On Friday 4 June 2010, the Full Bench of the NSW Industrial
Relations Commission (IRC) handed down the first judgment in New
South Wales which raised a Kirk argument. It was argued
that the IRC did not have jurisdiction to hear the charges laid
against the Defendant as defects in the Application for Order did
not allow the Defendant to identify the charges against it.
The Full Bench held that it does not matter; where or, in what
form or, in which category the required elements of a charge appear
as long as the Defendant is informed in the Application of the
specific case brought against them.
The case provides an important clarification of the law in NSW
and provides useful guidance as to how charges should be framed by
Inspector Hamilton v John Holland Pty Ltd 
NWIRComm 72 arose from John Holland's (JH) involvement with the
collapse of the Lane Cove tunnel on Sydney's M2. On 2 November
2005 a large section of tunnel roof collapsed. The Prosecution
alleged that JH employees and other persons working in the tunnel
narrowly escaped injury when the roof collapsed.
John Holland's submission
JH submitted that the charge laid by WorkCover NSW failed to
meet the requirements set down by the High Court in Kirk v
Industrial Relations Commission; Kirk Group Holdings Pty Ltd v
WorkCover Authority of New South Wales  HCA 1. JH
submitted that the essential legal elements of the charge did not
specify the measures that should have been taken by JH to ensure
the health and safety of their employees and others as required by
the Occupational Health and Safety Act 2000 (NSW)
(NSW OHS Act).
JH argued that this failure meant that it was not possible for
JH to plead to the charge as it did not have the requisite
information to enable it to identify the charge against it.
The Kirk argument
JH presented that it was not sufficient for the Prosecution to
allege that there was a general state of affairs that had arisen,
which contravened the requisite standard of safety, or to simply
follow the general words of the section of the NSW OHS Act which
created the offence. JH further submitted that the failure to
attain the standard of safety required by NSW OHS Act would not
constitute an offence unless the Prosecutor could identify and
prove (beyond reasonable doubt) some act or omission which was
causally related to the failure to achieve the standard.
The IRC recognised that following Kirk an Application for Order
must plead the acts or omissions of the defendant that are alleged
to give rise to the risk to heath and safety.
An imaginary line?
The details of the acts and omissions committed by JH had been
included in the Application for Orders in the particulars but
instead of appearing in the 'Statement of Charge' itself,
they were set out in the particulars of the charge.
JH argued that particulars constituted 'essential legal
elements' of the charge and needed to be pleaded in the
Statement of Charge itself rather than below it, in the
particulars. Further, as the particulars were not in the Statement
of Charge they 'were not known to the law' and did not
allow JH to identify the charges against it.
The Prosecution submitted that drawing a distinction between the
charges (being the essential legal elements) and the particulars
(being essential factual elements) was like drawing an
"imaginary line" between the particulars of the charge
and the charge itself.
The IRC's findings
The IRC was "unable to find any support in Kirk for the
proposition that acts or omissions are to be regarded as essential
legal elements". It found it did not matter whether the acts
or omissions creating the risk were regarded as 'essential
legal elements' or 'essential factual ingredients';
simply that both are required to be pleaded in the Application for
The IRC's view was that the particulars identified the
risks, elucidated what failures were alleged and implied the
measures JH should have taken to avoid the risks to safety.
Why the judgment is important
The judgment is important as it:
reinforces that Kirk found that an Application for
Order must plead the acts or omissions of the defendant that are
alleged to give rise to the risk to health and safety
reinforces that Kirk intended that the Application for
Order to be constituted by a description of the legal nature of the
offence, the essential factual ingredients and any other
particulars to better inform the Defendant of the charge it has to
provides clarification that it does not matter where or in what
form or in what category the required elements appear. The
important consideration is that the Defendant must be informed in
the Application of the breach alleged and the acts or omissions by
which that breach was committed.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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