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Parhusip v Bell; Bell v Parhusip[2015] ICQ 25

Parhusip v Bell; Bell v Parhusip[2015] ICQ 25

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Parhusip v Bell; Bell v Parhusip [2015] ICQ 025

PARTIES:

ROY PARHUSIP

(appellant)

v

STEWART LYNN BELL

(respondent)

FILE NO/S:

C/2014/54

PARTIES:

STEWART LYNN BELL

(appellant)

v

ROY PARHUSIP

(respondent)

FILE NO/S:

C/2014/55

DELIVERED ON:

25 September 2015

HEARING DATE:

4 February 2015

MEMBER:

Martin J, President

ORDER/S:

  1. In matter C/2014/54 the appeal is dismissed.
  2. In matter C/2014/55 the appeal is allowed. The orders of the industrial magistrate are set aside.

CATCHWORDS:

MAGISTRATES – COMMENCEMENT OF PROCEEDINGS – PARTICULARS AND CONTENT OF INITIATING PROCESS – VALIDITY IN OTHER PARTICULAR CASES – where the defendant was issued with a complaint and summons in relation to safety matters under the Petroleum and Gas (Production and Safety) Act 2004 – where the complaint was accompanied by particulars – where amended particulars were provided after the limitation period had expired – where, at a directions hearing, the defendant applied for directions that the prosecution file and serve an application to amend the complaint, on the basis that the revised particulars changed essential elements of the complaint – where, in respect of the description of ‘operating plant’, the learned industrial magistrate determined that the revised particulars did not alter any essential element of the complaint – where, in respect of the manner of the alleged offending, the learned industrial magistrate found that the revised particulars changed the manner in which the prosecution alleged the defendant committed the offence and formed essential elements of the complaint – where the learned industrial magistrate directed that the portion of the revised particulars relating to the manner of the alleged offending be struck out – whether the learned industrial ought to have found that the defendant had not made the true nature of the offence known to him and therefore should have struck out the complaint as having failed to unambiguously allege and essential element of the offence within time – whether the learned industrial magistrate erred in finding that the revised particulars provided with regard to the operating plant are not essential elements of the complaint and that the prosecution is not required to apply to amend  –  whether the learned industrial magistrate had the power to strike out part of the particulars – whether power to amend the complaint under s 48 of the Justices Act 1886 was enlivened – whether the learned industrial magistrate erred in holding that the amendment to the particulars changed the true nature or essential elements of the charge, such that the prosecution was requirement to seek leave to amend the complaint.

Industrial Relations Act 1999, s 677, s 683

Justices Act 1886, s 27(1), s 42, s 43, s 47, s 48, s 49, s 83A

Petroleum and Gas (Safety and Production) Act 2004, s 670(5), s 672, s 673, s 674(1), s 675, s 837

CASES:

Bell v Hendry [2014] ICQ 18

Dare v Pulham (1982) 148 CLR 658

Gerakiteys v The Queen (1984) 153 CLR 317

GPI (General) Pty Ltd v Industrial Court of New South Wales (2011) 207 IR 93

John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508

Karimbla Construction Services Pty Ltd v President of the Industrial Court of Queensland [2014] QSC 56

R v Juraszco [1967] Qd R 128

R v Logan [2012] QCA 210

R v Saffron (1988) 17 NSWLR 395

R v Trifillis [1998] QCA 416

APPEARANCES:

K Mellifont QC and G Dann instructed by DLA Piper for Roy Parhusip in both matters
PJ Davis QC and NV Weston instructed by Gilshenan & Luton for Stewart Bell in both matters

  1. [1]
    On 2 August 2013 a complaint and summons issued from the Industrial Magistrates Court. The complaint, so far as is relevant, contained the following:

“…Stewart Lynn Bell … the Commissioner for Mine Safety and Health … says that on the 3rd day of August 2012 at coal seam gas well Kathleen number 141 in the Magistrates Court District of Dalby in the said State, ROY PARHUSIB (sic – PARHUSIP), the operator of an operating plant, failed to make, for each stage of the plant, a safety management plan that complied with section 675 of the Petroleum and Gas (Production and Safety) Act 2004, contrary to section 674(1) of the Petroleum and Gas (Production and Safety) Act 2004.

And the contravention caused grievous bodily harm to Chad Alan Knight

And the contravention caused bodily harm to Robert John Pyne.”

  1. [2]
    Attached to the complaint was a document entitled “Particulars”. It contained the following:

“That on 3 August 2012 at the aforementioned coal seam gas well:

  1. Saxon Energy Australia Pry Ltd ("Saxon") operated a coal seam gas drilling site at the said coal seam gas well.
  2. Queensland Gas Company Pty Limited (‘QGC’) was the principal holder of petroleum lease number 277, the petroleum lease upon which the coal seam gas well Kathleen number 141 was situated.
  3. Saxon drilling rig number 59 was situated on or near coal seam gas well Kathleen number 141.
  4. The site is an operating plant within the meaning of that term in section 670 of the Petroleum and Gas (Production and Safety) Act 2004 (‘the Act’).
  5. QGC had contracted Schlumberger Australia Pty Ltd (“Schlumberger”) to coordinate drilling services.
  6. Saxon was contracted to carry out drilling at the site.
  7. ROY PARHUSIB (sic) was the operator of the operating plant within the meaning of the Act.
  8. Chad Alan Knight and Robert John Pyne were part of the work crew at the site.
  9. Saxon rig number 59 was at the ‘completion stage’.
  10. Saxon had implemented a safety management plan for Saxon rig number 59.
  11. As the operator of the operating plant, ROY PARHUSIB (sic) was obligated to make and implement a safety management plan that provided directions as to the proper way in which the rod lock and rod lock bolt were to be used.
  12. The crew were required to complete the rig by using a rod lock to hold a polished rod in place so that a drive-head unit could be installed. This involved screwing in a rod lock bolt to hold the polished rod.
  13. The safety management plan did not contain any directions as to the correct way to use the rod lock and the rod lock bolt.
  14. The bolt had a ‘scribe line’ marked on it. The bolt was supposed to be screwed in until the scribe line disappeared. This was not done.
  15. As a result of the rod lock bolt not being properly installed, the polished rod slipped, causing a pair of stilsons to fall on Chad Alan Knight and Robert John Pyne.
  16. As a result of this incident, Chad Mal Knight sustained multiple fractures of his right leg.
  17. As a result of this incident, Robert John Pyne sustained injuries including severe braising of his left leg.
  18. ROY PARHUSIB (sic) failed to make, for each stage of the plant, a safety management plan that complied with section 675 of the Petroleum and Gas (Safety and Production) Act 2004 by failing to ensure that the safety management plan for the operating plant included details, to the extent that it was appropriate for the plant, of safety standards and/or standard operating procedures applied, or to be applied, in each stage of the plant. His failure consisted of failing to make and implement a safety management plan that provided directions as to the proper way in which the rod lock and rod lock bolt were to be used.
  19. The said contravention caused grievous bodily harm to Chad Alan Knight.
  20. The said contravention caused grievous bodily harm to Robert John Pyne.

contrary to the Acts in such case made provided.”

  1. [3]
    By a letter of 26 August 2014 Mr Bell’s solicitors provided Mr Parhusip with “revised Particulars of the complaint” (“the revised particulars”). They consisted of:

“1. That on 3 August 2012, Saxon Energy Services Pry Ltd ("Saxon Energy") operated work over rig 59.

  1. On 3 August 2012, Saxon Energy work over rig 59 was drilling at well-site Kathleen 141. Well-site Kathleen 141 is a coal seam gas well operated by Queensland Gas Company (‘QGC’) on Petroleum Lease No. 277.
  2. Work over rig 59 was, as at 3 August 2012, an operating plant within the meaning of the Petroleum and Gas (Safety and Production) Act 2004 (‘the Act').
  3. QGC had contracted with Schlumberger IPM to conduct drilling operations. Schlumberger IPM had in turn contracted with Saxon Energy to conduct drilling operations. One of the drilling operations was the work being conducted at well-site Kathleen 141 by work over rig 59 and its crew on August 3, 2012.
  4. Roy Parhusib (sic) was employed by Saxon Energy as an operations manager. As at 3 August 2012, he was the operator of work over rig 59 within the meaning of s.673 of the Act. Mr Parhusib (sic) was not at work over rig 59 on 3 August 2012.
  5. On 3 August 2012, the work crew of work over rig 59 consisted of:
  1. (a)
     Chad Knight - Driller;
  1. (b)
     Tom Ramsay - Assistant Driller;
  1. (c)
     Rob Pyne - Motorman;
  1. (d)
     Regan Hazlett- Floorman;
  1. (e)
     Carmel Nucifora - Lease Hand;
  1. (f)
     John Mullings - Safety Officer;
  1. (g)
     Kerry Cameron - Rig Manager.
  1. On 3 August 2012, the crew of work over rig 59 were required to perform a function at well-site Kathleen 141 called a "space-out". This required the lowering of a rod into the well. This rod is called the "polished rod". It was necessarythat the polished rod be centered. The polished rod was to be clamped in a rod lock.
  2. The rod lock was supplied by QGC and was to be used in the completion of the well. Kerry Cameron, Domingo Sarmiento, Chad Knight and Rob Pyne were all unfamiliar with the particular model of rod lock supplied by QGC.
  3. The crew of work over rig 59 attempted to clamp the polished rod by screwing in ram bolts on either side of the rod lock. Domingo Sarmiento directed the rig crew to wind the rain bolt in using a torque wrench set at 800 pounds. This was done and Sarmiento, along with Kerry Cameron, left work over rig 59 and went to the nearby site offices.
  1. Two pipe wrenches were attached to the pipe assembly. Chad Knight and Rob Pyne were working on the floor of the rig. The pipe wrenches were being used to unscrew the collar and pony rod from the polished rod. The polished rod came loose causing the pipe assembly to drop with the pipe wrenches attached. Knight and Pyne were each struck by a failing pipe wrench and pinned to the floor.
  2. The correct method for operating the rod lock required that one ram bolt be tightened so that the mark on the screw is 1/16" away from the body. The mark or the scribe line on the bolt would be obscured. The other ram bolt would be tightened using a torque wrench set at 800 pounds. It is necessarythat the same length of ram bolt is protruding on each side. The scribe line on each ram bolt should be obscured. Each ram bolt would be rotated approximately nine times.
  3. The correct procedure for operating the rod lock is set out at page 6 of the Oil Lift Rod Lock Manual. There is an alternative procedure also set out on the operating procedure plate attached to the rod lock.
  4. The crew of work over rig 59 did not follow either of the procedures referred to in paragraphs 11 and 12 above. As a result, the polished rod was not clamped to the central section of the rod lock. Instead, the polished rod was held between the flat faces immediately adjacent to the semicircular cavity. The failure to correctly operated rod lock was a substantial cause of the polished rod falling. This in turn caused the pipe wrenches to fall on Knight and Pyne, thereby causing their injuries.
  5. As a result of being struck by the falling pipe wrench, Knight sustained multiple fractures to his right leg. These injuries amounted to grievous bodily harm.
  6. As a result of being struck by the falling pipe wrench, Pyne sustained severe bruising to his left leg. The bruising amounted to bodily harm.
  7. A Safety Management Plan had been implemented for work over rig 59. As the operator of work over rig 59, Roy Parhusib (sic) was required by s.674 of the Act to make a Safety Management Plan which complied with s.675. The Safety Management Plan failed to comply with the mandatory requirements of s.675(1)(i) as there was no standard operating procedure in place to deal with the operation of equipment with which the rig crew was unfamiliar.
  8. To comply with s.675(1)(i), it was necessary for the operator to make a Safety Management Plan which contained a standard operating procedure as to what the  rig crew should do in ascertaining the correct method of operating equipment with which it was unfamiliar.
  9. It was appropriate for the plant that the Safety Management Plan included details of a standard operating procedure for ascertaining the correct method of operating unfamiliar equipment such as the rod lock, to enable the crew to follow a safe procedure.
  10. If Roy Parhusib (sic) had made a Safety Management Plan that contained a standard operating procedure as to what the rig crew should do in ascertaining the correct method of operating equipment with which the rig crew was unfamiliar, such as the rod lock, he would have complied with his statutory obligations as the operator of work over rig 59.
  11. If the Safety Management Plan had included a standard operating procedure as referred to above, the chance of the crew operating the rod lock in an unsafe manner would have been reduced. The failure to incorporate the standard operating procedure into the Safety Management Plan materially contributed to the failure by the crew to correctly operate the rod lock, and thus materially contributed to the injuries suffered by Knight and Pyne.”
  1. [4]
    On 30 September 2014 Mr Parhusip filed an “application for a direction hearing” in the Industrial Magistrates Court in which, among other things, he sought the following directions:

“(a) The prosecution is to file and serve any application to amend the complaint and any outline in support of that application within 2 business days of these directions;

  1. (b)
     The defence is to file and serve any outline of submissions within 7 days of receiving the prosecution’s application and outline of submissions; and
  1. (c)
     The prosecution application to amend the complaint to be heard starting on 29 October 2014 or a mutually convenient earlier date.”
  1. [5]
    After some interlocutory proceedings the application came on for hearing on 29 October 2014.  The learned industrial magistrate considered the application and made the following direction:

“I therefore direct that paragraphs 16 to 19 of the revised particulars be struck out. The remaining particulars will therefore remain and can be relied upon by the prosecution at the hearing.”

The appeal by Roy Parhusip

  1. [6]
    Mr Parhusip seeks an order that the decision of the industrial magistrate be set aside and that the complaint be dismissed.
  2. [7]
    In the alternative, Mr Parhusip seeks:

“(i) A finding that the particulars in the complaint made 1 August 2013 allege the site, that is Kathleen 141, to comprise the element of ‘operating plan’; and

  1. (ii)
     The revised particulars, insofar as they purport to allege rig 59 as comprising the element of ‘operating plant’, purport to amend an essential element outside time, and thus if the prosecution wish to rely on those revised particulars at trial, the prosecution must seek leave to amend same.”
  1. [8]
    The grounds relied upon are set out below.

Appeal by Stewart Lyn Bell

  1. [9]
    Mr Bell appeals against the part of the decision of industrial magistrate which ordered the striking out of certain paragraphs in the revised particulars and seeks an order setting aside that decision. The grounds of that appeal are, in summary, as follows:
    1. (a)
      There was no application before the court to strike out any part of the revised particulars and therefore no jurisdiction to do so;
    2. (b)
      The industrial magistrate erred in holding that the appellant required leave before delivering revised particulars;
    3. (c)
      The industrial magistrate erred in holding that the changes to the particulars created by the revised particulars required leave;
    4. (d)
      The industrial magistrate erred in finding that the revised particulars changed the true nature of the charge or the essential elements of the charge; and
    5. (e)
      The industrial magistrate erred in finding that “any application to amend would be refused”.

The industrial magistrate’s reasoning

  1. [10]
    The learned industrial magistrate’s decision was based on the following assumptions as to the law:
    1. (a)
      Any amendment to a complaint must be made prior to the expiration of the 12 month limitation period;
    2. (b)
      If revised particulars, provided outside the 12 month limitation period, in any way seek to change the essential elements or the material facts of the case which the defendant has to meet, then any application to amend the complaint would fail.
  2. [11]
    The learned industrial magistrate held that the revised particulars, so far as they concerned “operating plant” were not essential elements of the complaint and, therefore, the prosecution was not required to apply to amend.
  3. [12]
    Her Honour went on to hold that the particulars delivered as part of the complainant which set out the manner of the omission alleged to have been committed by the defendant were essential elements of the charge brought pursuant to s 674(1) of the Petroleum and Gas (Safety and Production) Act 2004 (“PG Act”)[1]. Further, the provision of the revised particulars purported to change the manner in which the prosecution alleged the defendant committed the offence. It was, her Honour said, an attempt to change the true nature of the offence and thus required an application to the court to amend. As the limitation period had expired and as the true nature of the offence was not apparent from the face of the charge, any application to amend would be refused.

The relevant legislation

  1. [13]
    The complaint alleges a breach of the PG Act. The PG Act imposes obligations on various persons engaged in the production of petroleum or fuel gas. In Chapter 9 Part 2 of the PG Act provisions relating to the creation of safety management plans are set out. Section 670 provides a definition of  “operating plant” in the following way:

“(2)  An operating plant is any of the following—

  1. (a)
     a facility used to explore for, produce or process petroleum, including machinery used for completing, maintaining, repairing, converting or decommissioning a petroleum well;

Example of machinery used for maintaining or repairing a petroleum well—

machinery known in the petroleum and gas industry as a work over rig

  1. (b)
     a facility that—
  1. (i)
     is related to the exploration, production or processing of petroleum; and
  1. (ii)
     is used to take, interfere with or treat associated water and any petroleum incidentally collected with the water;
  1. (c)
     a petroleum facility;
  1. (d)
     a pipeline authorised under a petroleum authority;
  1. (e)
     a distribution pipeline;
  1. (f)
     a distribution system;
  1. (g)
     a bulk fuel gas storage facility;
  1. (h)
     a facility that is in the area of a geothermal tenure and is used for—
  1. (i)
     geothermal exploration other than for wet geothermal production; or
  1. (ii)
     geothermal production other than wet geothermal production;

Examples—

the following facilities if they are not used for wet geothermal production—

  • a drilling rig for a geothermal well
  • equipment used for injecting into, maintaining or repairing a geothermal well
  • pipes and associated valves used in the geothermal production process
  1. (i)
     a facility that is in the area of a GHG authority and is—
  1. (i)
     used for GHG storage exploration or GHG stream storage; or
  1. (ii)
     involved in GHG storage injection testing;
  1. (j)
     a GHG stream pipeline under the GHG storage Act.

…

  1. (5)
     An operating plant is also a place, or a part of a place, at which a following activity is carried out, but only to the extent of the carrying out of the activity—
  1. (a)
     an LPG delivery network prescribed under a regulation;
  1. (b)
     tanker delivery of bulk fuel gas;
  1. (c)
     cylinder storage at premises prescribed under a regulation;
  1. (d)
     an authorised activity under an authority if the activity is a geophysical survey for data acquisition;

(da) an underground gasification activity;

  1. (e)
     another activity prescribed under a regulation and associated with the delivery, storage, transport, treatment or use of petroleum or fuel gas.”
  1. [14]
    Section 672 of the PG Act concerns stages of an operating plant and it provides:

“672  What is a stage of an operating plant

  1. (1)
     A stage, of an operating plant, means any of the following for the plant—
  1. (a)
     commissioning;
  1. (b)
     operation;.
  1. (c)
     maintenance or modification;
  1. (d)
     decommissioning.
  1. (2)
     A stage, of an operating plant, also includes construction work for an operating plant or proposed operating plant if—
  1. (a)
     the work is within or part of an existing operating plant; or
  1. (b)
     the work is adjacent to existing operating plant and the safety management plan for the plant provides that the plan applies to the work.”
  1. [15]
    The operator of an operating plant is referred to in s 673:

“673  Who is the operator of an operating plant

  1. (1)
     This section provides for who is the operator of an operating plant.
  1. (2)
     For a coal mining-CSG operating plant, the operator is the relevant site senior executive under the Coal Mining Safety and Health Act.
  1. (3)
     Otherwise, the operator is the person who has the role of being responsible for the management and safe operation of the plant.
  1. (4)
     For subsection (3), the operator does not include a person who in relation to the plant is subject to the control of another person who has the role of being responsible for the management and safe operation of the plant.

Examples for subsections (3) and (4)—

1  The operator of a drilling rig is the operations manager or another senior officer of the drilling company that is operating the drilling rig and not the person employed as the driller or rig manager.

2  The operator of a tanker delivery bulk LPG business is the manager of the delivery operation and not the person employed as the tanker driver.”

  1. [16]
    The breach alleged by Mr Bell is of s 674(1). It provides:

“(1)  The operator of an operating plant must—

  1. (a)
     for each stage of the plant, make a safety management plan that complies with—
  1. (i)
     section 675; and
  1. (ii)
     if the plant is used to explore for, extract, produce or release petroleum within coal seams—section 388, subject to any exemption given under section 389; and
  1. (b)
     implement and maintain the plan.

Maximum penalty—1500 penalty units.”

  1. [17]
    The content requirements for safety management plans are set out in s 675 and, so far as this complaint is concerned, the relevant detail is in s 675(1)(i):

“(1)  A safety management plan for an operating plant must include details of each of the following to the extent they are appropriate for the plant—

…

  1. (i)
    safety standards and standard operating and maintenance procedures applied, or to be applied, in each stage of the plant;

…”

  1. [18]
    Chapter 13 Part 2 of the PG Act relates to offence proceedings. Section 837 provides:

“837  Offences under Act are summary

  1. (1)
     An offence against this Act is a summary offence.
  1. (2)
     A proceeding for an offence against a provision of chapter 9, part 2, 4 or 6—
  1. (a)
     must be brought before an industrial magistrate; and
  1. (b)
     can be started only by complaint of the commissioner.
  1. (3)
     The Industrial Relations Act 1999 applies to a proceeding mentioned in subsection (2).

Note—

For appeals from the industrial magistrate’s decision, see the Industrial Relations Act 1999, section 341.

  1. (4)
     A proceeding for an offence against this Act must start within the later of the following periods to end—
  1. (a)
     1 year after the commission of the offence;
  1. (b)
     6 months after the offence comes to the complainant’s knowledge, but within 2 years after the commission of the offence;
  1. (c)
     if the offence involves a breach of an obligation causing death and the death is  investigated by a coroner under the Coroners Act 2003—2 years after the coroner makes a finding in relation to the death.“
  1. [19]
    While s 837(3) refers to the application of the Industrial Relations Act 1999 (“IR Act”) to a proceeding such as the one in the complaint in this case, the proceeding is still to be dealt with pursuant to the Justices Act 1886 (the “Justices Act”). Section 683 of the IR Act provides:

“683  Offence proceedings generally

  1. (1)
     Proceedings for an offence under this Act are to be heard and decided by the court or a magistrate, within the limits of the court's or magistrate's jurisdiction.
  1. (2)
     Proceedings before a magistrate are to be heard and decided summarily under the Justices Act 1886, but the Industrial Magistrates Court where the proceedings are taken is to be constituted by a magistrate sitting alone.

…”

  1. [20]
    That s 683 applies to the complaint in this case is made clear by s 677 of the IR Act. It provides:

“The provisions of this Act providing for the powers of and procedures before the court, the commission or an Industrial Magistrates Court apply in relation to the jurisdiction of the court, the commission or an Industrial Magistrates Court under this or another Act, unless the contrary intention appears.”

  1. [21]
    Another issue which arises in this appeal is the meaning of the word “hearing” under the Justices Act. A “hearing” is not defined in the Justices Act – apart from s 4 where it is provided that a “hearing” includes an examination of witnesses in relation to an indictable offence.
  2. [22]
    Part 3 Div 4 of the Justices Act deals with the circumstances where a complaint may be heard and determined by a Magistrates Court constituted by two or more justices. But that section does not apply. Section 27(1) provides:

“Subject to the provisions of any other Act, every complaint shall be heard and determined by a Magistrates Court constituted by 2 or more justices.”

  1. [23]
    Section 683(2) of the IR Act does provide to the contrary and requires that an Industrial Magistrates Court is to be constituted by a magistrate sitting alone.
  2. [24]
    Section 42 of the Justices Act requires that, apart from certain circumstances, all proceedings under the Justices Act are to be commenced by a complaint in writing. The matter which may comprise a complaint is referred to in s 43:

“43  Matter of complaint

  1. (1)
     Every complaint shall be for 1 matter only, and not for 2 or more matters, except—
  1. (a)
     in the case of indictable offences—if the matters of complaint are such that they may be charged in 1 indictment; or
  1. (b)
     in cases other than cases of indictable offences—if the matters of complaint—
  1. (i)
     are alleged to be constituted by the same act or omission on the part of the defendant; or
  1. (ii)
     are alleged to be constituted by a series of acts done or omitted to be done in the prosecution of a single purpose; or
  1. (iii)
     are founded on substantially the same facts; or
  1. (iv)
     are, or form part of, a series of offences or matters of complaint of the same or a similar character; or
  1. (c)
     when otherwise expressly provided.
  1. (2)
     When 2 or more matters of complaint are joined in the 1 complaint each matter of complaint shall be set out in a separate paragraph.
  1. (3)
     At the hearing of a complaint in which 2 or more matters of complaint have been joined but which does not comply with the provisions of this section—
  1. (a)
     if an objection is taken to the complaint on the ground of such noncompliance—the court shall require the complainant to choose 1 matter of complaint on which to proceed at that hearing; or
  1. (b)
     if no such objection is taken to the complaint—the court may proceed with the hearing and may determine the matters of complaint, and may convict or acquit the defendant in accordance with such determination.
  1. (4)
     If, at the hearing of a complaint, it appears to the court that a defendant may be prejudiced or embarrassed in the defendant's defence because the complaint contains more than 1 matter of complaint or that for any other reason it is desirable that 1 or more matters of complaint should be heard separately, the court may order that such 1 or more matters of complaint be heard separately.”
  1. [25]
    Another issue which arises in this appeal is whether or not the offence has been sufficiently described in the complaint. Section 47 refers to the “sufficient description of [an] offence”:

“(1)  The description of any offence in the words of the Act, order, by-law, regulation, or other instrument creating the offence, or in similar words, shall be sufficient in law.

…”

  1. [26]
    A complaint may be amended in accordance with s 48:

“48 Amendment of complaint

If at the hearing of a complaint, it appears to the justices that—

  1. (a)
     there is a defect therein, in substance or in form, other than a noncompliance with the provisions of section 43; or
  1. (b)
     there is a defect in any summons or warrant to apprehend a defendant issued upon such complaint; or
  1. (c)
     there is a variance between such complaint, summons or warrant and the evidence adduced at the hearing in support thereof;

then—

  1. (d)
     if an objection is taken for any such defect or variance—the justices shall; or
  1. (e)
     if no such objection is taken—the justices may;

make such order for the amendment of the complaint, summons or warrant as appears to them to be necessary or desirable in the interests of justice.”

  1. [27]
    Section 49 provides for adjournment of a hearing in certain circumstances:

“49 Amendment

If in making an order for the amendment of a complaint summons or warrant the justices consider that the defendant has been misled by the form in which the complaint summons or warrant has been made out or if it appears to them that the variance between the complaint summons or warrant and the evidence adduced at the hearing in support thereof is such that the defendant has been thereby deceived or misled, they may, and at the request of the defendant shall, upon such terms as they think fit, adjourn the hearing of the case to some future day, and in the meantime may commit the defendant, or whether or not the defendant is in custody, may grant the defendant bail or may suffer the defendant to go at large without bail.”

  1. [28]
    The hearing which was before the industrial magistrate was a direction hearing. Section 83A of the Justices Act provides:

“(1)  This section applies to a proceeding for an offence.

  1. (2)
     A magistrate, on his or her own initiative, may direct the parties to the proceeding to attend at a direction hearing.
  1. (3)
     A party to the proceeding may apply to a court, in the approved form, for a direction hearing.
  1. (4)
     The party must serve a copy of the filed application on each other party at least 2 clear days before the day nominated for the direction hearing, unless the court directs otherwise.
  1. (5)
     At a direction hearing, a magistrate may give a direction he or she is entitled to make at law about any aspect of the conduct of the proceeding, including, for example, about any of the following—

(aa) disclosure under the Criminal Code, chapter 62, chapter division 3;

  1. (a)
     a party providing a copy of—
  1. (i)
     a medical, psychiatric or other expert report; or
  1. (ii)
     a statement, report or other stated information relevant to the proceeding;
  1. (b)
     psychiatric or other medical examination of the defendant;
  1. (c)
     joining complaints;
  1. (d)
     receiving evidence or submissions by telephone, video link or other form of communication;
  1. (e)
     issuing a summons or warrant;
  1. (f)
     changing the usual practice of the court in a way that helps an alleged victim of the offence to give evidence in the proceeding;
  1. (g)
     if the proceeding is a committal proceeding—
  1. (i)
     the arrangements necessary for the giving of evidence by an affected child witness under the Evidence Act 1977, part 2, division 4A; or
  1. (ii)
     cross-examining a protected witness under the Evidence Act 1977, part 2, division 6.

…”

The functions of a complaint and the functions of particulars

  1. [29]
    The first ground of appeal for Mr Parhusip is:

“The learned industrial magistrate, having found that the particulars in the complaint did not set out the situation clearly vis a vis what was ‘operating plant’, ought to have found that the appellant had not had the true nature of the offence made known to him in unambiguous terms prior to the expiration of the statutory time limitation.

Thus, the learned industrial magistrate ought to have struck out the complaint as having failed to unambiguously allege an essential element of the offence within time.”

  1. [30]
    At the hearing of the appeal, leave was granted to Mr Parhusip to amend his second ground of appeal to read:

“The learned magistrate erred in finding that the revised particulars provided with regard to the operating plant are not essential elements of the complaint and that the respondent is not required to apply to amend.”

  1. [31]
    The requirements for a valid complaint under the Justices Act were considered in Bell v Hendry[2] :

“[32] The requirements for a valid complaint are to be determined, first, by reference to the relevant provisions of the Act and the Justices Act. Secondly, the complaint must be considered against the background of the common law requirements and the constructions the courts have given to the relevant provisions or their counterparts in other jurisdictions.

[33] The Justices Act does not descend to great detail in setting out the requirements for a complaint.

[34] Section 42 requires, among other things, that a complaint be in writing.

[35] Section 43 dictates that a complaint shall be for one matter only, subject to certain exceptions. A complaint may be for two or more matters where the matters of complaint:

 (a) are alleged to be constituted by the same act or omission on the part of the defendant; or

 (b) are alleged to be constituted by a series of acts done or omitted to be done in the prosecution of a single purpose; or

 (c) are founded on substantially the same facts; or

 (d) are, or form part of, a series of offences or matters of complaint or a similar character.

[36] Section 47 allows that the description of any offence in the words of the Act, order, by-law, regulation or other instrument creating the offence, or in similar words, shall be sufficient in law.

[37] The common law requirements for a valid complaint were considered in Kirk v Industrial Court of New South Wales and the following were identified:

 (a) A defendant is entitled to be told not only of the legal nature of the offence which is charged, but also of the particular act, matter or thing alleged as the foundation of the charge.

  (b) The complaint must inform the court of the identity of the offence with which it is required to deal and provide the accused with the substance of the charge which he or she is called upon to meet.

 (c) Such a charge “must at least condescend to identifying the essential factual ingredients of the actual offence”.

 (d) An information (complaint) must specify ‘the time, place and manner of the defendant’s acts or omissions’.

[38] Another factor which should be taken into account when assessing the competence of a complaint is the requirement that it contain sufficient identification of the acts or omissions the subject of the charge as to allow a defendant to rely upon any defence available under the relevant statute.” (citations omitted)

  1. [32]
    Further analysis of the requirements for a complaint was undertaken by Jackson J in Karimbla Construction Services Pty Ltd v President of the Industrial Court of Queensland[3].  That case was concerned with a complaint alleging a breach of the Workplace Health and Safety Act 1995.  His Honour said:

“[33] A valid complaint, although in need of amendment, is one which ex hypothesi engages the jurisdiction of the Industrial Magistrates Court in a prosecution for an offence under s 164(1) of the WHSA. The precise question at hand is where the line is to be drawn between a complaint which contains allegations that would not be sufficient in an indictment but are capable of amendment and one that is so defective that it is incapable of amendment, in the context of an alleged contravention under ss 24 and 30(1)(b) of the WHSA.

[34] The applicant relies on Kirk (v Industrial Court of New South Wales (2010) 239 CLR 531) in support of the conclusion that the complaint in the present case suffers from a fatal defect because of a lack of allegations of acts or omissions constituting the offence.  However, Kirk does not answer the question.  There are several reasons. 

[35] The offence provisions considered in Kirk were contained in New South Wales legislation.  Section 15(1) of the Occupational Health & Safety Act 1983 (NSW) provided that: “[e]very employer shall ensure the health safety and welfare at work of all the employer’s employees.”  Broadly speaking, it corresponded to s 28(1) of the WHSA, although its operation was confined to employees.  Of course, different statutory provisions regulated the bringing of proceedings to prosecute an offence under the NSW Act. One of the relevant provisions in Kirk required that an application for an order under the relevant Summary Jurisdiction Act should identify the nature of the offence that was alleged.  Broadly speaking, it corresponds to s 564(1) of the Criminal Code.  Nonetheless, in the plurality reasons for judgment, reference was made to the common law requirement that a defendant is entitled to be told not only of the legal nature of the offence with which he or she is charged but also the particular matter or thing alleged as the foundation of the charge.

[36] However that may be, Kirk did not decide that an application brought under the New South Wales comparators of the provisions set out above was invalid in such a way that it was incapable of amendment.  In Kirk, the case had proceeded to judgment. An order had been made convicting the defendant.  There was no occasion to consider whether the application would have been capable of amendment before judgment. The plurality said this:

‘No application was made to the Court of Appeal for an order in the nature of certiorari quashing the orders made by the Industrial Court that required Mr Kirk and the Kirk Company to appear to answer the offences charged … 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.  Proceeding without further particularisation of the acts and omissions said to found the charges reflected views as to the nature and extent of the duty cast upon an employer by ss 15 and 16 and the limited operation to be given to the s 53 defences’.

[37] At one point, it was thought that the reasoning in Kirk may not fully apply to a contravention of s 24(1) of the WHSA based on failure to discharge a workplace health and safety obligation imposed under s 28 because of differences in the legislation.  However, that view was rejected by the Court of Appeal in NK Collins Industries Pty Ltd v President of the Industrial Court of Queensland.  The contention that s 24(1) did not, properly construed, require the actual nature of the contravention to be identified was rejected as one which ‘can only produce uncertainty’. After NK Collins Industries, it must be accepted that a properly pleaded complaint must allege particulars of the acts or omissions constituting the offence under s 24(1) of failing to discharge a particular workplace health and safety obligation.” (emphasis added, citations omitted)

  1. [33]
    At the heart of Mr Parhusip’s case is an argument that requires consideration of the relationship between a “complaint” and the “particulars” of that complaint. 
  2. [34]
    The function of a complaint is dictated by the requirements of the Justices Act.  The function of the particulars of a complaint is different.  For these purposes there is little difference between an indictment and a complaint and the authorities dealing with these issues, so far as indictments are concerned, are of assistance in this analysis.
  3. [35]
    The function of particulars is to enable an accused to know the nature of the charge which he or she is called on to meet.[4]  A helpful analysis of the difference between an indictment (or, for these purposes, a complaint) and the particulars which are supplied can be found in the decision of Hunt AJA in R v Saffron[5].  From his reasons[6] the following relevant principles may be drawn:
    1. (a)
      Particulars are not treated as if they are pleaded as part of the complaint.[7] 
    2. (b)
      Where a party seeks to lead evidence in support of the pleaded case which is outside the particulars which have been supplied in support of that case, it is for the trial judge to consider whether such evidence unfairly amounts to a case of which the other party has had insufficient warning.
    3. (c)
      The exercise of that discretion must necessarily depend upon many things, including the amount of warning which the other party has had that such evidence was to be led. The relief which is granted to a party at the trial must in the end be founded on the pleadings and not upon any particulars which have been given of the matters alleged in those pleadings: Dare v Pulham.[8]
    4. (d)
      The accused's entitlement to particulars in a criminal case is the same as a defendant's entitlement in a civil case.
    5. (e)
      Where the relevant particulars are not stated in the complaint (because the necessity to do so has been dispensed with by statute), a defendant is entitled to have identified the specific transaction upon which the complainant relies and to be apprised not only of the legal nature of the offence with which he is charged but also the particular act, matter or thing alleged as the foundation of the charge.
    6. (f)
      If the complainant’s obligation to give particulars in a criminal case is the same as a plaintiff's obligation to do so in a civil case, so should the consequences of having given those particulars be the same in each type of case — subject only to the trial judge's duty in each case to ensure that prejudice is not created by any departure from those particulars.
    7. (g)
      There is no logical reason why a complainant should not be entitled in the appropriate case to lead evidence which is within the charge pleaded in the indictment but outside its particulars, in accordance with principles discussed by the High Court in Dare v Pulham.
    8. (h)
      The particulars given by a complainant are not the same as allegations in a complaint such that the complainant’s case must by law be circumscribed by them.
    9. (i)
      The obligation to include in a complaint a statement of every essential factual ingredient of the offence charged was originally imposed in order to found the jurisdiction of the court to deal with that alleged offence; that rationale has only in comparatively recent times been extended to include the provision of sufficient particulars to enable the accused to know the substance of the charge which he is called upon to meet: John L Pty Ltd v Attorney-General (NSW)[9].
  4. [36]
    One of the authorities referred to by Hunt AJA was Dare v Pulham[10].  In that case the High Court was dealing with a civil matter but, as Hunt AJA has pointed out, the principles with respect to pleadings and particulars may be applied generally to complaints and their particulars.  Murphy, Wilson, Brennan, Deane and Dawson JJ said:

“Pleadings and particulars have a number of functions: they furnish a statement of the case sufficiently clear to allow the other party a fair opportunity to meet it ...; they define the issues for decision in the litigation and thereby enable the relevance and admissibility of evidence to be determined at the trial ... . Apart from cases where the parties choose to disregard the pleadings and to fight the case on issues chosen at the trial, the relief which may be granted to a party must be founded on the pleadings ... . But where there is no departure during the trial from the pleaded cause of action, a disconformity between the evidence and particulars earlier furnished will not disentitle a party to a verdict based upon the evidence. Particulars may be amended after the evidence in a trial has closed ... , though a failure to amend particulars to accord precisely with the facts which have emerged in the course of evidence does not necessarily preclude a plaintiff from seeking a verdict on the cause of action alleged in reliance upon the facts actually established by the evidence”.[11] (emphasis added, citations omitted)

  1. [37]
    These principles have been applied by the Court of Appeal in R v Trifillis[12] and R v Logan[13].

Was the complaint in accordance with statutory requirements?

  1. [38]
    It was argued before the industrial magistrate that the complaint was inadequate because it described the place where the offence was alleged to have occurred as being “operating plant” as defined in the PG Act.  I cannot, with respect to the arguments advanced to support that construction, agree.  The complaint alleges the following:
  1. (a)
     The date of the alleged offence – 3 August 2012;
  1. (b)
     The place of the alleged offence – Coal seam gas well Kathleen No 141;
  1. (c)
     That Mr Parhusip was the operator of an operating plant;
  1. (d)
     That Mr Parhusip failed to make, for each stage of the plant, a safety management plan that complied with the PG Act.
  1. [39]
    The complaint then goes on to allege that that failure resulted in injury to two persons. 
  2. [40]
    The complaint does not, on its face, identify the operating plant of which Mr Parhusip was alleged to be the operator.  At most, it alleges that the operating plant was at the Coal Seam Gas Well Kathleen No 141.  It does not, as was submitted to the industrial magistrate and in this Court, identify the site of the contravention as “operating plant”. 
  3. [41]
    The particulars, attached to the complaint, do assert that “the site is an operating plant within the meaning of that term” in the PG Act.  A site can be an “operating plant” – s 670(5) of the PG Act defines an operating plant as being “also a place, or part of a place, at which a following activity is carried out”.  There is insufficient evidence to determine whether or not “coal seam gas well Kathleen No 141” would come within that definition.  There is, though, no need to pursue that.  While the allegation that the coal seam gas drilling site was an operating plant might disconcert a reader of the particulars, that concern would not last long.  Anyone who read the whole set of particulars would understand that they concerned a rig for which a safety management plan had not been completed in accordance with the PG Act. There is no reason to apply a different reading standard to particulars from that applied to a complaint. As Nettle JA said in DPP(Vic) v Kypri[14]:

“A charge is to be interpreted in the way in which a reasonable defendant would understand it, giving reasonable consideration to the words of the charge in their context.”[15]

  1. [42]
    The revised particulars set out in greater detail the content of the allegations made.  They also make clear that the “operating plant” the subject of the allegations is the rig at well site Kathleen 141.

Amendment of complaint and amendment of particulars

  1. [43]
    The Justices Act provides, in ss 48, 49 and 50, for the amendment of, amongst other things, a complaint.  The base power to amend a complaint is found in s 48.  It premises that capacity on any such amendment taking place “at the hearing of a complaint”.  There is no other provision in the Justices Act which allows for such an amendment.  Section 83A, which provides the industrial magistrate with the capacity to issue certain directions, does not go so far as to allow an amendment prior to the hearing.  Mr Bell contends that he will seek to call evidence at the hearing which will be consistent with the revised particulars.  If such evidence demonstrates that there is a variance between the evidence and the complaint then the power to amend is enlivened.  It is not appropriate at this stage of proceedings to make any comment on whether such an amendment should be sought or might be allowed.  That is entirely a matter for the industrial magistrate who hears the complaint. 
  2. [44]
    In the oral submissions of Ms Mellifont QC she said that the only issue in contention is whether or not the prosecution is entitled to change the particulars of operating plant from site to rig and/or the act or omission.  That argument is based, at least in part, on the contention that the complaint identifies the site of the gas well as the “operating plant”.  As I have set out above, I do not accept that contention.  The complaint does not identify the “operating plant”.  The particulars which accompanied the complaint do refer to the site as an operating plant but, in the context of all of the particulars, the reasonable reading of them leads to the conclusion that the operating plant is, in fact, the drilling rig. 
  3. [45]
    At this stage of proceedings it is difficult to see any prejudice which will be suffered by Mr Parhusip through the adoption of the revised particulars.  It could not be said that any “irreparable procedural fairness”[16] has been suffered by Mr Parhusip.  He has not yet been called on to plead to the charge and in the light of the order of the industrial magistrate (and the appeal from that order) the trial dates have been set aside. 
  4. [46]
    It was submitted by Ms Mellifont QC that the capacity to amend in s 48, being conditioned on the requirement that it occur at the hearing of the charge, meant that such a power existed from the first return of the complaint in the Industrial Magistrates Court.  In Ms Mellifont QC’s argument she submitted that the hearing starts before a plea is entered.  I cannot, with respect, accept that.  The term “hearing” is not defined in the Justices Act but its proper construction within the context of that Act is that the word “hearing” equates with the trial of the complaint.  So much can be drawn from s 48(c) where there is a reference to a variance between the complaint and the evidence adduced at the hearing in support of the complaint.  Such evidence would not be adduced except at the “trial” of the complaint.  In other words, a “hearing” for the purposes of s 48 is the occasion on which the industrial magistrate hears the evidence and receives the submissions of the parties relating to the final disposition of the complaint.
  5. [47]
    The provisions of s 48 and the balance of the Justices Act do not relate to the particulars which are provided.  Unless there is some unfairness involved by, for example, a very late provision of particulars where there is no opportunity for the defendant to deal with the change, amendments will ordinarily be able to be made by the complainant and used at the hearing of the complaint.

The nature of the application before the industrial magistrate

  1. [48]
    The order sought by Mr Parhusip before the industrial magistrate could not have been granted.  There was no power in the Court to make an order requiring the prosecution to file and serve any application to amend the complaint.  For the reasons set out above, the capacity to amend is premised upon the hearing taking place.  That had not occurred at the time of the application.  The application to the industrial magistrate, then, was incompetent and should have been dismissed.
  2. [49]
    It was not contended, at any stage, that the complaint was invalid.  That was made clear in submissions before the Industrial Magistrates Court when Ms Mellifont QC said:

“Now, we don’t stand before your Honour to say that this man is not to face trial on the initial complaint.  We don’t say that it’s invalid.  What we say is it is unambiguous that operating plant is the site.  We say it is unambiguous that the alleged failure is that SMP should have said what to do with respect to the rod lock and that’s what the prosecution are bound to.  If they want to change it to the revised particulars, they have to apply to amend.”

  1. [50]
    In the absence of any assertion of invalidity in the complaint it was not open to the industrial magistrate to strike out the complaint and, for the reasons given above it was not open to the industrial magistrate to make any orders with respect to the revised particulars given that no unfairness had been demonstrated. 

Appeal by Mr Bell

  1. [51]
    For the reasons given above, the industrial magistrate had no power to make the orders which were made. There was, in any event, no application before the court seeking such orders. There was no need for Mr Bell to seek leave to deliver revised particulars in the circumstances of this case. The change in the particulars was able to be made especially where there was no evidence to suggest any prejudice to the defendant. The revised particulars did not change the true nature or essential elements of the charge.
  2. [52]
    It was not open to the industrial magistrate to consider whether any application to amend might or might not be granted. Apart from the fact that there was no need to seek leave to amend the particulars, it is inappropriate for a court to purport to determine the outcome of an application (which has not been made) in circumstances where all the facts and circumstances which might give rise to an application to amend are unknown.

Conclusion and orders

  1. [53]
    The application to the industrial magistrate was misconceived. It should have been dismissed.  It follows that the appeal from those orders by Mr Parhusip must be dismissed and the appeal by Mr Bell must be allowed.  The orders of the industrial magistrate are set aside.

Footnotes

[1] Reprint number 5D is the version of the Act which applies to these proceedings.

[2] [2014] ICQ 18.

[3] [2014] QSC 56.

[4]R v Juraszco [1967] Qd R 128 at 135 per Stable J, Gibbs J agreeing.

[5] (1988) 17 NSWLR 395.

[6] At 446-449.

[7] See also Gerakiteys v The Queen (1984) 153 CLR 317 at 336 per Deane J.

[8] (1982) 148 CLR 658 at 664.

[9] (1987) 163 CLR 508 at 519.

[10] (1982) 148 CLR 658.

[11] Ibid at 664.

[12] [1998] QCA 416.

[13] [2012] QCA 210.

[14] (2011) 33 VR 157.

[15] At [16].

[16]GPI (General) Pty Ltd v Industrial Court of New South Wales (2011) 207 IR 93 at [80].

Close

Editorial Notes

  • Published Case Name:

    Roy Parhusip v Stewart Lynn Bell; Stewart Lynn Bell v Roy Parhusip

  • Shortened Case Name:

    Parhusip v Bell; Bell v Parhusip

  • MNC:

    [2015] ICQ 25

  • Court:

    ICQ

  • Judge(s):

    Martin P

  • Date:

    25 Sep 2015

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Bell v Hendry & Ors [2014] ICQ 18
2 citations
Jump To
Cite 1 - [2014] ICQ 18
Cite 2 - [2014] ICQ 18
Dare v Pulham (1982) 148 CLR 658
4 citations
Jump To
Cite 1 - (1982) 148 CLR 658
Cite 2 - (1982) 148 CLR 658
Cite 3 - (1982) 148 CLR 658
Cite 4 - (1982) 148 CLR 658
Director of Public Prosecutions v Kypri (2011) 33 VR 157
2 citations
Jump To
Cite 1 - (2011) 33 VR 157
Cite 2 - (2011) 33 VR 157
Gerakiteys v The Queen (1984) 153 CLR 317
2 citations
Jump To
Cite 1 - (1984) 153 CLR 317
Cite 2 - (1984) 153 CLR 317
GPI (General) Pty Ltd v Industrial Court of New South Wales (2011) 207 IR 93
2 citations
Jump To
Cite 1 - (2011) 207 IR 93
Cite 2 - (2011) 207 IR 93
John L Pty Ltd v The Attorney-General for the State of New South Wales (1987) 163 CLR 508
2 citations
Jump To
Cite 1 - (1987) 163 CLR 508
Cite 2 - (1987) 163 CLR 508
Karimbla Construction Services Pty Ltd v President of the Industrial Court of Queensland [2014] QSC 56
2 citations
Jump To
Cite 1 - [2014] QSC 56
Cite 2 - [2014] QSC 56
Kirk v Industrial Court (NSW) (2010) 239 CLR 531
1 citation
Jump To
Cite 1 - (2010) 239 CLR 531
R v Juraszko [1967] Qd R 128
2 citations
Jump To
Cite 1 - [1967] Qd R 128
Cite 2 - [1967] Qd R 128
R v Logan [2012] QCA 210
2 citations
Jump To
Cite 1 - [2012] QCA 210
Cite 2 - [2012] QCA 210
R v Saffron (1988) 17 NSWLR 395
3 citations
Jump To
Cite 1 - (1988) 17 NSWLR 395
Cite 2 - (1988) 17 NSWLR 395
Cite 3 - (1988) 17 NSWLR 395
R v Triffyllis [1998] QCA 416
2 citations
Jump To
Cite 1 - [1998] QCA 416
Cite 2 - [1998] QCA 416

Cases Citing

Case NameFull CitationFrequency
Nicholson v MSF Sugar Pty Ltd [2025] QDC 991 citation
Schloss v Bell; Bell v Schloss [2015] ICQ 363 citations
1

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