Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector McGrath v Cooper [2011] NSWIRComm 142 Hearing dates: 30/06/2011 Decision date: 28 October 2011 Before: Backman J Decision: 1. The defendant's Notice of Motion filed on 15 April 2011 in relation to IRC 1052 and 1055 of 2010 is dismissed. 2. The prosecution's Notice of Motion filed on 9 June 2011 in relation to IRC 1052 of 2010 is granted. 3. Costs in relation to the applications of both parties are reserved. 4. The matters are set down for a directions hearing at 9.30am on Friday, 11 November 2011. Catchwords: OCCUPATIONAL HEALTH AND SAFETY - Occupational Health and Safety Act 2000 - two offences under s 9 of the Act - Notice of Motion filed by defendant seeking orders for further particulars to be provided by the prosecution - application dismissed - Notice of Motion filed by prosecution seeking leave to amend one of the charges - application granted - costs of both Notices of Motion reserved - matters set down for a directions hearing Legislation Cited: Criminal Procedure Act 1986 Industrial Relations Act 1996 Occupational Health and Safety Act 1983 Occupational Health and Safety Act 2000 Cases Cited: Doja v R [2009] NSWCCA 303; (2009) 198 A Crim R 349 Downey v Acting District Court Judge Boulton (No 5) [2010] NSWCA 240; (2010) 272 ALR 705 Gilmour v Midways Springwood Pty Ltd (1980) 3 A Crim R 196; (1980) 33 ALR 605 G.P.I (General) Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 157 Inspector Hamilton v John Holland Pty Ltd [2010] NSWIRComm 72; (2010) 194 IR 189 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; (2010) 202 IR 82 Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1; (2010) 239 CLR 531 Lodhi v The Queen [2006] NSWCCA 121; (2006) 199 FLR 303 Lorenzo and Santos v Inspector Peter Hayes [2011] NSWIRComm 54; (2011) 203 IR 454 Masterton Homes Pty Limited v WorkCover Authority of New South Wales (Inspector Batty) [2011] NSWIRComm 102 Mainbrace Constructions Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) [2000] NSWIRComm 239; (2000) 102 IR 84 McConnell Dowell Constructors (Aust) Pty Ltd v Environment Protection Authority (No 2) [2002] NSWCCA 24; (2002) 54 NSWLR 39 Morrison v Chevalley [2010] NSWIRComm 116; (2010) 198 IR 30 Regina v Lykouras [2005] NSWCCA 8 Rockdale Beef Pty Limited v Industrial Relations Commission of NSW and Anor [2007] NSWCA 128; (2007) 165 IR 7 Sims v Wran [1984] 1 NSWLR 317 Stanton v Abernathy (1990) 19 NSWLR 656 Surman v SA Police (1996) 65 SASR 421 Taylor v Environment Protection Authority [2000] NSWCCA 71; (2000) 50 NSWLR 48 Western Freight Management Pty Ltd v Inspector Patton [2011] NSWIRComm 68 Category: Principal judgment Parties: Inspector Cherie McGrath (Prosecutor) John Elmore Cooper (Defendant) Representation: Mr C Magee of counsel (Prosecutor) Mr K Bennett of counsel (Defendant) Criminal Law Practice Legal Group WorkCover Authority of New South Wales (Prosecutor) Bridgeford & Associates (Defendant) File Number(s): IRC 1052 of 2010 IRC 1055 of 2010 Judgment 1The defendant in relation to each matter filed a Notice of Motion dated 15 April 2011 seeking orders from the Court that the prosecutor provide further particulars of the charges. The prosecutor filed a Notice of Motion dated 9 June 2011 seeking the leave of the Court to amend the particulars of IRC 1052 of 2010 (charge 2052). Each party opposes the orders sought in their respective Notices of Motion. At this stage of the proceedings, no pleas have been entered to the charges by the defendant. 2I propose first to determine the defendant's Notice of Motion, which, for ease of reference, will be referred to as the "Particulars Motion". The prosecutor's Notice of Motion will be referred to as the "Amendment Motion". The Particulars Motion 3In earlier correspondence the defendant sought further particulars of the charges brought against him. According to the defendant, his requests for further particularisation were not met with a satisfactory response. According to the prosecution, the defendant was supplied with further particulars sufficient to permit him to understand the charges and prepare a defence. 4In order to properly consider the parties' respective submissions on the issue, it is necessary to refer in some detail to the charges and to some earlier correspondence which sets out the requests for further particulars and the responses to those requests. 5Both charges are brought against the defendant under s 9 of the Occupational Health and Safety Act 2000 (OHS Act). Charge 1052 alleges that on 22 September 2008, the defendant, a self-employed person, "by his acts or omissions particularised below" failed to ensure that certain named persons, not the defendant's employees, "were not exposed to risks to their health and safety arising from the conduct of his undertaking while they were at his place of work". Charge 1055 is similarly expressed except for two significant differences which are that the offence is alleged to have occurred on 23 September 2008 and the non-employees allegedly placed at risk on that day are not the same persons alleged to be at risk in the earlier charge. Other differences in the charges appear to be of minor significance, at least insofar as it can be ascertained at this early stage of the proceedings. 6The risk to safety alleged in each charge involves, broadly, a risk of falling approximately 2.9 metres, "while working on the construction of a mezzanine floor and internal offices on the mezzanine level" (charge 1052) and a risk of falling approximately 2.9 metres, "off or from a partially constructed mezzanine floor ..." (charge 1055). 7The further particulars sought in relation to both charges concern the measures which it is alleged the defendant "should have taken but failed to take". These measures, although differently expressed in each charge, appear under the same sub-heading, Particular G, in both charges. 8Particular G in charge 1052 alleges, relevantly: Measures the Defendant should have taken but failed to take G. The defendant should have taken but failed to take the following measures in order to ensure a safe system of work when working at heights, including: i. ... ii. installed or erected, at the leading edge of the mezzanine floor at the premises, secure perimeter screens, fencing, handrails or other forms of physical barriers capable of preventing falls from height from the mezzanine floor; iii. ensured compliance with his safe work method statement, namely 'Installation of Upper Floor Sheet Flooring for Joist Spacing up to 600mm', whilst constructing the floor of the mezzanine level by installing edge protection at the leading edge of the floor of the mezzanine level; iv. ensured compliance with his safe work method statement, namely 'Installation of Upper Floor Wall Frames' whilst erecting the wall frames for the offices on the mezzanine level by installing edge protection at the leading edge of the floor of the mezzanine level; v. ensured compliance with his safe work method statement, namely 'Working at heights', whilst work was being performed on or from the mezzanine level by installing edge protection at the leading edge of the floor of the mezzanine level; ... 9Particular G in charge 1055 alleges, relevantly: G. The defendant should have taken but failed to take the following measures in order to ensure a safe system of work when working at heights, including: i. ... ii. installed or erected, at the leading edge of the mezzanine floor at the premises, secure perimeter screens, fencing, handrails or other forms of physical barriers capable of preventing falls from height from the mezzanine floor; iii. ensured compliance with his safe work method statement, namely 'Working at heights' whilst work was being performed on or from the mezzanine level by installing edge protection at the leading edge of the floor of the mezzanine level; iv. erected barriers, fences or other forms of physical barriers capable of preventing the use of the staircases as a means of access to the mezzanine floor by persons who were not his employees, prior to temporary fall protection systems being put in place on the mezzanine level; ... 10By letter dated 22 February 2011, the defendant, for the second time, sought further particulars of Particular G(ii) (charge 1052) in the following terms: Regarding G(ii) - With precision, please state what is said to constitute: secure perimeter screens, fencing, handrails, forms of physical barriers? Regarding G(ii) - In referring to: perimeter screens, fencing, handrails, other forms of physical barriers state with precision the nature and type (including dimensions) of: secure perimeter screens, fencing, handrails, other forms of physical barriers it is said ought have been installed or erected on the leading edge of the mezzanine floor at the premises? 11The request for further particulars in relation to Particular G(ii) in charge 1055, although expressed in different terms, is in substance the same request and no distinction was sought to be drawn by the defendant between the two particulars as expressed in both charges for the purpose of the present applications. 12In relation to Particulars G(iii), (iv) and (v) in charge 1052, the letter of 22 February 2011 sought the following further particulars: Regarding G(iii) - We repeat our request of 16 January 2011, being: In the event that edge protection is alleged to be something different to that referred to in G(ii) in respect to the construction of the floor of the mezzanine level, please describe and identify with precision the type and nature of edge protection which is asserted ought have been installed at the leading edge of the mezzanine level? Regarding G(iv) - We repeat our request of 16 January 2011, being: In the event that edge protection is alleged to be something different to that referred to in G(ii) with respect to the erection of wall frames for the offices, please describe and identify with precision the type and nature of edge protection which it is asserted ought have been installed while erecting the wall frames? Regarding G(v) - We repeat our request of 16 January 2011, being: In the event that the edge protection is alleged to be something different to that referred to in G(ii) with respect to work being performed on or from the mezzanine level, please describe and identify with precision the type and nature of edge protection which it is asserted ought have been installed? 13In relation to charge 1055, the following further particulars of Particulars G(iii) and (iv) were sought in the letter of 22 February 2011: Regarding G(iii) - In the event that "edge protection" is alleged to be something different to that referred to in G(ii) with respect to the construction of the floor on the mezzanine levels, please identify and describe with precision the nature and type of edge protection which it is asserted ought have been installed? Regarding G(iv) - Please identify with precision what particular construction (including dimensions) it is said ought have constituted: barriers, fences, other forms of physical barriers which it is said is capable of preventing the use of the staircases as a means of access to the mezzanine floor by persons other than employees of the Defendant? 14The letter also sought to emphasise that the purpose of the request in relation to both charges was so that the defendant could, "understand the nature of the charge(s) in its component parts ...", and, "give content to the charge". The letter specifically referred to the particulars in relation to the installation and erection of secure perimeter screens, fencing, handrails, and "other forms of physical barriers" asserting that these items lacked content and accordingly the defendant, "does not know what constitutes each of these items, for example, their description, material content, and physical dimensions". Without this information, the defendant says it is not possible to properly consider and raise available defences, and that failure to provide the particulars sought would subject him in any proceedings to, "an administrative commission of inquiry contrary to law". 15The prosecution's replies to these requests were not considered helpful by the defendant. With regard to Particular G(ii) (both charges), the prosecution informed the defendant that, "the words have their ordinary and plain meaning". The term "physical barriers" was described as, "[A]ny form of physical barrier which is capable of preventing a fall of a person from heights". The defendant was also referred to clause 56 of the Occupational Health and Safety Regulation 2001 (2001 Regulation). In addition, the prosecutor's correspondence enclosed a copy of the WorkCover Code of Practice for safe working at heights. 16With regard to Particulars G(iii) (both charges), Particular G(iv) (charge 1052) and G(v) (charge 1052) (edge protection) the defendant was informed by the prosecutor that, "the particular speaks for itself". In relation to G(ii) (both charges) the prosecutor responded, "[I]t is not for the prosecutor to state the detail requesting the nature and type (including dimensions) of the full prevention devices that should have been installed". With regard to G(iv) (charge 1055) the defendant was again referred to clause 56 of the 2001 Regulation. 17At the hearing of the Particulars Motion, the defendant submitted that "fencing, handrails or other forms of physical barriers" were compendious terms and it was unclear whether the prosecutor was relying on whether the fence, for example, should have been constructed of steel, or wood, or what should have been the precise dimensions of the fence, or how it should have been "anchored". In addition, it was submitted that no detail had been provided to the defendant on the meaning of "other forms of physical barriers". A further problem identified by the defendant was said to arise from the word "installed". According to the defendant, he does not know what it means, for example, does it include an installation that is prefabricated? The term "secure perimeter screens" was also said to be too general because it is expressed in the plural, and, together with the term "other physical barriers", ambiguous, imprecise and latently duplicitous. According to the defendant, he is entitled to know the nature and type of "secure perimeter screens, fencing, etc ..." including, from what material the item should be constructed, and at what height. The prosecution, it was said, had an obligation to provide these particulars to enable the defendant to raise a defence and determine whether the time and costs required to have achieved these measures might be disproportionate to the risks alleged. 18The measures set out in Particular G(ii) (both charges) were said to be so broad as to be meaningless, devoid of content, latently duplicitous and unfair. Directing the defendant's attention to clause 56 of the 2001 Regulation was of no assistance, according to the defendant, because the clause merely provides a hierarchy of controls. Moreover, it contains no reference to "edge protection". 19The prosecution submitted that both charges conform to the requirements in Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531. Particular G(ii), it was said, has to be considered in the broader context, that is, of ensuring a safe system for working at heights. The measures set out in both charges, it was submitted, are precise. If the prosecution had not particularised "perimeter screens, handrails, fencing, etc" (as measures to be effected in order to avert the risk) it may have been arguable that the particular was not precise. According to the prosecution, what the defendant is seeking through the provision of particulars is the identification of the specific means through which the measures could have been achieved. The prosecution's obligation to furnish particulars extends to providing clear statements of the alleged omissions so that the defendant is made aware of the prosecution's case and whether a defence is available to the effect, for example, that it was not reasonably practicable to avoid the risk. The prosecution is not required to specify the means by which the measures alleged in a charge might be achieved. The onus is on the defendant to prove that it was not reasonably practicable for him to comply with the omission, or omissions, alleged in the charge. The defendant's request for further particulars, seeking the "nature and type (including dimensions)" (of screens, fences, handrails) is a request that the prosecution provide him with instruction as to what are the specific means through which the measures could have been achieved. The defendant's request that the prosecution, "identify with precision what particular construction (including dimensions) is said ought to have constituted the "barriers, fences, and other forms of physical barriers" (Particular G(iv) (charge 1055)) falls into the same category. The prosecution is not obliged to provide these details. Its obligation extends no further than providing particulars in the charges (and any further particulars) which sufficiently make known what it is alleged the defendant failed to do and should have done. 20In reply, the defendant contended that the prosecutor had misunderstood his case. The validity of the charges was not in contest. The defendant was simply seeking further and better particulars in order that he may understand the charges (and prepare a defence). The defendant, in this regard, placed reliance on Hunt J's judgment in Sims v Wran [1984] 1 NSWLR 317 in which his Honour referred to some of the principles underpinning a party's obligation to provide particulars. The defendant placed particular reliance on his Honour's formulation of one underlying rationale for the requirement to provide particulars (at 321), namely: It is not a question of whether one party has adequate knowledge of the actual facts; it is a question of whether he has adequate knowledge of what the other party alleges are the facts. 21In proceedings under the OHS Act 2000, the requirements that a charge contain adequate particulars of the acts or omissions alleged, and plead the measures to be taken to avoid the risk are well established. Recent authorities which have examined these requirements include the High Court judgment in Kirk at [14], [15], [27], [37], [38], [74]; 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 at [32]-[44]; Downey v Acting District Court Judge Boulton (No 5) [2010] NSWCA 240; (2010) 272 ALR 705; Lorenzo and Santos v Inspector Peter Hayes [2011] NSWIRComm 54; (2011) 203 IR 454 at [32]; Western Freight Management Pty Ltd v Inspector Patton [2011] NSWIRComm 68 at [8]; Masterton Homes Pty Limited v WorkCover Authority of New South Wales (Inspector Batty) [2011] NSWIRComm 102 at [14]-[18]. 22Here, as the defendant sought to emphasise, the validity of the charges is not in contest. Rather, it is the sufficiency of non-essential particulars that is in issue, that is, particulars not necessary to be pleaded in a charge which may be supplied outside of the pleadings in order to clarify matters in the pleadings so that a defendant is able to prepare his or her defence: Lorenzo and Santos at [54] citing Lodhi v The Queen [2006] NSWCCA 121; (2006) 199 FLR 303 at [104]; see also Taylor v Environment Protection Authority [2000] NSWCCA 71; (2000) 50 NSWLR 48 at [21]. 23In oral submissions, the defendant explained that the request for particulars arose (at least partly) out of a desire to avoid the difficulties encountered by the appellant in Masterton . 24In Masterton , a worker was injured when an unsecured steel beam resting on two brick piers was struck and dislodged from its position by a pack of timber frames being raised by a crane. The first particular of the charge (Particular 1) alleged that, "the defendant failed to adequately secure the beam in position". Numerous unsuccessful requests for further particulars necessitated a formal application to the Court prior to the hearing, at which the prosecution explained its intended case with regard to the unsecured beam in relation to the Particular 1, as "secure it in a way so that it would (sic) fall and perhaps even more particularly, fall on someone underneath it". The appellant was apparently satisfied with this response, having gained the impression that Particular 1 was confined to measures necessary to be taken to secure the beam in position on the brick piers. At the commencement of the summary hearing, however, the prosecution's case underwent a conceptual shift with regard to the Particular. In opening the case it became clear that Particular 1 was no longer confined to securing the beam in position on the brick piers, but included securing it by placing it on the ground. 25The Full Court (at [67], [68]) held that an additional measure had been introduced by the prosecution which had taken the appellant by surprise and placed it at a disadvantage in terms of raising a defence under s 28 of the OHS Act 2000. Its expert reports which had been served prior to the hearing had focussed on the impracticability of securing the beam in position on the piers. The late introduction of a new measure, over objection, was said to visit on unfairness on the appellant. The charge had not been amended to reflect the new allegation and the appellant had not been afforded the opportunity, given the late notification, to properly consider the new allegation and its impact on the defences it intended to raise (at [70]). Accordingly, the finding of guilt with regard to Particular 1 was held to be an error (at [89]). Otherwise, it was held in Masterton that the charge, as originally particularised, was sufficiently certain in its terms to satisfy the requirements for validity and to enable the appellant to meet the prosecution's case: at [68], [90]. 26Whether the same or similar problems may arise here cannot be predicted at this early stage of the proceedings. In my view, the measures about which complaint is made, as presently particularised, are sufficiently precise in their terms to enable the defendant to meet the prosecution's case and raise a defence. My reasons for this observation are discussed below. 27The measures alleged in both charges fall for consideration at this preliminary stage in the context of the charges as a whole ( John Holland (Court of Appeal) at [55] [56]; Masterton at [31]), as well as any other material made available to the Court on the applications. Material has been made available in the form of the initiating affidavits annexed to the defendant's motion. The charges concern events which took place over two consecutive days during which it is alleged that workers, nominated in the charges, were exposed to a risk of falling approximately 2.9 metres from a mezzanine level to the concrete floor below. The relevant omissions concern the defendant's alleged failure to ensure a safe system of work for workers working at heights. This central allegation, is the subject of further particularisation, including, in relation to Particular G, the failure to install or erect specified types of physical barriers "capable of preventing falls from height from the mezzanine floor", and, the failure to install, "edge protection at the leading edge of the floor of the mezzanine level". 28"Secure perimeter screens", as a measure not taken, nominated in Particular G(ii) is pleaded in the context of an above ground platform (the mezzanine level) which lacked any form of barrier or edge protection that might have prevented someone falling off the edge. It is sufficiently certain in its terms (and in the context in which it is pleaded) so that its meaning can be determined. It is a term sufficiently well known in the building and construction industry in which the defendant was engaged. It is also the subject of risk controls nominated in Clause 56 of the 2001 Regulation. The 2001 Regulation is specifically directed to employers, with particular emphasis upon the risks associated with working at heights. It came into force some ten years ago and is a well-known resource accessible to employers engaged in the type of industry in which the defendant was engaged at the time of the alleged offences. It provides: 56 Prevention of falls from heights-particular risk control measures (1) An employer must ensure that risks associated with falls from a height are controlled by use of the following measures: (a) provision and maintenance of: (i) a stable and securely fenced work platform (such as scaffolding or other form of portable work platform), or (ii) if compliance with subparagraph (i) is not reasonably practicable-secure perimeter screens, fencing, handrails or other forms of physical barriers that are capable of preventing the fall of a person, or (iii) if compliance with subparagraph (ii) is not reasonably practicable-other forms of physical restraints that are capable of arresting the fall of a person from a height of more than 2 metres, (b) provision of a safe means of movement between different levels at the place of work. (2) If a fall arrest device is provided for use by persons at work, the employer must ensure that: (a) all anchorage points for the device are inspected by a competent person before their first use and then on a regular basis so they are capable of supporting the design loads, and (b) if the load-bearing capacity of an anchorage point is impaired, the anchorage is immediately made inoperable so as to prevent its use, and (c) any harness, safety line or other component of the device that shows wear or weakness to the extent it may cause the device to fail is not used, and (d) all persons using the device have received training in the selection, assembly and use of the system, and (e) adequate provision is made for the rescue of a person whose fall is arrested by a fall arrest device. Maximum penalty: Level 4. 29The word "secure" may be given its ordinary dictionary meaning, that is: free from or not exposed to danger; safe; not liable to fall, yield, become displaced etc., as a support or fastening". (Macquarie Dictionary (2 nd Edn) (at p 1587). 30"Edge protection", according to the initiating affidavits, is the subject of the defendant's own safe work method statements (SWMS) prepared for the tasks of constructing the mezzanine platform floor and installing the upper floor sheet flooring and the wall frames on the mezzanine level while working at heights. According to the affidavit, the SWMS for the "Installation of Upper Floor Sheet Flooring for Joist Spacing up to 600 mm", for example, required that, "whilst constructing the floor of the mezzanine level the defendant should install edge protection at the leading edge of the floor of the mezzanine level". According to Particular G(iii) of Charge 2052, the defendant failed to ensure compliance with this SWMS (by failing to install edge protection at the leading edge of the floor of the mezzanine level). Particular G(iii) therefore, adopts in the same terms the requirements of the defendant's SWMS so there can be little doubt that the words "edge protection" as they appear in the charge have the same meaning as the words "edge protection" in the defendant's SWMS. 31"Fencing, handrails, or other forms of physical barriers" in the context of providing a capacity to prevent persons falling from heights are also terms well known within the building and construction industry. They are also the subject of particular risk control measures (for preventing falls from heights) set out in Clause 56 of the 2001 Regulation. The term "other forms of physical barriers" is directly referable to those barriers specifically nominated, namely secure perimeter screens, fencing and handrails. The term is also referable to the charge as a whole which alleges that the defendant failed to ensure a safe system of work for workers located on the mezzanine level which lacked any protection at its leading edges and thereby exposed workers to a risk of falling off the structure. The measures, which should have been achieved in order to obviate this risk, that is, secure perimeter screens, fencing, handrails and other forms of physical barriers, are set out in the charge so that the defendant is made aware of what he should have done, but did not, in order to obviate the risk. 32It is not incumbent upon the prosecution to provide additional details to the defendant with regard to the number of secure perimeter screens, the precise dimensions of the fences and handrails, the type of material from which a fence, handrail or other barrier should have been constructed or the method or type of installation, in order to have addressed the risk. These are matters which may form the subject matter of expert reports prepared on behalf of the defendant in order to discharge the onus on him that it was not reasonably practicable to have achieved the measures set out in the charges. 33Moreover, the additional details sought by the defendant constitute, in reality, the various means by which the measures alleged might, or could have been, effected or achieved. While a recitation of the measures in the charge alerts a defendant to the case he or she has to meet, the means by which those measures might be achieved is a matter for the defendant to prove on the balance of probabilities. The distinction between "means" and "measures", and their separate roles in a prosecution under the OHS Act 2000 was referred to in Morrison v Chevalley [2010] NSWIRComm 116; (2010) 198 IR 30 where the Full Court said (at [134], [135]): [134] The above analysis of the role of particulars also exposes a further flaw in the submissions for the defendants. The argument in this Court, regrettably, was largely conducted on a theoretical level without the necessary detailed analysis of the content of the statement of charge. This approach was further bedevilled by the defendants confusing the requirement to specify the measures to be taken by the corporation and the director with the means by which the corporation and the director might address the identified measures that should have been taken. This confusion is conveniently demonstrated by reference to the particulars provided in relation to allegation A in each Application for Order. In relation to particular A, the prosecutor alleged that the haul road at the mine was unsafe because (i) there was an inadequate continuous berm or other measure along the side of the road that, by inference, would prevent a coal truck from being able to fall over the edge of the road, and, (ii) the design of the haul road was unsafe because of its grade at the point where it turned and because of the absence of a berm or adequate berm that, by inference, prevented a coal truck from going over the edge of the mine road. These particulars inform the defendants, and in a way required by Kirk , that they failed to take these measures, namely, of having a continuous berm of sufficient type and a road design that could stop a coal truck from going over the edge of the road. This was the failure of the corporation and the director. So specified, the director is able to address his statutory defences by being informed of these measures that he and the corporation should have taken. [135] The defendants, however, submit that the decision of the High Court in Kirk requires that the directors, in these cases, also be informed of what means they should have adopted to address the measures that were not taken by the corporation. This approach would require the prosecutor to instruct the directors as to which safety body he may have directed instructions to or to specify what provider of services he may have engaged to ensure that there was an adequate berm or road design that prevented coal trucks from running off the steep mine road. This approach misunderstands the structure and proper construction of s 26 as already discussed. Section 26 is concerned with the contravention of a corporation. When there is shown to be such a contravention, each director (or person concerned in the management of the corporation) "'is taken to have contravened 'the same' provision unless one of the defences specified in [a] or [b] is made out. Both defences are drawn by reference to the 'contravention' by the corporation - not by reference to some other conduct or omission of the directors. If the corporation failed to have a berm of sufficient size to prevent a coal truck from running off the mine road, then that is the measure that the defendant directors failed to take. This particular satisfies the Kirk requirements. Just as the prosecutor is not obliged to instruct the corporation of the method or entity by which such a berm might or should have been constructed, neither is the prosecutor obliged to inform the directors of such methods or entities. The directors answer may be that such a berm could not have been safely erected or erected at all for geological and/or engineering reasons but that possibility does not detract from or render invalid the particularisation provided by the prosecutor in these matters - those possible difficulties (if they arise) are matters for the trial. 34The distinction was also adverted to by the Full Court in Masterton (at [59]: [59] The CIM was also correct to point out during the hearing of the preliminary application that the "means" or "method" which might be adopted for securing the beam were not matters upon which the respondent bore an onus. That being so, there was no requirement upon the respondent to particularise in the CAN the means through which the measure or measures could or might be achieved. The respondent was required to provide sufficient information in the charge so that the appellant knew what it was it had failed to do and should have done: John Holland (Court of Appeal) at [140] per Giles JA. This general proposition does not foreclose the possibility that there may be circumstances arising out of the nature of the evidence or the conduct of the proceedings where fairness demands that a defendant be provided with further particulars: see by way of analogy Environment Protection Authority v Sydney Water Corporation Limited (1997) 98 A Crim R 481 at 484 per Gleeson CJ. 35These authorities demonstrate that the prosecution was not required to inform the defendant of the type of material required for the construction of screens, fences, handrails and other physical barriers, or their precise dimensions, or how they should be erected or installed, in order to address the risk that workers could fall off, or from, the unguarded edges of the mezzanine level. Matters such as the nature and type of construction, dimensions, means of erection and installation, may assume relevance and form the subject of expert investigation by the defendant should the defendant choose to raise a defence. 36Based on the material provided in the initiating affidavits, it is not the prosecution's case that an inadequate barrier was installed at the leading edge of the mezzanine level which was not of a sufficiently strong construction or of sufficient dimensions to avoid the exposure of workers on the mezzanine level to a risk of falling. The prosecution's case is that no barrier of any type was installed or erected there. If the material in the initiating affidavits does not properly reflect the prosecution's intended case the Court may order that further particulars be supplied, as a matter of fairness, (with possible attendant consequences which may, or may not, impact adversely on the prosecution's case). 37For the above reasons the defendant's Notice of Motion is dismissed. The Amendment Motion 38I turn now to deal with the prosecution's application to amend charge 1052. 39The application seeks to amend Particulars H and I of charge 1052. The charge in its original form pleads that the defendant, a self-employed person, "failed to by his acts or omissions, particularised below, ensure that people (other than the defendant's employees) ... were not exposed to risks to their health or safety arising from the conduct of his undertaking while they were at his place of work contrary to section 9 of the Act .... ... Particulars of the Defendant's failings in relation to information, instruction and training H. The defendant failed to provide adequate information and instruction to persons who were not his employees necessary to ensure their health and safety whilst undertaking work at heights on the mezzanine floor at the premises. Measures the Defendant should have taken and failed to take I. The defendant should have taken but failed to take the following measures in order to ensure adequate information and instruction was given to persons who were not his employees in relation to working at heights, including: i. supervised persons who were not his employees undertaking work in relation to the construction of the new trade retail facility at the premises to ensure that they did not work on or from the mezzanine level whilst there was no fall arrest or fall prevention system in place at the premises; ...". 40The amendments sought to both Particulars seek, in effect, to substitute the words "information, instruction and training", and, "information and instruction" where they appear in the Particulars for the word "supervision". The purpose of the proposed amendments, the prosecution explained, was to correct a clerical error, or a misstatement, in the original charge, which should have alleged "supervision" in lieu of "information and instruction". The fact of the clerical error was said to be demonstrated by reference to the measure particularised in Particular I(i) which refers to "supervised persons". Because the original charge contains a misstatement it may be amended by recourse to the curative provisions under the Criminal Procedure Act 1986 (CPA 1986), namely, ss 16, 20 and 21, or, under s 170 of the Industrial Relations Act 1996 (IRA 1996), provided that the Court consider the amendments to be necessary in the interests of justice. 41During the hearing of the application, counsel for the prosecution, Mr Magee, submitted that the amendments sought would not change the nature of the offence charged under s 9 of the OHS Act 2000. Rather, what is being sought is an amendment to, "a particular of the measures or the acts or omissions". The essential legal elements of the offence are properly pleaded and no amendment is sought to be made to those legal elements. 42In opposing the proposed amendments, counsel for the defendant, Mr Bennett, submitted that what the prosecution was attempting to do was delete one charge and substitute it with another, a course not permissible because the limitations period under s 107(1) of the OHS Act 2000, within which time such an amendment may otherwise be made, has expired. The defendant also described the original charge as containing a misstatement and submitted that the prosecution, by the proposed amendments, was attempting to substitute, "one measure (for) another measure" which cannot be done because the measure sought to be substituted is a "legal element". Accordingly, in reliance upon Gilmour v Midways Springwood Pty Ltd (1980) 3 A Crim R 196; (1980) 33 ALR 605 per Brennan J and Surman v SA Police (1996) 65 SASR 421 per Bollen J, the amendment if granted, would cause an injustice because it would result in a new charge which is outside the time limit. 43It was also submitted by the defendant that the amendments here sought, which would have the effect of replacing one charge with another charge, could not be characterised as "technical" amendments. This submission was based on observations made by Basten JA in Rockdale Beef Pty Limited v Industrial Relations Commission of NSW and Anor [2007] NSWCA 128; (2007) 165 IR 7, at [125] where his Honour, in adopting the words of Gleeson CJ (with regard to "technical validity") in Stanton v Abernathy (1990) 19 NSWLR 656 at 667 found that a charge under s 10 of the Occupational Health and Safety Act 1983 (OHS Act 1983) failed to allege an "essential legal element", namely that relevant plant was controlled "in the course of a trade, business or other undertaking" but, "did not involve a fundamental issue, going to the fairness of the prosecutor, and should better be described as a complaint, 'at the level of technical validity'". This was because the charge otherwise stated that the relevant plant was "used by people at work", and "was in the control of the defendant". There was, therefore, "little substance in the complaint that it was not alleged to be controlled in the course of a trade, business or other undertaking". 44It is unnecessary for the Court to explore whether or not the proposed amendments deal in effect, with a complaint made "at the level of technical validity". For reasons which follow it is my view that the amendments, if made, would not result in a new charge, or the replacement of one legal element with another legal element. 45The charge, as originally drafted, attempts to conform as closely as possible to the requirements in Kirk that a charge under s 15 of the OHS Act 1983 (now s 8(1) of the OHS Act 2000) must identify with sufficient precision the acts or omissions of an employer said to constitute a contravention of the Act. The requirements for a valid charge set down in Kirk were summarised by the Full Bench in Lorenzo and Santos at [31] to [34] as follows: [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): Chevalley at [41]. This construction was also consistent with findings in John Holland (Court of Appeal) at [55] and [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]; Chevalley at [55(f)]. [33] It was held by the majority in Kirk that charges under ss 15(1) and 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); 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: Chevalley at [104]. 46The acts or omissions and the measures not taken, pleaded in a charge under the occupational health and safety legislation which includes s 9 of the OHS Act 2000, have been described as essential factual ingredients, not legal elements: Masterton at [18]. The distinction between these two types of elements or ingredients, both of which must be pleaded in a charge, continues to be maintained by recent authorities. This is because maintaining the distinction is important, if only for the reason that depending upon what category a particular allegation in a charge falls, the attendant consequences may be different. The distinction was touched upon in Lorenzo and Santos at [63] [64] where the Full Court said: [63] Kirk did not decide that the acts or omissions of the corporate defendant, causing the risk, were legal elements of the offence: Chevalley at [56(b)]; Taylor v EPA; McConnell Dowell v EPA and Childs v Serena . The Full Court in John Holland held that the acts or omissions of the corporate defendant were not legal elements (at [67]), but added that it mattered not whether those acts or omissions were to be properly characterised as legal elements or essential factual ingredients since both were required to be pleaded in a charge: Chevalley at [73]. [64] The distinction, however, has relevance to the issue as to whether the failure to state essential elements in a charge is curable and, if so, the relevant statutory provisions which may be available to cure the defect. If the relevant acts or omissions may be characterised, as we have done, as essential factual ingredients, this has the consequence that the charges although defective are capable of amendment under s 170 of the IR Act: John Holland at [72] to [74], citing with approval John L at 521-522 and Stanton v Abernathy at 667. However, neither s 16(2) of the CPA or s 170 of the IR Act will obviate the need to observe procedural fairness or cure any failure in that respect: Stanton v Abernathy at 667, 669 to 671; DPP v Esso Australia Pty Ltd [2001] VSC 103 at [24] and [25]. 47The failure to plead, or plead inadequately, in a charge the acts or omissions, or measures not taken does not necessarily, or inevitably, render the charge invalid. Much depends upon the stage of the proceedings at which the issue arises. There is support for these propositions in the majority judgment in Kirk at [30] and [74]. The position was explained in Masterton at [32]-[34]: [32] In Kirk (at [74]) the majority found that the Court at first instance had fallen into jurisdictional error because it had misconstrued s 15 of the OHS Act 1983 which led it to make orders convicting and sentencing Mr Kirk and his company, "where it had no power to do so". The majority continued at [74] and [75]: 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. The explanation just offered also demonstrates that the error made by the Industrial Court was not only an error about the limits of its functions or powers. It was an error which led to it making orders convicting Mr Kirk and the Kirk company where it had no power to do so. The Industrial Court had no power to do that because an offence against the OH&S Act had not been proved. It follows that the Industrial Court made orders beyond its powers to make. [33] There are indications in the majority judgment that the defective charges would have been curable had appropriate particulars been provided at some stage during the course of the proceedings, but before those proceedings were finally determined. In the majority judgment at [30], for example, appears the following passage: However, it may be said that the matter should not have proceeded without further particularisation of the acts and omissions said to found the charges. Without that particularisation, the Industrial Court would be placed in the position to which Evatt J referred in Johnson v Miller where it would act as "an administrative commission of inquiry" rather than undertake a judicial function. [34] To similar effect is the finding in Kirk at [74], cited above, that the Court at first instance had no power to convict and sentence Mr Kirk or his company, "because no particular act or omission ... was identified at any point in the proceedings, up to and including the passing of sentence": (see also John Holland (Court of Appeal) per Spigelman CJ at [41]-[45]). 48It follows from the foregoing observations that a charge otherwise defective by reason of a failure to plead, or to adequately plead, an act or omission, or measure, may be amended if an application is made at an appropriate stage of the proceedings, that is, prior to conviction (see also John Holland ) (Court of Appeal) per Spigelman CJ at [41]-[45]). A charge which fails to plead a legal element otherwise not capable of remedy on the basis of, for example, technical error (in the sense referred to in Rockdale Beef at [125]), or otherwise not capable of being implied by reference to other allegations in the charge ( Doja v R [2009] NSWCCA 303; (2009) 198 A Crim R 349 at [33] per Spigelman CJ) may not be saved by recourse to a curative provision. In the same circumstances described above, the charge may not be amended outside a limitation period to cure the defect by substituting one legal element for another legal element, where the amendment, if made, would result in a different offence: Gilmour v Midways at 608; Surnam v SA Police at 427. 49The issue which now arises is the identification of the legal elements of an offence under s 9 of the OHS Act 2000. A second and related issue concerns the identification of the relevant omissions and measures that should have been taken as alleged in the charge, as distinct from the legal elements. 50In Mainbrace Constructions Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) [2000] NSWIRComm 239; (2000) 102 IR 84 at [12], the Full Court identified the legal elements of an offence under s 8(2) of the OHS Act 2000, a provision in identical terms to s 9 except for one difference which is that the former provision is directed to employers and the latter provision is directed to self-employed persons. Those elements are: 1. The defendant was an employer; 2. there were persons not employees exposed to risks to their health or safety; 3. the risk arose from the conduct of the defendant's undertaking; and 4. the exposure to risk was at the defendant's place of work. 51Section 9 of the OHS Act 2000 (in force prior to 7 June 2011) provides: A self-employed person must ensure that people (other than the employees of the person) are not exposed to risks to their health or safety arising from the conduct of the person's undertaking while they are at the person's place of work. 52The legal elements of an offence under s 9 are: 1. The defendant was a self-employed person; 2. there were persons not employees exposed to risks to their health and safety; 3. the risk arose from the conduct of the defendant's undertaking; 4. the exposure to risk was at the defendant's place of work. 53As the paragraphs immediately above indicate, the legal elements of an offence may be found in the words of the statutory offence. This proposition was emphasised in McConnell Dowell Constructors (Aust) Pty Ltd v Environment Protection Authority (No 2) [2002] NSWCCA 24; (2002) 54 NSWLR 39 by Ipp A-JA where his Honour said at [13]-[16]: [13] The authorities do not provide a test for identifying and differentiating between the legal elements and the essential factual ingredients of an offence. It is generally accepted, however, that the legal elements consist of the matters that, as a matter of law, must be established for the offence to be made out; and the essential factual ingredients concern the time, place and manner in which the offence was committed. But putting the difference in this way does not necessarily help in the differentiation process. [14] I think it helpful to note that the purpose of the rule that requires the legal elements of the law to be pleaded in a charge is to require the prosecution to satisfy the court that it has jurisdiction to entertain the criminal proceedings initiated by the charge: Ex parte Lovell; Re Buckley (1938) 38 SR (NSW) 153; 55 WN (NSW) 63. If the charge does not allege an offence known to the law, the court has no jurisdiction and the charge must be struck out. [15] The legal elements of a particular offence will ordinarily be constant. In this way the legal elements differ from the essential factual ingredients. The main purpose of the rule that requires the essential factual ingredients of an offence to be provided is to inform the defendant of the case he or she has to meet: Stanton v Abernathy (1990) 19 NSWLR 656. Thus, the legal elements of the one charge may be proved in more than one way - by differing sets of essential factual ingredients. [16] This case concerns a statutory offence. The elements of a statutory offence must be discerned from the relevant statutory provisions. In the present instance, these are s 16(1) and s (7) of the Clean Waters Act . Section 16(1) provides: "A person shall not pollute any waters". Section 16(7) provides that any person who contravenes the provisions of s 16 is guilty of an offence under the Environmental Offences and Penalties Act . 54The observations of Ipp A-JA with regard to the elements of a statutory offence are consistent with the requirements for the institution of proceedings for offences under the OHS Act 2000. Those requirements may be found in s 246(2) of the CPA which provides that "an application for an order" (a charge), "must be in accordance with the Rules". The relevant rule for present purposes is Rule 16.1 of the Industrial Relations Commission Rules 2009 (the 2009 Rules). Rule 16.1 provides: 16.1 Form of application for order for defendant's appearance (1) An application for an order under section 246 of the Criminal Procedure Act 1986 must state the following: (a) the name and address of the person by whom the proceedings are brought ( the prosecutor ), (b) the capacity in which the prosecutor is taking the proceedings, (c) the name and address of the person against whom the proceedings are brought ( the defendant ), (d) the statutory provision (Act and section) under which the defendant is alleged to have committed an offence, (e) the nature of the alleged offence. 55The "nature of the alleged offence" in Rule 16.1(e) refers to the legal elements of an offence: Inspector Hamilton v John Holland Pty Ltd [2010] NSWIRComm 72; (2010) 194 IR 189 at [37(e)]; Lorenzo and Santos at [35]. Section 11 of the CPA allows for the description of an offence to be made in the words of an Act creating the offence. It follows ( Lorenzo and Santos at [36]) that if the present charge brought under s 9 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 it otherwise admitting no uncertainty or ambiguity: Rockdale Beef at [131]). 56Applying these matters to charge 1052, it may be seen that it pleads all the legal elements of an offence under s 9, and the Particulars which follow identify the omissions and measures which purport to describe how, or in what manner, the defendant is alleged to have failed to ensure that persons not his employees were not exposed to risks to their health or safety. So described, the subject matter of Particulars F, G, H and I falls into the category of essential factual ingredients which must be pleaded in a charge, but which may be amended at any time, up to the stage of conviction, if it is in the interests of justice: Masterton at [18] (with regard to the former proposition). 57According to the defendant, to allow the amendments would be to substantially change the nature of the case and amount to the bringing of a different charge. The defendant did not develop this submission further except to place relevance on the general proposition acknowledged in G.P.I. (General) Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 157 at [36] per Hodgson JA, that, "an amendment can be granted, at least unless it were to substantially change the nature of the case ...". 58Although the proposition cannot be doubted, it is difficult to see at this stage of the proceedings how the proposed amendments could have this result. The charge concerns workers who were exposed to the risk of falling from the edge of the mezzanine level because of the absence of any fall protection in the form of various nominated barriers. The only material the Court has recourse to at this stage of the proceedings is the charge and the initiating affidavit. The affidavit asserts that the project manager for the construction project at the premises was responsible for the supervision of tradespeople, "including the provision of information and instruction". Not uncommonly in occupational heath and safety prosecutions, the concepts of supervision, instruction and information are interrelated, that is, information and instruction form integral parts of supervision. The material in the affidavit suggests this to be the case. 59In my view, it is in the interests of justice under s 170 of the IRA to allow the amendments. There can be no relevant unfairness or prejudice visited upon the defendant if the amendments are made. The defendant will not be deprived of the opportunity to meet the new allegations. The proceedings are at an early stage and the defendant has yet to enter a plea to each charge: G.P.I. at [80] per Basten JA; see also Regina v Lykouras [2005] NSWCCA 8 at [22] per Howie J (with whom Sully and Hidden JJ agreed). 60The amendments will, of course, take effect as at the date the charge was filed, in accordance with the ordinary rule: G.P.I. at [37]. 61The Court makes the following orders: 1. The defendant's Notice of Motion filed on 15 April 2011 in relation to IRC 1052 and 1055 of 2010 is dismissed. 2. The prosecution's Notice of Motion filed on 9 June 2011 in relation to IRC 1052 of 2010 is granted. 3. Costs in relation to the applications of both parties are reserved. 4. The matters are set down for a directions hearing at 9.30am on Friday, 11 November 2011. 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: 28 October 2011