Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Walker v Roads and Maritime Services [2012] NSWIRComm 105 Hearing dates: 30 May 2012 Decision date: 14 September 2012 Jurisdiction: Industrial Court of NSW Before: Boland J, President; Walton J, Vice-President; Haylen J Decision: The Full Bench declines to answer the question referred under s 5AE and returns the matter to the trial judge for disposal. Catchwords: OCCUPATIONAL HEALTH AND SAFETY - prosecution under s 10(1) of the Occupational Health and Safety Act 2000 - question of law referred by trial judge pursuant to s 5AE of the Criminal Appeal Act 1912 by virtue of the Industrial Relations Act 1996 - question concerned the validity of the charge - issue as to whether the particulars of the charge in the application for order established the elements of an offence under s 10(1) - issue between the parties as to the correct construction of s 10(1) - submission of prosecutor that charge was valid upon either construction advanced - on one view particulars met the defendant's construction of s 10(1) - in any event no adequate factual basis for resolution of the question - question in substance hypothetical - Full Bench declines to answer the question - matter returned to the trial judge for disposal Legislation Cited: Criminal Appeal Act 1912 Industrial Relations Act 1996 Occupational Health and Safety Act 1983 Occupational Health and Safety Act 2000 Occupational Health and Safety Regulation 2001 Cases Cited: Brayson Motors Proprietary Limited (In Liquidation) v The Commissioner of Taxation for the Commonwealth of Australia [1984-1985] 156 CLR 651 Bros Bins Systems Pty Ltd v Inspector Ching [2006] NSWIRComm 287 Collins v State Rail Authority NSW (1986) 5 NSWLR 209 Deputy Federal Commissioner of Taxation for the State of South Australia v Ellis & Clark Limited [1934] 52 CLR 85 Environment Protection Authority v Land and Environment Court (NSW) and anor [2004] NSWCA 50; (2004) 144 A Crim R 198 G.P.I. (General) Pty Ltd v Industrial Court of NSW [2011] NSWCA 157 Glover v McDougall [1976] 2 NSWLR 359 Inspector Childs v State of New South Wales (Department of Services, Technology and Administration) [2009] NSWIRComm 202 Inspector Dall v Brambles Australia [2006] NSWIRComm 213 Inspector Nikolovski v Northpac Constructions Pty Ltd [2009] NSWIRComm 204 Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 Mailer v Austin Rover Group p/c [1989] 2 All ER 1087 Master of Education Services Pty Ltd v Ketchell [2008] HCA 38 McGrath v GPI (General) Pty Limited [2009] NSWIRComm 194 McMillan, Britton & Kell v WorkCover Authority (1999) 89 IR 464 Regan v Bulga Underground Operations Pty Ltd [2012] NSWIRComm 19 Rockdale Beef Pty Ltd v Industrial Relations Commission of NSW [2007] NSWCA 128; (2007) 165 IR 7 Category: Principal judgment Parties: Inspector Joanne Walker (Prosecutor) Roads and Maritime Services (Defendant) Representation: P R McDonald SC with C T Magee of counsel (Prosecutor) J V Agius SC with W Thompson of counsel (Defendant) WorkCover Authority of New South Wales (Prosecutor) Sparke Helmore Lawyers (Defendant) File Number(s): IRC 812 of 2011 Judgment 1These proceedings come before this Full Bench as a question of law submitted for determination by Backman J pursuant to s 5AE of the Criminal Appeal Act 1912 by virtue of s 196 of the Industrial Relations Act 1996. The question of law submitted for reference raised for consideration the validity of charges laid against Roads and Maritime Services (formerly known as the Roads and Traffic Authority) ("the defendant"), under the Occupational Health and Safety Act 2000 ("the Act"). The question of law was in the following terms: Can the particulars of the charge contained in the Application for Order, if proved, establish the elements of an offence under s 10(1) of the Occupational Health and Safety Act 2000? 2The question was referred with a document prepared by the parties entitled "Statement of Facts for Reference to Full Bench". The circumstances of this stated case are, however, unusual, given a notation contained on the statement of facts which was in the following terms: The statement of facts has been prepared for the purposes of the reference to the Full Bench of questions of law and cannot be used for any other purpose. It is not taken to be admissions of fact by any party. Background 3Before addressing the question of law, some background is necessary. On 7 June 2011, Inspector Joanne Walker ("the prosecutor"), an Inspector of the WorkCover Authority of New South Wales authorised by s 106(1)(c) of the Act to institute proceedings, filed an application for order in Matter No IRC 812 of 2011. The application was accompanied by an affidavit in support. 4The prosecution arose following an incident on 10 June 2009 in which a prime mover collided with a Roads and Maritime Services vehicle on the F3 Freeway resulting in the death of one worker and the injury of four others. 5The application alleged that, contrary to s 10(1) of the Act, the defendant failed to ensure that premises being used as a place of work were safe and without risks to health to people who were not in the defendant's employment. 6Section 10(1) of the Act is in the following terms: 10 Duties of controllers of work premises, plant or substances (1) A person who has control of premises used by people as a place of work must ensure that the premises are safe and without risks to health. 7"The premises" referred to in the charge was particularised as being the eastern shoulder of the F3 Freeway at Warnervale, New South Wales. 8The relevant risk, as particularised in the charge, was the risk of injury to persons performing vegetation control and litter collection and/or persons situated in vehicles at the premises of being struck by a vehicle using the F3 Freeway as a public road. 9On 1 February 2012, the defendant filed a Notice of Motion seeking to have the application for order declared bad and contrary to law on the ground that the particulars of the charge failed to satisfy the elements of an offence pursuant to s 10(1) of the Act. In the alternative, the Notice of Motion sought to have the application for order dismissed on the grounds that it did not identify and/or particularise and offence pursuant to that section. 10The issue raised in the Notice of Motion went to the construction of s 10(1) and, in particular, to the nature and extent of the duty created by that provision. The essence of the defendant's position was that the particulars of the charge against it related to risks arising from the organisation and performance of work at the premises on the day of the incident, rather than the control of the premises pursuant to s 10(1). 11On 13 April 2012, the question of law was referred for consideration by the Full Bench at the request of the prosecutor (although it was the defendant who initially made the request) in the terms set out above. The charge 12As mentioned above, the defendant was charged with one breach of s 10(1) of the Act. The charge was set out in the application for order in the following terms: I, INSPECTOR JOANNE WALKER 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 ("the Act") and empowered under Section 106(1)(c) of the Act to institute proceedings in the within matter allege that on 10 June 2009 on the eastern shoulder of the southbound lane of the F3 Freeway at Warnervale, in the State of New South Wales ("the premises"), the Roads and Traffic Authority of New South Wales ("the RTA"), a body corporate constituted pursuant to section 46 of the Transport Administration Act 1988, whose address is situated at Level 9, 101 Miller Street, North Sydney, in the State of New South Wales, having had control or limited control in the course of its trade, business or other undertaking of the premises which was being used as a place of work, FAILED TO by its act or omissions as particularised below, ensure that the premises were safe and without risks to health to people who were not in the RTA's employment, and in particular, Mr Steven Eliot, Mr Michael Carr, Mr Glen Craig, Mr Alan Thomas and Mr Barry Stent, contrary to section 10(1) of the Occupational Health and Safety Act 2000. 13The particulars of the charge were specified as follows: The particulars of the charge are that: a) The 'work' referred to in the particulars involved the performance of maintenance work, including vegetation control and litter collection, on the eastern shoulder of the F3 Freeway at Warnervale, New South Wales. b) At all material times the RTA had control, or alternatively, only limited control of the premises. c) At all material times persons not employed by the RTA, and in particular, Mr Steven Eliot, Mr Michael Carr, Mr Glen Craig, Mr Alan Thomas and Mr Barry Stent, used the premises as a place of work. d) At all material times the premises were not used only by employees of the RTA. e) At all material times the premises were not occupied only as a private dwelling. f) At all material times the premises were controlled by the RTA in the course of its trade, business or other undertaking. g) At all material times the RTA exerted its control of the premises by reason of it undertaking maintenance work, including vegetation control and litter collection, on the F3 Freeway and its ability to control traffic use on the F3 Freeway in connection with such work. The particulars of the risk are that: h) The 'risk' was the risk of injury to persons performing vegetation control and litter collection work and/or persons situated in vehicles on the eastern shoulder of the F3 Freeway, by being struck by a vehicle using the F3 Freeway as a public road. The particulars of the acts and omissions in failing to eliminate the risk are: i) The RTA failed to undertake an adequate risk assessment in relation to the maintenance work to be performed on the F3 Freeway, so as to ensure that the premises were safe and without risk to health, and in particular, the RTA failed to identify the risks associated with undertaking the task of vegetation control and litter collection work adjacent to high speed, high volume traffic on the F3 Freeway and determine how the risk could be eliminated or controlled. j) The RTA failed to conduct work in accordance with the RTA Traffic Control at Work Sites Manual, and in particular it failed to: i. Ensure that safe clearances were maintained between workers and passing traffic; ii. Reduce the speed limit of passing traffic on the Freeway to 60 km/hr; iii. Ensure that "advance warning signs" were in place to warn oncoming traffic that roadwork was occurring; and iv. Ensure that a spotter or observer was in place on the roadway to warn workers of approaching traffic. k) The RTA failed to develop and implement a specific traffic control plan for the task of vegetation control and litter collection work on the shoulders of the Freeway. l) The RTA failed to provide such information, instruction and supervision as was necessary to people undertaking maintenance work at the premises, in that it failed to undertake measures as follows: i. ensure that the members of the maintenance crew were provided with adequate information and instruction in relation to the safe systems of work and traffic control plan to be implemented for the task of vegetation control and litter collection work on the shoulders of the Freeway; ii. ensure that the members of the maintenance crew were provided with supervision whilst performing the task of vegetation control and litter collection work on the shoulders of the Freeway. m) As a result of the RTA's failures as particularised above, people other than its employees, and in particular, Mr Steven Eliot, Mr Michael Carr, Mr Glen Craig, Mr Alan Thomas and Mr Barry Stent were exposed to the risk. n) The injuries sustained by Mr Steven Eliot, Mr Michael Carr, Mr Glen Craig, Mr Alan Thomas and Mr Barry Stent were a manifestation of that risk. Submissions Merit Issues Submissions for the Defendant 14Mr J V Agius of senior counsel, with whom Ms W Thompson of counsel appeared on behalf of the defendant, made oral and written submissions which, taken together, can be summarised as follows: (1) The defendant was charged under s 10(1) of the Act in its capacity as a controller of premises. However, the particulars pleaded in the charge do not go to the safety of premises pursuant to s 10(1) but, rather, to the safety of the system of work being conducted at the premises. (2) The duty under s 10(1) arises out of persons' "control" of premises, and the extent of the obligation is limited to those risks that arise in relation to the "premises". The definition of "premises" in s 4 of the Act refers only to "places", "vehicles, vessels or aircraft", "installations" and "structures". The s 4 definition does not refer to any matters that could be regarded as falling within the meaning of "work" or "work activities". To construe the definitions of "premises" to include such things would be contrary to the principles of statutory construction. (3) The Act, in particular ss 7,8 and 10, speaks about the condition of premises and the work being conducted there as separate and independent concepts. On its proper construction, s 10 relates only to the nature and quality of the physical premises per se. The condition of the premises should be considered in a vacuum, independent from the work being performed there (and independent from its surrounds, for example (as in this case) a busy road). There must be something unsafe about the premises themselves. Further, the section relates to the controller of premises as distinct from the occupier of premises (defined in the Act as the person in charge of an operation being conducted on a premises). (4) The Occupational Health and Safety Regulation 2001 ("the Regulation"), when speaking of the responsibilities of the controller of premises, speaks of the physical condition of the premises. The defendant submitted that the Regulation should be considered when assessing the overall statutory scheme and the construction of s 10(1) (Brayson Motors Proprietary Limited (In Liquidation) v The Commissioner of Taxation for the Commonwealth of Australia [1984-1985] 156 CLR 651 (at 652), Master of Education Services Pty Ltd v Ketchell [2008] HCA 38 (at 109-110)). (5) Whilst the defendant accepted that the premise of its argument depended upon how the pleadings were read, in the defendant's view, the pleadings read as a failure to control work that was being done, not a failure to do something about the premises themselves. Thus, the prosecutor misconceived the construction of s 10(1) by framing the particulars of the charge in terms of a failure to control work being done at the premises, rather than a failure to control the physical premises itself. The prosecutor cannot seek to prove that the premises were unsafe as a result of deficiencies in the work system because the defendant did not have responsibility for the work being done, but, rather, was the controller of the premises. (6) Thus, as a matter of law, the particulars pleaded in the charge do not make out an offence under s 10(1). Rather, in essence, although the charge purported to be a charge under s 10(1), the prosecution case as pleaded is, in reality, a different case. Even if the prosecutor was able to prove each of the acts or omissions as alleged, therefore, the charge under s 10(1) cannot be sustained. (7) The defendant sought that the question be answered in the negative, and that the following orders be made: i) that the application for order in Matter No IRC 812 of 2011 is bad and contrary to law; ii) in the alternative, that the application for order be dismissed. Submissions for the Prosecutor 15Ms P E McDonald of senior counsel, with whom Mr C T Magee of counsel appeared on behalf of the prosecutor, made oral and written submissions which, taken together, can be summarised as follows: (1) The allegation being made in the particulars is not, as submitted by the defendant, that the work being conducted was unsafe and, hence, the premises were unsafe. Rather, the particulars went to control of the premises. Even if it were accepted that charges under s 10(1) relate to the inherent nature of premises (as submitted by the defendant), the particulars of the charge would still be satisfactory. (2) Section 10(1) must be interpreted widely to give effect to the purpose and objects of the Act (contained in s 3) - that is, to ensure that people are safe whilst they are at work. (3) Central to the construction of s 10(1) is the link between "premises" and their use as a "place of work". Importantly, the section does not impose limits on the obligations of controllers merely to their physical state. The premises can become unsafe as a result of the way in which they are used as a "place of work". (4) The duty under s 10(1) is limited to reflect matters over which the defendant actually has control. The controller has obligations to ensure that, amongst other things, when premises are being used as a place of work, the systems of work to be used in conjunction with those premises do not result in the premises becoming unsafe or creating a risk to health. The issue is how the premises can be, or are, relevantly controlled to secure safety. There may be many ways premises may be unsafe which extend well beyond their physical attributes, and there may be a number of avenues available to ensure the premises are safe. The defendant in this case was in control of the premises, given the defendant's ability to command or direct, for example, the speed of the passing traffic (McMillan, Britton & Kell v WorkCover Authority (1999) 89 IR 464). That level of control shapes the duties or obligations owed by the defendant under s 10(1). (The prosecutor relied upon various authorities in support of the proposition that the duty under s 10(1) extends beyond the physical condition of the premises themselves, including: Inspector Childs v State of New South Wales (Department of Services, Technology and Administration) [2009] NSWIRComm 202, Inspector Nikolovski v Northpac Constructions Pty Ltd [2009] NSWIRComm 204, and Inspector Dall v Brambles Australia [2006] NSWIRComm 213). (5) The defendant's construction of s 10(1) appeared to require additional words to be read into it. Section 10(1), unlike s 7, does not talk about an obligation or duty to keep the conditions of premises safe. Rather, s 10(1) is a general duty to keep premises safe. If the premises are unsafe because of traffic driving along the F3 and the defendant has the ability to control the traffic driving along the F3 (and the acts and omissions are linked to that control) then an offence under s 10(1) has been made out. Section 10(1) contains limitations and restrictions, and there is no need to read into the section additional requirements for an offence under s 10(1) (Bros Bins Systems Pty Ltd v Inspector Ching [2006] NSWIRComm 287 at [25]). (6) The defendant's construction (which limits the obligations imposed on controllers of premises to their physical state) is too narrow and is not consistent with the purpose of the overall statutory scheme. (7) The defendant's reliance on Brayson Motors for its submission that s 10(1) should be construed within a statutory scheme is misconceived. Section 10(1) stands alone; one does not need to look to the Regulation to understand the duty imposed on a defendant under s 10(1) (Deputy Federal Commissioner of Taxation for the State of South Australia v Ellis & Clark Limited [1934] 52 CLR 85). In any event, the Regulation sets out particular duties for controllers of premises, whereas s 10(1) contains general requirements for controllers of premises to ensure that premises are safe and without risk to safety. This is a relevant distinction. (8) The safety of premises is not an abstract concept, but rather must be related to the purposes for which the premises are being used at any one time. A premises, for example, may be safe for one type of purpose and unsafe for another (Mailer v Austin Rover Group p/c [1989] 2 All ER 1087). (9) The prosecutor sought the following orders: i) that the matter is remitted to Backman J with the following answer to the referred question: Yes; ii) that the defendant pay the prosecutor's costs of the reference. Appropriateness of Answering the Referred Question Submissions for the Defendant (1) The question should be read as a reference to both the legal and factual elements of the offence - the factual elements being supplied by the particulars. (2) In relation to the absence of facts before the Full Bench, the defendant submitted that question did not require the Full Bench to have regard to specific factual matters. It was submitted that, even if the prosecution were able to prove what is alleged in the particulars of the charge, the particulars do not constitute an offence under s 10(1). Therefore, the Court is simply required to look at the acts and omissions as particularised (at paragraphs (i) to (l) of the particulars) in the charge and determine whether they relate to control of premises or systems of work; if they relate to systems of work, they cannot (upon the defendant's construction of the section) as a matter of law make out an offence under s 10(1). (3) The Court need not assume any facts in assessing whether the acts and omissions particularised in the charge relate to the safety of the premises or the safety of the work being conducted. It was submitted that, for example, if the prosecutor were able to prove that which is alleged in paragraph (i) of the particulars (that is, that the defendant failed to undertake a risk assessment in relation to the work being performed), that would not mean, as a matter of law, that the premises were unsafe. The resolution of the question does not depend on whether the prosecutor can prove the particulars, but, rather, whether the particulars of the charge can establish an offence under s 10(1). (4) Further, in relation to the allegation contained in paragraph (j) of the particulars (alleging that the defendant failed to, amongst other things, reduce the speed limit of passing traffic on the Freeway), the words "conduct work" in that particular indicate that the need to control the speed of traffic was not the responsibility of the defendant, but, rather, the contractor. Regardless of the fact that the Full Bench could not know, given the absence of facts, whether or not the contractor had the power to control the speed of traffic, once the concept of work being "conducted" was introduced into the particular, it follows that the acts and omissions listed thereafter were not the responsibility of the defendant as controller of the premises. The defendant, as controller, was not an employer; therefore it cannot have acts and omissions related to systems of work (which is, essentially, a s 8 type offence) alleged against it. (5) The defendant submitted that, in fact, none of the acts and omissions contained in paragraphs (i) to (j) of the particulars related to the nature of the premises themselves. Rather, each related to the work being conducted at the premises. (6) The issue raised by the question goes to the validity of the charge, and requires determination before the substantive hearing of the matter as a matter of procedural fairness (Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531). To be properly prosecuted under s 10(1), the prosecutor would have to have alleged that the defendant controlled the premises (being used as a place of work) and there was something about the premises that made them unsafe. The defendant accepted that it may be a pleading point, but submitted that it was an important one as it bears upon the defences available to the defendant and the admissibility of evidence. (7) The purpose of the reference of the question to the Full Bench was to avoid going through the process of moving a Motion before the trial judge for a stay on the basis that the charge cannot, as a matter of law, be sustained. Whatever the outcome of that interlocutory matter, an appeal to the Full Bench would likely have occurred. The defendant was of the view that if the matter was going to go to the Full Bench in any event, it would be preferable (for costs purposes) to deal up front with the issue as to the true nature of s 10 by framing a question to be put to the Full Bench for resolution. Submissions for the Prosecutor (1) The prosecutor sought referral of the question, but on the basis that a statement of facts would be referred to the Full Bench. It was the position of the prosecutor that the defendant's complaint raises issues of fact and, therefore, is a matter which should be resolved at trial. The issue cannot be determined in a factual vacuum. (2) The prosecutor cited, in this respect, Hodgson JA in G.P.I. (General) Pty Ltd v Industrial Court of NSW [2011] NSWCA 157 at [39]: ... However, I note that, in my opinion, the question of adequacy of particulars in a case like this may need to be addressed having some awareness of the evidence that has been supplied to the defendant by the prosecution. It is true that the admissibility of evidence depends upon the terms of the charge and the particulars; but this may not necessarily preclude regard being had to the context provided by the evidence in order to assess whether the particulars are sufficient to inform a defendant of the case to be made out. (3) The prosecutor further relied on the judgment of Marks J in McGrath v GPI (General) Pty Limited [2009] NSWIRComm 194, in which his Honour considered a similar application by a defendant that s 10 should be construed so that its provisions were directed only to the physical state of premises or some characteristic inherent in the nature or condition of the premises without reference to any activity that was being undertaken by anyone on the premises. His Honour stated, at [16]: These matters, that is the construction of the provisions of the section, cannot be considered in a factual vacuum. This would require some factual hypothesis to be erected against which the construction of the provision would need to be determined given the fundamentally opposed positions of the defendants and the prosecutor. Such a matter could only properly and appropriately be considered, in my opinion, at an appropriate time in the proceedings, namely when all of the evidence has been adduced in the proceedings that is relevant to a determination of these issues. (4) It was submitted by the prosecutor that the complaint of the defendant was really a matter that will be resolved at trial, because it raised issues of fact. It would be for the trial judge to determine whether the acts and omissions have been proven by the prosecutor, whether they reflect the control the defendant had over the premises and whether they are causally linked with the premises being unsafe. (5) However, it was also submitted by the prosecutor that the wording of the question using the word 'can' as opposed to 'does' (as in has the potential to) allows the Full Bench to determine (in the absence of facts) whether the charge can establish the elements of the offence under s 10(1) (whether they ultimately do establish the offence is primarily a question of fact to be determined by the trial judge). The Full Bench should answer the question by giving an outline of principle as to what the elements of the s 10(1) offence are and how they operate, and then remit the matter back to trial judge for a factual determination. The question is limited to a reference to the legal elements of the offence - that is, whether the particulars if proven would satisfy the elements of the offence. (6) It was submitted, in this respect, that, given particular (g) (which particular alleged that the defendant "exerted its control of the premises by reason of it undertaking maintenance work, including vegetation control and litter collection, on the F3 Freeway and its ability to control traffic use on the F3 Freeway in connection with such work."), the defendant was not only controller of the premises, but was the entity undertaking the work. Further, the prosecutor submitted that the workers involved in the incident were not employees or a contractor contracted by the defendant to carry out the work, but, rather, the workers were employees of the RTA division of the New South Wales Government Service (who undertook to do work at the direction of the defendant). (7) Ultimately, Ms McDonald accepted that it may be that the question can be answered in the affirmative only on the condition that the evidence allows it to be so answered (which would not really be an answer at all). Consideration 16As noted earlier, the question submitted for determination before this Full Bench was in the following terms: Can the particulars of the charge contained in the Application for Order, if proved, establish the elements of an offence under s 10(1) of the Occupational Health and Safety Act 2000? 17The question turned upon the construction of s 10(1), and, in particular, the nature and extent of the duty created by that provision (and whether the acts and omissions particularised in the charge established the elements of an offence under that provision). This was reflected in the submissions of the parties, where the approach taken by each party to the question was premised upon their varying approaches to the construction of s 10(1). 18In this respect, the defendant submitted that the duty under s 10(1) extended to ensuring that the physical condition of premises (when used as a place of work) was such that the premises were safe and without risks to health, but did not extend to ensuring the safety of work being undertaken at any premises over which a person had control. The defendant relied, in support of that approach to construing s 10(1), primarily on an analysis of the statutory scheme, including a consideration of the definition of "premises" in s 4 of the Act and the references to "controllers of premises" in the Regulation, and a comparison of s 10(1) to other duties arising under Pt 2 Div 1 of the Act. Essentially, it was the defendant's contention that the duty under s 10(1) was confined to any risks that the premises alone posed to persons doing work at those premises. 19It was the prosecutor's position that s 10(1), on its proper construction, was designed to contemplate circumstances where premises could be unsafe because unsafe work methods rendered them so; control over those unsafe work methods was a means of (perhaps limited) control over the premises. The controller has obligations, it was submitted, to ensure that, amongst other things, when premises are being used as a place of work, the systems of work to be utilised in conjunction with the premises do not result in the premises becoming unsafe or creating a risk to health. The prosecutor relied, in support of its interpretation of s 10(1), on various authorities and an analysis of the words of the section and the purpose of the section having regard to the objects of the Act. Essentially, it was the prosecutor's position that the safety of premises can be affected by the activities that occur on the premises. 20As earlier noted, a statement of facts was prepared by the parties for the purpose of the reference of the question to the Full Bench. The statement, however, contained a notation to the effect that it was not to be binding upon any party. In the result, there was, effectively, no factual basis upon which this Full Bench could determine the matter. 21In this respect, it was the defendant's position that the issue raised by the question did not require the Full Bench to have regard to specific factual matters. The issue for determination would remain unchanged, it was submitted, even if the assumption was made that the prosecutor could prove each act or omission pleaded against the defendant. It followed that there was no "factual vacuum", because what was required was a consideration of whether the acts and omissions as particularised in the charge could constitute an offence under s 10(1) (assuming they were capable of proof). 22On the contrary, it was contended by the prosecutor that the question could not be determined in advance of all the evidence in the prosecution case being adduced. However, in argument, it was also submitted by the prosecutor that the phrasing of the question using the word "can" as opposed to "does" would allow the Full Bench to determine (in the absence of facts) whether the charge could establish the elements of an offence under s 10(1) (the question of whether they ultimately do establish the offence would remain a question of fact to be determined by the trial judge). 23The defendant's contentions invited a narrow approach to the construction of s 10(1), confining the duty imposed by that section to the duty of controllers of premises to ensure that the physical or inherent condition of the premises, when being used as a place of work, is such that the premises are safe and without risk to health. Such a construction necessarily reads out of the section any duty on controllers to ensure that the systems of work used in conjunction with the premises do not result in the premises becoming unsafe. The defendant's approach did not envisage that the safety of premises could be affected by the activities occurring thereon. Rather, the safety of premises was confined solely to the attributes of the premises themselves. 24In inviting that narrow approach to the construction of s 10(1), the defendant focussed its submissions upon the meaning of the concept of "[a] person who has control of premises" and the definition of the "premises" which that person must ensure are safe and without risks to health. In approaching the construction of the section in that manner, the defendant did not place any great emphasis on the words "used by people as a place of work". 25Under s 10(1), a person commits an offence where that person has control of premises as defined, the premises are used by people as a place of work and the person fails to ensure that the premises are safe and without risk to health. The eastern shoulder of the F3 Freeway at Warnervale, when not being used as a place of work, was unlikely to be inherently unsafe. However, when that premises was used by people as a place of work, the nature of the premises, in that context, had to be reconsidered by the controller and steps taken to ensure that it was safe for those performing work there. It is our view that the defendant's approach to the construction of s 10(1), confining the duty under that section to a duty to ensure the premises are not inherently unsafe, involves a considerable reading down of the section. However, it is unnecessary, given the conclusions reached, to offer any further view as to the question of construction. 26The difficulty in this matter is that it is by no means clear, even if the construction of s 10(1) proffered by the defendant was accepted, that the application for order is invalid. 27Whilst the primary submission of the prosecutor was that s 10(1), on its correct construction, imposed a duty on controllers of premises which extended to ensuring that premises were not rendered unsafe by virtue of the work being performed thereon, the prosecutor also submitted in the alternative that, even if the narrower construction of the section proffered by the defendant was proceeded upon, the particulars of the charge contained in the application for order were capable of establishing an offence under s 10(1) on that basis. It was the submission of the prosecutor that, upon either construction of the section, the question of law referred should be answered in the affirmative. 28In our view, the particulars, if read in light of the ordinary grammatical meaning of the words used, can be found to fit within the narrow construction of s 10(1) proffered by the defendant. 29The particulars of the charge, prima facie, can be read as directing attention to the safety of the premises. For example, at paragraph (j) of the particulars, the premises are alleged to be unsafe because of the lack of various traffic controls. Those controls do not address the way in which the vegetation and clean up work itself would be performed (at least on the facts such as they are currently known). 30This gives rise to two issues, both of which concern the suitability of answering the referred question. 31If, in line with its alternative submission, the prosecutor does particularise the charge against the defendant as relating only to the inherent nature of the premises, then, presumably, an application to amend the application for order would need to made in order to remove elements of the particulars which go beyond that scope. Alternatively, there may be a legitimate basis for a request by the defendant for further and better particulars which would have the effect of confining the charge in that manner. The difficulty with this course for the present proceedings is that, if the matter is to proceed on the basis of an amended or confined set of particulars, it is plainly not appropriate for the Court at this stage to answer the question referred. In any event, even if the charge is particularised against the defendant as going only to the inherent nature of the premises, there would likely remain a need for the Court to understand the factual substratum upon which the confined particulars proceed for the purpose of considering any further issues which may arise. 32If, on the other hand, in line with its primary contention, the prosecutor intends the particulars of the charge against the defendant to be understood on the basis that the obligations on controllers of premises vary depending on the nature of the work to be performed thereon (which approach caused the agitation of these issues in the first place), there remains, in our view, a difficulty in the Court answering the question as referred on the bare bones of the particulars at present. In order for the Court to consider the issue, at least some statement of the factual substratum upon which the particulars are based is required. For example, paragraph (j) of the particulars refers to a failure of the defendant to "conduct work". As mentioned earlier, in order to answer the question referred, the Court would require an agreed or determined fact as to what work is being referred to, and in what particular area, which is said to affect how the premises is to be controlled. No such factual basis exists. That omission is significant, as the decisions of the Court of Criminal Appeal in Collins v State Rail Authority NSW (1986) 5 NSWLR 209 and the Supreme Court in Glover v McDougall [1976] 2 NSWLR 359 make clear. 33In Collins, the Court of Criminal Appeal heard a stated case concerning the operation of s 17(1) of the Occupational Health and Safety Act 1983. At first instance, O'Brien J made extensive findings of fact based on the evidence before him and then stated a case to the Court of Criminal Appeal pursuant to the provisions of s 5A(1) of the Criminal Appeal Act (s 5A(1) was in similar terms to the provision that is now s 5AE). Despite these detailed findings of fact made by the first instance Judge, based on all of the evidence, Street CJ was moved to state (at 211): ... It should be recognised at the outset that a stated case is well-known as a cumbersome and often unsatisfactory means of bringing a matter up for consideration on appeal. There are occasionally issues of law which can conveniently be dealt with through this appellate procedure. In general, however, it is a procedure which is fraught with difficulties and the present case is no exception from that generality. This Court does not have the benefit of any distillation by the trial judge of the issues of law that emerged for decision. Nor does it have the benefit of an analysis by the trial judge of the significance of the various findings of fact upon the ultimate issues of fact and of law that must be resolved in the determination of these two charges. ... 34In Glover, Yeldham J dealt with a stated case pursuant to s 101 of the Justices Act 1902 in which counsel for the respondent argued that it was necessary to go to some portions of the evidence to which no reference had been made in the stated case. His Honour, (at 361), declined to proceed in that fashion and sent the stated case back to the Magistrate so that he could set out all the relevant facts found by him that bore upon the question that the Court was asked to determine. His Honour's approach was as follows (at 361): Mr. Carruthers, counsel for the respondent (ship's master), informed me that in order properly to understand the manner in which the magistrate came to the conclusion which he did, and in order properly to examine the question whether or not there had been a leakage, as he found, it was necessary to go to some portions of the evidence to which no reference is made in the stated case. In relation to this, Mr. Vine-Hall stated that such evidence was not really open to challenge by the appellant (informant), as he had no independent knowledge of the various matters deposed to, and that it may be taken that the magistrate did find in favour of the respondent the various matters to which Mr. Carruthers wished to refer. However, it is my view that the authorities over many years have made it quite clear that, unless one of the matters for determination by this Court is whether or not there is any evidence of primary facts found by the magistrate, the depositions cannot be referred to at the hearing of a case stated under s. 101 except, as was pointed out in McNeall v. Croker (1) for the purpose of deciding whether in fact all the material findings have been stated by the magistrate. It is also clear from the authorities that the magistrate, in the stated case, which I appreciate in practice is drafted by the parties, should categorically and clearly set out all the facts found by him upon the evidence before him which are relevant to the questions posed for determination by this Court. In this regard I would refer to what is said in Addison and Patterson,Appeals from Magistrates (49), in McNeall v. Croker (2), to which I have referred, in Ex parte Benson; Re Harris (3) and in Orange City Council v. Canobalas Shire Council (4). If I were now merely by consent to go to the evidence before the magistrate, even though it might be unchallenged, it would be necessary for me to assume or surmise that all such evidence had been accepted, and to guess at the weight which was given to it. In these circumstances, regrettable though it be, I think the appropriate course is to send the case back to the magistrate so that he may set out in it all the relevant facts found by him which bear upon the question which the parties have agreed is the only one arising for determination. 35When considered in light of either the prosecutor's primary or alternative submission, we are of the view that there has not been established an adequate basis for the resolution of the question at this stage. Whilst not precisely so, when considered in terms of the approaches contained in the primary and alternative submissions of the prosecutor, the question which the Full Bench has been asked to answer is, in substance, hypothetical. This conclusion was put beyond doubt by the further submission of the prosecutor that the wording of the question using the word "can" as opposed to the word "does" allowed the Full Bench to determine the question in the absence of facts. That submission merely confirms the hypothetical nature of the question posed. 36It is a fundamental principle that questions of law referred under s 5AE of the Criminal Appeal Act cannot be hypothetical in any way and must be based upon an established factual matrix (see, generally, the observations of the Court of Appeal in Environment Protection Authority v Land and Environment Court (NSW) and anor [2004] NSWCA 50; (2004) 144 A Crim R 198. This matter was also discussed more recently by Marks J in Regan v Bulga Underground Operations Pty Ltd [2012] NSWIRComm 19). In most cases, such questions are not submitted for determination until the referring judge has made relevant findings of fact (see, for example, Rockdale Beef Pty Ltd v Industrial Relations Commission of NSW [2007] NSWCA 128; (2007) 165 IR 7). As was held by the Court of Appeal in Environment Protection Authority (at [58]): Again, questions of law which would otherwise arise in a particular case, may become academic if the facts are found by the trial judge against or in favour of one or other of the parties. This will not be known until the judge's factual findings are pronounced. Until then, there would be no utility in the prosecution requesting the judge to stay the case on those questions. 37It is not appropriate (nor, for that matter, of any utility) for a Full Bench of this Court to determine a question referred under s 5AE characterised in that way. 38In all the circumstances, we decline to answer the question referred under s 5AE and return the matter to the trial judge for disposal. ********** 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: 14 September 2012