Industrial Relations Commission New South Wales Medium Neutral Citation: Western Freight Management Pty Ltd v Inspector Patton [2011] NSWIRComm 68 Hearing dates: 10/9/2010, 12/10/2010 and Written Submissions: 2/2/2011 Decision date: 16 June 2011 Jurisdiction: Industrial Court of NSW Before: Walton J, Acting President; Kavanagh J; Staff J Decision: 1. The appeal is upheld. 2. The conviction of Western Freight Management Pty Ltd ordered by Boland J in Matter No IRC 3547 of 2006 is quashed. 3. The penalties and costs ordered by Boland J in Matter No IRC 3547 of 2006 are quashed. 4. Costs are reserved. 5. The appellant shall file and serve any submission as to costs within 14 days of the date of this judgment and the respondent shall file any such submission within a further 14 days. Catchwords: APPEAL - Occupational Health and Safety - employee crushed by reversing truck - whether applications for order (charges) failed to plead the acts or omissions said to constitute breach of Occupational Health and Safety Act 2000 - whether charges specified relevant measures - held: charges defective by reason of their failure to plead relevant acts or omissions - held: trial judge fell into error when convicting the appellants on charges that failed to identify either expressly or by implication the Corporation's relevant acts or omissions - appeal allowed Legislation Cited: Criminal Appeal Act Criminal Procedure Act 1986 Industrial Arbitration Act 1940 Industrial Relations Act 1991 Industrial Relations Act 1996 Industrial Relations Commission Rules 1996 Industrial Relations Commission Rules 2009 Occupational Health and Safety Act 1983. Occupational Health and Safety Act 2000 Supreme Court (Summary Jurisdiction) Act 1967 Cases Cited: Doja v R [2009] NSWCCA 303 Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 Environment Protection Authority v Sydney Water Corporation Ltd (1997) 98 A Crim R 481 Ex parte Lovell; Re Buckley (1938) 38 SR (NSW) 153; 55 WN (NSW) 63 Heymann v R (1873) LR 8 QB 102 Inspector Patton v Western Freight Management Pty Ltd [2008] NSWIRComm 217 Inspector Patton v Western Freight Management Pty Ltd (No 2) [2009] NSWIRComm 124 Inspector Hamilton v John Holland Pty Ltd (2010) 194 IR 189; [2010] NSWIRComm 72 Johnson v Miller (1937) 59 CLR 467 John Holland Pty Ltd v Industrial Court of New South Wales v Industrial Court of New South Wales [2010] NSWCA 338 Kennedy-Taylor (NSW) Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) (2000) 102 IR 57 Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 Lorenzo and Santos v Inspector Peter Hayes [2011] NSWIRComm 54 Manpac Industries Pty Ltd (formerly t/as Pacific Concrete & Quarries Pty Ltd) v WorkCover Authority of New South Wales (Inspector Glass) [2001] NSWIRComm 190 Penrith Whitewater Stadium v Lesvos Enterprises [2007] NSWCA 131 R v FRH Victoria Pty Ltd [2010] VSCA 18 R v Halmi [2005] NSWCCA 2 Ridge Consolidated Pty Ltd v Workcover Authority of NSW (Insp Mauger) [2000] NSWIRComm 151 Rockdale Beef v Industrial Relations Commission of NSW (2007) 165 IR 7 St Hilliers Contracting Pty Ltd v WorkCover Authority of NSW [2007] NSWIRComm 39 State of New South Wales (Department of Education and Training and Department of Juvenile Justice) v Cahill (No. 2) [2011] NSWIRComm 33 The Crown in the Right of the State of New South Wales (Department of Education and Training) v O'Sullivan (2005) 143 IR 57 WorkCover Authority of NSW v Howard & Sons Fireworks Spectaculars Pty Limited [2000] NSWIRComm 211 Category: Principal judgment Parties: Western Freight Management Pty Ltd (Appellant) WorkCover Authority of New South Wales (Inspector John Patton) (Respondent) Representation: G J Hatcher SC with S R Coleman of counsel (Appellant) S Crawshaw SC and M P Cahill of counsel (Respondent) C J Boyd (Appellant) WorkCover Authority of New South Wales (Respondent) File Number(s): IRC 1237 of 2009 Decision under appeal Citation: Inspector Patton v Western Freight Management Pty Ltd [2008] NSWIRComm 217 Inspector Patton v Western Freight Management Pty Ltd (No 2) [2009] NSWIRComm 124 Before: Boland J, President File Number(s): IRC 3547 of 2006 Judgment 1This is an appeal by Western Freight Management Pty Ltd ("the appellant") from two judgments of Boland J, President, who convicted and sentenced the appellant for offences under s 8(1) of the Occupational Health and Safety Act 2000 ("the Act") in Inspector Patton v Western Freight Management Pty Ltd [2008] NSWIRComm 217 and Inspector Patton v Western Freight Management Pty Ltd (No 2) [2009] NSWIRComm 124. 2After those judgments were published, the High Court of Australia delivered Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 ("Kirk"). The resultant amended appeal took the form of a challenge based upon the statements of law in Kirk as well as the originally constructed grounds of appeal by which the appellant principally contented that the trial judge had erred in law by failing to find that the charges in the matter were outside the scope of s 8(1) of the Act. 3The respondent sought findings affirming the first instance judgments or, alternately, should the appeal be upheld in certain respects, orders permitting an amendment of the application for order (upon which the proceedings before Boland J were based) or a new trial. The respondent also sought to rely upon a Notice of Contention by which the respondent attempted to revive particular 4 of the charges. (Particular 4 had been struck out by the trial judge on the basis that it duplicated particular one in the application for order). 4This judgment is intended to be read in light of another decision of the Full Court in Lorenzo and Santos v Inspector Peter Hayes [2011] NSWIRComm 54 (" Lorenzo ") . We apply, so far as relevant, the statements of law and principle in that judgment. The applications 5In the application for order, the Statement of Offence appeared as follows: I, INSPECTOR JOHN PATTON, of the Workcover Authority of New South Wales, Level 1, 60-70 Elizabeth Street, Sydney in the State of New South Wales an Inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 and empowered under Section 106(1)(c) of the said Act to institute proceedings in the within matter allege that WESTERN FREIGHT MANAGEMENT PTY LTD [ACN 083 190 381] ("the defendant") whose registered office is situated at 237 Lords Place Orange 2800 in the State of New South Wales, being an employer on 2 December 2004 at 29 - 31 Waverley Drive, Unanderra ("site"): FAILED TO Ensure the health safety and welfare at work of all its employees, and in particular Brian Lloyd, contrary to Section 8(1) of the Occupational Health & Safety Act, 2000. The particulars of the offence were that the defendant: 1. Failed to ensure that a safe system of work in relation to traffic and pedestrian management was provided and/or maintained at the premises and, in particular, for line haul vehicles, with trailers attached, when reversing towards the line haul loading docks at the premises. 2. Failed to conduct risk assessments in relation to traffic and pedestrian management at the site prior to the incident, in particular, with respect to line haul vehicles, with trailers attached, when reversing towards the line haul loading docks at the premises. 3. Failed to ensure that sufficient room was available in the vicinity of the most southerly of the line haul loading docks so that line haul prime movers and trailers could safely access and exit the most southerly of the line haul loading docks, including departing the premises through the southern exit gate. 4. Failed to ensure adequate separation was maintained, at all times, between moving vehicles and pedestrians so that its employees, whilst on the ground as pedestrians, were not in danger of being struck by moving vehicles. As a result of the said failures, Brian Lloyd was placed at risk to his health and safety and was fatally injured. The defendant pleaded not guilty to the charge. 6The trial judge upheld the charge on the basis of the first three particulars and, as earlier mentioned, struck out particular 4 being satisfied, on the basis of the submissions made by the appellant, that it was a duplication of the first particular. Appellant's submissions Challenges based on the judgment in Kirk 7As to the issues arising under Kirk, Mr G J Hatcher SC, with whom Mr S Coleman of counsel appeared, submitted, in summary, as follows: 1. The charge formulated by the prosecutor was comparable with that in Kirk. The charge against the appellant was formulated as follows: ".........being an employer on 2 December 2004 at 29 - 31 Waverley Drive, Unanderra ("site"): FAILED TO Ensure the health safety and welfare at work of all its employees, and in particular Brian Lloyd, contrary to Section 8(1) of the Occupational Health & Safety Act, 2000." 2. The charge, as in Kirk , did not allege that the failure to "ensure" arose from an act or omission of the appellant. 3. Further, to the extent that the particulars purport to identify any acts or omissions, there is no express reliance placed upon s 31 of the Act. Nor is there any averment, that the acts of omissions arose from the same factual circumstances. 4. For the reasons advanced by the defendant in Inspector Hamilton v John Holland Pty Ltd (2010) 194 IR 189; [2010] NSWIRComm 72 (" John Holland ") , the appellant formally submitted that the charge was defective on its face. 5. The first particular could not be distinguished from the first particular in Kirk, which was considered by the High Court to "simply combine(d) the words of s 15(2)(a), (c) and (f) with a reference to the ATV" (at [25]). 6. The second particular was said to suffer from the same failings as those ascribed to particular (v) in Kirk at [25] in that it failed to meet any measure of specificity. 7. The third particular, it was argued, required the Court to embark upon an inquiry as to what was sufficient room for a semi-trailer to exit, what might constitute safe access and exit, and what measure the defendant ought to have adopted in order to achieve such safe access and exit. That created a situation where the Industrial Court became an administrative commission of inquiry as per Johnson v Miller (1937) 59 CLR 467 and was a jurisdictional error as per Kirk (at [30]). 8. The approach of the High Court in Kirk (at [14]) makes plain that the prosecutor must identify the risk which is said to have arisen at the workplace and also the specific measure which it is said the employer ought to have taken, but has failed to take, to overcome that risk. As these are each matters that the prosecutor must charge, they are matters which the prosecutor must prove beyond reasonable doubt. 9. Whilst the onus might move to the defendant to establish that a nominated measure is not reasonably practicable, that is merely a question of onus. The fact remains that it is only reasonably practicable measures that the employer is bound to take as was set out in Kirk (at [18]). 10. An inevitable consequence of the trial continuing to conclusion on the charge, as particularised, was that the trial was not a trial in accordance with law and the convictions must be quashed. 11. This was not a situation where the applications, as particularised, could be cured or amended to provide sufficient particulars pursuant to s 16(1) of the Criminal Procedure Act 1986 , or pursuant to s 170 of the Industrial Relations Act 1996 ("the IR Act") because: (i) The application by the respondent to amend the applications under s 170 was misconceived on the basis of two false assumptions: (a) s 170 permitted amendments of "any defect"; (b) the section is available in relation to a matter in which both verdict and sentence have been given. (ii) The enactment of s 83A of the Industrial Arbitration Act 1940 , the subsequent provision of s 309 in the Industrial Relations Act 1991, and, its re-enactment as s 170 of the present IR Act arose as a consequence of the limited ability of the Court, as it then was, to waive a procedural irregularity. The current jurisprudence of the Industrial Court, particularly Ridge Consolidated Pty Ltd v Workcover Authority of NSW (Insp Mauger) [2000] NSWIRComm 151 at 37 and Manpac Industries Pty Ltd (formerly t/as Pacific Concrete & Quarries Pty Ltd) v WorkCover Authority of New South Wales (Inspector Glass) [2001] NSWIRComm 190 indicated that s 170 of the IR Act and s 6 of the Supreme Court (Summary Jurisdiction) Act 1967 operated, in effect together, to permit an amendment of procedural errors in a summons or application. This is consistent with the findings of the Court in Manpac at [17] where it was held that an amendment of a name was permissible if it constituted misnomer, but not if it resulted in a substitution. (iii) The complaint of the appellant is that the charge brought against it is not known to law, as it does not contain essential legal elements. This has both jurisdictional and substantive aspects, neither of which permit the use of s 170 of the IR Act. (iv) The statements of the offences, as particularised, did not: (a) identify what measures Western Freight Management relevantly could have taken but did not take; (b) identify an act or omission which constituted a contravention of s 8(1) in applicable circumstances; (c) identify the deficiency in the system or the measures which should have been taken to address it; and (d) consequently, the provisions of s 16(1) of the Criminal Procedure Act 1986 could not provide assistance: Ex parte Lovell; Re Buckley (1938) 38 SR (NSW) 153; 55 WN (NSW) 63. (v) The procedures of s 170 could not help the respondent as the defect went to the root of the trial. The appellant submitted that Bell J, when sitting in the Court of Criminal Appeal, had considered the issue of amendment of an indictment where there was (unlike the matter under appeal) said to be no prejudice arising from the amendment, but where the matter to be amended was an essential ingredient in the indictment process: R v Halmi [2005] NSWCCA 2 . Her Honour found: 52 In supplementary submissions the Crown contended that the fact that the trial had proceeded on the Traill indictment in the circumstances that I have set out (namely that an indictment charging the appellant jointly with the supply offence had (not) been signed by a person authorised to sign indictments) did not occasion any prejudice to the appellant. So much may be accepted but this cannot cure a defect that goes to the root of the trial. The indictment upon which this appellant was arraigned and upon which his trial proceeded was invalid. It follows from this that the trial was a nullity. The verdict and conviction must be quashed.... The Court of Appeal in Doja v R [2009] NSWCCA 303 had taken a similar view. (vii) Curing the application by waiver or because of the Heymann doctrine of perfection by jury ( Heymann v R (1873) LR 8 QB 102 ) was unavailable. This was a matter where verdict and sentence had been given, and to cure the charges in that way would put the appellant in jeopardy in relation to matters not properly pleaded. Further, the appellant submitted it was not open to the prosecution to make an application to amend following a judge's verdict. (vii) The appellant sought orders granting the appeal, and striking out the application by not permitting the respondent to amend the application pursuant to s 170 of the IR Act, or order for a further hearing. Challenges based on errors of law 8In summary, the appellant's contentions as to errors of law at first instance were as follows: 1. Even without the decision in Kirk, the first instance decision disclosed such a view regarding reasonable practicality that its orders should be struck out. Of the most particular concern was the trial judge's approach to the employer's duty. The trial judge imposed a duty at a standard which could never be complied with. That standard imposed a criminal liability upon an employer in the trucking industry (utilising an analogy involving labour hire companies, and the "special obligation" discussed in Kennedy-Taylor (NSW) Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) (2000) 102 IR 57 ) with respect of each of its employees engaged at each of the premises of its customers to, from time to time, attend, to ensure that: a. there is in place a satisfactory system of pedestrian and traffic management, generally; and b. there are no physical features to the customer's premises that might require reversing movements of the vehicle, presumably (though this is not clear) beyond one movement necessary to bring the vehicle into proximity with the loading dock. 2. The trial judge made no finding that the defendant controlled the premises. Whilst there was a finding that the defendant had some influence with the owners of the premises, this was not enough to make the defendant a 'controller'. 3. The appellant submitted that the focus of the proceedings should have concerned the place of work, but only in so far as it was relevant for the purposes of the charge. The premises, it submitted, were controlled by Star Track Express. It was not reasonably practicable for the appellant, when sending a truck on to that customer's premises, to ensure that the customer had a 'traffic and pedestrian management system' in place which met the responsibilities imposed by the Act. Referencing Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432, the respondent submitted that to an impose obligations as to measures so as to cover such an unforeseeable event on a customer's premises was not required by the duties imposed under the Act. The Notice of Contention 9As to the Notice of Contention, the appellant contended that the order striking out the particular was a final order and that the use of the Notice of Contention procedure was an abuse of process, disguising a cross-appeal as a contention. It should be dismissed. Respondent's submissions The issues arising out of Kirk 10Mr S Crawshaw SC, with whom Mr M P Cahill of counsel appeared, contended that the Court had not exceeded its jurisdiction in convicting and sentencing the appellant. 11It was submitted the application for order satisfied the requirements of r 217B of the Industrial Relations Commission Rules 1996 , and included a statement of the legal nature or essential legal elements of the offence under s 8(1) of the Act, in that it expressly stated: (a) The name and address of the person by whom the proceedings are brought: "Inspector John Patton of the WorkCover Authority of New South Wales, Level 1, 60 - 70 Elizabeth Street, Sydney in the State of New South Wales". (b)The capacity in which the prosecutor is taking the proceedings: "[A]n Inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 and empowered under Section 106 (1)(c) of the said Act to institute proceedings in this matter". (c)The name and address of the person against whom the proceedings are brought: "Western Freight Management Pty Ltd [CAN 083 190 381] ("the defendant") whose registered address is situated at 237 Lords Place Orange (sic) 2800 in the State of New South Wales". (d) The Act and section under which the defendant is alleged to have committed an offence: "[s]ection 8 (1) of the Occupational Health and Safety Act 2000" . (e) The nature of the offence that is alleged:"[T]he defendant ... being an employer ... [failed to] [e]nsure the health safety and welfare at work of all its employees, and in particular Brian Lloyd ...". 12The application alleged, it was contended, for the purposes of s 31(1) of the Act, more than one contravention of s 8(1) of the Act by the defendant that arose out of the same factual circumstances. These may be charged as a single offence for the reasons set out in John Holland at [35] and [83] to [99]. 13The application clearly identified the essential factual ingredients of time and place of the offence: " on 2 December 2004 at 29 - 31 Waverley Drive, Unanderra ("the site") ". 14As is permissible, the particulars of the offence addressed the manner of the offence by setting out particulars. 15The application implicitly identified the risk alleged by the respondent and which was found by the trial judge. However, any absence of identification of the risk that arose in the statements of offence could be and was remedied by the identification of the risk (ultimately relied on by the trial judge) during the opening address of the respondent (see WorkCover Authority of NSW v Howard & Sons Fireworks Spectaculars Pty Limited [2000] NSWIRComm 211 at [43]-[44]). 16The respondent contended it was incorrect that the first two particulars of failures were similar to those in Kirk. The two failures were confined to measures relating to traffic and pedestrian management and line haul vehicles, with trailers attached, when reversing towards the line haul loading docks at the premises. The particulars were more akin to those found valid by the Victorian Court of Appeal in R v FRH Victoria Pty Ltd [2010] VSCA 18 at [50] which, unlike Kirk , were found to adequately identify the breaches of the relevant statute. 17The application or, alternatively, the application together with the affidavit in support, implicitly identified, it was submitted, that it was being asserted that the appellant should have taken the following measures, as found by the trial judge: (a) The system of work, as particularised in the Application, should have addressed the presence of the Appellant's employees in the truck reversing area; and (b) The risk assessment, as particularised in the Application, should have addressed the risk to the Appellant's employees in the truck reversing area. 18The respondent accepted that the third particularised failure relating to insufficient room, although clarified in the respondent's opening as being related to the garden bed, was not the subject of adequate identification of a measure at any stage of the trial, as required by Kirk . 19However, the respondent submitted that the conviction of the appellant would stand if there was a finding that the trial judge was entitled to rely on the system of work and/or risk assessment measures as set out in the first and second particulars: Environment Protection Authority v Sydney Water Corporation Ltd (1997) 98 A Crim R 481 at 485 as applied in The Crown in the Right of the State of New South Wales (Department of Education and Training) v O'Sullivan (2005) 143 IR 57 at [93]. This proposition is applicable to findings on appeal. For example, in St Hilliers Contracting Pty Ltd v WorkCover Authority of NSW [2007] NSWIRComm 39 at [40], [44] and [76], a Full Bench upheld a conviction although finding, contrary to the decision at first instance, that there was a defence to one of the particularised failures. 20The respondent contended that the relevant risk was identified as follows: (a) The trial judge described the risk that had to be proved in the following terms (at [68]): The specific risk alleged, and the risk that must be proven by the prosecution, is the risk of an employee of the defendant being struck by a prime mover with trailer attached as it reversed into position in front of the loading docks at the Waverley Drive depot on 2 December 2004. (b) The application did not expressly identify the risk in these terms. However, the particulars of the offence in the application for order clearly further identify the risk (as found by the trial judge) as follows: (a) Particular 1 clearly establishes that the context in which the defendant's failure [or omission] is alleged to have occurred is that of the safe interaction between "traffic" and "pedestrians" at the subject site and in particular, that interaction as it related to line haul vehicles, with trailers attached, reversing towards the line haul docks at the site. This clearly implies the risk was that of a pedestrian employee being struck; (b) Particular 2 implies the same risk as in Particular 1; (c) Particular 4 nominates, against the background of the context identified in Particulars 1 and 2, the specific risk of the defendant's employees being struck by moving vehicles whilst on the ground [at the site] as pedestrians. This risk, in the context of the other particulars, is the risk of the defendant's employees being struck by the defendant's line haul vehicles with trailers attached as those vehicles reversed towards the line haul docks at the site. (c) The trial judge struck out particular 4 (at [125]) on the basis that it was encompassed by particular 1. To the extent that particular 4 identifies the risk found by the trial judge further than particular 1, it was an error by the trial judge to strike out particular 4. (d) Further, if it was necessary, the respondent's opening address at the commencement of the hearing on 7 April 2008 expressly identified the risk in the following terms: It was a risk of being struck by reversing vehicles in its broader sense, however, within the particular circumstances of the case, the risk was being struck by the reversing vehicles that were reversing in the position in the front of the line [haul] loading docks. (e) There can be no doubt that the appellant was aware of and was able to defend itself against the risk found by the trial judge. The respondent submitted that the conduct of the trial highlighted that awareness and ability as follows: (1) It was common ground at the trial that the driver could not see anything located in the area behind the trailer. This showed the risk posed by a reversing line haul vehicle [or prime mover] with trailer attached was both known and obvious. (2) It was the evidence of the Appellant's employees and witnesses that the risk was obvious and universally known to all truck drivers. (3) The Appellant's counsel successfully objected to the admission of evidence relating to the alleged failure of the deceased [and Mr Norman] to wear high visibility clothing whilst on the ground and in the vicinity of the line haul loading docks at the site on the basis that the risk was a risk to a worker located in an area where they could not be seen [i.e. in the area immediately behind a trailer attached to a prime mover]. (4) The Appellant's counsel cross-examined Mr Schmidt, who was the Appellant's Operations Manager at the time of the subject incident, regarding the nature of the subject risk. (5) The Appellant's counsel also led evidence from Mr Fogarty, a driver trainer who provided training to the Appellant's employed drivers [including Mr Norman and the deceased], and Mr Peters, the Appellant's managing director, regarding the risk posed by reversing trucks. (6) The closing submissions made on behalf of the Appellant identify the risk identified by the prosecutor in clear and unambiguous terms. The Appellant's closing submissions refer to the subject risk as "blatantly obvious" . 21It was thus clear that the risk found by the trial judge was sufficiently identified to enable the appellant to elicit evidence in support of the submission that the respondent had failed to prove the appellant's alleged failure(s) by reference to that risk. 22As to the appellant's contention that there was a failure in the charges to identify the measures that should have been taken by the appellant, the respondent submitted that particular 1 in the application alleged that the appellant failed to "ensure that a safe system of work in relation to traffic and pedestrian management was provided and/or maintained at the premises and, in particular, for line haul vehicles, with trailers attached, when reversing towards the line haul loading docks at the premises". 23The statement of the failure in particular 1 of the application clearly and obviously implied the failure to take the measure found by the trial judge. To the extent that there was any lack of clarity, the affidavit in support of the applicant (sworn by Inspector Patton) provided the following information in the form of particulars: (1) Paragraph 16 of the Affidavit clearly sets out the [subsequently] agreed fact that "[t]he mirrors fitted to [Mr] Norman's prime mover [with trailer attached] did not provide him with any view of the area directly behind the trailer as he reversed"; [See also paragraph 46] It should be noted that when reversing the semi-trailer, the driver has vision along both sides of the trailer via side mirrors, but no vision immediately behind the rear of the trailer, particularly in this case as the trailers were enclosed freight trailers. Also, the lone haul loading docks were not fitted with reversing mirrors. (2) Paragraph 17 of the Affidavit alleges that Mr Lloyd was caught between the rear of the trailer attached to Mr Norman's prime mover and the front of the line haul dock [at the site] as Mr Norman reversed the trailer towards that dock . As Norman was reversing the semi-trailer towards the loading dock, the deceased was caught between the rear of the reversing trailer and the dock. (3) Paragraph 60 makes reference to the introduction after the event of changes in the procedures applicable to line haul vehicles reversing towards the line haul loading docks at the site which made provision for ensuring that the area behind such vehicles was clear of personnel/pedestrians. 24In the alternative, the statement of failure in particular 4 clearly addressed the measure of ensuring adequate separation being maintained between moving vehicles and pedestrians. In the context of particular 1 and the affidavit, which are directed at the absence of the separation of pedestrians from reversing trucks with trailers where the pedestrians are behind those reversing trucks with trailers, this particular clearly referred to a failure to ensure that there was no person behind the trailer as it reversed toward the dock. 25The trial judge at [124] and [125] struck out particular 4 on the ground that it was encompassed by particular 1. If there is a finding that the failure found by the trial judge was not implied in the statement of the failure in particular 1 of the application, it is submitted that the failure found by the trial judge was implied in the statement of the failure in particular 1 when read together with particular 4 of the application. To the extent that particular 4 identifies the failure found by the trial judge further than particular 1, it was an error by the trial judge to strike out particular 4. 26Further, and in the alternative, there can be no doubt that the appellant was aware of and was able to defend itself against the system of work failure found by the trial judge. The conduct of the trial highlights such awareness and ability. The appellant actively challenged the allegation that it did not ensure a safe traffic and pedestrian management plan for line haul vehicles (with trailers attached) when reversing towards the line haul loading docks by ensuring there was no person in the truck reversing area. The respondent's submissions in that respect were as follows: (a) The appellant's counsel cross-examined prosecution witnesses regarding: (i) the routine nature of reversing as a procedure in the transport/trucking industry; (ii) the universal nature of the risk associated with reversing prime movers with trailers attached (i.e. the driver cannot see the area behind the trailer from the cabin of the prime mover); (iii) the "universal recognition" of the risk amongst professional truck drivers associated with the reversing of prime movers with trailers attached (i.e. the driver cannot see the area behind the trailer from the cabin of the prime mover such that if a person is located in the area behind the trailer, the person cannot be seen by the driver of the vehicle); (iv) the " unforeseeability " of a professional truck driver "walking" behind a reversing combination; and (v) the provision in its Drivers' Manual of a "reversing procedure". (b) The appellant led evidence regarding: (i) the routine nature of reversing as a procedure in the transport/trucking industry; (ii) the "universal" recognition of the risk amongst professional truck drivers associated with the reversing of combination vehicles; (iii) the " unforeseeability " of a professional truck driver "walking" behind a reversing combination; and (iv) the provision in its Drivers' Manual of a "reversing procedure". (c) Finally, the appellant's closing submissions advanced the following propositions: (i) reference was made to Mr Lloyd knowing he should not stand behind a reversing vehicle as he could not be seen and to the evidence being incapable of sustaining the submission that any traffic management procedure would have "resulted " in the deceased "...not .. exposing himself to risk"; (ii) the "reversing procedure" set out in the appellant's manual, taken together with the training and supervision provide by the appellant, effectively constituted "a traffic management plan" restricting pedestrian access that was sufficient, in any event, to discharge the appellant's obligations to the deceased under s 8(1) of the Act with respect to the risk of the deceased being struck by one of the appellant's prime movers with trailer attached whilst that vehicle reversed into position in front of the loading dock at the site; and (iii) Mr Norman understood and complied with that procedure. 27It was thus clear that the system of work failure found by the trial judge was sufficiently identified during the trial to enable the appellant to elicit evidence in support of the submission that the respondent had not proven that failure (by specific reference to the appellant putting in place a 'traffic and pedestrian management plan' for line haul vehicles with trailers attached when reversing towards the line haul loading docks that ensured there was no person in the truck reversing area). 28Particular 2 in the application alleged that the appellant failed to "conduct risk assessments in relation to traffic and pedestrian management at the site prior to the incident, in particular, with respect to line haul vehicles, with trailers attached, when reversing towards the line haul loading docks at the premises". The trial judge concluded (at [97]) that the appellant failed to take an identified measure, namely, it did not conduct a risk assessment in connection with the risk of an employee being struck by a prime mover with trailer attached as it reversed into position in front of the loading docks at the Waverley Drive depot. 29It is clear from particular 2 or, alternatively, otherwise before or during the course of the proceedings, that the risk the respondent was alleging should be assessed was the risk of an employee of the appellant being struck by a prime mover with trailer attached as it reversed into position in front of the loading docks at the Waverley Drive depot. 30In the circumstances, there can be no doubt that the appellant was aware of and able to defend itself against the risk assessment failure found by the trial judge. 31Further, and in the alternative, it was contended that the application clearly identified the nature of the offence charged, and any failure to sufficiently identify the measures and/or risk in the application should be treated as an irregularity that did not nullify the proceedings. Kirk did not hold that the applications in that case were nullities. Rather, the decision in Kirk (at [74]) was authority for the proposition that the measures to be taken by the defendant were not properly identified at any stage of the trial, up to and including the passing of sentence. 32Accordingly, any inadequacy of identification in the Statement of Offence of the measures that should have been taken or the risk that arose was capable of amendment or being remedied by the subsequent identification of measures or the risk to the appellant during the trial, subject to the requirements of procedural fairness. 33The respondent submitted that, other than with respect to the failure to ensure sufficient room to reverse, the appellant could not have been under any misapprehension as to the measures the appellant should have taken or the risk that arose. As the Statement of Offence could have been amended during the trial (to the extent that they were defective), the convictions, therefore, cured any defects in the applications. 34In the alternative, the respondent submitted that if the Full Bench found that the conviction of the appellant should not be maintained on appeal on the grounds relied on by the trial judge, then the respondent should be permitted to amend the application for order under s 170 of the IR Act during the appeal. The Court would then make orders for a further hearing of the matter. 35On the error of law issues, the respondent submitted that charges which were appropriate to s 8(1) and refuted the contention that the measures in the charges were reasonably practicable and could prevent the identified risk. 36The respondent submitted that there was no error of law in the first instance judgment as to whether the defendant relevantly had sufficient control of the premises or whether this was the employee's place of work. Relevant findings by the trial judge 37The trial judge identified the risk as follows (at [68]): [68] the specific risk alleged, and the risk that must be proven by the prosecution, is the risk of an employee of the defendant being struck by a prime mover with trailer attached as it reversed into position in front of the loading docks at the Waverly Drive Depot on 2 December 2004. 38The trial judge identified the measures that should have been taken by the respondent but which it failed to do. With respect to particular 1, the trial judge found (at [90]) that the appellant failed to take an identified measure, namely, its system of work did not ensure that there was no person behind the trailer as it reversed toward the dock. His Honour found (at [90] to [92]): 90 The submission that WFM had a system in place at Waverley Drive to ensure safety by virtue of the instructions in its Manual regarding the reversing procedure also carries little weight. A mere paper based instruction that was not adequately policed by the defendant did not amount to ensuring that a safe system was maintained at the depot. In any event, the reversing procedure laid out in the Drivers' Manual was not one that I regard as effective in ensuring that persons would not be placed at risk by a reversing prime mover and trailer; the driver was still not able to ensure that there was no person behind the trailer as it reversed towards the dock. Further, the reliance by the defendant on a so-called unwritten law that drivers do not stand behind a reversing vehicle is not an adequate answer to the charge. Time and again this Court has referred to the well known observation of Bauer J in WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Limited (1995) 100 IR 248 at 257: Much of what was urged by Mr King was directed to showing that the worker who was killed knew of, and therefore ought to have avoided the exposed electrical connections. In one sense such a submission militated against the position of the defendant; the very purpose of the Act was to introduce safe working practices so that accidents are prevented. The Act was designed to protect against human errors including inadvertence, inattention, haste and even foolish disregard of personal safety as well as the foreseeable technical risks in industry. 91 The true position was that: (i) to a large degree WFM left the provision and/or maintenance of a safe system in relation to traffic and pedestrian management at Waverley Drive depot to STE; (ii) WFM took no or no adequate steps to satisfy itself that STE provided and/or maintained a safe system. WFM did not inquire as to what STE policies and procedures were in place at the depot, whether there existed a traffic and pedestrian management policy, whether such policies and procedures adequately ensured employees' safety, whether there were any additional safety measures required or, importantly, whether WFM's employees knew of, understood and applied those safety procedures; (iii) STE did not itself provide and/or maintain a safe system in relation to traffic and pedestrian management at Waverley Drive; (iv) WFM left the question of safety largely in the hands of its drivers; and (v) WFM failed to provide and/or maintain a safe system in relation to traffic and pedestrian management at Waverley Drive. 92 Accordingly, I find that the defendant failed to ensure that a safe system of work in relation to traffic and pedestrian management was provided and/or maintained at the premises and, in particular, for line haul vehicles, with trailers attached, when reversing towards the line haul loading docks at the premises. Further, I find that this failure had a causal connection to the creation of the risk to safety. 39With respect to particular 2, the trial judge concluded (at [97]) that the appellant failed to take an identified measure, namely, it did not conduct a risk assessment in connection with the risk of an employee being struck by a prime mover with trailer attached as it reversed into position in front of the loading docks at the Waverley Drive depot. His Honour concluded: 97 Whilst Mr Peters knew of the risk, he did not actively turn his mind to any safety implications the risk might have for WFM employees. I conclude that neither Mr Peters nor WFM conducted a risk assessment in connection with the risk of an employee being struck by a prime mover with trailer attached as it reversed into position in front of the loading docks at the Waverley Drive depot. 105 It is apparent that had an adequate risk assessment been conducted, the risk of injury to WFM's employees would have been significantly reduced if not eliminated 40In his sentencing judgment, Boland J reiterated the findings and the measures which had been omitted to be taken which had lead to conviction, as follows (at [25]): The defendant's failure to ensure the safety of employees was due to three causes: a failure to ensure that a safe system of work in relation to traffic and pedestrian management was provided and/or maintained at the premises and, in particular, for line haul vehicles, with trailers attached, when reversing towards the line haul loading docks at the premises; a failure to conduct risk assessments in relation to traffic and pedestrian management at the site prior to the incident, in particular, with respect to line haul vehicles, with trailers attached, when reversing towards the line haul loading docks at the premises; a failure to ensure there was sufficient room available in the vicinity of the most southerly of the line haul loading docks so that line haul prime movers and trailers could safely access and exit the most southerly of the line haul loading docks, including departing the premises through the southern exit gate. 41His Honour made the following orders convicting the defendant in his first judgment (at [156]): 156 I find that the defendant, Western Freight Management Pty Ltd is guilty of an offence under s 8(1) of the Occupational Health and Safety Act 2000. 42His Honour made the following orders as to sentence in the sentencing judgment (at [99]): 99 The Court makes the following orders: 1. The defendant is convicted of the offence. 2. The defendant is fined an amount of $200,000 with moiety to the prosecutor. 3. The defendant shall pay the costs of the prosecutor as agreed or assessed. Failing agreement, the matter may be referred to the Registrar for assessment. CONSIDERATION 43The judgment in Lorenzo is the most recent in a succession of judgments of this Court which have considered and applied the judgment in Kirk in the context of challenges brought to charges laid under the Act (whether before or after the conviction of a defendant). In Lorenzo , the Full Bench stated (at [31] to [38]) [31] The term, Statement of Offence (or "Statement of the offence"), which was adopted in Kirk to describe the applications for order under s 15(1) and s 16(1) of the 1983 Act was accepted by the Full Bench (by reference to several passages in Kirk ) as constituting the charge (a description of the legal nature of the offence, that is, the legal elements), the particulars (that is, the essential factual ingredients of time, place and manner), and the consequences (that is, the exposure to risk by reason of a defendant's acts or omissions): Morrison v Chevalley at [41]. This construction is also consistent with findings made by the Court of Appeal in John Holland at [55] [56] in which Spigelman CJ (with whom Beazley and Giles JJA agreed) said: Counsel for John Holland submitted that the Court should focus only on the statement of the charge on the first page of each Application for Order. John Holland, but not Parsons Brinckerhoff, submitted that the balance of each Application, which provides particulars of the charge, is not the statement of the offence for the purpose of applying the reasoning of the High Court in Kirk. This is too narrow an interpretation of that reasoning. Indeed, it is inconsistent with the reasoning in Kirk which, as I have set out above, analysed the particulars provided, as well as the charge. An Application for Order, in its entirety, is the document which invokes the jurisdiction of the Court. If the offence is appropriately identified in the document as a whole, then there is no reason to conclude that the jurisdiction of the Court was not properly invoked. [32] Kirk did not determine that the acts or omissions of a defendant alleged to cause the risk to safety were legal elements of an offence: John Holland at [67]; Morrison v Chevalley at [55(f)]. [33] It was held by the majority in Kirk that charges under s 15(1) and s 16(1) of the 1983 Act had to plead the acts or omissions of a defendant that created the risk to safety: John Holland at [70] (both legal elements and essential factual particulars are required to be pleaded); Morrison v Chevalley at [103]. On this issue, Spigelman CJ in John Holland (Court of Appeal) (at [32]) extracted two propositions from the majority judgment in Kirk , necessary to establish a contravention of the provisions: "A statement of an offence must identify the act or omission said to constitute a contravention" - see [14], [15], [27], [37], [38], [74]; and The "relevant act or omission which gives rise to the offence" is "a failure, on the part of the employer, to take particular measures to prevent an identifiable risk eventuating" - see [12], [14], [19], [28], [38]. [34] A rationale for the requirement that the acts or omissions be pleaded in a charge is to ensure that a defendant knows what specific acts or omissions are alleged against it in order that it may raise a defence: Morrison v Chevalley at [104]. [35] An Application for Order must comply with rule 217B of the Industrial Relations Commission Rules 1996 ('the 1996 Rules') (now rule 16.1 of the Industrial Relations Commission Rules 2009 ('the 2009 Rules'). An Application for Order (for example, under s 8(1) of the 2000 Act) must therefore include the nature of the offence alleged (the legal elements): Johnson v Miller (1937) 59 CLR 476 at 486 per Dixon J; Rockdale Beef at [105]; John Holland at [37]. [36] Section 11 of the Criminal Procedure Act 1986 ('the CPA' ) allows for the description of an offence to be made in the words of an Act creating the offence. Thus, if a charge brought under s 8(1) of the 2000 Act describes an offence in the words of that provision then the charge has met the requirement of identifying the legal nature of the offence, subject to the proviso that in adopting the words of the statute it admits of no uncertainty or ambiguity (per Rockdale Beef at [131]). A charge that meets the requirement of s 11 of the CPA does not dispense with the common law rule requiring identification in the charge of the essential factual ingredients of time, place and the manner of the defendant's acts or omissions: John Holland at [38]. [37] If the acts or omissions are not pleaded in a particular place or in a particular form in a charge, this does not amount to a fundamental defect such that the charge should be regarded as a nullity: John Holland at [72]; Morrison v Chevalley at [55(i)]; [56(b) to (d)]. [38] The failure to plead essential factual ingredients (time, place and manner of defendant's acts or omissions) will not amount to a fundamental defect rendering the charge invalid: John L Pty Ltd v Attorney General (NSW) [1987] HCA 42; (1987) 163 CLR 508 ( John L ) at 521-522; Stanton v Abernathy (1990) 19 NSWLR 656 at 667; see also Full Bench in John Holland at [72] to [74] and Morrison v Chevalley at [55(i)], [56(b) to (d)] [133] (deficiency due to failure to identify in some way the acts or omissions is unobjectionable (s 16(2) CPA) or would be regarded as an irregularity (s 170 IRA)). 44As to the requirements of a Statement of Offence, the plurality of the High Court held in Kirk (at [14]): "A statement of an offence must identify the act or omission said to constitute a contravention of s 15 or s 16. It may be expected that in many instances the specification of the measure which should have been or should be taken will itself identify the risk which is being addressed. The identification of a risk to the health, safety and welfare of employees and other persons in the workplace is a necessary step by an employer in discharging the employer's obligations. And the identification of a risk which has not been addressed by appropriate measures must be undertaken by an inspector authorised to bring prosecutions under the Act. But it is the measures which assume importance to any charges brought. "Sections 15 and 16 are contravened where there has been a failure, on the part of the employer, to take particular measures to prevent an identifiable risk eventuating. That is the relevant act or omission which gives rise to the offence." 45It is also instructive to refer to the following passages from the plurality judgment in Kirk (at [11] to [13]): [11] Section 15(2) identified, in general terms, some types of measures which an employer may need to take in order to ensure the health, safety and welfare of employees. The list is not exhaustive. What measures are necessary to be taken will depend upon the particular circumstances prevailing at the workplace, what activities are there conducted, what machinery, plant or substances are involved, the tasks undertaken by the employees and the skills of the employees in question, to mention but a few factors. What the terms of sub-s (2) make plain is that an employer must identify risks to the health, safety and welfare of employees at the workplace and take steps to obviate those risks. Thus where plant and machinery are used at a workplace, an employer must keep them in good order, where to do otherwise would pose a risk to employees' health and safety, and must implement systems concerning their use so as to obviate any such risk [9] . An employer is required to identify risks to employees which might be overcome by the provision of information, instruction, training or supervision and then to take such action in that regard "as may be necessary" [10] . An employer is to "take such steps as are necessary" to make available information concerning the use for which plant is designed and conditions necessary for its safe use [11] . Section 16 required similar considerations and measures to be undertaken with respect to non-employees present at the workplace. [12] Sections 15 and 16 comprehend that the generally stated duty is contravened when a measure should have been taken by an employer to obviate an identifiable risk. That those provisions are contravened where there has been a failure, on the part of an employer, to take a particular measure, is confirmed by references in ss 15 and 16 to what constitutes an offence. Sections 15(4) and 16(3) referred to "the act or omission concerned" which "constituted a contravention" of s 16 or s 15 respectively [12] . Section 49 in Pt 6, which concerned the time for instituting proceedings for offences, provided that they must be instituted within two years "after the act or omission alleged to constitute the offence". [13] To this point reference has been made to the identification of what should have been done by an employer, which will arise in a case such as this, where an employee has been harmed. It is not necessary that harm has already befallen an employee for an offence to have been committed. Where an inspector authorised under the OH&S Act identifies a risk to the health, safety or welfare of employees present at a workplace, which an employer has not addressed, s 15 may be contravened. An obvious example would be the failure to guard dangerous machinery. Upon conviction of such an offence the Industrial Court may order the employer "to take such steps as may be specified in the order for remedying that matter" within a prescribed period, where it is "within the person's power to remedy", in addition to imposing a penalty [13] . It would be necessary for the charge to identify the "matter" to be remedied to enable such an order to be made. 46In Kirk, the plurality was unable to identify any point in the proceedings at first instance where particular or specific measures had been identified. The Court made the following observations in this respect (at [74]): [74] The first of the errors in question in this case - the errors of construction of s 15 of the OH&S Act - can be identified as a jurisdictional error of the third kind identified in Craig . That is, it can be identified as the Industrial Court misapprehending the limits of its functions and powers. Misconstruction of s 15 of the OH&S Act led the Industrial Court to make orders convicting and sentencing Mr Kirk and the Kirk company where it had no power to do so. It had no power to do that because no particular act or omission, or set of acts or omissions, was identified at any point in the proceedings, up to and including the passing of sentence, as constituting the offences of which Mr Kirk and the Kirk company were convicted and for which they were sentenced. And the failure to identify the particular act or omission, or set of acts or omissions, alleged to constitute the contravening conduct followed from the misconstruction of s 15. By misconstruing s 15 of the OH&S Act, the Industrial Court convicted Mr Kirk and the Kirk company of offences when what was alleged and what was established did not identify offending conduct. 47In Lorenzo , the Court found the application contained the legal elements of the charge but found defects in the Statement of Offence in that it failed to state essential factual elements. The consideration of this issue also occurred in a context where some particularisation of the acts or omissions said to constitute a contravention of s 8(1), vis vis specific measures the appellant was required to take, had been provided during the trial. The relevant discussion, in that respect, was as follows (at [18], [43] and [49] to [50]): [18] The method proposed by the respondent in order to reveal how the relevant measures (that should have been taken) had been identified in the course of the proceedings below, was to identify those measures found by the trial judge as set out in the judgment and then to "work back" in order to see if, and how, the measures were identified by the respondent prior to, and in the course of the proceedings. [43]... Applying the propositions distilled from John Holland and Morrison v Chevalley , it may be concluded that the failure to identify or specify the omissions of S&L Steel constitutes a defect in the charges which is nevertheless capable of remedy by utilising either s 16(2) CPA or s 170 IRA . (see also Taylor v Environment Protection Authority (2000) 50 NSWLR 48 at [20-27] per Sperling J; McConnell Dowell Constructors (Aust) Pty Ltd v Environment Protection Authority (No2) (2002) 54 NSWLR 37 at [11]-[21] per Ipp A-JA; Inspector Childs v Paul Bortolo Serena [2011] NSWIRComm 32). The respondent, although conceding the absence of identification of the relevant omissions in the charges, submitted that the defect did not require remedy because the relevant omissions were adequately or sufficiently identified either in the accompanying affidavits or in the prosecution's opening in the proceedings below, or both; and, where there was a complete absence of identification of the omissions in any of the material, that the convictions nevertheless operated to cure the defect. [49] The accompanying affidavits in these proceedings contain information which identifies some of the omissions of the appellants ultimately described by the trial judge in the judgment on liability (the five measures). To this extent, the present charges fall into a different category from the Kirk charges in relation to which the High Court found that no acts or omissions had been identified, "at any point in the proceedings up to and including the passing of sentence, as constituting the offences ...": Kirk at [74] (it is unclear whether the High Court had before it the affidavit in support of the Application for Order in that matter although it was referred to during oral hearing). [50] The present affidavits do not refer to, or otherwise identify, the relevant omissions of the appellants with respect to particular (a) in the charges (the second measure found by Boland J) and particular (e) (the fifth measure found by Boland J). According to the respondent, the affidavits otherwise adequately identify, by implication, the relevant omissions of the appellants with respect to particulars (a) (the first measure), (c) and (d) (the third and fourth measures). 48The first particular in the charges considered by the High Court in Kirk was found by that Court to "simply combine(d) the words of s 15(2)(a), (c) and (f) with a reference to the ATV" (at [25]). [25] The statement of the offence against s 15(1) did little more than follow the words of that sub-section. The first three particulars provided of the offence simply combined the words of s 15(2)(a), (c) and (f) with a reference to the ATV. Likewise the first particular relating to the s 16(1) offence repeated the words of that sub-section and merely connected them to the operation of the ATV. Of the other two particulars provided to each charge, only that which alleged a failure to ensure that the ATV was operated by persons with appropriate training came close to any measure of specificity. 49Particular 1 of the Statement of Offence in this matter suffers from similar difficulties. Particular 1 does not reveal, on its face, the specific measures which the appellant should have taken. 50The term 'traffic and pedestrian management' is not a term of art or law. It does not provide, with any adequate or proper specificity, what measures should have been taken by the defendant. It is a global term which potentially contains several unspecified measures. Indeed, several measures were contemplated as arising from the ambit of the expression in the judgment by the trial judge although these were not particularised to the appellant during the trial. The concept of a 'traffic and pedestrian management system' envisages any number of measures that could have been taken, and that term is the lynchpin to understanding particular 1. That particular cannot be found to specify the particular measures required to be taken by the appellant to the degree specified in Kirk, and thereby an essential factual ingredient to the charge is omitted. 51The Full Bench in State of New South Wales (Department of Education and Training and Department of Juvenile Justice) v Cahill (No 2) NSWIRComm 33 is apposite in this respect. The Full Bench stated (at [99] to [101]): [99] The plurality seems to have regarded the measure to be taken to prevent a risk arising, as synonymous with the act or omission giving rise to the offence. Thus, if the charge was that an employer failed to ensure a guard was not removed from a machine, this might constitute an act or omission giving rise to an offence. Whilst the charge might not explicitly say that the measure the employer was required to take to prevent a risk arising was to ensure the guard was not removed, it is plainly implicit what the preventative measure was. [100] On the other hand, if the charge was that the employer failed to provide information, instruction and training as may be necessary to ensure the health and safety at work of its employees in relation to the operation of a machine (this is essentially the same as particular ii of the s 15 charge in Kirk : see Kirk at [22]), it is apparent from the plurality's decision in Kirk that such a formulation is to be regarded as deficient because it is not sufficiently specific in identifying the act or omission giving rise to the offence (that is, it is to be regarded as not providing the defendant with sufficient information as to the charge he is required to meet) nor is it sufficiently specific as to the measures the defendant should have taken to prevent the risk arising. In this latter respect, as it is made clear in Kirk , in order for a defendant to prepare a defence that it was not reasonably practicable to comply with the provision with which he has been charged, the defendant is entitled to know, in the example cited above, what information, instruction or training it is alleged he should have provided to avoid the identifiable risk: see Kirk at [28]. [101] It seems to us that if a particular of a charge is framed in terms of an employer failing to provide information, instruction and training as may be necessary to ensure the health and safety at work of its employees in relation to the operation of a machine that will not automatically render the charge invalid. This is because there may be other acts or omissions relied upon by the prosecutor that will support the charge: see The GEO Group Australia Pty Ltd (t/as Junee Correctional Centre) v WorkCover Authority of New South Wales [2011] NSWIRComm 14 at [53] and the cases referred to therein. However, putting that circumstance aside, in the light of Kirk it would seem, subject to what we later say, that a charge framed in the terms of our example represents a failure to identify an essential element of the offence, namely, the manner in which the offence is alleged to have occurred and would, therefore, be invalid: see Downey v Acting District Court Judge Boulton (No 5) [2010] NSWCA 240; (2010) 272 ALR 705 at [42] and the reference therein to John L at 520-521 per Mason CJ, Deane and Dawson JJ. 52In our view, particular 1 falls within the class described in para [100] of that judgment. At hearing, there was some discussion as to when a measure of the kind discussed in para [99] of Cahill was sufficiently stated as to meet the requisite standard in Kirk . For example, in the hearing a question arose as to whether a measure requiring spotters to regulate or assist with the reversing of a truck might require some specification of the nature, place and type of spotter. 53However, this issue does not squarely arise in this matter, as there was no statement as to the measure required to be taken. It may be observed, however, that in most cases the question will be answered by a straightforward assessment as to whether a defendant had been provided in a charge with particulars of the measures the defendant was required to take to eliminate or avoid risk. This may be aided, in appropriate cases, by some consideration being given to the nature of the charge, the overall content of the Statement of Offence and specific identification of the risk therein. 54It is not possible to detect in this matter the required measures by implication or inferences drawn from a consideration of the whole of the Statement of Offence. The failures stated in particulars 1 and 2 are co-extensive, as both rely upon the notion of a traffic and pedestrian management system. No implication as to the relevant acts or omissions constituting the contravention can be gleaned from particulars 1 and 2, when read together, any more than may be found by the reading of a single charge. For completeness, we mention that particular 4 was struck out by the trial judge. It does provide some further information as to the charge, but it again only provides particulars that specify a failure which is general in nature and does not, in itself, or when read with the other particulars, reveal (by inference or otherwise) what measures the appellant should have taken to avoid the risk. 55Thus, the Statement of Offence bears similar defects to that found in Lorenzo . The point of departure, however, concerns whether particularisation of requisite acts or omissions were given during the trial. There was not in this matter an identification or adequate statement by the respondent of the measures required to be taken (either as ultimately found by the trial judge or otherwise) at any stage during the course of the trial. 56The opening address of the prosecutor and the discussion during the opening illustrates the trial was commenced by the defendant on the basis of particular 1 (having a global range). The only identifiable measures introduced by the prosecutor were those already particularised: that of a traffic management plan and a risk assessment in relation to traffic and pedestrian management at the site prior to the incident, in particular, again with respect to line haul vehicles with trailers attached when reversing to the loading docks. We refer, for example, to the following elements of the opening (at 224-226 of the transcript of the proceedings) : 224-10 I expect you honour will have evidence before you in due course that the principal occupier of the premises, Star Track Express, did not have in place any systematic traffic management plan document. I expect your Honour will have before you in evidence, subject to objection that there was no traffic management plan. Indeed, I also expect your Honour will have evidence the defendant had not put in place a traffic management plan of its own in respect to line haul drivers from Unanderra, either prior to or at the time of the subject incident. I expect your Honour will have evidence before you in the absence of any systematic form of traffic control management, procedures were developed by the defendant's employees to deal with line haul movement to and from sites, more particularly movements relating to the reversing of vehicles within the sit on to the dock, as set use in the particulars of the charge. 225-15 In due course what the prosecution principally says is this: Given the nature of the processes that were involved in loading the trucks, the processes that were involved in the paper work that he was required to be done, the sealing of the vehicles and various other aspect of the preparation for the trip in fact, there was a requirement that from time to tome during procedures rather than be excluded from the area dock area where the loading occurred, the driver attended there as part of their normal duties and the absence of a formal system allowed that process to be developed to the point at which the matter comes before your honour. then 226-5 Hatcher We would appreciate it if the Prosecutor would be so kind as to identify exactly what the risk is that he says is the subject of the charge and how he says the defendant failed to implement measures to overcome that risk. I know my friend has attempted to do so in a shorthand fashion, his last observation to it seems to use we may be entitled to a little bit more detail. It doesn't flow directly from the particulars, as your honour will have seen, I think the way my friend has just characterised it may perhaps relate to the first particular provided in the charges. We're not complaining about that, we just ask for some assistance in just how it comes to be before the Court. then Cahill 226-5 The application for order as filed in the proceedings is particularised in terms the prosecution maintains the defendant failed to ensure that safe system of work, in relation to traffic and pedestrian management was provided of maintained at the premises and, in particular, for the line haul vehicles with trailers attached when reversing at the loading dock or the premises. The balance or particulars is also pressed. It is said that there was a failure on the part of Western Freight Management to conduct risk assessments in relation to traffic and pedestrian management at the site prior to the incident, in particular, again with respect to line haul vehicles with trailers attached when reversing to the loading docks. ... Then four, I would have thought, was self explanatory within the circumstances of the case. What is said about that is in line with the failure to ensure a safe system of work, that there was a failure to ensure that there was adequate separation maintained between moving vehicles, in this case it was the line of the vehicle driven by Mr Norman, and pedestrians, who on this particular occassion was the deceased, so that they were not in danger of being struck by the moving vehicle. 57The affidavit in support provides no further assistance to the respondent. It does not provide evidence of specific measures that the appellant should have taken so that it could defend the charge. 58As we earlier observed, the trial judge did find an identified risk. His Honour simply made findings as to measures which the appellant should have taken to avoid the risk to its employees. 59At para [134] in the s 28 defences section of the judgment, the trial judge says: [134] The submission for the defendant was that as the risk was so well known, there were no other effective measures the defendant could have put in place to ensure that Mr Lloyd would not have placed himself in the area to the rear of Mr Norman's trailer. The trial judge then proceeded to outline at least three measures that could have been taken to obviate the risk (at [135], [136] and [141]): [135] ...A proper traffic and pedestrian management plan provided and maintained by the defendant was one measure that could have been adopted and would have removed or minimised the risk. Within the plan the defendant could have ensured that reversing procedures were kept to the absolute minimum, and that any unnecessary reversing manoeuvres eliminated. [136]...where it was necessary for drivers to reverse, steps could have been taken to ensure that there were no pedestrians in the vicinity of the rear of the reversing trailer. This could have been achieved by a policy and practice of excluding employees who were not required to be located in the area, from being between the loading docks and the rear of the trailer [141] Although there was dispute on the evidence as to whether STE's policy of sounding the vehicle's horn and using a spotter was, in fact, implemented at the Waverley Drive depot after the incident and prior to the move to the new STE Wollongong depot, I am satisfied that the procedure outlined in the evidence was a step that would have significantly decreased, if not eliminated, the risk. 60None of those measures had been specified by the respondent during the trial as particulars of the charges, and emerged for the first time in the trial judgment. 61Particular 2 raises a different issue. That particular concerned the appellant undertaking a risk assessment which would have addressed the risk to the appellant's employees in the truck reversing area. It is conceivable that a charge laid under the Act which particularises a failure to undertake a risk assessment (in order to avoid an identifiable risk) may satisfy the requirement to state the measures a defendant is required to take (per the judgment in Kirk ). This outcome is less likely, however, where there is an absence of contextual support for those particulars from other particulars which identify the measures necessary to be taken to avoid a risk (against which previously an assessment is required to be given by a defendant). 62Here, that difficulty is exaggerated by particular 2 being specifically linked, by its terms, to the provisions of particular 1. In order to understand what measures the appellant is required to take pertaining to particular 2, it was necessary, in our view, for the respondent to have stated to the requisite degree the measures required to be taken to avoid risk in particular 1. This, as we have found, was not done and, hence, particular 2 ultimately bears the same defects as particular 1. 63Nothing further was said in the affidavit in support of the application for order or the respondent's opening as may have provided notice of the measures required to be taken by the respondent. 64Particular 3 was not relied upon by the respondent in its defence of the charges. 65The respondent's Notice of Contention sought to revive particular 4. We agree, in this respect, with the respondent that, whilst that particular did fall within the ambit of particular 1, it was not necessarily a duplication of the terms of the particular (as the trial judge found). Nonetheless, we do not consider the respondent's Contention may be granted. To allow a conviction on the basis of a revival of a particular would, in our view, constitute a clear miscarriage of justice. 66It is obvious that the respondent has not faced prosecution upon the basis of charges consisting of particular 4. In the absence of a retrial (which we do not consider, for reasons given below, should occur in this case), it would be an unfairness for particular 4 to be resurrected in order to sustain a conviction in circumstances where the remainder of the particulars were defective, and the trial did not proceed upon the foundation of the charge based on that particular. 67The rule which the respondent relied upon to bring the Notice of Contention was r 8.5. That rule is in the following terms. 8.5 Notice of contention (1) If the respondent: (a) wishes to contend that the de c ision below should be affirmed on grounds other than those relied on below, and (b) does not seek a discharge or variation of any part of that decision, the respondent need not file a cross-appeal, but may instead file notice of that contention stating, briefly but specifically, the grounds relied on in support of the contention. (2) The notice referred to in subrule (1) must be filed and served: (a) within 14 days after service on the respondent of the application commencing the appeal, or (b) within such further time as the Commission may allow. 68"Decision" is defined in the definitions of the rules at 1.4: "decision" includes any award, order, direction, contract determination or ruling. 69In a civil case, Penrith Whitewater Stadium v Lesvos Enterprises [2007] NSWCA 131, Basten JA dealt with the meaning of "decision" in this rule. He held, in the context of appeal proceedings, that the word "decision" in the rule meant orders of the Court below. It follows that a Notice of Contention would be the correct procedure for the respondent seeking to affirm the orders of the first instance decision such as a finding of guilty for an offence under s 8(1). 70However, that approach does not make appropriate the use of the notice in this matter. In order to sustain the conviction, particular 4 would, of itself, have needed to adequately state a measure or measures the appellant was required to take. We do not consider it did so to the requisite degree of specificity. 71Further, we have reservations as to whether a contention may be employed for the purposes contemplated by the respondent in this case. 72The order made by the trial judge was in the following terms (at [125]): [125] I have already found that particular 1 has been made out. I am satisfied that particular 4 is a duplication of particular 1. Accordingly, particular 4 is struck out. 73Whist it is unnecessary to finally resolve whether the respondent should have appropriately brought a cross appeal (which, on one view, may have been in any event affected by the provisions of s 5F of the Criminal Appeal Act 1912: see Rockdale Beef v Industrial Relations Commission of NSW (2007) 165 IR 7), we have doubts that the reversal of the interlocutory order to strike out particular 4 meets the terms of r 8.5(1)(a). The granting of the Notice of Contention would not have the effect of affirming the conviction below, per se , on alternate grounds. 74We note that the appellant contended that the charges were invalid because they did not state an identifiable risk. It is, however, unnecessary for us to further consider that matter (or the appellant's other grounds of appeal) because of the conclusion we have reached in this matter. 75The appellant also raised some matters in relation to measures it had raised in its defence that were rejected at first instance. Again, it is unnecessary to fully assess those matters in light of the conclusions we have reached. 76We have found that the particulars of the charges in trial at first instance did not disclose to the appellant the specific measures the defendant should have taken to obviate the risk. 77Here there has been a procedural unfairness. The trial judge fell into error when convicting the appellants of the offences in circumstances where the charges failed to plead, either expressly or by implication, the relevant acts or omissions. 78As this Court said in Lorenzo, the need for the provision of appropriate particulars has its roots in the requirements of procedural fairness. A defendant must be fairly informed of the charge it has to meet. Further, the structure of the Act requires that a defendant knows what measures it is alleged it did not take so that it could properly address available defences. 79In this matter, however, we have found no acts or omissions, or set of acts or omissions, necessary to specify the requisite contravention, were identified to the appellant at any point in the proceedings, up to the conviction judgment. Upon the statements of law in Kirk , this should result in the appeal being upheld and the convictions of the appellant quashed (along with the penalties imposed upon that conviction). 80We have had regard to the factors identified in Lorenzo as to whether orders should be made for a re-trial. We have concluded that there will be no re-trial. The Full Bench in Lorenzo decided to order a re-trial based upon a number of factors (at [87] to [89]) including: a) There the trial judge had found the particulars of each charge (except for one particular) to be proven beyond a reasonable doubt; b) That the prosecution's case would not differ in any significant respect in terms of evidence relied upon; c) That the trial judge had found that the offences were objectively serious; d) That there was not a significant delay between the offence and any further hearing, and e) That there was identification throughout the trial of the relevant acts or omissions. 81There are, however, significant differences in this matter with respect to each of the above, as follows: a) The offences were proven upon the basis of findings that the appellant had failed to take certain measures (to obviate or avoid an identified risk). These were not, however, measures which were at any relevant time identified to the appellant prior to conviction. Hence, the findings at trial that the offences were proven can offer no proper support for a re-trial; b) It is not a safe conclusion that the evidence in any further trial would be substantially the same as the trial below, particularly with respect to defences. In Lorenzo, because certain measures were identifiable to some degree on the evidence adduced at trial, it was considered likely a re-trial would result effectively in the same evidence being adduced. Here none of measures found by the trial judge were identified during the trial and, hence, no realistic conclusion can be reached that the same evidence might be adduced by the prosecution to establish specified measures or that fresh evidence might not be called by the defence in resistance to any amended charges; c) There would be significant delay between the incident which took place in December 2004 and a further hearing (now well over seven years later); and d) The failure by the prosecutor to address to the appellant the measures which were required to be taken constituted procedural unfairness of such gravity as to point against a re-trial. 82We accept this was an objectively serious offence concerning a death in the workplace. The gravity of a risk which led to a fatality is an important consideration, but factors relating to procedural fairness and the erroneous application of the Act outweigh, in this circumstance, that consideration. 83In Lorenzo , the Court determined there was a belated (unfair) identification of the measures the defendants should have taken. There was, however, a correlation between those measures, as specified, and those found by the trial judge, so a proper assessment could be made that the prosecutor would have reasonable prospects in a new trial. This was not the case here. There was no identification of measures which were found established by the trial judge so as to permit such an assessment. This factor also contributes to our conclusion against the granting of a re-trial. COSTS 84The original appeal was directed to the orders made by the trial judge in Matter No IRC 3457 of 2006 made on 20 November 2008 and 30 July 2009. The orders made on 30 July 2009 included an order as to costs in the following terms: 3. The defendant shall pay the costs of the prosecutor as agreed or assessed. Failing agreement, the matter shall be referred to the Registrar for assessment. 85Because of the pending decision in Kirk, by consent, these orders were stayed. 86On 23 February 2010, following the decision in Kirk , an amended Notice of Appeal was filed. In that appeal, orders were sought quashing the orders at first instance and for costs of the appeal. 87Given our decision to uphold the appeal and to quash the orders made at first instance, the costs order made below is set aside. 88We reserve the question of costs. We give the parties an opportunity to make submissions as to costs. The appellant shall have 14 days to make any such submissions in that respect, and the respondent a further 14 days in reply. ORDERS 89We make the following orders: 1. The appeal is upheld. 2. The conviction of Western Freight Management Pty Ltd ordered by Boland J in Matter No IRC 3547 of 2006 is quashed. 3. The penalties and costs ordered by Boland J in Matter No IRC 3547 of 2006 are quashed. 4. Costs are reserved. 5. The appellant shall file and serve any submission as to costs within 14 days of the date of this judgment and the respondent file any such submission within a further 14 days. ************ 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: 16 June 2011