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Guilfoyle v Niepe Constructions Pty Ltd[2021] QMC 1

Guilfoyle v Niepe Constructions Pty Ltd[2021] QMC 1

MAGISTRATES COURT OF QUEENSLAND

CITATION:

Guilfoyle v Niepe Constructions Pty Ltd [2021] QMC 1

PARTIES:

Aaron John Guilfoyle (Complainant/Respondent)

V

Niepe Constructions Pty Ltd (Defendant/Applicant)

FILE NO/S:

MAG 33501/20(0)

ORIGINATING COURT:

Magistrates Court

PROCEEDING:

Application to strike out

DELIVERED ON:

29 April 2021

DELIVERED AT:

Toowoomba

HEARING DATE:

8 March 2021

MAGISTRATE:

G. Lee

ORDER:

Application to strike out is allowed

CATCHWORDS:

INDUSTRIAL LAW – WORK HEALTH AND SAFETY – PROSECUTION – Application to strike out complaint – whether complaint discloses an offence - whether lack of pleading essential factual ingredients of offence – whether this amounts to denying jurisdiction in this court – whether the complaint should be struck out – whether  capable of amendment under section 48 Justices Act 1886 –  if so, whether complaint should be amended

Work Health and Safety Act 2011, ss 18, 19, 32 & 230(1AA)

Justices Act 1886 (Qld), ss 42, 46, 47 & 48

Archer v Simon Transport Pty Ltd [2016] QCA 168

Area Concrete Pumping Pty Ltd v Inspector Barry Childs (Workcover) (2012) 223 IR 86

Attorney-General of New South Wales v Built NSW Pty Ltd (2013) 239 IR 102; [2013] NSWCCA 299

Baiada Poultry v VWA [2015] VSCA 344

Baker v Smith (No 1) [2019] QDC 76

Bell v Hendry & Ors [2014] ICQ 18

Childs v Serena (2011) 207 IR 118; [2011] NSWIR Comm 32

Critchley v Schlumberger Oilfield Australia Pty Ltd [2016] QDC 338

Daytona Trading Pty Ltd v McGarry [2014] ICQ 21

Director of Public Prosecutions v Kypri (2011) 33 VR 157; 207 A Crim R 566; [2011] VSCA 257

GPI (General Pty Ltd v Industrial Court (NSW) (2011) 207 IR 93

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

Hedberg v Woodhall (1913) 15 CLR 531

John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42; (1987) 163 CLR 508

Johnson v Miller (1937) 59 CLR 467

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

Kirk v Industrial Court of NSW (2010) 239 531

McConnell Dowell Constructions (Aust) Pty Ltd v Environment Protection Authority [No 2] (2002) NSWCCA 24

Newman v President of the Industrial Court [2010] QSC 145

NK Collins Industries Pty Ltd v President of the Industrial Court [2014] 2 Qd R 304; [2013] QCA 179

R v Buckett (1995) 126 FLR 435

S Kidman & Co Ltd v Lowndes CM & Director of Public Prosecutions [2016] NTCA 5

Taylor v Environment Protection Authority [2000] NSWCCA 71; (2000) 50 NSWLR 48

Thiess Pty Ltd v Industrial Magistrate Hall [2015] 2 Qd R 125

Thiess Pty Ltd v President of the Industrial Court of Queensland [2012] 2 Qd R 387

COUNSEL:

Ms S Harburg for the Complainant/Respondent

Mr P Roney QC for the Defendant/Applicant

SOLICITORS:

Office of the Work Health and Safety for the Complainant/Respondent

Herbert Smith Freehills for the Defendant/Applicant

  1. [1]
    Neipe Constructions Pty Ltd (Niepe) applies for an order striking out a complaint made under the Justices Act 1886 (JA) charging it with two offences under the Work Health and Safety Act 2011 (WHSA) on the basis that it is a nullity because it has not pleaded essential factual ingredients of the two offences charged.  The application is opposed.
  1. [2]
    This application is an application for directions brought under section 83A Justices Act 1886 (JA) seeking to invoke this court’s implied power to control its own processes[1]: see for example Dupois v Queensland Police [2020] QDC 328 and cases cited therein including Power v Heyward [2007] QSC 26[2].  No issue was taken with the existence of this court’s implied power at the hearing.
  1. [3]
    The entire complaint provides:

THE COMPLAINT of AARON JOHN GUILFOYLE, Work Health and Safety Prosecutor, Level 1, 347 Ann Street, Brisbane in the State of Queensland, made this 13th day of February 2020, before the undersigned, a Justice of the Peace for the said State, who says:

CHARGE ONE

That on or about the eleventh day of September 2018, at the Toowoomba Second Range Crossing in the said State, NIEPE CONSTRUCTION PTY LTD was conducting a business or undertaking, and held a health and safety duty, namely a duty pursuant to section 19(1) of [WHSA], to ensure so far as is reasonably practicable, the health and safety of workers engaged or cause to be engaged, or workers whose activities in carrying out work are influenced or directed by the said NIEPPE CONSTRUCTION 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 [WHSA].

CHARGE TWO

That on or about the eleventh day of September 2018, at the Toowoomba Second Range Crossing in the said State, NIEPPE CONSTRUCTION PTY LTD was conducting a business or undertaking, and held a health and safety duty, namely a duty pursuant to section 19(2) of [WHSA], to ensure so far as is reasonably practicable, 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 of the said NIEPE CONSTRUCTION PTY LTD and the failure exposed an individual to a risk of death or serious injury, contrary to section 32 of the [WHSA].

contrary to the Acts in such case made and provided:

WHEREUPON the said AARON JOHN GUILFOYLE prays that I, the said Justice, will proceed in the premises according to law.

(Signature)

  1. [4]
    It will be noted that, contrary to common practices in the past[3], this complaint does not contain within it factual details under a heading called “Particulars”.  It is common ground though that a separate document called a “Statement of facts and particulars” was served with the complaint on Niepe[4] although not filed in court.  They were not made available to the court in this application.
  1. [5]
    The context of this dispute is that the complaint alleges the offences occurred “on or about the eleventh day of September 2018”.  The complaint was made on 13 February 2020.  Section 323 WHSA provides for limitation periods in which to commence proceedings in different circumstances the applicable one being 2 years from when the offence first came to the knowledge of the complainant.  This complaint was made within 2 years[5].  If Niepe is successful in this application, the complainant will be statute barred from commencing fresh proceedings.
  1. [6]
    It is necessary to identify the relevant statutory provisions and legal principles.

Legislative Framework

  1. [7]
    Proceedings for an offence against WHSA are to be taken in a summary way under the Justices Act 1886 (JA): s 230 (1AA) WHSA[6].
  1. [8]
    Relevantly, proceedings under the JA are commenced by a complaint in writing: s 42(1) JA and shall be for one matter only subject to exceptions: s 43 JA.  No s 43 issues have been agitated in this application[7].
  1. [9]
    After a complaint is made before a Justice, then that Justice may issue a summons under s 53(1) JA which is then to be served in accordance with s 56 (1) JA[8].
  1. [10]
    Sections 46 & 47 (1) JA then provide[9]:

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. (1)
    The description of any offence in the words of the Act, order, by-law, regulation, or other instrument creating the offence, or in similar words, shall be sufficient in law.  …
  1. [11]
    Section 46 JA picks up s 564 Criminal Code (Qld) which provides[10]:

564 Form of indictment

  1. (1)
    An indictment … 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.

 

  1. (3)
    It is sufficient to describe an offence in the words of this Code or of the statute defining it.
  1. [12]
    Rule 15 of the Criminal Practice Rules 1999 provides:

15 Statement of offences

The statement of an offence in an indictment, complaint or other document may be in the words of—

  1. (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
  1. (b)
    if there is no schedule form for the offence, the Code or other Act creating the offence.
  1. [13]
    As observed in Baker v Smith [2019] QDC 76 at [208], section 564 of the Criminal Code is not an exhaustive statement of the particulars which must be included in a charge under the JA[11].  I agree also with the observation of His Honour that section 46 JA does not confine the common law principles regarding the requirements of a valid charge which are clearly expressed in Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 at [26] (footnotes omitted)[12]:

The common law requires that a defendant is entitled to be told not only of the legal nature of the offence with which he or she is charged, but also of the particular act, matter or thing alleged as the foundation of the charge.  In John L Pty Ltd v Attorney-General (NSW), it was explained that the older cases established that an information could be quashed as insufficient in law if it failed to inform the justices of both the nature of the offence and the manner in which it had been committed.  In more recent times the rationale of that requirement has been seen as lying in the necessity of informing the court of the identity of the offence with which it is required to deal and in providing the accused with the substance of the charge which he or she is called upon to meet.  The common law requirement is that an information, or an application containing a statement of offence, “must at least condescend to identifying the essential factual ingredients of the actual offence”.  These facts need not be as extensive as those which a defendant might obtain on an application for particulars.  In Johnson v Miller, Dixon J considered that an information must specify “the time, place and manner of the defendant’s acts or omissions”.  McTiernan J referred to the requirements of “fair information and reasonable particularity as to the nature of the offence charged”.      

  1. [14]
    It is noted that offences contained in the schedule forms to the Criminal Practice Rules provide for some factual insertions other than mere recitation of the provisions creating the offence.  I would take the view that rule 15 (b), which is similar to section 47(1) JA, does not relieve the common law requirement to provide some factual basis in identifying a charge.
  1. [15]
    Next, section 48 JA[13] provides for the power of amendment:

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. (b)
    there is a defect in any summons or warrant to apprehend a defendant issued upon such complaint; or
  1. (c)
    there is a variance between such complaint, summons or warrant and the evidence adduced at the hearing in support thereof; then—
  1. (d)
    if an objection is taken for any such defect or variance— the justices shall; or
  1. (e)
    if no such objection is taken—the justices may;

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

  1. [16]
    The charges in the complaint here plead sections 19 (1), 19 (2), & 32 of WHSA.  That Act was enacted as part of a national uniform scheme[14].
  1. [17]
    Section 19 WHSA provides[15]:

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.
  1. (4)
    If—
  1. (a)
    a worker occupies accommodation that is owned by or under the management or control of the person conducting the business or undertaking; and
  1. (b)
    the occupancy is necessary for the purposes of the worker’s engagement because other accommodation is not reasonably available; the person conducting the business or undertaking must, so far as is reasonably practicable, maintain the premises so that the worker occupying the premises is not exposed to risks to health and safety. …
  1. [18]
    Section 17 WHSA[16] provides:

17 Management of risks

A duty imposed on a person to ensure health and safety requires the person—

  1. (a)
    to eliminate risks to health and safety, so far as is reasonably practicable; and
  1. (b)
    if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable.
  1. [19]
    Section 18 WHSA[17] provides for a range of factors to consider when deciding “so far as is reasonably practicable” in sections 17 & 19:

18 What is reasonably practicable in ensuring health and Safety

In this Act, reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including—

  1. (a)
    the likelihood of the hazard or the risk concerned occurring; and
  1. (b)
    the degree of harm that might result from the hazard or the risk; and
  1. (c)
    what the person concerned knows, or ought reasonably to know, about—
  1. (i)
    the hazard or the risk; and
  1. (ii)
    ways of eliminating or minimising the risk; and
  1. (d)
    the availability and suitability of ways to eliminate or minimise the risk; and
  1. (e)
    after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.
  1. [20]
    Section 32 creates the offence:

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.

Maximum penalty— …

Applicant’s Submissions

  1. [21]
    In reliance on a number of authorities, it was submitted that, despite the reforms introduced by the Jervis’ Act (UK) introduced into Queensland by the JA, there is a requirement at law that a complaint made under the JA must identify with some degree of particularity the essential ingredients of the offence alleged to engage the jurisdiction of the court: Harrison v President of the Industrial Court [2017] QdR 515 at [128] to [130] per Jackson J with whom other members of the Court of Appeal agreed; John L Pty Ltd v A-G (NSW) (1987) CLR 508 at pp 519 – 520 referring to Johnson v Miller (1937) 59 CLR 467 at 486 per Dixon and at 501 per McTiernan J[18].
  1. [22]
    Further, it was submitted that the High Court in Kirk v Industrial Court of NSW (2010) 239 CLR 531 at 557 – 559 cited at paras [16] and [17] of the written submissions accepted that the common law requires that a defendant is entitled to be told not only the legal nature of the offence but also of the particular act, matter or thing alleged as the foundation for the charge and that a complaint must specify the time, place and manner of the defendant’s acts or omissions.  This was later endorsed in the New South Wales Court of Appeal in GPI (General) Pty Ltd v Industrial Court (NSW) (2011) 207 IR 93 referred to at para [18] of written submissions.
  1. [23]
    In applying Kirk and John L, the Court of Appeal in Archer v Simon Transport Pty Ltd [2016] QCA 168 reaffirmed these requirements; that the alleged offence must be clear; if not the charge may be a nullity.  In applying those principles, in that case the complaint was found to be sufficient so was not a nullity although requiring further particulars[19].
  1. [24]
    It was submitted that, when describing the offence in this complaint, the prosecutor has taken an erroneous view of what is meant by “sufficient in law” in section 47 JA in that it is enough to recite the offence by reference solely to the language of section 19 of the WHSA except adding a date and place.  It was submitted that it is insufficient merely to recite the statutory language without more and in doing so would constitute a major defect: Baiada Poultry v VWA [2015] VSCA 344 at para [52] per Ferguson and McLeish JJA: paras [22], [24], & [29] of written submissions.
  1. [25]
    Further, section 47(1) “does not mean what it appears to say” in that it only means “that it is sufficient so to describe the offence itself, but leaves it still necessary to accompany the description with particulars of the acts relied on as constituting the offence” and that “some matters other than the text of the offence creating the provision must be alleged”: Harrison v President of the Industrial Court [2017] 1 QdR 515 at paras [129][20] and [130] per Jackson J (with whom the other members of the Court of Appeal agreed).  That was an appeal against the decision of the President of the Industrial Court in Bell v Hendry [2014] ICQ 18 per Martin J.
  1. [26]
    It is common ground between the parties that the validity of a charge so as to attract the court’s jurisdiction must be determined “ex facie” by reference to the terms of the charge itself: Director of Public Prosecutions (Vic) v Kypri (2011) 33 VR 157 (Kypri) at [19], [20], [27] & [28][21]; and that the Statement of Facts and Particulars provided in a separate document to the defendant is not incorporated into the charge.
  1. [27]
    It was submitted that the complaint in this case falls far short of the above requirements and therefore is a nullity.  It only sets out the legal nature of the offence and does not identify the particular act, matter or thing alleged as the foundation of the charge. Further, it does not identify the measures Niepe could have taken but did not: paras [58] to [59] of written submissions.  Given these deficiencies, the complaint does not contain the essential elements to found jurisdiction in this court.
  1. [28]
    As jurisdiction has not been established, the provision of facts and particulars in a separate document is not capable of curing the flaws identified in the complaint: para [60] written submissions.  Also, for the same reason, it cannot be cured by amendment by applying section 48 JA.

Complainant’s Submissions

  1. [29]
    The sole issue is whether the complaint is a nullity so as not to attract the jurisdiction of the court.  It was submitted that it is not a nullity.
  1. [30]
    The common law rule of pleading was that a complaint was liable to be quashed if it did not allege both the legal nature of an offence and the essential particulars of its manner of commission: Kirk at [26] and Johnson v Miller (1937) 59 CLR 467 at 486 per Dixon J.
  1. [31]
    It was submitted that the common law was modified by the Jervis’ Act (UK) later enacted in Queensland as the JA relieving consequences of defective drafting   pre Jervis Act where there were many successful technical objections to pleadings[22]. This is reflected in the power of amendment under section 48 JA.
  1. [32]
    While the High Court in Kirk decided that a complaint must identify the particular acts or omissions constituting the offence, Kirk did not decide that the failure to follow the common law rule of providing the legal nature of the offence and particulars in the complaint itself, rendered it a nullity.
  1. [33]
    In citing GPI (General) v Industrial Court (NSW) (2011) 207 IR 93, it was submitted there were limitations of Kirk as applied to this case.  It did not decide that the required particularisation had to occur at the time the charge was first brought but based on whether the court at first instance should have proceeded with the hearing without further particularisation; the particularisation required at common law could be satisfied by various means not limited to full particularisation in the complaint itself; Kirk was not concerned with an interlocutory challenge but challenges to convictions and sentences imposed; and did not say that the failure to adequately particularise the charge as initially laid should necessarily lead to the charge being rejected or an order based upon it being set aside.  These observations were cited with approval by Jackson J in Karimbla Construction Services Pty Ltd v President of the Industrial Court [2014] QSC 56 at [52].
  1. [34]
    A number of authorities were referred to in support of the submission that factual particulars can be provided subsequent to the laying of the complaint either by amendment of the complaint or by a statement of particulars provided in a separate document.  What matters is not the location of the particulars but whether Niepe has been fairly apprised of the manner of commission of the offence.
  1. [35]
    In oral and written submissions, particular reliance was placed on the Northern Territory Court of Appeal case of S Kidman & Co Ltd v Lowndes [2016] NTCA 5 where the pleading was almost identical with this case.  It was held to be defective on its face and “[did] nothing more that particularise the time and place of the alleged offending and then replicate[d] the words of that part of s 32 of the [WHSA] which create[d] the offence, and ma[d]e bald reference to s 19 of the [WHSA]”.  The court however, allowed an amendment under a cognate amendment provision to section 48 JA, namely s 183 of the Justices Act 1928 (NT).  This will be addressed later.
  1. [36]
    The submission followed that if the legal elements of an offence are pleaded ie an offence known to law, the court has jurisdiction.  If not, it would be struck out.  Defects in alleging essential factual “matters” relating to the manner of commission could be cured by amendment or further particularisation: McConnell Dowell Constructions (Aust) Pty Ltd v Environment Protection Authority (No 2) (2002) NSWCCA 24 at [11] to [15][23].
  1. [37]
    It was submitted that jurisdiction is conferred on the court where an offence known to law has been preferred citing Jackson J in Harrison v President of the Industrial Court [2017] 1 QdR 515 at [165] where he said:

The charge itself must satisfy the requirement that it charges an offence known to law.  And “[i]t is preferable that a statutory offence be pleaded in the relevant terms of the statute by which it is created. 

This is satisfied where the offence creating provision has been specified and its legal elements have been alleged with the consequence that the court has jurisdiction so as to achieve procedural fairness to Niepe.   

  1. [38]
    It was further submitted that no amendment or direction for particulars is necessary because “the circumstance of the offences, and particulars of [Niepe’s] omission, have already been made known … in the Statement of Facts and Particulars served with the complaint”.

Discussion

  1. [39]
    At the outset, it should be observed that the manner of pleading in this case is materially different to the way charges under the WHSA were drafted in a complaint not so long ago.  For example, in Archer v Simon Transport Pty Ltd [2016] QCA 168 (Archer), the complaint set out the circumstances of the breach followed by lengthy allegations under headings “Hazard” (paras (a) to (j)), “Risk” (paras (a) to (c)), “Failures” (paras (a)(i) to (v)), and “Control measures Simon Transport Pty Ltd could have implemented” (paras (a) to (e)): exceeding two pages in para [14] of Archer.
  1. [40]
    Archer was an appeal from a District Court judge who dismissed an appeal from a Magistrate’s decision to strike out the complaint as it failed to expose the legal ingredients of the offence.  In allowing the appeal, Atkinson J (with whom other members of the court agreed) concluded that the complaint containing the particulars at [39] above dealt with all matters it was required to traverse.  It was not void or a nullity, it invoked the jurisdiction of the Magistrate’s Court, and it did not require amendment for that purpose.  Her Honour indicated that the complaint could be further amended or particularised under s 48 JA: at [30.35] & [37] citing in footnote 14 Karimbla Construction Services Pty Ltd v President of the Industrial Court of Queensland [2014] QSC 56 (Karimbla) and Harrison v President of the Industrial Court of Queensland [2016] QCA 89 (Harrison).
  1. [41]
    In coming to that conclusion, under “Relevant case law”, Atkinson J applied the principles expressed in John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508 (John L) and in Kirk v Industrial Court of NSW (2010) 239 CLR 531 (Kirk).  In John L at 519 -520:

The traditional function of an information was to found jurisdiction to deal with an alleged offence.  Disregarding the effect of statutory provisions curing or precluding reliance upon a defect, the old authorities established that an information should be quashed as insufficient in law and invalid if it failed to inform the justices before whom it was laid of the nature of the offence and the manner in which it had been committed.  The rationale of that requirement has, in more recent times, commonly been seen as lying both in the necessity of informing the court of the identity of the offence with which it is required to deal and in providing the accused with the substance of the charge which he is called upon to meet: ‘an accused person could not be required to defend the charge if the information did not supply the particulars necessary to enable him to prepare his defence’: Ex parte Lovell; Re Buckley (1938) 38 SR (NSW) 153 at 166. … [T]he common law requirement remains that an information must at the least condescend to identifying the essential factual ingredients[24].

  1. [42]
    Then Kirk at 553:

A statement of an offence must identify the act or omission said to constitute a contravention of s 15 or s 16.  It may be expected that in many instances the specification of the measure which should have been or should be taken will itself identify the risk which is being addressed.  The identification of a risk to the health, safety and welfare of employees and other persons in the workplace is a necessary step by an employer in discharging the employer’s obligations.  And the identification of a risk which has not been addressed by appropriate measures must be undertaken by an inspector authorised to bring prosecutions under the Act (s 48).  But it is the measures which assume importance to any charges brought.  Sections 15 and 16 are contravened where there has been a failure, on the part of the employer, to take particular measures to prevent an identifiable risk eventuating.  That is the relevant act or omission which gives rise to the offence[25].           

  1. [43]
    Distilled from these passages is that the employer’s act or omission must be identified and that “the common law requires that a defendant is to be entitled to be told not only of the legal nature of the offence with which he or she is charged, but also of the particular act, matter or thing alleged as the foundation of the charge”: at paras [31], [32] & [33]: see also Baker v Smith (No 1) [2019] QDC 76 (Baker) at [203] & [204].
  1. [44]
    Atkinson J in Archer noted that Kirk was also followed and applied by the Queensland Court of Appeal in NK Collins Industries Pty Ltd v President of the Industrial Court [2013] QCA 179.   That case was an appeal from a single judge dismissing an application for review of an Industrial Court decision.  The Court of Appeal allowed the appeal and set aside the decision concluding that the Industrial Magistrate had no jurisdiction to convict the defendant because no relevant act or omission had been identified as constituting the offence: at [60] per Holmes JA (as Her Honour then was): cited with approval in Archer at para [35].  In referring to the complaint itself, Holmes JA said at para [51] in NJ Collins that the “allegation, which merely repeats the words of s 28 (1), could hardly be more general; it gives no guidance at all as to what the contravention actually consists of”.
  1. [45]
    It is apt to now look at the complaint in NJ Collins at para [4].  One can immediately see that much more information was provided in that complaint to inform the defendant of the case to be met than in the current case:

“… that on the 4th day of June 2007, at the Forestry Entitlement Area 5A within the Woodlands area – Mitchell/St George Road, approximately 92 km South of Mitchell Qld in the Magistrates Court District of Mitchell N.K. Collins Industries Pty Ltd being a person on whom a workplace health and safety obligation prescribed by section 28(1) of the Workplace Health and Safety Act 1995 is imposed, did fail to discharge that obligation contrary to section 24 of the Workplace Health and Safety Act 1995 in that being a person who conducted a business or undertaking N.K. Collins Industries Pty Ltd failed to ensure the workplace health and safety of each of it’s [sic] workers was not affected by the conduct of the said business or undertaking.

Particulars

Business/undertaking: The harvesting of trees and the cutting of wood in sawmills

Worker: Jiandong GUO

Workplace: Forestry Entitlement Area 5A within the Woodlands area – Mitchell/ST George Road, approximately 92 km South of Mitchell Road.

The source of the risk emanates from:

  • Falling dead cypress trees, and /or
  • System of work for the felling of dead cypress trees

The risk is the risk of death or injury including the risk of crush injuries to Jiandong GUO

AND IT IS ALLEGED that the breach caused the death of one Jiandong GUO

Contrary to the Acts and Regulations in such case made and provided. 

  1. [46]
    The complainant’s submissions attempt to confine the effect of NJ Collins on the basis that it only determined that the Industrial Court ought not to have upheld a conviction based on a charge where at no stage there had been specification of the safety measures that ought to have been taken[26].  This is consistent with the theme of its case that a complaint that is void can be cured by an amendment of the complaint or the provision of separate particulars at any time and not confined to the time the charge is brought.  I reject that submission.  An application to strike out in Archer was brought before a substantive hearing of the complaint.  Having regard to Atkinson J’s consideration of NJ Collins in applying Kirk and John L in the way Her Honour did, and rejecting the respondent’s submission that the complaint is invalid as it did not inform of the particular act or thing alleged as the foundation of the charge[27], it would have been open to dismiss the application had circumstances been different.
  1. [47]
    Baker v Smith (No 1) was a prosecution under the Forestry Act 1959 (FA) and the Sustainable Planning Act 2009 (SPA) arising out of the clearing of vegetation from rural property.  It was an appeal from a Magistrate’s decision convicting the defendant after a lengthy hearing.  The content of the complaints including extensive particulars are set out at pars [79] to [90] in the judgment (pp 33 – 38).
  1. [48]
    At [214] of Baker, in adopting remarks made in the Court of Criminal Appeal in  McConnell Dowell Constructors (Aust) Pty Ltd v Environmental Protection Authority (No 2) (2002) 54 NSWLR 39, Porter QC DCJ noted the difficulties in assessing the sufficiency of pleadings in a complaint:

[13] The authorities do not provide a test for the identification and differentiating between the legal elements and the essential factual ingredients of an offence.  It is generally accepted, however, that the legal elements consist of the matters that, as a matter of law, must be established for the offence to be made out; and the essential factual ingredients concern the time, place and manner in which the offence was committed.  But putting the difference in this way does not necessarily help in the differentiation process.      

  1. [49]
    It seems to me that these difficulties are not apparent in the present case as no “essential factual ingredients” have been pleaded except for date and place.  The pleading, as Holmes JA in NJ Collins put it, “merely repeats the words of [the offence creating provision]” and “could hardly be more general” giving “no guidance at all as to what the contravention actually consists of”.
  1. [50]
    After reviewing general principles on the requirements of a valid complaint with detailed references to Kirk and John L, Porter QC DCJ concluded at [288] that the SPA complaints identified the manner in which the offences were committed and were valid.  Apart from general averments as to dates, location and that the defendant “carried out assessable development without an effective development permit” contrary to the specified statutory provision, extensive facts were pleaded under “Particulars” to inform the defendant of the case he had to meet.  The FA complaints were challenged on different grounds. In coming to that view His Honour said at [266]:

In my view, it is not the law that a complaint fails to sufficiently articulate the factual ingredients of a charge if it fails specifically to allege each and every matter which the prosecution has to prove (or exclude) to establish the commission of the offence.  No such inflexible principle is stated in any of the cases to which the parties referred.  Rather, the question of whether a complaint is valid in this respect depends on a practical assessment in the particular circumstances of whether the complaint sufficiently identifies how the offence has been committed to permit the defendant to understand the substance of the case against him or her. (my emphasis)      

  1. [51]
    Critchley v Schlumberger Oilfield Australia Pty Ltd [2016] QDC 338, which was a prosecution under section 43 of the Radiation Safety Act 1999 (RSA), is another example that a failure to plead each and every matter the prosecution has to prove is not fatal to the complaint.  The defendant successfully brought an application before a Magistrate prior to the substantive hearing to strike out the complaint as it failed to disclose an offence known to law.
  1. [52]
    The legal elements of the offence under section 43 (1) RSA were (1) a possession licensee (2) who possess a radiation source under a possession licence (3) for a radiation practice.  These were not pleaded although they had to be proven to establish the charge.  Richards DCJ referred to John L[28], Kirk[29] and Johnson v Miller (1937) CLR 467 at 501 where McTiernan J referred to the requirements of “fair information and reasonable particularity as to the nature of the offence charged”.
  1. [53]
    Richards DCJ concluded that the pleading was defective as they did not allege the three elements in section 43(1) RSA.  However, after considering the width of the power of amendment under section 48 JA and the principles cited in Broome v Chenoweth[30], Harrison[31], Kypri[32], and Karimbla[33], in allowing the appeal, Her Honour concluded at [18] & [24] that the particulars identified the act alleged and that it was clear what the allegations were and the substance of those allegations.  Her Honour said “The defence can be in no doubt … from the complaint laid as to the nature of the complaint …”.  This is clear from the complaint.  Count 1 pleaded:

On 28 February 2014 at the corner of Church Road and Montrose Road, Montrose Chinchilla … one Schlumberger Oilfield Australia Pty Ltd … did, by its representative [name], fail to take reasonable steps to ensure that the health and safety of any person was not adversely affected by exposure to radiation because of the carrying out of a radiation practice within a radiation source, contrary to s 43 (2) of the [RSA].

Particulars

  1. The radiation source was caesium – 137
  2. The radiation practice was borehole logging
  3. The reasonable steps that ought to have been taken, but was not taken, was to ensure that the radiation source was:
  1. (a)
    returned to the shield; and
  1. (b)
    not left on the rig floor.
  1. The person whose health and safety was adversely affected by exposure to the radiation was [person’s name].
  2. The adverse effect on the health and safety of that person was that:
  1. (a)
    Approximately a week after 28 February 2014, her suffered hair loss on his lower left leg;
  1. (b)
    Approximately eight days after he developed a rash which then became as area of ulceration with associated swelling.
  1. [54]
    Unlike the present case, by the provision of particulars, the complaint in Critchley conveyed, in the words of Nettle JA in Kypri, “the true nature of the offence … apparent from the face of the charge, and the defendant has not been misled or otherwise prejudiced by the omission”.  The amendment to include a missing element can be made “on the basis that such amendment does no more than clarify what is already apparent from the face of the charge” (my emphasis): at [24].

.

  1. [55]
    While accepting the principles outlined in Baker and Critchley, those cases are distinguishable when assessing the adequacy of the complaint in this case.  In this case, no particulars were contained in the complaint.  It is not clear from the face of the complaint the true nature of the offence other than expressing the words of the statutory provisions.  It cannot be said that Niepe is in no doubt as to the nature of the complaint.
  1. [56]
    As outlined earlier, in relying on GPI (General ) v Industrial Court (NSW) 207 IR 93 (GPI), the complainant submitted that Kirk did not decide that a failure to follow the common law rule of pleading, namely identification of particular acts or omissions in the compliant itself, rendered the complaint a nullity; that Kirk did not rule that particularisation must occur at the time the charge is brought; and that particularisation can be provided in other ways other than amending the charge itself.  To this end, a Statement of Facts and Particulars in a separate document was served on Niepe.
  1. [57]
    On this point, I note Newman v TJV Electrical Pty Ltd [2011] QMC 16 (Newman) referred to during the hearing where I determined that the complaint be struck out as it was defective.  It was a prosecution under the Electrical Safety Act 2002.  An appeal by the complainant to the Industrial Court was unsuccessful[34].  The complainant then sought judicial review in the Supreme Court: Newman v President of the Industrial Court [2012] QSC145.  In reliance on statements in GPI, similar arguments were raised before A Lyons J (as Her Honour then was) regarding the scope of Kirk in an attempt to establish jurisdictional error[35] on the basis that the President of the Industrial Court had misapprehended the effect of Kirk: at [32] to [30.35].  That was rejected: at [43] to [45].  At [52] Her Honour found that the President of the Industrial Court had “adopted the reasoning of the Magistrate” and that “there was a clear statement by [The President] that the authorities support the proposition that a complaint which fails to plead ‘essential factual ingredients” is void ab initio[30.35].  However, the task of Her Honour was not to examine the correctness of the decision.  Rather, her task was to determine jurisdictional error by the President of the Industrial Court[37].  The application was dismissed there being no jurisdictional error.
  1. [58]
    I also note that it was argued before the President of the Industrial Court that the complainant had, at a timely stage in the proceedings, offered to properly particularise the charge. However, that was rejected by the defendant on the basis that the charge was incurably defective and that particularisation would not cure that defect.  It was argued that the fact of this offer distinguished Newman from Kirk where the charge had proceeded without proper particularisation at any stage.  That was rejected by the President of the Industrial Court: at [3] & [4] in [2011] QIR 129; at [24] in [2012] QSC 145.
  1. [59]
    In garnering support of the submission that particulars can be given separately from the complaint at any time, the complainant referred to S Kidman & Co v Lowndes (2016) 264 IR 68[38] where the local practice in the Northern Territory is that a separate “Statement of Facts” or “Precis” is served with the complaint: at [98][39] although the Court of Appeal later noted at [98] that that procedure was not followed in that case.  The complaint was laid after a Coroner had published non inquest findings.
  1. [60]
    A Statement of Particulars was later served on the defendant however the court proceeded on the basis that the adequacy of those particulars was not an issue in that appeal and it was unnecessary to reproduce them in determining the validity of the complaint: at [12].  As in this case, a preliminary application was made challenging the complaint.
  1. [61]
    That case was a prosecution under the Uniform National Work Health and Safety legislation identical to Queensland’s WHSA. The complaint was in almost the same terms as this case except that it named the person that was exposed to the risk and did not specify which subsection in section 19 applied.  There were no additional particulars.  The court concluded that the complaint was defective on two counts: a failure to particularise the factual act or omission, and the failure to describe the named person that was exposed to the risk as a “worker” or “other person” so as to identify whether the alleged offence was one under section 19(1) or 19(2).
  1. [62]
    After citing Kirk, the court said that a complaint will be invalid at common law unless it adequately specifies the legal nature of the offence and the particular act, matter or thing alleged as the manner the offence was committed: at [55].  The Court of Appeal noted at [66]:

The sufficiency of the complaint must be determined ex facie by reference to the terms of the charge itself.  The provision of other evidentiary material to an accused [fn 50 such as a prosecution brief] which might be said to remove what would otherwise be doubt as to the specific offence with which the accused is charged will not cure the defect; although it may assume relevance in determining whether an amendment to the charge should be allowed”

  1. [63]
    Further, while acknowledging the ameliorating provisions of the Justices Act, the court noted at [67] that “courts have continued to insist on certain minimum requirements of precision and specificity in criminal proceedings”.  And at [99] said:

The statutory requirement for particulars is that the complaint provide ‘reasonable information as to the nature or the charge’.  That requirement will extend to the identification of the particular acts or omissions giving rise to the state of affairs constituting contravention.

  1. [64]
    The statutory requirement referred to was section 22A Justices Act which the court said reflected the common law: at [56] namely that a complaint will be sufficient if it contains “a statement of the specific offence with which the accused person is charged”, and “contains such particulars as are necessary for giving reasonable information as to the nature of the charge”: see also Baiada Poultry v VWA [2015] VSCA 344 (Baiada) where the majority at [12] said that cognate Jervis’ Act provisions “did not dispense with the common law rule requiring specification of the time, place and manner of the defendant’s acts or omissions”[40].
  1. [65]
    After noting the distinction between particulars at the initiating stage and particulars necessary for the conduct of a hearing, the court at [101] said:

Even allowing for those qualifications and distinctions, the terms of the complaint … do nothing more than particularise the time and place of the alleged offending and then replicate the words of that part [of the Act] which creates the offence, and make bald reference to s 19 of the [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 [Act].  The complaint makes no attempt to identify what reasonably practicable measures the appellant should have taken in the circumstances to ensure the health and safety of the deceased.

  1. [66]
    These findings were made without regard to the Statement of Particulars later provided.  In my view, the effect of this is that the complainant’s submission that particulars constituting essential factual ingredients need not be provided in the complaint should be rejected.
  1. [67]
    I note that I could not find a reference in S Kidman to GPI upon which the complainant heavily relies in this case although there were many references to Harrison on issues not related to the complainant’s submissions regarding the limitations of Kirk.  This may provide further support for the reasons why the court found the complaint defective in applying Kirk and other authorities before considering the question of amendment: at [54].
  1. [68]
    Next, the complainant referred to Karimbla[41] which, like Newman, was an application for judicial review.  Jurisdictional error was not established with the result that the complaint laid under former workplace legislation was not invalid and could be amended.  In support Jackson J applied New South Wales cases: GPI[42], Area Concrete Pumping Pty Ltd v Inspector Barry Childs (Workcover) (2012) 223 IR 86 and Attorney-General of New South Wales v Built NSW Pty Ltd [2013] NSWCCA 299.  The latter two cases drew heavily on statements in GPI.  His Honour also referred to Kirk and the fact that it did not decide that a complaint is so defective as to be invalid and incapable of amendment: at [34] to [30.35].
  1. [69]
    The complaints in GPI cited at para [15] comprised general averments as in this case however were followed by particulars in paras (a) to (g) and (a) to (f).  It is clear from those particulars that the allegations concerned the operation of forklifts.    The statements in that case, in my view, ought to be read in conjunction with the legislation in that jurisdiction.
  1. [70]
    At [2] Allsop P said:

Whilst there may be circumstances in which it is appropriate or necessary to entertain an attack on the form of a charge, as was intimated by the joint judgment in [Kirk], in the face of the Criminal Procedure Act 1986 (NSW), s11 and the later opportunity to give particulars (cf Johnson v Miller (1937) 59 CLR 467) it is not to be concluded that the charges here necessarily had to be quashed or stayed …

  1. [71]
    Section 11 of the Criminal Procedure Act 1986 (NSW) Act “Description of offences” is cognate to section 47(1) JA ie. the description of any offence in the words of the statute “is sufficient in law”.  Reference to “the later opportunity to give particulars”, while not expressly stated in that passage, must be a reference to the power of amendment under section 170 of the Industrial Relations Act 1996 (NSW) cited at [11] in the judgement of Hodgson JA:

170 Amendments and irregularities

  1. (1)
    The Commission may, in any proceedings before it, make any amendments to the proceedings that the Commission considers to be necessary in the interests of justice.
  2. (2)
    Any such amendment may be made:
  1. (a)
    at any stage of the proceedings, and
  2. (b)
    on such terms as the Commission thinks fit (including, if it can award costs in the proceedings, terms as to costs). (my emphasis)

  1. [72]
    There is no express provision allowing an amendment “at any stage” in section 48 of the JA to support the complainant’s submission that particulars can be provided at any stage regardless of deficiencies in a complaint.
  1. [73]
    In Karimbla, the complaint commenced in general terms not unlike the pleadings in this case.  It was followed by particulars in the complaint.  The allegations related to the use of “swing stages” including lack of system of inspection, ensuring workers were properly inducted and ensuring the swing stages were being used in accordance with advice.    It further provided that as a result of the failure of duty, a named worker was fatally injured.  It is obvious that the defendant in that case was more informed about the nature of the allegations than the present case.
  1. [74]
    Jackson J seemed to approach the case on the basis of whether “a valid complaint, although in need of amendment, is one which ex hypothesi engages the jurisdiction of the court: at [33].  He posed the issue in [33] thus:

The precise question at hand is where the line is to be drawn between a complaint which contains allegations that would not be sufficient in an indictment but are capable of amendment and one that is so defective that it is incapable of amendment …:

  1. [75]
    Accepting the effect of NJ Collins that a properly pleaded complaint must allege particulars of the acts or omissions constituting the offence, Jackson J said at [38]:

… that conclusion does not answer the question whether the complaint in the present case is so defective as to be invalid and incapable of amendment. 

  1. [76]
    Based on the complaint before him for an offence under previous workplace legislation, His Honour concluded that the failure to allege a particular of a relevant act or omission constituting the offence did not render the complaint invalid and incapable of amendment under section 48 JA.
  1. [77]
    At first instance in Harrison[43] a Magistrate dismissed each complaint as being deficient by not disclosing an offence according to law.  The Industrial Court dismissed an appeal against that decision.  The complainant applied for judicial review and Jackson J stated a case to the Court of Appeal to answer the following questions at [10]:
  1. (a)
    was it jurisdictional error for the Industrial Court to find that each complaint was a nullity or incapable of amendment under s 48 of the [JA]?
  2. (b)
    If “yes” to (a), and in the absence for any discretionary reasons for declining the orders, should orders be made ….quashing the orders of the Industrial Court …”
  1. [78]
    Jackson J wrote the leading judgment with whom the other members of the court agreed.  At [13] His Honour summarised the complaints noting that they “contained over six pages of allegations under the heading “Particulars”[44].  The case primarily concerned the extent of the power to amend under section 48 JA.  At [108] he said:

The distinction between a proceeding that is a nullity and one that is not is nowadays made more rarely than in earlier times, perhaps corresponding to the increasing recognition that the question must often be asked by reference to the particular context and purpose. 

  1. [79]
    And at [113]:

But the question … must now be decided having regard to the effect of s 48 and the other provisions of the [JA].

  1. [80]
    Submissions for Niepe noted that the Court of Appeal in Harrison did not overturn the requirements of a valid complaint set out by Martin J, then President of the Industrial Court, in Bell v Hendry [2014] ICQ 18 (Bell).  I agree.  It focussed on the power to amend where section 43 (2) JA had been infringed: at [104] to [107]. As noted earlier, no section 43 issues were agitated in this application.  In Bell Martin J set out the common law requirements for a valid complaint with reference to Kirk at paras [32] to [38][45]. Essentially, a defendant is entitled to be told not only the legal nature of the offence but also of the particular act, matter or thing alleged; a charge must “at least” condescend identifying the essential factual ingredients; and that to be competent, a complaint should contain sufficient identification of the acts or omissions the subject of the charge.
  1. [81]
    The complainant in this case has relied on a passage in para [114] of Hendry as follows:

… 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. [82]
    I respectfully agree with this as a statement of general principle.  An example of this is seen in Critchley[46] referred to earlier in these reasons.
  1. [83]
    The Court of Appeal concluded that the complaints were capable of amendment in a way that would comply with the requirements for a properly pleaded charge of an offence under the relevant provision: at [168].  However, I accept submissions for Niepe that that case was determined on its own facts that there was a power to amend in circumstances that were “entirely different” to the present case.[47]
  1. [84]
    The complainant has referred to Taylor v Environment Protection Authority [2000] NSWCCA 71 (Taylor)[48] in support of the view that an offence known to law has been pleaded in this case.  It was a case stated regarding criminal proceedings for an offence under the Pesticides Act 1978 (NSW).  The full complaint set out at [23] of Sperling J’s judgment relevantly provides:

…not being a person authorised under section 25 of the Act, he did, in using a registered pesticide carelessly disregard an instruction on a label affixed to a container in which he knew or had reasonable cause to suspect the registered pesticide to have been, there being a registered label for an approved container for the pesticide that contains that instruction:

Particulars

Registered Pesticide: Ficam W Insecticide Instruction: “Do not allow contact with mattresses, bedclothes or clothing

  1. [85]
    This was challenged on the basis that the instruction contained multiple parts, the pleading did not identify which aspect of the instruction was alleged to have been disregarded and that no acts or omissions were particularised.  The pleading in Taylor informs the defendant in far greater detail than that in the present case.
  1. [86]
    Sperling J noted at [20] & [21]:

To be valid, an information must identify the essential factual ingredients of the offence charged.

A distinction has been drawn between “essential factual ingredients” (particulars required for the validity of an information) and particulars required merely to ensure that the defendant is able to prepare his or her defence …

  1. [87]
    At [22] Sperling J noted the difficulties in answering this question:

The authorities provide no comprehensive formula for what constitute essential particulars.  However, in Johnson v Miller various requirements were identified.  These include “the time, place and manner of the defendant’s acts or omissions…

  1. [88]
    In answer to the question whether the proceedings were void, the court answered “no”.  The defendant’s acts or omissions were not specified so it lacked an essential particular.  The complainant cited Sperling J at [26] to the effect that the complaint was defective only.  The legal elements of the offence had been identified and therefore the information was capable of amendment under the Jervis provision.  A range of New South Wales authorities were cited in support.
  1. [89]
    In my view, Taylor can be distinguished on the basis that the defendant has received, in the words of McTiernan J in Johnson v Miller, “fair information and reasonable particularity as to the nature of the offence charged”.  In the present case, Niepe is left completely in the dark.
  1. [90]
    In this case, the complaint pleads contravening section 19 (1) & (2) of WHSA.  There is nothing in the pleading addressing which parts of section 19 (3) are relied on.  As noted in S Kidman, “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 [Act]”.  Further, the name of the person or persons exposed to the risk are not named at all.  It would not be evident to Niepe on the complaint itself which offence attaches to a particular person where section 19(1) relates to “workers” whereas section 19(2) relates to “other persons”.
  1. [91]
    On the question of whether the complaint is defective, these major defects on the face of the complaint itself cannot in my view be saved by the provision of particulars in a separate document whether served at the same time as the complaint or at a later time.
  1. [92]
    For the above reasons, the complaint falls far short of forming a valid complaint.  Unless it can be saved by section 48 JA, then it is a nullity and should be struck out.

Can the Complaint be saved?

  1. [93]
    Davies v Andrews (1930) 25 Tas LR 84, a decision of the Tasmanian Full Court referred to in Karimbla at [30], is perhaps a starting point.  The view taken by Nicholls CJ[49] was that if a complaint discloses no offence, then the court does not have jurisdiction and that there is no power to amend under a cognate provision to section 48 JA.  His Honour also considered the meaning of “substance or form” where he said at 89:

It is not easy to give an exact meaning to the language of [cognate section 48 JA], and in all cases which have been decided on the words “in substance or in form” no one has succeeded in attaching a precise meaning to the words “in substance”.  But I think it perfectly clear that that section cannot mean that “no objection shall be taken to a “complaint which discloses no offence”. 

  1. [94]
    In a detailed judgement Clark J came to the same view.  He noted that the power to amend was “incidental to its jurisdiction” after the passing of Jervis’ Act: at pp 94, 95 & 108.  At p 109, after observing that the cognate provision to section 48 JA appears in the statute dealing with procedure only, he said that “[section 48 JA] assumes … jurisdiction”.  On the question of the meaning of “in substance or in form” he said:

The “defects” “in substance or in form”, … are either defects merely of form, or defects which, while of substance, are yet not defects which are so radical and fundamental as prior to Jervis’ Act would have meant that the complaint in which they existed could not operate to confer jurisdiction on the justices.

  1. [95]
    The authors of Kenney Allen[50] give examples of what was considered to be defects not amendable. They include charging the wrong person, laying a complaint by an unauthorised person and alleging the date of an offence that postdates the laying of a complaint.  These are not helpful for present purposes[51].
  1. [96]
    There has been much jurisprudence since the 1930s. As noted earlier, in Karimbla, Jackson J said at [33]:

The precise question at hand is where the line is to be drawn between a complaint that contains allegations that would not be sufficient in an indictment but are capable of amendment and one that is so defective that it is incapable of amendment …

  1. [97]
    In assessing the complaint Jackson J in Karimbla observed at [42] that a lack of clarity as to the system of inspection that should have been adopted “does not mean that the omission which constitutes the offence is not identified”.  Contrary to that case, no act or omission had been pleaded in this case.
  1. [98]
    On the question of whether a complaint is a nullity or capable of amendment under section 48 JA, at [108] & [109] Jackson J said:

The distinction between a proceeding that is a nullity and one that is not is nowadays made more rarely than in earlier times, perhaps corresponding to the increasing recognition that the question must often be asked by reference to the particular context and purpose.

Like the difference between “void” and “voidable” the difference between a proceeding that is a “nullity” and one that is an “irregularity” is not always easily identified.  

  1. [99]
    Jackson J noted Re Buckley; Ex parte Lovell (1938) 38 SR (NSW) 153 at 169 to the effect that some matters other than the text of the offence creating provision must be alleged.  He identified the reasoning in Bell v Hendry as a two-step process: the charge did not expose the legal ingredients of the charge and that, as a result, the complaint is a nullity.  Jackson said at [132]:

… 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. [100]
    After identifying that the complaint “artfully” avoided setting out a clear statement of the relevant obligations at [134] & [135], Jackson J considered the “story” that was set out in the particulars and came to the view that the fourth respondent was “quite clearly apprised of the factual nature of the case except for the particular obligation that was allegedly breached: at [139].
  1. [101]
    Jackson J then proceeded to consider the power to amend under section 48 JA: at [144].  In Broome v Chenoweth (1946) 73 CLR 583 at 601, on the question of the scope of the power to amend, 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 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. [102]
    At [149] Jackson J in Harrison said:

… analysis of the application of the power to 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. [103]
    This is consistent the observations of Nettle JA in Kypri at [26] that when considering whether or not to exercise the power to amend, the particulars given may be taken into account; and amendment is a matter of “fact and degree”: per Tate JA at [88] in Kypri.  It is also consistent with observations of Porter QC DCJ in Baker at [266] that a practical assessment of the complaint in question is required.
  1. [104]
    On this point, Jackson J in Harrison found that, despite the complaint requiring “major surgery”, it was not a nullity and amenable to amendment.  However, the particulars given in the complaint as originally pleaded were extensive and His Honour was able to glean “the story” from them so that the defendant was clearly apprised of the factual nature of the case: at [138] & [139].  The complaint in the present case is devoid of any story which would apprise Niepe of the case.
  1. [105]
    The complainant heavily relied on S Kidman where a complaint in almost the same terms as the one at hand was held to be defective but amenable to amendment under section 183 of the Justices Act 1929 (NT).  The relevant provisions are sections 182 & 183:

182 Information or complaint not to be objected to for irregularity

No objection shall be taken or allowed to any information or complaint in respect of:

  1. (a)
    Any alleged defect therein, in substance or in form; or

Provided that the Court shall dismiss the information or complaint, unless it is amended as provided by section 183, if it appears to him or to it:

  1. (a)
    That the defendant has been prejudiced by the defect or variance; or
  2. (b)
    That the information or complaint fails to disclose any offence or matter of complaint. 

183 Amendment of information or complaint

If it appears to the Court … that the information or complaint:

  1. (a)
    Fails to disclose any offence or matter of complaint, or is otherwise defective; and
  2. (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 my be just. (my emphasis)   

  1. [106]
    It can be immediately seen that, unlike section 48 of the Queensland JA, those provisions expressly contemplate that a complaint that fails to disclose an offence is capable of amendment.  Thus, on its face, section 183 has a greater reach than section 48 JA.  In Queensland, the law is not clear as to what extent “in substance” means.  Davies v Andrews suggests that it does not encompass a complaint that fails to disclose an offence.  Kennedy Allen provides examples of “Defect in substance or in form” at pp 123 - 125 which do not assist in this case other than a reference to Preston v Donohoe (1906) 3 CLR 1089 and other old cases where the authors say that an omission of a necessary averment “may amount to the omission of an essential ingredient of the offence  …”.  However, these questions were not the subject of submissions.
  1. [107]
    In allowing the amendment, the court in S Kidman took into account a range of factors that mitigated any material injustice to the defendant: from [117].  Given the history of that matter, the defendant was found to have a sufficient understanding of the case from extraneous information prior to the expiration of the limitation period; the incident occurred on the property owned and controlled by the defendant; a coronial investigation was conducted in conjunction with a WorkSafe investigation; these resulted in the defendant being served with a prohibition notice issued by WorkSafe preventing the defendant from using the loader in question; and then an improvement notice requiring the defendant to review its procedures for hazard identification etc.
  1. [108]
    There is no such background information available to the court in the current case.

Disposition  

  1. [109]
    I find the complaint a nullity ab initio on the approach taken in Bell, NJ Collins and Newman which is consistent with the views in Davies v Andrews.
  1. [110]
    However, if I am wrong on that basis, and adopting the approach in Harrison, I find the complaint to be so defective that it is incapable of amendment.  In doing so, I am mindful of Jackson J’s remarks at [156] in Harrison that “[a] court should be slow to accept that a complaint is so defective as to be incapable of amendment …”.
  1. [111]
    I will defer making formal orders at this point to afford the parties the opportunity of considering these reasons.  I will hear the parties as to costs.

Footnotes

[1] Orders for directions were made on 20 November 2020 for filing outlines of submissions in this application.  

[2] Under the heading “Implied Power” in the Judgment of Clare SC DCJ at [28] et seq.

[3] See authorities cited by the parties in this case, including for example Archer v Simon Transport Pty Ltd [2016] QCA 168 dealing with an pre-trial application to strike out a complaint for an offence under the current WHSA; see also Guilfoyle v Culverthorpe Pty Ltd [2019] QMC 17 at [3] for particulars in the complaint.   

[4] Para 6 Submissions for Niepe; para 1 (viii) submissions for the complainant.

[5] Section 232(1) (a) WHSA.

[6] Other than Category 1 offences (Reckless Conduct) as defined in s 31 of WHSA or offences under Part 2A (Industrial Manslaughter) of WHSA.  The current charges are Category 2 offences as defined in s 32 (Failure to Comply with Health and Safety Duty) of WHSA.   

[7] In Division 1 “Complaints” of Part 4 “General Procedure”.

[8] In Division 5 “Summonses” of Part 4 “General Procedure”.

[9] In Division 1 “Complaints” of Part 4 “General Procedure”.  Section 47(1) JA is often referred to as a Jervis’ Act provision; see John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508, 519.  

[10] See Karimbala Construction Pty Ltd v President of the Industrial Court of Queensland [2014] QSC 56 at [26] & [27] referred to with approval in Baker v Smith [2019] QDC 76 at [207]. 

[11] See also Kennedy Allen, The Justices Act (Queensland), (Brisbane, Law Book Co, 3rd ed, 1956) at 116.

[12] Referred to in a number of later cases including Baker v Smith op cit.at [204], Critchley v Schlumberger Oilfield Australia Pty Ltd [2016] QDC 338 at [9], Karimbala Construction Service Pty Ltd v President of the Industrial Court of Queensland [2014] QSC 56 at [35] and S Kidman & Co Ltd v Lowndes [2016] NTCA 4 at [54].

[13] In Division 2 “Amendment of Complaints, Summonses and Warrants” in Part 4 “General Procedure”.

[14] See section 3 WHSA “Object”.  See also Reynolds v Orora Packaging Australia Pty Ltd [2019] QDC 31 at [12] et seq on a discussion how the uniform national Work Health and Safety legislation interacts with varying criminal procedure and sentencing provisions among the States.  

[15] In Division 2 “Primary Duty of Care” of Part 1 “Health and Safety Duties”.

[16] Subdivision 1 “Principles that apply to duties”, Division 1 “Introductory” of Part 2 “Health and Safety Duties”. 

[17] Subdivision 2 “What is reasonably practicable”, Division “Introductory” of Part 2 “Health and Safety Duties”.

[18] Passages cited at paras [10] - [12] of written submissions dated 4 December 2020. I will return to some of these later in these reasons. 

[19] Paras [49] to [57] written submissions.

[20] Citing Jordan CJ in the New South Wales Court of Appeal in referring to Smith v Moody [1903] 1 KB 56 in Ex parte Lovell; re Buckley (1938) 38 SR (NSW) 153 at 169.  His Honour provides a useful history of the pleading requirements of an offence prior to the Jervis’Act UK in 1848 and afterwards including its introduction into New South Wales at pp 165 to 174.  

[21] Para [30.35] written submissions for the Complainant darted 17 December 2020.

[22] Para [5] written submissions for the Complainant citing John L at 530. 

[23] Paras [47] & [48] written submissions for the Complainant. 

[24] See also para 12 of written submissions for Niepe.

[25] See statements to the same effect at para [26] in Kirk also cited at para [16] of written submissions for Niepe.

[26] Para [19] written submissions.

[27] Para [24] Archer [2016] QCA 168; McMurdo P and Gotterson JA agreed.

[28] [1987] 163 CLR 508 at 519.

[29] (2010) 239 CLR 531 at [26] per French CJ, Gummow, Hayne, Creenan Kiefel and Bell JJ.

[30] (1946) 73 CLR 583 at 601 per Dixon J.

[31] [2016] QCA 89 at [108]-[109], [114] & [144] per Jackson J.

[32] (2011) 33 VR 157 at [24] per Nettle JA.

[33] [2014] QSC 56 per Jackson J.

[34] Newman v TJV Electrical Pty Ltd [2011] QIR Comm 129 per Hall P.

[35] In accordance with the principles cited in Craig v South Australia (1985) 184 CLR 163.

[36] Noted in Summary Offences Law and Practice Queensland, (Law Book Company) at [JA.47.40]. 

[37] See Parker v The President of the Industrial Court [2009] QCA 120.

[38] Also [2016] NTCA 5.

[39] Para [16] written submissions.

[40] Para 29 written submissions for Niepe.

[41] [2014] QSC 56 per Jackson J.

[42] (2011) 207 IR 93.

[43] [2016] QCA 89.

[44] The particulars are fully set out in Bell v Hendry [2014] ICQ 18.  

[45] At para [31] written submissions for Niepe.

[46] [2016] QDC 338.

[47] Para 30.35 written submissions for Neipe.  

[48] Also at (2000) 50 NSWLR 48.

[49] Crisp J agreed.

[50] Kenney & Allen, The Justices Acts, Queensland, LBC 3r ed., 1956 at p 132.  

[51] See GPI at [16] where section 16 of the Criminal Procedure Act 1986 expressly provide that many of those matter do not affect an indictment.

Close

Editorial Notes

  • Published Case Name:

    Guilfoyle v Niepe Constructions Pty Ltd

  • Shortened Case Name:

    Guilfoyle v Niepe Constructions Pty Ltd

  • MNC:

    [2021] QMC 1

  • Court:

    QMC

  • Judge(s):

    G. Lee

  • Date:

    08 Mar 2021

Appeal Status

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

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