Introduction

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 Prosecutors.

The facts

Inspector Hamilton v John Holland Pty Ltd [2010] 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 [2010] 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 Order.

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 meet, and
  • 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.