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Guilfoyle v J Hutchinson Pty Ltd QDC 221
DISTRICT COURT OF QUEENSLAND
Guilfoyle v J Hutchinson Pty Ltd  QDC 221
AARON JOHN GUILFOYLE
J HUTCHINSON PTY LTD
Brisbane Magistrates Court (Magistrate Coates)
15 September 2021
District Court, Brisbane
26 July 2021
CRIMINAL LAW – PROCEDURE – INFORMATION, INDICTMENT OR PRESENTMENT – AMENDMENT – GENERALLY – where appellant caused complaint to be made for breach of statutory duty – where complaint struck out by magistrate for being a ‘nullity’ – where magistrate refused to allow amendment – whether magistrate should have allowed any amendments to ameliorate any errors.
INDUSTRIAL LAW – WORK HEALTH AND SAFETY – GENERALLY – PROCEDURE – ORIGINATING PROCESS – where appellant alleged breach of statutory health and safety duty pursuant to Work Health and Safety Act – where complaint made – where complaint struck-out for being a ‘nullity’ and thus insufficient to confer jurisdiction on the Magistrates Court – whether magistrate erred in striking out the complaint – whether complaint sufficient to confer jurisdiction on the Magistrates Court.
Criminal Code (Qld), s 564
Criminal Practice Rules (Qld), r 15
Justices Act 1886 (Qld), ss 42, 46, 47, 48
Justices Act 1928 (NT), ss 22A, 55, 181, 183
Work Health and Safety Act 2011 (Qld), s 19, 32
DPP (Vic) v Kypri (2011) 33 VR 157, cited
Harrison v President, Industrial Court  1 Qd R 515, considered
Kirk v Industrial Court (NSW) (2010) 239 CLR 531, considered
S Kidman & Co Ltd v Lowndes CM (2016) 314 FLR 358, followed
G R Rice QC and S E Harburg for the appellant
P Roney QC and R Byrnes for the respondent
Office of the Work Health and Safety Prosecutor for the appellant
McCullough Robertson for the respondent
- The appellant on 12 June 2020, caused a complaint to be made against the respondent alleging breach of a statutory health and safety duty pursuant to the Work Health and Safety Act (‘WHS’). On 14 April 2021, Magistrate Coates ordered the complaint be struck-out as it was “[a nullity] and beyond the reach of amendment”.
- The appellant appeals against her Honour’s order. The sole ground of appeal is that the Magistrate erred in law in finding the complaint a nullity. The point in issue is whether the complaint was sufficient to confer jurisdiction on the Magistrates Court, or whether the complaint was a nullity.
- The respondent contends 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. The respondent submits the complaint fails to contain “almost every essential factual ingredient of the offence charged, so as to be incurably defective”.
- The terms of the complaint are as follows:
“… Aaron John Guilfoyle … says that on or about 20 June 2018, at South Brisbane, J Hutchinson Pty Ltd was conducting a business or undertaking, and held a health and safety duty, namely a duty pursuant to s 19(1) of the 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 s 32 of the Work health and Safety Act 2011.
contrary to the Acts in such case made and provided.”
- The learned Magistrate in her reasons 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.
- Her Honour set out s 47 (1) of the Justices Act (‘JA’), which I shall shortly set out 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.”
- Her Honour then referred the provisions of s 48(1) of the JA, (which I shall also later set out) and said 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.”
- Her Honour referred to a number of cases and posed the question for determination in these terms:
“What would be the standard of particularity that a complaint itself must meet at the initiating state in order for it to be valid?”
- This suggests her Honour was considering the question of whether the factual contents of the complaint were sufficient, suggesting her Honour had turned her mind to the sufficiency of the alleged factual ingredients of the complaint, rather than considering whether the essential legal ingredients of the offence were stated so as to engage the Court’s jurisdiction as she earlier had stated.
- This approach by her Honour is confirmed by her next comment that “the current complaint before the Court fails to identify the actions that the company could have taken or any act or omission constituting any offence under the Act.”
- 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.”
- In his submissions in the court below senior counsel for the respondent said:
“… the nub of the argument is this: and from our side there are two fundamental elements that differ. The first is that we seek to strike out the complaint itself, not the summons, but the complaint on the basis that the complaint does no more than recite the date when an offence occurred, place – namely, South Brisbane, where it occurred and otherwise simply adopts the statutory language of the Work Health and Safety Act and does nothing by way of identifying the essential factual ingredients of what the offence was … the result of that is that it is incurably defective.”
- Later in the submissions, he said:
“the provision of particulars is in our submission not going to overcome the fact that this is an incurably defective complaint because of its failure to identify these essential factual ingredients.”
- He further submitted:
“The cases say clearly that it’s incurably defective. Our Court of Appeal has said, if it lacks its factual ingredients – essential factual ingredients – it’s incurably defective.”
- It is appropriate to set out the following relevant provisions of the JA as follows:
“42 Commencement of proceedings
- (1)Except where otherwise expressly provided or where the defendant has been arrested without warrant, all proceedings under this Act shall be commenced by a complaint in writing, which may be made by the complainant in person or by the complainant’s lawyer or other person authorised in that behalf.”
“46 Description of persons and property
Such description of persons or things as would be sufficient in an indictment shall be sufficient in complaints.”
“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.”
“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
- (c)there is a variance between such complaint, summons or warrant and the evidence adduced at the hearing in support thereof;
- (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.”
- Because of the content of s 46 of the JA it is also necessary to set out s 564 of the Criminal Code, namely:
“564 Form of indictment
- (1)An indictment is to be intituled with the name of the court in which it is presented, and must, subject to the provisions hereinafter contained, set forth the offence with which the accused person is charged in such a manner, and with such particulars as to the alleged time and place of committing the offence, and as to the person (if any) alleged to be aggrieved, and as to the property (if any) in question, as may be necessary to inform the accused person of the nature of the charge.
- (2)If any circumstance of aggravation is intended to be relied upon, it must be charged in the indictment.
(2A) Despite subsection (2), a relevant circumstance of aggravation may be relied on for the purposes of sentencing an offender for the offence charged in the indictment despite the relevant circumstance of aggravation not being charged in the indictment for the offence.
- (3)It is sufficient to describe an offence in the words of this Code or of the statute defining it.”
- Rule 15 of the Criminal Practice Rules is also relevant;
“15 Statement of offences
The statement of an offence in an indictment, complaint or other document may be in the words of—
- (a)the schedule form for the offence, with the changes necessary to make the words consistent with the particular circumstances of the alleged offence; or
- (b)if there is no schedule form for the offence, the Code or other Act creating the offence.”
- The WHS provides:
“19 Primary duty of care
- (1)A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of—
(a) workers engaged, or caused to be engaged by the person; and
- (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.
- (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.
- (3)Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable—
- (a)the provision and maintenance of a work environment without risks to health and safety; and
- (b)the provision and maintenance of safe plant and structures; and
- (c)the provision and maintenance of safe systems of work; and
(d) the safe use, handling and storage of plant, structures and substances; and
- (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
(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
- (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—
- (a)the person has a health and safety duty; and
- (b)the person fails to comply with that duty; and
- (c)the failure exposes an individual to a risk of death or serious injury or illness.
- The respondent, in submissions before me, submitted that the common law test as stated in Kirk v Industrial Court of New South Wales 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.
- In Kirk, the appellant had been convicted after a trial and the question there to be decided was whether the Court of Appeal had erred in refusing orders in the nature of certiorari to quash the convictions.
- The High Court held that the common law requires the defendant be told both the legal nature of the offence and also the particular acts alleged. The majority said at page 59:
“… it may be said that the matter should not have proceeding without further particulars of the acts and omissions said to found the charges.”
- The respondent’s senior counsel submitted that one considers the power of amendment only if satisfied that the court’s jurisdiction has been attracted. He submitted that in Harrison v President, Industrial Court, Jackson J, in a judgment with which the other judges in the Court of Appeal agreed, “was at pains to point out that there was … this threshold question as whether the essential ingredients were contained within the complaint.”
- In Harrison, Jackson J said in fact at paragraph  of his judgment that 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.”
- At paragraph  his Honour said:
“… 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.”
- His Honour then cited with approval observations of Chesterman J in R v Trifyllis where his Honour said:
“Where the relevant particulars are not stated in the indictment… an accused is entitled to have identified the specific transaction upon which the Crown relies and be appraised not only of the legal nature of the offence with which he is charged but also the particular act, matter or thing alleged as the foundation of the charge.”
- No doubt a conviction in the absence of proper particulars would leave the result open to challenge because, as his Honour said, “the absence of particulars may leave the accused person without notice of the facts to prove the charge”. But in my view that does not support the respondent’s contention that because the charge does not “identify what occurred in the incident” that there was no power to amend.
- Senior Counsel for the respondent submitted that:
“the common law set out in Kirk applies. You must set out the essential factual ingredients. If you don’t, then you fail to invoke the jurisdiction of the court.”
- In my view that submission avoids consideration of the effect of the power to amend under s 48 of the JA. I note the Magistrate too referred to that provision but did not analyse its application to this case. Jackson J in Harrison held that even the failure to allege a necessary element of an offence may be amended under s 48.
- It can be seen that the essence of the respondent’s case was that the decision of the High Court in Kirk (supra) applies even where there is an early application to dismiss the complaint on the basis that the jurisdiction of the court has not been engaged, and that the power to amend in such circumstances does not arise. Senior Counsel submitted that it was necessary that every essential factual ingredient in the offence be stated in the complaint and identified those “essential factual ingredients” to include:
- (i)What occurred in the incident (see T1-35:1-40 and T1-36:1-11);
- (ii)The place and manner of the offending (T1-36:1-8/9);
- (iii)The nature of the offence by reference to the various provision of s 19 (T1-40:1-15 ff);
- (iv)The factual ingredients of the ways in which the works work in the business or undertaking (T1-41:1-21);
- (v)What the failure to comply was (T1-41:1-31/33);
- (vi)How the individual was exposed to risk of death or injury (T1-41:1-40 ff).
- In my view consideration of S Kidman & Co Ltd v Lowndes CM (‘S Kidman & Co’) is of significant assistance in the determination of this matter. Senior counsel for the appellant submitted it was effectively “on all fours” with this matter.
- In that case, Matthew Arena was killed on a cattle property own by S Kidman & Co Ltd (‘Kidman’).
- Ultimately, the DPP laid a complaint charging Kidman with an offence against s 32 of the Work Health and Safety (National Uniform Legislation) Act (‘WHS Act (NT)’.) The complaint named Kidman and provided:
On 8 February 2012
at Helen Springs in the Northern Territory of Australia,
- 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 s 32 of the Work Health and Safety (National Uniform Legislation) Act read with s 19 of the Work Health and Safety (National Uniform Legislation) Act
- The appellant in that case contended the complaint was invalid for uncertainty and/or want of particularity.
- Particulars had in fact been provided, but outside the relevant limitation period.
- In proceedings in the Court of Summary Jurisdiction it was held the complaint was defective for lack of particularity but could be amended pursuant to s 183 of the Justices Act (NT) (‘JA (NT)’) to cure that defect. Section 183 of the Northern Territory legislation 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:
(a) fails to disclose any offence or matter of complaint, or is otherwise defective; and
(b) or to be amended so as to disclose an offence or matter of complaint, or otherwise secure the defect, the court may amend the information or complaint upon such terms as may be just.”
- It is helpful to reconsider and contrast the provisions of s 48 of the JA earlier set out.
- Kidman sought judicial review. The Supreme Court determined, relevantly, that the company was entitled to particulars but the failure to provide them in the complaint did not invalidate the complaint or result in a finding that if failed to plead the essential legal elements of the offence.
- The appeal to the Court of Appeal was, relevantly, on the following grounds:
- that the complaint was defective and invalid for failing to specify that the deceased was a worker at the time of the alleged offence as required by s 19(1)(a) of the WHS Act (NT), which defect could not be cured by the attribution to the appellant of knowledge from another source or by the ameliorating effect of ss 22A, 55 and 181 of the JA (NT); and
- that the failure to provide particulars of the specific grounds on which it is alleged that the appellant had failed to ensure the health and safety of the deceased rendered the complaint invalid, and that those particulars could not be provided to the appellant after the expiry of the relevant limitation period.
- It can be seen that those issues largely mirror those before me.
- The Court of Appeal in S Kidman & Co noted that whilst both those grounds asserted invalidity, the first was based on the contention that the complaint did not plead all essential elements of the offence, but the second was based on the contention the complaint did not provide particulars of the factual way in which the health and safety duty was breached.
- The court noted that a complaint will be invalid at common law unless it adequately specifies both the legal nature of the offence and also the particular acts or things alleged as the way in which the offence was committed. The Court of Appeal however noted that such requirements were subject to modifications by statute.
- Section 22A of the JA (NT) was considered. It is unnecessary to here set it out. It provided in essence that a complaint would be sufficient if it set out what were essentially the common law requirements of a valid complaint.
- The Court noted the three basic elements of an offence against s 32 of the WHS Act (NT) were:
- the person has a health and safety duty;
- the person fails to comply with that duty; and
- the failure exposes someone to risk of death or serious injury.
- The court noted at paragraph 59 of its judgment, that those basic elements were set out in the complaint. So too are they set out in the complaint I am concerned with.
- In S Kidman & Co the complaint was however different from that before me in two ways, namely:
- In S Kidman & Co a named individual, Matthew Arena, was said to be the person exposed to the material risk. No specific individual is named in the complaint I am considering.
- In that case, the complaint did not identify the employment relationship of the deceased. It did not identify whether the duty said to be breached was one owed pursuant to s 19(1) or (2) of the WHS Act (NT). In my matter the breach is of a duty said to be owed pursuant to s 19(1) of the relevant Queensland Act to workers “engaged or caused to be engaged” by the respondent. By its wording, it thereby specifically draws attention to the provisions of s 19(1)(a) of the WHS.
- The court in S Kidman & Co noted the multiplicity of potential offences under s 32 of the WHS Act (NT), having regard to the provisions, in particular, of s 19(1)(a) and (b) and s 19(2) of the Act.
- The Court said at paragraph 65 of its judgment that the question posed in relation to the ground of appeal identified in subparagraph 1 of paragraph  hereof was whether the complainant was invalid for failing to assert that the deceased was a worker. In turn, that involved whether the complaint had to identify that the duty arose under s 19(1) or (2) of the Act, and, I would add, in respect of s 19(1) whether it arose under subsection (a) or (b) thereof.
- In reasons provided in S Kidman & Co, the Court said:
“For various reasons, including the undesirability of miscarriages caused by technical objections to matters of form, legislative enactments and amendments over time have permitted initiating criminal process to become more sparing in the information it imparts. That has led in turn to the more frequent exercise of the jurisdiction to permit amendment and order particulars. That approach is reflected in the ameliorating provisions of the Justices Act, and now the Local Court (Criminal Procedure) Act. Those developments notwithstanding, the courts have continued to insist on certain minimum requirements of precision and specificity in criminal pleadings.
Those requirements are designed to ensure that the court knows the offence with which it is required to deal, and that the defendant is provided with the substance of the charge which it is called upon to meet. As Nettle JA observed in Director of Public Prosecutions v Kypri:
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 the context. If, therefore, the contents of the charge and the summons are sufficient when read as a whole to bring home to a reasonable defendant the essential elements of the offence alleged, the charge will not be invalid.”
- Those basic requirements were said to be reflected in s 181 of the JA (NT). There is no equivalent in the Queensland statute law but in my view that matter does not ameliorate from the effect of the legal principle.
- Another ameliorating or qualifying provision was s 55 of the JA (NT) which is the equivalent of s 47(1) of the JA.
- The Court of Appeal noted the difficulty which can arise where one provision creates an offence, as in that case (and mine), under s 32 of the WHS Act of each State, and recourse is then had to another provision to determine the content of the elements of the offence (not referred to in the complaint in Kidman, and referred to, effectively, as s 19(1)(a) in my case).
- The court noted a Victorian decision in DPP v Kypri where a charge under the Road Safety Act concerned a failure to comply with a requirement to provide a breath sample – which in turn could be a requirement under either subsection (1) or (2) of s 55 of the Road Safety Act.
- In that case the appellant relied on a provision in the Victorian statute which provided that it was sufficient for a complaint to describe an offence in the words of the Act or similar words.
- Nettle JA said it was necessary to specifically identify the particular obligation alleged to have been breached and said that a provision like the Victorian provision, (being the equivalent of s 47(1) of the JA and s 55 of the JA (NT)) had no application since “the charge failed to specify the precise subsection … relevant to the commission of the offence”.
- The court in Kypri made clear however that provided that the wording in the complaint made it clear which provision was to be relied on – even if not specifically stated – that would suffice. In the case before me the complaint refers only to s 19(1) of the WHS but it is obvious from the subsequent wording of the charge that in fact sub subsection (a) thereof is the relevant provision.
- The complaint in S Kidman & Co however contained no such wording, and nor did the complaint in Kypri.
- That too was the situation which arose in Harrison v President, Industrial Court (supra). In that case the charge was of a breach of ss 36 and 38 of the Mine Safety Act, contrary to s 31 of that Act. Sections 36 and 38 however contained numerous obligations and the particular obligation said to have been breached was not identified. The court in S Kidman & Co in relation to that matter said at paragraphs  and :
“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 defect was not obviated or ameliorated by the provisions of ss 55 or 181 of the Justices Act.
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.”
- That power of amendment in the Northern Territory was considered at [104 ff] of the Court of Appeal judgment in S Kidman & Co.
- Before turning to that issue it is however helpful to refer to the second ground of appeal set out in paragraph  hereof, that relating to the failure to particularise the specific grounds on which it was said Kidman failed to ensure the deceased’s safety rendering the complaint invalid.
- The Court said that s 22A of the JA (NT) – which broadly equates to the common law requirements set out in Kirk – meant the complaint should contain,
“an adequate statement of the factual manner in which the defendant’s acts or omissions are alleged to constitute the offence.” (See  of Kidman).
- The Court noted that the provisions of s 55 of the JA (NT) (which as I have said are generally equivalent to s 47(1) of the JA) does not dispense with the necessity of specifying the time, place and manner of the defendant’s acts or omissions because, whilst a bare description in terms of the statutory charge might be sufficient to provide a statement of the offence itself, it does not provide reasonable information as to the nature of the charge.
- The extent of necessary particularisation varies from case to case. At paragraph  the Court of Appeal in S Kidman & Co said:
“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.”
- The Court of Appeal noted the complaint did not describe the act or omission which constituted the relevant failure to comply with the WHS Act (NT) duty and made no attempt to identify what reasonable measures could have been taken by the appellant.
- The Court concluded at paragraph :
“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.”
- The complainant in that case was therefore found to be defective in two regards:
- in not identifying the essential elements of the offence alleged; and
- in not identifying the essential factual ingredients of the offending conduct.
- I interpose that in my case the specific reference to s 19(1) of the WHS Act in the complaint and the wording of the complaint which is consistent only with reliance upon sub‑section (a) thereof, and not (b), meant only the second defect identified in S Kidman & Co arose.
- The Court of Appeal in S Kidman & Co dealt with the question of possible amendment saying at paragraph :
“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.”
- The relevant provisions in the Northern Territory statutory scheme were ss 182 and 183 of the JA (NT), since repealed and replicated in the Local Court (Criminal Procedure) Act. They are, in my view, of similar effect to ss 48(1) of the JA.
- In relation to the power of amendment, the Court of Appeal noted observations of Dixon J in Broome v Chenoweth namely:
“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 extreme, an information may contain nothing which can notify the charge with any offence known to the law. Such a case may not be covered by the power of amendment.”
- The Court of Appeal said:
“If the amendment would result in the formulation of a new and different charge it would constitute an impermissible attempt to avoid the limitation period.”
- The court noted, too, that in Kypri the Victorian Court of Appeal remitted the matter to the Magistrate so he could, in his discretion, amend the charge to clarify under which power the driver had been required to provide a specimen of breath provided it was established that information had been provided to the defendant in that case prior to the expiration of the relevant limitation period.
- The question was determined by consideration of whether the true nature of the charge was able to be discerned prior to the limitation period expiring, by means of particulars given or some other form of written communication (see Kypri per Nettle JA at paragraph  thereof and S Kidman & Co at paragraph  thereof).
- Thus in Kypri the Court sanctioned resort to material which put a defendant on notice of the true nature of the charge within the limitation period.
- The Court of Appeal in S Kidman & Co and the Queensland Court of Appeal in Harrison, in circumstances there was a multiplicity of charges in the complaint, found it was able to be amended to plead a specific offence even though the limitation period had ended. There was in Harrison an extensive, though confusing, range of particulars which Jackson J found did in some parts identify a specific event. In S Kidman & Co the court said:
“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.
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.”
- In relation to the power of the amendment, the Court of Appeal in S Kidman & Co thus said:
- An amendment should not be permitted which would have the effect of charging a different offence out of time; and
- Under s 183 of the Justices Act (being, I note, the equivalent to s 48(1)(a) and (c) of the Queensland Act ) the relevant enquiry is whether the proposed amendment would give rise to injustice. This would in turn largely involve consideration of the defendant’s knowledge of the true position prior to the expiration of the limitation period. It also may depend on what had occurred with the matter, for example whether the trial had commenced at the time the prosecutor determined to seek the amendment.
- The range of relevant circumstances which might affect a decision to permit amendment is vast. Some of them were considered at paragraphs  and  of the Court of Appeal judgment in S Kidman & Co. It is not necessary to set them out. No material is before me about the issue and no material is before me to inform me of the Magistrate’s knowledge of such matters. It seems clear that the determination not to provide that to me was a decision of the parties in order to have the strict legal matter determined by me without recourse to considerations relevant to the exercise of any discretion i.e. I am required to determine whether the discretion to amend could arise but without consideration of whether any such discretion ought to have been exercised in favour of the appellant.
- In S Kidman & Co, the Court of Appeal noted that the Magistrate had erroneously found that notwithstanding the formal defects in the complaint, the true nature of the offence was apparent. Such a finding was of course erroneous because the complaint in S Kidman & Co asserted that the company’s conduct was contrary to s 32 “read with s 19” of the WHS Act (NT) without identifying whether the alleged breaches offended against s 19(1)(a) or (b) or indeed subsection 2 thereof, and so was a “worker” at the time of his injury and subsequent death; i.e. it failed to identify the “specific offence”.
- Furthermore the complaint, as I have earlier outlined, did not describe the act or omission said to constitute the company’s failure to comply with the statutory obligations or identify the reasonable practical measures that Kidman could have undertaken.
- 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.
- 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.
- In my view there is nothing in Kirk v Industrial Court of New South Wales inconsistent with the decision in S Kidman & Co. Furthermore, in view of the respondent’s submissions concerning a number of Queensland decisions, in particular Harrison v President, Industrial Court (supra) and a decision of Jackson J in Karimbla Construction Services Pty Ltd v President of Industrial Court of Queensland & Ors – I should add that I do not consider those decisions to be contrary to the reasons in S Kidman & Co. And in any case, the decision in Karimbla was a decision of a single judge of the Supreme Court.
- Furthermore, the decision of the High Court in John L Pty Ltd v Attorney-General (NSW) is also not inconsistent with S Kidman & Co. It did not consider the power of amendment which is critical to the decision in Kidman, and before me. In essence, it decided only the first question before me, namely whether the complaint identifies sufficient “material particulars”, and not the issue as to whether to allow amendment of the complaint.
- I am not able to finally determine the question whether the particulars served with the complaint in this case are such that the Magistrate ought have allowed the complaint to be amended to incorporate those particulars or whether the particulars are not sufficient to meet the fact that the complaint itself fails to convey the manner of the defendant’s acts or omissions which constitute an offence.
- Accordingly, I will allow the appeal and remit the matter to the Magistrates Court to proceed according to law. It is, in my view, appropriate that it be determined by a Magistrate other than the Magistrate who initially determined the matter.
- I will hear further submissions in respect of the form of the order and costs.
 See Written Submissions of Respondent at para 2 and 4.
 Her Honour’s judgment at p 2, line 15.
 Her Honour’s judgment at p 2, line 37.
 Her Honour’s judgment at p 6, line 14.
 See T1-9 at lines 1-6.
 T1-51 at line 20.
 (2010) 235 CLR 531.
  1 Qd R 515.
  QCA 416.
 (2016) 314 FLR 358.
 (2015) 36 NTLR 103.
 At  – .
 (2011) 33 VR 157.
 (1946) 73 CLR 583 at .
 At  – .
  QSC 56.
 (1987) 163 CLR 508.
- Published Case Name:
Guilfoyle v J Hutchinson Pty Ltd
- Shortened Case Name:
Guilfoyle v J Hutchinson Pty Ltd
 QDC 221
15 Sep 2021