Industrial Relations Commission New South Wales Medium Neutral Citation: Robert William Regan v Southern Colliery Maintenance Pty Ltd [2011] NSWIRComm 44 Hearing dates: 25 March 2011 Decision date: 14 April 2011 Jurisdiction: Industrial Court of NSW Before: Staff J Decision: 1. The defendant's notice of motion filed on 10 March 2011 is dismissed. 2. Costs are reserved. Catchwords: NOTICE OF MOTION - OCCUPATIONAL HEALTH AND SAFETY - PRACTICE AND PROCEDURE - s 8(2) of the Occupational Health and Safety Act 2000 - order sought by defendant that because a particular did not disclose any act or omission it be struck out - further particularisation provided by prosecutor - PRINCIPLES - deficiency in particular cured - notice of motion dismissed Legislation Cited: Occupational Health and Safety Act 2000 Cases Cited: Inspector Morrison v Pybar Mining Services Pty Ltd [2011] NSWIRComm 1 John Holland Pty Ltd v Industrial Court of New South Wales; Parsons Brinckerhoff (Australia) Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 338 Kirk v Industrial Relations Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1; (2010) 239 CLR 531 Category: Interlocutory applications Parties: Robert William Regan (Prosecutor) Southern Colliery Maintenance Pty Ltd (Defendant) Representation: Mr P Strickland SC with Mr D O'Neil of counsel (Prosecutor) Mr D Nagle of counsel (Defendant) Crown Solicitor's Office (Prosecutor) Access Law Group (Defendant) File Number(s): IRC 1033 of 2008 Judgment 1Southern Colliery Maintenance Pty Ltd ("the defendant") has applied to the Court by notice of motion for the following orders: 1. In the application for order filed by Rodney Dale Morrison, Prosecutor, that particular (a) alleging that the Defendant failed to "ensure scaffolding was erected safety", be struck out. 2. That the requirement for an affidavit in support be dispensed with for the purpose of this notice of motion. ... 2The grounds and reasons in support of the notice of motion were: 1. Particular (a) does not disclose any acts or omissions on the part of the Defendant. Application for order 3The application for order alleged that the defendant: failed to ensure that persons not in its employment, and in particular, Ken Evans, Aaron Morrison, Wayne Powell, Larry Tynan, Gary Nees and Matthew Withers were not exposed to risks to their health or safety arising from the conduct of its undertaking while at its place of work, contrary to s 8(2) of the Occupational Health and Safety Act 2000. 4The particulars of the risk were: A. Non-employees were exposed to a risk of falling through scaffolding. B. Non-employees were exposed to a risk of being struck by people or objects falling through scaffolding. 5The particulars of the failure were: 1. Endeavour Coal Pty Limited (ACN 099 830 476) ("Endeavour Coal") was the lease holder of the Douglas Mine. 2. The Defendant was subject to an agreement with Endeavour Coal whereby the Defendant would provide services including labour and maintenance to Endeavour Coal. 3. The Defendant undertook to supply scaffolding to Endeavour Coal at cut through 12 at the Douglas Mine. 4. The Defendant contracted with Waco Kwikform (ACN 002 835 396) ("Waco") to provide the scaffolding. 5. Blue Water Scaffolding was sub-contracted by Waco Kwikform (ACN 002 835 396) ("Waco") to erect and dismantle the scaffolding at the Douglas Mine. 6. Blue Water Scaffolding purported to have completed the erection of the scaffolding on 7 July 2006 and provided a Scaffold Handover Certificate. 6It is then alleged that the defendant failed to: (a) Ensure scaffolding was erected safely; (b) Ensure scaffolding was erected in accordance with design drawing 53/3521; (c) Ensure the erected scaffolding included ledgers in each place ledgers were required; (d) Ensure there was a proper inspection of the scaffolding after its erection and prior to its use; (e) Ensure there was a properly completed Scaffold Handover Certificate; (f) Ensure the provisions of the fatal risk protocol were followed. Background 7On 27 June 2006, BHP Billiton engaged the defendant to supply and install scaffolding at "C12" for a price of $5,400. "C12" is a reference to one of the mining areas within the Appin Colliery, which was identified as the "Douglas district". The work done within that district was known as "the Douglas Project". 8The defendant entered into a hire agreement with Waco Kwikform Ltd ("Waco"), a scaffold hire company that erected and dismantled scaffolding. Pursuant to this agreement dated 2 June 2006, Waco agreed to erect and dismantle the relevant scaffolding. Waco agreed to hire scaffolding to the defendant. Further, Waco agreed to deliver and return the scaffolding as well as erecting and dismantling it. Waco subcontracted Blue Water Scaffolding Pty Ltd to erect the scaffolding. 9On 7 July 2006, the scaffolding collapsed because of a failure to put in place ledgers necessary to provide stability to the scaffolding structure. Ledgers are horizontal supports/beams used to provide horizontal separation of adjoining standards or vertical support/beams. 10Both Delta Mining Pty Ltd and the defendant were parties to special service agreements with Illawarra Coal Holdings Pty Ltd as agent for and on behalf of Endeavour Coal Pty Ltd, the leaseholder of consolidated Coal Lease 767 at the Appin Colliery. 11Pursuant to these agreements, Delta Mining and the defendant each independently of the other, supplied labour to the Endeavour Colliery and other BHP Billiton companies as and when required, for the Douglas and other mines. 12Pursuant to the special services agreement, the defendant had with Illawarra Coal Holdings Pty Ltd, as agent for Endeavour Coal, both the Company Contractor Management Plan - 2004 and the Fatal Risk Protocols were applicable to all work relevant to the request for the defendant to supply and install scaffolding. 13Having engaged Waco, it is alleged that the defendant failed to take appropriate steps to ensure the scaffolding was safely erected. Submissions 14Mr D Nagle of counsel, who appeared for the defendant, submitted that particular (a) offended Kirk v Industrial Relations Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1; (2010) 239 CLR 531 (" Kirk ") because it did not disclose any act or omission on the part of the defendant. It simply referred to an alleged state of affairs. 15Counsel submitted that a similar particular was recently held to offend those principles outlined in Kirk by her Honour Backman J in Inspector Morrison v Pybar Mining Services Pty Ltd [2011] NSWIRComm 1. 16Mr Nagle submitted that the particular under challenge did not identify how the erection of the scaffolding was unsafe. Accordingly, the defendant was not in a position to utilise the statutory defences found in s 28 of the Occupational Health and Safety Act 2000 ( "OHS Act" ). 17Mr P Strickland SC appeared with Mr D O'Neil of counsel for the prosecutor. At the commencement of the hearing of the notice of motion, Mr O'Neil provided further particularisation of particular (a) to the defendant which read: The defendant failed to ensure that Stephen and Danny King were properly supervised at all times whilst they were on the site. 18Mr Nagle submitted in response to the further particularisation of particular (a), that providing further and better particulars of an invalid particular did not cure the defect. Counsel submitted that the particular still failed to disclose an act or omission and that the defendant faced an uncertain trial and the prospects of not being able to rely upon s 28 of the OHS Act . Consideration 19In this prosecution the defendant pleaded not guilty on 24 November 2010. The trial is fixed for hearing in November and December 2011. 20In John Holland Pty Ltd v Industrial Court of New South Wales; Parsons Brinckerhoff (Australia) Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 338 (" John Holland "), Spigelman CJ observed that a defective charge, providing it was brought within jurisdiction, was capable of rectification by the provision of further particulars. His Honour observed at [41] - [45] as follows: [41] Where the application for order has resulted in a conviction, as was the position in Kirk , and it is ultimately found to be "grossly defective" because of a failure to plead an essential legal element of the offence charged (the measure), such defect is fatal and any conviction is required to be quashed as the defendant was never the subject of a valid charge. [42] However, where a challenge is brought by the defendant, for example, prior to a plea, and it is determined that the application for order was defective, such deficiency may be curable by the provision of further particulars, or the prosecutor seeking leave to amend. [43] The critical question that needs to be determined in respect of the applications for order in these matters, is whether any alleged defect is capable of being remedied. In other words, if the particulars failed to identify a specific measure, can one be implied from the particulars? [44] The Court of Appeal in Knaggs makes clear that an absence of particulars or inadequate particulars in a Court Attendance Notice, does not in itself, lead to the proceedings being invalid or a nullity. There is nothing in Kirk which is inconsistent with the principle in Knaggs . The decision in Kirk did not hold that the applications in that case were nullities or invalid: see Kirk at [30]. Rather, the decision in Kirk , at [35] and [74], is authority for the proposition that the measures to be taken by the defendant were not properly identified at any stage during the course of the trial and therefore the defendant was unable to consider a defence. [45] An inadequacy of particularity in an application for order is capable of being remedied pursuant to s 16(2) of the CP Act and s 170 of the IR Act , where the statement of offence clearly identifies the nature of the offence charged, provided that there is no uncertainty or ambiguity, and any such inadequacy is to be treated as an irregularity that does not nullify the proceedings: John Holland (Industrial Court) at [38] - [39], [57], [79], [101] and Rockdale Beef at [121] - [123], [130] - [133]. 21Absent any further particularisation, particular (a) does not state how the scaffolding was erected unsafely. Stephen King was the sole director of Blue Water Scaffolding Pty Ltd, a scaffolding company involved in the erection and installation of the scaffolding. The additional particularisation discloses the omission and identifies the measure that should have been taken in respect of particular (a). 22As I have earlier indicated, Mr Nagle in support of his contention that particular (a) should be struck out, sought to rely upon Backman J's judgment in Pybar Mining Services Pty Ltd. At [44] her Honour found that particular 1 which alleged that the defendant " Failed to ensure a safe system of work was in place in relation to the task of removing/undoing an overcentre valve" did not identify how the deficiency in the system was alleged to be unsafe. 23Her Honour stated that the deficiency needed to be identified and at [49] observed that " Particular 7 suffers from the same deficiencies as Particulars 1 and 6. ... It requires further particularisation so that the defendant may be properly apprised of these matters." 24Her Honour's conclusions with regard to the sufficiency of particulars was stated as follows: [50] In summary, the charge is a valid charge. The legal elements are present in the charge. It contains sufficient particularisation of the measures which should have been taken in Particulars 2, 3, 4 and 5. The remaining particulars fail to properly identify the alleged measure: see Kirk at [22] and [25]. At this stage of the proceedings these defects may be curable: John Holland (Court of Appeal) at [41] to [45]. With regard to Particulars 4, 5, 6 and 7 further particularisation should be provided nominating those workers and employees alleged to have been placed at risk and specifying what is alleged to be "adequate" information, training and instruction (which the defendant failed to ensure its employees received). 25Although Mr Nagle submitted it was not entirely clear what her Honour determined in respect of particular 1, Mr O'Neil advised that her Honour, at a subsequent directions hearing, made clear that particular 1 remained with the deficiency highlighted in that particular needing to be identified through further particularisation. To my mind, her Honour's conclusion was unsurprising in light of Kirk and John Holland. I propose to adopt a similar approach in determining this motion. 26In my view and I find, the deficiency in particular (a) has been cured by the further particularisation provided to the defendant. This approach is consistent with Kirk at [30] and [74]; John Holland at [41] - [45], [78] - [79], [141]. 27Particular (a) now indicates the particular measure which the defendant should have taken in respect of employees and contractors whilst working at the site. The failure to ensure that the scaffolding was erected safely exposed workers to a risk to their health and safety. Particulars (b) to (f) identify the defendant's additional failures and deficiencies in respect of the erection of the scaffolding. The further particularisation enables the defendant to consider whether reliance may be placed upon the defences found in s 28 of the OHS Act . In addition, further particularisation may be sought. ORDERS 28For these reasons, I make the following orders: 1. The defendant's notice of motion filed on 10 March 2011 is dismissed. 2. Costs are 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. Decision last updated: 15 April 2011