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Schloss v Bell; Bell v Schloss[2015] ICQ 36

Schloss v Bell; Bell v Schloss[2015] ICQ 36

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Schloss v Bell; Bell v Schloss [2015] ICQ 36

PARTIES:

Schloss, Dennis William

(Appellant)

v

Stewart Lynn Bell, Commissioner under the Petroleum and Gas (Production and Safety) Act 2004

(Respondent)

CASE NO:

C/2014/43

PARTIES:

Stewart Lynn Bell, Commissioner under the Petroleum and Gas (Production and Safety) Act 2004

v

Schloss, Dennis William

(Appellant)

CASE NO:

C/2014/44

PROCEEDING:

Appeal against decision of Industrial Magistrate

DELIVERED ON:

24 December 2015

HEARING DATE:

30 January 2015

MEMBER:

Deputy President O'Connor

ORDERS:

  1. In matter C/2014/43:
  1. the appeal is allowed;
  2. the guilty verdict is set aside; and
  3. the complaint is dismissed.
  1. In matter C/2014/44 the appeal is dismissed.

CATCHWORDS:

INDUSTRIAL MAGISTRATES - APPEAL AGAINST A DECISION OF THE INDUSTRIAL MAGISTRATE - PARTICULARS - SUFFICIENCY OF REASONS - Where a worker suffered injuries following an incident at a coal seam gas well - 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, in respect of the description of ‘operating plant’, the learned Industrial Magistrate determined a description not contained within the complaint or particularised by the prosecution - Whether power to amend the complaint under s 48 of the Justices Act 1886 was enlivened - Whether the learned Industrial Magistrate impliedly amended the complaint - Whether the learned Industrial Magistrate ought to have dismissed the complaint, the prosecution having failed to prove essential elements of the offence - Whether there was a valid Safety Management Plan in operation - Whether a Job Hazard Anaylsis was required to be carried out - Whether a learned Industrial Magistrate erred in failing to give adequate reasons - Whether the learned Industrial Magistrate erred in finding the offence proven - Whether the learned Industrial Magistrate erred in not considering defences - Appeal allowed - Complaint dismissed - Cross-appeal dismissed.

CASES:

Industrial Relations Act 1999, ss  677, 683

Justices Act 1886, ss 43, 47, 48, 49, 158A

Petroleum and Gas (Production and Safety) Act 2004, ss 670, 673, 674, 699, 702, 732A, 837

Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430

Bell v Hendry & Ors [2014] ICQ 18

Bell v Schloss [2014] QMC 023

Dare v Pulham (1982) 148 CLR 658

Drew v Makita (Australia) Pty Ltd [2009] 2 Qd R 219

DPP(Vic) v Kypri (2011) 33 VR 157

Felix v Smeron (1944) 19 ALJ 30

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

Mbuzi v Torcetti [2008] QCA 231

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

Pettit v Dunkly [1971] 1NSWLR 376

Qld Independent Education Union of Employees v Local Govt Association of Qld Ltd [2015] ICQ 003

Q-COMP v Mana (C/2011/48) - Decision

R v Juraszco [1967] Qd R 128

Soulemezis v Dudley (Holdings) Pty Ltd (1987) Strbak v Newton [1989] NSWCA 202

Surman (1996) 85 A Crim R 361

Svenson v Q-Comp (2006) 181 QGIG 629

APPEARANCES:

Mr P.J. Roney QC, Counsel instructed by Ashurst Australia for the appellant and cross-respondent.

Mr A.J. MacSporran QC, Counsel instructed by Crown Law for the respondent and cross-appellant.

Decision

  1. [1]
    In March 2012, a complaint was issued by Mr Stewart Lyn Bell ("the respondent") under the Justices Act 1886 alleging two counts of breaches of the Petroleum and Gas (Production and Safety) Act 2004 ("the PG Act") against Mr Dennis Schloss ("the appellant").
  1. [2]
    A new complaint was sworn and issued on or about 20 July 2012.  That complaint made allegations of breaches of ss 699 and 702 of the PG Act.
  1. [3]
    On 11 March 2013, the Prosecution indicated that the respondent would proceed against the appellant in respect of count 2 only, namely that brought under s 702 of the PG Act.
  1. [4]
    The appellant was charged and convicted in the Industrial Magistrates Court at Taroom of an offence against s 702 of the PG Act in that:

"On 16 March 2011, at an operating plant, namely, Santos Scotia well #22, Petroleum Lease PL 176, approximately 30kms from Wandoan in the Dalby Magistrates Court District in the State of Queensland, DENNIS WILLIAM SCHLOSS, a person at an operating plant, failed to comply with safety procedures and other obligations under the safety management plan for the plant to the extent the procedures and obligations applied to DENNIS WILLIAM SCHLOSS in contravention of s.702 of the Petroleum and Gas (Production and Safety) Act 2004 and the contravention caused bodily harm to Gavin Vieritz."

Particulars

  1. [5]
    The original particulars of the offence were partially replaced by those which became exhibit 6 and exhibit 57 as follows:

"Particulars

That at the place and time abovementioned:

  1. Santos QNT Pty Ltd is a tenant in common with Vamgas Pty Ltd for Petroleum Lease PL 176 and Santos QNT Pty Ltd was the principal holder of that Petroleum Lease.
  2. Santos Limited is the ultimate holding company for Santos QNT Pty Ltd.
  3. Petroleum Lease PL 176 was an operating plant within the meaning of s.670 of the Petroleum & Gas (Production & Safety) Act 2004. 
  4. The standard operating procedures for Santos Ltd were contained in a document labelled "Santos Safety Management Plan Eastern Queensland Gas". (SMP)
  5. The SMP for Santos Ltd was issued on 30 June 2005.
  6. The SMP provided that where there was no standard procedure for maintenance and repair, a Job Hazard Analysis (JHA) was required to be completed prior to work commencing.
  7. Dennis William Schloss and Gavin Vieritz were employees of Santos Ltd at the relevant time.
  8. On 16 March 2011, Gavin Vieritz was on site at Santos Scotia well #22.  He commenced work on the mobile coal seam gas separator unit without completing any safety documentation including either a Work Permit or a JHA which are required under the SMP.
  9. Dennis William Schloss was aware or should have been aware that Gavin Vieritz was performing maintenance to the mobile coal seam gas separator unit at Santos Scotia Wellhead #22 and that there was no standard procedure for the task that Gavin Vieritz was performing.
  10. Gavin Vieritz was dismantling the gas regulator, a component of the separator unit, when it separated with force causing injury.

Particulars provided 5 June 2014

  1. The Safety Management Plan (SMP) for the plant (PL 176) required a JHA to be carried out prior to the commencement of the work undertaken by Mr Vieritz on the mobile separator.

Reference

  • SMP, s 7;
  • EHSMS 09-1, 4.2, 4.25;
  • EHSMS 09.1 - 1, 2, 4.2.1, 4.2.2 (plus flowchart and Appendix C JHA Guideline);
  • EHSMS 11.8 - 1.1, 1.2, 3.2.1(a);
  • Work Permit Procedure (WPP) – 1.1, 1.2, 5.2, 3.5.
  1. The defendant had an obligation under the terms of the SMP to ensure that a JHA was considered and undertaken by Mr Vieritz in that he was required:
  1. (i)
    to ensure that Mr Veiritz considered whether a JHA should be conducted (WPP 5.2); and/or
  1. (ii)
     (i)  To nominate a team leader for the performance of the JHA (EHSMS 09.1 at 4.2.3); and/or
  1. (iii)
     (ii) To approve the content of the JHA prior to the work commencing (EHSMS 09.1 at 4.2.5, 6).
  1. The failure by the Defendant to comply with the obligations referred to in 2 above, caused the injury to Mr Vieritz amounting to bodily harm in that:
  1. (i)
    The JHA was required to consider, identify, assess and control EHS risks for the work to be undertaken by Mr Vieritz (EHSMS 09.1) at 1;
  2. (ii)
    One of the safety precautions required to be considered for cold work such as Mr Vieritz proposed to undertake, was isolation from process operations (WPP 3.6, 7, 7.1, 7.2, 7.2.1, 7.2.2, 7.3, 7.3.2, 7.4, 7.4.3, 7.5, 7.6, 7.6.4, 7.6.7, 7.7, and Module 50 – Equipment Isolations – 1, 1.1, 1.2, 1.3(i), 1.4, 2, 2.2, 3, 3.1, 3.2, 3.3, 3.4, 3.5, 3.7(i), 4, 4.1, 4.2, 6, 6.1);
  3. (iii)
    Compliance with such procedures referred to at (i), (ii) and (iii) above would have prevented the incident occurring and hence have prevented the injury to Mr Vieritz."
  1. [6]
    It is common ground that the operator from 2008 until the incident was Santos QNT Pty Ltd.

The appeal by Dennis William Schloss

  1. [7]
    Mr Schloss appeals against the conviction by the Industrial Magistrate of an offence under s 702 of the PG Act.  The grounds of appeal are:

"1.  The learned Magistrate erred in finding that as a matter of law, on the evidence before her, an offence under s.702 of the Petroleum and Gas (Production and Safety) Act 2004 (Qld) ("P&G Act") was proven.

  1. The learned Magistrate erred in her construction of the effect of s.702 of the P&G Act in that:
  1. she failed to identify any basis for, and failed to provide an explanation in her reasons for, concluding that the Appellant was a person at an operating plant within the meaning of that term in s.702 at the time of the alleged offence;
  2. she failed to identify any basis for, and failed to provide an explanation in her reasons for, concluding that there were safety procedures and other obligations under the safety management plan ("SMP") for that plant, which was a precondition to the operation of s.702; and
  3. she failed to identify any basis for, and failed to provide an explanation in her reasons for, concluding that such safety and other obligations that existed for that plant (to the extent that it was plant) applied to the Appellant, which was a precondition to the operation of s.702.
  1. The learned Magistrate erred in law in concluding that all well heads and other infrastructure were operating plant for the purposes set out in s.670(2)(a) of the P&G Act.
  2. The learned Magistrate erred in finding that the Appellant was at operating plant and that that was where the alleged offence had been committed, and also failed to make the findings required under s.702 to establish the commission of an offence under that section.
  3. The learned Magistrate erred in failing to dismiss the charge notwithstanding that:
  1. the Prosecution case was that the relevant operating plant, at which the Appellant was alleged to have been present when the relevant incident occurred on 16 March 2011, was the Petroleum Lease PL 176; and
  2. the Magistrate accepted that Petroleum Lease PL 176 was not operating plant and that therefore the Prosecution case was not made out.
  1. The learned Magistrate erred in:
  1. failing to identify and specify in her reasons the basis for her conclusion that the operating plant which the Appellant was present, namely 'the tenure holder's offices, the processing sheds or other well heads' was operating plant for the purposes of the P&G Act;
  2. concluding that 'the tenure holder's offices, the processing sheds or other well heads', which she found was the place where the Appellant was present at the time of the offence, was operating plant within the meaning of s.702 of the P&G Act;
  3. concluding that there was evidence that the Appellant was present at that operating plant at the time of the relevant offence, whereas there was no evidence or no sufficient evidence to sustain that finding.  In that context, the learned Magistrate identified that there was no contention by either party that the Appellant was at the operating plant in respect of which she concluded he committed the offence; and
  4. failing to hold that there was no evidence that demonstrated that the Appellant was at that operating plant, or that where he was at any given time on the day in question when the offence was allegedly committed was operating plant within the meaning of that term in s.702 of the P&G Act.
  1. The learned Magistrate erred in finding the offence proven notwithstanding that she did so on a bases (sic) other than that which was alleged in the Complaint, as particularised.
  2. The learned Magistrate erred in failing to make findings in respect of, or to identify in what respects the SMP imposed any obligation on the Appellant in accordance with, the Complaint as particularised, and:
  1. concluded, contrary to the particularised case, that he had an obligation to ensure that a Job Hazard Analysis ("JHA") was 'carried out' at that site on that day by him;
  2. failed to make any specific findings as to what the SMP required of him in that regard by reference to the particularised case; and
  3. ought have held that, properly construed, the SMP did not require that he ensure that a JHA was carried out nor to do the things which under the particularised case was alleged that he was required to do but did not do, ie, to nominate a team leader for the performance of a JHA or to approve the content of a JHA prior to the week commencing on that day.
  1. The learned Magistrate erred in failing to find that, on their proper construction, the documents that she concluded comprised the SMP did not require the Appellant to ensure that a JHA was carried on and further did not require him to nominate a team leader for the performance of a JHA or to approve the content of a JHA prior to the work commencing on that day, which were obligations which the Prosecution alleged were imposed upon him.
  2. The learned Magistrate erred in concluding that the SMP required a JHA to be carried out prior to the commencement of work undertaken by a worker on a mobile separator that day and further did so improperly, based upon an erroneous construction of the documents in the SMP and by reference to impermissible opinion evidence about the level of risk or danger associated with working with pressurised case. In that context:
  1. she failed to give proper effect to the clear language of the SMP documents;
  2. she failed to conclude that any obligation for the performance of a JHA was excluded because of the character of the work and the specific training, knowledge and skills of the worker; and
  3. alternatively, the learned Magistrate ought, to the extent that there was any ambiguity in the SMP documents as to whether a JHA was required, have construed the documents so as to give the Appellant the benefit of the doubt as to whether any such obligation arose.
  1. The learned Magistrate erred in concluding that an offence under s.702 was made out in relation to the obligation upon the Appellant, as one that arose under the SMP for the plant, despite concluding that the operator of the operating plant or of the Petroleum Lease had not created or adopted the SMP.
  2. The learned Magistrate erred in law in not concluding that since the operator had not issued the SMP, its provisions did not operate to establish 'safety procedures and other obligations under the safety management plan' for the plant and further, that they did not 'apply' to the Appellant within the meaning of s.702 of the P&G Act.
  3. The learned Magistrate failed to provide reasons for her conclusional statement that the SMP imposed specified obligations on the Appellant, and was the SMP for the plant at which he was present according to her findings.
  4. The learned Magistrate erred in concluding that the defences which were raised under s.732A of the P&G Act were not made out because the Appellant did not call evidence to prove the matters required by that section, and she therefore failed to consider the evidence that was otherwise before her which was capable of establishing that those defences were made out.
  5. The learned Magistrate erred in failing to hold that the offence was not proven beyond a reasonable doubt and in therefore failing to acquit the Appellant, and to award him costs under s.158A of the Justices Act and on a basis other than set out in the Scale of Costs in the Justices Regulation (as particularised in tables of costs previously provided to the Respondent on 12 September 2014).

The decision sought is;

  1. For an order setting aside the Industrial Magistrate's verdict.
  2. For an order that the charge against the Appellant be dismissed with costs of the Trial.
  3. That the Respondent pay the costs of the Appeal."

The appeal by Stewart Lyn Bell

  1. [8]
    "The grounds of appeal are:
  1. The Industrial Magistrate erred in her determination that the Defendant's breach of s.702 of the Petroleum and Gas (Production and Safety) Act 2004 did not cause bodily harm to Gavin James Vieritz.

The decision sought is:

  1. The decision of the Industrial Magistrate of 12 September 2014 in respect of the finding of causation be set aside and a decision to find that bodily was caused by a breach of s.702 of the Petroleum and Gas (Production and Safety) Act 2004 by the Respondent be substituted;
  2. The matter be relisted for sentence before the Industrial Magistrate."

The relevant legislation

  1. [9]
    The appellant was charged with breaching s 702 of the PG Act.  At the relevant time the section provided:

"702 Requirements to comply with safety management plan

A person at an operating plant must comply with safety procedures and other obligations under the safety management plan for the plant to the extent the procedures and obligations apply to the person."

  1. [10]
    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. (6)
    Also, an operating plant includes -
  1. (a)
    any part of the area of a petroleum tenure or 1923 Act petroleum tenure on which an operating plant under subsections (2) and (5) happens or is located as an authorised activity for the tenure; and

…"

  1. [11]
    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.
  2. (2)
    For a coal mining-CSG operating plant, the operator is the relevant site senior executive under the Coal Mining Safety and Health Act.
  3. (3)
    Otherwise, the operator is the person who has the role of being responsible for the management and safe operation of the plant.
  4. (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. [12]
    Section 674 of the PG Act provides:

"674 Requirement to have safety management plan

  1. The operator of an operating plant must—
  1. for each stage of the plant, make a safety management plan that complies with—
  1. section 675; and
  2. 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. implement and maintain the plan.

Maximum penalty—1500 penalty units.

  1. The operator of an operating plant must not begin a stage of the plant unless—
  1. the operator has made a safety management plan that applies to the stage; and
  2. the plan complies with section 675; and
  3. if the plant is used to explore for, extract, produce or release petroleum within coal seams—the plan complies with section 388, subject to any exemption given under section 389.

Maximum penalty—1000 penalty units.

  1. A safety management plan may apply to more than 1 operating plant.
  2. However, the plan must still comply with section 675 in relation to each operating plant to which the plan applies.

Note—

For coal mining-CSG operating plant, see division 4 (Special provisions for safety management plans for coal mining-CSG operating plant).

  1. Also, if section 705 applies for an operating plant, the safety management plan must include a principal hazard management plan."
  1. [13]
    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. [14]
    Chapter 13 Part 2 of the PG Act relates to offence proceedings.  Section 837 provides:

"837 Offences under Act are summary

  1. An offence against this Act is a summary offence.
  2. A proceeding for an offence against a provision of chapter 9, part 2, 4 or 6—
  1. must be brought before an industrial magistrate; and
  2. can be started only by complaint of the commissioner.
  1. 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. A proceeding for an offence against this Act must start within the later of the following periods to end—
  1. 1 year after the commission of the offence;
  2. 6 months after the offence comes to the complainant’s knowledge, but within 2 years after the commission of the offence;
  3. 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. [15]
    While s 837(3) refers to the application of the Industrial Relations Act 1999 ("the 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. 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.
  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. [16]
    That s 683 applies to the complaint in this case is made clear by s 677 of the IR Act. It provides:

"677 General application of jurisdictional provisions

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. [17]
    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.
  1. [18]
    Section 42 of the Justices Act relevantly requires that all proceedings under the Justices Act are to be commenced by a complaint in writing.  Section 43 provides:

"43 Matter of complaint

  1. Every complaint shall be for 1 matter only, and not for 2 or more matters, except—
  1. in the case of indictable offences—if the matters of complaint are such that they may be charged in 1 indictment; or
  2. in cases other than cases of indictable offences—if the matters of complaint—
  1. are alleged to be constituted by the same act or omission on the part of the defendant; or
  2. are alleged to be constituted by a series of acts done or omitted to be done in the prosecution of a single purpose; or
  3. are founded on substantially the same facts; or
  4. are, or form part of, a series of offences or matters of complaint of the same or a similar character; or
  1. when otherwise expressly provided.
  1. 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.
  2. 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. 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
  2. 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. 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. [19]
    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. [20]
    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. there is a defect therein, in substance or in form, other than a noncompliance with the provisions of section 43; or
  2. there is a defect in any summons or warrant to apprehend a defendant issued upon such complaint; or
  3. there is a variance between such complaint, summons or warrant and the evidence adduced at the hearing in support thereof;

then—

  1. if an objection is taken for any such defect or variance—the justices shall; or
  2. 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. [21]
    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.
  1. [22]
    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."

The Complaint

  1. [23]
    The elements of the offence are as follows:
  1. (a)
    on 16 March 2011, at an operating plant namely PL 176;
  2. (b)
    the defendant (Schloss), a person at an operating plant;
  3. (c)
    failed to comply with safety procedures and other obligations under the safety management plan for the plant; and
  4. (d)
    to the extent the procedures applied to the defendant.
  1. [24]
    The requirements for a valid complaint under the Justices Act was considered by Martin J in Bell v Hendry[1]:

"[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.

[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:

  1. 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.
  2. 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.
  3. Such a charge 'must at least condescend to identifying the essential factual ingredients of the actual offence'.
  4. 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. [25]
    The complaint alleges that the failure to comply with the obligations under the safety management plan for the plant caused bodily harm to Mr Vieritz.  Section 732 of the PG Act requires that this circumstance in the complaint is to be alleged and proved.
  1. [26]
    Mr Gavin Vieritz, an operator/maintainer employed by Santos Ltd was injured in the course of undertaking maintenance work on a mobile separator, when a back pressure valve "… separated forcefully and without warning striking him in the face and head."[2]
  1. [27]
    The incident occurred at Scotia Well Number 22 located within the area of PL 176.  PL 176 is a 1923 Act petroleum tenure.[3]
  1. [28]
    The prosecution originally particularised the "operating plant" as "Santos Scotia well # 22" but later amended it to "Petroleum Lease PL 176".
  1. [29]
    Section 670(6) specifically provides:

"Also, an operating plant includes-

  1. any part of the area of a petroleum tenure or 1923 Act petroleum tenure on which an operating plant under subsections (2) to (5) happens or is located has an authorized activity for the tenure: …"
  1. [30]
    The prosecution's case as to what constituted the operating plant was rejected by the learned Magistrate concluding that it was neither the petroleum lease, PL 176 or the Scotia Well #22.
  1. [31]
    The particulars of the "operating plant" the subject of the allegations state  "Petroleum Lease PL 176 was an operating plant within the meaning of s 670 of the Petroleum & Gas (Production & Safety) Act 2004."
  1. [32]
    Her Honour in determining the meaning to be given to "operating plant" in the complaint concluded:

"[35] On a strict interpretation of the section, I find the meaning of 'operating plant' as it applies to a petroleum tenure, as is the case here, includes those parts of the tenure or lease which are used to 'explore for, produce or process petroleum, including machinery used for maintaining or repairing a petroleum well'.  In other words, the operating plant for the purposes of this prosecution, includes all well heads and other infrastructure constructed by the tenure holders for the purposes set out in Section 670(2)(a).

[36] The prosecution originally alleged in the Complaint and Summons that Well Number 22 was the operating plant, this being later amended to allege that the Petroleum Lease PL176 was the operating plant.  Neither of these contentions is correct. Well Number 22 is 'part of the area of (the) petroleum tenure'.  It is my view that the failure by the prosecution to properly describe the 'operating plant' in the Complaint and Summons is not fatal to the prosecution.  There is no doubt that the defendant was aware of the place where the alleged offence had been committed and has not suffered any prejudice by the misdescription.

[37] There is no contention that the defendant was at the 'operating plant' being part of the plant at which the tenure holder's offices, the processing sheds or other well heads were situated. The defendant therefore being a person who was present at the 'operating plant' on the day in question and on whom obligations were placed due to his position, was required to 'comply with safety procedures and other obligations under the safety management plan for the plant to the extent the procedures and obligations' applied to him."

  1. [33]
    Neither the appellant nor the respondent seek to disturb the above findings. 
  1. [34]
    It is not, with respect, sufficient for her Honour to conclude: "… that the defendant was aware of the place where the alleged offence had been committed and has not suffered any prejudice by the misdescription."
  1. [35]
    It is unclear as to how her Honour has reached her conclusion.  It cannot be assumed that her Honour's conclusion is based on the belief that the complaint identifies the "operating plant".  Nor can it be assumed that the particulars which accompanied the complaint refer to the "operating plant" as "…being part of the plant at which the tenure holder's offices, the processing sheds or other well heads were situated", as they do not.  Any reasonable reading of the complaint and particulars could not lead to any such a conclusion.
  1. [36]
    As Nettle JA said in DPP(Vic) v Kypri[4]:

"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."[5]

Amendment of the Complaint

  1. [37]
    Her Honour sentenced Mr Schloss and released her written reasons for decision on 12 September 2014.  In the transcript of proceedings, the following exchange between Mr MacSporran QC counsel for the respondent took place:

"MR MACSPORRAN: Now, one final matter. This is just a matter of an abundance of caution.  Can I take your Hour to page 7 of your decision, para 36.

BENCH: Yes. Yes.

MR MACSPORRAN: This is the question of the Prosecution's description of the operator of the plant being incorrect.  And you refer to what - based on which the Prosecution contended that the operating plant was.  It became, as you, remember, PL176.

BENCH: Yes, yes, yes, yes.

MR MACSPORRAN: You said that was wrong as well as the initial iteration.

BENCH: Yeah.

MR MACSPORRAN: And you said there was no prejudice by the misdescription and so forth.  Was your Honour meaning to formally amend the complaint or particulars to reflect that or - under 48 of the Justices Act because of the variation?

BENCH: Not really. No. I don't think it's necessary unless you can convince me otherwise.

MR MACSPORRAN: No, no. I was just wanting to clarify whether that was your Honour's intention not to make an amendment and your Honour's probably correct in the - on the basis of - that your Honour has dealt with it it's probably not necessary, but I wanted to make sure that it wasn't an oversight.

BENCH: No, no. I wasn't thinking about doing that.

MR MACSPORRAN: That's all right."

  1. [38]
    It was submitted by the respondent that "Although the learned Magistrate did not expressly say so, her Honour impliedly amended the complaint (by amending the particular in relation to operating plant) before finding the appellant guilty of the offence."  It was the respondent's contention that such a course was consistent with the requirements of s 48 of the Justices Act.
  1. [39]
    As is apparent from the above exchange, no formal amendment was made during the hearing, nor was it the intention of her Honour to make an amendment under s 48 of the Justices Act.
  1. [40]
    The Justices Act provides, in ss 48, 49 and 50, for the amendment of, amongst other things, a complaint.  The sole power to amend a complaint is found in s 48.  The capacity to make an amendment is premised upon it taking place "at the hearing of a complaint".
  1. [41]
    Hearing is not defined in the Justices Act.
  1. [42]
    In Parhusip v Bell[6], Martin J had to consider the meaning of the term "hearing" as referred to in the Justices Act.  His Honour wrote:

"'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.

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."[7]

  1. [43]
    In Surman[8], Bollen J in the South Australian Supreme Court considered the validity of a magistrate's decision to amend a charge at a hearing from attempting to put a motor vehicle in motion while having the prescribed concentration of alcohol in his blood to driving with the prescribed concentration.  His Honour (at 363) referred with approval to Lunn J's commentary in volume 2 of Criminal Law South Australia, which says of the South Australian section in a similar form to s 48 of the Justices Act:

"An amendment may not be made under s 181 which would convert a bad complaint into a good one or charge the defendant with a different offence... An amendment does not create a different offence where it only differently describes an offence if the pith and substance of the charge remain the same...."

  1. [44]
    The appellant submitted:

"26. Detailed submissions were made below on behalf of the Defendant to demonstrate that the petroleum lease could not be operating plant under section 670 of the P&G Act, contrary to the Prosecution case.  The Magistrate did not deal with these submissions but instead found for an entirely different construction of what was operating plant.  Because this was not part of the Prosecution case, the Defence did not have an opportunity to deal with the proposition that founded her decision, namely, that the relevant operating plant was a tenure holder's offices, processing sheds and other well heads (Reasons para 37) or what she refers to as the well heads (Reasons par 35).  For the reasons set out comprehensively in the Defendant's submissions below, the Magistrate clearly properly concluded that the petroleum lease itself was not operating plant and, on that basis, she ought to have dismissed the Prosecution case."

  1. [45]
    The legislature has provided a power is s 48 of the Justices Act to amend the complaint if there is a variance between the complaint and the evidence adduced at the hearing.
  1. [46]
    As the respondent properly notes, there is clear authority for the proposition that an industrial magistrate has the power to amend a complaint.  In my view, no "evidence adduced in the case" was at variance with the complaint.  As was observed in Felix v Smeron[9] "A variance exists where an offence which is charged is established with some variation or difference in detail…"  That is not the case here.
  1. [47]
    If it is accepted, which I doubt for the reasons set out above, that her Honour amended the Complaint, the question arises as to whether or not any prejudice will be suffered by the appellant through the adoption of the revised complaint, to such an extent that it can be properly said that "irreparable procedural fairness"[10] has been suffered by him.
  1. [48]
    I do not accept the submission of the respondent that her Honour's "amendment" of the complaint, which had originally described the operating plant as petroleum lease PL 176, was "… to confine them to a part of the lease on which stood the Scotia plant offices and associated equipment."
  1. [49]
    The suggestion that the Scotia plant offices and kitchen constituted "other infrastructure constructed by the tenure holders for the purposes set out in Section 670(2) (a)" was never part of the prosecution's particularised case.
  1. [50]
    The complaint alleges a breach of s 702 of the PG Act by virtue of a failure or failures in respect of obligations imposed by other sections of the Act.  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.[11] 
  1. [51]
    The High Court in Dare v Pulham[12], a case dealing with a civil matter,  Murphy, Wilson, Brennan, Deane and Dawson JJ said of the functions of particulars:-

"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."[13] (Emphasis added, citations omitted)

  1. [52]
    It seems to me that the respondent's submissions overlook the importance of requiring the prosecution to prove the particular charge against a defendant.  The defendant was entitled to prepare for a trial on the basis of the offence with which he is charged, and to allow the prosecution to seek to amend the complaint at the close of the prosecution case or at some other point during the hearing, when it became apparent that the offence with which he has been charged cannot be made out.  To adopt a different course carries with it the real risk of injustice.
  1. [53]
    In GPI (General Pty Ltd) v Industrial Court of New South Wales[14], Basten JA said:

"In circumstances where no irreparable procedural unfairness has been suffered by the applicants (they not having faced trial or yet pleaded to the charges) and where that which constitutes an essential factual allegation, as opposed to a desirable degree of particularisation of facts alleged, is a distinction involving matters of evaluative judgment, the contention should be rejected.  The underlying and important premise of criminal pleading is that no person should be convicted without procedural fairness, nor for an offence not known to the law."

  1. [54]
    Unlike Mbuzi v Torcetti[15], her Honour did not foreshadow any amendment, no warning was given that an amendment to the complaint was likely and nothing was said by her Honour which might have alerted the defendant so as not to catch him by surprise.  As noted above, even when her Honour was alerted by the prosecution to the provisions of s 48 of the Justices Act, no order to amend was made.
  1. [55]
    Whilst Fraser JA concluded in  Mbuzi v Torcetti that there was no denial of natural justice, His Honour did observe:

"Nothing I have said is intended to diminish the central importance of ensuring procedural fairness in summary proceedings, but I am not persuaded that there was any error in the judge's conclusion that there was no unfairness to the applicant in making the necessary amendment to reflect the evidence.  In the absence of any unfairness it is not a valid objection that the foreshadowed amendment was finally ordered only immediately prior to the conviction of the applicant: Paulger v Hall [2003] 2 Qd R 294 at [8]."[16]

  1. [56]
    Her Honour, having rejected the prosecution case embarked on an exercise to construct her own prosecution.  The findings made by her in respect of "operating plant" was never part of the prosecution case as set out in the Complaint and the attached Particulars.  The appellant submitted that her Honour "…rejected the Prosecution case and replaced it with an entirely different one based upon her own interpretation of the law and then upheld it.  This was impermissible."  I agree.
  1. [57]
    It must therefore follow that having regard to the finding by her Honour that neither the Scotia Well #22 or, in particular, the Petroleum Lease PL176 was the operating plant in the Complaint and Summons, she ought to have dismissed the complaint. In this regard she fell into error.

Was there a Safety Management Plan (SMP) in existence for operating plant

  1. [58]
    Section 674 of the PG Act requires the "operator" to make an SMP and implement and maintain it.
  1. [59]
    The complaint does not, on its face, identify the operating plant at which Mr Schloss was alleged to be the operator.  At most, it alleges that the operating plant was PL 176.  It does not identify the site of the contravention as "operating plant".  The particulars, attached to the complaint, do refer to "the site is an operating plant within the meaning of that term" in the PG Act and make reference to the work undertaken by Mr Vieritz at Scotia Well #22 on 16 March 2011.
  1. [60]
    The SMP did not specifically refer to PL 176, but broadly referenced gas fields at Scotia comprising "a number of local seam methane wells".[17] It was an essential feature of the prosecution that in order for there to be a breach of s 702, it must be established that some obligation was imposed on Mr Schloss under the SMP for the operating plant.    
  1. [61]
    The appellant argued that it cannot be inferred that the SMP made by Santos Limited was made, implemented or maintained by Santos QNT Pty Ltd, simply because Santos Limited was the holding company of Santos QNT Pty Ltd or from the fact that they had a common General Manager.
  1. [62]
    Her Honour seems to have accepted that argument when she concluded:

"[38] Before discussing the various documents provided to the court, I note that Mr Roney has made submissions with regard to whether the SMP which is alleged to have been in force at the date of the incident had been adopted by Santos QNT Pty Ltd when the 'operator' of the plant changed from Santos Ltd to Santos QNT Pty Ltd in 2008.  He submitted that simply because Santos Limited was the holding company of Santos QNT Pty Ltd, it could not be inferred that the Santos Ltd SMP was the SMP implemented or maintained by Santos QNT Pty Ltd before the incident.  He argues that the Act requires the operator to 'actually do something to make, implement or maintain it'.

[39] Section 674 of the Act provides, inter alia, that 'The operator of an operating plant must … make a safety management plan that complies with … section 675 and … implement and maintain the plan'.

[40] There was no evidence adduced by the prosecution to show that the SMP they sought to prove was current at the time of the incident, was in fact made by Santos QNT Pty Ltd, the entity which it is agreed was the 'operator' at the relevant time.

[41] The provisions of Section 674 of the Act are mandatory.  In the absence of any evidence that the 'operator' Santos QNT Pty Ltd did anything to 'make' a SMP, I find that Santos QNT Pty Ltd, being the 'operator' of the plant had not complied with Section 674 of the Act with regard to the making of an SMP."

  1. [63]
    However, notwithstanding the finding that the prosecution had not established that an SMP had been made for Santos QNT Pty Ltd, her Honour went on to conclude:

"[59] Mr Roney has submitted that there is real doubt as to which SMP was in force at the date of the incident, given the differing versions of the documents tendered to the court.  After considering the documents before me and hearing Ms Firth's evidence, it would appear to me that the SMP current at the date of the incident was the green folder forming part of Exhibit 53 and the online version of the EHSMSs to which it (the green folder) referred."

  1. [64]
    Ms Firth gave evidence that she had seen SMP documentation in the supervisor's office of the Scotia site shortly after she had commenced employment with Santos in June 2008.  In cross-examination, Ms Firth was asked:

"So in terms, then, of the green folder, that's not something that you worked with except to the extent that you've described in your evidence when you saw it at the mine site? --- Yes, when I saw it at Scotia, yes.

And as I've understood your evidence – and you'll correct me if I've misunderstood it – you might have, what you said, flicked through, the document perhaps two or three times? --- Yes.

And the first time you were there was I think you said in 2007, when you went to see a document in the supervisor – or more accurately when you noticed the document in the supervisor's office? --- That's correct.

And the activity that you were involved in on that occasion wasn't concerned with or directing itself at all to identifying what SMP or ancillary documents operated in this mine, correct? --- That's correct.

So this was perhaps just more a matter of interest on your part? --- That's correct.

And at that time, was – that is the first time you observed the document – was that also a flick through? --- Yes.

Really just to see that it looked like what the usual sort of SMP's that you might have seen on other sites? --- Yes.

You weren't looking to see what particular statements it made or what standards it incorporated or that sort of thing? --- That's correct.

And would the same be true of each of the other two occasions when you had a flick through of the document? --- Yes.

And should we understand your evidence about it, being the operative SMP, to be that you reached that conclusions because that's the document you saw on the mine site? --- That's correct.

So you've not ever been, for example, to the records of Santos or Santos QNT to see what its records showed was the relevant SMP for any of those times?  In other words, you've not gone beyond the fact that you've observed it at the mine site on those two occasions? --- I have – that's correct.

So did you ask anyone, for example, at the mine site whether it was in fact the current document? --- No.

So then, when you did some work in late 2011 – and it might have even been some earlier work on revision 1 – you didn't go back to that folder, did you, to start your work? --- No, I didn't go out to Scotia and have a look at that folder to start the work."

  1. [65]
    The evidence of Ms Firth does not support a conclusion that the SMP dated 30 June 2005 was the current SMP at the time of the incident.  Her view as to the currency of the SMP was based on the fact that she had seen the document in the supervisor's office at the Scotia site.  She agreed in cross-examination that she did not ask whether the SMP was current.
  1. [66]
    The respondent submitted that:

"39. Although the learned Magistrate found that Santos QNT Pty Ltd 'had not complied with section 674 of the Act with regard to the making of an SMP', Her Honour also noted that Santos QNT Pty Ltd was a subsidiary of Santos Ltd and controlled by the parent company.

  1. In context, this is a finding that Santos Ltd had complied with the obligations imposed by s.674 of the Act and continued to do so, as the parent company of Santos QNT Pty Ltd, from 2008 when Santos QNT Pty Ltd became operator."
  1. [67]
    Her Honour concluded that the SMP current at the time of the incident was the SMP dated 30 June 2005 (green folder).  However, this finding is at odds with her earlier conclusion that there "… was no evidence adduced by the prosecution to show that the SMP they sought to prove was current at the time of the incident".  The SMP sought to be proved by the prosecution and as particularised in paragraph 5 of the particulars was the SMP for Santos Ltd issued on 30 June 2005. 
  1. [68]
    The case particularised by the prosecution was that the operating plant was the petroleum lease itself, that is, PL 176.  The incident according to the prosecution, was at Scotia Well #22 where Mr Vieritz was working.  The prosecution case was conducted on the basis that it must prove that Mr Schloss was present on the relevant petroleum lease on 16 March 2011 and that there was an obligation on Mr Schloss which arose under the SMP for that operating plant. 
  1. [69]
    Her Honour analysed the contents of the SMP to determine which safety procedures and obligations had application.  The particulars as set out in Exhibit 57 detailed the provisions of the SMP which it was said applied.  In particular, it was the prosecution case that the SMP required that a Job Hazard Analysis (JHA) be carried out prior to the commencement of the work undertaken by Mr Vieritz on the mobile separator. This requirement is contained in EHSMS 09.1 which provides:

"The purpose of this standard is to define the requirements for identifying, assessing and controlling EHS risks associated with work activities by using Job Hazard Analysis (JHA) and Stepback processes."

  1. [70]
    Clause 4.2.2 of Standard 9.1 provides the following rider:

"A JHA is not required for low-risk tasks performed by a competent person as the individual's competency and skill covers this."

  1. [71]
    It was accepted by her Honour that Mr Vieritz was an experienced worker and was qualified to carry out work on the mobile separator having previously carried out similar work.  She accepted the evidence of Mr Wood, a senior training officer with Santos to conclude that work undertaken on the Kimray valve was minor maintenance and therefore a low risk task.
  1. [72]
    However, in relation to the isolation of the gas in the mobile separator, her Honour found that this was not low risk.  In doing so, her Honour accepted, as she was entitled to do, the evidence of Mr Holmes an expert witness called by the prosecution. 
  1. [73]
    Her Honour found that the appellant had breached his obligation pursuant to s 702 to comply with the JHA safety procedures.[18] She said:

"[76] The safety procedures and other obligations which are to be complied with in accordance with Section 702 of the Act not only apply to the defendant Mr Schloss as a supervisor, but also to Mr Vieritz as an authorized permit holder and employee on the site.  But it is Mr Schloss who has been charged pursuant to Section 702.  In his evidence, Mr Vieritz stated that at the toolbox meeting held on 16 March 2011, he had discussed with Mr Schloss that he would be working on the mobile separator that day.  It would appear therefore that Mr Schloss had breached his obligation pursuant to Section 702 to comply with the JHA safety procedures."

  1. [74]
    The findings by her Honour are devoid of analysis.  It is not immediately apparent on reading her reasons and in light of the evidence, how she has concluded a breach of s 702.  In relation to her Honour's findings above, the respondent submits:

"In context, this is necessarily a finding that the appellant had an obligation under the terms of the SMP to ensure that a JHA was considered and undertaken by Mr Vieritz in that he was required:

'(ii) to nominate a team leader for the performance of the JHA (EHSMS 09.1 at 4.2.3.); and/or

(iii) to approve the content of the JHA prior to the work commencing (EHSMS 09.1 at 4.2.5., 6);'

As particularised in Exhibit 57, particulars provided 5 June 2014, at (ii) and (iii)."

  1. [75]
    With respect to the respondent, the submission attempts to recreate the process of reasoning which puts a gloss on her Honour's conclusion, the exact meaning of which is unclear and the reasons for making it, absent.
  1. [76]
    The prosecution's case is dependent on establishing that Mr Schloss was at PL 176 on 16 March 2011 and that his omissions, as particularised, if proved, must have occurred when he was on the lease.
  1. [77]
    The evidence of Mr Bowtell was that he saw Mr Schloss at the tool box meeting on the morning of 16 March 2011 which was held at a table in the kitchen.  He explained:

"Table in the kitchen. Yes. And the kitchen is part of what sort of building? --- It's a donga type thing. There's two with a veranda in the middle of it.  One's the office and one's the lunchroom and toilets and that and me and Mark Bunker had our office in there - desk in there."[19]

  1. [78]
    The office was located some 5 kilometres from the Scotia Well #22.
  1. [79]
    Mr Bowtell also saw Mr Schloss "…at smoko time, lunch time."[20]  Mr Bowtell did not see Mr Schloss again until after the incident when he saw him with Mr Vieritz "…down in the shed at the eyewash station."[21]  The evidence of Mr Vieritz was that he saw Mr Schloss at the tool box meeting and "…would've seen him at smoko or lunchtime."[22]
  1. [80]
    There is no evidence from Mr Bowtell or Mr Vieritz about the whereabouts of Mr Schloss at the time of the incident.  There is no evidence that Mr Schloss was at the "…offices, the processing sheds or other well heads…"[23]
  1. [81]
    It was submitted by the appellant that the evidence before the Court below was not sufficient to support a conclusion that Mr Schloss was at the operating plant or somewhere else at the time of the incident.
  1. [82]
    In my view, as the evidence stands, the prosecution failed to prove, to the requisite standard, that Mr Schloss was "at the operating plant".
  1. [83]
    It was also submitted in the Court below that an element of the offence was the requirement to prove that the relevant breach occurred in respect of obligations said to arise "under the safety management plan for the plant."
  1. [84]
    It was submitted by the prosecution that it must be inferred that Santos QNT Pty Ltd made the SMP when it became the new operator.  However, there is no evidence to support such a conclusion.
  1. [85]
    Whilst not expressly stated by her Honour, her finding that "operating plant" consisted of infrastructure constructed by the tenure holder for the purposes of s 670(2)(a) must mean that she regarded the SMP of 30 June 2005 as being applicable to this "operating plant".
  1. [86]
    Her Honour found:

"[33]  Mr Roney, for the defendant, has submitted that a distinction should be drawn between what he terms 'facility' plant and 'tenure' plant. These terms he appears to have taken from Section 670(2)(a) which refers to 'a facility used to explore for, produce or process' etc and Section 670(6) which refers to 'any part of the area of a petroleum tenure', as being operating plant.  I consider the distinction to be somewhat ingenuous.  If one were to apply this reasoning to the other references in Section 670 as to what constituted 'operating plant', there would need to be distinctions between other categories such as 'pipeline' plant, 'system' plant and even 'activity' plant."

  1. [87]
    It was the submission of the defendant in the Court below that having regard to the statutory provisions and the explanatory notes, a distinction should be drawn between what has been described as "facility" plant and "tenure" plant.  In regard to s 670(6) of the PG Act, it was argued that a broad view should be adopted, a view which draws a boundary around all operating plant on the lease area.  Such a view would exclude areas which have no operating plant and which is used for unrelated purposes, such as cropping, grazing or housing.
  1. [88]
    Section 3 of the PG Act sets out the main purpose of the Act.  In particular, it identifies some of the following purposes: (f) ensures petroleum activities are carried out in a way that minimises conflict with other land uses; (i) encourages responsible land management in the carrying out of petroleum activities; and (k) regulates and promotes the safety of persons in relation to operating plant.
  1. [89]
    In my view, it cannot have been the intention of the legislature that an SMP would impose obligations upon any person on a petroleum lease and in relation to anything occurring on the lease.  Such a conclusion would be contrary to the purpose of the PG Act.
  1. [90]
    Given my conclusions above, I will deal only briefly with the following grounds of appeal.

Defences

  1. [91]
    It is the appellant's argument that her Honour wrongly excluded defences under s 732A of the PG Act on the grounds that the Mr Schloss did not call any evidence to prove the matters required by the section.
  1. [92]
    There are defences under s 732A(2)(c) of the PG Act to a charge under s 702 of the Act.  Section 732A provides as follows:

"732A Defences for certain offences

  1. This section provides defences in a proceeding against a person for a contravention of section 677, 688, 693, 699, 702, 703 or 704 (the relevant sections).
  2. To the extent the contravention is a contravention of a particular safety requirement, it is a defence in the proceedings to prove—
  1. if a regulation was made about the way to ensure the safety requirement was to be met—the person followed the way prescribed in the regulation to ensure the safety requirement was met; or
  2. subject to paragraph (a), if a recognised standard was made stating a way or ways to ensure the safety requirement was to be met—

that the person adopted and followed a stated way to ensure the safety requirement was met; or

that the person adopted and followed another way that ensured the safety requirement was met that was equal to or better than the stated way for ensuring the safety requirement was met; or

  1. if no regulation or recognised standard prescribes or states a way to discharge the person's obligation in relation to the safety requirement—that the person took reasonable precautions and exercised proper diligence to ensure the safety requirement was met.
  1. Also, it is a defence in a proceeding against a person for an offence against the relevant sections for the person to prove that the contravention was due to causes over which the person had no control."
  1. [93]
    Her Honour concluded:

"Mr Schloss did not call any evidence to "prove" those matters required by Section 732A.  There is no evidence that he took reasonable precautions and exercised proper diligence to ensure the safety requirement was met."

  1. [94]
    It is not necessary, in order to rely on a defence under s 732A(2)(a), for the defence to call evidence.  It is, as was properly submitted by the respondent, possible for proof necessary to establish a defence to be satisfied by evidence given as part of the prosecution case.
  1. [95]
    It was argued that s 732A(3) afforded a defence.
  1. [96]
    It is a defence under s 732A(3) "for a person to prove that the contravention was due to causes over which the person had no control".  Whilst this defence was argued before her Honour, no finding as to its applicability was made.
  1. [97]
    It was submitted by the respondent that in the absence of any steps being taken by the appellant to satisfy himself that Mr Vieritz had undertaken an appropriate risk assessment prior to commencing the task, it is irrelevant that Mr Vieritz chose to perform the task in a different manner.[24]
  1. [98]
    The real issue is that her Honour has failed to deal with the applicability of s 732A(3) and indeed s 732A(2)(a). In the absence of any reference to the respondent's submissions on the defences under s 732A, the defendant is left wondering why their submissions have been rejected.  If it is the case that her Honour has adopted the view that in order to rely on a defence under s 732A, the defendant must call evidence to "prove" those matters, then she has fallen into error.  However, the process of reasoning is so absent from her decision that it is not possible to determine whether or not the decision is sound in law.  As was said in Pettit v Dunkly[25]:

"An error of law in giving no reasons for judgment differs from an error of law in coming to a verdict, for the latter directly vitiates the verdict either in the sense that the verdict thereby is legally wrong and reversible or in the sense that the verdict is based on an error in the legal process so that a new trial is attracted.  The error under consideration does not establish that the verdict itself involved some error, but serves to make it difficult or perhaps impossible to determine whether or not the verdict itself was based on an error of law.  If a party is legally entitled in the particular case to have the reasons for verdict stated, in order that it will appear whether the verdict had been correctly come to in accordance with the law, then the error of law in giving no reasons has deprived the litigant of the right he had to have the Court of Appeal interfere if the decision involved an error of law."[26]

  1. [99]
    The failure to deal with the defences amounts to an error of law.

Adequacy of Reasons

  1. [100]
    The failure to give sufficient reasons constitutes an error of law.[27]
  1. [101]
    The principles guiding the adequacy and nature of reasons were set out in Qld Independent Education Union of Employees v Local Govt Association of Qld Ltd[28]:

"[14] A Tribunal need not set out reasons for every step which has led to a decision but it must record the steps which were taken to arrive at the result (Public Service Board of New South Wales v Osmond (1986) 159 CLR 656 at 666).

[15] The extent of the reasons which are required to be given will depend upon the circumstances and the context of the case. Generally, reasons should deal with the substantial points which have been raised, including findings on material questions of fact. The reasons should refer to any evidence or other material upon which those findings are based and provide an intelligible explanation of the process of reasoning that is led from the evidence to the findings and from the findings to the ultimate conclusion. Some explanations should be given if the evidence tendered or the submissions made by a party have been rejected (Police Federation of Australia v Nixon [2011] FCAFC 161 at [67]). The reasons must set out the steps that were taken by the Tribunal to arrive at the decision. This allows the parties who have been unsuccessful to determine whether they have a basis for appeal (Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386). 

 [16] It must be understood, though that the principles set out above do not mean that reasons for decision have to be lengthy or elaborate. A distinction has always been drawn between courts and tribunals. Just as it is not necessary for a judge to make an express finding in respect of every fact leading to, or relevant to, his or her final conclusion of fact, it is not necessary that the judge reason, and be seen to reason, from one fact to the next along the chain of reasoning to that conclusion (Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 271). The fact that reasons of the Commission might be brief is not necessarily a flaw. Courts conducting reviews or appeals from tribunals have been repeatedly enjoined by the High Court to avoid overly pernickety examination of the reasons. The focus of attention is on the substance of the decision and whether it has addressed the 'real issue' presented by the contest between the parties (Roncevich v Repatriation Commission (2005) 222 CLR 115 at [64])."

  1. [102]
    A failure to provide reasons in accordance with the principles set out above will ordinarily result in an appellable error.
  1. [103]
    In Drew v Makita (Australia) Pty Ltd[29], Muir JA (with whom Holmes JA and Daubney J agreed), observed:

"[58] The rationale for the requirement that courts give reasons for their decisions provides some guidance as to the extent of the reasons required. The requirement has been explained, variously, as necessary: to avoid leaving the losing party with 'a justifiable sense of grievance' through not knowing or understanding why that party lost; to facilitate or not frustrate a right of appeal; as an attribute or incident of the judicial process; to afford natural justice or procedural fairness; to provide 'the foundation for the acceptability of the decision by the parties and the public' and to further 'judicial accountability'.

[59] The extent to which a trial judge must expose his or her reasoning for the conclusions reached will depend on the nature of the issues for determination and the function to be served by the giving of reasons."

  1. [104]
    Whist I appreciate that the prosecution case was factually dense and that in many respects complex, it was nevertheless incumbent upon her Honour to satisfy the requirements as set out in Qld Independent Education Union of Employees v Local Govt Association of Qld Ltd.  She did not.
  1. [105]
    As Samuels JA wrote in Strbak v Newton[30]:

"What is necessary, it seems to me, is a basic explanation of the fundamental reasons which led the judge to his conclusion.  There is no requirement, however, that the reasons must incorporate an extended intellectual dissertation upon the claim of reasoning which authorises the judgment which is given."

  1. [106]
    Her Honour's reasons for decision should be such that the losing party should know or understand why they lost.[31]  Whilst I am not "overzealous to seek to discern inadequacy,"[32] I am not satisfied that her Honour has, in her written reasons for decision, provided a sufficient level of particularity to enable an assessment as to whether or not she has fallen into error.[33]

Bell Appeal

  1. [107]
    The appeal filed by Mr Bell sought to set-aside her Honour's decision on causation and to find that bodily harm was caused by a breach of s 702 of the PG Act.
  1. [108]
    It was the cross-appellant's submission that her Honour erred in failing to find that the omission that constituted the offence under s 702 of the PG Act did not cause bodily harm to Gavin James Vieritz.
  1. [109]
    Her Honour concluded that:

"[84] As a result of Mr Vieritz's evidence, his experience, and the actions he took on the day of the incident to isolate the separator, I am not satisfied that the bodily injury sustained by Mr Vieritz was caused by the 'act or omission that constitutes the offence'.  I therefore find that the prosecution has not proved the aggravating circumstances provided by Section 732(3)(d) of the Act to the required standard and the increase in the maximum penalty is not activated."

  1. [110]
    Having considered the evidence, it was open for her Honour to come to the conclusion that she did.  It is not the submission of the cross-appellant that there was insufficient or no evidence to support the conclusion reached by her Honour.  Rather, that the cross-appellant points to other evidence which might support a different conclusion. No appellable error has been disclosed.
  1. [111]
    In light of my reasons above, it is not necessary to deal with the submissions on the cross-appeal in any greater depth.
  1. [112]
    The cross-appeal is dismissed.

Conclusions and Orders

  1. [113]
    The appellant has succeeded in demonstrating that the decision of the Industrial Magistrate is infected with error.  The appeal is allowed.
  1. [114]
    I make the following orders:
  1. In matter C/2014/43:
  1. the appeal is allowed;
  2. the guilty verdict is set aside; and
  3. the complaint is dismissed.
  1. In matter C/2014/44 the appeal is dismissed.

Costs

  1. [115]
    I will hear the parties on costs in the Industrial Magistrate's Court.

I certify that the preceding 115 paragraphs are a true copy of the Reasons for Decision of Deputy President O'Connor.

D.  L.  O'CONNOR, Deputy President:  ………………………………

Dated: …………..

Footnotes

[1] Bell v Hendry & Ors [2014] ICQ 18.

[2] Bell v Schloss [2014] QMC 023 at [1].

[3] Exhibit 5.

[4] DPP(Vic) v Kypri (2011) 33 VR 157.

[5] Ibid at [16].

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

[7]Ibid [46] – [47].

[8]Surman (1996) 85 A Crim R 361.

[9]Felix v Smeron (1944) 19 ALJ 30.

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

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

[12]Dare v Pulham (1982) 148 CLR 658.

[13]Ibid at 664.

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

[15]Mbuzi v Torcetti [2008] QCA 231.

[16]Ibid at [31] per Fraser JA.

[17]Exhibit 53.

[18]Bell v Schloss [2014] QMC 023 at [77].

[19]T2-60 Ll. 39-42.

[20]T2-60 L. 30.

[21]T2-63 Ll. 42-43.

[22]T2-87 Ll. 41-42.

[23]Bell v Schloss [2014] QMC at [37].

[24]See para. 80 of the Submission of the Respondent filed on 19 December 2014.

[25]Pettit v Dunkly [1971] 1NSWLR 376.

[26]Ibid at [389].

[27]Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 270, 279-280 (McHugh JA).

[28]Qld Independent Education Union of Employees v Local Govt Association of Qld Ltd [2015] ICQ 003.

[29]Drew v Makita (Australia) Pty Ltd [2009] 2 Qd R 219.

[30]Strbak v Newton [1989] NSWCA 202.

[31]Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, 442; Drew v Makita (Australia) Pty Ltd [2009] 2 Qd R 219.

[32]Q-COMP v Mana (C/2011/48) - Decision [2].

[33]Svenson v Q-Comp (2006) 181 QGIG 629, 632.

Close

Editorial Notes

  • Published Case Name:

    Dennis William Schloss v Stewart Lynn Bell, Commissioner under the Petroleum and Gas (Production and Safety) Act 2004; Stewart Lynn Bell, Commissioner under the Petroleum and Gas (Production and Safety) Act 2004 v Dennis William Schloss

  • Shortened Case Name:

    Schloss v Bell; Bell v Schloss

  • MNC:

    [2015] ICQ 36

  • Court:

    ICQ

  • Judge(s):

    O'Connor DP

  • Date:

    24 Dec 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
Beale v Government Insurance Officer of New South Wales (NSW) (1997) 48 NSWLR 430
2 citations
Jump To
Cite 1 - (1997) 48 NSWLR 430
Cite 2 - (1997) 48 NSWLR 430
Bell v Hendry & Ors [2014] ICQ 18
2 citations
Jump To
Cite 1 - [2014] ICQ 18
Cite 2 - [2014] ICQ 18
Bell v Schloss [2014] QMC 23
4 citations
Jump To
Cite 1 - [2014] QMC 23
Cite 2 - [2014] QMC 23
Cite 3 - [2014] QMC 23
Cite 4 - [2014] QMC 23
Dare v Pulham (1982) 148 CLR 658
3 citations
Jump To
Cite 1 - (1982) 148 CLR 658
Cite 2 - (1982) 148 CLR 658
Cite 3 - (1982) 148 CLR 658
Director of Public Prosecutions v Kypri (2011) 33 VR 157
3 citations
Jump To
Cite 1 - (2011) 33 VR 157
Cite 2 - (2011) 33 VR 157
Cite 3 - (2011) 33 VR 157
Drew v Makita (Australia) Pty Ltd[2009] 2 Qd R 219; [2009] QCA 66
3 citations
Jump To
Cite 1 - [2009] 2 Qd R 219
Cite 2 - [2009] 2 Qd R 219
Cite 3 - [2009] 2 Qd R 219
Felix v Smerdon (1944) 19 ALJ 30
2 citations
Jump To
Cite 1 - (1944) 19 ALJ 30
Cite 2 - (1944) 19 ALJ 30
GPI (General) Pty Ltd v Industrial Court of New South Wales (2011) 207 IR 93
3 citations
Jump To
Cite 1 - (2011) 207 IR 93
Cite 2 - (2011) 207 IR 93
Cite 3 - (2011) 207 IR 93
Housing Commission of New South Wales v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378
1 citation
Jump To
Cite 1 - (1983) 3 NSWLR 378
Mbuzi v Torcetti [2008] QCA 231
3 citations
Jump To
Cite 1 - [2008] QCA 231
Cite 2 - [2008] QCA 231
Cite 3 - [2008] QCA 231
Parhusip v Bell; Bell v Parhusip [2015] ICQ 25
3 citations
Jump To
Cite 1 - [2015] ICQ 25
Cite 2 - [2015] ICQ 25
Cite 3 - [2015] ICQ 25
Paulger v Hall[2003] 2 Qd R 294; [2002] QCA 353
1 citation
Jump To
Cite 1 - [2003] 2 Qd R 294
Pettitt v Dunkley (1971) 1 N.S.W. L.R. 376
3 citations
Jump To
Cite 1 - (1971) 1 N.S.W. L.R. 376
Cite 2 - (1971) 1 N.S.W. L.R. 376
Cite 3 - (1971) 1 N.S.W. L.R. 376
Police Federation of Australia v Nixon [2011] FCAFC 161
1 citation
Jump To
Cite 1 - [2011] FCAFC 161
Public Service Board of NSW v Osmond (1986) 159 CLR 656
1 citation
Jump To
Cite 1 - (1986) 159 CLR 656
Q-COMP v Mana [2012] ICQ 8
2 citations
Jump To
Cite 1 - [2012] ICQ 8
Cite 2 - [2012] ICQ 8
Queensland Independent Education Union of Employees v Local Government Association of Queensland Ltd [2015] ICQ 3
2 citations
Jump To
Cite 1 - [2015] ICQ 3
Cite 2 - [2015] ICQ 3
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 Surman (1996) 85 A Crim R 361
2 citations
Jump To
Cite 1 - (1996) 85 A Crim R 361
Cite 2 - (1996) 85 A Crim R 361
Roncevich v Repatriation Commission (2005) 222 CLR 115
1 citation
Jump To
Cite 1 - (2005) 222 CLR 115
Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247
2 citations
Jump To
Cite 1 - (1987) 10 NSWLR 247
Cite 2 - (1987) 10 NSWLR 247
Strbak v Newton [1989] NSWCA 202
2 citations
Jump To
Cite 1 - [1989] NSWCA 202
Cite 2 - [1989] NSWCA 202
Svenson v Q-COMP (2006) 181 QGIG 629
2 citations
Jump To
Cite 1 - (2006) 181 QGIG 629
Cite 2 - (2006) 181 QGIG 629

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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