J Hutchinson Pty Ltd v Guilfoyle

Here, the Court of Appeal considered whether a complaint laid against the applicant which alleged a breach of a statutory health and safety duty pursuant to the Work Health and Safety Act 2011 was so defective that it was rendered incapable of amendment. The court concluded that whilst the complaint did not comply with the common law requirements for setting out the offence, it was open to amendment under s 48 Justices Act 1886 and that was a course which should be pursued.

Bowskill CJ and Morrison and Dalton JJA

27 September 2022

The complaint was worded as follows:

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

… contrary to the Acts in such case made and provided”. [2].

Initially, the complaint was struck out by the learned Magistrate on the basis it was a nullity “beyond the reach of amendment”. [4]. On appeal to the District Court that order was set aside. [5]. The applicant sought leave to appeal from that decision. [7]. In the court’s view, the question whether the complaint was a nullity was in the public interest since several pending prosecutions were awaiting the decision in the current matter, and the outcome would have a considerable impact upon the applicant since it would determine whether there was scope to prosecute it. For those reasons leave was permitted. [8].

The submissions to the court

The applicant contended that the complaint lacked the factual matters needed in accordance with the common law (see Kirk v Industrial Court (NSW) (2010) 239 CLR 531 and John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508). It argued that in those circumstances amendment under s 48 Justices Act 1886 was impossible to redeem the complaint. [18]. Whilst the respondent conceded that the complaint did not contain the required particulars, it contested the suggestion that that meant the complaint was a nullity. [23].

The relevant caselaw

The applicant sought to rely upon Harrison v President of Industrial Court of Queensland [2017] 1 Qd R 515; [2016] QCA 89 to support its contention that the level of particularity a complaint must contain is a threshold question under the common law, and where that particularity is lacking a complaint becomes a nullity and is unable to amended under s 48 Justices Act 1886. The court did not accept that argument. [26]. It noted [27]–[30]:

(a) Harrison was the opposite of the current matter. By comparison, in that case detailed factual particulars were contained however the alleged offence was not specified; and

(b) In Harrison Jackson J confirmed that there is scope under s 48 Justices Act 1886 to amend a complaint which omits to allege a necessary ingredient of the charge, even if that was the failure to allege an element of the offence.

In addition, the court observed that not only did Harrison not support the applicant’s case nor does any other authority. Instead, the available caselaw endorses the contrary proposition that the power of amendment can extend to cases where the complaint does not disclose an offence known to law: see Broome v Chenoweth (1946) 73 CLR 583, 601 and Ciorra v Cole (2004) 150 A Crim R 189.

The court cited the issues in S Kidman & Co Ltd v Lowndes CM (2016) 314 FLR 358; [2016] NTCA 5 as being almost identical to the present matter. [48]. There, although the complaint was defective since it did not include the particulars that the common law required, that was not fatal as there was a power of amendment. [49]–[52]. The court in Kidman expressed the view that the power of amendment in the Justices Act 1886 is extensive 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”. [53].

In a similar vein, the court held that the defective complaint in the present case was not a nullity, and rather was open to amendment under s 48 of the Justices Act 1886. [57].

Disposition 

Whilst the application for leave to appeal was allowed given the appeal was lacking in merit it was dismissed. [66].

A Jarro