Industrial Court of New South Wales CITATION: Inspector Charles v Penrose Pine Products Pty Ltd [2010] NSWIRComm 132 PARTIES: Inspector Steve Charles (Prosecutor/Applicant on the Motion) Penrose Pine Products Pty Ltd (Defendant/Respondent on the Motion) FILE NUMBER(S): IRC 353 and 354 of 2009 CORAM: Staff J CATCHWORDS: OCCUPATIONAL HEALTH AND SAFETY - PRACTICE AND PROCEDURE - notices of motion - s 8(1) and s 8(2) of the Occupational Health and Safety Act 2000 - leave sought to amend the particulars of the applications for order - pleas of guilty entered - whether amendments create new charges - principles - discretion - leave to amend refused - costs reserved - order made - Industrial Relations Act 1996 ss 168, 170; Criminal Procedure Act 1986, ss 15, 16, 17, 18, 19, 20, 21. Criminal Procedure Act 1986 LEGISLATION CITED: Industrial Relations Act 1996 Occupational Health and Safety Act 1983 Occupational Health and Safety Act 2000 Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Downey v Acting District Court Judge Boulton (No 5) [2010] NSWCA 240 Inspector Hamilton v John Holland Pty Ltd (2010) 194 IR 189 James Borodin v R, Irene Borodin v R, ED v R, Bogomiagkov v R [2006] NSWCCA 83 CASES CITED: John L Pty Limited v Attorney-General (NSW) (1987) 163 CLR 508 Kirk v Industrial Relations Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) (2010) 239 CLR 531 Rockdale Beef Pty Ltd v Industrial Relations Commission of NSW (2007) 165 IR 7 Stanton v Abernathy (No 2) (1990) 19 NSWLR 656 Taylor v Environment Protection Authority (2000) 50 NSWLR 48 9 August 2010 HEARING DATES: Written submissions: 23 August 2010, 25 August 2010 DATE OF JUDGMENT: 24 September 2010 Mr R Reitano of counsel (Prosecutor/Applicant on the Motion) WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: Mr M Shume of counsel (Defendant/Respondent on the Motion) Timber Trade Industrial Association JUDGMENT: - 1 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: STAFF J Friday 24 September 2010 Matter No IRC 353 of 2009 INSPECTOR STEVE CHARLES v PENROSE PINE PRODUCTS PTY LTD Prosecution under section 8(1) of the Occupational Health and Safety Act 2000 Matter No IRC 354 of 2009 INSPECTOR STEVE CHARLES v PENROSE PINE PRODUCTS PTY LTD Prosecution under section 8(2) of the Occupational Health and Safety Act 2000 JUDGMENT [2010] NSWIRComm 132 1 Inspector Steve Charles (the "prosecutor") has filed notices of motion in the above matters seeking orders that leave be granted to amend the particulars of the applications for order. 2 The grounds and reasons relied upon in each motion are: Following the recent decision of Kirk v Industrial Relations Commission of New South Wales, Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1 (" Kirk ") the applicant seeks to add greater particularity in referring to the alleged acts or omissions which constitute the offence as set out in the amended application for order. 3 The grounds for the application to amend were contained in an affidavit of Wayne John Cooper, a solicitor employed by the WorkCover Authority of New South Wales, who deposed relevantly as follows: ... 3. On 17 March 2009 my colleague Geoffrey Paul Diggins, also a solicitor from WorkCover, caused to be filed in the Industrial Court of New South Wales an Application for Order and an Affidavit in Support of Application for Order in relation to the Respondent, Penrose Pine Products Pty Limited. 4. On 18 March 2009 his Honour Justice Haylen made an Order requiring the Respondent to appear before the Industrial Court of New South Wales on 20 May 2009. 5. The Order, Application for Order and Affidavit in Support of Application for Order ("the pleadings") were duly served on the Respondent. 6. The proceedings have a hearing date of 9 August 2010 before his Honour Staff J. 7. On 3 February 2010 a Full Bench of the High Court of Australia handed down judgment in the matter of Kirk v Industrial Relations Commission of New South Wales, Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1 (" Kirk "). 8. Following the recent decision of Kirk the Applicant seeks to add greater particularity in referring to the alleged acts or omissions which constitute the offence as set out in the Amended Application for Order ... 4 Mr R Reitano of counsel appeared for the prosecutor. Mr M Shume of counsel appeared for Penrose Pine Products Pty Ltd (the "defendant"), and opposed leave being granted to amend the applications for order. Background 5 On 18 March 2009, pursuant to s 246(1) of the Criminal Procedure Act 1986 (the "CP Act"), as applied by s 168 of the Industrial Relations Act 1996 (the "IR Act"), the defendant was ordered to appear before the Court to answer the offences charged in the applications for order. 6 On 22 October 2009, the defendant pleaded guilty to each of the charges. 7 Related prosecutions were also brought against an engineering company, Wollondilly Mobile Engineering Pty Ltd (Matter Nos IRC 355 and 356 of 2009). The defendant in those matters pleaded not guilty and the trial was fixed for two weeks in May 2010. This led the defendant in these matters to request that the sentencing hearings not occur until after the trial of the defendant in the related proceedings. Wollondilly Mobile Engineering Pty Ltd was subsequently placed in liquidation, resulting in the prosecutor proceeding ex parte. The prosecutor, at the conclusion of the trial, requested that judgment await sentencing in these matters. 8 The amendments sought to be made go to the particulars pleaded to the respective offences. The prosecutor's applications to amend are objected to by the defendant on the basis that the amendments made to the particulars create new offences with respect to the defendant and are accordingly statute barred pursuant to s 107 of the Occupational Health and Safety Act 2000 (the "OHS Act"). A further deficiency relied upon by the defendant is the failure to identify the "particular measure". 9 The prosecutor contended that the amendments made to the particulars do not create new offences which, it says, remain unchanged. It was contended that greater particularity and specificity of the acts and omissions are provided by the amended particulars. Accordingly, the prosecutor seeks to put before the Court and the defendant, amended applications for order that more specifically and articulately identify those acts and omissions. It was submitted that there was no injustice to the defendant if leave was granted to file the amended applications for order. The amended applications for order 10 In order to understand the issues in these proceedings, it is necessary to relevantly compare the original applications for order charged against the amended applications for order now sought by the prosecutor. This can be best illustrated as follows: Matter No IRC 353 of 2009 Original Application for Order Amended Application for Order Inspector Charles, an inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 ("the OHS Act") and empowered under s 106(1)(c) of the said Act to institute proceedings in this matter, allege that Penrose Pine Products Pty Ltd ("the defendant") of 12 Bransby Place, Mount Annan in the State of New South Wales, being an employer, on 22 March 2007, at 1 Forestry Road, Penrose ("the site") FAILED TO ensure the health, safety and welfare at work of all of its employees, in particular Stanley Battersby ("Battersby"), contrary to section 8(1) of the Occupational Health and Safety Act 2000. On 17 March 2009, Inspector Charles, an inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 ("the OHS Act") and empowered under s 106(1)(c) of the said Act to institute proceedings in this matter, allege that Penrose Pine Products Pty Ltd ("the defendant") of 12 Bransby Place, Mount Annan in the State of New South Wales, being an employer, on 22 March 2007, at 1 Forestry Road, Penrose ("the site") The particulars of the charge are: FAILED TO (a) The risk to the health and safety of Battersby was the risk of injury or death from fire and/or explosion created by the conduct of "hot work" (work involving the use of welding, cutting, grinding and other electrical, heat or spark producing equipment) on or about the wood shavings storage bin at the site, including the risk of injury or death sustained in the course of responding to such fire and attempting to escape any such fire and/or explosion. ensure the health, safety and welfare at work of all of its employees, in particular Stanley Battersby, contrary to section 8(1) of the Occupational Health and Safety Act 2000. (b) The defendant failed to implement a sign-in register or other system for the identification and recording/registration of visitors to the site and the purpose of their visit. The particulars of the charge are: (c) The defendant failed to implement a procedure requiring before any work was permitted to commence at the site: The defendant i. the submission to it of a risk assessment and a safe work method statement; (a) failed to inform itself about the work that was being undertaken at the site by contractors and their employees; ii. the review by it of such assessment and statement; and (b) failed to manage and organise work being undertaken at the site by contractors and their employees; iii. the issue of authorisation by it for the relevant work to commence. (c) failed to provide and maintain a safe system of work (including but not limited to a hot work permit system) in relation to work involving the use of welding, cutting, grinding and other electrical, heat or spark producing equipment being used at the site; (d) The defendant failed to provide and maintain a permit system as prescribed by Australian Standard 1674.1 – 1997 Safety in welding and allied processes in relation to the conduct of hot work at the site. (d) failed to undertake an adequate risk assessment in relation to work involving the use of welding, cutting, grinding and other electrical, heat or spark producing equipment being used at the site; (e) The defendant failed to undertake a risk assessment in relation to the conduct of hot work at the site, including hot work on or about the wood shavings storage bin. (e) failed to provide adequate supervision of contractors and their employees performing work with welding, cutting, grinding and other electrical, heat or spark producing equipment being used at the site; (f) The defendant permitted Benjamin Pendergast ("Pendergast") and Jarrad Thornton ("Thornton") to conduct work on the wood shavings storage bin in circumstances when its contents had not been emptied and the exhaust fan used for the extraction of shavings and saw dust from the moulding machine was operational. (f) failed to provide such information, instruction and training as was necessary in relation to people undertaking work involving the use of welding, cutting, grinding and other electrical equipment being used at the site; (g) The defendant failed to instruct and train Pendergast, Thornton and Battersby in relation to: i. hot work procedures, including the operation of a hot work permit system as prescribed by Australian Standard 1674.1 – 1997 Safety in welding and allied processes, at the site. (g) failed to provide or maintain adequate emergency procedures for people working at the site. ii. emergency procedures in relation to the wood shavings storage bin. As a result of the abovementioned failures, Stanley Battersby was placed at risk of injury. (h) The defendant failed to provide and/or maintain emergency procedures for people working at the site, in particular emergency procedures in relation to an outbreak of fire in the wood shavings storage bin. (i) The defendant failed to install a fire sprinkler system on the wood shavings storage bin. As a result of the abovementioned failures, Stanley Battersby was placed at risk of injury. Matter No IRC 354 of 2009 Original Application for Order Amended Application of Order Inspector Charles, an inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 ("the OHS Act") and empowered under s 106(1)(c) of the said Act to institute proceedings in this matter, allege that Penrose Pine Products Pty Ltd ("the defendant") of 12 Bransby Place, Mount Annan in the State of New South Wales, being an employer, on 22 March 2007, at 1 Forestry Road, Penrose ("the site") FAILED TO by its acts or omissions particularised below to ensure that people other than its employees, in particular Benjamin Pendergast and Jarrad Thornton, were not exposed to risks to their health and safety arising from the conduct of its undertaking while at its place of work contrary to section 8(2) of the Occupational Health and Safety Act 2000. On 17 March 2009, Inspector Charles, an inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 ("the OHS Act") and empowered under s 106(1)(c) of the said Act to institute proceedings in this matter, allege that Penrose Pine Products Pty Ltd ("the defendant") of 12 Bransby Place, Mount Annan in the State of New South Wales, being an employer, on 22 March 2007, at 1 Forestry Road, Penrose ("the site") The particulars of the charge are: FAILED TO (a) The undertaking of the defendant was the manufacture of timber products. ensure that people other than its employees, in particular Benjamin Pendergast and Jarrad Thornton, were not exposed to risks to their health and safety arising from the conduct of its undertaking while at its place of work contrary to section 8(2) of the Occupational Health and Safety Act 2000. (b) The place of work of the defendant was the site. The particulars of the charge are: (c) The risk to the health and safety of Benjamin Pendergast ("Pendergast") and Jarrad Thornton ("Thornton") was injury or death from fire and/or explosion created by conducting "hot work" (work involving the use of welding, cutting, grinding and other electrical, heat or spark producing equipment) on or about the wood shavings storage bin at the site, including the risk of injury or death sustained in the course of attempting to escape any such fire and/or explosion. The defendant (d) The defendant failed to implement a sign-in register or other system for the identification and recording/registration of visitors to the site and the purpose of their visit. (a) failed to inform itself about the work that was being undertaken at the site by contractors and their employees; (e) The defendant failed, in relation to the performance of work at the site by its contractors, including Pendergast and Thornton, to implement a procedure requiring before any work was permitted to commence, the submission to it of a risk assessment and/or safe work method statement, review by it of such assessment and/or statement and the issue of authorisation by it for the relevant work to commence. (b) failed to manage and organise work being undertaken at the site by contractors and their employees; (f) The defendant failed to provide and maintain a permit system as prescribed by Australian Standard 1674.1 – 1997 Safety in welding and allied processes in relation to the conduct of hot work at the site, including in relation to the hot work being conducted by Pendergast and Thornton on the wood shavings storage bin. (c) failed to provide and maintain a safe system of work (including but not limited to a hot work permit system) in relation to work involving the use of welding, cutting, grinding and other electrical, heat or spark producing equipment being used at the site; (g) The defendant failed to undertake a risk assessment in relation to the conduct of hot work at the site, including hot work on or about the wood shavings storage bin. (d) failed to undertake an adequate risk assessment in relation to work involving the use of welding, cutting, grinding and other electrical, heat or spark producing equipment being used at the site; (h) The defendant permitted Pendergast and Thornton to conduct work on the wood shavings storage bin in circumstances when its contents had not been emptied and the exhaust fan used for the extraction of shavings and saw dust from the moulding machine was operational. (e) failed to provide adequate supervision of contractors and their employees performing work with welding, cutting, grinding and other electrical, heat or spark producing equipment being used at the site; (i) The defendant failed to provide supervision of Pendergast and Thornton. In the alternative, the defendant failed to provide adequate supervision of Pendergast and Thornton in that: i. its leading hand and employee, Stanley Battersby ("Battersby"), who had supervisory responsibilities for the site including the wood shavings storage bin, failed to inform himself of the nature of the work being performed by Pendergast and Thornton. (f) failed to provide such information, instruction and training as was necessary in relation to people undertaking work involving the use of welding, cutting, grinding and other electrical equipment being used at the site; ii. Battersby failed to implement a permit system as prescribed by Australian Standard 1674.1 – 1997 Safety in welding and allied processes for the conduct of hot work at the site. (g) failed to provide or maintain adequate emergency procedures for people working at the site. (j) The defendant failed to instruct and train Pendergast, Thornton and Battersby in relation to the following matters: As a result of the abovementioned failures, Benjamin Pendergast and Jarrad Thornton were placed at risk of injury and Benjamin Pendergast was fatally injured. i. emergency procedures in relation to the wood shavings storage bin. ii. hot work procedures, including the operation of a hot work permit system as prescribed by Australian Standard 1674.1 - 1997 Safety in welding and allied processes , at the site. (k) The defendant failed to provide and/or maintain emergency procedures for people working at the site, in particular emergency procedures in relation to an outbreak of fire in the wood shavings storage bin. (l) The defendant failed to install a fire sprinkler system on the wood shavings storage bin. As a result of the abovementioned failures, Benjamin Pendergast and Jarrad Thornton were placed at risk of injury and Benjamin Pendergast was fatally injured. Statutory framework 11 The issue in these proceedings is the application of the relevant statutory provisions which deal with amendments to applications for order. Chapter 4 Pt 5 of the IR Act deals with the procedures and powers of the Commission. Relevantly, s 168 of the IR Act provides as follows: 168 Criminal procedure (1) Proceedings for any offence in respect of which proceedings are taken before the Commission in Court Session are to be dealt with summarily by the Commission. (2) Part 5 of Chapter 4 of the Criminal Procedure Act 1986 applies to proceedings for an offence taken before the Commission in Court Session. (3) Nothing in subsection (2) affects the operation of section 170. (4) The provisions applied by this section prevail over any other provisions of this Part for the purposes of proceedings for an offence. 12 Section 170 deals with amendments and irregularities and provides: 170 Amendments and irregularities (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. 13 The relevant provisions of the CP Act which are taken to apply pursuant to s 168(2) of the IR Act are as follows: 15 Application of Part (1) This Part applies, to the extent that it is capable of being applied, to all offences, however arising (whether under an Act or at common law), whenever committed and in whatever court dealt with. (2) In this Part: indictment includes a court attendance notice or any other process or document by which criminal proceedings are commenced. 16 Certain defects do not affect indictment (1) An indictment is not bad, insufficient, void, erroneous or defective on any of the following grounds: (a) for the improper insertion or omission of the words "as appears by the record", "with force and arms", "against the peace", "against the form of the statute" or "feloniously", (b) for want of an averment of any matter unnecessary to be proved or necessarily implied, (c) for want of a proper or perfect venue or a proper or formal conclusion, (d) for want of any additional accused person or for any imperfection relating to any additional accused person, (e) for want of any statement of the value or price of any matter or thing, or the amount of damage or injury, if such value, price or amount is not of the essence of the offence, (f) for designating any person by the name of his or her office, or other descriptive appellation, instead of by his or her proper name, (g) except where time is an essential ingredient, for omitting to state the time at which an offence was committed, for stating the time wrongly or for stating the time imperfectly, (h) for stating an offence to have been committed on a day subsequent to the finding of the indictment, on an impossible day or on a day that never happened, (i) if the indictment was signed by an Australian legal practitioner who has been instructed to prosecute the proceedings to which the indictment relates on behalf of the Director of Public Prosecutions—for failure by the Director to authorise the Australian legal practitioner by order in writing under section 126 (2) to sign indictments for and on behalf of the Director. (2) No objection may be taken, or allowed, to any indictment by which criminal proceedings (including committal proceedings) in the Local Court or for any other offence that is to be dealt with summarily are commenced, or to any warrant issued for the purposes of any such proceedings, on the grounds of: (a) any alleged defect in it in substance or in form, or (b) any variance between it and the evidence adduced at the proceedings for the offence charged in the indictment or warrant. 17 When formal objections to be taken (1) An objection to an indictment for a formal defect apparent on its face must be taken, by demurrer or motion to quash the indictment, before the jury is sworn. (2) The court before which the objection is taken may cause the indictment to be amended and, in that case, the trial is to proceed as if there had been no defect. 18 Judgment on demurrer to indictment The judgment against the accused person on demurrer is to be that the person "answer over" to the charge. 19 Traversing indictment (1) No traverse is to be allowed, or trial postponed, or time to plead to the indictment given, unless the court so orders. (2) However, if the court is of the opinion that the accused person ought to be allowed time, either to prepare for his or her defence or for any other reason, the court is to postpone the trial on such terms as it considers fit. 20 Amendment of indictment (1) An indictment may not be amended after it is presented, except by the prosecutor: (a) with the leave of the court, or (b) with the consent of the accused. (2) This section does not affect the powers of the court under section 21. (3) For the purposes of this section, an amendment of an indictment includes the substitution of an indictment. 21 Orders for amendment of indictment, separate trial and postponement of trial (1) If of the opinion that an indictment is defective but, having regard to the merits of the case, can be amended without injustice, the court may make such order for the amendment of the indictment as it thinks necessary to meet the circumstances of the case. (2) If of the opinion: (a) that an accused person may be prejudiced or embarrassed in his or her defence by reason of being charged with more than one offence in the same indictment, or (b) that for any other reason it is desirable to direct that an accused person be tried separately for any one or more offences charged in an indictment, the court may order a separate trial of any count or counts of the indictment. (3) If of the opinion that the postponement of an accused person's trial is expedient as a consequence of it having amended an indictment or ordered a separate trial of a count, the court may make such order as appears necessary. (4) An order under this section may be made either before trial or at any stage during the trial. (5) The following provisions apply if an order is made under this section for a separate trial or for the postponement of a trial: (a) if the order is made during the trial, the court may order that the jury be discharged from giving a verdict: (i) on the count or counts in respect of which the trial is postponed, or (ii) on the indictment, as the case may be, (b) the procedure on the separate trial of a count, and the procedure on the postponed trial, are to be the same in all respects (if the jury has been discharged) as if the trial had not commenced, (c) subject to the Bail Act 1973, the court may commit the accused person to a correctional centre. (6) Any power of the court under this section is in addition to and not in derogation of any other power of the court for the same or similar purposes. Consideration 14 It is convenient to firstly deal with the defendant's objections to the amendments to the applications for order. Mr Shume contended that the risk was not defined in the applications for order and that it was not possible to ascertain the risk by implication. Counsel submitted that risk was an essential element of the offence and without identification of the risk within the applications for order, it not only failed to disclose an offence, but more importantly failed to satisfy the Court that it has jurisdiction to entertain the criminal proceedings initiated by the charge. 15 Counsel relied upon the Full Bench decision in Inspector Hamilton v John Holland Pty Ltd (2010) 194 IR 189 at [36] for this contention. In my view, this submission seeks to elevate the "risk" to being an essential legal element, as distinct from an essential factual ingredient that must be identified in the applications for order. 16 Mr Shume also contended that the second deficiency was the failure to identify the "particular measure." Counsel submitted that arising from the decision of the High Court in Kirk v Industrial Relations Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) (2010) 239 CLR 531, an application for order must plead the acts or omissions of the defendant that are alleged to give rise to the risk to health and safety. Counsel further submitted that whilst the decision of John Holland binds this Court, the decision of the High Court in Kirk elevated the acts and omissions said to constitute the offence to essential legal elements. Counsel submitted that a failure to plead an essential factual ingredient "will lead to a lack of jurisdiction of the Court to hear and determine the matter." 17 Counsel contended that an examination of the particulars of the charges reveals no identification of the particular measure. I do not agree. Particular (c) in both the s 8(1) and s 8(2) applications for order identified a measure that the defendant should have taken as "including but not limited to a hot work permit system." 18 The High Court stated in Kirk that the charges under consideration (s 15 and s 16 of the Occupational Heath and Safety Act 1983 (the "OHS Act 1983"), now s 8(1) and s 8(2) of the OHS Act, must identify the act or omission said to constitute a contravention of those provisions and that in many instances, this required specification of the safety measures which should have been taken by the alleged offender. The Court stated that this was critical if a defence under s 53 (now s 28 of the OHS Act) was to be enlivened. The plurality (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) Heydon J agreeing with the plurality's orders, with one exception which related to costs, observed at [18]: The duties referred to in ss 15(1) and 16(1) cannot remain absolute when a defence under s 53 is invoked. ... ... The OH&S Act delimits the obligations of employers by the terms of the defences provided in s 53. 19 The High Court held the acts or omissions the subject of the charges had to be identified if a defendant was to be able to rely upon a defence under s 53. In that case, the defendants were not in a position to satisfy the defence because they had not been informed what measures they were required to take and were therefore not in a position to prove that the taking of those measures was not reasonably practicable (at [50] - [53]). 20 In these matters, the defendant has pleaded guilty to the charges. To the extent that it was submitted that the alleged breach did not clearly set out nor identify the acts or omissions alleged of the defendant, this submission has been overtaken by the defendant's pleading to the essential elements of the charges. 21 In the amended application for order in relation to the s 8(2) charge, the first three particulars provide a more detailed articulation of the defendant's undertaking, with an express identification of the risk in paragraph (c). Mr Shume submitted that paragraphs (a), (b), and (g) of the original applications for order were completely lacking any identification of the particular measure and that paragraphs (d), (e) and (f) were similar to that described by the High Court in Kirk at [25]: "The first three particulars provided of the offence simply combined the words of s 15(2)(a), (c) and (f) with reference to the ATV." 22 The issues identified by Mr Shume were said to go to the heart of the breaches. Counsel submitted that, in actual fact, what the prosecutor was seeking to do was not to amend, but to overcome deficiencies in the pleadings that are not otherwise curable. Counsel submitted that the failures were so fundamental that a charge does not exist and that therefore neither s 20 of the CP Act, nor s 170 of the IR Act has the power to make good the applications for order. However, I am dealing with motions seeking leave to file amended applications for order where there has been a plea of guilty to the charges, and not applications to strike out the charges. 23 Mr Shume further submitted that the discretion to be exercised by the Court is not unfettered, contending that the actual outcome of the applications for order, were they to be granted in full, would be for a number of the particulars of the charge to assert a new charge that was not otherwise before the Court in circumstances where the offence is statute barred. Counsel submitted that the particulars of the charge in the amended application for order (using the s 8(2) charge), except for particulars (a), (b) and (c) (which deal with the description of elements of the offence), are separate and distinct charges. If they are to be allowed then there must be a particular in the original applications for order which fundamentally asserts a similar breach. The following examples were given by counsel. Looking at the s 8(2) charge, a comparison of particular (k) of the amended application for order reflects that which is contained in (g) in the original application for order. By contrast, particular (l), "the defendant failed to install a fire sprinkler system on the wood shavings storage bin" has no comparison and is a wholly new charge. The same position was said to exist for particulars (d), (e) and (h), in that they are wholly new charges. 24 Mr Reitano submitted that the defining principle in determining applications such as this, is to avoid injustice. Counsel referred the Court to Mark Anthony Clarke (1993) 71 ACrimR 58, where Badgery-Parker J observed at [69]: There being clearly evidence before the jury of the application of corporal violence at the time of the robbery (the push) although not of a striking, it would have been open to the Crown, even at the late stage when the issue was first raised, part way through the summing up, to apply for an amendment of count 4A to allege robbery with corporal violence instead of robbery with striking; and it would have been entirely appropriate for the learned trial judge to make that amendment. Section 365 of the Crimes Act requires that an amendment be made at any stage if it appears that the indictment is defective provided that amendment can be made without injustice. There is ample authority now for the proposition that an indictment may be regarded as defective in the relevant sense if the allegations which it makes do not correspond with the evidence that has been given in the depositions from the committal proceeding and/or at the trial: see Hall [1968] 2 QB 788; (1968) 52 Cr App R 528; Johal and Ram [1973] 1 QB 475; (1972) 56 Cr App R 348. ... 25 Counsel also relied upon a judgment of the New South Wales Court of Criminal Appeal in James Borodin v R, Irene Borodin v R, ED v R, Bogomiagkov v R [2006] NSWCCA 83. In that matter, the Court heard an appeal from a decision of the trial judge permitting an amendment to an indictment on the 13th day of the trial and after the Crown's principal witness had given evidence. Howie J, with whom Sully and Simpson JJ agreed, stated at [20] - [25]: [20] The Judge noted that the relevant principles were contained in the decision of R v Stuart (NSWCCA, unreported, 8 March 1996) in the following passage quoted by his Honour in the course of his judgment (citations not produced): An indictment may be amended in order to cure a defect contained in it even at a late stage of the trial. Permissible amendments are not limited to formal matters, but may deal with substantial matters. A count may be substituted where the facts proved justify conviction under the amended count. The question which the trial judge must answer in exercising discretion whether to allow the required amendment is whether it can be made without injustice. [21] The Judge came to the view that, despite a complaint by defence counsel that they would have cross-examined the two witnesses differently had the charge referred to the gun rather than the knife, no injustice would be caused by the amendment of the indictment. He offered to have the two witnesses recalled for further cross-examination but this offer was not taken up. [22] In relation to the amendment to counts 6 and 7, the Judge noted that the amendment was to change one of the elements of the offence, as set out in s 103 of the Crimes Act , so that each count accorded with the evidence but without changing the actual conduct that was the subject of each of the charges: the signing of the relevant cheque. In R v Cook (NSWCCA, unreported, 9 May 1990) the amendment to the indictment was made at the end of the Crown case. Notwithstanding the lateness of the change to the wording of the charge, it was held that there was no injustice arising because the factual basis for the charge did not change and the wording of the charge more appropriately reflected the evidence in the Crown case. The Court rejected an argument that the power to amend an indictment was limited to technicalities. [23] In cases such as the present there is strictly speaking no appeal against the exercise of the Judge's discretion. The appeal is concerned with whether there was a miscarriage of justice as a result of the amendment of the indictment. A miscarriage of justice will be shown where the amendment resulted in an unfair trial, whether that unfairness was a result of tactical decisions made by defence counsel based upon the wording of the charge or otherwise. [24] In my opinion it is impossible to see how the amendments resulted in an unfair trial. The only prejudice suffered by the appellants was that the counts in the indictment were to be determined on their merits. With respect I agree with the Judge that it is difficult, if not impossible, to see how, in light of the nature of defence case, the cross-examination might have been significantly different had the indictment been amended at an earlier point in the trial. In any event the Judge offered to have the witnesses recalled and I do not understand how the appellants would have been further prejudiced by that offer being taken up. [25] Section 21 of the Criminal Procedure Act permits the court to make orders for amendment of an indictment where to do so would not result in injustice. Relevant injustice does not arise simply because the amendment of the charge deprives the accused of taking a technical point based upon an inconsistency between the statement of the charge and the evidence in support of it. Tactical decisions may have been made by the defence upon the basis of the wording of the charge, but it does not follow that the trial judge should refuse leave to amend the indictment simply because those tactical decisions will be rendered fruitless. It will only be in a case where the accused would be irreparably prejudiced in meeting the charge as amended that leave should be refused. 26 The authorities to which I was referred to by Mr Reitano deal, in my view, with amendments to indictments during the course of a trial and are therefore distinguishable from the issues under consideration here. In the matters that I am presently considering, the defendant has entered a plea of guilty to each of the charges. 27 Mr Reitano's answer to the further contentions relied upon by Mr Shume may be summarised as follows: (i) there are no defects in the prosecutor's original pleadings. There was no development of any real argument by the defendant as to why it asserts that there is any defect, or why the Court might be without jurisdiction, other than to vaguely assert some support from the judgment of the High Court in Kirk and the judgment of a Full Bench of this Court in John Holland . Neither case dealt with that question at all; (ii) the defendant's arguments concerning "the risk" fall away simply by reason of the fact that the defendant admitted that legal element of the charge (and all other legal elements of the charge) when it pleaded guilty. It is to be remembered that when the defendant entered its plea, it had not only the application for order, but the affidavit in support of the application for order, as was the case in Rockdale Beef Pty Ltd v Industrial Relations Commission of NSW (2007) 165 IR 7; [2007] NSWCA 128; at [126]. The affidavits inform the defendant about the nature of the prosecution's case and forms at least some of the basis for its plea; (iii) there is no incident which is the subject of the charge contrary to the defendant's submissions. The incident itself is not the subject of the charge. No authority was cited for the proposition that the new particulars need to "fall within the old particulars in order to be permissive of amendment." Such a proposition is at odds with all of the modern authorities concerning the power to amend; (iv) there was no analysis by the defendant that the prosecutor was seeking to bring a different charge: it was simply asserted; (v) this matter bears some similarity to the circumstances that were contained in WorkCover Authority of New South Wales (Inspector Woodington) v Australand Holdings Limited and Sassall Glass and Joinery Pty Limited [2006] NSWIRComm 242. Even though the amendment there was sought in a contested hearing, the prosecutor in these matters does not seek to lay a charge any different from that laid initially. The legal elements of the charge and its factual ingredients remain substantially unaltered by the amendment. Procedural fairness dictates that the defendant know precisely what the prosecutor alleges. 28 In focusing on the charges themselves, a consideration of the original and amended applications for order pleaded discloses, in my view, no difference to the substantive offence, with the exception of the phrase "by its actions or omissions as particularised below", which appears in the s 8(2) amended application for order. This phrase does not appear in the original application for order. 29 I do not see any substantive difference with the addition of the words "by its acts or omissions particularised below" used by the prosecutor. Such acts or omissions were implied in the original application for order. On one view, this phrase is not integral to the essential legal elements of the offence charged, but goes more to the necessary particularity required to be provided as part of the essential factual particulars of the offence. See John Holland at [34], [36] - [37], [67], [70], [72]. 30 I have earlier set out s 16 of the CP Act which deals with amendments to indictments. The provisions contained in s 16(2) have their origin in, what is often referred to as, a Lord Jervis provision. In Taylor v Environment Protection Authority (2000) 50 NSWLR 48, the Court of Criminal Appeal (Meagher JA, James and Sperling JJ) observed at [26]: [26] A distinction is drawn between informations which fail to specify the legal elements of the offence and those where essential factual Particulars have not been given. Where an information fails to specify the essential legal elements of the offence, the information is not saved by a Lord Jervis provision: Ex parte Price (1899) 20 LR (NSW) 343; Ex parte Bartlett (1896) 17 LR (NSW) 108; Ex parte Thomas ; Re Otzen (1947) 47 SR (NSW) 261; 64 WN (NSW) 21; Ex parte Burnett ; Re Wicks [1968] 2 NSWR 119; Boral Gas (NSW) Pty Ltd v Magill (1993) 32 NSWLR 501 at 517, per Mahoney JA. Where, however, the legal elements of the offence are specified and the defect lies only in a failure to specify essential factual particulars — such as the time, place, or the manner of the offence — a Lord Jervis provision will operate: John L Pty Ltd (at 529 and 530), per Brennan J; Stanton v Abernathy (at 667), per Gleeson CJ; R v Cassell ; R v Duff (1924) 41 WN (NSW) 23. 31 Counsel for the prosecutor emphasised that the circumstances in which the applications to amend were brought was only in respect of the articulation of the particulars where it arose in the context of pleas of guilty. The reason why that is made, it was submitted, was because the defendant by its pleas of guilty has admitted all legal elements of the charges. It is open to the defendant to challenge any or all of the particulars. In such circumstances, the prosecutor would be put to proof of all the factual circumstances. Mr Reitano acknowledged that the defendant was entitled to procedural fairness and an opportunity to meet any submission that it may make about what the facts are and what the particular acts and omissions are that the Court should take into account in sentencing. 32 There has long been a distinction drawn between the essential legal elements of an offence and the essential factual particulars of that offence which, when taken together, comprise the essential factual ingredients necessary to ground a valid indictment. The distinction is important. (See references to John Holland set out in [29] above and Downey v Acting District Court Judge Boulton (No 5) [2010] NSWCA 240, Basten JA at [29] - [45] (Allsop P and Macfarlan JA agreeing)). 33 In John Holland, the Full Bench considered the requirement for pleadings in respect of applications for order filed under the OHS Act. After considering various authorities and the relevant statutory provisions (at [36]), the Full Bench observed at [37] - [38]: [37] Thus, an Application for Order must comply with the requirements of r 217B, but it must also comply with the common law principles. That means the Application must contain: 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 defendant is alleged to have committed an offence, and e. the nature of the offence that is alleged. This may be taken to mean the essential legal elements of the charge: see Johnson v Miller at 486 where Dixon J distinguishes between 'the nature of the offence' (he later refers to it as the 'legal nature of the offence: at 489) and the essential factual ingredients of the 'time, place and manner of the defendant's acts or omissions': see also Rockdale Beef at [109] per Basten JA, who makes the same distinction and see Kirk at [26], and f. the essential factual ingredients which must include the time, place and manner of the defendant's acts or omissions. [38] Section 11 of the Criminal Procedure Act allows for the description of any offence to be made in the words of an Act creating the offence. Section 12 provides that a summary offence is taken to be sufficiently stated or described if it is stated or described by the use of a short expression that describes the offence in general terms. However, as we have noted, this does not dispense with the common law rule requiring the essential factual ingredients to be identified in the Application for Order: see for example, Stanton v Abernathy at 666. Thus, if an Application describes an offence under s 8(1) of the OHS Act 2000 in the words of that provision, it would seem to us that the Application has met the requirement of identifying the legal nature of the offence, that is the essential legal elements, subject to the proviso that, in adopting the words of the statute, it admits of no uncertainty or ambiguity: Rockdale Beef at [131]. What must also be identified in the Application are the essential factual ingredients that shall include the time, place and manner of the defendant's acts or omissions. 34 The Full Bench determined that in order for an application for order to identify the essential elements of the offence, the order must identify the following (at [48]). These requirements and the relevant answers taken from an analysis of the s 8(2) charge under consideration here are: (a) the name and address of the person by whom the proceedings are brought: "[Inspector] Steve Charles of the WorkCover Authority of New South Wales, 60-70 Elizabeth Street, Sydney in the State of New South Wales"; (b) the capacity in which the prosecutor is taking the proceedings: "an Inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 and empowered under Section 106(1)(c) of the said Act to institute proceedings in this matter"; (c) the name and address of the person against whom the proceedings are brought: "Penrose Pine Products Pty Ltd [ACN 008 394 714] a corporation whose registered office is located at Jim Schofield, 12 Bransby Place, Mount Annan in the State of New South Wales"; (d) the Act and the section under which the defendant is alleged to have committed an offence: "Section 8(2) of the Occupational Health and Safety Act 2000"; (e) the nature of the offence that is alleged: "the defendant, being an employer, failed to ensure that people other than its employees, in particular Benjamin Pendergast and Jarrad Thornton, were not exposed to risks to their health and safety arising from the conduct of its undertaking while at its place of work contrary to Section 8(2) of the Occupational Health and Safety Act 2000." 35 Similar identification of the relevant requirements was undertaken by the prosecutor in the application for order in Matter No IRC 353 of 2009 (the alleged s 8(1) charge). 36 The Full Bench in John Holland (at [50]) went on to observe that in Rockdale Beef, Basten JA stated what is also required to be included in an application for order are the essential factual ingredients of time, place and manner of the offence: see Rockdale Beef at [109] - [110] and the reference therein to John L Pty Limited v Attorney-General (NSW) (1987) 163 CLR 508. 37 In these matters, the time is identified as 22 March 2007. The place is identified as 1 Forestry Road, Penrose. The manner in which the offence was alleged to have occurred is addressed in each of the applications in the part described as "particulars". The risk was identified as the risk to health, safety and welfare of employees at work through the use of welding, cutting, grinding and other electrical, heat or spark producing equipment being used at the site. 38 The applications proceed to describe how the defendant failed to ensure the health, safety and welfare of its employees and people other than its employees. It is alleged that the defendant failed to inform itself about the work that was being undertaken; failed to provide and maintain a safe system of work (including but not limited to a hot work permit system) in relation to work involving the use of welding, cutting, grinding and other electrical, heat or spark producing equipment being used at the site; failed to undertake an adequate risk assessment in relation to the work involving the use of welding, cutting, grinding and other electrical, heat or spark producing equipment being used at the site; failed to provide adequate supervision of contractors and their employees; failed to provide necessary information, instruction and training and failed to provide or maintain adequate emergency procedures. 39 In my view, the applications identify the risk. The affidavits accompanying the applications have no doubt also assisted the defendant in understanding the risk and led to the entering of pleas. It is also apparent what failures are alleged and the measures the defendant should have taken to avoid the risk to safety. As the Full Bench observed in John Holland (at [57]), if there were any deficiencies in the manner in which the particulars were expressed, it would not render the charges invalid. Rather, it would be open to the trial judge to order an amendment or for further particulars to be provided, or for the defendant to seek further and better particulars: Rockdale Beef (at [126]), per Basten JA, referring to Stanton v Abernathy (No 2) (1990) 19 NSWLR 656 (at 667, 671 and 672). 40 It is clear that s 16(2) of the CP Act gives the Court power to permit an amendment of the application for order where a variation is sought to the essential factual particulars of the offences charged. However, in light of the decision that I have reached, it is unnecessary to further examine the various contentions of the parties in respect of whether the amendments to the applications for order create a new and different charge, or merely afford a more precise identification of the circumstances previously indicated as the facts relied upon. 41 I turn to consider whether, in accordance with s 170 of the IR Act, in the exercise of my discretion, it is in the interests of justice to amend the respective applications for order in the terms proposed. The applications for order were filed on 17 March 2009 in respect of an offence alleged to have occurred on 22 March 2007. Almost two years elapsed from the date of the incident to the filing of the applications for order, with the defendant entering pleas of guilty in each matter on 22 October 2009. Since that time, the High Court has delivered it's decision in Kirk and a Full Bench of this Court has given judgment in a Stated Case in John Holland. 42 Recently, the High Court in Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 considered the approach that a court must take in the exercise of its discretion to allow amendments to proceedings. The Court in that matter was dealing with civil proceedings and relevantly r 21, r 501 and r 502 of the Court Procedures Rules 2006 (ACT). The object of r 21 is, inter alia, to achieve the just resolution of the real issues in proceedings and the timely disposal of proceedings at a cost affordable by the parties. Rule 501 and r 502 deal with the making of amendments to documents. 43 The plurality, (Gummow, Hayne, Crennan, Kiefel and Bell JJ), French CJ agreeing in a separate judgment; Heydon J also agreeing in a separate judgment, stated at [98] - [99], [102], [112] - [113]: [98] Of course, a just resolution of proceedings remains the paramount purpose of r 21; but what is a "just resolution" is to be understood in light of the purposes and objectives stated. Speed and efficiency, in the sense of minimum delay and expense, are seen as essential to a just resolution of proceedings. This should not detract from a proper opportunity being given to the parties to plead their case, but it suggests that limits may be placed upon re-pleading, when delay and cost are taken into account. The Rule's reference to the need to minimise costs implies that an order for costs may not always provide sufficient compensation and therefore achieve a just resolution. It cannot therefore be said that a just resolution requires that a party be permitted to raise any arguable case at any point in the proceedings, on payment of costs. [99] In the past it has more readily been assumed that an order for the costs occasioned by the amendment would overcome injustice to the amending party's opponent. In Cropper v Smith Bowen LJ described an order for costs as a panacea that heals all. Such a view may largely explain the decision of this Court in Shannon v Lee Chun , which upheld a decision allowing the plaintiff to raise a new case at the second trial, but which imposed a condition as to costs. The modern view is that even an order for indemnity costs may not always undo the prejudice a party suffers by late amendment. In the present case it is difficult to see that such an order could be sufficient compensation, given that Aon would be required to again defend litigation which was, effectively, to be commenced afresh. ... [102] The objectives stated in r 21 do not require that every application for amendment should be refused because it involves the waste of some costs and some degree of delay, as it inevitably will. Factors such as the nature and importance of the amendment to the party applying cannot be overlooked. Whilst r 21 assumes some ill-effects will flow from the fact of a delay, that will not prevent the parties dealing with its particular effects in their case in more detail. It is the extent of the delay and the costs associated with it, together with the prejudice which might reasonably be assumed to follow and that which is shown, which are to be weighed against the grant of permission to a party to alter its case. Much may depend upon the point the litigation has reached relative to a trial when the application to amend is made. There may be cases where it may properly be concluded that a party has had sufficient opportunity to plead their case and that it is too late for a further amendment, having regard to the other party and other litigants awaiting trial dates. Rule 21 makes it plain that the extent and the effect of delay and costs are to be regarded as important considerations in the exercise of the court's discretion. Invariably the exercise of that discretion will require an explanation to be given where there is delay in applying for amendment. ... [112] A party has the right to bring proceedings. Parties have choices as to what claims are to be made and how they are to be framed. But limits will be placed upon their ability to effect changes to their pleadings, particularly if litigation is advanced. That is why, in seeking the just resolution of the dispute, reference is made to parties having a sufficient opportunity to identify the issues they seek to agitate. [113] In the past it has been left largely to the parties to prepare for trial and to seek the court's assistance as required. Those times are long gone. The allocation of power, between litigants and the courts arises from tradition and from principle and policy. It is recognised by the courts that the resolution of disputes serves the public as a whole, not merely the parties to the proceedings. 44 In applying the above principles to these matters, it is relevant to note that on two occasions dates were fixed for a sentencing hearing and vacated. A further date has been programmed for the sentencing hearing (15 October 2010). As I have already observed, the determination of Matter Nos IRC 355 and 356 of 2009 awaits the sentencing hearing in these matters. In my view, it is likely that in the event that the amendments are granted, further interlocutory applications will be brought by the defendant who has entered pleas of guilty to each of the charges. 45 One such application foreshadowed by Mr Shume, is that any amendment would render the charges statute barred pursuant to s 107 of the OHS Act. In addition, the incident giving rise to the charges which resulted in Mr Pendergast being fatally injured, occurred on 22 March 2007. A significant period of time has already elapsed and if individuals are required to give evidence of their recollection of the events relevant to the offences, such recollections are diminished by time. It is also to be noted that on the last occasion that this matter was listed for a sentencing hearing, members of the late Mr Pendergast's family drove from Tahmoor in country New South Wales to be present during the sentencing hearing which was adjourned pending the determination of the notices of motion. 46 Public interest considerations also arise, particularly when it is borne in mind that prosecutions brought pursuant to the OHS Act are criminal in nature. 47 In light of the foregoing matters and taking into account the overall interests of justice between the parties, I conclude, although finely balanced, that pursuant to s 170 of the Industrial Relations Act 1996, leave to amend the applications for order sought by the prosecutor should be refused. ORDERS 48 I make the following orders: 1. The prosecutor's notices of motion are dismissed. 2. Costs are reserved with liberty to apply. ----------------------------------- 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.