Kirk and NK Collins Industries – particulars for WPHS complaints

NK Collins Industries Pty Ltd v President of the Industrial Court of Queensland & Anor [2010] QSC 373

Further to my earlier postings about the High Court decision of Kirk and the decision of the President of the Industrial Court in NK Collins Industries Pty Ltd, the latest instalment of NK Collins Industries is the Judicial Review by Justice Boddice (above).

By way of judicial review the applicant sought an order in the nature of certiorari quashing the decision of the Industrial Court because it misconceived the extent of its powers by confirming the decision of the Industrial Magistrate in circumstances where particulars of the offence were alleged not to have been provided.

Issues:

[9] On the hearing of the application to review, the applicant and second respondent agreed that the issues for determination are:

(a) Is the decision of the Industrial Court susceptible to review (“first issue”);

(b) Was the second respondent, as prosecutor, obliged to aver or particularise acts of, or omissions by the applicant, as defendant, in respect of the contravention complained of (“second issue”)?

(c) If the principles in Kirk have application, is the complaint invalid for lack of particularity (“third issue”).

Boddice J

[11] A decision of the Industrial Court is final and conclusive and cannot be appealed against, reviewed, quashed or invalidated by any Court.[2] However, that provision is subject to the decision being within jurisdiction. Where it is shown the decision under review involves jurisdictional error, that decision is susceptible to review under Part 5 of the Judicial Review Act 1991.[3] Accordingly, if it be established that the decision of the first respondent involves jurisdictional error, that decision is susceptible to judicial review notwithstanding the provisions of s 349(2) of the Industrial Relations Act 1999. Jurisdictional error includes misconstruction of a relevant statute thereby misconceiving the nature of the function of that Court or the extent of its powers in the circumstances of a particular case.[4]

[17] A defendant to any prosecution is entitled to be apprised, not only of the legal nature of the offence charged, but also of the particular act, matter or thing alleged as the foundation of the charge.[13] Essential particulars include “the time, place and manner of the defendant’s acts or omissions”.[14] This requirement is consistent with the definition of “offence” in the Criminal Code (Qld)[15] as it is the “act or omission which renders the person doing the act or omission liable to punishment” which is “an offence”.

[18] The complaint specified the person on whom the obligation was imposed, the obligation imposed, why the obligation was imposed, failure “to discharge” that obligation contrary to s 24 of the WH&S Act, when that failure occurred, where that failure occurred, the source of the risk, the nature of the risk and that the breach had caused death. As such, the complaint disclosed both the legal elements of the offence and the “essential factual ingredients” of that offence. There was no requirement for the second respondent to aver acts of, or omissions by, the applicant to found a valid complaint.

[19] The applicant contended that support for its entitlement to particulars of the “acts or omissions” of the employer could be gleaned from the contents of s 164 and 166 of the WH&S Act. Those provisions, which relate to a prosecution for an offence against the WH&S Act, specifically contain reference to “acts or omissions”. Whilst that is so, there is substance in the second respondent’s contention that the use of those words, in the context of those sections, does not take any further the question of whether there is a requirement under the WH&S Act to particularise “the measures not taken, the act or omission of the employer”. The inclusion of those words in those sections is necessary to give due reference to the fact that more than one contravention of an obligation may occur, or that contraventions of the Act other than of obligations imposed under the Act, are possible.[16]

[20] The applicant further contends it was entitled to the particulars sought in order to be able to rely upon the defence in s 37 of the WH&S Act. Whilst that defence places the onus of proof upon the defendant, that fact in itself would be no reason for a refusal to give particulars if they ought properly to be given so as to apprise a defendant of the case it has to answer.[17]

[22] The complaint identified the risk and the source of that risk. There was no obligation on the prosecutor to particularise anything further to found a valid complaint. However, that does not mean that a prosecutor cannot be required, in an appropriate case, to particularise the applicable code of practice or other measures it asserts ought to have been taken by an employer if such particulars are necessary to apprise a defendant of the case it has to answer. For example, where there are conflicting codes of practice that may be applicable to the factual circumstance. The provision of such particulars in that event would be on the grounds of procedural fairness, not because they were necessary matters for the prosecutor to aver to found a valid complaint.

[23] Contrary to the findings of the first respondent, the ordering of particulars of such matters, in an appropriate case, would not constrain the defendant in its defence of that complaint. The provision of such particulars informs the defendant of the respects in which it is contended by the prosecution that it failed to manage exposure of the risks as required under the WH&S Act. If the defendant, in mounting a defence pursuant to s 37 of the WH&S Act, asserts those measures were not required to be taken by it because it adopted another more appropriate way to manage exposure of the risk, it may assert that contention as part of its defence.

[24] There is a distinction between a complaint which is so equivocal as to make it impossible to identify the occasion, transaction or occurrence to which it refers and a complaint which identifies the “essential factual ingredients” of the offence but requires further particularisation so as to ensure that a defendant can properly prepare a defence. The former is defective and liable to be struck out as being insufficient in law.[18] The latter is a valid complaint but may be subject to further particularisation.[19]

[25] To be valid, a complaint must at least condescend to identify the essential factual ingredients of the actual offence,[20] although practical difficulties result from the fact that there is no “technical verbal formula of precise application which constitutes an easy guide, in the circumstances of any given case, as to whether the common law has been infringed to such an extent … to save the information”.[21]

[26] In the present case, the complaint identified the “essential factual ingredients” of the offence. Any further particularisation, if considered appropriate to apprise the defendant of the case alleged against it so that it could prepare a defence, could not be considered to be essential particulars going to the validity of the complaint itself. Accordingly, the complaint was not invalid.

[27] The first respondent correctly found that the complaint not only disclosed the legal elements of the offence, but also identified the “essential factual ingredients” of that offence. There was no requirement that the second respondent aver anything further to establish a valid complaint. The complaint was not a nullity. The appeal before the first respondent was a valid appeal.

[28] However, in dismissing the appeal, the first respondent, whilst accepting there are occasions where a complainant may be required to particularise inadequacies in precautions or lapses in diligence,[22] erroneously held there was no obligation on a complainant to particularise “the measures not taken” so as to apprise a defendant of the case it was to meet in preparing any defence.

[29] That finding did not involve the application of established law to the facts as found by the first respondent.[23] That finding constituted a misconstruction of the relevant statute and a misconception of the extent of the Court’s powers in the particular case in relation to a matter which was specifically the subject of a ground of appeal before the first respondent.[24] As such, the finding constitutes a jurisdictional error as that term is identified in Kirk.

Brisbane Barrister – David Cormack

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