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  4. J Hutchinson Pty Ltd v Guilfoyle - [2022] QCA 186

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J Hutchinson Pty Ltd v Guilfoyle[2022] QCA 186

Reported at (2022) 11 QR 850

J Hutchinson Pty Ltd v Guilfoyle[2022] QCA 186

Reported at (2022) 11 QR 850

SUPREME COURT OF QUEENSLAND

CITATION:

J Hutchinson Pty Ltd v Guilfoyle [2022] QCA 186

PARTIES:

J HUTCHINSON PTY LTD

ACN 009 778 330

(applicant)

v

AARON JOHN GUILFOYLE

(respondent)

FILE NO/S:

CA No 253 of 2021

DC No 916 of 2021

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Criminal)

ORIGINATING COURT:

District Court at Brisbane – [2021] QDC 221 (Reid DCJ)

DELIVERED ON:

27 September 2022

DELIVERED AT:

Brisbane

HEARING DATE:

8 June 2022

JUDGES:

Bowskill CJ and Morrison and Dalton JJA

ORDERS:

  1. Application for leave to appeal granted.
  2. Appeal dismissed.
  3. The applicant pay the respondent’s costs of and incidental to the appeal.
  4. Paragraph 2 of the application filed in the Magistrates Court on 15 December 2020 is dismissed.

CATCHWORDS:

APPEAL AND NEW TRIAL – INDUSTRIAL LAW – QUEENSLAND – OFFENCES – OTHER MATTERS – where a complaint was laid against the applicant (Hutchinson) alleging a breach of a statutory health and safety duty pursuant to the Work Health and Safety Act 2011 (Qld) – where               Hutchinson applied in the Magistrates Court to have the complaint struck out on the basis that it was void, because the “complaint on its face fails to particularise the legal ingredients of any offence and therefore fails to engage the jurisdiction of the Court” – where the complaint was struck out by the learned Magistrate as being a nullity which was “beyond the reach of amendment” – where that order was challenged on appeal to the District Court on the sole ground that the Magistrate was wrong to find that the complaint was a nullity – where the learned primary judge allowed the appeal and set aside the Magistrate’s order – where Hutchinson seeks leave to appeal, contending that the conclusion in the District Court was attended by error – where in Kidman a worker was fatally injured during the course of an incident – where outside the limitation period, a complaint was laid against the owner in the Court of Summary Jurisdiction charging that the circumstances concerning the death constituted an offence against s 32 of the Work Health and Safety (National Uniform Legislation) Act 2011 (NT) – where on appeal it was contended that the complaint was defective and invalid because: (i) it did not specify the deceased was a worker at the time; and (ii) it did not provide particulars of the specific basis on which it was alleged that the owner had failed to ensure the health and safety of the worker – where the Court of Appeal held that the complaint was defective in that it omitted one of the essential elements of the offence, but that the defect was not fatal because there was a power of amendment – where the conclusion of the Court was that the defective complaint was open to amendment and should be amended – where , the differences between the two provisions (ie s 183 Justices Act 1928 (NT) and s 48 Justices Act 1886 (Qld)) are not so great as to limit the utility of the observations in Kidman that a defective complaint, such as that in the present case, is not a nullity, and capable of amendment under a provision such as s 48 of the Justices Act 1886 (Qld) – whether the application for leave to appeal should be granted

Justices Act 1928 (NT), s 183

Justices Act 1886 (Qld), s 47, s 48

Work Health and Safety Act 2011 (Qld), s 19, s 32

Work Health and Safety (National Uniform Legislation) Act 2011 (NT), s 32

Area Concrete Pumping Pty Ltd v Inspector Barry Childs (Workcover) (2012) 223 IR 86; [2012] NSWCA 208, cited

GPI (General) Pty Ltd v Industrial Court of New South Wales (2011) 207 IR 93; [2011] NSWCA 157, cited

Harrison v President of Industrial Court of Queensland [2017] 1 Qd R 515; [2016] QCA 89, cited

Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77; cited

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

Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1, cited

S Kidman & Co Ltd v Lowndes CM (2016) 314 FLR 358; [2016] NTCA 5, cited

COUNSEL:

P J Roney QC, with R Byrnes, for the applicant

G R Rice QC, with S E Harburg, for the respondent

SOLICITORS:

McCullough Robertson for the applicant

Office of the Work Health and Safety Prosecutor for the respondent
  1. [1]
    THE COURT:  This application for leave to appeal concerns a complaint under the Justices Act 1886 (Qld), laid against the applicant (Hutchinson) on 12 June 2020.  It alleged a breach of a statutory health and safety duty pursuant to the Work Health and Safety Act 2011 (Qld).
  2. [2]
    The complaint was, relevantly, in the following terms:

“THE COMPLAINT of AARON JOHN GUILFOYLE … who says that on or about the twentieth day of June 2018, at South Brisbane in the said State, J HUTCHINSON PTY LTD was conducting a business or undertaking, and held a health and safety duty, namely a duty pursuant to section 19(1) of Work Health and Safety Act 2011, to ensure so far as is reasonably practicable, the health and safety of workers engaged, or caused to be engaged by the said J HUTCHINSON PTY LTD while the workers were at work in the business or undertaking, and failed to comply with the said duty, and the failure exposed an individual to a risk of death or serious injury, contrary to section 32 of the Work Health and Safety Act 2011.

contrary to the Acts in such case made and provided.”

  1. [3]
    Hutchinson applied in the Magistrates Court to have the complaint struck out on the basis that it was void, because the “complaint on its face fails to particularise the legal ingredients of any offence and therefore fails to engage the jurisdiction of the Court”.[1]
  2. [4]
    The complaint was struck out by the learned Magistrate as being a nullity which was “beyond the reach of amendment”.
  3. [5]
    That order was challenged on appeal to the District Court on the sole ground that the Magistrate was wrong to find that the complaint was a nullity.  The point in issue was identified by the learned primary judge as: “whether the complaint was sufficient to confer jurisdiction on the Magistrates Court, or whether the complaint was a nullity”. The learned primary judge allowed the appeal and set aside the Magistrate’s order.[2]
  4. [6]
    In the District Court, Hutchinson contended that the appeal should be dismissed because the complaint does not identify with sufficient particularity the essential factual ingredients of the alleged offence so as to engage the jurisdiction of the Court.  Hutchinson submitted that the complaint fails to contain “almost every essential factual ingredient of the offence charged, so as to be incurably defective”.[3]
  5. [7]
    Hutchinson now seeks leave to appeal, contending that the conclusion in the District Court was attended by error.
  6. [8]
    As will appear the question whether the complaint is a nullity is one in the public interest, not the least because a number of pending prosecutions involve complaints in much the same form.  In one the complaint has been struck out and an appeal to the District Court is pending.  In others a challenge has been foreshadowed.  Those matters await the decision in this case.  Further, since the validity of the complaint will determine whether Hutchinson can be prosecuted, the issue is one where Hutchinson can point to a significant impact upon it, depending on the outcome.  For those reasons leave to appeal should be granted.  The respondent did not oppose that course.
  7. [9]
    However, for the following reasons the appeal should be dismissed.

Approach of the Magistrate

  1. [10]
    The approach of the Magistrate was accurately summarised by the learned primary judge:[4]
    1. (a)
      her Honour initially identified the issue as being whether the complaint was void because, as she said, it fails to particularise the legal ingredients of the offence, and so fails to engage the jurisdiction of the Court;
    2. (b)
      her Honour set out s 47(1) of the Justices Act and said “the question for decision is whether the complaint must outline the essential factual ingredients of the actual offence outlined in the initiating complaint or in the alternative, whether a bare bones complaint outlining meagre fact and legislative structure of an offence is sufficient”;
    3. (c)
      her Honour set out s 48(1) of the Justices Act, observing that “at the heart of this decision is should the complaint…contain requirements that a particular act, matter, thing or duty transgressed be outlined as the foundation of the charge and in the complaint”;
    4. (d)
      her Honour turned her mind to the sufficiency of the alleged factual ingredients of the complaint; and
    5. (e)
      her Honour then said:

“… some matters other than the text of the offence-creating provisions must be alleged. I find that whilst this complaint discloses the legal elements of an offence, it fails to disclose any of the essential factual ingredients of an offence. Therefore, any potential amendment would be an impossibility. I find that this complaint is a nullity and beyond the reach of amendment.”

Approach of the District Court judge

  1. [11]
    The learned primary judge set out the relevant provisions of the Justices Act including:

“47 What is sufficient description of offence

  1. (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.

…

48 Amendment of complaint

  1. (1)
    If at the hearing of a complaint, it appears to the justices that—
  1. (a)
    there is a defect therein, in substance or in form, other than a noncompliance with the provisions of section 43; or

…

  1. (c)
    there is a variance between such complaint, summons or warrant and the evidence adduced at the hearing in support thereof;

then—

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

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

  1. [12]
    His Honour also set out relevant provisions of the Work Health and Safety Act 2011 (Qld), including:

“19 Primary duty of care

  1. (1)
    A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of—
  1. (a)
    workers engaged, or caused to be engaged by the person; and
  1. (b)
    workers whose activities in carrying out work are influenced or directed by the person;

while the workers are at work in the business or undertaking.

  1. (2)
    A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.
  1. (3)
    Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable—
  1. (a)
    the provision and maintenance of a work environment without risks to health and safety; and
  1. (b)
    the provision and maintenance of safe plant and structures; and
  1. (c)
    the provision and maintenance of safe systems of work; and
  1. (d)
    the safe use, handling and storage of plant, structures and substances; and
  1. (e)
    the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities; and
  1. (f)
    the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking; and
  1. (g)
    that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking.”

“32 Failure to comply with health and safety duty— category 2

A person commits a category 2 offence if—

  1. (a)
    the person has a health and safety duty; and
  1. (b)
    the person fails to comply with that duty; and
  1. (c)
    the failure exposes an individual to a risk of death or serious injury or illness.”
  1. [13]
    His Honour then recorded some of the contentions advanced by Hutchinson, including that:[5]
    1. (a)
      the common law test as stated in Kirk v Industrial Court (NSW)[6] applies even where there is an early application, as here, to dismiss the complaint on the basis that the complaint does not engage the jurisdiction of the Court;
    2. (b)
      the common law set out in Kirk applies with the consequence that the complaint must set out the essential factual ingredients, and if it does not do so then the complaint fails to invoke the jurisdiction of the court;
    3. (c)
      one considers the power of amendment only if satisfied that the court’s jurisdiction has been attracted; and
    4. (d)
      in Harrison v President of Industrial Court of Queensland,[7] Jackson J[8] “was at pains to point out that there was … this threshold question as whether the essential ingredients were contained within the complaint”.
  2. [14]
    The learned primary judge referred to two passages from the decision of Jackson J in Harrison where the impact of the power of amendment in s 48 of the Justices Act was addressed:[9]
  1. “[132]
    …It is not to be assumed that every failure to allege a necessary ingredient of a charge is beyond of the reach of the power of amendment under s 48”;.
  1. “[154]
    In my view, 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.”
  1. [15]
    His Honour made the point that Kirk dealt with a conviction following a trial.  The High Court decided that the matter “should not have proceeded without further particulars of the acts and omissions said to found the charges”.[10]  His Honour rejected Hutchinson’s contention that the common law set out in Kirk applies with the consequence that the complaint must set out the essential factual ingredients, and if it does not do so then the complaint fails to invoke the jurisdiction of the court, and there was no power to amend.  His Honour held that that approach “avoids consideration of the effect of the power to amend under s 48” of the Justices Act.
  2. [16]
    His Honour followed the decision of the Northern Territory Court of Appeal in S Kidman & Co Ltd v Lowndes CM.[11]  There a charge in similar form to that in the present case was found to be defective in two respects, namely not identifying (i) the essential elements of the offence alleged, and (ii) the essential factual ingredients of the offence alleged.[12]  However the Court of Appeal held that the charge was not a nullity because there was a power of amendment.  In that respect the learned primary judge relied upon the following passage:[13]

“The finding that the complaint does not comply with s 22A of the Justices Act either in its specificity or in the aspect of particulars does not lead to the conclusion that it was invalid in the sense that the proceeding is a nullity. In circumstances where a charge is defective for those reasons, but that irregularity may be cured by amendment, it cannot be said that the charge is a nullity. That focuses attention on the statutory power of amendment, and whether it may reach the irregularity in this case.”

  1. [17]
    His Honour ultimately held that the complaint was not a nullity, and that the question of amendment should be addressed:[14]
  1. “[79]
    In my view, S Kidman & Co is authority of the Court of Appeal of the Northern Territory, that a discretion to amend there did arise, and does in the circumstances before me. Whether the Magistrate ought have exercised that discretion to allow amendment ought have been considered by her Honour. Her Honour’s refusal before me to consider that matter was, if S Kidman & Co is to be followed, an error.
  1. [80]
    S Kidman & Co is of course a decision of an appellate court of another state (or, in this case, territory). It ought be followed unless I think it is plainly wrong. In fact I conclude that the reasons of the Northern Territory Court of Appeal are compelling. I should follow the reasons of that Court.”

Submissions to this Court

  1. [18]
    Mr Roney QC, appearing with Mr Byrnes for Hutchinson, advanced the same submissions as made before the learned primary judge. In essence they were:
    1. (a)
      the complaint was devoid of the factual matters it should contain in accordance with the common law principles laid down in the line of cases such as Kirk v Industrial Court (NSW)[15] and John L Pty Ltd v Attorney-General (NSW);[16] those principles state that a defendant is entitled to be told not only of the legal nature of the offence charged, but also of the particular act, matter or thing alleged as the foundation of the charge, that is, “the time, place and manner of the defendant's acts or omissions” and for fair information and reasonable particularity as to the nature of the offence charged;
    2. (b)
      relying on the decision of this Court in Harrison, compliance with the common law requirements is a threshold question, namely as to the level of particularity that a complaint must contain, and if it does not, then it is a nullity and there is no jurisdiction to amend;
    3. (c)
      the power of amendment under s 48 of the Justices Act is not available to save such a complaint; as to this, reliance was placed upon NK Collins Industries Pty Ltd v President of the Industrial Court,[17] Archer v Simon Transport Pty Ltd,[18] and Harrison;
    4. (d)
      Kidman was of no assistance and should not have been relied upon; it turned upon its own legislative provisions and procedural rules, was not on all fours, and did not decide the current issue; in any event, s 48 of the Act in Queensland is materially different from s 183 in the Northern Territory; and
    5. (e)
      the primary judge erred in finding that the Magistrate ought to have considered whether to exercise the discretion to allow an amendment to the complaint because the Magistrate had not been requested to grant leave to amend, nor had such an application been foreshadowed.

Consideration

  1. [19]
    Mr Roney QC accepted that the complaint did disclose an offence known to law.[19]  In our respectful view, that concession was right as the complaint follows the wording of s 19(1)(a) and s 32 of the Work Health and Safety Act.  As will appear, the same conclusion was reached in Kidman:[20] see paragraph [53] below.
  2. [20]
    Later Mr Roney sought to draw a distinction between a complaint that discloses the legal elements by reference to what the relevant section requires, and one that contains the relevant factual elements referred to in Harrison at paragraph [131]: set out in paragraph [29] below. However, the proposition as finally articulated did not depend on that distinction.  It was that the question to be considered was whether the complaint was a nullity.[21]
  3. [21]
    Broken into its separate components the complaint here alleges:
    1. (a)
      the date of the offence: on or about 20 June 2018;
    2. (b)
      the place of the offence: at South Brisbane;
    3. (c)
      the accused: J Hutchinson Pty Ltd;
    4. (d)
      the accused was “conducting a business or undertaking”;
    5. (e)
      the accused held a health and safety duty pursuant to section 19(1)(a);[22]
    6. (f)
      the duty was to “ensure the health and safety of workers”;
    7. (g)
      the relevant workers were workers “engaged, or caused to be engaged by” the accused;
    8. (h)
      the duty was engaged at a time when “the workers were at work in the business or undertaking”;
    9. (i)
      the duty had been breached, i.e. “failed to comply with the said duty”;
    10. (j)
      the consequence of the breach of duty, i.e. the “failure exposed an individual to a risk of death or serious injury”; and
    11. (k)
      the specific offence: “contrary to section 32 of the Work Health and Safety Act 2011”.
  4. [22]
    Of those 11 components, all but subparagraphs (e), (f) and (k) allege matters of fact.  In our view, they allege an offence known to law.  That, of course, does not mean the complaint contains that which the Kirk and John L line of cases requires.
  5. [23]
    The respondent accepted that Kirk and John L require that a defendant be told the factual ingredients, described by Dixon J in Johnson v Miller[23] as the “time, place, and the manner of the defendant’s acts or omissions”.  In so doing the respondent acknowledged that the complaint did not have all that Kirk and John L required by way of particulars.  However, it contended that omission did not mean that the complaint was a nullity.
  6. [24]
    As to the question of particulars, it was not contested that factual particulars were provided to Hutchinson prior to the application before the Magistrate, separately to the complaint and summons.  The particulars were in fact served with the complaint.  No complaint was made about the content of those particulars.  Hence the respondent was right to characterise the case as being one concerned with jurisdiction, not any failure to accord procedural fairness.

Is the reliance upon Harrison justified?

  1. [25]
    Mr Roney’s contention as to this Court’s decision in Harrison was that it established that there was a threshold level of particularity to be given in a complaint, and that absent that particularity the complaint was a nullity unable to be saved by amendment under s 48 of the Justices Act.
  2. [26]
    In our respectful view, for a number of reasons that contention must be rejected.
  3. [27]
    First, it must be noted that Harrison was the converse of the present case.  There, a wide range of factual particulars were included, but without specifying the offence alleged to have been committed.  As Jackson J described it:[24]
  1. “[121]
    I return to the complaint against the fourth respondent. The charge alleged a failure to discharge the safety and health obligations under ss 36 and 38 of the Act. It is convenient to leave s 36 aside to reduce the scope of the analysis necessary. However, s 38 alone contains no fewer than five or six obligations, or sets of obligations. On the proper construction of s 38, a contravention of any one of those obligations would be an offence.
  1. [122]
    The charge does not identify which of those obligations the complainant alleges was breached. Instead, it generally refers to “the obligations”. In part, common sense dictates that not all of the obligations under s 38 can have been intended. For example, the obligation under s 38(1)(c) is to appoint a site senior executive for the mine. No fact alleged in the particulars suggests the second respondent was not in truth the site senior executive, and the second respondent was charged as the site senior executive over the same events as the fourth respondent.

…

  1. [133]
    The present case presents an extreme example of a pleading that informs the reader of the substance of the matter but at the same time manages, almost artfully, to avoid setting out a clear statement of the relevant obligation or its contravention.”
  1. [28]
    Therefore, Harrison was not a case about a complaint falling short of the level of particularity required by the common law principles in the Kirk line of cases.  That said, it was concerned with a complaint where there was a failure to allege a necessary ingredient of the charge.
  2. [29]
    Secondly, Jackson J accepted that the amendment power in s 48 could extend to a failure to allege a necessary ingredient of the charge, even if that was the failure to allege an element of the offence.  Thus:[25]
  1. “[112]
    The characterisation of a defective court process as a nullity is connected to the distinction between superior courts of record of general jurisdiction and courts of limited jurisdiction. In the case of superior courts, acts in excess of jurisdiction cannot be characterised as invalid until quashed or set aside on appeal. That is not necessarily true of courts of limited jurisdiction.
  1. [113]
    But the question in the present case must now be decided having regard to the effect of s 48 and the other sections of the Justices Act 1886.
  1. [114]
    For example, the discussion as to the operation of s 43 set out above shows that a complaint that is defective because of non-compliance with s 43 is not a nullity. The same is true of some other defects that fall within s 48. Even a failure to allege a necessary element of an offence may be amended under s 48, subject to the applicable principles.

…

  1. [131]
    The Industrial Court held that allegations in that form of the charge in this complaint do not expose the legal ingredients of the charge and that a complaint that does not do so is a nullity. It is necessary to identify the basis of those two steps in its reasoning with precision. The second step was elucidated by the proposition that “A failure to identify the act which comprises the offence, that is, the particular obligation which has been ignored and the measure that could have been taken, renders the complaint a nullity.”
  1. [132]
    In my view, those reasons need to be read in the light of the particular defects in question. It is not to be assumed that every failure to allege a necessary ingredient of a charge is beyond the reach of the power of amendment under s 48.”
  1. [30]
    Those statements of principle are contrary to the contention that Harrison established a threshold level of particularity, short of which a complaint was a nullity.  To the contrary, Harrison acknowledged that the validity of complaint was a matter to be determined in conjunction with the power of amendment.
  2. [31]
    Thirdly, when pressed to identify those paragraphs of Harrison where the threshold question was laid down, with nullity as the product of non-compliance, Mr Roney identified a number of paragraphs[26] but had to concede that if the proposition emerged at all, it was only implicit in those passages.
  3. [32]
    All of the paragraphs identified were in a part of the reasons entitled “Were the complaints nullities and incapable of amendment?”, so that the consideration was whether amendment was not able to be made to the complaint in question. Harrison did not hold that it was incapable of amendment.
  4. [33]
    Paragraphs [144]-[148] and [154] of Harrison do not assist the contention advanced.  The breadth of the amendment power is reiterated,[27] and the scope of the power is explained in terms to the contrary of Hutchinson’s case:[28]
  1. [147]
    Although some other cases in the High Court circle the question, Broome v Chenoweth seems to be the case in that court that squarely considers the scope of the power to amend under cognate legislation. Dixon J said:

“An offence may be clearly indicated in an information, but, in its statement, there may be some slip or clumsiness, which, upon a strict analysis results in an ingredient in the offence being the subject of no proper averment. Logically it may be said in such a case that no offence is disclosed and yet it would seem to be a fit case for amendment, if justice is not to be defeated. By contrast, at the other extreme, an information may contain nothing which can identify the charge with any offence known to the law. Such a case may not be covered by the power of amendment. It is, perhaps, enough to say that I think that the earlier information in the present case, although defective, was not outside the power of amendment conferred by s 239(1).”

  1. [148]
    However, Broome did not decide that any information offending the requirement to identify the charge with an offence known to the law was outside the power of amendment. Dixon J’s remarks were obiter and they say only that the information may be outside the power of amendment.
  1. [149]
    In my view, analysis of the application of the power of amendment in the present case should proceed from what is reasonably disclosed as to the offence sought to be charged on the face of the complaint including the particulars.

…

  1. [154]
    In my view, 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.”
  1. [34]
    Fourthly, Harrison did not hold that the amendment power in s 48 was a narrow one. To the contrary, Jackson J referred to it as being a broad power, in this way:
  1. “[101]
    The long reach of the power of amendment under s 48 is apparent from its terms – it extends to a defect in substance or in form.”
  1. [35]
    The breadth of that power was reiterated in paragraph [144] and was held to extend to amendment even though the limitation period had expired: see paragraph [33] above.
  2. [36]
    Fifthly, not only did Harrison not establish the proposition for which Hutchinson contends, that proposition is not supported by other authority.  Specifically, there is support for the contrary proposition, namely that the power of amendment can extend to cases where the complaint does not disclose an offence known to law.
  3. [37]
    Thus, in Broome v Chenoweth[29] Dixon J said:

“Whether an information disclosing no offence can be amended has been the subject of some difference of judicial opinion. Some Victorian cases will be found discussed by Cussen J. in Knox v. Bible, and the matter is very fully examined by Clark J. in Davies v. Andrews, where cases from other jurisdictions are collected. Probably it is necessary to deal with the question as a matter of degree and not by a firmly logical distinction. An offence may be clearly indicated in an information, but, in its statement, there may be some slip or clumsiness, which, upon a strict analysis results in an ingredient in the offence being the subject of no proper averment. Logically it may be said in such a case that no offence is disclosed and yet it would seem to be a fit case for amendment, if justice is not to be defeated. By contrast, at the other extreme, an information may contain nothing which can identify the charge with any offence known to the law. Such a case may not be covered by the power of amendment ...”

  1. [38]
    And in Ciorra v Cole[30] Redlich J not only held that amendment was available without the threshold point,[31] but may extend to cases where “a charge discloses no offence”.[32]  The latter statement was approved by the Victorian Court of Appeal in Director of Public Prosecutions (Vic) v Kypri,[33] a case where a charge was defective because it omitted an essential element of the offence.  Nonetheless the Victorian Court of Appeal held that the charge was not a nullity but was capable of amendment.  Nettle JA said:[34]
  1. “[21]
    Counsel for the respondent submitted that the High Court’s decision in John L, and the decision in Ex parte Lovell (on which to some extent the decision in John L was based) determined that a charge which omits an essential element is essentially invalid and cannot be amended. That is incorrect. As Redlich J explained in Ciorra v Cole, decisions such as John L and Ex parte Lovell were made under statutory regimes which did not include a statutory power of amendment like s 50. Contrary to the respondent’s contentions, the power to amend under s 50 is available where a charge discloses no offence.”
  1. [39]
    Tate JA agreed with the reasons of Nettle JA, but added:[35]
  1. “[68]
    As his Honour makes clear, in a statutory regime that contains a power of amendment, a charge which is defective because it fails to refer to the relevant statutory provision alleged to be contravened ought not to be treated as a nullity, whatever its status might be at common law. The relevant question to ask is whether an amendment can cure the irregularity by clarifying the charge that had been laid, without injustice to the defendant. As Callaway JA said in McMahon v Director of Public Prosecutions:

Failure to comply with s 27(2) does not, in my opinion, deprive the Magistrate of jurisdiction to make amendments under s 50.”

  1. [40]
    Prior to Harrison, in Karimbla Construction Services Pty Ltd v President of the Industrial Court of Queensland[36] Jackson J considered the question whether a complaint, which was defective by reason that it did not allege a particular of a relevant act or omission, was invalid or capable of amendment.  The facts are not similar to the present case, as Karimbla involved a failure to make a clear factual allegation.  However, Jackson J made a number of relevant conclusions:
    1. (a)
      the lack of allegations of acts and omissions constituting the offences was not a fatal defect such that it was incapable of amendment, and Kirk did not decide so;[37]
    2. (b)
      the failure to include, in the complaint, particulars of the acts and omissions constituting the offence did not answer the question whether the complaint was so defective as to be invalid and incapable of amendment;[38] and
    3. (c)
      relying on GPI (General) Pty Ltd v Industrial Court of New South Wales[39] and Area Concrete Pumping Pty Ltd v Inspector Barry Childs (Workcover),[40] failure to allege a particular of a relevant act or omission constituting the offence does not render the complaint invalid and incapable of cure by amendment under s 48 of the Justices Act.[41]

The relevance of Kidman

  1. [41]
    In Kidman an incident occurred on a cattle property known as Helen Springs Station.  The property was owned by S Kidman & Co.  A worker was fatally injured during the course of the incident.  On 30 January 2015, outside the limitation period, a complaint was laid against the owner in the Court of Summary Jurisdiction charging that the circumstances concerning the death constituted an offence against s 32 of the Work Health and Safety (National Uniform Legislation) Act 2011 (NT).
  2. [42]
    The complaint was in this form:

“On the 8th February 2012

at Helen Springs in the Northern Territory of Australia,

  1. Being a person conducting a business or undertaking and having a health and safety duty, failed to comply with that duty which failure exposed an individual namely, Matthew ARENA, to a risk of death or serious injury.

Contrary to Section 32 of the Work Health and Safety (National Uniform Legislation) Act read with Section 19 of the Work Health and Safety (National Uniform Legislation) Act.”

  1. [43]
    It can be seen that the complaint was in similar form to that in the current case.  Sections 19 and 32 of the Northern Territory Work Health and Safety (National Uniform Legislation) Act were relevantly identical to the same sections in the Queensland Work Health and Safety Act.
  2. [44]
    On 12 March 2015 particulars of the charge were provided.  The adequacy of the particulars was not in issue, but they were provided outside the limitation period.
  3. [45]
    The Court of Summary Jurisdiction held that the complaint was within the limitation period and was defective, but could be amended under s 183 of the Justices Act, which provided:

“183 Amendment of information or complaint

If it appears to the Court before whom any defendant comes or is brought to answer any information or complaint that the information or complaint:

  1. (a)
    fails to disclose any offence or matter of complaint, or is otherwise defective; and
  1. (b)
    ought to be amended so as to disclose an offence or matter of complaint, or otherwise to cure the defect,

the Court may amend the information or complaint upon such terms as may be just.”

  1. [46]
    On review in the Supreme Court, it was held that the owner was entitled to particulars of the specific grounds on which it was alleged to have failed to ensure, so far as was reasonably practicable, the health and safety of the deceased worker.  Further, that a failure to include those particulars in the complaint did not lead to the result that the complaint was invalid, or any finding that it failed to plead the essential legal elements of the relevant offence.  It held the particulars could be provided after the limitation period, that they were adequate and therefore there was no need to amend the complaint.
  2. [47]
    On appeal it was contended that the complaint was defective and invalid because: (i) it did not specify the deceased was a worker at the time; and (ii) it did not provide particulars of the specific basis on which it was alleged that the owner had failed to ensure the health and safety of the worker.
  3. [48]
    Self-evidently, Kidman was a case on all fours with the current one.
  4. [49]
    The Court of Appeal held that the complaint was defective in that it omitted one of the essential elements of the offence, but that the defect was not fatal because there was a power of amendment:[42]

“87 The incorporation into this complaint of the formulation that the “failure exposed an individual namely, Matthew ARENA, to a risk of death or serious injury” was insufficient to make it plain which subsection was being invoked. On an ex facie assessment, as must be conducted for these purposes, that formulation added nothing to the complaint beyond stating that the breach exposed an individual to a risk of death or serious injury or illness. It did not identify whether the duty in question was that created by s 19(1) for s 19(2) of the WHS Act. From the perspective of the judicial officer required to deal with the complaint, the identification of the individual did not assist in that enquiry. From the perspective of the appellant, it was not required to assume that the intention of the prosecutor was to bring the charge under s 19(1) of the WHS Act due to an imputed knowledge of the individual’s employment status.

88 The contents of the complaint as originally framed are not sufficient when read as a whole to bring home to a reasonable defendant the essential elements of the offence alleged, and fail to provide “a statement of the specific offence with which the accused person is charged” as required by s 22A of the Justices Act. That particular defect was not obviated or ameliorated by the provisions of ss 55 or 181 of the Justices Act.

89 For reasons which are discussed further below, a defect of that sort in the statement of the specific offence is not necessarily fatal in circumstances where the governing statute confers a power of amendment. Before turning to consider the question of amendment, it is convenient first to consider the further contention that the complaint was also defective for lack of particularity.”

  1. [50]
    The Court also held that the complaint was defective because it did not include those particulars that the common law required:[43]
  1. “101
    It may be accepted that only the essential factual ingredients need be incorporated into the complaint. It may also be accepted that there is a distinction between particulars at the initiating stage and particulars necessary for the conduct of the hearing. Even allowing for those qualifications and distinctions, the terms of the complaint in this case do nothing more than particularise the time and place of the alleged offending and then replicate the words of that part of s 32 of the WHS Act which creates the offence, and make bald reference to s 19 of the WHS Act. Those terms go no way towards describing the act or omission said to constitute the relevant failure, the factual matters constituting the relevant risk, or the state of affairs the appellant is said to have failed to ensure in terms similar to the non-exhaustive formulations in subs 19(3) of the WHS Act. The complaint makes no attempt to identify what reasonably practicable measures the appellant could have taken in the circumstances to ensure the health and safety of the deceased.
  1. 102
    For those reasons, the complaint does not satisfy the requirement for particularity imposed by s 22A of the Justices Act. Nor was the defect obviated or ameliorated by the operation of s 181 of the Justices Act. The complaint as filed did not give the appellant a reasonably clear and intelligible statement of the offence with which it was charged, in terms of either the specific offence or the factual manner in which the appellant’s acts or omissions are alleged to constitute the specific offence.
  1. 103
    The complaint is defective on its face for that reason as well, again giving rise to the question whether that defect was or could be remedied in the circumstances by the later provision of particulars and/or by the exercise of the power of amendment.”
  1. [51]
    It is evident from the passages set out in paragraphs [49] and [50] above that Kidman is an analogue of the present case.
  2. [52]
    Critically for the current case, the Court held that the invalidity did not lead to the conclusion that the complaint was a nullity:[44]
  1. “104
    The finding that the complaint does not comply with s 22A of the Justices Act either in its specificity or in the aspect of particulars does not lead to the conclusion that it was invalid in the sense that the proceeding is a nullity. In circumstances where a charge is defective for those reasons, but that irregularity may be cured by amendment, it cannot be said that the charge is a nullity. That focuses attention on the statutory power of amendment, and whether it may reach the irregularity in this case.”
  1. [53]
    The Court then turned attention to the power of amendment.  Having referred to what Dixon J said in Broome v Chenoweth and to the observations in Kypri and Harrison, the Court then referred to the power of amendment as it related to the charge in that case:[45]
  1. “115
    The power of amendment in the Justices Act is wide-ranging and extends to any defect in a charge whether in substance or in form, and may even be exercised where there is a variation between the charge and the evidence presented in the proceeding. It serves the purpose of ensuring that justice is not defeated by errors and omissions which are not productive of injustice.
  1. 116
    What was alleged in the complaint in this case was unquestionably an offence known to the law. The defect was in failing to make clear which of the two offences for which s 32 of the WHS Act provides, in combination with s 19, was the one alleged; and in failing to provide particulars of the factual elements of that offence. The limitation period had expired prior to the provision of particulars specifying that the relevant failure was to ensure the health and safety of the worker and explicating the acts and omissions said to constitute that failure. A number of observations may be made in relation to the exercise of the power of amendment in those circumstances.”
  1. [54]
    Kidman also referred to some of the considerations that apply when considering the question of amendment.[46]
  1. “117
    First, an amendment should not be permitted which would have the effect of charging a different offence out of time. To do so would be tantamount to permitting a new charge to be laid. …
  1. 118
    Secondly, under s 183 of the Justices Act the relevant enquiry — in circumstances where the complaint does disclose an offence known to the law — is whether the amendment of the complaint would otherwise give rise to injustice. That will depend upon the circumstances of the case. The question will usually involve some enquiry as to whether the defendant was in a position prior to the expiry of the limitation period to ascertain the true nature of the charge from the terms of the complaint together with extraneous materials and circumstances. That enquiry is not necessarily limited to the ascertainment of whether the police brief or particulars were provided prior to the expiry of the limitation period, and should not be divorced from a consideration of whether the defendant would in fact suffer material injustice or prejudice if the amendment is allowed.”
  1. [55]
    The conclusion of the Court was that the defective complaint was open to amendment and should be amended.
  2. [56]
    Hutchinson contended that Kidman was of no assistance as it involved a different statutory regime and a different factual scenario.  That contention must be rejected.  As explained above, the factual scenario was close to that here, in that the complaint was similarly defective by the omission of an essential element of the offence.  The legislation was the same for the creation of the offence.  The only difference was in the provision governing amendment.  As to that, both statutes give a court power to amend where a complaint is defective.  Section 183 in the Northern Territory is engaged where a complaint “fails to disclose any offence or matter of complaint, or is otherwise defective”.  In Queensland s 48 is engaged where a complaint exhibits “a defect therein, in substance or in form”.  Failure to disclose an offence or matter of complaint is comprehended by the phrase “defect of substance or in form”.  And each section is engaged where a complaint contains a defect.
  3. [57]
    In our view, the differences between the two provisions are not so great as to limit the utility of the observations in Kidman that a defective complaint, such as that in the present case, is not a nullity, and capable of amendment under a provision such as s 48 of the Justices Act.

Magistrate’s failure to consider amendment

  1. [58]
    The learned Magistrate held that the complaint was a nullity beyond the reach of amendment.  On that basis her Honour did not need to, and did not, consider whether it should be amended.
  2. [59]
    Hutchinson’s submissions included that the primary judge erred in finding that the Magistrate ought to have considered whether to exercise the discretion to allow an amendment to the complaint because the Magistrate had not been requested to grant leave to amend, nor had such an application been foreshadowed.
  3. [60]
    There is nothing in this point.  Section 48(1)(d) is the operative provision because Hutchinson has objected to the complaint.  Where that is the case, the provision stipulates that “the justices shall … make such order for the amendment of the complaint … as appears to them to be necessary or desirable in the interests of justice”.

A further matter

  1. [61]
    There is one final matter that ought to be mentioned.  Paragraph 2 of Hutchinson’s application to the Magistrate sought, in addition to an order striking out the complaint on the basis dealt with in the reasons above, an order that the summons be struck out “as the complaint made before the Justice did not on its face justify the issue of the summons”.[47]  Having reached the view that the complaint was not valid and should be struck out, the Magistrate at first instance found it unnecessary to consider that application.[48]
  2. [62]
    Following the successful appeal to the District Court, Reid DCJ set aside the order of the Magistrate striking out the complaint, and further ordered that determination of paragraph 2 of the application be remitted to the Magistrates Court.[49]
  3. [63]
    At the hearing of the application for leave to appeal to this Court, some concern was expressed by the Court that, after the length of time that has already passed since the events in question occurred, there might be scope for a further argument, before any trial could proceed, arising from paragraph 2 of the original application.  Senior Counsel for Hutchinson was asked whether he was content for this Court to address the continued scope for argument about paragraph 2 on the basis of the conclusions to be reached on the issue the subject of the application for leave to appeal, or whether he would wish to make any further submissions about that.  Senior Counsel said he did not wish to make any further submissions.
  4. [64]
    To the extent that paragraph 2 of the original application relies upon Hutchinson’s argument for the purposes of paragraph 1, the conclusion reached above (that the complaint was not, on its face, a nullity), means there is no need for any further consideration of paragraph 2.  To the extent that paragraph 2 of the original application could be said to raise a broader issue, namely that in any event the Justice of the Peace did not fulfil his function by engaging in the process of considering whether the complaint, on its face, justified the issue of the summons, it is to be noted that the Justice of the Peace, Mr Denning, gave quite detailed evidence before the Magistrate,[50] from which it is apparent that he did engage in such a process, and satisfied himself that it was an appropriate matter in which to issue a summons.
  5. [65]
    Accordingly, it is appropriate to record that, as a consequence of the conclusion in relation to the validity of the complaint, paragraph 2 of the application – that the summons served on Hutchinson requiring it to appear before the Court be struck out as the complaint made before the Justice did not on its face justify the issue of the summons – ought to be dismissed.

Conclusion

  1. [66]
    For the reasons given above the application for leave to appeal should be allowed, but because the appeal lacks merit it should be dismissed.  The orders are:
  1. Application for leave to appeal granted.
  2. Appeal dismissed.
  3. The applicant pay the respondent’s costs of and incidental to the appeal.
  4. Paragraph 2 of the application filed in the Magistrates Court on 15 December 2020 is dismissed.

Footnotes

[1]  Application, paragraph 1; AB 122.

[2] Guilfoyle v J Hutchinson Pty Ltd [2021] QDC 221.

[3]  Reasons below [3].

[4]  Reasons below [5]-[11].

[5]  Reasons below [19], [22] and [27].

[6]  (2010) 239 CLR 531 (Kirk was incorrectly cited in the footnote of the reasons below as (2010) 235 CLR 531), see footnote [8].

[7]  [2017] 1 Qd R 515; [2016] QCA 89.

[8]  McMurdo P and Morrison JA concurring.

[9] Harrison at [132] and [154]; Reasons below [23] and [24]; (at [24] his Honour wrongly referring to the passage as being from [165] of Harrison).

[10] Kirk at p 59, cited at paragraph [21] of the reasons below.

[11]  (2016) 314 FLR 358; [2016] NTCA 5.

[12] Kidman at [88]-[89] and [102]-[103].

[13] Kidman at [104].  Footnote omitted.

[14]  Reasons below [79]-[80].

[15]  (2010) 239 CLR 531.

[16]  (1987) 163 CLR 508.

[17]  [2013] QCA 179.

[18]  [2016] QCA 168.

[19]  Appeal transcript T 1-12 lines 4-8.

[20] Kidman at [116].

[21]  Appeal transcript T 1-18 line 45 to T 1-19 line 31.

[22]  Though it said s 19 of the Act, the reference to workers “engaged or caused to be engaged” is a reference to s 19(1)(a).

[23] Johnson v Miller (1937) 59 CLR 467 at 486.

[24] Harrison at [121]-[122] and [133].  Footnotes omitted.

[25] Harrison at [112]-[114] and [132].  Footnotes omitted.

[26] Harrison at [96], [107], [112]-[116], [128], [130], [131]-[133], [144]-[149] and [154].

[27] Harrison at [144].

[28] Harrison at [147]-[149]. Footnotes omitted.

[29]  (1946) 73 CLR 583 at 601.

[30]  (2004) 150 A Crim R 189.

[31] Ciorra at [30].

[32] Ciorra at [27].

[33] Director of Public Prosecutions (Vic) v Kypri (2011) 33 VR 157; [2011] VSCA 257 at [21] per Nettle JA, Ashley and Tate JJA concurring.

[34] Kypri at [21].  Footnotes omitted.

[35] Kypri at [68].  Footnotes omitted.

[36]  [2014] QSC 56.

[37] Karimbla at [34]-[36].

[38] Karimbla at [37]-[38].

[39]  (2011) 207 IR 93.

[40]  (2012) 223 IR 86.

[41] Karimbla at [59].

[42] Kidman at [87]-[89].

[43] Kidman at [101]-[103].

[44] Kidman at [104].  Footnote omitted.

[45] Kidman at [115]-[116].  Footnote omitted.

[46] Kidman at [117]-[118].

[47]  AB 122.  Emphasis added.

[48]  AB 118.

[49]  AB 293.

[50]  AB 25-40.

Close

Editorial Notes

  • Published Case Name:

    J Hutchinson Pty Ltd v Guilfoyle

  • Shortened Case Name:

    J Hutchinson Pty Ltd v Guilfoyle

  • Reported Citation:

    (2022) 11 QR 850

  • MNC:

    [2022] QCA 186

  • Court:

    QCA

  • Judge(s):

    Bowskill CJ, Morrison JA, Dalton JA

  • Date:

    27 Sep 2022

  • Selected for Reporting:

    Editor's Note

Litigation History

EventCitation or FileDateNotes
Primary JudgmentMC25630/20 (No citation)14 Apr 2021-
Primary Judgment[2021] QDC 22115 Sep 2021-
Notice of Appeal FiledFile Number: CA253/2111 Oct 2021-
Appeal Determined (QCA)[2022] QCA 18627 Sep 2022-

Appeal Status

Appeal Determined (QCA)

Cases Cited

Case NameFull CitationFrequency
Archer v Simon Transport Pty Ltd [2016] QCA 168
1 citation
Jump To
Cite 1 - [2016] QCA 168
Area Concrete Pumping Pty Ltd v Inspector Childs (2012) 223 IR 86
2 citations
Jump To
Cite 1 - (2012) 223 IR 86
Cite 2 - (2012) 223 IR 86
Area Concrete Pumping Pty Ltd v Inspector Childs [2012] NSWCA 208
1 citation
Jump To
Cite 1 - [2012] NSWCA 208
Broome v Chenoweth (1946) 73 CLR 583
1 citation
Jump To
Cite 1 - (1946) 73 CLR 583
Ciorra v Cole (2004) 150 A Crim R 189
1 citation
Jump To
Cite 1 - (2004) 150 A Crim R 189
Director of Public Prosecutions v Kypri (2011) 33 VR 157
1 citation
Jump To
Cite 1 - (2011) 33 VR 157
DPP v Kypri [2011] VSCA 257
1 citation
Jump To
Cite 1 - [2011] VSCA 257
GPI (General) Pty Ltd v Industrial Court (NSW) [2011] NSWCA 157
1 citation
Jump To
Cite 1 - [2011] NSWCA 157
GPI (General) Pty Ltd v Industrial Court of New South Wales (2011) 207 IR 93
2 citations
Jump To
Cite 1 - (2011) 207 IR 93
Cite 2 - (2011) 207 IR 93
Guilfoyle v J Hutchinson Pty Ltd [2021] QDC 221
2 citations
Jump To
Cite 1 - [2021] QDC 221
Cite 2 - [2021] QDC 221
Harrison v President of the Industrial Court of Queensland[2017] 1 Qd R 515; [2016] QCA 89
4 citations
Jump To
Cite 1 - [2016] QCA 89
Cite 2 - [2016] QCA 89
Cite 3 - [2017] 1 Qd R 515
Cite 4 - [2017] 1 Qd R 515
John L Pty Ltd v The Attorney-General for the State of New South Wales (1987) 163 CLR 508
1 citation
Jump To
Cite 1 - (1987) 163 CLR 508
Johnson v Miller (1937) 59 CLR 467
2 citations
Jump To
Cite 1 - (1937) 59 CLR 467
Cite 2 - (1937) 59 CLR 467
Johnson v Miller [1937] HCA 77
1 citation
Jump To
Cite 1 - [1937] HCA 77
Karimbla Construction Services Pty Ltd v President of the Industrial Court of Queensland [2014] QSC 56
2 citations
Jump To
Cite 1 - [2014] QSC 56
Cite 2 - [2014] QSC 56
Kirk v Industrial Court (NSW) (2010) 239 CLR 531
3 citations
Jump To
Cite 1 - (2010) 239 CLR 531
Cite 2 - (2010) 239 CLR 531
Cite 3 - (2010) 239 CLR 531
Kirk v Industrial Court of New South Wales (2010) 235 CLR 531
1 citation
Jump To
Cite 1 - (2010) 235 CLR 531
Kirk v Industrial Relations Commission of NSW (2010) HCA 1
1 citation
Jump To
Cite 1 - (2010) HCA 1
NK Collins Industries Pty Ltd v President of the Industrial Court of Queensland[2014] 2 Qd R 304; [2013] QCA 179
1 citation
Jump To
Cite 1 - [2013] QCA 179
S Kidman & Co Ltd v Lowndes CM & Director of Public Prosecutions [2016] NTCA 5
2 citations
Jump To
Cite 1 - [2016] NTCA 5
Cite 2 - [2016] NTCA 5
S Kidman v Lowndes CM [2016] 314 FLR 358
10 citations
Jump To
Cite 1 - [2016] 314 FLR 358
Cite 2 - [2016] 314 FLR 358
Cite 3 - [2016] 314 FLR 358
Cite 4 - [2016] 314 FLR 358
Cite 5 - [2016] 314 FLR 358
Cite 6 - [2016] 314 FLR 358
Cite 7 - [2016] 314 FLR 358
Cite 8 - [2016] 314 FLR 358
Cite 9 - [2016] 314 FLR 358
Cite 10 - [2016] 314 FLR 358

Cases Citing

Case NameFull CitationFrequency
Guilfoyle v Niepe Construction Pty Ltd [2023] QDC 402 citations
Ward v Saleh [2023] QMC 183 citations
WH v CK [2023] QMC 194 citations
Whitsunday Regional Council v Work Health and Safety Prosecutor [2024] QSC 25 2 citations
1

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