Industrial Relations Commission of New South Wales in Court Session CITATION: Inspector Wilkie v Anstee [2005] NSWIRComm 246 PROSECUTOR Inspector Robert Wilkie PARTIES: DEFENDANT Barry Francis Anstee FILE NUMBER(S): IRC 5164, 5165 and 5166 of 2004 CORAM: Staff J CATCHWORDS: Occupational health and safety - Prosecutions under s 10(1), s 92 and s 94 of the Occupational Health & Safety Act 2000 - Notice of motion - Strike out - Doctrine of estoppel or res judicata - Whether criminal proceedings may be discontinued by Industrial Registrar - Abuse of process - Withdrawal, discontinuance and dismissal of proceedings pursuant to Industrial Relations Commission Rules - Double jeopardy - Consideration of whether Industrial Registrar can determine withdrawal of dismissal of a criminal prosecution - Consideration of the principles of autrefois acquit - Held plea of autrefois acquit did not operate - Industrial Registrar does not have the power to dismiss criminal proceedings and therefore such dismissal could not amount to autrefois acquit - Industrial Relations Commission Rules 1996 (NSW) r 138, r 139, r 217A - 217E, r 222, r 223, r 240 Criminal Procedure Act 1986 Industrial Relations Act 1996 Occupational Health & Safety Act 2000 LEGISLATION CITED: Industrial Relations Commission Rules 1996 Industrial Relations (General) Regulation 2001 (NSW) Broome v Chenoweth (1946) 73 CLR 583 Callahan and Another v Broomham (1996) 68 IR 66 Coombes v Patrick Stevedores (2002) 118 IR 401 Jago v District Court of New South Wales (1989) 168 CLR 23 Pearce v The Queen [1998] 194 CLR 610 R v Hoar (1981) 148 CLR 32 CASES CITED: Ridge Consolidated Pty Ltd v WorkCover Authority of New South Wales (Inspector Mauger) (2000) 100 IR 156 Rogers v The Queen (1994) 181 CLR 251 Subramaniam v R [2004] 211 ALR 1 Walton v Gardiner (1993) 177 CLR 378 WorkCover Authority of NSW (Inspector Ankucic) v J L Lennard Foods Equipment Pty Ltd (No 2) (1999) 92 IR 111 WorkCover Authority of New South Wales (Inspector Lancaster) v Re-Car Consolidated Industries (Wagga) Pty Ltd (1998) 88 IR 173 WorkCover Authority v Plastachem (2001) 110 IR 351 HEARING DATES: 05/17/2005 DATE OF JUDGMENT: 07/21/2005 PROSECUTOR Mr A Searle of counsel Solicitor: Mr G Phillips Carroll & O'Dea LEGAL REPRESENTATIVES: DEFENDANT Mr B Anstee In person JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Staff J 21 July 2005 Matter No IRC 5164 of 2004 INSPECTOR ROBERT WILKIE v BARRY FRANCIS ANSTEE Prosecution under s 92 of the Occupational Health and Safety Act 2000 Matter No IRC 5165 of 2004 INSPECTOR ROBERT WILKIE v BARRY FRANCIS ANSTEE Prosecution under s 94 of the Occupational Health and Safety Act 2000 Matter No IRC 5166 of 2004 INSPECTOR ROBERT WILKIE v BARRY FRANCIS ANSTEE Prosecution under s 10(1) of the Occupational Health and Safety Act 2000 JUDGMENT [2005] NSWIRComm 246 1 These prosecutions concern offences alleged to have been committed in August 2002 when Mr Barry Francis Anstee, ("the defendant"), failed to comply with the requirements imposed by improvement notices and prohibition notices and to ensure that certain premises were safe and without risks to health. 2 These reasons concern motions filed by the defendant in each matter seeking the dismissal of the orders issued. The grounds advanced were that each of the improvement and prohibition notices were the subject of a charge brought in proceedings dealt with by the Deputy Industrial Registrar which were dismissed; the proceedings were initiated out of time; the proceedings were an abuse of process and the proceedings should be struck out in accordance with the doctrine of estoppel. Background 3 On 11 February 2004, Haylen J granted 28 applications for order made by Inspector Robert Wilkie, an Inspector duly appointed under Div 1 of Pt 5 of the Occupational Health & Safety Act 2000 ("the OHS Act") alleging that the defendant had breached s 92 and s 94 of the OHS Act respectively (IRC 549 of 2004 to IRC 576 of 2004). An additional five applications for order were issued in respect of Rellgrove Pty Ltd, a company of which the defendant was a director, for breaches of s 92 and s 94 of the Act (IRC 577 of 2004 to IRC 581 of 2004). 4 The prosecutions related to numerous improvement and prohibition notices issued to the defendants in December 2001 and January 2002 for work being performed at two properties located in the Southern Highlands, New South Wales, being the "Maltings" and "Hopewood". 5 On 14 July 2004, Mr M Selinger, solicitor, representing the prosecutor in the then existing matters informed the defendants that the prosecutor intended withdrawing the 33 prosecutions and replacing them with one or two prosecutions which would incorporate the 33 prosecutions into one or two manageable court documents. 6 On 15 July 2004, the matters were listed for mention before Deputy Registrar Musgrave. Mr Selinger appeared for the prosecutor. Mr Anstee did not appear at the callover as he had mistakenly gone to the Commission's premises located at Hospital Road, Sydney. 7 Mr Selinger informed the Deputy Registrar that the prosecutor wished to streamline the multiple proceedings to one or two proceedings. Mr Selinger further advised the Deputy Registrar that he was seeking instructions from the WorkCover Authority of New South Wales to withdraw the current prosecutions and to refile more streamlined prosecutions which would be easier for the defendants to understand. 8 Mr Selinger sought an adjournment of eight weeks which was granted by the Deputy Registrar. 9 On 27 August 2004, the current proceedings were commenced. Proceedings IRC 5164 of 2004 incorporated proceedings IRC 562, 563, 564, 565, 566 and 567 of 2004. Proceedings IRC 5165 of 2004 incorporated proceedings IRC 555, 556 and 576 of 2004. Proceedings IRC 5166 of 2004 relate to a s 10 charge. The remaining 24 prosecutions being IRC 549 - 554 of 2004; IRC 557 - 561 of 2004; IRC 568 to 575 of 2004 and IRC 579 - 581 of 2004 were not incorporated into these proceedings. 10 On 9 September 2004 IRC Nos 549 - 581 of 2004 were listed for further mention before the Deputy Registrar. Mr Selinger again appeared for the prosecutor and Mr Anstee appeared in person for the defendants. 11 The transcript of the proceedings records the following exchange: SELINGER: Registrar, on the last occasion we indicated that the matter would be streamlined, we were going to withdraw these prosecutions today. New ones have in fact been filed, there's been three new prosecutions filed and they are now returnable before His Honour Staff on 29 October 2004 at 9.30 am. Those are matters 5164, 5165 and 5166. Those, in essence, incorporate the current pleadings. REGISTRAR: So you wish to withdraw all these? SELINGER: Withdraw those, no order as to costs and have - if need be this matter stood over to 29 October but I don't think any further orders are required. ANSTEE: I would have thought they would have been dismissed, Registrar, but I'm not - he seems to be, he's withdrawing these prosecutions and not proceeding with them, he told me that some time ago so we didn't brief counsel, we had some discussions with counsel and decided that - because they were probably going to change the .. (not transcribable) .. so haven't carried a great deal of costs, at this point in time. ... I would have thought that the matters that were not covered by the current proceedings should in fact be dismissed, otherwise the new proceedings he's filed now will be in relation to certain matters, these ones he's seeking to withdraw are wider and if he's only looking to proceed on certain matters, then the matters he's not proceeding on should be dismissed, as he hasn't got -- ... REGISTRAR: So, the matters currently before me are dismissed with no orders for costs. 12 On 7 February 2005, the defendant filed a notice of motion which, in essence, sought orders that the reference to improvement notices 239912, 239913, 239914, 239917, 239918 and 239921 be removed from the application for order in IRC 5164 of 2004, together with the particulars of the charge. 13 The basis of Mr Anstee's application, as I understand it, is that each of the improvement notices were the subject of a charge brought in the proceedings dealt with by the Deputy Industrial Registrar which were dismissed. 14 The defendant also sought that any material referring to the abovementioned improvement notices be removed from the prosecution brief which was served on 22 October 2004. 15 The defendant filed a further notice of motion on 13 May 2005 in which he sought orders that the reference to the remaining improvement notices 239915, 239916, 239919 and 239920, referred to in the application for order in IRC 5164 of 2004 be removed from the charge together with the particulars. In the alternative, the defendant sought orders that IRC 5164 of 2004 be struck out. 16 The defendant advanced an additional ground for the orders sought, being that in relation to improvement notices 239912, 239913, 239914, 239917, 239918 and 239921, compliance was required by 3.00 pm on 9 February 2002. The prosecutor in the original applications had pleaded that the offences occurred at 3.00 pm on 9 February 2002. 17 In proceedings IRC 5164 of 2004, which was filed on 27 August 2004, the prosecutor pleads that the date of the offences in relation to the six improvement notices was 30 August 2002. The improvement notices were issued and served on the defendant on 25 January 2002. 18 The defendant, therefore, submitted that pursuant to s 107(1) of the OHS Act as the time for compliance in the improvement notices was stated to be 3.00 pm on 9 February 2002, that such proceedings in respect of these improvement notices were out of time. 19 In relation to improvement notices 239915, 239916, 239919 and 239920, these notices required compliance by 3.00 pm on 2 February 2002. 20 The defendant again contended that in respect of these offences the pleaded date of the offence was 30 August 2002. As IRC 5164 of 2004 was filed on 27 August 2004, the prosecutions in respect of the four improvement notices were also out of time. 21 In respect of IRC 5165 of 2004, the defendant filed a notice of motion in similar terms to that filed in IRC 5164 of 2004. This matter deals with three prohibition notices, 144651, 144653 and 144655, which had been the subject of applications for order in the proceedings dealt with by the Deputy Industrial Registrar. The prohibition notices were issued on 21 December 2001, 21 January 2002 and 29 January 2002. 22 The date of the offence as set out in the application for order in IRC 5165 of 2004 is 30 August 2002. The defendant contends that this matter is out of time pursuant to s 107(1) of the OHS Act. 23 A further notice of motion was filed in respect of IRC 5166 of 2004. In this matter, the defendant is alleged to have breached s 10(1) of the Act in failing to provide and maintain a safe system of work in relation to removal of lead based paints and asbestos from the site. In respect of this matter, the defendant seeks orders that the proceedings be struck out as an abuse of process and upon the doctrine of estoppel. 24 The defendant contends that the matters raised in IRC 5166 of 2004 "are similar and the same as those raised in proceeding IRC 575 of 2004, which was ordered to be dismissed with no order to costs by Registrar A Musgrave on the 9th September 2004". 25 The defendant further contends that IRC 5166 of 2004 be struck out "as the matters raised are similar to many of those raised in proceedings Number IRC 549 of 2004 - through to Number IRC 581 of 2004 which were all ordered to be dismissed with order to costs (sic) by Registrar A Musgrave on 9 September 2004". Statutory Provisions 26 The following provisions of the OHS Act are relevant: 91 Issue of improvement notices (1) If an inspector is of the opinion that any person: (a) is contravening any provision of this Act or the regulations, or (b) has contravened such a provision in circumstances that make it likely that the contravention will continue or be repeated, the inspector may issue to the person a notice requiring the person to remedy the contravention or the matters occasioning it within the period specified in the notice. (2) The period within which a person is required by an improvement notice to remedy a contravention or the matters occasioning the contravention must be at least 7 days after the issue of the notice. (3) However, an inspector may specify a period that is less than 7 days after the issue of the improvement notice if satisfied that it is reasonably practicable for the person to comply with the requirements imposed by the notice by the end of that period. (4) An improvement notice must: (a) state that the inspector is of the opinion referred to in subsection (1), and (b) state the reasons for that opinion, and (c) specify the provision of this Act or the regulations in respect of which that opinion is held, and (d) include information about obtaining a review of the notice under this Part. 92 Offence: failure to comply with improvement notice A person who, without reasonable excuse, fails to comply with a requirement imposed by an improvement notice is guilty of an offence. Maximum penalty: (a) in the case of a corporation (being a previous offender)—750 penalty units, or (b) in the case of a corporation (not being a previous offender)—500 penalty units, or (c) in the case of an individual not acting in the capacity of an employee (being a previous offender)—375 penalty units, or (d) in the case of an individual not acting in the capacity of an employee (not being a previous offender)—250 penalty units, or (e) in the case of an individual acting in the capacity of an employee (being a previous offender)—22.5 penalty units, or (f) in the case of an individual acting in the capacity of an employee (not being a previous offender)—15 penalty units. 93 Issue of prohibition notices (1) If an inspector is of the opinion that at any place of work there is occurring or about to occur any activity which involves or will involve an immediate risk to the health or safety of any person, the inspector may issue to the person who has or may be reasonably presumed to have control over the activity a notice prohibiting the carrying on of the activity until the matters which give or will give rise to the risk are remedied. (2) A prohibition notice must: (a) state that the inspector is of the opinion referred to in subsection (1), and (b) state the reasons for that opinion, and (c) specify the activity in respect of which that opinion is held, and (d) if in the inspector's opinion the activity involves a contravention or likely contravention of any provision of this Act or the regulations—specify that provision and state the reasons for that opinion, and (e) include information about obtaining a review of the notice under this Part. 94 Offence: failure to comply with prohibition notice A person who, without reasonable excuse, fails to comply with a requirement imposed by a prohibition notice is guilty of an offence. Maximum penalty: (a) in the case of a corporation (being a previous offender)—1,500 penalty units, or (b) in the case of a corporation (not being a previous offender)—1,000 penalty units, or (c) in the case of an individual not acting in the capacity of an employee (being a previous offender)—750 penalty units, or (d) in the case of an individual not acting in the capacity of an employee (not being a previous offender)—500 penalty units, or (e) in the case of an individual acting in the capacity of an employee (being a previous offender)—45 penalty units, or (f) in the case of an individual acting in the capacity of an employee (not being a previous offender)—30 penalty units. 105 Summary procedure for offences (1) Proceedings for an offence against this Act or the regulations are to be dealt with summarily: (a) before a Local Court constituted by a Magistrate sitting alone, or (b) before the Industrial Relations Commission in Court Session. (2) The maximum monetary penalty that may be imposed in those proceedings by a Local Court is 500 penalty units, despite any higher maximum monetary penalty provided in respect of the offence. (3) The provisions of the Industrial Relations Act 1996 , and of the regulations under that Act, relating to appeals from a Local Court to the Industrial Relations Commission in Court Session in connection with offences against that Act apply to proceedings before a Local Court for offences against this Act or the regulations. 107 Time for instituting proceedings for offences (1) 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, except as otherwise provided by this section or section 107A. (2) This subsection applies to an offence against section 11 (Duties of designers, manufacturers and suppliers of plant and substances for use at work) or section 86 (Notification of incidents). Proceedings for any such offence may be instituted: (a) within 6 months after WorkCover first becomes aware of the act or omission alleged to constitute the offence, or (b) within 2 years after the act or omission alleged to constitute the offence, whichever provides the longer period to institute proceedings. (3) If a coronial 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 (whether or not the offender is identified), proceedings in respect of that offence may be instituted within 2 years after the date the report was made or the inquest or inquiry was concluded. (4) This section applies despite anything in any other Act. 27 It is also necessary to set out s 151 and s 153 of the Industrial Relations Act 1996 ("IR Act"): 151 Judicial members to constitute Commission in Court Session (1) The Commission in Court Session is the Commission constituted by a judicial member or members only for the purposes of exercising the functions that are conferred or imposed on the Commission in Court Session by or under this or any other Act or law. (2) This section does not prevent the Commission from being constituted by judicial members when not exercising those functions. 153 Jurisdiction of Commission in Court Session (1) The following functions of the Commission are to be exercised only by the Commission in Court Session: (a) proceedings for an offence taken before the Commission (including proceedings for contempt), (b) proceedings for declarations of right under section 154, (c) proceedings under Part 9 of Chapter 2 (Unfair contracts), (d) proceedings under section 139 (Contravention of dispute order), (e) proceedings under Parts 3, 4 and 5 of Chapter 5 (Registration and regulation of industrial organisations), other than Division 3 of Part 4 (Election of officers), (f) proceedings under Part 1 of Chapter 7 (Breach of industrial instruments), (g) proceedings for the recovery of money under Part 2 of Chapter 7 (other than small claims under section 380), (h) proceedings on a superannuation appeal under section 40 or 88 of the Superannuation Administration Act 1996, (i) proceedings on an appeal from a member of the Commission exercising the functions of the Commission in Court Session, (j) proceedings on an appeal or case stated from an Industrial Magistrate or any other court, (k) any other proceedings that are, by this Act or any other Act, required to be taken before the Commission in Court Session. (2) The functions referred to in subsection (1) (i) and (j) and functions relating to proceedings for the cancellation of the registration of industrial organisations, may be exercised only by a Full Bench of the Commission in Court Session. (3) Subject to subsection (4), the functions of the Commission relating to proceedings for contempt of the Commission may be exercised only by a Full Bench of the Commission in Court Session. (4) The functions of the Commission relating to the commencement of proceedings for contempt of the Commission may also be exercised by a judicial member. Submissions of the Defendant 28 In essence, the defendant seeks firstly that each of these matters be struck out upon the grounds that the applications for order are out of time (IRC 5164 and 5165 of 2004), secondly that each matter is an abuse of process and thirdly that each matter should be struck out in accordance with the doctrine of estoppel. 29 The defendant submitted that it was an abuse of process to commence these matters in circumstances where the Deputy Industrial Registrar had dismissed the summonses, or similar matters and that furthermore, in such circumstances, an estoppel arose. 30 In support of the submission that IRC 5164 and 5165 of 2004 were out of time, the defendant submitted that the compliance date and the date pleaded for the original offences was 3.00 pm on 9 February 2002 and that the offences were not continuing offences. In respect of IRC 5165 of 2004, the defendant contends that the original pleaded date of these offences was 18 December 2001. 31 The difficulty for the defendant in respect of the last submission is that the pleaded date of the offences in the matters now before the Court is 30 August 2002. Each matter was commenced on 27 August 2004, that being within the period of two years after the act or omission alleged to constitute the offence (s 107(1) of the OHS Act). Submissions of the Prosecutor 32 Mr A Searle of counsel, who appeared for the prosecutor helpfully provided an outline of submissions. Counsel's submissions fall into five main categories. 33 Firstly, it was submitted that any allegation of unfairness giving rise to an abuse of process must be such as to go to the heart of the administration of justice as has been held to be the case with the re-litigation of issues in Rogers v The Queen (1994) 181 CLR 251; Walton v Gardiner (1993) 177 CLR 378 and Jago v District Court of New South Wales (1989) 168 CLR 23. The principles arising from these High Court authorities were analysed by Mr Searle and led him to submit that none of the features which give rise to a court using its powers to preclude a matter proceeding on the grounds it constitutes an abuse of its process, simply do not apply to the present matter. 34 Secondly, counsel addressed the doctrine of estoppel or res judicata referring to the authoritative text, by the Hon Mr Justice K R Handley, Doctrine of Res Judicata, (Third Edition, Butterworths 1996). It was submitted in its application to criminal proceedings, it is known as the rule against "double jeopardy": Rogers v The Queen. 35 This rule is often embodied in the two pleas in bar - autrefois acquit and autrefois convict. 36 Mr Searle also referred to Pearce v The Queen [1998] 194 CLR 610 where McHugh, Hayne and Callinan JJ discussed the nature of double jeopardy. Counsel submitted that the decided cases emphasise that before a dismissal in earlier proceedings will support a plea of autrefois acquit or the application of the principle of "double jeopardy" issue must have been joined between the parties by a plea of not guilty and that an adjudication of guilt or innocence must have been embarked upon. 37 This approach has been followed in this jurisdiction by Walton J Vice-President in WorkCover Authority of NSW (Inspector Ankucic) v J L Lennard Foods Equipment Pty Ltd (No 2) (1999) 92 IR 111; Marks J in WorkCover Authority of New South Wales (Inspector Lancaster) v Re-Car Consolidated Industries (Wagga) Pty Ltd (1998) 88 IR 173 and in Callahan and Another v Broomham (1996) 68 IR 66. Counsel submitted that Walton J had approved the principle in this Court that the plea of autrefois acquit is available only where the defendant has been placed in peril by a verdict of a jury or judgment of the court. Counsel submitted it is clear that the defendant in the present matter was never placed in peril in that sense. 38 Mr Searle acknowledged that Walton J had observed in J L Lennard (at 120) that in some circumstances the withdrawal of proceedings may give rise to a successful plea of autrefois acquit if fresh proceedings are commenced, depending upon the circumstances. However, it was submitted, in the present case, none of the evils to which the rules or doctrines are directed are present in this matter. All that has occurred is that the prosecution has sought to withdraw certain charges and to bring others against the defendant in an orderly fashion and, it was submitted, with the consent of the defendant. 39 Thirdly, in the alternative, it was submitted that only the Commission in Court Session may dispose of a prosecution brought under the OHS Act, such power not being conferred on the Industrial Registrar. 40 Fourthly, it was submitted that the defendant's view that the OHS Act did not entertain continuing offences is misconceived and contrary to the intention and construction of the OHS Act: see Coombes v Patrick Stevedores (2002) 118 IR 401 at 433 - 437. 41 Fifthly, it was submitted that as the proceedings cite 30 August 2002 as the date on which the offences were committed and the prosecutions were commenced on 27 August 2004, such proceedings were therefore commenced within the time period allowed pursuant to s 107(1) of the OHS Act. Submissions in Reply 42 Mr Anstee (who was given leave to file submissions in reply) relied on WorkCover Authority v Plastachem (2001) 110 IR 351 and WorkCover v J L Lennard as authorities confirming jurisdiction existed for the dismissal, discontinuance or withdrawal of criminal proceedings. Mr Anstee submitted that in Plastachem the Full Court stated at [42]: ... the Rules (a reference to Industrial Relations Commission Rules) provide no mechanism for an initiating summons alleging an offence under the OHS Act to be withdrawn pursuant to r139. 43 It was submitted that the prosecutor did not discontinue the proceedings as he filed no notice as such. It followed, so it was submitted relying on the above authorities that IRC Nos 549 to 581 of 2004 inclusive were dismissed. 44 In respect of proceedings IRC 5164 of 2004, Mr Anstee submitted that the alleged offences in the current proceedings would be contrary to the rule of "double jeopardy" in that the new proceedings are substantially the same as those dismissed in that both the new and the old proceedings rely on an inspection at the "Maltings" in Mittagong on 30 August 2002. (I note the earlier proceedings allege the offences took place on 9 February 2002 at 3.00 pm and the particulars state that the Inspector attended the "Maltings", Mittagong again on 30 August 2002 and observed that the improvement notices had not been complied with). A similar submission is made in respect of IRC 5165 and IRC 5166 of 2004. Consideration 45 Although neither party directed submissions to the question of whether the defendant is entitled to raise the questions for determination at this stage of the proceedings, I am satisfied, for the reasons that follow, that there is jurisdiction, given the orders finally pressed in the amended motions filed on 13 May 2005. 46 The proceedings were commenced on 27 August 2004, with the filing of an application for order, supported by an affidavit sworn by the prosecuting inspector. The application for order concerned offences alleged to have been committed on 30 August 2002. The order was made by me on 30 August 2004. The proceedings may be dealt with summarily (s 105 of the OHS Act). Section 107 of the OHS Act relevantly provides that proceedings for an offence must be "instituted within the period of 2 years after the act or omission alleged to constitute the offence". 47 I made the orders under s 246(1) of the Criminal Procedure Act 1986 as applied by s 168 of the IR Act. It was that order which was then served on the defendant and which brought it before the Court. The defendant had no notice of the application for order earlier dealt with by me. Rule 217B of the Court's Rules requires that proceedings for offences under the OHS Act be commenced in this Court by application for order. Rule 217C requires that any order must be served upon a defendant, together with a copy of the application for order and supporting affidavit. Unless otherwise directed by the Court, the application is not to be served before the order is made. 48 It follows that the defendant had no opportunity to raise the matters now raised in the motion, when the order was made. Although the defendant was advised that the prosecutor intended to withdraw certain proceedings and to issue fresh proceedings, there was no hearing before me as to whether the orders should be made. The defendant was unaware of the application that orders be issued, until after the orders had been made and served upon him. I am satisfied that the issues raised on the motion go the Court's jurisdiction, amongst other matters, and that the defendant is entitled to raise them at this stage of the proceedings. Was there an abuse of process? 49 There can be no doubt that the Commission in Court Session has the power to stay or dismiss proceedings where it appears to the Court that there has been an abuse of process. Section 152 of the IR Act provides that the Commission in Court Session is a superior court of record. As such, in my view, it has the power to stay or dismiss proceedings where it appears that there is an abuse of process. 50 The prosecutor relies upon the High Court's judgment in Walton v Gardiner where Mason CJ, Deane and Dawson JJ considered the circumstances that would give rise to an abuse of process and procedures of a court which exist to administer justice with fairness and impartiality, stating at 392 - 393: The inherent jurisdiction of a superior court to stay its proceedings on grounds of abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness. ... yet again, proceedings before a court should be stayed as an abuse of process if, notwithstanding that the circumstances do not give rise to an estoppel, their continuance would be unjustifiably vexatious and oppressive for the reason that it is sought to litigate anew case which has already been disposed of by earlier proceedings (38) (see e.g. Reichel v Magrath (1889), 14 APP CAS 665 at p.668; Connelly v Director of Public Prosecutions, [1964] A.C. 1254, at pp 1361 - 1362). The jurisdiction of a superior court in such a case was correctly described by Lord Diplock in Hunter v Chief Constable of the West Midlands Police (39) ([1982] A.C. 529, at p.536) as "the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people. In Jago v District Court (NSW) (40) ((1989) 168 CLR 23), at least three of the five members of the Court clearly rejected "the narrower view" that a court's power to protect itself from an abuse of process in criminal proceedings "is limited to traditional notions of abuse of process" (41). Mason CJ considered that a court, "whose function is to dispense justice with impartiality and fairness both to the parties and to the community which it serves", possesses the necessary power to prevent its processes being employed in a manner which gives rise to unfairness (41). 51 Their Honours observed at 394: In her judgment in Jago (44), Gaudron J stressed the power of a court "to control its own process and proceedings is such that its exercise is not restricted to defined and closed categories, but may be exercised as and when the administration of justice demands". Her Honour added the comment (44) "that, at least in civil proceedings, the power to grant a permanent stay should be seen as a power which is exercisable if the administration of justice so demands, and not one the exercise of which depends on any nice distinction between notions of unfairness or injustice, on the one hand, and abuse of process, on the other hand". 52 In Rogers v The Queen, McHugh J discussed the relationship between abuse of process and various forms of issue estoppel and res judicata stating at 286: Inherent in every court of justice is the power to prevent its procedures being abused (49) ( Hunter v Chief Constable of the West Midlands Police, [1982] A.C. 529 at p.536). Although the categories of abuse of procedure remain open, abuses of procedure usually fall into one of three categories: 1. The court's procedures are invoked for an illegitimate purpose; 2. The use of the court's procedures is unjustifiably oppressive to one of the parties; or 3. The use of the court's procedures would bring the administration of justice into disrepute. Many, perhaps the majority of, cases of abuse of procedure arise from the institution of proceedings. But any procedural step in the course of proceedings that have been properly instituted is capable of being an abuse of the court's process. 53 His Honour went on to quote, with approval, the comments of Mason CJ, Deane and Dawson JJ in Walton v Gardiner set out above. 54 More recently the High Court in Subramaniam v R [2004] 211 ALR 1 at [26] stated: It may now also be accepted however that the categories of factual situations which may call for a consideration of the possibility of abuse of process in criminal proceedings are not closed ( Walton v Gardiner (1993), 177 CLR 378 at 393 per Mason CJ, Deane and Dawson JJ; see also Jago v District Court (NSW) (1989) 168 CLR 23 at 31 per Mason CJ, 74 per Deane J, 77 per Gaudron J; Barton v R (1980) 147 CLR 75 at 95 - 96 per Gibbs ACJ and Mason J). As Mason CJ, Deane and Dawson JJ said in Walton v Gardiner ((1993) 177 CLR 378 at 393), the inherent power of a superior court to stay proceedings on the ground of "abuse of process extends to all those categories of cases in which the processes and procedures of the court, which exist to administer justice with fairness and impartiality, may be converted into instruments of injustice or unfairness." (Footnotes omitted). 55 The above cases therefore require that the following elements must be made out to establish an abuse of process. Firstly, the public interest in the administration of justice requires that the Court protect its ability to function as a court of law by ensuring that its processes are used fairly. Secondly, unless the Court protects its ability to function in that way, its failure will lead to an erosion of public confidence by reason of concern that the Court's processes may lend themselves to oppression, injustice or unfairness. 56 The defendant's case was that the prosecution involved an abuse of process. However, in my view, none of the features discussed in the abovementioned authorities apply in this case. What has occurred here was that there were a set of proceedings on foot which were somewhat complicated and unwieldy. The prosecutor sought to consolidate 33 prosecutions into three prosecutions. The evidence demonstrates that the prosecutor sought to withdraw the proceedings on 9 September 2004 (the first set of proceedings) at a time when these proceedings had already been commenced. In effect, what the prosecutor sought to do was to amend or substitute one set of proceedings for another in order to streamline the proceedings for the benefit of both the defendant and the Court. It is clear from the proceedings before the Deputy Industrial Registrar that the prosecutor sought to withdraw 33 prosecutions. At no stage did the prosecutor seek to have the prosecutions dismissed. The issue of dismissal was raised by Mr Anstee, the defendant. 57 The Deputy Industrial Registrar determined the application by the prosecutor by dismissing the prosecutions. Whether the Deputy Industrial Registrar had the power to do so will be considered later in these reasons. 58 It seems to me that none of the feature which give rise to a court using its powers to preclude a matter proceeding on the grounds that it constitutes an abuse of its process apply in the present matter. Withdrawal, Discontinuance and Dismissal of Proceedings 59 Part 19, Pt 27A and Pt 28 deal with withdrawal, discontinuance and dismissal of proceedings before the Commission. Part 28 of the Industrial Relations Commission Rules 1996 ("the Rules"), deals with proceedings relating to a prosecution and civil penalty. It provides two mechanisms for disposing of proceedings for an offence. Firstly, proceedings may be dismissed pursuant to r 222 where the prosecutor fails to appear or otherwise does not proceed with the matter. Secondly, with leave of the Commission, proceedings may be discontinued or withdrawn pursuant to r 223 and Pt 19 of the Rules. 60 Part 19 of the Rules allows a party to proceedings, before the commencement of the hearing of any proceedings, to discontinue the proceedings in whole or in part, so long as all other parties consent or leave of the Tribunal is given: see r 138(1). 61 In Plastachem Pty Ltd & Ors, the Full Bench of the Commission endorsed the observations of Walton J in JL Lennard Food Equipment Pty Ltd. Walton J had undertaken a detailed examination of the provisions dealing with discontinuance of criminal proceedings under the Rules. In JL Lennard Food Equipment Pty Ltd, a notice of discontinuance was filed by the prosecutor which sought, with the consent of the defendant, to discontinue a criminal prosecution alleging breaches of the OHS Act. The Full Bench observed at [38]: .. a criminal prosecution before the Commission in Court Session may be discontinued pursuant to r223 and Pt19 of the Rules prior to the commencement of the trial. However, leave of the Commission is required to discontinue a criminal prosecution, even where the prosecutor and the defendant consent to the prosecution being discontinued. 62 The Full Bench agreed with the conclusions of his Honour in Lennard and that the approach outlined represented the appropriate manner in which an application to discontinue proceedings should be dealt with. 63 It is important to highlight that, even with leave, proceedings may only be discontinued in accordance with Pt 19 or now Pt 27A of the Rules. Part 27A was inserted into the Rules pursuant to the Industrial Relations Commission Rules (Amendment No 3) 2000 (Government Gazette No 127 of 29 September 2000 at page 10825). 64 Part 27A, entitled "Proceedings for Offences", provides in r 217D that any proceedings under this part may, with leave of the Commission, be discontinued or withdrawn in accordance with Pt 19. Rule 138 (discontinuance) and r 139 (withdrawal) are found in Pt 19. The only method by which a party may discontinue the proceedings is r 138 and the only method by which a party may withdraw the proceedings is r 139. 65 As determined by the Full Bench in Plastachem, the leave of the Commission is required to discontinue or withdraw proceedings under Pt 19. Leave of the Commission is also required by the Rules under Pt 27A. 66 Alternatively, the summonses could have also been dismissed pursuant to r 222. This Rule enables the Commission to dismiss a summons for want of prosecution. 67 In my view, the Deputy Registrar did not have the requisite power to deal with the withdrawal or dismissal of the summonses. That is within the Commission in Court Session. I will discuss the powers of the Industrial Registrar, or his deputies, later in these reasons. The Rule against Double Jeopardy 68 Mr Anstee submitted the dismissal of the earlier proceedings and the issuing of fresh proceedings may offend the common law doctrine of double jeopardy. 69 The rule against double jeopardy, which is expressed in the form of more specific rules including the pleas of autrefois acquit and autrefois convict, issue estoppel, res judicata and principles concerning abuse of process, has long been a feature of our legal system. The rationale value of the rule was discussed by McHugh, Hayne and Callinan JJ in Pearce at 614, where their Honours stated: The expression "double jeopardy" is not always used with a single meaning. Sometimes it is used to refer to the pleas in bar of autrefois acquit and autrefois convict; sometimes it is used to encompass what is said to be a wider principle that no one should be "punished again for the same matter" ( Wemyss v Hopkins (1875) LR 10 QB 378 at 381, per Blackburn J). Further, "double jeopardy" is an expression that is employed in relation to several different stages of the criminal justice process: prosecution, conviction and punishment. If there is a single rationale for the rule or rules that are described as the rule against double jeopardy, it is that described by Black J in Green v United States (355 US 184 at 187 - 188 (1957)): "The underlying idea, one that is deeply ingrained in at least the Anglo-American system of jurisprudence, is that the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for an alleged offence, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent he may be found guilty." ... It may be seen as a value which underpins and affects much of the criminal law. But pervasive as it is, this value is not the only force at work in the development of these parts of the common law. Three further forces can be identified. First, as the range of crimes and punishments for crime has expanded, it has become apparent that a single series of events can give rise to several different criminal offences to which different penalties attach. Secondly, it has been recognised that an offender should be punished only for the offence with which he or she was charged, and not for some offence or version of the offence not charged. Thirdly, and as a corollary to the second matter we have mentioned, prosecuting authorities have sought to frame charges against an accused that will reflect all of that accused's criminal conduct and thus enable the imposition of punishment that will truly reflect the criminality of that conduct. (Footnotes omitted). 70 Later, at 616 their Honours said: It is clear that the plea in bar goes to offences, the elements of which are the same as ( R v Emden (1808) 9 East 437 [103 ER 640]) or are included in ( R v Elrington (1861) 1 BNS 688 [121 ER 870]), the elements of the offence for which an accused has been tried to conviction or acquittal. There are, however, decisions that a person may not be prosecuted for one offence when that person has previously been prosecuted for "substantially the same" ( Li Wan Quai v Christie (1906) 3 CLR 1125 at 1131, per Griffith CJ), offence, or for an offence the "gist" or "gravamen" ( O'Loughlin (1971) 1 SASR 219 at 258) of which is the same as the subject of the earlier prosecution or, as was said in Weymss v Hopkins, for the "same matter". It may be suggested that these cases indicate that a plea in bar is also available if a person is charged with different offences arising out of substantially the same set of facts. 71 In R v Hoar (1981) 148 CLR 32 at 38, Gibbs CJ, Mason, Aitken and Brennan JJ stated that there is "a practice, if not a rule of law, that a person should not be twice punished for what is substantially the same act …". 72 An essential element of a successful plea of autrefois acquit is that the accused has been previously in jeopardy of conviction and has been acquitted of the charge "on the merits". This requirement was explained by the High Court in Broome v Chenoweth (1946) 73 CLR 583. In that case, two separate informations were laid against a defendant for the same statutory offence. The first information was sought to be withdrawn because it was defective in that it did not disclose any offence. The Magistrate refused leave to withdraw the information and it was dismissed "for want of prosecution". 73 The informant then proceeded with the second information and was confronted by a plea of autrefois acquit. Dixon J (at 599) stated the principle as follows: "The rule against double jeopardy requires for its application not only an earlier proceeding in which the defendant was exposed to the risk of a valid conviction for the same offence as that alleged against him in the later proceedings but that the earlier proceeding should have resulted in his discharge or acquittal. This last requirement may be satisfied by something less than an actual adjudication upon the truth of the allegations contained in the charge or upon the existence of some exculpatory fact. It may be enough if the judgment or order pronounced in favour of the person who stands in jeopardy must, according to its legal construction, imply a failure upon the part of the prosecution to make out the charge or some ingredient therein or even a preliminary condition legally indispensible to a conviction, that is if the condition is of a kind that cannot be fulfilled after the failure of the earlier charge and before the laying of the later charge. In the present case the proceedings had advanced to a stage when it became incumbent upon the prosecutor to support his information by proof, or evidentiary presumption, in order to avoid a dismissal. That being so, I see no reason why the actual order dismissing the information, although expressed to be for want of prosecution, should not amount to a sufficient discharge affording a bar to further prosecution, if the other requirements are satisfied upon which a defence of prior acquittal depends." 74 The High Court (Latham CJ, Dixon, McTiernan and Williams JJ (Starke J dissenting)) held that the defendant had never incurred the risk of a hearing upon the defective information because it did not disclose any offence. On this basis, the defendant was not put in jeopardy of a conviction and the dismissal of the summons did not entitle the defendant to raise a plea of autrefois acquit. 75 The abovementioned authorities emphasise that before a dismissal in earlier proceedings will support a plea of autrefois acquit or the application of the principle of double jeopardy issue must have been joined between the parties by a plea of not guilty and that an adjudication of guilt or innocence must have been embarked upon. 76 This approach has been followed in Re-Car Consolidated Industries (Wagga) Pty Ltd and in Callahan v Broomham. Walton J in Lennard at 119 posed the test in these terms: The question to be answered in such a case (an application for autrefois acquit) is whether the accused has been in jeopardy of a conviction. 77 On the basis of his Honour's approach and the above authorities, in my view, the defendant was not put in jeopardy of a conviction and the dismissal of the summons did not entitle the defendant to raise a plea of autrefois acquit. The original charges brought against the defendant were never tried to acquittal. Nothing has been judicially determined in favour of the accused. What has occurred here is that one set of charges has sought to be substituted for another. In such circumstances, there is no risk to the defendant of multiple prosecutions or punishment for the same offence more than once. 78 Walton J went on to observe in Lennard at 120: However, in some cases the withdrawal of the proceedings may give rise to a successful plea of autrefois acquit if fresh proceedings are commenced. The application of principles of double jeopardy to the circumstance of the withdrawal of criminal proceedings and then recommencement of proceedings in relation to the same offence is not the subject of comprehensive judicial consideration in Australia. Some Canadian authority, however, suggests that where proceedings are withdrawn after a plea has been entered by an accused, the principle of autrefois acquit may apply as if there had been an adjudication: see R v Riddle (1979) 100 DLR (3d) 577; Ulrich Gautier, The Power of the Crown to Reinstitute Proceedings after the Withdrawal or Dismissal of Charges (1979-80) 22 Criminal Law Quarterly 463. Gautier also suggests that the Crown may be prevented from commencing fresh proceedings if it indicates that the reason for withdrawing the proceedings is that it no longer desires to pursue the matter or if withdrawal amounts to an abuse of process. The question in such a case would appear to be whether the proceedings were disposed of by way of withdrawal or, more properly, dismissal. Rule 143, in contrast, allows further proceedings to be brought after a discontinuance irrespective of the circumstances accompanying an application for leave to discontinue a prosecution (noting that r 138 only operates with respect to applications to discontinue prior to the commencement of the hearing of the proceedings). If, as I have suggested, a criminal prosecution before the Commission in Court Session may be discontinued at any stage up to the commencement of the trial, r 143 may confer a significantly broader power to reinstitute proceedings following discontinuance than exists at common law. If this is so, Ms Backman's submission that r 143 may offend the rule against double jeopardy is made out since the rule may permit fresh proceedings to be commenced in circumstances where the defendant has already been placed in jeopardy of conviction. 79 As I have earlier observed, his Honour concluded that a criminal prosecution before the Commission in Court Session may be discontinued pursuant to r 223 and Pt 19 of the Rules prior to the commencement of the trial. However, leave of the Commission is required to discontinue a criminal prosecution, even where the prosecutor and defendant consent to the prosecution being discontinued. The provisions of Pt 27A and Rule 217D would also now apply. 80 I respectfully agree with his Honour's observations that when granting leave to discontinue, the Court may impose a term pursuant to r 143 that no new or fresh proceedings be brought in relation to the prosecution. Such terms, if imposed, would act as an effective bar to the subsequent proceedings. Can Industrial Registrar Determine Withdrawal or Dismissal of a Criminal Prosecution? 81 Section 105(1) of the OHS Act (set out earlier in these reasons) provides that proceedings for an offence against the Act or the Regulations are to be dealt with summarily before a Local Court constituted by a Magistrate or before the Industrial Relations Commission in Court Session. 82 Section 151 of the Act provides that the Commission in Court Session is the Commission constituted by a Judicial Member or Members. 83 Section 153 of the IR Act sets out the jurisdiction of the Commission in Court Session and provides that certain functions are to be exercised only by the Commission in Court Session. Section 153(1)(k) provides as follows: (k) any other proceedings that are, by this Act or any other Act, required to be taken before the Commission in Court Session. 84 Proceedings brought for offences under the OHS Act pursuant to s 105 of that Act therefore fall within the jurisdiction of the Commission in Court Session. 85 The functions of the Industrial Registrar and Deputy Industrial Registrar are found in s 208 of the IR Act. Section 208 is in the following terms: 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. 86 It will be observed that s 208(4) provides that the regulations may make provision in respect of the functions of the Industrial Registrar. 87 Clause 23 of the Industrial Relations (General) Regulation 2001 is in the following terms: 23 Functions of Industrial Registrar (1) The Industrial Registrar may exercise the following functions in connection with any matter before the Industrial Registrar: (a) subject to the Act, determine his or her own procedure in the matter, (b) issue a summons under section 165 of the Act for the purposes of dealing with the matter, (c) adjourn proceedings in the matter to any time and place, (d) make any amendments to the proceedings in the matter that the Industrial Registrar considers necessary in the interests of justice, (e) conduct proceedings in the matter publicly or, if the Industrial Registrar considers it necessary, privately, (f) require the presentation of the respective cases of the parties in the matter to be limited to the periods of time that the Industrial Registrar determines are reasonably necessary for the fair and adequate presentation of the cases, (g) require evidence or argument in the matter to be presented in writing and decide on the matters on which the Industrial Registrar will hear oral evidence or argument, (h) dismiss at any stage any proceedings in the matter if the Industrial Registrar considers the proceedings are frivolous or vexatious, (i) notify any person or body of proceedings in, or any other aspect of, the matter if the Industrial Registrar considers that the person or body may be affected by the matter. (2) The Industrial Registrar has, in connection with proceedings for the approval of an enterprise agreement or contract agreement, the function of notifying the persons or bodies who may be entitled to appear or be represented in the proceedings that the agreement has been lodged for approval. (3) The functions conferred by this clause are in addition to any functions delegated to the Industrial Registrar by the Commission or conferred on the Industrial Registrar by the Act, by any other provision of the regulations or by the rules of the Commission. 88 It will be noted that cl 23(1)(h) enables the Industrial Registrar to dismiss any proceedings in the matter if the proceedings are frivolous or vexatious. Arguably, the power of the Industrial Registrar to dismiss proceedings is limited by this subclause. It could not be, or was, suggested that the earlier proceedings were dealt with on this basis. 89 The Industrial Registrar is provided with additional functions pursuant to r 240 of the Rules. Rule 240 provides as follows: 240 Powers The Registrar may exercise the powers of a tribunal: (a) in respect of the matters mentioned in Schedule 3, and (b) in respect of any matter arising under the Rules, and (c) in respect of any matter remitted to the Registrar by the tribunal. 90 In accordance with r 240(a), the additional powers of the Industrial Registrar are to be found in Sch 3 to the Rules. These additional powers permit the Industrial Registrar to deal with any matter remitted by the Commission, where the only question for hearing is the amount of costs to be recovered and/or where the only matter in question is the matter of costs, (the Rules Sch 3.2 and the Rules Sch 3.3). The Registrar's power in respect of callovers, directions hearings, readiness hearings, pre hearing conferences, the recording of pleas and setting matters down before the Commission are provided for in the Rules Sch 3.4. 91 IRC 549 of 2004 to IRC 581 of 2004 were remitted to the Industrial Registrar by Haylen J. In my view, the reference to "matter" in r 240 is not a reference to the whole of the proceedings but the matter remitted to the Registrar. The powers that the Industrial Registrar may then exercise are those found in Sch 3. These additional powers do not permit the Industrial Registrar to dismiss proceedings brought pursuant to the OHS Act. Furthermore, leaving aside the power to dismiss, the Industrial Registrar did not have the power to grant the discontinuance and withdrawal of the proceedings as r 217D provides as follows: 217D Discontinuance and withdrawal of proceedings Any proceedings under this Part may, with leave of the Commission, be discontinued or withdrawn in accordance with Part 19. 92 I have earlier dealt with Pt 19 of the Rules at [58] to [66] of these reasons. Part 27A contains r 217A to 217E. Rule 217A provides that this part applies only to proceedings before the Commission in Court Session. 93 The Registrar also has the power to make consent judgments (the Rules Sch 3.6). However, nowhere in the Act, the Regulation or the Rules is there any conferral upon the Industrial Registrar of the power to authoritatively determine a criminal prosecution. Such powers may only be exercised by the Commission in Court Session. 94 In my view, the Deputy Industrial Registrar did not possess the power to dismiss criminal prosecutions. Furthermore, as the Deputy Industrial Registrar is not a member of the Commission in Court Session, he is not provided with the jurisdiction to grant leave to withdraw a criminal prosecution or to dismiss a summons that has been validly initiated. 95 Neither party addressed the Court as to whether the proceedings before the Deputy Industrial Registrar had been validly commenced. This issue was considered by the Full Court in Ridge Consolidated Pty Ltd v WorkCover Authority of New South Wales (Inspector Mauger) (2000) 100 IR 156. The Court stated at [28]: On its proper construction, s 4(1) of the Summary Jurisdiction Act (s 246 of the Criminal Procedure Act 1986) when read with r 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 pars (a) to (e) of r 219(1)(and, where relevant, stating the matters set out in par (f)) and which must be accompanied by an affidavit verifying the allegations made. On the proper construction of these 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 Limited (1989) 43 A Crim R 308. 96 As I have already observed HaylenJ granted 33 applications for order on 11 February 2004 accepting that the proceedings were validly initiated. As the Deputy Industrial Registrar lacked the power to grant leave to withdraw the summonses or to dismiss the proceedings, IRC 549 of 2004 to IRC 581 of 2004 remain as proceedings validly initiated. In these circumstances, the proceedings remain on foot and were never withdrawn or dismissed. The current proceedings, in my view, should be seen to be an amendment of the original proceedings as they took the form of consolidating the original proceedings. 97 The above analysis shows the wisdom of all related matters remaining before the same Member of the Commission particularly at the interlocutory stage. 98 In summary, in respect of the four issues that have arisen for determination, I conclude that the plea of autrefois acquit, assuming the proceedings were validly dismissed, did not operate. Secondly, I have expressed the view that the Industrial Registrar does not have the power to dismiss criminal proceedings and therefore such dismissal could not amount to autrefois acquit. Thirdly, the current proceedings do not constitute an abuse of process. Fourthly, as the offences occurred on 30 August 2002 and each matter was commenced on 27 August 2004, that being within the period of two years after the act or omission alleged to constitute the offences, the applications for orders were filed within the time period prescribed by s 107(1) of the OHS Act. 99 In light of my findings, I propose to list all proceedings before me at a time suitable to the parties to deal with the formalities that arise from my decision. 100 It follows that the motions brought by the defendant must be dismissed. 101 Costs must follow the event, in the usual way, in these circumstances. ORDERS For all of the reasons given, I make the following orders: 1. The defendant's motions are dismissed. 2. The defendant is to pay the prosecutor's costs of the motions, as agreed, or assessed. 3. The above matters and IRC 549 of 2004 to IRC 581 of 2004 are listed for application and/or directions at 9.30 am on 27 July 2005. 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