Industrial Relations Commission of New South Wales CITATION: Inspector Howard v Connell Wagner Pty Ltd [2009] NSWIRComm 94 PROSECUTOR Inspector Dennis Howard FIRST DEFENDANT Connell Wagner Pty Ltd PARTIES: SECOND DEFENDANT Connell Wagner Pty Ltd THIRD DEFENDANT CW-DC Pty Ltd FILE NUMBER(S): IRC 2576 of 2006, IRC 2577 of 2006 and IRC 2579 of 2006 CORAM: Staff J CATCHWORDS: Occupational health and safety - Notice of motion - Application to permanently stay until proper particulars provided - Adequacy of particulars - Whether latent ambiguity - Whether alternate charges may be brought - Particulars supplied including evidence appropriate having regard to charges - Occupational Health & Safety Act 2000 s 8(1), s 8(2) and s 10(1) - Application for referral of questions to Full Bench refused - Section 196 of Industrial Relations Act 1996 - Section 5AE of the Criminal Appeal Act 1912 Criminal Appeal Act 1912 LEGISLATION CITED: Industrial Relations Act 1996 Occupational Health & Safety Act 2000 Allianz Australia Insurance Ltd v Newcastle Formwork Constructions Pty Ltd [2007] NSWCA 144 Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1 Director-General of Department of Land and Water Conservation v Greentree and Another [2003] NSWCCA 31 Forster v Osprey Manufacturing Pty Ltd [2003] NSWIRComm 161 Hannes v Director of Public Prosecutions (Cth) (No 2) (2006) 205 FLR 217 Johnson v Miller (1937) 59 CLR 467 R v Saunders (1990 - 1993) 9 Petty Sessions Review 4537 at 4539 (unreported CCA NSW 23 February 1993) CASES CITED: Regina v Abdoula Khouzame; Regina v Samson Saliba (1999) 108 ACrimR 170 Sims v Wran (1984) 1 NSWLR 317 Stanton v Abernathy and Another (1990) 19 NSWLR 656 S v R (1989) 89 ALR 321 WorkCover Authority of New South Wales (Inspector Dubois) v Concrete Constructions Group Limited (1999) 98 IR 362 WorkCover Authority (NSW) (Inspector Singh) v ABB Australia Pty Ltd ) (2006) 151 IR 90 WorkCover Authority (NSW) v Fernz Construction Materials Ltd (1999) 91 IR 119 WorkCover Authority (NSW) (Inspector Wolf) v Rockdale Beef Pty Ltd (2006) 155 IR 366 HEARING DATES: 02/06/2009, 12/06/2009 DATE OF JUDGMENT: 23 June 2009 PROSECUTOR Mr J Agius SC with Mr R Reitano of counsel WorkCover New South Wales LEGAL REPRESENTATIVES: DEFENDANT Mr R Burbidge QC with Mr M Scott of counsel Sparke Helmore Lawyers JUDGMENT: - 1 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: STAFF J Tuesday 23 June 2009 Matter No IRC 2576 of 2006 INSPECTOR DENNIS HOWARD v CONNELL WAGNER PTY LTD Prosecution under s 8(1) of the Occupational Health and Safety Act 2000 Matter No IRC 2577 of 2006 INSPECTOR DENNIS HOWARD v CONNELL WAGNER PTY LTD Prosecution under s 8(2) of the Occupational Health and Safety Act 2000 Matter No IRC 2579 of 2006 INSPECTOR DENNIS HOWARD v CW-DC PTY LTD Prosecution under s 10(1) and in the alternative section 8(2) of the Occupational Health and Safety Act 2000 JUDGMENT [2009] NSWIRComm 94 1 In these proceedings, Connell Wagner Pty Ltd and CW-DC Pty Ltd ("the defendants") seek interlocutory orders in prosecutions under s 8(1), s 8(2) and s 10(1) of the Occupational Health & Safety Act 2000 ("the Act") brought by Inspector Dennis Howard as informant on behalf of the WorkCover Authority of New South Wales ("the prosecutor"). The defendants' notice of motion relevantly seeks orders that: 1. The prosecution of matters 2576, 2577 and 2579 of 2006 be permanently stayed. 2. In the alternative, a) The prosecution of those matters be stayed until such times as the Prosecutor provides the Defendants proper particulars of its charges against them; and b) The Defendants have access to the Court files relating to the matters 2576, 2577 and 2579 of 2006, Inspector Dennis Howard v Cross City Tunnel Pty Ltd ("CCT") and Baulderstone Hornibrook Bilfinger Berger Pty Ltd ("BHBB"), for the limited purpose of inspecting and copying the Court transcripts and any material filed or tendered in the course of hearings on sentencing following pleas of guilt by CCT and BHBB. 3. The Prosecutor pay the Defendants costs of and incidental to this motion. The charges and particulars 2 Connell Wagner Pty Ltd was charged that: Between 28 June 2004 and the end of the day shift on 29 July 2004 in the "Bypass Main Vent Tunnel 1 East" of the Cross City Tunnel at Sydney, in the State of New South Wales, being an employer, failed to ensure the health, safety and welfare at work of all its employees, in particular, Shaun Anthony Ayshford, Peter Guy Hartcliff, Timothy James Rheinberger and Peter Scott Smith in that the defendant failed to ensure that systems of work and the work environment were safe and without risks to health contrary to section 8(1) of the Occupational Health and Safety Act 2000. 3 The further particulars of the charge are: 1. Between 28 June 2004 and the end of the day shift on 29 July 2004, the Cross City Tunnel Project's "Bypass Ventilation Tunnel – Mainline"' was driven east from about chainage 1100 to the site of the rockfall ("the section of MVT1 East"). 2. There was a risk of injury to persons present in the section of MVT1 East being struck from a tunnel roof failure or rockfall, or both. 3. The defendant's business or undertaking was that: a. The defendant was the ultimate holding company of CW-DC Pty Ltd (ACN 009 310 169) ("CW-DC"). b. Baulderstone Hornibrook Bilfinger Berger Cross City Tunnel Joint Venture ("BHBB") entered into a "Pre-Contract Agreement" with the defendant to provide consultancy services for the Design and Construct ("D&C") tender submitted by BHBB. c. On 26 February 2002 the defendant signed a "Labour Hire Agreement" with CW-DC in which CW warranted to provide all the staff or labour and support facilities reasonably required by CW-DC to perform the services requested by CW-DC's client for the duration of the project. d. On 16 September 2002 BHBB, the defendant and CW-DC entered into the "Connell Wagner Collateral Deed", which required the defendant to ensure that, at no additional cost to BHBB, the defendant was to provide CW-DC with sufficient resources by way of design management and professional staff, design and quality management systems, computer software, intellectual property and all other technical resources necessary for CW-DC to perform the Consultancy Agreement for the duration of the project works. e. The defendant required CW-DC to adopt its OHS system. f. The defendant provided employees to CW-DC responsible for two phases of work, namely, design work and construction stage services. g. The defendant's employees provided to CW-DC in the design phase completed "Cross City Tunnel Tunnel and Shaft Excavation and Primary Support Specification Driven Tunnels (DT) Design Lot G-645-DT" dated 1 October 2003. h. The defendant's employees provided to CW-DC reviewed the comments received by BHBB, the RTA and Hyder Consulting (Australia) Pty Limited, the Independent Verifier ("IV"), on the Concept Options, Concept Design, Preliminary Design and Detailed Design Reports for MVT1. i. The defendant's employees provided to CW-DC completed the "Cross City Tunnel Final Design Report (IFC) Driven Tunnels (DT) Design Lots T-060-DT, T-061-DT, T-062-DT, T-063-DT and T-070-DT Bypass Vent Tunnel – Mainline, Bypass Vent Station, Eastern Connection and Alignment" dated 18 November 2003. j. The defendant's employees provided to CW-DC in the design phase, effective from about December 2003, had (sic) a role focused on managing and co-coordinating a response to written communications between the contractor and designer through the Request for Information (also known as RFI) system. k. On 5 April 2004 CW-DC issued its "Cross City Tunnel Construction Stage Services Work Plan" ("the CSS Work Plan") as "Reference 584S/Revision 05". l. The defendant's employees provided to CW-DC were key staff in the "CW-DC CSS Core Team" including, as described in the CSS Work Plan, Construction Stage Services Manager Hansdrudolf Walter Bleuler, Senior Engineering Geologist Timothy James Rheinberger, Geologist Peter Guy Hartcliff and Geologist Shaun Anthony Ayshford. m. The defendant's employees provided to CW-DC could issue an "Observation" in a Site Visit Report, "Dispositions" in a Site Visit Report, "Records Issued to BHBB" in a Site Visit Report, an "Action Required" in an Inspection Action List, a Designer's Recommendation, an "Instruction for Rock Support" or correspondence to the correspondence project centre register. 4. Aspects of the defendant's unsafe systems of work and work environment were any of the following: a The defendant failed to ensure that there was installed in the section of MVT1 East, as a minimum, Support Type 2 from chainage 1100 metres in order to prevent or minimise the risk. b The defendant permitted its employees to work in the MVT1 East from chainage 1100 to the site of the rock fall in circumstances where the adequate roof support was not being installed as the excavation took place. c In respect of the section of MVT1 East from chainage 1100 to the site of the rockfall the defendant failed to ensure that the observations made of the geological conditions as found, together with the observations of the roof support system being employed as the excavation continued were passed on to either or both of (i) Hans Bleuler, (ii) a member or representative of the design team. d In respect of the section of MVT1 East from chainage 1100 to the site of the rockfall the defendant failed to record on the site visit reports and/or the working action list [that] the as installed roof support was inadequate in that it was Type 1 roof support and did not comply with the design intent as reflected in the Issued for Construction drawings and design lot. e The defendant failed to indicate to the constructors that the Type 1 roof support which had been installed from chainage 1100 in lieu of the Type 2 roof support as indicated on the Issue for Construction drawings was inadequate and posed a risk of roof collapse or rockfall. f The defendant failed to provide a specific and dedicated construction sequence in respect of MVT1 East indicating the maximum allowable excavation advance to the face ahead of the last installed roof support. g The defendant failed to recognize and/or to adequately react to the warning signals in the as found geological conditions, namely, occurrences of both spalling and overbreak in the roof between chainages 785 metres and 1170 metres, bedding plane defects in roof from chainage 1170 metres, bed displacements in side walls and haunches from chainage1170 metres to 1230 metres or irregular shale breccia intersected in the floor and walls of the tunnel as it approached the site of the rockfall, which reflected the likely presence of high horizontal stresses and instability in the tunnel roof. h The defendant failed to ensure that there was an adequate system of communication between itself on the one hand and BHBB or its constituents on the other hand of: (a) advice from itself as to whether the installation in the section of the MVT1 East of roof support below Type 2 Support was in accordance with design intent; (b) advice from itself as to whether the installation in the section of the MVT1 East of roof support below Type 2 Support posed a risk of roof support or rockfall. 4. The multiple and fatal injuries to Ronald Arthur Shores on 29 July 2004 at about chainage 1225 to 1230 in the section of the MVT1 East were a manifestation of the risk. Coroner C Milovanovich conducted an inquest into the death of Ronald Shores between 16 July 2007 and 22 August 2007. The Coroner delivered his report on 24 August 2007.The order for the commencement of the subject proceedings is sought pursuant to section 107(3) of the Occupational Health and Safety Act 2000. 4 The defendant, Connell Wagner Pty Ltd, is also charged pursuant to s 8(2) of the Act as follows: On 28 June 2004 and until the end of the day shift on 29 July 2004 in the "Bypass Main Vent Tunnel 1 East" of the Cross City Tunnel at Sydney, in the State of New South Wales, being an employer, failed to ensure that people (other than the defendant's employees) in particulat Gary Don Campbell, Ian Michael Coombs, Eamonn Anthony Devine, Abraham Kira Dinsdale, Adam Nathan Hargreaves, Peter David Hooker, Frank Anthony Horky, Manfred Karl Lechner, Nicolaos Liras, Trevor Bruce Love, Robert Allan McMeekin, Neville David Ngawati, Nigel Walter John Pohio, Kokiri Kihirini Ronaki, Robert Edward Mau Seymour, Ronald Arthur Shores, Barrie John Stewart, Jon Moetatua Tiwha, Landis Blain Ormond Winitana and John Phillip Wither were not exposed to risks to their health and safety arising from the defendant's undertaking while they were at the defendant's place of work, contrary to section 8(2) of the Occupational Health and Safety Act 2000. Similar particulars to those provided in respect of the s 8(1) charges are relied upon by the prosecutor. 5 CW-DC Pty Ltd is charged pursuant to s 10(1) as follows: Between 28 June 2004 and the end of the day shift on 29 July 2004 in the "Bypass Ventilation Tunnel – Mainline" of the Cross City Tunnel Project, at Sydney, in the State of New South Wales, from about chainage 1100 to the site of the rockfall controlled these premises not used only by employees of the defendant, not occupied only as a private dwelling, and controlled in the course of a business or undertaking, and used by people as a place of work, in particular, Shaun Anthony Ayshford, Gary Don Campbell, Ian Michael Coombs, Eamonn Anthony Devine, Abraham Kira Dinsdale, Adam Nathan Hargreaves, Peter Guy Hartcliff, Peter David Hooker, Frank Anthony Horky, Manfred Karl Lechner, Nicolaos Liras, Trevor Bruce Love, Robert Allan McMeekin, Neville David Ngawati, Nigel Walter John Pohio, Timothy James Rheinberger, Kokiri Kihirini Ronaki, Robert Edward Mau Seymour, Ronald Arthur Shores, Peter Scott Smith, Barrie John Stewart, Jon Moetatua Tiwha, Landis Blain Ormond Winitana and John Phillip Wither, failed to ensure that the premises were safe and without risks to health contrary to section 10(1) of the Occupational Health and Safety Act 2000. 6 The particulars of this charge are: 5. Between 28 June 2004 and the end of the day shift on 29 July 2004, the Cross City Tunnel Project's "Bypass Ventilation Tunnel – Mainline"' was driven east from about chainage 1100 to the site of the rockfall ("the section of MVT1 East"). 6. There was an actual risk of injury to persons present in the section of MVT1 East being struck from a tunnel roof failure or rockfall. 7. The defendant's business or undertaking was that: a. Connell Wagner Pty Ltd (ACN 005 139 873) ("CW") was the ultimate holding company of CW-DC. b. CW established CW-DC as a contracting entity for use on infrastructure, design and contract projects. c. On 26 February 2002 CW-DC signed a "Labour Hire Agreement" with CW in which CW warranted to provide all the staff or labour and support facilities reasonably required by CW-DC to perform the services requested by CW-DC's client for the duration of the project. d. Under the "Labour Hire Agreement", CW-DC was to satisfy itself as to the competence, skill or expertise of CW's staff before allocating work to CW's staff. e. Under the "Labour Hire Agreement", CW's staff were said to work under the direction of CW-DC. f. Baulderstone Hornibrook Bilfinger Berger Cross City Tunnel Joint Venture ("BHBB") on about 16 September 2002 entered into the "Consultancy Agreement" with CW-DC and it required CW-DC, for the Cross City Tunnel project, to provide design services, as well as construction stage services at a fee of $19.5 million (excl. GST). g. On 16 September 2002 BHBB, CW and CW-DC entered into the "Connell Wagner Collateral Deed", which required CW to ensure that, at no additional cost to BHBB, CW was to provide CW-DC with sufficient resources by way of design management and professional staff, design and quality management systems, computer software, intellectual property and all other technical resources necessary for CW-DC to perform the Consultancy Agreement for the duration of the project works. h. CW required CW-DC to adopt CW's OHS system. i. In or about early 2003 BHBB issued a variation to CW-DC to carry out the design and construction stage services for MVT1 at a fee of about $1.5million to $2.1 million. j. CW provided employees to CW-DC who were responsible for two phases of work, namely, design work and construction stage services. k. CW's employees provided to CW-DC in the design phase completed "Cross City Tunnel Tunnel and Shaft Excavation and Primary Support Specification Driven Tunnels (DT) Design Lot G-645-DT" dated 1 October 2003. l. BHBB received CW-DC's design lots for MVT1 and had opportunities to review and make comments to CW-DC before issued for construction drawings were released by the defendant. m. CW-DC reviewed the comments received by BHBB, the RTA and Hyder Consulting (Australia) Pty Limited, the Independent Verifier ("IV"), on the Concept Options, Concept Design, Preliminary Design and Detailed Design Reports for MVT1. n. On 7 November 2003 the IV verified CW-DC's final verification tunnel design for MVT1, as specified at Schedule 6 to Appendix 57 (Independent Verifier's Certificate – Design Verification) of the Scope of Works and Technical Criteria. o. CW's employees provided to CW-DC in the design phase completed the "Cross City Tunnel Final Design Report (IFC) Driven Tunnels (DT) Design Lots T-060-DT, T-061-DT, T-062-DT, T-063-DT and T-070-DT Bypass Vent Tunnel – Mainline, Bypass Vent Station, Eastern Connection and Alignment" ("the Final Design Report Mainline Bypass Vent Tunnel") dated 18 November 2003. p. CW's employees provided to CW-DC in the design phase, effective from about December 2003, had a role focused on managing and co-coordinating a response to written communications between the contractor and designer through the Request for Information (also known as RFI) system. q. On 5 April 2004 CW-DC issued its "Cross City Tunnel Construction Stage Services Work Plan" ("the CSS Work Plan") as "Reference 584S/Revision 05". r. CW provided employees to CW-DC as key staff in the "CW-DC CSS Core Team" as described in the CSS Work Plan and they included Construction Stage Services Manager Hansdrudolf Walter Bleuler, Senior Engineering Geologist or Senior Geologist Timothy James Rheinberger, Geologist Peter Guy Hartcliff and Geologist Shaun Anthony Ayshford. s. CW's employees provided to CW-DC could issue an "Observation" in a Site Visit Report, "Dispositions" in a Site Visit Report, "Records Issued to BHBB" in a Site Visit Report, an "Action Required" in an Inspection Action List, a Designer's Recommendation, an "Instruction for Rock Support" or correspondence to the correspondence project centre register. 8. In the course of the defendant's business or undertaking it had control of premises arising out of: a. The defendant, as the designer, provided the Final Design Report Mainline Bypass Vent Tunnel dated 18 November 2003 that included the Issued for Construction ("IFC") drawings for the section of MTV1 East that, in the absence of a design change certified or agreed to by the defendant and that the IV verified, required rock support to be installed according to its IFC drawings. b. The defendant had the responsibility for the provision of work known as construction stage services pursuant to clause 2.4.1 and 2.4.2 of the Consultancy Agreement by providing "2 no. site-based geologists on a full-time basis for an estimated duration of 18 months", "2 no. site-based engineers on a full-time basis for an estimated duration of 18 months" and "1 no. off-site Project Leader on a part-time basis (approximately 50% of duration) for an estimated duration of 24 months". c. The defendant due to unsafe conditions in the premises could withdraw the provision of services by its Geologists from the section of MTV1 East and in the charge period work would have ceased as follows: (i) tunnel advance arising out of the constructor then being unable to comply with the requirement in the RTA's Appendix 7 "Cross City Tunnel Driven Tunnels Shaft & Tunnel Excavation Specification" at clause 3.10(i) that there be continuous and expeditious mapping of the exposed rock surfaces by a Geological Engineer. (ii) the excavation sequence and installation of roof support, namely, rockbolts and shotcrete, arising out of the constructor then being unable to comply with the requirements in the RTA's "Cross City Tunnel Driven Tunnels Rock Support Specification" at clause 1.1 Scope (ii) that the Company shall determine the type of rock support arrangements to be used based on an assessment of the actual rock conditions encountered, at subclause 1.7.2 Support Selection in clause 1.7.1 Design Criteria that the support arrangement and excavation sequence shall depend on the correspondence between the observed geological conditions and the Geological Conditions indicated on the Design Drawings, and Appendix 7 "Cross City Tunnel Driven Tunnels Shaft & Tunnel Excavation Specification" at clause 3.10(iii) that there be geotechnical mapping of exposed rock faces prior to the application of shotcrete. d. The defendant due to unsafe conditions in the premises could withdraw provision of services by its engineers and/or Project Leader and the construction work would have ceased in the charge period arising out of the constructor then being unable to adequately take into account whether the design intent for the temporary and permanent works covered by the design lot for MTV1 East was achieved. e. The defendant represented that it would execute its construction stage services responsibilities by implementing the CCS Work Plan, which was not withdrawn or revised, and in particular it represented that the CW-DC CSS Manager's particular duties and responsibilities included "To confirm/modify the design such that it is adequate for the as found site conditions." f. The defendant represented that it would execute its construction stage services responsibilities by implementing the CCS Work Plan, which was not withdrawn or revised, and in particular it represented that the Senior Engineering Geologist's particular duties and responsibilities included "Review and assess ground support on a daily basis, confirming the support is in accordance with the design documentation." g. The defendant as a matter of practice or de facto entitlement, or both, gave to the constructor directions in Site Visit Reports and Inspection Action Lists as to what roof support was actually installed and what in the IFC drawings was the required designed roof support. h. The defendant as a matter of practice or de facto entitlement, or both, previously caused to be stopped unsafe tunnel work on the Cross City Tunnel Project, which was accepted by the constructor, and on an ongoing basis was able to do so. 9. The defendant did not ensure that the premises were safe and without the risk in respect of any of the following matters over which it had control: a. The defendant failed to ensure that there was installed in the section of MVT1 East, as a minimum, Support Type 2 from chainage 1100 metres in order to prevent or minimise the risk. b. The defendant permitted its employees to work in the MVT1 East from chainage 1100 to the site of the rock fall in circumstances where the adequate roof support was not being installed as the excavation took place. c. In respect of the section of MVT1 East from chainage 1100 to the site of the rockfall, the defendant failed to ensure that the observations made of the geological conditions as found, together with the observations of the roof support system being employed as the excavation continued were passed on to either or both of (i) Hans Bleuler (ii) a member or representative of the design team. d. In respect of the section of MVT1 East from chainage 1100 to the site of the rockfall, the defendant failed to record on the site visit reports and/or the working action list the as installed roof support was inadequate in that it was Type 1 roof support and did not comply with the design intent as reflected in the Issued for Construction drawings and design lot. e. The defendant failed to indicate to the constructors that the Type 1 roof support which had been installed from chainage 1100 in lieu of the Type 2 roof support as indicated on the Issue for Construction drawings was inadequate and posed a risk of roof collapse or rockfall. f. The defendant failed to provide a specific and dedicated construction sequence in respect of MVT1 East indicating the maximum allowable excavation advance to the face ahead of the last installed roof support. g. The defendant failed to recognize and/or to adequately react to the warning signals in the as found geological conditions, namely, occurrences of both spalling and overbreak in the roof between chainages 785 metres and 1170 metres, bedding plane defects in roof from chainage 1170 metres, bed displacements in side walls and haunches from chainage 1170 metres to 1230 metres or irregular shale breccia intersected in the floor and walls of the tunnel as it approached the site of the rockfall, which reflected the likely presence of high horizontal stresses and instability in the tunnel roof. h. The defendant failed to ensure that there was an adequate system of communication between itself on the one hand and BHBB or its constituents on the other hand of: (i) advice from itself as to whether the installation in the section of the MVT1 East of roof support below Type 2 Support was in accordance with design intent; (ii) advice from itself as to whether the installation in the section of the MVT1 East of roof support below Type 2 Support posed a risk of roof support or rockfall . 6. The multiple and fatal injuries to Ronald Arthur Shores on 29 July 2004 at about chainage 1225 to 1230 metres in the section of the MVT1 East were a manifestation of the risk. Coroner C Milovanovich conducted an inquest into the death of Ronald Shores between 16 July 2007 and 22 August 2007. The Coroner delivered his report on 24 August 2007.The order for the commencement of the subject proceedings is sought pursuant to section 107(3) of the Occupational Health and Safety Act 2000 . 7 In the alternative, CW-DC Pty Ltd is charged pursuant to s 8(2). The charge and the particulars are in similar terms to those relied upon in respect of the s 10(1) charge. The s 8(2) charge contends that CW-DC Pty Ltd was an employer. Orders sought in notice of motion 8 At the hearing of the notice of motion, the defendants did not press for O 1, seeking that consideration of this order be deferred until proper particulars have been provided. In respect of O 1(b) the defendants seek access to court files (incorrectly numbered in the notice of motion as 2576, 2577 and 2579) to matter Nos IRC 2572, 2573, 2574, 2578, 2775, 2776 and 2777 of 2006. The defendants in those matters are awaiting sentence before the Vice-President. It was for this reason that the prosecutor did not provide material (agreed facts, exhibits) to the defendants together with a view that it formed that it may have been disrespectful to the Court if such material was provided without reference to his Honour. Apparently a telephone enquiry seeking access to this material was made to the Vice-President's Chambers by the defendants' solicitor. After indicating that in these circumstances, I would be reluctant to make such an order until sentence had been pronounced. Mr R Burbidge QC, who appeared with Mr M Scott of counsel for the defendants, advised the Court that further enquiries would be made. 9 It follows that this judgment therefore deals with the defendants' order seeking proper particulars of the charges against them, together with contentions that the charges are "fatally flawed" because of latent ambiguity and duplicity. 10 After hearing argument from counsel on 2 June 2009, I issued the following direction: Having heard the submissions from counsel and considered the evidence, the appropriate course at this stage, in my view, is for me to defer judgment on this motion, to make some observations and to give a direction. In doing so I note that prosecutions have been brought against the defendant Connell Wagner Pty Limited under sections 8(1) and 8(2) of the Occupational Health & Safety Act 2000, and against the defendant CW-DC Pty Limited under section 10(1) and, in the alternative, section 8(2) of the Act. The prosecutions are said to relate to failures by the defendants to ensure that systems of work and the work environment of the bypass ventilation driven tunnel main line (known as MVT 1) were safe and that tunnelling was carried out without risk to the health and safety of employees working in the tunnel. It seems to me that the potential risk was the failure by the defendants to properly advise or communicate to the constructor of the likelihood of a fall of the roof in the MVT1 section between chainage 1100 and 1231. It is the prosecutor's case that this was because, what is known as, Support Type 2 and Support Limitation E were not being used between chainage 1100 and 1231 as required, so it is alleged, by the design intent or design documentation. It was the geological conditions that gave rise to the risk. The risk materialised between chainage 1100 and 1231 being at or about the chainage where the roof collapsed. The risk, as I have observed, was that there would be an overhead collapse of the roof. It seems, therefore, to me that anyone who was in the tunnel whilst excavation took place from 1100 chainage to 1231 chainage were exposed to the risk. The relevant particulars are, therefore, and what the prospector has to prove, is that employees and non-employees entered the tunnel and were exposed to the risk (a roof collapse) that existed between chainage 1100 and 1231. As Gleeson CJ so succinctly observed in Regina v Saunders (unreported) CCA NSW 23 February 1993): "All that is necessary is that the Crown clearly inform the respondent to the nature of the case made against him". To my mind it does not matter how long an employee or non-employee was in the tunnel. That goes to culpability. It does not seem to me that the prosecutor is required to particularise what time an employee or employees were there when they were there, how long they were there unless an employee denies that he was there. Strictly speaking, the prosecutor does not need to prove that there were any employees in the tunnel whilst it progressed from 1100 chainage to 1231 although of course there had to be. This is because the risk to safety is the fall of the roof. The issue of the employees in the tunnel, it would seem to me, goes to the question of aggravation. Looked at in this way, as I have observed, the risk materialised between 1100 chainage and 1231 chainage. Applying this analysis to the debate in respect of particulars, taking, for example, particular 2, it would seem to me that the prosecutor has properly answered the defendants' request. In my view, the prosecutor is not required in answering that particular to state where the employees were apart from being in the tunnel between chainage 1100 and 1231. Any employee who entered the tunnel between that chainage, on my analysis, would be placed at risk. Taking another example, in respect of particular 4C, there was a risk to the health and safety of employees because of the work system in operation between chainage 1100 and 1231 and not because of any particular attribute or attributes of any employees. Material in this respect is to be found at exhibit P6 volume 2 page 922 and following. I therefore, direct that the defendants, in light of the observations that I have made about the risk, when it materialised and that the risk remained even, for example, on a Sunday when there were no employees of the defendant in the tunnel, to reconsider their requests for further and better particulars and their responses provided by the prosecutor to the requests particularly in light of the extensive affidavit in support of the application for order and the additional material provided by the prosecutor. I propose to adjourn these proceedings for seven days to enable the exercise that I have directed be undertaken. I adjourn these proceedings for further consideration to 2pm on Wednesday, 10 June 2009. I reserve the question of costs. 11 When the motion again came before me on 12 June 2009, the defendants tendered a letter from their instructing solicitors to WorkCover dated 11 June 2009, which relevantly provided: We refer to the ruling of his Honour Justice Staff on Tuesday 2 June 2009, which directs the Defendants 'to reconsider their request for further and better particulars.....'. His Honour ruled (page 3) 'The Prosecutor is (not) required to particularise what time an employee or employees were there, when they were there, how long they were there, unless an employee denies that he was there'. So that we may determine which, if any, employees may fall within the ambit of his Honour's ruling, we would be grateful if you could please advise the names of the employees of either Defendant whom the Prosecutor alleges were in the tunnel in the charge period. We also seek identification of those persons, not employees of the Defendants, said to have been in the tunnel during the charge period. If the Prosecution intends to rely an Exhibit 9, tendered at the Hearing of the Notice of Motion, as identifying which employees were in the tunnel and exposed to the alleged risk and the dates upon which those employees were in the tunnel, would you please confirm. If the prosecution relies on the non-employees listed in the Amended Application far Order at IRC 2577 of 2006 as identifying all those non-employees referred to in the charge, please confirm that also. It is our view that the question of particulars and latent ambiguity are of such fundamental importance to the hearing process as to warrant an application to his Honour pursuant to s 196 of the NSW Occupational Health and Safety Act 2000 to refer the question arising to the Full Bench for determination. We would suggest the following questions: 1 Was I correct in ruling that in the factual circumstances presented it was open to prosecution to frame its charges as it has? 2 Was I correct in declining to order further particulars of those charges? As to the factual circumstances referred to in item (l) above, we attach a draft Statement of Non Contentious Facts for your consideration. Would you please consider whether you would wish to amend or add any additional matters should his Honour accede to our request. 12 WorkCover responded by letter dated 12 June 2009, which relevantly provided: Thank you for your letter of 11 June 2009. As to the matters it raises, we reply as follows: The names of the employees alleged to have been in the tunnel during the charge period are those listed in the application for the order, i.e. Peter Hartcfiff, Shaun Ayshford, and Tim Rheinberger. Those in addition who were at risk in the event that they went into the tunnel were Scott Smith and Hans Bleuler, and any other employee, the identity of whom is not known to the prosecutor who might have ventured into the tunnel in the course of his or her duty. The names of the employees of others are listed in the relevant application for order together with any other employee whose identity is not known to the prosecutor who might have entered the tunnel in the course of his or her duty, for example, people who installed the ventilation ducting (sometimes referred to as the "cans"). Exhibit 9 is no more than a schedule of information available from the sources referred to within it. It reflects the content of the defendants' own records. It is some evidence of the identity of employees of the defendants who entered the tunnel on the dates recorded. The prosecutor is unable to say which of the employees of the defendants went into the tunnel at any particular time on any given day. The prosecutor alleges that at least one geologist, Shaun Ayshford or Peter Hartcliff or any other person who performed daily mapping duty entered the tunnel at least once on any working day for the purpose of mapping. It is alleged that this activity occurred between shifts of the tunnelling crews in the mornings. Tim Rheinberger entered the tunnel for the purposes of attending site visits and to assist in the completion of site visit reports. The dates and times of such visits, to the extent that they are known to the prosecutor, appear on the site visit reports, which are your clients' documents, copies of which you have. It is likely that other employees of the defendants entered the tunnel at various times unknown to the prosecutor in connection with their duties however the prosecutor cannot identify these persons by name other then to say that it is likely that Hans Bleuler was one of them. You will understand from the way in which (sic) that the prosecutor approached this matter when it was argued before Justice Staff that your comments about the "question of particulars" and "latent ambiguity" are not accepted. The prosecutor will oppose any application to refer the questions set out in your letter to a Full Bench. The prosecutor does not accept that the "factual circumstances" are compendiously or appropriately recorded in the "Statement" which accompanied your letter. Nor does the prosecutor regard it as appropriate for the parties to divine the content of the "factual circumstances". If this matter were to find itself before a Full Bench or another court (and here the prosecutor does not accept that it should) the prosecutor's position would be that that the Bull Bench or other court ought to have before it all of the material that was before Staff J. Application for referral of question to Full Bench 13 Mr Burbidge pressed the defendants' application to refer questions (as set out in their letter of 11 June 2009) pursuant to s 196 of the Industrial Relations Act 1996 to the Full Bench for determination. Section 196 provides: 196 Appeals from and references by members of Commission in criminal proceedings (1) This section applies (and the other provisions of this Part do not apply) to appeals and references to the Full Bench of the Commission in Court Session in respect of criminal proceedings taken before a judicial member of the Commission. (2) The Criminal Appeal Act 1912 applies to any such appeal or reference in the same way as it applies to an appeal or reference to the Court of Criminal Appeal in respect of criminal proceedings taken before a Judge of the Supreme Court in its summary jurisdiction. (3) For the purposes of subsection (2), a reference (however expressed) in the Criminal Appeal Act 1912. (a) to the Court of Criminal Appeal—is taken to be a reference to a Full Bench of the Commission in Court Session, and (b) to the Supreme Court—is taken to be a reference to the Commission in Court Session, and (c) to rules—is taken to be a reference to rules of the Commission, and (d) to the Attorney General—is taken to include a reference to the Minister, and (e) to the Director of Public Prosecutions—is taken to include a reference to the prosecutor in the proceedings before the Commission in Court Session, and (f) to the registrar—is taken to be a reference to the Industrial Registrar. (4) Subsection (2) does not apply to any provision of the Criminal Appeal Act 1912 relating to costs. 14 The basis for this application is to be found in s 5AE of the Criminal Appeal Act 1912 which provides: 5AE Point of law stated during summary proceedings (1) At any time before the completion of proceedings before the Supreme Court in its summary jurisdiction, the Land and Environment Court in its summary jurisdiction or a Court of Coal Mines Regulation in its summary jurisdiction, the judge hearing the proceedings may, or if requested by the Crown must, submit any question of law arising at or in reference to the proceedings to the Court of Criminal Appeal for determination. (2) The Court of Criminal Appeal may make any such order or give any such direction to the court concerned as it thinks fit. 15 Mr Burbidge made the following submission in support of the application for referral of certain questions to the Full Bench: "The reason that we seek this is because the defendants claim that the charge as framed is bad and it would be unfortunate indeed if the matter were to go through and perhaps ultimately result in a conviction or indeed an acquittal, and then a challenge was made to the whole of the exercise being undertaken on the basis that the charge itself was fatally flawed at the outset, which is our contention. So your Honour, it seemed to us that there are two courses that are open to us. The first is to seek that as an interlocutory ruling by your Honour that the question of law having arisen that matter could be referred to the Full Bench for its determination and/or such guidance as it thinks appropriate to give. The alternative is to say to your Honour that we have done our best but it does not resolve our angst and in those circumstances we would simply, I suppose, invite your Honour to rule on the matter in a fashion that would allow us to consider our position so those are our two alternatives. It is our preference that when determining the matter finally, there are other matters contained within the application, all of which your Honour has not yet ruled on, we would submit that it is an appropriate case for questions that we have nominated or some variation on the theme to be referred to the Full Bench for its determination." 16 Mr J Agius SC, who appeared with Mr R Reitano of counsel for the prosecutor, opposed the application for referral. 17 I do not propose to exercise my discretion and refer the questions raised by the defendants to a Full Bench. These are criminal prosecutions and in my view there is nothing exceptional about the charges that would require questions to be referred to the Full Bench. Nor does it seem to me that there is anything exceptional about the direction that I made on 2 June 2009, or the ruling that will inevitably follow that direction to the extent that the defendants complain that the charges amount to a continuing offence of which they have not received proper particulars. I observe that this issue was the subject of consideration by Wright J President in Forster v Osprey Manufacturing Pty Ltd [2003] NSWIRComm 161. Request for further and better particulars 18 The prosecutor and the defendants were involved in an exchange of correspondence which is annexed to the affidavit of Carlie Anne Holt filed in support of the notice of motion. In light of the respondents' contentions that the prosecutor has failed to provide proper further and better particulars, it is necessary to examine the requests made and the responses received (despite their extensive nature), in order to address the question of the adequacy of the particulars supplied. 19 Although this is a criminal prosecution, it is not commenced by the issue of a court attendance notice, or the filing of an indictment. These prosecutions are commenced by an application for order with particulars, which in this case, was supported by a 59 page affidavit of the prosecutor with detailed references to the prosecutor's brief of evidence. As Glesson CJ (Mahoney JA and Abadee J agreeing), observed in R v Saunders (1990 - 1993) 9 Petty Sessions Review 4537 at 4539 (unreported CCA NSW 23 February 1993): "What I cannot understand is why the Crown Prosecutor thought that the request for particulars confronted the Crown with any difficulty. So far as I can see, the only difficulty might have been in responding to each question seriatim and in precise accordance with the terms of the question. It is, however, not necessary for particulars to be supplied in that form. All that is necessary is that the Crown clearly inform the respondent of the nature of the case made against him. It could do so in the present case by replying collectively to the question asked in the following terms: 'Relying upon the admissions allegedly made by the respondent, the terms of which are known to the respondent and his legal advisers, the Crown case is that between the dates specified in the indictment the respondent carried on, at the place referred to in the indictment, an ongoing business activity of supplying amphetamines to persons who requested such supply. The Crown is unable to specify details of each individual incident of actual supply. The Crown relies upon a single criminal enterprise, the overall nature of which involved the supplying of amphetamines:' ..." 20 Ms Holt was required for cross-examination, during which she acknowledged that the prosecutor had provided transcripts of all of the evidence that the tunnelling crew gave during the course of the coronial inquest, including during the day of the rock fall. Ms Holt agreed that she has not asked the prosecution for the addresses of the tunnelling crew so that she may contact them. Ms Holt also agreed that she had been provided with copies of expert reports and the evidence given by the experts, Mr Kotze, Dr Pells and Professor Hepplewhite during the coronial inquest. She said that the defendants have retained their own experts. 21 Ms Holt's evidence was that she appreciated that the allegation against the defendants was that there was a continuing risk from chainage 1100 up and until and inclusive of the rock collapse. Ms Holt also accepted that she knew what the prosecutor alleges will be the evidence against the defendants, to the extent that it is contained in the reports of Mr Kotze and Dr Pells. The following question and answer is also illuminating in respect of the position adopted by the defendants. Q. Can't you get an expert to provide you with an opinion of the risk to occupational health and safety over the whole of that period? A. A preliminary opinion, yes. Q. What more do you expect you might be told to assist you to get the opinion you need? A. I guess it's more for us to be able to evaluate that opinion. 22 The solicitors for the defendants sought the following further and better particulars to the amended application for order by letter dated 6 August 2008: We would be grateful if you could please provide further and better particulars in relation to the proposed amended charges in accordance with the following: 1 Inspector Dennis Howard v Connell Wagner Pty Ltd - Proposed amended charge pursuant to section 8(1) of the Occupational Health and Safety Act 2000 1.1 At particular l, this particular presently seeks to define an area by reference to a lineal position and a sub-area of the area in question. Please confirm: (a) The section of MVT1 East, as used throughout this charge refers to the area of the by pass ventilation tunnel -- mainline lying between chainage 1100 and chainage 1231. (b) Reference the site of the rockfall refers to the area between chainage 3225 and chainage 1231, in approximate terms. 1.2 At particular 2, when was there a risk of injury to persons present? Who were the persons said to have been present and subject to risk? Where was each such person at the time when the risk of injury occurred? 1.3 At particular 3(f), please identify the employees of the defendant referred to, indicating in respect of each employee when it said that the responsibility identified was present. 1.4 In respect of particular 3(f), during what period do you say the 'design work' phase occurred? 1.5 At particular 4(a), the unstated assumption in the sub-particular is that there was an obligation on the defendant to ensure that another party installed support type 2 from chainage 1100 metres. Please advise from what is the obligation said to arise? Please confirm that the other party in question was BHBB. To what chainage after 1100 meters is it said that the failure extended? 1.6 At particular 4(b), there is an assumption herein that the roof support was not adequate. Upon what facts is it said that the roof support was not adequate, and if not the whole section (see request paragraph I) over what chainage? 1.7 At particular 4(b), who were the employees you say the defendant permitted to work in the MVT1 east from chainage 1225.7 to the site of the rock fall? Please identify the date or dates relevant to each and the location at which they are each said to have been permitted to work. 1.8 At particular 4(c), the unstated assumption herein is that the defendant had an obligation to ensure that observations of geological conditions and observations of the roof support system being employed were to be passed on to either or both of Mr Bleuler or a member of the design team. Please identify from where that obligation is said to arise. By whom and when is it said that the defendant failed to meet this obligation, in respect of each occasion relied upon? 1.9 At particular 4(d), the unstated assumptions herein are that there was an obligation on the defendant to record the matters described, and that the as installed roof support was inadequate. Please identify the source of the obligation upon the defendant, stating when and by whom on the part of the defendant the failures occurred. In respect of the inadequacy asserted, please indicate each occasion in which the roof support is said to have been inadequate. Please confirm that the inadequacy relied upon is that described in this sub-particular. 1.10 At particular 4(d), do you allege that the defendant failed to record that the roof support was inadequate as part of the 'on the site visit reports' or the 'working action list' or both? 1.11 At particular 4(e), the unstated assumption in this sub-particular is that the defendant had an obligation to indicate to the constructors that certain type one roof support was inadequate, that the roof support was in truth inadequate and posed a risk of roof collapse or rockfall. Please advise the source of the obligation on the defendant to indicate these matters to the constructors. In respect of the inadequacy please state when and where each inadequacy relied upon occurred. Please state the persons said to have been at risk of roof collapse or rockfall, when that risk existed, and where in respect of each occasion the risk arose. 1.12 At particular 4(e), how do you say the defendant had an obligation or responsibility or ability to indicate to the constructors that the type 1 roof support which had been installed from chainage 1100 in lieu of the type 2 roof support as indicated on the IFC drawings was inadequate and posed a risk of roof collapse or rockfall? 1.13 At particular 4(f), the unstated assumptions in this sub-particular is that the defendant had an obligation to provide a specific and dedicated construction sequence indicating maximum allowable excavation advances. Please identify the source of the unstated obligation indicating when that obligation arose. 1.14 At particular 4(g), the unstated assumption in this particular is that the defendant had an obligation to recognise and/or to react to warning signals. Please identify the source of this obligation, and when it arose. In what sense is it said that the defendant failed to recognise the warning signals asserted? In what manner and by whom within the defendant, is it said that there was a failure to adequately react to those warning signals? 1.15 At particular 4(g), please indicate, with reference to chainage, the points between which you allege: (a) each bedding plane defect in the roof existed; and (b) the irregular shale breccia existed? 1.16 At particular 4(h), the unstated assumption in this particular is that there was an obligation on the defendant to ensure the existence of an adequate system of communication in relation to the two nominated matters. What is the source of the alleged obligation, and when did it arise? Is it said that there was a system of communication which was not adequate? If yes, in what respects is it said that the system was not adequate? 1.17 At particular 4, do you allege that the multiple and fatal injuries were caused by the defendant's acts and omissions? What is the risk to which this sub-particular refers? Is it alleged that that risk existed on any date other than 29 July 2004? If yes, when did the risk exist, to whom, and where, on each occasion relied upon? 2 Inspector Dennis Howard v Connell Wagner Pty Ltd - Proposed amended charge pursuant to section 8(2) of the Occupational Health and Safety Act 2000 2.1 At particular 1, what are the risks to the health and safety of the employees nominated in this charge said to have arisen from the defendant's undertaking. 2.2 At particular 2, in what manner is it said that those risks arose in consequence of the defendant's undertaking. 2.3 At particular 3, please describe the defendant's undertaking. 2.4 At particular 4, please identify the facts and circumstances from which it will be said that the bypass main vent tunnel one east was relevantly the defendant's place of work. 5 As to the further particulars, we make the same request as is made above in respect of the identical further particulars set out in respect of the proposed charge under section 8(l). 3 Inspector Dennis Howard v CW-DC Pty Limited - Proposed amended charge pursuant to section 10(1) of the Occupational Health and Safety Act 2000 3.1 At particular 1, please confirm the area of the tunnel said to have been controlled by the defendant by reference to chainage references. In particular, is it said that the defendant controlled the tunnel between chainage 1225 and 1231? 3.2 At particular 2, please identify the facts and circumstances from which it will be alleged that the defendant company controlled the premises. 3.3 At particular 3, please identify the business or undertaking of the defendant to which this charge relates. 3.4 At particular 1, this particular presently seeks to define an area by reference to a lineal position and a sub-area of the area in question. Please confirm: (a) The section of MVT1 East, as used throughout this charge refers to the area of the by pass ventilation tunnel - mainline lying between chainage 1100 and chainage 1231. (b) Reference the site of the rockfall refers to the area between chainage 1225 and chainage 1231, in approximate terms. 3.5 At particular 2, what is the actual risk of injury said to have been present? Please identify each person said to have been at actual risk state when such person or persons was so exposed, and identify the precise section of the tunnel in which such persons were so exposed. 3.6 At particular 3(e), is this particular intended to assert that CW staff were required to work under the direction of CW-DC? If yes, please identify the CW staff in question, and the source of the obligation to work under the direction of CW-DC. 3.7 In respect of particular 3(j}, during what period did the design phase of work occur? 3.8 At particular 3(p), what is the meaning of the phrase had a role focused on managing and co-ordinating a response etc? 3.9 Particular 4 asserts the defendant has control of premises. Is that control said to be total control or partial control, and if the latter, to what extent is it said to have had control. Are any facts and circumstances other than those set out in paragraphs 4(a) - 4(h) relied upon in support of the proposition that the defendant had control? 3.10 At particular 4(a), to whom is it said that the defendant provided the Final Design Report? 3.11 At particular 4(a), do you say that CW-DC were responsible for the design of MVT1 East? If, yes what is the basis of that assertion? 3.12 At particular 4(c), from what facts or circumstances is it said that the defendant could withdraw the provision of services by its geologists? What unsafe conditions in the premises could enliven that asserted entitlement? Please identify all facts and circumstances from which the conclusion that work would have ceased as follows arises.... Please identify each occasion, either by time or position that the defendant could have withdrawn the provision of services by its geologists, indicating in each case the facts or circumstances that would have enlivened the asserted entitlement. 3.13 At particular 4(d), please identify the entitlement by which the defendant could withdraw provision of services by its engineers. Please identify the project leader to whom reference is made. If it is alleged that unsafe conditions were actually present in the premises sufficient to entitle the defendant to withdraw provision of services, please identify each occasion in which those unsafe conditions are said to have existed, where they were located, and the precise facts and circumstances relied upon to support the concept that those conditions were unsafe. 3.14 At particular 4(d), what are the facts and circumstances to be relied upon to support the conclusion that the constructor would have ceased construction work? When and where is it said that that cessation would have occurred? 3.15 At particular 4(d), what do you mean by 'temporary and permanent works'? 3.16 At particular 4(e), by what means is it said the defendant represented that it would execute its construction stage services responsibility by implementing the CCS Workplan? Is any matter relied upon in this regard other than that contained in this sub-particular, and that contained in 4(f)? 3.17 At particulars 4(e) and 4(f), could you please define 'construction stage services responsibilities'? 3.18 At particular 4(f), we have assumed the quote is from the CSS Workplan. If not, can you please provide particulars in accordance with the above as to the nature of the response? 3.19 At particular 4(g), what is meant by de facto entitlement? 3.20 At particular 4(g), please explain what you rely upon to establish that this practice or de facto entitlement existed? If your answer includes previous site reports, actions lists or other documentation, please provide details of specific Site Visit Reports or Action Lists or other documentation on which you rely. 3.21 At particular 4(g), please indicate, with reference to chainage, the points between which you allege: (a) each bedding plane defect in the roof existed; and (b) the irregular shale breccia existed? 3.22 At particular 4(h), please identify the precise facts and circumstances said to evidence the proposition the defendant ...caused to be stopped unsafe tunnel work .? Please identify that which it is said was accepted by the constructor . Please identify all facts and circumstances said to evidence acceptance by the constructor. What are the facts and circumstances from which the conclusion on an ongoing basis was able to do so ? is to be drawn? Please confirm that this phrase is intended to mean that the defendant might have caused to be stopped other unsafe tunnel work. 3.23 At particular 5(a), please identify the facts and circumstances relied upon to establish the defendant's capacity to ensure that there was installed ...support type 2. 3.24 At particular 5(b), who are the employees of the defendant said to have been permitted to work in the tunnel? In what manner is it said that the roof support being installed was not adequate roof support? Please identify when it is said that each such identified employee was working under inadequate roof support. Identify by time and location each instance relied upon. 3.25 At particular 5(c), please identify the source of the obligation the defendant is said to have failed to ensure. Please identify by reference to dates or chainages the failure to convey observations, identifying each instance relied upon by reference to time and location. Please identify each occasion that is relied upon, making reference to dates and chainages. Is the complaint in this sub-particular of inadequacy of as installed roof support or failure to comply with design, or both? Is the phrase...the working action list the as installed roof support... intended to read the working action list that the as installed roof support? 3.26 At particular 5(c)(ii), who do you say formed the design team? 3.27 At particular 5(d), do you allege that the defendant failed to record that the roof support was inadequate as part of the 'on the site visit reports' or the 'working action list' or both? 3.28 At particular 5(d), is 'working action list' the same as 'inspection action list', referred to in particular 4(g)? Is this the document which is exhibit 13 of the Coronial proceedings? 3.29 At particular 5(e), please identify the source of the obligation upon the defendant to indicate to the constructors that type 1 roof support had been installed in lieu of type 2 support. In respect of each failure to be relied upon, please indicate by reference to date and chainage the manner in which it is said the defendant failed to indicate to the constructors etc. In respect of each instance relied upon, is it said that the failure in question was to advise that the support was inadequate, or that it posed a risk of roof collapse or rock fall, or both. 3.30 At particular 5(f), please identify the source of the obligation implicit in this allegation. Is it said that there was a specific and dedicated construction sequence that lacked indication as to maximum allowable excavation advance, or that there was no specific and dedicated construction sequence, or both? If it is conceded that a construction sequence relevant to the MVTl East existed, please identify the source of an obligation to provide a specific and dedicated construction sequence. 3.31 At particular 5(g), is it said that the defendant failed to recognise etc or to adequately react to warning signals, or both? If it said that the defendant failed to recognise?, please identify all facts and circumstances relied upon in support of that conclusion. If it is said that the defendant failed to adequately react, please identify that which it is said that the defendant did and the respects in which its actions are said to be inadequate. 3.32 At particular 5(g), please indicate, with reference to chainage, the points between which you allege the irregular shale breccia existed? 3.33 At particular 5(h), please identify the source of the implicit obligation on the defendant to ensure that there was an adequate system of communication. Please identify by reference to dates and chainages each occasion on which it is said that that failure occurred. Is it said that there was no system of communication, that the system in place was inadequate or both. If it is said that the system was inadequate, please identify the deficiencies said to have been present in respect of each occasion relied upon. 3.34 At particular 6, what is the risk to which this sub-particular refers? Is it said that that risk existed other between chainages 1225 and 1231 ? If yes, please identify the precise location at which the risk was said to exist elsewhere. 3.35 At particular 6, do you allege that the multiple and fatal injuries were caused by the defendant's acts or omissions? 4 s 8(2) - CW-DC 4.1 At particular 4, what do you mean by a dual or joint employer? 4.2 At particular 4, how do you say an 'employment relationship' rose between the defendant and employees of CW? 23 The prosecutor's response was in the following terms: We refer to your correspondence dated 6 August 2008. Without prejudice to matters set out in our correspondence dated 23 April 2008 we have again answered your request using the same numbered paragraphs used in your letter simply to avoid any further delay and unnecessary cost in having this matter brought to trial. Inspector Dennls Howard v Connell Wagner Pty Ltd - proposed amended charge pursuant to section 8(1) of the Occupational Health & Safety Act 2000 1.1 (a) yes as referred to in paragraph 23 of affidavit in support. (b) yes as referred to in paragraph 52 of affidavit in support and it is accepted that the approximate chainage may be 1225 to 1231. 1.2 This is a matter of evidence as to when the defendants' employees were working within the section of MTV1 East. Persons were at risk whenever they were present in the tunnel within the charge period and between chainage 1100 to 1131. 1.3 See particular 3(c) the responsibility identifies the design work from the commencement of the contract with BHBB and continued up to and beyond the completion of the tunnel. 1.4 This is a matter for evidence, please refer for example to paragraph 21 and 22 of the affidavit in support. It is anticipated that the evidence will establish that the design work was continuing during the charge period 1.5 The obligation arises under the general duty under section 8(1) Occupational Health & Safety Act 2000. The physical installation of the support should have been undertaken by the contractor or a person acting on its behalf. As to the chainage, from 1140 up to and including the site of the rock fall. 1.6 This is a matter for evidence, see for example, the summary of Mr Greg Kotze's report at paragraph 63 and 67 of the affidavit in support. The prosecutor relies upon the admissions allegedly made by the defendant, the terms of which are known to the defendant and it legal advisors see for example paragraphs 64-66 of the affidavit in support. See Regina v Michael Saunders. 1.7 This is a matter of evidence as to when the defendant's employees were working within the section of MTV1 East. The employees of the defendant were present at various times for example, carrying out mapping during the charge period. Those times are known to the defendant and not to the prosecutor. 1.8 The obligation arises under the general duty under section 8(1) Occupational Health & Safety Act 2000. It is not for the prosecution to nominate which of the defendants personnel ought to have fulfilled its obligation on behalf of the defendant. In any event, the other matters raised in your question might be raised for consideration by the defendant under s28 of the Act. It is not for the Court (or here the prosecutor) to specify how the defendant's statutory duty could be fulfilled. See WorkCover Authority of NSW (lnspector Penfold) v Fernz Construction Materials Ltd (1999) 91 1R 119 at 131 -132, Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 1R 432 at 451, WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd (No 1) (1999) 101 IR 239 at 257 and Genner Constructions Pty Limited v WorkCover Authority of New South Wales (Inspector Guillarte) (2001) 110 IR 57 at 72 [61]. The relevant period is the period of the charge. 1.9 The obligation arises under the general duty under section 8(1) Occupational Health & Safety Act 2000. Particular 4(d) speaks for itself, 1.10 Yes as reflected by the use of the words "and/or" in particular 4(d) 1.11 The obligation arises under the general duty under section 8(1) Occupational Health & Safety Act 2000 which arose throughout the charge period. As to person said to be at risk of roof collapse or rock fall, any employee working in that area during the charge period. 1.12 This is not a proper request for particulars, this is a matter of evidence. Contractors should not defer from the issued for construction drawings without express consent by the design team. This is reflected in the contractual documents and specifications. Deviation from the construction drawings by the designers creates a risk to health and safety of itself. The defendant's own paper system provided the ability to indicate to the Constructor. 1.13 The source is the obligation which arises under the general duty under section 8(1) Occupational Health & Safety Act 2000. It was also a consequence of the defendants undertaking design duties in the relevant section of the tunnel. See for example paragraphs 33 and 35,119-121 of the affidavit in support and the CW-DC CCT Tunnel and Shaft Excavation and Primary Support Specification Clause 2.1. 1.14 The obligation arises under a general duty of section 8(1) Occupational Health & Safety Act 2000. Also arose as a matter of contractual obligation. It is alleged the defendant failed to recognise the warning signs. It failed to appreciate their significance in terms of the stability and integrity of the rock surfaces and failed to report upon the consequences. It failed to bring those observations to the attention of the design team and to compared against the design assumptions. Further it failed to consider whether those observations required re-assessment of roof support as applied. The failure was the failure of the defendant. It is not for the prosecutor to identify particular individuals who were responsible for the failure to recognise the warning signals. As to the balance of the request, the particulars speak for itself. 1.15 This is described in detail in the report of Mr Greg Kotze and in evidence before the Coroner, the transcript of which you have. 1.16 The obligation arises under a general duty of section 8(1) Occupational Health & Safety Act 2000 and arose as a consequence of the obligations of the defendant. The system of communication was inadequate, in that it did not ensure communication of the matters referred to in particular 4(h) of the application for order. 1.17 Yes, it is alleged fatal and multiple injuries were caused by the defendant's acts and omissions. The risk was risk of tunnel roof failure and rock fall or bath. The risk existed throughout the charge period and after chainage 1100. The risk extended to all persons during that period after chainage 1100 on each occasion, the precise particulars of which are unknown to the prosecutor. Inspector Dennis Howard v Connell Wagner Pty Ltd - proposed amended charge pursuant to section 8(2) of the Occupational Health & Safety Act 2000. 2.1 The risk of injury of tunnel roof failure or rock fall or both. The risk is particularised in particular 2 of application for order. 2.2 The risk arose because of the defendants unsafe system of work and work environment as particularised in particular 4 of application for order. 2.3 The defendant's undertaking is particularised in particular 3 of application for order. 2.4 We refer you to particular 3 of the application for order 2.5 We repeat the replies provided for the request to particulars to the proposed charge in section 8(1). Inspector Dennis Howard v CW-DC Pty Ltd - proposed amended charge pursuant to section 10(l) of the Occupational Health & Safety Act 2000. 3.1 We do not understand your reference to particular 1 in relation to your question, however in response to the question posed. Yes. 3.2 We do not understand your reference to particular 2 in relation to your question, however in response to the question posed please see particular 4 of the particulars of application for order. 3.3 Refer to particular 3(a)-(m) of application for order. This particular speaks for itself. 3.4 We do not understand your reference to particular 1 in relation to your question, however in response to the questions posed (a) yes as referred to in paragraph 23 of affidavit in support; (b) yes as referred to in paragraph 52 of affidavit in support and it is accepted that the approximate chainage may be 1225 to 1231. 3.5 This is a matter of evidence as to when the defendants' employees were working within the section of MN1 East. Persons were at risk whenever they were present in the tunnel within the charge period and between chainage 100 to 1131. For example as referred to in paragraph 69 of the affidavit in support. 3.6 We refer you to the Labour Hire agreement. The document speaks for itself. 3.7 This is a matter for evidence please refer, for example, to paragraph 21 and 22 of the affidavit in support. It is anticipated that the evidence will establish that the design work was continuing during the charge period. 3.8 Particular 3(p) speaks for itself. 3.9 The extent of defendant control is that particularised in paragraphs 4 and 5 of the application for order. 3.10 Document speaks for itself in that it provides details of all persons to whom it was provided. 3.11 Yes. The basis of that assertion is a matter for evidence, but see particular 3(a) to 3(s). 3.12 The obligation arises under the general duty under the Occupational Health & Safety Act 2000. See particulars 4(c)(i) & (ii) through to (h). At all times after chainage 1100 the risk to health and safety is as particularised in charge. Pursuant to Occupational Health & Safety Act 2000 the defendant ought to have prevented any of its employees or contractors from entering the tunnel whilst there was present, a risk to health and safety, including the risk from tunnel roof failure or rock fall. There was an implicit agreement between the designer and constructors not to expose persons to risk to health and safety. At any time after chainage 1100 the risk to health and safety is as particularised in the charge and at any time after chainage 1100 the defendant could have withdrawn, if agreed, the provision for services of its geologists. Circumstances include a risk of tunnel roof failure or rock fall or both As to the balance of the request see particulars 4 (a) to 4 (h) of the application far order. 3.13 Engineers/ Project leader are those nominated and described in your construction Stage Services, for example Tim Rheinberger, Dave Carson and Hans Bleuler. The defendants' obligations pursuant to Occupational Health & Safety Act 2000 ought to have prevented it allowing from any of its employees or contractors to enter the tunnel whilst there was present, a risk to health and safety, including the risk from tunnel roof failure or rock fall. There was an implicit agreement between the designer and constructors not to expose persons to risk to health and safety. At any time after chainage 1100 the risk to health and safety is as particularised in charge and at any time after chainage 1100 the defendant could have withdrawn the services if agreed, of the engineers or project leader. 3.14 Particular 4(d) speak for itself. 3.15 As described by the design lots prepared by your client. We refer to you Design Lot D-T0052, for example see paragraphs 46 to 48 of the affidavit in support. 3.16 We refer you to the Construction Stage Services work plan and particulars 4(e) to (h). 3.17 The responsibilities are those as described in the Construction Stage Services work plan. 3.18 Yes. The quote contained within this particular is a quotation from your Construction Stage Services work plan, at paragraph 3.3. 3.19 An inferred obligation arising out of the contractual relationship and the relationship in practice between defendant and constructors. 3.20 Particular 4(g) speaks for itself. We refer you to the site visit reports and action lists, a copy of which you have. 3.21 We assume you are referring to particular 5(g) rather than 4(g). This is described in detail in the report of Mr Greg Katze and in evidence before the Coroner, the transcript of which you have. 3.22 We refer you to paragraph 80 and 82 of the affidavit in support. 3.23 It is not for the prosecutor to identify a system that ought to be in place. 3.24 See particular 3(c), the responsibility identifies the design work from the commencement of the contract with BHBB and continued up to and beyond the completion of the tunnel. This is a matter for evidence, see for example, the summary of Mr Greg Kotze's report at paragraph 63 and 67 of the affidavit in support. The prosecutor relies upon the admissions allegedly made by the defendant, the terms of which are known to the defendant and its legal advisors: see for example paragraphs 6466 of the affidavit in support. See Regina v Michael Saunders. 3.25 The obligation arises under the general duty under section 8(1) Occupational Health & Safety Act 2000. It is not for the prosecution to nominate which of the defendants personnel ought to have fulfilled its obligation on behalf of the defendant. In any event, the other matters raised in your question might be raised for consideration by the defendant under s 28 of the Occupational Health & Safety Act 2000. It is not for the Court (or here the prosecutor) to specify how the defendant's statutory duty could be fulfilled. See Work Cover Authority of NSW (lnspector Penfold) v Femz Construction Materials Ltd (1999) 91 IR 119 at 131 -132, Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority (NSW) (Inspector Ch'ng) (1999) 90 IR 432 at 451, WorkCover Authority of New South Wales (Inspector Glass) v Kellogg (Aust) Pty Ltd (No 1) (1999) 101 IR 239 at 257 and Genner Constructions Pty Limited v WorkCover Authority of New South Wales (lnspector Guillarte) (2001) 110 IR 57 at 72 [61]. The relevant period is the period of the charge. 3.26 The persons who formed part of the design team are well known to the defendant, for example those persons nominated in the Construction Stage Services work plan. 3.27 Yes, particular 5(d) speaks for itself and as reflected by the use of the words "and/or" in particular 6(d). 3.28 Yes, working action list is the same as inspection action list. 3.29 The obligation arises under the general duty under section 8(1) Occupational Health & Safety Act 2000. Particular 5(e) speaks for itself. 3.30 The source is the obligation which arises under the general duty under section 10(1) Occupational Health & Safety Act 2000. It was also a consequence of the defendants' undertaking design duties in the relevant section of the tunnel. See for example paragraphs 33 and 35 of the affidavit in support. 3.31 Particular 5(g) speaks for itself and as reflected by the use of the words and/or" in particular 5(g). 3.32 This is described in detail in the report of Mr Greg Kotze and in evidence before the Coroner, the transcript of which you have. 3:33 The obligation arises under a general duty of section 10(1) Occupational Health & Safety Act 2000 and arose as a consequence of the obligations of the defendant. The system of communication was inadequate in that it did not ensure communication of the matters referred to in particular 4(h) of the application for order. 3.34 Yes, it is alleged fatal and multiple injuries caused by the defendant's acts and omissions. The risk was risk of tunnel roof failure and rock fall or both. The risk existed throughout the charge period and after chainage 1100. The risk extended to all persons during that period after chainage 1100 on each occasion, the precise particulars of which are unknown to the prosecutor. 3.35 We refer to our response at 3.34 Inspector Dennis Howard v CW-DC Pty Ltd - proposed amended charge pursuant to section 8(2) of the Occupational Health & Safety Act 2000 4.1 The words dual and joint employment speak for themselves. In particular, we allege for the purpose of the Occupational Health & Safety Act 2000 given the actual relationship between CW-DC Pty Ltd and Connell Wagner Pty Ltd, each could be described as an employer subject to the labour hire agreement and in particular 3(a)-(e) and the terms of the labour hire agreement itself. 4.2 We refer to our response at 4.1. 24 The defendants forwarded a further request for particulars on 18 September 2008 which was in the following terms: We refer to your letter of 13 August 2008 and to prior correspondence relating to particulars of the above charges. Whilst we appreciate your endeavour to avoid delay and cost, it is our view that the particulars provided do not put the Defendants in a position where they have been properly apprised of the case they are called upon to meet. To avoid the necessity of formal application to the Court, we should be pleased if you would address the following questions. The questions conform to the paragraph numbering utilised in previous correspondence. For ease of reference we have included all paragraphs including those paragraphs where your answers of 13 August 2008 provide the information requested. 1. Connell Wagner Pty Ltd - s.8 (1). 1.1(a) Particular 1. You have confirmed that the phase 'the section of the MVT1 East' - used throughout the charges identifies that area of the bypass ventilation tunnel between chainage1100 and chainage 1231. 1.1(b) You have confirmed that the phrase 'the site of the rock fall' refers to the area between chainage 1225 and chainage 1231, in approximate terms. 1.2 Particular 2. This particular includes the phrase 'a risk of injury to persons present'. We sought the identities of the persons referred to, and where each is said to have been at the time the risk of injury occurred. Given the daily change in the length of and conditions within the tunnel, we are entitled to have a response to those questions. Your response 'This is a matter of evidence' and 'persons were at risk whenever present in the tunnel' does not answer our questions. Accordingly, we now repeat those questions. 1.3 Particular 3(f). We sought identification of the Connell Wagner employees referred to in this particular, and sought to ascertain when it is said the responsibility identified in that sub-paragraph was present. Your response does not identify the relevant employees, nor when it is said that each was present. We repeat our questions. 1.4 Particular 3(f). In respect of the same particular, we enquired what period is envisaged by the phrase 'design work phase'. Your response refers us to the Affidavit in Support and the charge period, two different periods. We repeat our questions. 1.5 Particular 4(a). You have identified the source of the unstated assumption in this sub-particular to be section 8(1) of the Occupational Health & Safety Act (2000) (OHS Act), but have not stated the factual basis upon which it is said that the section is enlivened by Connell Wagner. We are entitled to be told this. Your response goes on to assert that 'the physical installation of the support should have been undertaken by the contractor...' Please confirm that the contractor referred to is BHBB and the phase 'should have been' refers to BHBB's contractual obligations. 1.6 Particular 4(b). We sought to determine the factual assertions upon which you rely in the assertion 'the roof support was not adequate', and to identify those areas of the tunnel where that situation is said to have existed. Your response 'This is a matter for evidence' is not sufficient to apprise the Defendant of the charge in this respect. Your reference to parts of Mr Kotze's report leads to identification of the area in consideration to be chainage 1170 to 1231, and the that the facts relied on are (i), that that chainage was supported by type 1 rock bolting and (ii) the collapse between 1225 and 1231. It is not for the Defendant to spell out for itself what the Prosecution intends; however, if these are the allegations, please confirm. If additional facts are to be relied upon in support of this particular, please advise us what they are. 1.7 Particular 4(b). We sought identification of the CW employees said to have been permitted to work in the area of 'the site of the rock fall'. All evidence of which we are aware negatives the presence of any CW employees at that site. Your response that "This is a matter of evidence", and referring our client to its own records is not an adequate response. We repeat the question. 1.8 Particular 4(c). We sought to ascertain the factual basis underlying the unstated assumption in this particular that CW had an obligation to ensure geological condition observations and observations of roof support system were passed on to other people. You have responded that the obligation in question arises under s.8(1j) of the OHS Act, but you have not identified the factual basis asserted that enlivens the operation of that section. Please do so. 1.9 Particular 4(d). We sought to ascertain the factual matters said to enliven an obligation on Connell Wagner Pty Ltd to record the matters described including that the as - installed roof support was inadequate. To this request you have responded that the source of the obligation is s.8(1) of the OHS Act. Please advise the facts said to enliven the operation of this section. 1.10 Particular 4(d). You have advised that you allege that the Defendant failed to record that roof support was inadequate both in the site visit reports and in the working action list. 1.11 Particular 4(e). You assert that an obligation was imposed on CW by s 8(1) of the OHS Act. Please state the facts said to enliven that subsection in relation to Connell Wagner Pty Ltd. You do not respond to our question as to the manner in which the roof support is said to have been inadequate, the particular locations and the relevant dates. Nor do you identify the persons in respect of whom it is said the risk existed, that time at which the risk is said to have existed and the relevant portion(s) of the tunnel. We repeat those questions. 1.12 Particular 4(e). We sought to establish the source of the obligation said to exist in respect of CW. Your response is far from clear. Please conirm that the word 'Contractors' and the word 'Constructor' each refers to BHBB. Should the phrase 'Contractors should not defer from...' read 'Contractors should not depart from' (or 'not deviate from')? Where is the 'express consent' provision to be found in the contractual documents and specifications? The assertion that 'every deviation from construction drawings by the designers' appears to foreshadow an assertion that the designs deviated from the construction drawings. If this is the intent, please identify the deviation this is said to have occurred. The same sentence asserts that every deviation from construction drawings of itself creates a risk to health and safety. In our view, a departure involving additional support contradicts that general assertion. The last sentence of this response appears incomplete. Is the 'deviation from the construction drawings' said to be a departure from the level or levels of support set out in the 'Anticipated Support Type' section of the construction drawings? 1.13 Particular 4(f). We sought identification of the source of obligation to provide a 'specific and dedicated construction sequence'. You identified s.8(l) of the OHS Act, and an unspecified contract. Please advise the facts said to enliven the operation of s.8(1) as they relate to Connell Wagner. Please identify the contract to which you refer and the relevant provision or provisions. 1.14 Particular 4(g). We sought to ascertain the factual basis of the unstated assumption that the Defendant had an obligation to recognise and/or to react to warning signals, and we sought to ascertain what is meant by 'The Defendant failed to recognise the warning signals'. You responded that the obligation arises under s.8(1 ) of the OHS Act. Please advise the basis on which it is said that the statutory obligation arose in respect of Connell Wagner. As to our request for elaboration of the assertion 'failed to recognise the warning signals' you respond 'The Defendant failed to recognise the warnings signs'. Please identify 'the warning signals/signs'. To our question of the significance said to exist, you respond 'it failed to appreciate their significance in terms of the stability and integrity of the rock surfaces and failed to report upon the consequences'. Please advise what is the 'significance'? How is it to be said that s 8 required the Defendant to report? Please identify the facts said to enliven the operation of the sub-section. Is the phrase in your response 'and to compared against the design assumptions' intended to be read as and 'to compare those observations against the design assumptions? When is it said the obligation arose? Your response 'The Defendant failed to recognise the warning sign' is a statement of opinion or conclusion. Please tell us the facts that you assert support that opinion or conclusion. Your assertion 'The Defendant failed to appreciate their significance' is in the same position, and additionally, raises the further question, what significance? Your response 'it failed to report upon the consequences' raises a number of questions; (i) Failed to report to whom? (ii) What was the source of its obligation to report? (iii) What are the 'consequences' referred to? The ensuing sentence 'It failed to bring those observations to attention of the design team and to compared against the design assumptions' raises the following questions: (i) What are the ' observations ? (ii) is it intended to assert that CW failed to compare 'those observations' against observations in the design assumptions? The next sentence 'It failed to consider whether those observations required re-assessment of roof support as applied' raises the following questions: (i) Is the phrase 'support as applied' intended to be read as ' roof support as installed '? (ii) is it asserted that 'those observations' actually required reassessment or merely that consideration needed to be given to that possibility? The balance of your answer does not respond to our question, which was 'in what manner ... is it said that there was a failure to adequately react to those warning signals'. Please respond to that question and the additional matters raised by your present answer. 1.15 Particular 4(g). We sought identification of the chainage points where bedding plane defects and irregular shale breccia in the roof are said to exist. Your response that it is in Mr Kotze's report and in a transcript of evidence is not a proper response to those questions, which we repeat. 1.16 Particular 4(h). We sought to identify the source of the obligation said to exist 'that there was an adequate system of communication between CW and BHBB', and in what respects it is to be said that any such system was not adequate. You responded that 'the obligation arises under a general duty under s 8(1)... and arose as a consequence of the obligation of the Defendant'. Your answer does not indicate the factual matters said to enliven such a duty on the part of Connell Wagner, by reason of s.8(1) of the OHS Act. Please provide those factual matters. As to the assertion 'and arose as a consequence of the obligations... ' your answer has become fully circular. If some additional source of obligation is relied upon, please tell us what it is. We take your response on the question of inadequacy to indicate that you rely on an asserted absence of advice from Connell Wagner to BHBB of the matters set out in (i) and (ii) of the first paragraph 4 of the Amended Application for Order. Please confirm this. 1.17 Particular 4 (the second Particular 4). Please identify the acts and omissions of Connell Wagner said to have caused the injuries to Mr. Shores. We assume there is no assertion of a tunnel roof failure between chainage 1100 and 1225; please advise if this is not correct. You assert that the risk of roof failure and/or rock fall 'extended to all persons' during the charge period and 'after chainage 1100'. Are we to read that as an assertion that all persons who entered the tunnel beyond chainage 1100 during the charge period were at risk? If yes, we repeat our request for identification of the persons said to have been at risk, the date they were at risk and the particular area of the tunnel they were at during the relevant time. As to your assertion `the precise particulars... are unknown to the Prosecutor' we invite you to consider the obligations of a Prosecutor in such circumstances. 2. Connell Wager Pty Ltd - s8(2). 2.1 Particular 1. The 'risk' you advise, is a risk of injury of tunnel roof failure or rack fall or both. We assume that the only tunnel roof failure of rock fall alleged to have occurred is that between I225-1231 on 29 July 2004. Please advise us if that is not correct. 2.2 You advise that the particularised risk is said to have arisen from the Defendant's unsafe system of work and its unsafe work environment, as particularised in particular 4 of the Application for Order. 2.3 You advise that the Defendant's 'undertaking' is as particularised in particular 3 of the Application for Order. 2.4 You advise that the facts and circumstances from which it will be said that MVT1 was 'the Defendant's place of work' are those set out in particular 3(a)-(m) of the Application for Order. 2.5 You advise that the responses to further requests for particulars are as provided in connection with the charge under s.8(1) of the OHS Act. 3. CW-DC Pty Ltd - s. 10 (1) 3.1 and 3.2 The charge. You have confirmed that the allegation includes that CW-DC controlled the tunnel, including between chainage 1225 and 1231. Please advise the facts from which it will be said that it must be concluded that CW-DC 'controlled the tunnel'? 3.3 You have advised that to establish `business or undertaking' you will rely upon the assertions contained in particulars 3(a)-(m) of the Application for Order. 3.4 You have advised that the term 'the section MVT1 East' identifies ch. 1100 -1231 and 'the site of the rock fall' refers to chainage 1225 -1231. 3.5 We sought identification of each person said to have been at 'actual risk' and the time and place of the alleged exposure. Your response that persons were at risk whenever they were present in the tunnel between chainage 100-1131 (scil. 1100-1131) is an insufficient response. We do not understand there to be any allegation of an actual rock fall other than between 1225 and 1231 on 29 July 2004. Given that the tunnel was lengthening each day, that conditions change daily and that no employee of either Defendant was present when the site of the rock fall was exposed, we will submit that we are entitled to be told the precise position within the tunnel that any person was exposed to risk, and the date on which that exposure is said to have occurred. We repeat the questions contained in this paragraph. 3.6 Particular 3(e). We sought confirmation that you assert that CW staff were required to work under the direction of CW-DC, and if yes, identification of the CW staff in question, and the source of the obligation. You respond by referring us to the Labour Hire Agreement. Whilst we are entitled to require you to identify the precise provision upon which you rely, we are content to re-visit the Labour Hire Agreement ourselves, drawing from your response that no other source of obligation is alleged. You do not however respond to our request for identification of the CW staff in question, and we repeat that question. 3.7 Particular 3(j). You advise that your allegation is that the design phase 'was continuing during the charge period', which we shall take to mean until 29 July 2004, unless advised to the contrary. 3.8 Particular 3(p). We sought elaboration of the phrase `had a role...'. We are entitled to know what that imprecise phrase is intended to convey, and accordingly repeat the question. 3.9 Particular 4. You have identified the factual basis for the assertion that 'The Defendant had control of premises, as those matters asserted in paragraphs 4 and 5 of the Application for Order. You have not responded to our question as to whether your allegation is that the control is total or partial, and if the latter, to what extent. Please provide an answer to that latter question. 3.10 Particular 4(a). You advise that the Defendant is said to have provided the final design report to those persons identified in that respect therein. 3.11 Particular 4(c). You advise that the conclusion that the Defendant could withdraw its geologists' services is to be drawn from the assertions in particular 3 (a)-(s) in the Amended Charge. You do not address the further questions as to what 'unsafe conditions' could enliven that asserted entitlement, nor have you responded to our request for identification of the facts and circumstances to be relied upon to support the conclusion 'work would have ceased'. We are having difficulty understanding particular 4(c); and reference back to that particular has not assisted our understanding. Your reference to an implicit agreement raises additional questions. From what facts or circumstances is an agreement between the designer and constructors to he implied? What are the terms of that implied agreement? The entitlement to withdraw the services of its geologists is said to depend upon agreement. Is that agreement between the designer and constructors? The sentence "circumstances include a risk of tunnel roof failure or rack fall or both" do not assist our understanding. If the allegation is that CW-DC is liable for the injuries occasioned to BHBB employees and the putting at risk of other BHBB employees whilst they were working between chainage 1225 and 1231, we are entitled to know the precise basis upon which it is said that that liability arises. Clearly you propose to assert that the named employees were at unspecified times and unspecified places at risk whilst within MVTI between chainage 1140 and 1225, in addition to chainage 1225 to 1231. The common factual ground that no employee of either Defendant saw the tunnel after the face progressed beyond chainage 1225, and the fact that there was no rock fall between 1100 and 1225 demonstrates our entitlement to seek precise particulars in respect of each of the two chainage intervals. Certainly that will be our submission should we need to approach the Court. 3.13 Particular 4(d). This particular asserts an entitlement on the part of the Defendant to withdraw services 'due to unsafe conditions'. We enquired where that entitlement was said to be sourced. Your response that 'the particular speaks for itself 'provides no assistance. Please identify the facts and circumstances from which the implicit agreement between the designer and the constructors is to be drawn and identify its terms. From what facts or circumstances is it said that some agreement existed between the designer and constructors that the Defendant could withdraw the services of engineers or project leader if the constructor agreed? Is it said that the constructor did agree? If yes, by whom on behalf of which party, how and when? 3.14 Particular 4(d), We enquired what facts would be relied on to support the proposition that `the constructor would have ceased work' and we asked when and where that cessation would have taken place. Your response referred us back to particular 4(d), from which no assistance is to be derived on those questions. Please respond to those questions. 3.15 Particular 4(d). You advise that 'temporary and permanent work' are those so described in design lot D-T0052. 3.16,3.17 and 3.18 Particulars 5(e) and 4(f). You have advised that the representation referred to in each of these sub-paragraphs is drawn from the CSS Work Plan and the factual circumstances asserted in 4 (e) and 4(f), 'that construction stage services responsibilities' refers to those described in the CSS Work Plan, and you confirm the quote in particular 4(f) is from the CSS Work Plan. 3.19 Particular 4(g). You advise that ' de facto entitlement' means an obligation inferred from the contractual relationship and the relationship in practice between the Defendant and BHBB. 3.22 Particular 4(h). We enquired as to the facts and circumstances from which three propositions were said to be drawn. In response you referred us to paragraphs 80 and 82 of the Affidavit in Support, which paragraphs, even if admissible, would not enlighten the Defendant on the questions raised. We repeat those questions. 3.23 Particular 5(a). We enquired how the Defendant was in a position to require a third party to act in a particular way. Your response that `it is not for the Prosecutor to identify a system that ought to be in place' does not respond to the question, which we repeat. 3.24 Particular 5(b). This particular repeats the imprecise proposition that unidentified employees worked at unidentified times in unspecified areas of the tunnel, before going on to assert the general proposition that 'adequate roof support was not being installed'. Your response does not address any aspect of this matter and appears to address propositions not here raised. Please note that should you continue to decline to address this area of enquiry we propose to approach the Court. 3.25 Particular 5(c). We enquired as to the source of the obligation said to rest on the Defendant, identification of the failures said to have taken place, and an indication of the nature of the inadequacies said to exist. Your response provides no information on any of those matters beyond asserting that the obligation arises under s.8(1). Please advise the facts or circumstances that enliven the statutory obligation, and re-visit the other questions raised, which questions we repeat. 3.26 Particular 5(c)-(ii). You assert that certain matters were not passed on to 'the design team'. We asked for identification of those persons you assert to be within the design team. Your response that this is known to the Defendant is not to the point. Please identify those whom you contend constituted the design team. If you wish to nominate those named in the CSS Work Plan, as you suggest, please say so. 3.27 Particular 5(d). You confirm that this particular covers two separate possibilities, or both. 3.28 Particular 5(d). You confirm that 'working action list' is the same as 'Inspection action list'. 3.29 Particular 5(e). We requested identification of the source of the obligation to do that which you allege the Defendant failed to do, and sought detail of the failures pleaded. You purport to identify the source of the obligation as s.8(1) of the OHS Act. Please advise the facts or circumstances that enliven the operation of s.8(i) in the manner for which you contend. Please re-visit our further requests for particulars, to which you have made no response. 3.30 Particular 5(f). In respect of this particular, we sought identification of the source of the obligation to do that which it is said the Defendant failed to do. To that request you respond that the obligation arises under s.10(1) of the OHS Act. Please identify the facts and circumstances that enliven the statutory duty in respect of the Defendant on which you rely. Insofar as you rely also upon 'a consequence of the Defendants' undertaking design duties', please indicate in respect of each Defendant the facts and circumstances from which that consequence is said to flow. How is it said that CW-DC undertook design duties? Our further queries are directed to the question of whether you assert there to be a specific and dedicated construction sequence said to omit some matter, or whether you assert there to be no such construction sequence at all. You have not responded to those questions, which we repeat. 3.31 and 3.21 Particular 5(g). In 3.31 we sought clarification as to which of two alternatives, or whether both, was intended. Your response makes it clear that you wish to pursue both possibilities, relying on either one or both. You do not respond to our two further questions, one each of which is addressed to each alternative. Please respond to those questions. As to the enquiry in 3.21, we sought identification of the location of alleged bedding plane defects and irregular shale breccia. You responded by referring us to Mr. Kotze's report and the transcript of evidence before the Coroner. It is not for the Defendant to seek out what the Prosecutor has in mind; we would be grateful if you could provide a response to the question. Paragraph 3.32 repeats the question at 3.21 (b), and may be ignored. 3.33 Particular 5(h). We sought identification of the obligation to do that which the pleading asserts the defendant failed to do, and identification of the instances of alleged failure to be asserted. To that question you responded that the obligation arises under s.10(1). Please identify the facts and circumstances said to enliven that statutory duty on the part of the Defendant. You have advised that the failures alleged are those in 5 (h), 3.34 Particular 6. You have identified the risk referred to as risk of tunnel roof failure and rock fall throughout the tunnel between chainages 1100 and 1231. We have previously referred to the differing circumstances relevant to chainage 1225 to 1231 and chainage 1100 to 1225. On the assumption that it is common ground that no rock fall occurred between 1100 and 1125, and that no employee of the Defendants saw chainage 1225 to 1231 between the time it was opened up and the time it fell, we require to be told the precise details earlier sought in respect of 1100-1225, and the precise acts and omissions said to be relevant to the Defendant's liability in respect of 1225 to 1234, 1235. 4. CW-DC Pty Ltd s 8 (2) 4.1 and 4.2 Particular 4. We cannot follow your response, which appears to assert that CW-DC had employees; a proposition that you have been informed in writing by us is erroneous. Your response implies that other persons may be legally co-employed by the Defendant CW-DC. Please advise whether this is the intent of these particulars, and if yes, the persons said to be so employed, and the facts replied upon to demonstrate creation of the employment relationship suggested. Please be aware that it is our view that there is multiplicity present in the charges, and on receipt of your further response, we will re-visit that question. We await your response. 25 The prosecutor responded as follows: We refer to your correspondence dated 18 September 2008 Without prejudice to matters set out in our correspondence dated 13 August 2008 we have again answered your request using the same numbered paragraphs used in your letter simply to avoid any further delay and unnecessary cost in having this matter brought to trial. Inspector Dennis Howard v Connell Wagner Pty Ltd - proposed amended charge pursuant to section 8 (1) of the Occupational Health & Safety Act 2000 1.2 We reply upon our previous response. 1.3 The identification of the employees is known to both Connell Wagner Pty Ltd and CW-DC Pty Ltd. Those employees include those persons named in the charge. 1.4 The design period commenced approximately late 2002 and continued up to and until the end of the charge period. 1.5 We don't understand what you mean by "the factual basis upon which it is said that the section is enlivened." Connell Wagner Pty Ltd had a statutory obligation under section 8(1) of the Occupational Health & Safety Act 2000 to ensure safety of employees. One method to do this was to ensure that the tunnel was constructed in accordance with its own specifications. The entity responsible for construction was BHBB. We rely upon our previous response and confirm that the word "contractor" refers to BHBB. 1.6 We have adequately responded to this request for particulars. 1.7 We have adequately responded to this request for particulars. 1.8 We don't understand what you mean by this question. The defendant had an obligation as an employer pursuant to section 8(1) of the Occupational Health & Safety Act 2000 to ensure the health and safety of its employees. 1.9 We don't understand what you mean by this question. The defendant had an obligation as an employer pursuant to section 8(1) of the Occupational Health & Safety Act 2000 to ensure the health and safety of its employees 1.10 Yes however, your statement at 1.10 neglects to record the prosecutors allegations which is both cumulative and in the alternative. 1.11 We don't understand what you mean by this question. We refer to the recent Full Bench decision JT & LC Tippett Pty Limited and RD & LF Tippett Pty Limited v WorkCover Authority of New South Wales [2008] NSWIRComm 177 The time, date and place of the offence is set out in the charge. We otherwise rely on the answers already provided in response to this request. 1.12 Yes in this context "contractor" means "constructor", and "defer from" means "deviate from". We advise that there was a typographical error contained within the third sentence of our previous reply to 1.12. It should read "Deviation from the construction drawings by the constructors creates a risk to health and safety". 1.13 We repeat our previous answer to 1.13. We don't understand what you mean by this question. The provision of a specific and dedicated construction sequence is an incident of the provision of detailed design of the roof support for the tunnel. The failure to provide a specific and dedicated construction sequence meant that the construction sequence employed by the constructor might be inadequate. This created a risk to the health and safety. 1.14 We repeat the warning signals are set in 4 (g) of the Amended Application for Order. The significance in term of stability and integrity was a reference to the fact that the warning signs were indicia of a risk of rock fail and the need for the attention to be given to the 'as found' conditions and a reassessment to be make as to the adequacy of roof support as designed and installed. The defendant's failure to report created a risk to health and safety. Yes to compare those observations against the design assumptions. The obligation was a continuing obligation: i. Failed to report to design team and constructors; ii. Section 8(1) of the Occupational Health & Safety Act 2000 together with its contractual obligations; iii. Consequences are set out in particular 4(g) include a risk that roof support as designed or installed might be inadequate and presence of irregular shale breccia indicating the likely presence of high horizontal stress and instability in tunnel roof. Observations i. The observations are the warning signals referred to in particular 4(g). ii. It is asserted that Connell Wagner failed to compare the as found geological conditions with the design assumptions. Support as applied i. Yes ii. Those failures have been adequately particularised 1.15 We repeat our previous response at 1.15. 1.16 We repeat our previous response at 1.16. This is otherwise not a proper request to particulars. 1.17 Particular 4 (the second particular 4). Any or all of the acts or omissions alleged are identified in the Application for Order. Your assertion is incorrect. All persons present in the tunnel after chainage 1100 were at risk. Your client has been charged with a section 8(1) offence accordingly all persons in this context are limited to those employed by the defendant. We repeat our previous response -the precise particulars are unknown to the prosecutor but are known to the defendant. Inspector Dennis Howard v CW-DC Pty Ltd - proposed amended charge pursuant to section 10(1) of the Occupational Health & Safety Act 2000 3.1 We refer you to paragraph 33 of affidavit in support. 3.2 We refer you to paragraph 33 of affidavit in support. 3.5 We advise that there was a typographical error contained within the second sentence our previous reply to 3.5. It should read "Persons were at risk whenever they were present in the tunnel within the charge period and between chainage 1100 to 1231". In all other respects, we have adequately responded to your request for particulars. 3.6 The identity of staff is known to Connell Wagner and CW-DC given that that labour hire agreements were between Connell Wagner and CW-DC only. 3.7 We mean up to and including 29 July 2004. 3.8 We refer you to paragraph 33 of affidavit in support. This is otherwise an adequate response to your request for particulars. 3.9 We refer you again to paragraphs 4 and 5 of application far order and to paragraph 33 of affidavit in support. However, if by total control you mean exclusive control it is not the prosecutors allegation that the defendant had exclusive control. 3.11 There appears to be an error in your request. Your particulars articulated at 3.11 refer to Particular4(c). However your initial request and our answer related to your request titled 3.11 but which related to Particular 4(a). However, we have attempted to address the issues raised under the current 3.11 in relation to particular 4(c) which we believe arose from our response outlined at 3.12. We confirm our previous response to your request for particulars at 3.12 contained typographical error (41h line from the bottom). Please delete words "if agreed". In relation to the cessation of works, we refer you for example to evidence of a previous incident concerning similar subject matter paragraphs 80 to 82 of the affidavit in support. The facts and circumstances include the obligation of each company to comply with the Occupational Health & Safety Act 2000. This includes an obligation to ensure health and safety of each other, employees and/or contractors. You are not correct when you say the entitlement to withdraw geologists' service was dependant an "an agreement". That entitlement is an incident of defendant's obligations under the Occupational Health & Safety Act 2000. Particular 4(c) speaks for itself. This is otherwise an adequate response to your request for particulars. 3.13 Our previous response to your request for particulars at 3.13 contained typographical error (2nd line from the bottom). Please delete the words "if agreed". Otherwise we rely upon our previous response as a complete response to your request for particulars. 3.14 As a matter of common sense, the Constructor would not have continued to excavate the tunnel if the designer had informed them that inadequate roof support had been installed. We refer you to evidence of a previous incident concerning similar subject matter paragraphs 80 to 82 of affidavit in support. 3.22 The facts and circumstances are sufficiently set out in paragraphs 80 and 82 of the affidavit in support. 3.23 This particular speaks for itself. We refer to the recent Full Bench decision JT & LC Tippett Pty Limited and RD & LF Tippett Pty Limited v WorkCover Authority of New South Wales [2008] NSWIRComm 177. 3.24 We adhere to our previous response. It is alleged that the roof support was inadequate from chainage1100 up to and including the site of the rock fall. Any employee in the tunnel from chainage 1100 during the charge period was at risk. The employees working in the tunnel during the charge period are know to the defendant and not to the prosecutor. 3.25 Prosecutor's allegation is that from chainage 1100 up to and including the site of the rock fall that at no time was a member of the design team ever told of observations made of geological conditions as found and of the roof support systems being employed. The failure continued throughout the change period. It is not a matter of time or place. It is a matter that at no point after chainage 1100 was member of the design team informed of the inadequacy of roof support. At no time after chainage 1100 to the site of the rock fall did the defendant ensure that Hans Bleuler was aware of or knew that roof support as installed was inadequate. 3.26 We refer you to our previous response to this request. 3.29 At no time from chainage 1100 did the defendant ensure that the constructors knew that Type 1 roof support had been installed from chainage 1100 in lieu of the Type 2 roof support as indicated an the Issue for Construction drawings was inadequate and posed a risk of roof collapse or rock fall. The prosecutor alleges that the failure in question was either and or both. 3.30 There was no specific and dedicated construction sequence and a failure to provide a dedicated construction sequence amounted to a risk that the premises were unsafe and created a risk to health and safety. 3.31 The prosecutor's case is either and/or both. The defendant failed to make any of those observations and having failed to do so the defendant failed to make them known to the constructor or any member or representative of the design team. The location of the alleged defects and shale breccia is adequately and clearly set out in Kotze report and in the evidence before the Coroner. 3.33 The facts arise from the defendant's control over the premises which have already been particularised. 3.34 The risk, acts and omission relied upon by the prosecutor were the same from chainage 1100 to chainage 1225. Those risks manifested themselves in a rock fall at chainages 1225 to 1231. Inspector Dennis Howard v CW-DC Pty Ltd - proposed amended charge pursuant to section 8(2) of the Occupational Health & Safety Act 2000 4.1 The particular speaks for itself. We adhere to our previous response. For the purpose of the Occupational Health & Safety Act 2000 CW-DC was an employer of the persons who were subject to the labour hire agreement with Connell Wagner, 4.2 We refer to our response at 4.1. You have advised that there is multiplicity present in the charges. Please explain and identify the multiplicities to which you refer. Contentions for the defendants 26 The affidavit of Ms Holt sets out the contentions of the defendants in support of the order in respect of particulars. Ms Holt deposes under the heading "Prejudice to Defendants" as follows: 26 It seems probable that the proceedings will largely turn on evidence as to the cause of the rockfall between chainage 1225 and chainage 1231, the actions of CCT and BHBB employees following commencement of work on 29 July 2004. Control of the area within which those employees were working and the extent to which the Defendants could have influenced the actions of the employees of CCT and BHBB, in respect of making safe roofing known to be at risk of collapse will I expect be major issues for determination. No employee of the Defendants was present when the crew was attempting to secure the roof, and the Defendants' knowledge of the circumstances of the accident is almost entirely drawn from the evidence given by crew members at the Coronial Inquest, which evidence was in a number of respects inconsistent. It seems inevitable that the recollections of the crew will form an important part of the evidence. A number of the crew gave addresses in New Zealand at the Inquest. 27 It is now nearly five years since the events that gave rise to the proceedings. Until particulars are provided I am unable to assess the level of prejudice accruing to the Defendants by reason of the delay. I am instructed and verily believe that a number of the employees of the Second Defendant are no longer in the employ of the company. Some are thought to be overseas and some have moved interstate. It is my experience that recollection of detail becomes increasingly uncertain with the passage of time and I am concerned that when particulars are provided it will become apparent that the capacity of the Defendants to defend themselves, and in the case of the second Defendant, to establish any available defence will be significantly impaired. The First Defendant has and has never had any employees, but will need to rely upon the recollection of employees of the Second Defendant by whom it was undertaking its contractual obligations, and upon the employees of CCT and BHBB. I have no knowledge of the whereabouts of the employees of CCT and BHBB. Civil litigation between the Defendants and CCT and BHBB is on foot. 28 As I have been unable to obtain particulars of the charges I have been unable to properly advise the Defendants as to the issues that will arise for determination, and I am not able to advise them on their prospects of defending the charges. As I am unable to identify the issues I cannot determine what expert and other evidence is required nor what documentation and what records are relevant. Submissions of the parties 27 Mr Burbidge submitted that in respect to the first two charges against Connell Wagner, there existed, what he characterised as, "latent ambiguity". In respect to the charge against CW-DC, it is contended that the alternate charge results in the charge being duplicitous in the strict sense. Mr Burbidge sought to explain the latent ambiguity on the basis that the charges in respect of Connell Wagner named four persons who are employees of one or other of the defendants. Two of those named attended the site each morning to take photos and do the mapping. In respect of the other two, however, the defendants say they do not know where they were on a particular day. This, so it was submitted, gives rise to a series of separate charges all rolled up into one. The defendants therefore contend, the prosecutor cannot have a period, particularly a period when the tunnel is a different tunnel each day as giving rise to one charge. It is further contended that the defendants are entitled to be told when it was these employees were in the tunnel, who it is said was at risk, and when it is said such person was at risk within the timeframe. It was submitted that the prosecutor has advised that it will not give such particulars. 28 It followed, so it was submitted, the defendants are not in a position to know what is the actual offence which they are required to respond and of what are they to be convicted. Without any detail, it was submitted that the defendants were simply not in a position to have any understanding of any possible defences, as they are plainly separate offences rolled up into one and quite incapable of being dissected without the particularity that the defendants have sought. 29 Counsel relied upon Johnson v Miller (1937) 59 CLR 467; Brisbane South Regional Health Authority v Taylor (1996) 139 ALR 1; S v R (1989) 89 ALR 321; Walsh v Tattersall (1999) 139 ALR 27; Regina v Abdoula Khouzame; Regina v Samson Saliba (1999) 108 ACrimR 170; Hannes v Director of Public Prosecutions (Cth) (No 2) (2006) 205 FLR 217; WorkCover Authority of New South Wales (Inspector Dubois) v Concrete Constructions Group Limited (1999) 98 IR 362; Stanton v Abernathy and Another (1990) 19 NSWLR 656. 30 Mr Agius submitted that it is the prosecution's case that there was a continuing risk and that the risk was to the extent that is relevant known to the defendants, that their employees and its staff failed to adequately address the risk and failed to bring the nature of that risk to the attention of the constructor so that the constructor could do something about it. 31 Counsel contended that all of this has been particularised, including that the defendants had the power to tell the constructor that they withdraw their labour and their employees and that their daily mapping should cease unless the risk was addressed. It was contended that there is direct evidence of this from the principal on the site, a Mr Boila. Counsel submitted that the defendants have the expert evidence and material upon which the prosecutor proposes to rely, and the identity of those experts is known to the defendants. They also have their reports and their qualifications. 32 Mr Agius submitted that because the prosecutor contended that the risk of the rock fall applied throughout the tunnel between chainage 1100 and 1231, it was a continuing risk. It was for this reason that one charge was brought pursuant to s 8(1) and a further charge in respect of 8(2), rather than a charge for each separate day. In respect of the alternative charge, Mr Agius submitted this was brought because there is an issue of employment concerning CW-DC and whether or not it was an employer. One charge turns upon employment. The alternative does not. Such approach, counsel contended, had been approved by Schmidt J in WorkCover Authority (NSW) (Inspector Wolf) v Rockdale Beef Pty Ltd (2006) 155 IR 366 and also by the Full Bench in WorkCover Authority (NSW) (Inspector Singh) v ABB Australia Pty Ltd ) (2006) 151 IR 90. 33 The prosecution contends that there was one offence through the whole of the period because the failure by the defendant was the same. That failure is described variously in the particulars and the charges that have been laid. There is evidence from Mr Boila that he ought to have been told and he is a CW-DC person. He ought to have been told by the person(s) who were inspecting the tunnel each day, or by Mr Rheinberger, a person who reported to him that the constructors were not installing type 2 supports where the issue for construction drawings indicated that the anticipated support type 2, together limitation E was required. There is evidence that this was mandatory. Consideration 34 The guiding principle that may be extracted from authorities such as Johnson v Miller; R v Saunders, the various authorities considered by Walton J Vice-President in WorkCover Authority (NSW) v Fernz Construction Materials Ltd (1999) 91 IR 119 at 126 - 136 and more recently by the Court of Appeal in Allianz Australia Insurance Ltd v Newcastle Formwork Constructions Pty Ltd [2007] NSWCA 144 in respect of the appropriate contents for particulars in criminal proceedings would appear to be that a defendant must be made aware of the nature of the case it is called upon to meet. In Allianz Australia Insurance Ltd the Court of Appeal recognised that in some cases, the duty to provide particulars may be achieved by providing the evidence upon which it was proposed to rely: Their Honours stated at [18]: "[18] The purpose of particulars is to assist in defining the issues at the trial, whereby the opposite party knows the case it has to meet and will not be taken by surprise, so that the evidence to be led can be appropriately confined and costs can be limited by avoiding the expense of preparing to meet issues which will not arise. Giving particulars of the case to be made out has been distinguished from disclosing the evidence by which the case is to be proved, but the distinction is not a clear one and the touchstone must be what is reasonably necessary to achieve the purposes last-mentioned. Authority is hardly necessary, but there can conveniently be set out from the judgment of Hunt J in Sims v Wran (1984) 1 NSWLR 317 at 321-2 - 'The fundamental principle in relation to particulars in defamation, as in any other case, is that a party must be made aware of the nature of the case he is called upon to meet: Saunders v Jones (1877) LR 7 Ch D 435 at 451; R v Associated Northern Collieries (1910) 11 CLR 738 at 740; Dare v Pulham (1982) 148 CLR 658 at 664. The object of particulars is to save expense in preparing to meet a case which may never be put: McSpedden v Harnett (1942) 42 SR (NSW) 116 at 119; 59 WN 98; Turner v Dalgety & Co Ltd (1952) 69 WN (NSW) 228 at 229; and to make the party's case plain so that each side may know what are the issues of fact to be investigated at the hearing: Kelly v Kelly (1950) 50 SR (NSW) 261 at 265; 67 WN 193 at 196; Bailey v Federal Commissioner of Taxation (1977) 136 CLR 214 at 219. See, generally, Phillopini v Leithead [1959] SR (NSW) 352 at 358, 359; 76 WN 150 at 152; Commercial Bank of Australia Ltd v Thomson (1964) 81 WN (Pt 1) (N.S.W.) 553 at 557, 558; Ellis v Grant (1970) 91 WN (NSW) 920 at 924, 925. It is not a question of whether one party has adequate knowledge of the actual facts; it is a question of whether he has adequate knowledge of what the other party alleges are the facts, for that is the case which he must meet: Turner v Dalgety & Co Ltd (at 229); Phillopini v Leithead (at 359; 152); Emmerton v University of Sydney [1970] 2 NSWR 633 at 635; Bailey v Federal Commission of Taxation (at 219, 220, 221). There is often a fine line between giving particulars of the case which a party proposes to make and disclosing the evidence by which that case is to be proved. It all depends upon what is necessary to guard the other party against surprise. If the other party cannot otherwise be so guarded, it may sometimes be necessary for a party to disclose his evidence, or at least a broad outline of it. The starting point is what is necessary to guard the other party against surprise; the starting point is not what can be said without disclosing the evidence to be led' ." 35 In essence, the prosecution case as identified in the pleadings, is that the defendants failed to take heed of and failed to bring to the notice of the constructors the failure to install type 2 pattern bolting from chainage 1100 up to the point of rock fall (chainage 1231). This created a risk of rock fall or tunnel collapse. The prosecutor alleges that there were objective signs of high horizontal stress in the tunnel before the tunnel collapse after chainage 1100 prior to the rock fall which ought to have been observed and acted upon by the defendants and that there were other objective indicators of the risks of rock fall which are delineated in the experts' reports to be relied upon by the prosecutor. In addition, the prosecutor's case, as outlined in the pleadings, is that the defendants failed to bring the fact of the constructor's use of type 1 bolting (random bolting) rather than type 2 pattern bolting to the attention of its own senior staff and tunneling engineer, Mr Hans Bleuler. This fact of failure was admitted by Mr Bleuler and the person who was supposed to bring the matters to his notice, Mr Rheinberger, during evidence at the Coronial Inquest and by Mr Bleuler in his statements to investigators. 36 The defendants have statements from the tunnelling crew, taken as part of the WorkCover investigation since November 2006 and they have the evidence given by the tunnelling crew at the Coronial Inquest. It may be that this material contained some differences concerning precisely what happened at the time of the rock fall. However, the defendants had not sought the address or other contact details from the prosecution of the members of the tunnelling crew until some days prior to this motion being filed. Furthermore, relevant questions for expert opinion are set out in the expert reports to be relied upon by the three experts retained by the prosecutor who have provided reports and given notice to the defendants. 37 With some offences, the commission of the offence may be clear, even admitted, but the details of their commission may lie or are expected to lie within the knowledge of the defendant. The prosecutor may only be able to specify a period within which the offence occurred. That does not, of itself, usually result in a decision that adequate particulars have not been supplied. Mr Agius submitted that the prosecutor did not need to "engage the defendant in its request for particulars by answering the questions, question by question." Relying on the approach of Gleeson CJ in R v Saunders, counsel submitted that it was at all times open to the prosecutor to answer the defendants' request for particulars by saying: "... relying on the admissions allegedly made by the defendant, the terms of which are known to the respondent and its legal advisers, the prosecution case is that between the dates and at the place specified in the application for order, the respondent who was an employer, exposed its employees (whose names are known to the defendant at various times which are known to the defendant) to risks to their health, safety and welfare and therefore the defendant did not ensure the safety of those people whilst they were at work. The risk to which the defendant exposed those people to was the risk of rock fall and tunnel collapse and the possibility they would be hurt or killed as a result of rock or rocks falling on them. Although it is not necessary for the prosecutor to do so, the prosecutor has set out in the application for order the precise failings by the defendant in respect of the system of work and work environment at the said times and places. Had the matters that the defendant omitted to do in fact been done, the defendant would have eliminated the risk of rocks falling on people who were at work." 38 Mr Agius advanced various examples from the correspondence between the parties to illustrate that the prosecutor has provided full particulars. These included the defendants sought further particulars of "when was there a risk of injury to persons present?" and "identify the employees of the defendant referred to, indicating in respect of each employee when it was said that the responsibility identified was present." The defendants already have the names of the employees in the statement of charge and know that there were two geologists who had the obligation to map the face and walls of the tunnel each day. The defendants have the daily mapping sheets and the site visit reports. The prosecutor is not able to identify the author of those sheets, although it is plain that some, whoever they were, went to the face of the tunnel to map it each day. However, to a large extent, the identify of the person who on a given day entered the day to map the walls is irrelevant to any issue in the proceedings. The proceedings concern risks, that is, was there a risk that an employee would enter the tunnel? The prosecutor alleges that there was such a risk on each day that the tunnel was mapped between chainage 1100 to 1231 and that any or all of the persons named in the charge would have entered the tunnel when there was a risk of rock fall, or rock collapse. Whether one employee, or two, or three entered the tunnel on a day is largely irrelevant to liability for breach, in circumstances where the defendants designed a system that required one or more of their employees to enter the tunnel and map its face. As I observed in the direction, this issue goes to culpability. 39 The defendants have the statements and evidence of those persons. They have all that the prosecutor has and are in a position to know who went into the tunnel at which time. The charges relate to the whole of the period from 28 June 2004 to 29 July 2004. The breach is one that is alleged to continue throughout the whole of the period and the risk to health and safety is the risk of a rock fall or roof collapse throughout the whole of the period. Even without the responses to this request, the defendants, in my view, had sufficient information to ensure that the prosecutor's obligations had been met in this regard. 40 A further matter that was the subject of particulars was the basis for an unstated assumption that there was an obligation upon the defendants to see that another party installed the type 2 support in the roof of the tunnel. The prosecutor's response referred to s 8 of the Act. How the defendants were caught by s 8 of the Act is spelt out in the affidavit in support of the application for order and the subsequent further particulars provided by the prosecutor. Latent ambiguity 41 To the extent that a complaint was made by the defendants that in respect of the charges brought against Connell Wagner, they suffered from latent ambiguity, reliance was placed upon a number of authorities including Johnson v Miller; S v R; Walsh v Tattersall, Regina v Khouzame; Regina v Samson Saliba and Hannes v Director of Public Prosecutions. 42 In my view, the decision in Johnson v Miller, which concerned the validity of an information is significantly different from the offence here and is readily distinguishable. 43 In each of the present cases, each applicant is charged with one continuing offence between the dates in the strict terms of the Act. The Act provides for an offence relating to employees. In each case, the allegation is one of a continuing nature over a specified period of time, relating to a failure to ensure health and safety of employees. Employees are named in particulars of the broader allegation that there was a failure to ensure health and safety of all employees. The offence is the failure to ensure, which is singular. 44 In my view, there is no latent ambiguity or duplicity. The alternative would be to lay a separate charge in respect of each employee. To the extent that it is alleged that the same failure to ensure was involved, such a series of charges would be open to attack as being duplicitous or unfair. I have earlier referred to this issues and relevant authority. This would especially be the case if that situation were to be repeated with separate charges relating to each employee on each day for a continuing offence for a period of a month, as is the case here. Unlike in Johnson v Miller, the employees are identified. The defendants can run a case that particular named employees were not at risk, or were not employees. In addition, s 31 of the Act permits the laying of one charge in the manner adopted by the prosecutor here. The factual circumstances are the same in as much as the defendants in each case is alleged to have failed to ensure the health and safety of all employees and of each in the same manner, throughout the period. Alternate charge 45 The applicant has also sought to attack the application for order brought against the defendant, CW-DC Pty Ltd, on the grounds that firstly, it contains two charges expressed in the alternative, and secondly, the allegation that CW-DC is an employer, which is contained in the second or alternative count which is inconsistent with the allegations in other applications for order that CW-DC was an employer. The Full Bench decision in Inspector Singh v ABB Australia Pty Limited is authority for the laying of charges in the alternative. In that case the Full Bench approved an application for order which charged offences under s 8 and s 10 in the alternative. The prosecutor seeks a conviction pursuant to s 10 of the Act based upon the alleged control of premises. In the event that it is unsuccessful, it seeks a conviction on the basis of employment. Consideration of the alternative arises only if the case under s 10 of the Act is not made out. There is nothing unfair or improper about this approach. 46 In respect of the second matter, there is nothing inconsistent with pleading in an application for order that CW-DC was an employer, on the basis of joint employment with CW and a pleading in another application for order that CW was an employer in circumstances where it had seconded employees to CW-DC, a wholly owned subsidiary, for the duration of the project and where the evidence to be called in one matter going to the issue of employment, is the same as the evidence going to the other. It will ultimately be a question of fact for the Court as to whether CW was an employer in a similar position to that of a labour hire company, and, whether CW-DC was for the purposes of the Act, an employer in the sense of a joint employer with CW. There is nothing unfair or defective about this pleading. The challenge to it must fail. Conclusion - have proper particulars been provided? 47 In my view, for the reasons already outlined, the defendant has received sufficient particulars of the charges. Those particulars include those provided with the charge, those provided in the 59 page affidavit in support of the application for order, the particulars provided in response to the defendants' request for further and better particulars and the particulars provided as a result of the direction that I gave. Furthermore, the prosecutor has disclosed its evidence or at least a broad outline of it: see Allianz Australia Insurance. In my view, such particulars and evidence meet the obligation that the prosecutor has, so succinctly stated by Gleeson J in Saunders "clearly informing the respondent of the nature of the case made against him." 48 The particulars of the offence make certain the essential factual ingredients of the offences charged. The prosecution of the defendants concern the failure to ensure health and safety between chainage 1100 and up to and inclusive of the rock fall at chainage 1231. It is the prosecutor's case that although before chainage 1100, the constructor was employing anticipated support type 1 from chainage 1100 the constructor should have been employing anticipated support type 2, unless he had the consent of the design team to do otherwise. Furthermore, it is the prosecution's case that the defendants knew that they were aware of the anticipated requirement of support type 2 with support limitation E for the roof applying from chainage 1100. 49 The defendants were sending their employees into the tunnel every working day to map the face of the tunnel and were in a position to know that the constructor was not employing support type 2, but was continuing to employ support type 1 bolting. The prosecutor's case is that the risk began when the constructor failed from chainage 1100 onwards to employ support type 2 and when the defendants with that knowledge failed to bring to the attention of the constructor that an issue of risk to health and safety had arisen because of the failure to use support type 2 bolting. 50 Mr Burbidge contended that a different offence occurred each day and that therefore separate charges should be brought for each day between 28 June 2004 and 29 July 2004. The prosecutor's case is that the risk commenced at chainage 1100 and continued throughout the tunnel up until the risk manufactured itself by the rock fall. These are not cases where there was one incident, but rather a continuing risk which the prosecution contends was known to the defendants. It is not to the point, as was contended on behalf of the defendants, that the conditions were changing every day in the tunnel and therefore, there was a different tunnel each day. On one view, whether or not employees of the defendants were in the tunnel at a particular time is not relevant. The defendants' failure was to address the requirement for type 2 bolting in the roof. The risk remained even when there were no employees in the tunnel. The defendants mistakenly, as the authorities state, may be focusing on the incident rather than the risk to health and safety. 51 In this respect the observations of Walton J Vice-President in WorkCover Authority v Fernz at 138 are apposite in respect of these matters and I respectfully adopt them. "The deprivation of the further and better particulars sought by the defendant will not, in my view, create an unfairness ( Saffron (No 1) ), deprive the defendant of fair notice of the case to be met ( Johnson v Miller ) or knowledge of the essential factual ingredients of the actual offence charged ( Bunnings Forest Products at 13)." 52 The prosecutor, in my view, has provided extensive particulars in the present matters, which appear to me to satisfy the requirements of Hunt J in Sims v Wran (1984) 1 NSWLR 317, the Court of Appeal in Allianz Australia Insurance Ltd and the Court of Criminal Appeal in Director-General of Department of Land and Water Conservation v Greentree and Another [2003] NSWCCA 31. 53 I am satisfied the prosecutor has supplied particulars (including evidence) which are appropriate having regard to the charges made under s 8(1), s 8(2) and s 10(1) of the Act, which are sufficient to permit the defendants to properly understand the charges and prepare their defence. I decline to make order 2(a) of the defendants' notice of motion. I order that the defendants' notice of motion filed on 1 May 2009 be dismissed. The question of costs is reserved. -------------------------------------------- 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.