Carl Dennis Thomas v Paul Kevin Harrison
[2018] ICQ 7
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- Unreported Judgment
- Carl Dennis Thomas v Paul Kevin Harrison[2018] ICQ 7
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Carl Dennis Thomas v Paul Kevin Harrison[2018] ICQ 7
Carl Dennis Thomas v Paul Kevin Harrison[2018] ICQ 7
INDUSTRIAL COURT OF QUEENSLAND
CITATION: | Thomas v Harrison [2018] ICQ 007 |
PARTIES: | CARL DENNIS THOMAS (appellant) v PAUL KEVIN HARRISON (respondent) |
FILE NO/S: | C/2018/11 |
PROCEEDING: | Appeal |
DELIVERED ON: | 31 August 2018 |
HEARING DATE: | 13 August 2018 |
MEMBER: | Martin J, President |
ORDER/S: | 1. The Appeal is dismissed. |
CATCHWORDS: | MAGISTRATES – COMMENCEMENT OF PROCEEDINGS – PARTICULARS AND CONTENT OF INITIATING PROCESS – DESCRIPTION OF OFFENCE – GENERALLY – where the respondent laid a complaint against the appellant, alleging a breach of the Petroleum and Gas (Production and Safety) Act 2004 – where the respondent sought leave to amend the particulars of the complaint – where the learned Industrial Magistrate granted leave to amend the particulars of the complaint – whether the amendment created an essentially different offence – whether there was a failure on the part of the complainant to allege an essential element of the offence – whether the learned Industrial Magistrate erred in finding that the amendment was not an amendment to the essential elements of the offence – whether the amendment should be prohibited by the limitation period – whether a complainant can amend the particulars describing what the defendant should have done if the limitation period has passed – whether the capacity to grant an amendment was within power notwithstanding the expiration of the limitation period |
CASES: | Justices Act 1886 ss 43, 47, 48 Petroleum and Gas (Production and Safety) Act 2004 ss 678, 837 Harrison v President of the Industrial Court [2017] 1 Qd R 515 Kirk v Industrial Court (NSW) (2010) 239 CLR 531 NK Collins Industries Pty Ltd v The President of the Industrial Court of Queensland [2014] 2 Qd R 304 Olver v Dix [1999] TASSC 1 Parhusip v Bell (2015) 252 IR 441 |
APPEARANCES: | A Glynn QC and A Scott instructed by Norton Rose Fulbright for the appellant P Morreau instructed by Gilshenan & Luton for the respondent |
- [1] The appellant, Mr Thomas, is the defendant to a complaint made by the respondent, Mr Harrison, alleging a breach of the Petroleum and Gas (Production and Safety) Act 2004 (PG Act). On the first day of the trial of the complaint the respondent sought, and was granted, leave to amend the particulars of the complaint. The appellant contends that the amendment created an essentially different offence and, as the time limit for making a complaint had passed, the amendment should not have been allowed.
The complaint
- [2]The complaint alleges that the respondent committed an offence against s 678(1)(b) of the PG Act. So far as is relevant, that section provides:[1]
“(1) The operator of an operating plant must revise the safety management plan for the plant if any of the following make the revision appropriate - …
(b) the happening of an event relevant to the plant of which the operator is aware, or ought reasonably to have been aware;
Examples of an event—
a development in technical knowledge or hazard assessment
…
- (2)In this section – revise means amend or remake.”
- [3]The relevant part of the body of the complaint provided:
“ … on the twenty-third day of June 2013 at an operating plant located approximately 66 kilometres east of Injune and elsewhere, Queensland … CARL DENNIS THOMAS, the operator of an operating plant, failed to revise the safety management plan for the plant when the happening of an event relevant to the plant of which the said CARL DENNIS THOMAS was aware, or ought reasonably to have been aware, made the revision appropriate, in contravention of section 678(1)(b) of the Petroleum and Gas (Production and Safety) Act 2004 …”
- [4]After the body of the complaint, the respondent sets out the particulars of the offence. Most of them are not the subject of this appeal. Paragraphs 8 - 14 of the particulars allege the circumstances said to give rise to the “relevant event”:
“8. On or about 28 April 2013, an event happened in the State of South Australia at Saxon Energy Services Drill Rig #188 which resulted in injuries to workers (‘the Event’),
- On or about 30 April 2013, a ‘HSE Alert Bulletin’ was issued under the name of Saxon Energy Services Inc (the ‘Alert’) in relation to the Event,
- The SMP requires that all personnel should immediately review ‘HSE Alerts’ of the same type as the Alert,
- The Alert identified that the Event occurred whilst workers were disassembling a drill string at rig #188,
- The Event is identified by the Alert as occurring as a result of an incorrect button being pushed by a worker and as a result, an Iron Roughneck ST-80 was commanded to extend by mistake,
- As a result of the Iron Roughneck ST-80 being commanded to extend, the Alert identified that the Derrickman was caught between the Iron Roughneck ST-80 and a manual tong being used to disassemble the drill string,
- The Alert identified that the Derrickman received a fractured arm and bruising to the lower back/buttocks as a result of being caught between the engaged Iron Roughneck ST-80 and the manual tong,”
- [5]The two paragraphs of the particulars which are of particular relevance to this appeal are 19 and 20. The unamended and amended forms are as follows:
Unamended | Amended |
19. The SMP ought to have been revised by the operator, THOMAS. | 19. The SMP ought to have been revised by the operator, THOMAS, by:
|
20. The SMP ought to have been revised by THOMAS such that:
| 20. The SMP ought to have been revised by THOMAS: so as to amend it to include provisions which addressed the prevention of the Iron Roughneck ST-80 being activated whilst a person was at risk of injury or death from the said activation of the Iron Roughneck ST-80, by:
|
and effective were incorporated into the SMP. |
|
The decision
[6] In allowing the application to amend the particulars, the learned Industrial Magistrate said:
“The essential elements are, clearly, the date, which is the time between specified dates; the place - again, there is no contention there - that was out near Injune; the defendant was the operator of an operating plants (sic) - that is to be subject to evidence. And the essential - well, the crux of it is he failed to revise the safety management for the plant when he was aware - or reasonably to have been aware of that earlier incident in South Australia. That is the complaint - those essential elements there. Particulars are then given.
It is a moot point to what extent the prosecutor is bound by those particulars. As I have already said, I would be most surprised if, at the end of the day, it was up to the Prosecution to prove beyond a reasonable doubt that the particulars it proposes for paragraph 20, the contentious paragraph, is as set out there. It seems to me that they are pretty general provisions that - after hearing the evidence, there - it is obviously contentious and open for debate as to what exactly should have been done to stop accidents like this one happening. …
It seems to me that this charge is, essentially, different to failing to ensure the safety of a workplace, as dealt with in Kirk and Collins. It is a - the Act creates a new regimen - a new obligation on employers to revise the safety plan when things happen.
…
… It is also said that in this case the limitation period has expired, but that does not appear to be totally clear to me because, at the end of the day, there is a death involved; the Coroner could make a finding - one would expect the Coroner to make a finding eventually. And section 837(4) of the Petroleum and Gas (Production and Safety) Act 2004 makes it clear that the limitation period can run for two years after the Coroner makes a finding in relation to the death.
In any case, I am not satisfied that section 48 does apply, because it is only an amendment of particulars; that is subject to the Court’s inherent jurisdiction to disallow them where there is unfairness. And in this case I do not consider that there has been any unfairness. The allegations are not that different from what was there previously and it is certainly not a new offence. …”
Grounds of appeal
[7] The appellant seeks to appeal on three grounds as follows:
- The learned Industrial Magistrate erred in finding that the amendment made by the decision (“the amendment”) was:
- (a)merely an amendment to “particulars”;
- (b)not an amendment to the essential elements of the offence;
- (c)not such as to allege an essentially different offence to the offence alleged in the complaint as filed; and
- (d)thereby, not subject to the limits for making amendments to complaints under s 48 of the Justices Act 1886.
- (a)
- The learned Industrial Magistrate erred by incorrectly distinguishing the decisions in Kirk v Industrial Court (NSW) (2010) 239 CLR 531 (“Kirk”) and NK Collins Industries Pty Ltd v The President of the Industrial Court of Queensland [2014] 2 Qd R 304 (“NK Collins”), in that:
- (a)the appellant is charged with an offence against s 678(1)(b) of the PG Act, which, at the time of the alleged offence, provided:
- (a)
“(1) The operator of an operating plant must revise the safety management plan for the plant if any of the following make the revision appropriate - …
- (b)the happening of an event relevant to the plant of which the operator is aware, or ought reasonably to have been aware;
Examples of an event—
a development in technical knowledge or hazard assessment”
- (b)however, contrary to the proper construction of s 678(1)(b) of the PG Act, the learned Industrial magistrate held that:
- (i)the principles in Kirk and NK Collins are inapplicable s 678(1)(b) of the PG Act; and
- (ii)thereby, the prosecution in the proceedings is under no obligation to identify and prove beyond reasonable doubt a specific revision or revisions to the SMP which should have been made by the appellant after the incident;
- In rejecting a submission that the amendment had the effect of charging the appellant with a new offence after the statutory limitation period for commencing the proceedings had expired, at the latest, in January 2015, the learned Industrial Magistrate inappropriately speculated that a coroner might, at some time in the future, make a “finding” about the circumstances relevant to the proceedings, so as to engage the operation of s 837(4)(c) of the PG Act, which provides:
“A proceeding for an offence against this Act must start within the later of the following periods to end -
…
(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.”
The making and amendment of a complaint
- [8]The Justices Act 1886 contains the relevant provisions for the making and amendment of a complaint.
- [9]Section 43 provides:
“43 Matter of complaint
- (1)Every complaint shall be for 1 matter only, and not for 2 or more matters, except—
- in the case of indictable offences—if the matters of complaint are such that they may be charged in 1 indictment; or
- in cases other than cases of indictable offences—if the matters of complaint—
- are alleged to be constituted by the same act or omission on the part of the defendant; or
- are alleged to be constituted by a series of acts done or omitted to be done in the prosecution of a single purpose; or
- are founded on substantially the same facts; or
- are, or form part of, a series of offences or matters of complaint of the same or a similar character; or
- when otherwise expressly provided.
- (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.
- (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—
- 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
- 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.
- (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.”
[10] Section 47 sets out what is necessary to sufficiently describe an offence. It relevantly provides:
“47 What is sufficient description of 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.
…”
[11] A complaint may be amended in accordance with s 48(1):
“48 Amendment of complaint
(1) If at the hearing of a complaint, it appears to the justices that—
- (a)there is a defect therein, in substance or in form, other than a noncompliance with the provisions of section 43; or
- (b)there is a defect in any summons or warrant to apprehend a defendant issued upon such complaint; or
- (c)there is a variance between such complaint, summons or warrant and the evidence adduced at the hearing in support thereof; then—
- (d)if an objection is taken for any such defect or variance—the
justices shall; or
- (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.”
[12] Amendment of the particulars of a complaint is not governed by s 48.[2] An amendment will ordinarily be allowed in the absence of any unfairness unless the amendment works to change the true nature or essential elements of the charge.[3]
The time limit for making a complaint
- [13]The PG Act provides, in s 837, that an offence against that Act is a summary offence and, under s 837(4):
“(4) A proceeding for an offence against this Act must start within the later of the following periods to end—
- (a)1 year after the commission of the offence;
- (b)6 months after the offence comes to the complainant’s knowledge, but within 2 years after the commission of the offence;
- (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.”
An essential element of the offence?
- [14]A large part of the argument in this appeal was devoted to the question of whether paragraphs 19 and 20 constituted an essential element of the offence. The importance of that issue arises because “except in unusual circumstances, it would work an injustice to permit an amendment which has the effect of creating a new charge which would be defeated by a limitation provision if it had been charged by a fresh complaint made at the time of the application to amend.”[4]
- [15]The leading case in this area is Kirk v Industrial Relations Commission of New South Wales.[5] That case considered offences against the Occupational Health and Safety Act 1983 (NSW).
- [16]The High Court held that the form of the charges was inadequate as they “did little more than follow the words of” the relevant section. The majority said:
“[26] The common law requires 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 of the particular act, matter or thing alleged as the foundation of the charge. In John L Pty Ltd v Attorney-General (NSW), it was explained that the older cases established that an information could be quashed as insufficient in law if it failed to inform the justices of both the nature of the offence and the manner in which it had been committed. In more recent times the rationale of that requirement has been seen as lying in the necessity of informing the court of the identity of the offence with which it is required to deal and in providing the accused with the substance of the charge which he or she is called upon to meet. The common law requirement is that an information, or an application containing a statement of offences, ‘must at the least condescend to identifying the essential factual ingredients of the actual offence’. These facts need not be as extensive as those which a defendant might obtain on an application for particulars. In Johnson v Miller, Dixon J considered that an information must specify ‘the time, place and manner of the defendant's acts or omissions’. McTiernan J referred to the requirements of ‘fair information and reasonable particularity as to the nature of the offence charged’.” (emphasis added, citations omitted)
- [17]The shortcoming in the charges considered in Kirk was identified in this way:
“[28] The statements of the offences as particularised do not identify what measures the Kirk company could have taken but did not take. They do not identify an act or omission which constitutes a contravention of ss 15(1) and 16(1). The first particular of the s 15(1) offence suggests that the Kirk company had some systems relating to the operation of the ATV in place, but that they were not sufficient. It does not identify the deficiency in the system or the measures which should have been taken to address it. The second particular does not identify what information, instruction or training was necessary to be given to Mr Palmer or the other employee of the Kirk company. The particulars of the s 16(1) offence say nothing about what should have been done to avoid exposing the contractors to risk to their health and safety from the use of the ATV. Needless to say, the appellants could not have known what measures they were required to prove were not reasonably practicable.” (emphasis added)
- [18]This failure on the part of the complainant meant, the majority said, that the Industrial Court “had no power to [convict] because no particular act or omission, or set of acts or omissions, was identified at any point in the proceedings, up to and including the passing of sentence, as constituting the offences of which Mr Kirk and the Kirk company were convicted and for which they were sentenced. And the failure to identify the particular act or omission, or set of acts or omissions, alleged to constitute the contravening conduct followed from the misconstruction of s 15. By misconstruing s 15 of the OH&S Act, the Industrial Court convicted Mr Kirk and the Kirk company of offences when what was alleged and what was established did not identify offending conduct.”[6]
- [19]The principle in Kirk was applied in NK Collins Industries Pty Ltd v The President of the Industrial Court of Queensland.[7] The complaint concerned a failure to comply with s 28 of the Workplace Health and Safety Act 1995. That section imposed an obligation on a person conducting a business or undertaking “to ensure the workplace health and safety of ... each of the person’s workers ... is not affected by the conduct of the relevant person’s business or undertaking.”
- [20]The Court held that the same approach must be taken to a contravention as was taken in Kirk that is, that the relevant breach “is the measure not taken, the act or omission of the employer”.[8] It followed, then, that it was incumbent on the prosecution to identify the measure or measures which should have been taken to ensure workers’ safety from the risk.[9]
- [21]Turning to the factors in this case, one needs to consider the operation of s 678(1)(b) Of the PG Act. It works in the following way:
- (a)if an event relevant to the plant happens, and
- (b)the operator is aware, or ought reasonably to have been aware, of it, and
- (c)the event makes revision of the SMP appropriate, then
- (d)the operator must revise the SMP.
- (a)
- [22]It follows, then, that an essential element of the offence is the omission to make a revision which is appropriate in light of the event.
- [23]In light of the principles considered in Kirk and NK Collins, a charge alleging a breach of s 678(1)(b) must identify the revision of the SMP which was made “appropriate” by the occurrence of the relevant event. It is the omission to make the appropriate revision which constitutes the offence. But, the detail of the alleged appropriate revision will, in the ordinary course, be set out in the particulars of the charge, rather than the body.
Grounds 1 and 2. Was there an error?
- [24]The Industrial Magistrate’s reasoning contained the following observations:
- (a)“the crux of [the charge] is he failed to revise the safety management for the plant when he was aware - or reasonably to have been aware of that earlier incident in South Australia”
- (b)“It is a moot point to what extent the prosecutor is bound by those particulars”
- (c)“I would be most surprised if, at the end of the day, it was up to the Prosecution to prove beyond a reasonable doubt that the particulars it proposes for paragraph 20, the contentious paragraph, is as set out there. It seems to me that they are pretty general provisions that - after hearing the evidence, there - it is obviously contentious and open for debate as to what exactly should have been done to stop accidents like this one happening.”
- (d)“It seems to me that this charge is, essentially, different to failing to ensure the safety of a workplace, as dealt with in Kirk and Collins. It is a - the Act creates a new regimen - a new obligation on employers to revise the safety plan when things happen.”
- (a)
- [25]The Industrial Magistrate has, with respect, misunderstood the requirements expressed in Kirk and NK Collins. That misunderstanding is magnified by a misapprehension of the requirements of the s 678(1)(b) of the PG Act. That section obliges an operator to make an appropriate revision – not just to “revise the safety plan when things happen”. It is the requirement that the revision be appropriate in the light of the particular event that imposes an obligation on a complainant to identify what should have been done. Thus, the complainant has to prove what should have constituted the revision of the SMP.
- [26]In this case, the defendant argues, in effect, that a complainant cannot amend the particulars describing what the defendant should have done once the time limit in s 837 of the PG Act has passed.
- [27]The characteristics of the obligation under s 678(1)(b) are relevantly similar to those considered in Kirk and NK Collins. In those cases, as in this matter, an identifiable person is required to take certain action in response to another event.
- [28]The proposed amendment made a number of changes to the delineation of the revision which should have been undertaken. But, it did not change the essential element of the charge in that respect. There has not, in this case, been a failure to allege an essential element of the offence.
- [29]In order to understand the principles which apply and the legislative structure in which they operate it is necessary, first, to revisit Kirk. It concerned s 15(1) of the Occupational Health and Safety Act 1983 (NSW) which required every employer to ensure the health, safety and welfare at work of all the employer’s employees. Section 16(1) required every employer to ensure that persons not in the employer’s employment were not exposed to risks to their health or safety arising from the conduct of the employer’s undertaking while they were at the employer’s place of work. Section 53(a) made it a defence for a person charged with an offence to prove that it was not reasonably practicable to comply with the provision of the Act the breach of which constituted the offence. After a hearing in the Industrial Court of New South Wales, the defendants were convicted.
- [30]For the purposes of this consideration, the following extracts from the reasons of the majority[10] are instructive. At [14], they said:
“A statement of an offence must identify the act or omission said to constitute a contravention of s 15 or s 16. It may be expected that in many instances the specification of the measure which should have been or should be taken will itself identify the risk which is being addressed. The identification of a risk to the health, safety and welfare of employees and other persons in the workplace is a necessary step by an employer in discharging the employer’s obligations. And the identification of a risk which has not been addressed by appropriate measures must be undertaken by an inspector authorised to bring prosecutions under the Act (s 48). But it is the measures which assume importance to any charges brought. Sections 15 and 16 are contravened where there has been a failure, on the part of the employer, to take particular measures to prevent an identifiable risk eventuating. That is the relevant act or omission which gives rise to the offence.”
- [31]The common law requirements for making the detail of the charge known to the defendant were set out in [26] which is extracted above.
- [32]In Kirk, it was the failure by the complainant to identify in the particulars the act or omission which constituted a contravention of the relevant sections which led to the conclusion that the charge as proffered was inadequate.
- [33]Next, the provisions of the Justices Act 1886 which deal with contents of a charge and the power to amend must be considered.
- [34]This area has been examined closely in Harrison v President, Industrial Court[11] where Jackson J[12] came to the following conclusions with respect to s 48 of the Justices Act 1886:
- (a)The long reach of the power of amendment under s 48 is apparent from its terms – it extends to a defect in substance or inform.[13]
- (b)Even a failure to allege a necessary element of an offence may be amended under s 48, subject to the applicable principles.[14]
- (c)Analysis of the application of the power of amendment should proceed from what is reasonably disclosed as to the offence sought to be charged on the face of the complaint including the particulars.[15]
- (d)It should be accepted that if the facts alleged in the particulars included the required essential elements of a properly pleaded charge, the complaint was one capable of amendment even though the limitation period may have expired after the particulars were provided.[16]
- (a)
- [35]In this case, the complainant did allege all the necessary elements of the offence. The particulars, as originally supplied, demonstrated that the complainant was aware that he had to alert the defendant to what the complainant would seek to prove was the appropriate course of conduct. So far as fairness is concerned, it is relevant to observe that the defendant was always aware that part of the charge against him involved the allegation that he had failed to do an act or acts and the complainant had particularised what act or acts he should have performed.
- [36]The amendment to the particulars sought by the complainant (and granted by the Industrial Magistrate) did not change the nature of the offence and did not alter the broad allegation that the defendant should have conducted himself in a particular way. The defendant was not facing a different charge and the capacity to grant an amendment was within power notwithstanding the expiration of the time limit.
Ground 3
- [37]The respondent concedes that an error as described was made. It does not affect the decision which was otherwise correct.
Conclusion
[38] The appeal is dismissed.
Footnotes
[1] At the relevant time - Reprint 14 May 2013.
[2] Parhusip v Bell (2015) 252 IR 441.
[3] Ibid, [51].
[4] Olver v Dix [1999] TASSC 1, [14].
[5] [2010] HCA 1; 239 CLR 531.
[6] [74].
[7] [2014] 2 Qd R 304.
[8] Ibid, [58].
[9] Ibid,[59].
[10] French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.
[11] [2017] 1 Qd R 515.
[12] With whom McMurdo P and Morrison JA agreed.
[13] Harrison v President, Industrial Court [2017] 1 Qd R 515,[101].
[14] Ibid,[114].
[15] Ibid, [149].
[16] Ibid, [154].