Previously, one of the first steps you would take when you are instructed to defend a work health and safety prosecution is to consider and potentially contest the validity of the charge/complaint document that commenced the proceedings – the objective of which is to have the charge struck out and the proceedings dismissed.
The situation usually looked something like this:
- There is a safety incident at the workplace, typically involving a death or the serious injury of worker.
- The person conducting a business or undertaking (PCBU) is charged with an offence under the respective Work Health and Safety Act for alleged breaches
- The complaint and summons document filed in court to commence the proceedings (often based on a proforma document):(a) alleges an offence under the Work Health and Safety Act, usually by alleging a breach of the duty under s.19 (Primary Duty of Care) and then alleging the offence, such as that the breach exposed an individual to a risk of death or serious injury (a s.32 of the Work Health and Safety Act offence); and
(b) provides particulars of the alleged offence, usually by setting out some background facts of the incident and the alleged failure(s) to discharge the duty of care. - Lawyers acting for the PCBU then make an application to the court for the complaint to be struck out and dismissed; usually, by arguing that the complaint failed to set out and particularise all of the necessary legal ingredients or legal elements of the alleged offence.
CDI Lawyers has successfully run such a case in the past and had a work health and safety charge laid against our client struck out in its entirety and dismissed – See Work Health Authority v Kawasaki Heavy Industries Ltd [2020] NTLC012.
Since that case, there has been a shift in the way in which the Courts have approached such applications for strike out, with the Courts opting to permit amendment rather than dismissing the complaint.
This article provides an analysis of those cases and the relevant law.
What is the law?
Before looking at the recent authorities, it is important to highlight the relevant requirements around the laying of a charge/complaint to commence such criminal proceedings.
The general rule is that a defendant is entitled to know the exact case against them, including:
- the alleged offence and how the legal elements of that offence are alleged; and
- the factual particulars and grounds of the offence, including the act, matter or thing alleged to have been done or not done by the defendant.
Those matters are important, and important to be specified at the outset of a criminal proceeding, as shortly after, the defendant is required to enter a plea – guilty or not guilty. Without that information, a defendant is unable to know the case it has to meet, know the defences available to it (if any) and cannot make an informed decision on how to plead.
One of the leading authorities on this requirement in terms of a work health and safety offences is the High Court’s decision in Kirk v Industrial Court of NSW (2010) 239 CLR 531. This case stands for the general proposition that the complaint document must identify the act or omission said to constitute the offence with sufficient particularity to enable a defendant to understand the offence being alleged and any defences available to it.
In relation to the statutory requirements, each state and territory across Australia have enacted legislation that sets out what a complaint must satisfy to be valid. Generally, the relevant wording of those requirements is similar. In Queensland, this is set out in the Justices Act 1886 (Qld) (Justices Act).
In relation to what must be expressly included in the complaint for it to be valid, section 47(1) of the Justices Act relevantly states:
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.
Firstly looking at that section, it is immediately apparent that the legislature’s intention – with the use of words “sufficient description”, “shall be sufficient in law” and “similar words” – was to set a very low bar for what is required for an offence to be sufficiently and validly described in a complaint document. If that low bar was not enough, sections 48 and 49 of the Justices Act then provide a broad right to amendment to cure any defect in either “substance or in form”.
The collective effect of those sections (s 47, 48 and 49 of the Justices Act) is that a complaint only needs to describe the offence by using words or similar words from the relevant act to be sufficient in law and if that is not done, it can be amended to correct any such defect (being a defect in substance or form).
The limited circumstances in which a complaint may be struck out, and amendment refused, is if it can be established that it would result in a material unfairness to the defendant or would be unjust. A perfect example of this, like the situation in our client’s case, is if the amendment would constitute the bringing of a new charge after the statutory limitation for laying a charge had expired. For such a case to succeed, you must first establish that the complaint is so invalid, it is a nullity or void ab initio (i.e. void from the start and as if no charge was ever laid).
Recent cases indicate a different approach being adopted by the courts where they have refused to find the complaint to be a nullity, had less regard to the potential for unfairness and had more regard to the broad right to amendment for any defect in substance or in form.
To provide contrast to the approach currently being adopted, we have briefly summarised our client’s case below where the Court found that the complaint was a nullity and incapable of fair and just amendment.
Work Health Authority v Kawasaki Heavy Industries Ltd [2020] NTLC012
In this case, our client was charged with an alleged work health and safety offence following the tragic fatality on the Ichthys LNG Project in the Northern Territory.
After our client pled not guilty, we made an application for the complaint to be struck out in its entirety, arguing:
- The complaint was invalid, and a nullity, as it failed to allege the elements of the offence under the Work Health and Safety (National Uniform Legislation) Act 2011 (NT). Most significantly, it did not sufficiently set out the breach that our client allegedly committed nor the risk that the unspecified breach exposed an unspecified person to.
- The complaint did not provide our client with sufficient information to allow it to ascertain the case it faced and required our client to draw inferences as to what was being alleged.
- Any amendment to the complaint was more than just a clarification and would constitute a new charge being laid.
- As the statutory timeframe for laying a charge had surpassed, the laying of a new charge would be outside the statutory timeframe, which would be unfair and unjust. Accordingly, the Court should refuse the proposed amendment.
The Court ultimately agreed, and the complaint was struck out in its entirety with the proceedings against our client being dismissed – meaning our client did not have to face lengthy and costly proceedings defending the charge.
In the decision, the Court relevantly held:[1]
“[80]…neither the risk nor the breach had not been identified in the original complaint (including the particulars) the complaint is defective and without extensive amendment, is a nullity…
[81]…If the amendment was allowed then there is real prejudice to the Defendant requiring them to face a charge laid out of time and thereby defeating the time limit…
[87] The prejudice to this Defendant to allow the amendment would be to require KHI to face a new charge which charge is out of time and that should not be acceded to by this court. An amendment which defeats the time limitations period places the Defendant in jeopardy of serious prejudice requiring them to face a charge which in other circumstances would be excluded by virtue of a limitation period. That is not to say the amendment ought not be allowed if the Defendant had sufficient information before it to identify the offence for which he is charged.
[88]…it is my view the original complaint did not provide the defendant with enough information which allowed them to ascertain the case they were to face and the proposed amendment is more than a clarification of the charge it is a laying of a fresh charge. In those circumstances it is my view it would be unjust to allow the amendment – the Complainant’s application to amend the complaint fails and the KHI application to strike out the Complaint succeeds.”
Turning now to the contrasting authorities whereby the Courts have refused to dismiss a complaint and instead permitted amendment, despite an arguably similar lack of particularity.
Work Health Authority v Whittens Pty Ltd [2020] NTLC012; Whittens Pty Ltd v Judge Fong Lim & Anor [2021] NTSC 9
In Work Health Authority v Whittens Pty Ltd [2020] NTLC012, charges were brought against Whittens Pty Ltd following the same incident to our client’s charge on the Ichthys LNG Project in the Northern Territory. Whittens was our client’s subcontractor on the Project and was the direct employer of the worker that tragically died.
Whilst the Court struck out the complaint against our client, it rejected Whittens’ strike out application and instead permitted amendment, relevantly finding that:[2]
“[22] It is trite to say that any Complaint should include all elements of the offence…the statement of the offence in terms of the legislation can still be sufficient if in ordinary language and “without necessarily stating all essential elements of the offence if it gives the Defendant a reasonably clear statement of the offence they are to face “with such particulars as are necessary for giving reasonable information as to the nature of the charge
…
[47]…there is reasonable information in the complaint which, although somewhat lengthy, makes it reasonably clear the offence the Defendant, Whitten, is to answer
Whittens appealed that decision and in refusing the appeal, the Supreme Court of Northern Territory held that the complaint was valid on the basis that the complaint:[3]
“…provide[d] a reasonably clear and intelligible statement of the factual manner in which [Whittens] acts or omissions are alleged to constitute the specific offence, and in particular, of the essential factual ingredient[s]…”
J Hutchinson Pty Ltd v Guilfoyle [2022] QCA 186
In J Hutchinson Pty Ltd v Guilfoyle [2022] QCA 18 (Hutchinson v Guilfoyle), Hutchinson Builders was charged with a work health and safety offence following an incident that occurred on one of its South Brisbane projects. After the complaint was filed, Hutchinson Builders applied for it to be struck out, arguing that the “complaint on its face fails to particularise the legal ingredients of any offence and therefore fails to engage the jurisdiction of the Court”.
The complaint, like the one in our client’s case, followed the standard proforma complaint document prepared by the statutory authority. It set out the alleged offence by copying the language from the Work Health and Safety Act 2011 (Qld) and then providing some facts by way of particulars of the alleged offending.
In the first instance, Hutchinson Builders succeeded with its strike out application with the Magistrates Court finding that the charge was invalid and “beyond the reach of amendment” (i.e. a nullity). However, in both the District Court and then in the Court of Appeal, the prosecutor successfully argued that amendment should be permitted rather than the charge being struck out and dismissed. The Court of Appeal relevantly held:
- a failure to disclose an offence and prepare a valid complaint is comprehended by the phrase “defect of substance or in form” in the Justices Act and that section expressly allows for amendment when such failures occur;[4]
- just because the complaint is defective, does not in turn mean it is a nullity (i.e. a complaint may be invalid but it does not mean that it should be regarded as if the charge was never made);[5] and
- an invalid or defective charge can and should be amended and not struck out, even if the “…complaint does not disclose an offence known to law.”[6] Such amendment will not constitute the bringing of a new charge (thus, nullifying any argument for unfairness regarding a new charge being brought out of time).
The proceedings have now been reverted back to the Magistrates Court for the Court to decide whether Hutchinson Builders breached its work health and safety duty and committed the alleged work health and safety offence.
Guilfoyle v Niepe Construction Pty Ltd [2023] QDC 40
In this case, Niepe Constructions Pty Ltd was charged for alleged breaches under the Work Health and Safety Act 2011 (Qld) following a workplace incident that occurred on the Toowoomba Bypass Project.
The complaint filed against Niepe simply restated the wording from the Work Health and Safety Act 2011 (Qld) for the offence, with a separate document entitled ‘statement of facts and particulars’ being served on Niepe but not filed in Court.
The complaint was in very similar terms to the one in Hutchinson v Guilfoyle and in our client’s case. It followed the standard proforma complaint document, set out the alleged offence by copying the language from the Work Health and Safety Act 2011 (Qld) and then (in the case, separately) provided some particulars of the alleged offence.
In the first instance, Niepe argued (and the Magistrate agreed) that:[7]
- the complaint was defective because it did not contain the necessary factual particulars and elements of the alleged offence; and
- the complaint was so defective it did not disclose an offence at all and was therefore a nullity. As a result, it was incapable of amendment and the proceedings were dismissed.
The prosecutor appealed that decision and, in applying Hutchinson v Guilfoyle and allowing the appeal, the District Court held:[8]
- the complaint laid against Niepe Construction, “…was not a nullity, it was at worst for [the prosecutor], invalid”; and
- to the extent of any invalidity, the invalidities could and should be cured by amendment.
As to the question of delay and Niepe Construction’s allegations on the potential for injustice or unfairness if amendment was permitted, the Court stated:[9]
There has been delay, but the fact is the parties had to await the decision in Hutchinson. Any delay is unfortunate but sometimes it is a necessary consequence of litigation, particularly where there are preliminary skirmishes which become the subject of appeal
The proceedings have now been remitted back to the Magistrates Court to determine whether Niepe Construction breached its work health and safety duties and committed the alleged offence.
Takeaway
Over the past few years, we have observed an increase in the volume of work health and safety offences being alleged and an increase in the volume of successful prosecutions of such offences. This is largely attributable to more rigorous investigations being conducted but is also due to a public policy push for companies to be held accountable for breaches in safety causing serious injury or death. We consider that the recent line of authorities is reflective of this.
As a result of the recent cases, it is now almost impossible for lawyers to run technical legal arguments to have charges laid dismissed, meaning that companies charged with work health and safety breaches will have to either plead guilty or defend the charge on the merits.
With the building and construction industry being responsible for the lion’s share of serious workplace health and safety incidents and cases, it is recommended that all industry participants:
- familiarise themselves with their work health and safety duties, including the duties of PCBUs, officers and workers at the workplace; and
- ensure that each of those respective parties that hold such duties are discharging their duties so far as is reasonably practicable.
[1] Work Health Authority v Kawasaki Heavy Industries Ltd [2020] NTLC012.
[2] Work Health Authority v Whittens Pty Ltd [2020] NTLC012.
[3] Whittens Pty Ltd v Judge Fong Lim & Anor [2021] NTSC 9 at [28].
[4] J Hutchinson Pty Ltd v Guilfoyle [2022] QCA 18 at [56].
[5] Ibid at [57].
[6] Ibid at [36], [55]-[57].
[7] Guilfoyle v Niepe Constructions Pty Ltd [2021] QMC 1.
[8] Guilfoyle v Niepe Construction Pty Ltd [2023] QDC 40 at [27] to [29].
[9] Guilfoyle v Niepe Construction Pty Ltd [2023] QDC 40 at [30].
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