4 of the Supreme Court (Summary Jurisdiction) Act a judge of this Court or of the Supreme Court is not bound to act either mechanically or as a rubber stamp. It is inconceivable that a judge would be bound to issue a summons in respect of a prosecution under the OH&S Act, plainly brought out of time. There must be something put forward by a prosecutor which permits the judge to form a view that the summons should be issued, it being within the time prescribed by s49(4). What has been pointed to at this stage, simply does not permit any view to be formed as to that matter. 65 While the report of the Coroner was tendered, as well as the transcript of those proceedings and some of the exhibits, there has in reality as yet 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. 66 That position can be contrasted with the situation which arose for consideration before the Full Court in Walco. As earlier noted, the facts there agreed included that prior to the inquest the prosecutor was in possession of evidence of a prima facie case that the defendants had committed the offences charged and that nothing new was disclosed in the proceedings or the Coroner's report. The Full Court, having considered the material before it was able to be satisfied that it appeared from both the Coroner's report and the proceedings that the offence with which the defendant had been charged had been committed. 67 Here no such agreements were advanced. Neither the Court nor the defendants are yet aware of the prosecutor's view of what makes it appear from the Coroner's report or proceedings at the inquest or inquiry that an offence has been committed against the OH&S Act or regulations in any of the prosecutions here under consideration. 68 Unlike Ridge, the answer to this dilemma cannot be found in s12 of the Supreme Court (Summary Jurisdiction) Act. The defendants here have as yet not appeared at the time and place appointed for hearing of these prosecutions. None has yet been appointed. These proceedings rather concern applications brought by the defendants to have the summonses struck out. 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. 72 These conclusions leave the other questions of construction of s49(4) raised by the defendants to be considered. 73 In Walco, the Full Bench rejected a construction of s49(4) there advanced by the defendant, which required that something new appear at the inquest or inquiry or in the Report, not previously known to the prosecutor, in order for the extension of time provided to be activated. It was formally submitted before me that Walco was wrongly decided as to this aspect. It was also argued that there was here nothing put by the prosecutor, either in initiating the proceedings or in answer to particulars later sought, which established that anything, whether already known or not, had made it appear from the inquiry or the Coroner's report, that any of the defendants had committed any offence under the OH&S Act or Regulations. Indeed, in the case of the State Rail Authority of New South Wales, it was relevant, so it was put, that the only comments made about it by the Coroner were in entirely exculpatory terms. 74 The conclusions which I have already reached in relation to the provision of particulars deals for the moment with the second argument. As to the first, I am bound to reject it, having regard to the judgment in Walco. 75 In Walco, another argument was rejected by the Full Court that 'it had not been shown that a prima facie case on the charges was put before the Coroner or was contained in his report', as incorrectly confusing the question of whether the summonses were brought within the relevant limitation period with the question of whether the necessary elements for the offences had been established, at least on their face, for them to be proven (see pp289-91). It was concluded by the Full Court that all that had to be found in order for the summons to be determined as valid, was that it appeared from the Coroner's report or the inquest that an offence had occurred. 76 Walco was also formally submitted to have been wrongly decided as to this aspect. It was also argued here that there still remained the ordinary obligation falling upon a prosecutor, to form the view that an offence had been committed and that it was one available to be prosecuted in accordance with s49 of the OH&S Act. Hand in hand with that obligation went the necessity to put before the Industrial Registrar sufficient material so as to enable the Registrar to carry out his function of deciding whether to issue a summons initiating the prosecution. Here, there was no evidence that the prosecutor had formed the necessary views and further, the prosecutor had failed to meet the obligation to put the necessary material before the Registrar, thereby leading the Registrar into error, given that on the face of the material the prosecution was brought contrary to the limitation period provided by s49(1) of the OH&S Act. The proper inference, it was submitted, was that the prosecution had not formed the relevant view and hence the summons should be dismissed. 77 I have already dealt with the need to follow the judgment in Walco and thus reject the first argument. As to the second argument, I take the view that it must be rejected having in mind the conclusion which I have reached as to the provision of particulars. 78 In Walco, the circumstances were not, as here, that the proceedings before the Coroner had taken place over a number of days, with a substantial adjournment before the Coroner's report was given. That circumstance was relevant to a construction of s49(4) here advanced for the defendants, which was not considered in Walco, namely that where a Coroner's report was given, a prosecutor was not entitled to rely on the proceedings in the inquest before the Coroner, as well as on the Coroner's report, in coming to the view that it appeared that an offence under the OH&S Act had been committed. 79 Another construction of s49(4) advanced was that if the proceedings were relied on in any of the prosecutions as giving rise to the appearance that an offence had occurred, rather than such an appearance flowing from the report of the Coroner, these prosecutions would not fall within the extended time provided in s49(4) and must be dismissed. This would follow because the proceedings concluded in May 1997 and the prosecutions were brought in December 1999. 80 I take the view that neither of these constructions of s49(4) is available on a proper reading of the subsection. As noted in Walco, the Coroners Act does not provide for a Coroner to make a 'report'. In my view, the document issued by the Coroner on 17 October 1997 is however a 'report' such as contemplated by s49(4) of the OH&S Act. It was the document which recorded the Coroner's findings from the proceedings before him, as contemplated by s22 of the Coroners Act. Such a document plainly falls within the ordinary meaning of the word 'report'. 81 The Coroners Act contemplates that coronial proceedings may conclude in a number of ways, not all of which involve the making of findings. In my view, the two year period provided for in s49(4) flows from the date of the conclusion of the proceedings before the Coroner if no report is given. If a report is given, then that is the time from which the two years run. That, however, does not preclude reliance being placed on an offence appearing from the proceedings in the event that the report is given some time after the conclusion of the proceedings. 82 I reject that construction of s49(4). While reliance was placed on the concluding words of the section 'proceedings in respect of that offence may be instituted, …within two years after the date the report was made or the inquest or inquiry was concluded, as the case may be', in my view they do not govern the earlier words 'it appears from the Coroner's report or proceedings at the inquest or inquiry that an offence had been committed against this Act or the regulations.' 83 It follows that in considering whether it appears that an offence has been committed under the OH&S Act, s49(4) permits regard to be had to both the proceedings and the report, if both are present in a particular case and only the proceedings, if no report is made by the Coroner. 84 The correctness of that conclusion can be tested by considering the consequence of the alternative construction advanced. It would seem impossible that the commission of an offence under the OH&S Act would ever appear from the Coroner's report, but not also appear from the proceedings. It is, however, possible that an offence would appear from the proceedings but not be referred to in the report. If the defendants' construction were correct, the consequence would be that the offence, so appearing in the proceedings but not the report, could not be prosecuted. 85 The result of a Coroner's decision not to make reference in a report to an offence which appeared to have been committed under the OH&S Act, for reasons which seemed appropriate having regard to the tasks which fell to be performed under the Coroners Act, would be to preclude prosecution during the extended period contemplated in s49(4). This result, in my view, is one comfortably available on the face of the section. 86 In that light, any restriction of an appearance that an offence has been committed to the report or the proceedings, if a reference to that matter appears in both is artificial, to say the least and the construction advanced must for that additional reason be rejected. 87 I am conscious of the view of the High Court in Smith v Corrective Services Commission of NSW (1980) 147 CLR 134 at 139, that penal sanctions or those which affect the personal liberty of a subject must be strictly construed. I cannot, however, see that these conclusions on the proper construction of s49(4) of the OH&S Act conflict with that requirement. 88 I do not deal with the questions of costs but reserve them for later consideration. Orders 89 For all these reasons, I would make the following orders:- 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. ------------------------ 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.