Coggins v Steelcon Cava Pty Ltd [2014] ICQ 22

INDUSTRIAL COURT OF QUEENSLAND CITATION: Coggins v Steelcon Cava Pty Ltd [2014] ICQ 022 PARTIES: DEAN ALLAN COGGINS (appellant) v STEELCON CAVA PTY LTD (respondent) CASE NO/S: C/2013/42 PROCEEDING: Appeal against a decision of the Industrial Magistrate DELIVERED ON: 14 July 2014 HEARING DATE: 25 February 2014 MEMBER: Martin J, President ORDER/S: Appeal dismissed CATCHWORDS: MAGISTRATES – COMMENCEMENT OF PROCEEDINGS – PARTICULARS AND CONTENT OF ORIGINATING PROCESS – DESCRIPTION OF OFFENCE – GENERALLY – where the appellant laid a complaint against the respondent, alleging breaches of workplace health and safety obligations – where an Industrial Magistrate held that the complaint was invalid and incapable of amendment – whether the complaint met the requirements set out by the High Court in Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 Justices Act 1886, s 48 Workplace Health & Safety Act 1995, ss 24, 28, 37 CASES: Bell v Hendry [2014] ICQ 18, followed Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1, applied McGarry v Daytona Trading Pty Ltd [2014] ICQ 21, referred to N K Collins Industries Pty Ltd v President of the Industrial Court of Queensland & Anor [2013] QCA 179, followed N K Collins Industries Pty Ltd v President of the Industrial Court of Queensland & Anor [2010] QSC 373, considered APPEARANCES: P Matthews directly instructed by Legal & Prosecution Services, Workplace Health and Safety Queensland for the appellant A Freeman instructed by the Worcester & Co for the respondent -- 1 of 7 -- 2 [1] On 3 October 2012 the appellant made a complaint that the respondent had failed to discharge an obligation imposed upon it by s 28 of the Workplace Health & Safety Act 19951 (“the Act”). [2] The complaint read as follows: “THE COMPLAINT of DEAN COGGINS … made this 3rd day of October, 2012, … who says that on the 27th day of October, 2011 at 4 Northridge Rd, Mt Isa, QLD, in the Magistrates Court District of Mt Isa, STEELCON CAVA PTY LTD being a person conducting a business or undertaking on whom a workplace health and safety obligation prescribed by section 28 of the Workplace Health and Safety Act 1995 (repealed) is imposed did fail to discharge the obligation contrary to section 24 of the said Act. Particulars It is alleged that workers were not free from risk to their workplace health and safety arising out of the conduct of the defendant's business or undertaking [s.28]. Worker: Kingsley Rex WADE Workplace: 4 Northridge Rd, Mt Isa QLD Business or undertaking: Abrasive blasting Hazards: The source of the risk is: (1) Plant namely, a. 1 x Compair 2400P Diesel Portable air compressor serial # 0107 10/225. b. 1 x Nova 200 air hood and shoulder cape c. 1 x airline to supply the air hood d. 1 x Radex air filter (2) The condition of plant namely, a Compair 2400P Diesel Portable air compressor serial # 0107 10/225 and its operation which allowed carbon monoxide into the worker’s air supply source. 1 The Workplace Health & Safety Act 1995 was repealed by the Work Health & Safety Act 2011. Section 282 of the latter Act allows for proceedings to be taken against a person in certain circumstances as if the repeal had not happened. -- 2 of 7 -- 3 Risk: The risk is the risk of death or injury to workers or other persons, including the risk of death from carbon monoxide toxicity to Kingsley Rex WADE. Contrary to the Act and Regulation in such case made and provided: The Abrasive Blasting Industry Code of Practice 2004 is a Code of Practice about managing the exposure to risks relating to the use of abrasive blasting plant, including the particularised plant. Of this Code, the most relevant material includes pages 13 Respiratory Protection and 24 Supplied Air for Respiratory Equipment. The Plant Code of Practice 2005 is a Code of Practice about managing the exposure to risks relating to the use of the particularised plant. Of this Code, the most relevant material includes sections 5.1 Risk Management; 5.4 Operation; 5.13 Inspection; 5.14 Maintenance; 5.15 Repair; 5.20 Ventilation; 5.21 Providing information; 5.22 Instructing, training and supervising workers The Risk Management Code of Practice 2007 (Repealed) is a Code of Practice about managing the exposure to the particularised risks under s42(c) of the said repealed Act and expands on the advice given under Part 5 of the Plant Code of Practice 2005 in terms of identifying and managing risks. The Australian/New Zealand Standard 1715:2009 Selection, use and maintenance of respiratory protection equipment is a standard identified in the Abrasive Blasting Industry Code of Practice 2004. Of this standard the most relevant material includes: appendix A - Requirements for Air Quality for supplied air respirators, and appendix F - Sources of Air for Air Line RPE. AND IT IS ALLEGED that the breach caused the death of Kingsley Rex WADE.” [3] When the matter came on for trial an application was made by the respondent for an order staying the complaint on the basis that it was incurably flawed and, therefore, the court had no jurisdiction. The industrial magistrate referred to Kirk v Industrial Court of New South Wales,2 and N K Collins Industries Pty Ltd v The President of the Industrial Court of Queensland & Anor,3 (“NK Collins”) amongst other cases, and held that the complaint did not disclose sufficiently what it was about the plant, its condition and its operation that gave rise to a relevant risk; that the complaint merely stated what resulted rather than identifying a particular source of risk; and that the complaint failed to disclose what the defendant should have done to prevent or manage that risk. 2 (2010) 239 CLR 531. 3 [2013] QCA 179. -- 3 of 7 -- 4 [4] The appellant appeals on the basis that the industrial magistrate erred in finding that the complaint was invalid or incurably flawed. In the “Particulars” to that ground of appeal it is also contended that the industrial magistrate was “peremptory in staying the complaint when, in the circumstances, proper and reasonable exercise of his jurisdiction in hearing the complaint lay under s 48 of the Justices Act 1886.” The appellant also seeks leave to introduce some evidence. It consists of a request by the respondent for particulars of the complaint and the appellant’s response which, it should be observed, appears to confuse particulars with the evidence available to prove those particulars. The Workplace Health & Safety Act 1995 [5] So far as is relevant, the Act contains the following provisions: 24 Discharge of obligations (1) A person on whom a workplace health and safety obligation is imposed must discharge the obligation. … (2) Subsection (1) applies despite Criminal Code, sections 23 and 24. … (3) If more than 1 person has a workplace health and safety obligation for a matter, each person— (a) retains responsibility for the person’s workplace health and safety obligation for the matter; and (b) must discharge the person’s workplace health and safety obligation to the extent the matter is within the person’s control; and (c) must consult, and cooperate, with all other persons who have a workplace health and safety obligation for the matter. 28 Obligations of persons conducting business or undertaking (1) A person (the relevant person) who conducts a business or undertaking has an obligation to ensure the workplace health and safety of the person, each of the person’s workers and any other persons is not affected by the conduct of the relevant person’s business or undertaking. (2) The obligation is discharged if the person, each of the person’s workers and any other persons are not exposed to risks to their health and safety arising out of the conduct of the relevant person’s business or undertaking. (3) The obligation applies— (a) whether or not the relevant person conducts the business or undertaking as an employer, self-employed person or otherwise; and (b) whether or not the business or undertaking is conducted for gain or reward; and (c) whether or not a person works on a voluntary basis. -- 4 of 7 -- 5 37 Defences for div 2 or 3 (1) It is a defence in a proceeding against a person for a contravention of an obligation imposed on the person under division 2 or 3 for the person to prove— (a) if a regulation or ministerial notice has been made about the way to prevent or minimise exposure to a risk—that the person followed the way prescribed in the regulation or notice to prevent the contravention; or (b) if a code of practice has been made stating a way or ways to manage exposure to a risk— (i) that the person adopted and followed a stated way to prevent the contravention; or (ii) that the person adopted and followed another way that managed exposure to the risk and took reasonable precautions and exercised proper diligence to prevent the contravention; or (c) if no regulation, ministerial notice, or code of practice has been made about exposure to a risk—that the person chose any appropriate way and took reasonable precautions and exercised proper diligence to prevent the contravention. (2) Also, it is a defence in a proceeding against a person for an offence against division 2 or 3 for the person to prove that the commission of the offence was due to causes over which the person had no control. (3) In this section, a reference to a regulation, ministerial notice, or code of practice is a reference to the regulation, notice, or code of practice in force at the time of the contravention. The requirements for a valid complaint [6] I have set out in Bell v Hendry4 and McGarry v Daytona Trading Pty Ltd5 the matters which must be considered when considering the validity of a complaint. I will not repeat all of them here. In brief, they are: (a) A defendant is entitled to be told not only of the legal nature of the offence which is charged, but also of the particular act, matter or thing alleged as the foundation of the charge; (b) The complaint must inform the court of the identity of the offence with which it is required to deal and provide the accused with the substance of the charge which he or she is called upon to meet; (c) Such a charge “must at least condescend to identifying the essential factual ingredients of the actual offence”; (d) A complaint must specify “the time, place and manner of the defendant’s acts or omissions”; (e) The complaint must identify the measures which should have been taken. If a risk was or is present, the question is: what action on the part of the employer was or is required to address it? The answer to that question is the matter properly the subject of the charge; and 4 [2014] ICQ 18. 5 [2014] ICQ 21. -- 5 of 7 -- 6 (f) Where it is alleged that a specific statutory provision, or a code, or a guideline or the like has been breached then the relevant provision must be identified. Validity of the complaint [7] This complaint was made before the decision in NK Collins Industries Pty Ltd v President of the Industrial Court of Queensland & Anor6. The complaint considered in that case was strikingly similar in many respects: “―… 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 Qld. 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.” [8] In spite of the absence of any reference to codes in the NK Collins complaint, that complaint and the complaint in this case are relevantly indistinguishable so far as the expression of the breach is concerned. There are references to four codes of 6 [2013] QCA 179. -- 6 of 7 -- 7 practice in the complaint. There is no assertion that they are relevant to any alleged breach. With respect to each code there is a curious reference to identified parts of each code being “the most relevant material”. It may be that the complainant was seeking to identify parts of each code which he regarded as being relevant to s 37(1)(b) of the Act. [9] In his submissions before the Court, I asked counsel for the appellant why the complaint contained these references to the codes. He said that it was because the Court of Appeal in NK Collins had said that, if there are codes of practice that are relevant, they should be notified to the defendant so that the defendant can mount a defence. He then referred to the decision of Boddice J in NK Collins Industries Pty Ltd v The President of the Industrial Court of Queensland & Anor7. Neither the Court of Appeal nor Boddice J made a statement of that nature. Boddice J said, at [22], that a prosecutor can be required, “in an appropriate case, to particularise the applicable code of practice or other measures it asserts ought to have been taken by an employer if such particulars are necessary to apprise a defendant of the case it has to answer.” That is, with respect, correct. The reference to the codes is irrelevant to the issue of validity in the circumstances of this complaint. [10] In prosecutions of this type it is incumbent on the prosecution to identify the measure or measures which should have been taken to ensure workers’ safety from risk8. The complainant has not done so in either the complaint or the particulars. For the same reasons as were set out by the Court of Appeal in NK Collins this complaint does not provide any jurisdiction to the Magistrates Court to take any steps because no relevant act or omission has been identified. [11] The Magistrate did not err in finding that the complaint was invalid and that the court had no power to deal with it. That finding inevitably leads to a conclusion that resort cannot be had to the amendment provisions in s 48 of the Justices Act 1886 because the “complaint” referred to in that section must be taken to be a valid complaint. Orders [12] The appeal is dismissed. I will hear the parties on costs. 7 [2010] QSC 373. 8 [2013] QCA 179 at [59]. -- 7 of 7 --