Bell v MIM Ltd & Ors [2012] QMC 28

MAGISTRATES COURTS OF QUEENSLAND CITATION: Bell v MIM Ltd & Ors [2012] QMC 28 Note: This decision was appealed to the Industrial Court of Queensland which upheld the dismissal of the complaints see Bell v Hendry & Ors [2014] ICQ 018 PARTIES: STEWART LYNN BELL (complainant) v MOUNT ISA MINES LIMITED (first respondent) and MANSELL MINING AND SHOTCRETE PTY LTD (second respondent) and KEVIN JAMES HENDRY (third respondent) FILE NO/S: MAG-146884/10(5), MAG-146867/10(3), MAG- 147270/10(1) DIVISION: Industrial Magistrates Court PROCEEDING: Application to strike out complaint. ORIGINATING COURT: Industrial Magistrates Court Brisbane DELIVERED ON: 7 December 2012 DELIVERED AT: Brisbane HEARING DATE: 12 July 2012 MAGISTRATE: Callaghan CJ ORDER: The Complaint against each defendant is dismissed CATCHWORDS: COMPLAINTS – WORKPLACE INJURY– DUPLICITY AMBIGUITY AND UNCERTAINTY – AMENDMENT - safety and health obligations – obligations on the operator for a mine, a contractor for the mine and the Site Senior Executive for the mine – whether complaints so deficient in legal and factual ingredients to not disclose an offence – obligations imposed in ambulatory provisions – essential -- 1 of 22 -- 2 element to identify particular obligation breached Mining and Quarrying Safety and Health Act 1999 Justices Act 1886 COUNSEL: R Douglas SC and D MacKenzie appeared for complainant M Byrnes SC and Mr A Scott appeared for the first respondent A Glynn SC appeared for the second respondent J Murdoch SC appeared for the third respondent SOLICITORS: Crown Solicitor for the complainant Minter Ellison for the first respondent Watson Quinn for the second respondent Sparke Helmore for the third respondent [1] For the purposes of this application the alleged facts are uncontroversial. It is alleged that approximately 5am on Monday 27 July 2009 Mr Matthew Bertoni, an employee driver of an off-site contractor Mansell Mining and Shotcrete Pty Ltd (“Mansell”) lost control and crashed when driving a Mitsubishi Kantor Agitator truck on the U59 decline, George Fisher Mine, near Mount Isa. The mine is operated by Mount Isa Mines Limited (“MIM”) who had appointed Kevin James Hendry (“Hendry”) to be the Site Senior Executive for the Mine. [2] Each of the respondents has been charged with failing to discharge obligations placed upon them by various sections of the Mining and Quarrying Safety and Health Act 1999 (MQSHA or “the Act”) contrary to s 31 of the MQSHA and that that failure caused grievous bodily harm to Mr Bertoni (who, it is alleged, suffered a ruptured spleen requiring substantial blood transfusion, a compound fracture of the left hip and dislocated left knee). The complaint against MIM alleges:- “That on the 27th day of July 2009 at the George Fisher Mine near Mount Isa in the Mount Isa Magistrates Court District in the State of Queensland MOUNT ISA MINES LIMITED ABN 87009661447, the operator for a mine and a person on whom safety and health obligations were imposed by s 36 and s 38 of the Mining and Quarrying Safety and Health Act 1999, did fail to discharge the obligations, contrary to s 31 of the Mining and Quarrying Safety and Health Act 1999, and the said failure by MOUNT ISA MINES LIMITED ABN 87009661447 to discharge the obligations caused grievous bodily harm to MATTHEW MICHAEL BERTONI.” [3] The complaint against Mansell is in exactly the same terms except it alleges:- 1. That Mansell was a contractor for the mine (instead of operator); and 2. It was a person on whom safety and health obligations were imposed by s 36 and s 40 (as opposed to s 36 and s 38). -- 2 of 22 -- 3 [4] The complaint against Hendry is also in exactly the same terms except it alleges:- 1. That he was the Site Senior Executive for the mine (as opposed to the operator); and 2. He was a person on whom safety and health obligations were imposed by s 36 and s 39 (as opposed to s 36 and s 38). [5] Each of the complaints then goes on to give particulars. The particulars given for all respondents are substantially the same. There are two exceptions:- 1. In the particulars alleged against Mansell and Hendry there is an added paragraph alleging that MIM was a duly incorporated company and was the operator the mine within the meaning of MQSHA; and 2. In paragraph 9 of the particulars alleged against Mansell and Hendry the obligation sections are changed to be s 36 and s 40 in the case of Mansell and s 36 and s 39 in the case of Hendry, whereas in the case of MIM of the obligations allegedly breached in paragraph 8 are s 36 and s 38. [6] This is an application by each of the respondents that the complaint in each case be dismissed with costs. In the case of MIM and Mansell the application also seeks an order in the alternative to the complaint being dismissed that it be stayed and each seek further or other orders as to the courts seems appropriate. The Legislation [7] Section 31 of MQSHA relevantly provides:- “31 Discharge of obligations A person on whom a safety and health obligation is imposed must discharge the obligation. Maximum penalty – … (b) if the contravention caused death or grievous bodily harm – 1000 penalty units or 2 years imprisonment; or …” [8] Section 36 of MQSHA relevantly provides:- “36 Obligations of persons generally -- 3 of 22 -- 4 (1) A worker or other person at a mine or a person who may affect safety and health of persons at a mine or as a result of operations, has the following obligations— (a) to comply with this Act, standard work instructions, and procedures applying to the worker or person that form part of a safety and health management system for the mine; (b) if the worker or other person has information that other persons need to know to fulfil their obligations or duties under this Act, or to protect themselves from the risk of injury or illness—to give the information to the other persons; (c) to take any other reasonable and necessary course of action to ensure that persons are not exposed to unacceptable levels of risk. (2) A worker or other person at a mine has the following additional obligations at the mine— (a) to manage the risk of injury or illness to himself or herself or any other person in the worker’s or other person’s own work and activities, so that the risk is at an acceptable level; (b) to ensure, to the extent of the responsibilities and duties allocated to the worker or other person, that the risk of injury or illness to any person is managed in the work and activities under the worker’s or other person’s control, supervision, or leadership, so that the risk is at an acceptable level; (c) to the extent of the worker’s or other person’s involvement, to participate in and conform to the risk management practices of the operations; (d) to comply with instructions given for safety and health of persons by the mine operator or site senior executive for the mine or a supervisor at the mine; (e) to work at the mine only if the worker or other person is in a fit condition to carry out the work without affecting the safety and health of others; (f) not to do anything wilfully or recklessly that might adversely affect the safety and health of someone else at the mine.” [9] Section 38 of MQSHA relevantly provides:- “38 Obligations of operators (1) An operator for a mine has the following obligations— (a) to ensure the risk to workers while at the operator’s mine is at an acceptable level, including, for example, by— (i) providing a safe place of work and safe plant; and (ii) maintaining plant in a safe state; (b) to ensure the operator’s own safety and health and the safety and health of others is not affected by the way the operator conducts operations; (c) to appoint a site senior executive for the mine; (d) to ensure the site senior executive for the mine— -- 4 of 22 -- 5 (i) develops and implements a safety and health management system for the mine; and (ii) develops, implements and maintains a management structure for the mine that helps ensure the safety and health of persons at the mine; (e) to audit and review the effectiveness and implementation of the safety and health management system to ensure the risk to persons from operations is at an acceptable level; (f) to provide adequate resources to ensure the effectiveness and implementation of the safety and health management system. (2) Without limiting subsection (1), an operator has an obligation not to operate a mine without a safety and health management system for the mine. (3) Subsection (1)(d) to (f) and subsection (2) do not apply to a mine where not more than 10 workers are employed at the mine. (4) However, a regulation may specify a mine where not more than 10 workers are employed to be a mine to which subsection (1)(d) to (f) and subsection (2) apply because of the size, nature or complexity of the mine’s operations.” [10] Section 39 of MQSHA relevantly provides:- “39 Obligations of site senior executive for mine (1) A site senior executive for a mine has the following obligations in relation to the safety and health of persons who may be affected by operations— (a) to ensure the risk to persons from operations is at an acceptable level; (b) to ensure the risk to persons from any plant or substance provided by the site senior executive for the performance of work by someone other than the site senior executive’s workers is at an acceptable level; (c) to develop and implement a safety and health management system for the mine; (d) to develop, implement and maintain a management structure for the mine that helps ensure the safety and health of persons at the mine; (e) to train workers so that they are competent to perform their duties; (f) to provide for— (i) adequate planning, organisation, leadership and control of operations; and (ii) the carrying out of critical work at the mine that requires particular technical competencies; and (iii) adequate supervision and control of operations on each shift at the mine; and (iv) regular monitoring and assessment of the working environment, work procedures, equipment, and installations at the mine; and -- 5 of 22 -- 6 (v) appropriate inspection of each workplace at the mine including, where necessary, pre-shift inspections. (2) Subsection (1)(c) does not apply to a site senior executive of a mine where not more than 10 workers are employed at the mine. (3) However, a regulation may specify a mine where not more than 10 workers are employed to be a mine to which subsection (1)(c) applies because of the size, nature or complexity of the mine’s operations.” [11] Section 40 of MQSHA relevantly provides:- “40 Obligations of contractors A contractor at a mine has an obligation to ensure, to the extent that they relate to the work undertaken by the contractor, that provisions of this Act and any applicable safety and health management system are complied with.” Issues to be determined [12] There are three issue which need determination:- 1. Is each complaint so deficient as to its legal and factual ingredients that it does not disclose an offence known to law?; 2. Is each complaint duplicitous?; 3. If the answer to 1 or 2 is “Yes” then should the complaint be amended? The Complaints [13] As I have stated earlier the complaints are in very similar terms. Particular 8(a) of the MIM complaint alleges that MIM failed to discharge its obligations imposed by ss 36 and 38 of the Act by “Failing to ensure the risk to Mr Bertoni was at an acceptable level in operating or allowing operation of unit 40, as modified and used as an agitator truck, and that it was safe plant and fit for use for its intended purpose;”. Given the terminology used (“Failing to ensure”) this may be an allegation that MIM as the operator contravened s 38(1)(a) of the Act. It cannot be an allegation that it has contravened s 36(2)(a) as even though the words “risk is at an acceptable level” appear in that paragraph of the Act, that paragraph talks about managing the risk rather than ensuring the risk it is at an acceptable level. This particular may however be an allegation pursuant to s 36(2)(b). [14] The similar allegation appears in particular 9(a) in the complaint against Mr Hendry which alleges that he failed to discharge the obligations imposed upon him by ss 36 and 39 of the Act by “Failing to ensure the risk to persons in the mine from -- 6 of 22 -- 7 operations were at an acceptable level”. Again this does not appear to be an allegation pursuant to s 36(2)(a) but may be an allegation pursuant to s 36(2)(b) or an allegation pursuant to s 39(1)(a) of the Act. [15] The similar allegation appears in particular 9(a) in the complaint against Mansell which alleges that Mansell failed to discharge its obligations imposed by ss 36 and 40 of the Act by “Failing to ensure the risk to Mr Bertoni was an acceptable level by operating unit 40, as modified and used as an agitator truck, and was safe plant and fit for use for its intended purpose”. For the reasons above it does not appear to be an allegation pursuant to s 36(2)(a). It may however be an allegation pursuant to s 36(2)(b). [16] It doesn’t appear to be an allegation pursuant to s 40. [17] Particular 8(b) of the complaint against MIM alleges that it failed to discharge its obligations as imposed by ss 36 and 38 of the Act by “Failing, in contravention of ss 6, 7, 8 and 9 of the Regulation1, to undertake a risk assessment or monitor risk as to the suitability of unit 40 at the mine in underground conditions, in particular having regard to the steep gradients of roads at the mine, the abrasive effects of moisture and dusk on the mechanical components of unit 40, and or alternatively the heavy loads of concrete transported by unit 40”. [18] Sections 6, 7, 8 and 9 of the Regulation compel persons who have obligations under the Act to manage risk at a mine to do certain things. Section 6 compels the person to identify hazards in the person’s own work and activities at the mines. Section 7 compels the person to analyse risk in the person’s own work and activities to decide whether the risk is at an acceptable level. Section 8 compels the person to, as far as reasonably practicable, apply hazard controls in an order which is set out in the section. Section 9 compels the person to monitor risk in the person’s own work and activities at the mine. [19] None of those sections compel the person to undertake a risk assessment. One is able to identify hazards without undertaking a risk assessment. An analysis of risk is something different to an assessment of risk2. The application of hazard controls is not a risk assessment. [20] Paragraph 8(b) of the particulars against MIM therefore must be pursuant to s 9(1) of the Regulation. [21] The same allegation is made against Mansell in paragraph 9(b) in alleging that it failed to discharge its obligations imposed by ss 36 and 40 of the Act. This particular must therefore be an alleged breach of s 9 of the Regulation as opposed to ss 6, 7 and 8. [22] The same allegation is made against Hendry stating that he failed to discharge the obligations imposed upon him by ss 36 and 39 of the Act. Hendry, by virtue of the fact that he is the site senior executive, seems to have further obligations imposed upon him. By s 6(3) of the Regulation he must ensure that hazard identification is performed when operations start at the mine, during the operations, when the 1 Mining and Quarrying Safety and Health Regulation 2001 2 To analyse is to examine in detail; break down into essential features or components, whereas to assess is to estimate or judge the value. -- 7 of 22 -- 8 operations change in size, nature, complexity or another way and for a hazard caused by hazardous substance or dangerous goods – periodically, at intervals not exceeding 5 years. [23] Section 8(2) of the Regulation places further obligations on the site senior executive to ensure that hazard controls used to reduce risk are appropriate having regard to the interaction of hazards present in the environments, the effectiveness and reliability of the controls and or other reasonably available relevant information and data. [24] The site senior executive also has further obligations placed upon him concerning the monitoring of risk. Section 9(2) of the Regulation states that he must ensure risk in the mine’s work and local environments caused by the mine’s operation is monitored when the operation starts, at appropriate intervals or stages during operations at the mine and when the mine’s risk management practices or procedures change significantly. [25] In none of those additional obligations was Mr Hendry, as site senior executive, required to undertake a risk assessment. Again in respect of him it also appears therefore to be an allegation that he failed to monitor risk in contravention of s 9 of the Regulation. [26] The mention of ss 6, 7 and 8 in particular 8(b) against MIM and particular 9(b) against Mansell and Hendry seems to be irrelevant. This particular in each of the complaints therefore must ultimately be an allegation that each of the defendants failed to manage the risk of injury to Mr Bertoni so that the risk was at an acceptable level pursuant to s 36(2)(a). [27] Particular 8(c) of the complaint against MIM alleges that it failed to discharge the obligations imposed upon it by ss 36 and 38 of the Act by “Failing, in contravention of s 100(1)(a) of the Regulation, to manager the said risk at the mine, in respect of the selection of plant, to ensure that unit 40 was fit for its intended use, namely as an agitator truck, used in its intended work environment, namely an underground mine with descending declines.” Section 100(1)(a) of the Regulation provides that a person who has an obligation under the Act to manage risk at a mine in relation to the selection and design of plant must ensure the plant is fit for its intended use and use in its intended work environment. This therefore seems to be allegation that MIM breached it obligation imposed under s 36(2)(a) of the Act. [28] The same allegation is made against Mansell and Hendry and for the same reasons it seems to be an allegation that each of them have also breached s 36(2)(a) of the Act. [29] Paragraph 8(d) of the complaint alleged against MIM alleges that it failed to discharge the obligations imposed upon it by ss 36 and 38 of the Act by “Failing in contravention of s 100(1)(b) of the Regulation, when it was necessary for managing risk from unit 40 and it was reasonably practicable to do so, to ensure that the plant did not fail catastrophically and incorporated a back up system (by way of emergency breaking system) to ensure the vehicle remained under control and was designed so that its condition and performance could be monitored and insipient failures detected.” -- 8 of 22 -- 9 [30] Section 100(1)(b) of the Regulation provides that a person who is has an obligation under the Act to manage risk in a mine in relation to the selection and design of plant must ensure if it is necessary for managing risk from the plant and is reasonably practicable, the plant does not fail catastrophically (s 100(1)(b)(ii)) and that the plant incorporates appropriate back up systems to ensure the plant remains under control if its primary system fails (s 100(1)(b)(iv)). [31] This therefore must be an allegation that MIM failed to discharge the obligation imposed upon it by s 36(2)(a) of the Act to manage the risk of injury to another person so that the risk is at an acceptable level. [32] The exact same allegation is made against Mansell and Hendry in the complaints against them pursuant to paragraph 9(d) of the complaints against them. [33] Paragraph 8(e) of the complaint against MIM alleges that MIM failed to discharge the obligations imposed upon it by ss 36 and 38 of the Act by “Failing, in contravention of s 105(1) of the Regulation, in respect of the commissioning of unit 40 in its operating environment before it is used, to ensure it performed within its specifications and hazard controls for the plant were adequate and operating within such specifications, and mine workers who were required to operate the plant were competent to operate it safely.” [34] Section 105(1) of the Regulation provides that the operator or senior site executive must ensure plant is commissioned in its operating environment at the mine before it is used to ensure its integration into the operating environment and associated systems, to ensure it performs to within its specifications if any held at the mine and under s 112, to ensure hazard controls for the plant are adequate and operating within the specifications mentioned and to ensure that the mine workers who are required to operate the plant are competent to operate it safely. [35] This allegation must be therefore an allegation that MIM failed to discharge the obligation imposed upon it pursuant to s 36(2)(a) to manage the risk of injury to any other person so that the risk is an acceptable level. [36] The same allegation is made against Hendry in paragraph 9(e) of the complaint against him. It therefore must be an allegation that he also failed to discharge safety and health obligations imposed upon him by s 36(2)(a) of the Act. [37] It is curious that the same allegation is made against Mansell in paragraph 9(e) of the complaint against it. As s 105 of the Regulation mandates that the operator or site senior executive of the mine must ensure plant is commissioned correctly but it does not impose upon the contractor any such obligation. I cannot see therefore how this particular would show that the contractor Mansell breached either s 36 or s 40 of the Act as alleged against it. [38] Paragraph 8(f) of the complaint against MIM alleges that it failed to discharge the obligations imposed upon it by ss 36 and 38 of the Act by “Failing in contravention of s 106 of the Regulation, in respect of the management of risk of unit 40 as plant, to ensure it was not operating in a way that created an unacceptable level of risk.” -- 9 of 22 -- 10 [39] Section 106 of the Regulation provides that a person who has an obligation under the Act to manage risk at a mine in relation to the operation of plant must ensure the plant is not operated in a way that creates an unacceptable level of risk. [40] This particular therefore seems to be an allegation that MIM failed to discharge the obligation imposed upon it by s 36(2)(a) to manage the risk of injury to Mr Bertoni so that the risk was at an acceptable level. [41] The same allegation is made against Mansell and Hendry in paragraph 9(f) of the particulars against each of them. For the same reasons it appears to be an allegation that each of them failed to discharge the obligation upon them to manage the risk of injury to Mr Bertoni so that the risk was at an acceptable level. [42] Paragraph 8(g) of the complaint against MIM alleges that it failed to discharge the obligations imposed upon it by ss 36 and 38 of the Act by “Failing, in contravention of s 108 of the Regulation, to monitor the use, condition and performance of unit 40 so as to detect any deterioration causing an unacceptable level of risk, decide if the plant was likely to operate without causing an unacceptable level of risk until it as next monitored, and to provide information for preventative maintenance.” [43] Section 108 of the Regulation provides that a person has an obligation under the Act to manage risk at a mine in relation to monitoring plant, must monitor the plant’s use, condition and performance to detect any deterioration causing an unacceptable level of risk, to decide if the plant is likely to operate without causing an unacceptable level of risk until it is next monitored, and to provide information for preventative maintenance. [44] I have been unable to detect any specific obligation requiring the operator, or site senior executive or contractor to “Manage risk at a mine in relation to monitoring plant”. The only obligation to manage risk at a mine is the obligation pursuant to s 36(2)(a) of the Act. Accordingly this may well be an allegation that MIM failed to discharge its obligation to manage the risk of injury to Mr Bertoni so that the risk is at an acceptable level pursuant to s 36(2)(a) of the Act. [45] The same allegation is made against Mansell and Hendry in paragraph 9(g) of each complaint against them. For the same reasons it also seems to be an allegation that each of them failed to discharge the obligation imposed upon them pursuant to s 36(2)(a) of the Act. [46] Paragraph 8(h) of the complaint against MIM alleges that MIM failed to discharge the obligations imposed upon it by ss 36 and 38 of the Act by “Failing in contravention of ss 109, to ensure that unit 40 was serviced and maintained so as to be capable of performing its intended function, was within the condition and performance limits of its specifications and it was taken out of service in the event that it could not be so serviced and maintained.” [47] Section 109 of the Regulation provides that the operator or site senior executive must ensure plant in use at a mine is serviced and maintained so it is capable of performing its intended functions and is within the condition and performance limits of its specifications. It also provides that if a breakdown of the plant is likely to cause an unacceptable level of risk, the operator or site senior executive must ensure -- 10 of 22 -- 11 the servicing and maintenance is based on a preventative strategy. It also provides that if the plant cannot be serviced and maintained so that it is capable of performing its intended functions and is within the conditional performance limits of its specifications then the operator or site senior executive must ensure it is taken out of service. [48] I am unclear as to which obligation this is alleged to have breached. It is certainly an allegation that MIM the operator has breached s 109 of the Regulation. However on my reading of the Regulation I cannot find that that is in fact an offence under the Regulation. I note that s 262(8) of the Act provides that a Regulation may create offences and prescribe penalties of not more than 400 penalty units for offences against the Regulation. But I cannot find where an offence has been created for a breach of Regulation 109. Even if there were such an offence provision the complaint here alleges breaches of obligations under specific sections of the Act. [49] Is it therefore an allegation that MIM failed to discharge the obligation imposed upon it by s 36(1)(c) in that it allegedly failed to take any other reasonable and necessary course of action to ensure that persons are not exposed to unacceptable levels of risk, or is it an allegation that it failed to discharge the obligation imposed upon it by s 36(2)(a) by failing to manage the risk of injury to Mr Bertoni so that the risk is at an acceptable level or is it an allegation that it being the operator of a mine failed pursuant to s 38(1)(a) of the Act to ensure the risk to workers at the mine was at an acceptable level by providing a safe place of work and safe plant and maintaining plant in a safe state or is it perhaps a breach of the obligation imposed upon it by s 38(1)(b) of the Act, that is that it allegedly failed to ensure the safety and health of others at the mine is not affected by the way it conducted its operations. [50] The same comments concerning s 109 and the fact that no offence has been created for any breach of it apply to Hendry the site senior executive. [51] Similarly in the case of Hendry is it therefore an allegation that Hendry failed to discharge the obligation imposed upon him by s 36(1)(c) or s 36(2)(a) of the Act. Or is it perhaps an allegation that Hendry the site senior executive for the mine failed to discharge the obligation imposed upon him by s 39(1)(a) of the Act by failing to ensure that the risk to persons from operations is at an acceptable level or pursuant to s 39(1)(b) of the Act by failing to ensure that the risk to Mr Bertoni from any plant provided by the site senior executive for the performance of work by someone other than the site senior executive workers is at an acceptable level. [52] As s 109 of the Regulation only concerns the operator or site senior executive of the mine this ought not be an allegation against Mansell who is neither an operator nor site senior executive but rather a contractor. [53] Paragraph 8(i) to 8(l) allege that MIM failed to ensure that procedures were developed and enforced for the safe operation of unit 40 namely “conducting comprehensive and accurate and mechanical inspection of all of the equipment operated by Mansell at the Mine”3, and “namely the loading and transportation of concrete in excess of the manufacturer’s gross mass vehicle specifications”4 and 3 8(i) 4 8(j) -- 11 of 22 -- 12 “namely that Mr Bertoni had received documented training and assessment in the use of unit 40”5 and “namely the failure to ensure identification and repair of the mechanical components of the broken system of unit 406 by failing to ensure the braking system was operating safely, by failing to ensure persons conducting maintenance at the mine had service manuals specific to the operation of unit 40, failing to ensure the persons at the mine properly and correctly filled out and conducted the service, preventative maintenance schedule inspection records of unit 40, failing to ensure the persons at the mine properly and correctly filled out daily service and pre-start check records of unit 40 and by failing to ensure the pre-start check list of unit 40 was properly assessed for safety risks.” [54] I cannot ascertain from these paragraphs of the particulars as to whether or not an allegation is being made that MIM has breached its obligations pursuant to s 36 or s 38 of the Act. [55] Similar allegations are made against Mansell and Hendry in respect of paragraph 9(i) to 9(l) of the particulars alleged against each of them. [56] For the same reasons I cannot determine whether these paragraphs are an allegation that Mansell failed to discharge its obligations under either s 36 of the Act or s 40 of the Act or whether Hendry failed to discharge his obligations imposed by s 36 of the Act or s 39 of the Act. [57] Paragraph 8(m)(i) alleges that MIM failed to discharge the obligations imposed upon it by ss 36 and 38 of the Act by “failing to ensure the health and safety of persons at the mine, including Mr Bertoni, were not affected by the way operations were conducted”. Section 36(1) of the Act provides that persons at mines or a person who may affect safety and health of persons at a mine or as a result of operations has the obligation to comply with the Act, to give information to other persons and to take any other reasonable and necessary course of action to ensure that persons are not exposed to unacceptable levels of risk. The Act does not provide an obligation to an operator, worker or other person at a mine to ensure that health and safety of persons at a mine were not affected by the way operations were conducted. Section 36(2) provides that a worker or other person at a mine has additional obligations namely to manage the risk of injury so that the risk is at an acceptable level, to ensure that the risk of injury to any person is managed so that the risk is at an acceptable level, to participate in and confirm to the risk management practices of the operations, to comply with instructions given for safety and health by the mine operator or site senior executive, to work at the mine only if the person is in a fit condition to carry out the work without affecting the safety or health of others and to not do anything wilfully or recklessly that might adversely affect the safety and health of someone else at the mine. [58] Again in none of those obligations does the operator of the mine have to ensure the health and safety of persons at the mine were not affected by the way operations were conducted. The safety and health must be adversely affected by something done wilfully or recklessly for there to be a breach of the obligation7. 5 8(k) 6 8(l) 7 Section 36(2)(f) -- 12 of 22 -- 13 [59] The same allegation is made against Mansell and Hendry in paragraph 9(m)(i) of the particulars against them. For the same reasons I cannot see that this is a breach of one of the obligations imposed in s 36. Similarly it is not a breach of any obligation imposed against MIM in s 38, against Hendry in s 39 and against Mansell in s 40 of the Act. [60] Paragraph 8(m)(ii) of the particulars against MIM allege that it failed to discharge the obligations imposed upon it by sections 36 and 38 of the Act by “failing to manage the risk and take a reasonable and necessary course of action to ensure persons in the mine are not exposed to unreasonable risk.” [61] This may well be an allegation that MIM failed to discharge the obligation imposed upon it by s 36(1)(c) of the Act which obligation is placed upon MIM to take any other reasonable and necessary course of action to ensure that persons are not exposed to unacceptable levels of risk. Perhaps the complainant here is saying that unreasonable risk is the same as an unacceptable level of risk. [62] The same comments apply in relation to the complaints against Hendry and Mansell as the same allegation is in paragraph 9(m)(ii) of the complaint against them. The further particulars of 14 May 2012 [63] MIM then sought from the complainant further particulars. The first being “identification of alleged breach of obligation under ss 36 and 38 of the Act as alleged in CP88, identifying the particular obligation allegedly breached in each instance.” [64] In answering this request for further particulars the complaint has not identified which obligation imposed by ss 36 and 38 of the Act was breached by what it alleged in paragraph 8(a) of the initial complaint particulars. [65] The answer to this request for particulars indicated that obligations imposed upon it by ss 36(1)(a) of the Act by failing to comply with the Act, by failing to comply with the Regulations particularised in complaint particulars paragraph 8(b) – (h), by s 36(1)(c) of the Act by failing to take reasonable and necessary courses of action to ensure that Mr Bertoni was not exposed to an unacceptable level of risk, by s 36(2)(a) of the Act by failing to manage the risk of injury so that the relevant risk was at an acceptable level, by s 38(1)(a) of the Act by failing to ensure that the risk to workers while at the mine was at an acceptable level by failing to provide a safe place of work, safe plant and maintaining that plant in a safe state, by s 38(1)(d)(ii) of the Act by failing to ensure the appointed site senior executive implemented and maintained a management structure for the mine that helped ensure the health and safety of person at the mine, and by s 38(1)(e) of the Act by failing to audit or review the effectiveness and implementation of the safety and health management system to ensure the risk to person from operations was at an acceptable level. [66] In the further particulars alleged against Mansell on 14 May 2012 the same allegations were made in respect of s 36(1)(a), s 36(1)(c) and s 36(2)(a). In those further particulars alleged against Mansell the complainant alleged that Mansell breached the obligation imposed upon it by s 40 of the Act by failing to ensure in 8 Meaning complaint particular 8 -- 13 of 22 -- 14 respect of the work undertaken by it as a contractor that the provisions of the Act and any applicable safety and health management system were complied with. [67] Similar further and better particulars were provided as against the defendant Hendry on 14 May 2012 concerning ss 36(1)(a), 36(1)(c) and 36(2)(a). [68] It was also alleged that Hendry failed to discharge the obligations imposed upon him by s 39(1)(a) – Failing to ensure the risk to persons from operations in the mine was at an acceptable level, s 39(1)(b) by failing to ensure the risk to persons from any plant provided by him as site senior executive for the performance of work in the mine was at an acceptable level, by s 39(1)(d) of the Act by failing to develop, implement or maintain a management structure for the mine that helps ensure the safety and health of persons at the mine, by s 39(1)(e) by failing to train workers so that they are competent to perform their duties, by 39(1)(f)(i) of the Act by failing to provide for adequate planning and control of operations in the mine and by s 39(1)(f)(iii) of the Act by failing to engage in adequate control of operations on each shift of the mine. [69] Further particular 2(d)(iii) particularises that the matters pleaded in complaint particulars 8(a) and 8(i) to (l) were not just as measures to be ensured but also in the alternative as measures per se which were reasonably capable of being implemented so as to obviate or minimise the relevant risk and so as to bring the level of risk from mine operations to be within acceptable limits and low as reasonably achievable having regard to the likelihood of injury to persons arising out of the relevant risk and the severity of the injury which might occur. [70] I still fail to see how any of these particulars in CP8(a) and CP8(i) to (l) are breaches of obligations imposed upon MIM by s 36 and s 38 of the Act or on Mansell by s 36 and s 40 of the Act and Hendry by s 36 and s 39 of the Act. The case against MIM in sum [71] After gardening through the many particulars provided with the complaint and as a result of the request for further and better particulars and discarding those particulars which I have not been able to discern are applicable to any breach of any obligation under the Act the bare case against MIM appears in the least to be as follows:- 1. A failure to manage the risk of injury to Mr Bertoni so that the risk was at an unacceptable level (s 36(2)(a)) by:- (i) Failing in contravention of the s 9(1) of the Regulation to monitor risk in MIM’s own work and activities at the mine9; (ii) Failing in the selection of plant to ensure it did not fail catastrophically10; (iii) Failing to ensure 9 Paragraph 26. 10 Paragraphs 30 and 31. -- 14 of 22 -- 15 1. The plant was commissioned in its operating environment; 2. Its integration into the operating environment and associated systems; 3. It performed to within its specifications if any, held at the mine; 4. Hazard controls for the plant were adequate and operating within specifications11. 5. That the plant was not operated in a way that created an unacceptable level of risk12; 6. That the plant’s use, condition and performance in detecting deterioration was monitored thus causing an unacceptable level of risk13; 7. That unit 40 was serviced and maintained so it was capable of performing its intended functions, was within the condition and performance limits of its specifications or was taken out of service14. (iv) Failing to take other reasonable and necessary course of action to ensure that Mr Bertoni was not exposed to unacceptable levels of risk (s 36(1)(c)) by failing: (1) To ensure that unit 40 was serviced and maintained so it was capable of performing its intended functions, was within the conditions and the performance limits of its specifications or if not was taken out of service; (2) To manage risk and take reasonable and necessary course of action so that Mr Bertoni was not exposed to unreasonable risk; or 2. Failing to ensure that the risk to Mr Bertoni was at an acceptable level (s 38(1)(a)) by failing to ensure that unit 40 was serviced and maintained so it was capable of performing its intended functions, was within the condition and performance limits of its specification or if not was taken out of service. 11 Paragraphs 33 to 35. 12 Paragraphs 38 to 40. 13 Paragraphs 42 to 44. 14 Paragraphs 46 to 49. -- 15 of 22 -- 16 3. Failing to ensure the risk to Mr Bertoni whilst at the mine was at an acceptable level in operating or allowing operation of unit 40 as modified and used as an agitator truck and that it was safe plant and fit for use for its intended purpose (s 38(1)(a) or s 36(2)(b)). The cases against Mansell and Hendry in sum [72] Similarly in the main the same allegations are made against Mansell and Hendry with the exception of the allegation made pursuant to s 38(1)(a) which in the case of Hendry it becomes an allegation pursuant to s 39(1)(a). [73] As Mansell doesn’t have the same obligations in s 40 as do MIM in s 38 and Hendry in s 39 the case against Mansell is the same except for that s38(1)(a)/s39(1)(a) allegation. Legal and factual ingredients of complaint [74] In Kirk v Industrial Court (NSW)15 the Court repeated what was said by it earlier in Johnson v Miller16 in saying “The common law requires that a defendant is entitled to be told not only of the legal nature of the offence with which he or she is charged, but also of the particular act, matter or thing alleged as the foundation of the charge. In John L Pty Ltd v Attorney-General (NSW)17 it was explained that the older cases established that an information could be quashed as insufficient in law if it failed to inform the justices of both the nature of the offence and the manner in which it had been committed.” [75] In John L Pty Ltd v Attorney-General (NSW)18 Manson CJ, Deane and Dawson JJ said “The traditional function of an information was to found jurisdiction to deal with an alleged offence. Disregarding the effect of statutory provisions curing or precluding reliance upon a defect, the old authorities established that an information should be quashed as insufficient in law and invalid if it failed to inform the justices before whom it was laid of the nature of the offence and the manner in which it had been committed. The rational of that requirement has, in more recent times, commonly been seen as lying both in the necessity of informing the Court of the identity of the offence with which it is required to deal and in providing the accused with the substance of the charge which he is called upon to meet.” [76] Here the complaints allege that each of the defendants on whom safety and health obligations were imposed by specified sections of the MQSHA did fail to discharge the obligations contrary to section 31 of the MQSHA. [77] Section 31 is an ambulatory provision. It provides that a person on whom a safety and health obligation is imposed must discharge the obligation and then goes on to prescribe various penalties for a contravention of that section. Safety and health obligations are imposed generally by section 36, specifically to the operator MIM by section 38, specifically to the senior site executive Hendry by section 39 and specifically to the contractor Mansell by section 40. 15 (2010) 239 CLR 531 16 (1937) 59 CLR 467 17 (1987) 163 CLR 508 18 (1987) 163 CLR 508 at 519 -- 16 of 22 -- 17 [78] Section 32 of the MQSHA provides that a person on whom a safety and health obligation is imposed may be subject to more than one safety and health obligation. An example is there given providing that a person may be an operator, contractor and supplier of plant at the same time for a single mine and be subject to obligations in each of the capacities. Section 31 of the Act is expressed in the singular; that is if an obligation is imposed on a person then the person must discharge the obligation. [79] The defendants argue that on a fair reading of the complaints (including the particulars contained in the body of same) the defendant is unable to identify the particular safety and health obligation alleged to have been breached. [80] In Director of Public Prosecutions v Peter Ionnis Kypri19 the Court of Appeal Victoria considered a charge against the defendant for refusing to comply with a requirement under section s 55 of the Road Safety Act 1986 (RSA) to accompany a member of the Police Force to a Police Station prior to three hours elapsing since the driving of a motor vehicle. The charge was brought against the defendant pursuant to s 49(1)(e) of the RSA. That subsection provided that a person is guilty of an offence if he or she “refuses to comply with a requirement made under section 55(1), (2), (2AA), (2A) or (9A).” The Court found20 that “the proper characterisation of an act which comprises an offence under s 49(e) is one of failure to comply with a particular kind of requirement under s 55. It follows that in order to identify the act which comprises the offence, it is necessary to identify the particular kind of requirement under s 55 with which it is alleged that there was non-compliance. Hence it is an essential element.” [81] It follows that the defendants argue that a failure to specify the particular requirement allegedly contravened in a particular charge is a failure to allege an essential element of the charge. [82] The complainant has referred to the decision in Director of Public Prosecutions Reference Number 2 of 200121 (where the Court of Appeal described s 49(1)(f) of the RSA as creating one offence) particularly where Charles JA said at [23] “...but there are a number of facts that must be established as part of the proof of such an offence, such as for example that the instrument used was a breath analysing instrument within the meaning of the Act and that the person who operated the instrument was duly authorised to do so. Of course it does not follow that all such facts necessary though they may be to proof of the offence under s 49(1)(f) must be alleged in the charge. In my view essential elements of the offence under s 49(1)(f) are prescribed by the section itself and do not by direct or indirect reference incorporate any other allegation of fact necessary to exist in order to create the offence. ...” [83] As pointed out by the defendants the offence against s 49(1)(f) is a stand alone offence, that is, not an ambulatory offence. S 49(1)(f) provides that a person is guilty of an offence if he or she within three hours after driving or being in charge of a motor vehicle furnishes a sample of breath for analysis and the result indicates that the prescribed concentration of alcohol or more than the same is present in his or her breath and that the concentration of alcohol indicated by the analysis to be 19 [2011] VSCA 257 20 Per Nettle JA (with whom the other members of the Court agreed) at paragraph 12 21 122 ACrimR 251: 34 MVR 164 -- 17 of 22 -- 18 present was not due solely to the consumption of alcohol after driving or being in charge of the motor vehicle. [84] This provision is clearly different to that under s 49(1)(e) which creates the offence for refusing to comply with a requirement under certain specified subsections of s 55. [85] The difference between s 49(1)(e) of the RSA and s 31 of the MQSHA is that s 49(1)(e) specifies the requirements under subsections of s 55 which must not be refused to be complied with, whereas s 31 of the Act does not specify which safety and health obligations must be discharged. The non-specification of the safety and health obligations in s 31 of the MQSHA do not in my view make any difference to the principle as espoused by Nettle JA in DPP v Kypri that it is an essential element of the offence to identify the particular breach. [86] The complainant argues that s 47(1) of the Justices Act 1886 (“JA”) supports the validity of the complaints here. That subsection provides:- “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.” [87] Pursuant to that section a complainant may describe the offence in the words of the Act or other similar words. In Perk v Industrial Court of New South Wales22 the High Court gathered together a number of authorities on whether or not provisions equivalent to s 47(1) of the JA did not dispense with the common law. It said23 in Smith v Moody24 that it did not dispense with the common law but that Jordan CJ in Ex-parte Lovell; Re Buckley25 doubted that earlier authority such as Smith v Moody should be regarded as binding and that the object of the rule could be secured only by the requirement of particulars on the face of the information. Dixon J in Johnson v Miller appeared to have applied the statutory common law rule and to have held that a statutory provision like (that in s 47(1) of the JA) “relates only to the nature of the offence and does not dispense with the necessity of specifying the time, place and manner of the defendant’s acts or omissions.” [88] In Newman v T J V Electrical Pty Ltd26 the President of the Industrial Court of Queensland found27 “The authorities lend support to the proposition that a complaint, which fails to identify the essential ingredients of the offence alleged, is incurably flawed. Such a complaint is incurably flawed because it fails to found the jurisdiction of the Court.” [89] In N K Collins Industries Pty Ltd v the President of the Industrial Court of Queensland and Anor28 Boddice J29 said “a defendant to any prosecution is entitled to be appraised, not only of the legal nature of the offence charged but also of the particular Act, matter or thing alleged as the foundation of the charge.” In that case 22 [2010] 239 CLR 531; [2010] HCA 1 23 Paragraph [29] 24 [1903] 1 KD 56 25 [1938] 38 SR(NSW) 153 26 C/2011/13- 25 July 2011 27 in paragraph 4 28 [2010] QSC 373 29 at paragraph 17 -- 18 of 22 -- 19 His Honour found that the complainant had correctly disclosed the legal elements of the offence and identified the essential factual ingredients of the offence. The complaint itself alleged that the defendant being a person on whom a workplace health and safety obligation prescribed by section 28(1) of the Workplace Health and Safety Act 1995 was imposed, did fail to discharge that obligation contrary to s 24 of the Act in that it failed to ensure the workplace health and safety was not affected by the conduct of the business or undertaking. The complaint went on to particularise the identity of the business or undertaking, the worker, the workplace, the source from which the risk emanated and so on. The allegation as to how the defendant failed to discharge the obligation which appeared in the N K Collins complaint does not appear in the complaints with which this application is concerned. [90] In Kypri30 Nettle JA found that because the section with which he was then dealing (s 49(1)(e)) operated in an ambulatory fashion creating offences by reference to contraventions of obligations otherwise appearing in the Act that it was inapt to speak of something as framed in terms “similar” to that section unless it specifically identifies the particular obligation which it is alleged to have been breached. His Honour went on to find that the Victorian equivalent of s 47(1) of the JA, perhaps for that reason, has no application in relation to ambulatory provisions like s 49(1)(e). Almaston J in Woolworths (Victoria) Ltd v March31 said “It can not have been intended that [the section] should be relied upon merely by the recitation of the words of the “offence” section for that would tell the defendant nothing.” I agree. [91] In Kypri Nettle JA32 went on to say “a charge is to be interpreted in the way in which a reasonable defendant would understand it, giving reasonable consideration to the words of the charge in their context.33 If, therefore the contents of the charge in the summons are sufficient when read as a whole to bring home to a reasonable defendant the essential elements of the offence alleged, the charge will not be invalid... Where, however, as here, the charge and summons do not allege sufficient facts to enable a reasonable defendant to determine ex facie the subsection of s 55 under which the requirement is alleged to have been uttered, the charge is defective because it fails to convey the nature of the offence alleged.” [92] The complainant argues that the particulars contained within the body of the original complaint were rich in particularity as to the circumstances in which the injury came to occur, identifying with precision the various deficiencies which existed with respect to the identified risk which existed and ultimately crystallised on the occasion of the injury to Mr Bertoni. [93] It is true to say that the complaints were rich in particularity as to the circumstances in which the injury came to occur however I disagree with the contention that the complaint and particulars identified with precision the various deficiencies which existed with respect to the identified risk. [94] In view of the foregoing I am of the view that each complaint is so deficient as to its legal and factual ingredients that it does not disclose an offence known to law. 30 at paragraph 15 31 Unreport Supreme Court of Victoria 12 June 1986 32 at paragraph 16 33 DPP Reference (No 2 of 2001) (2001) 4 VR 55 [40] -- 19 of 22 -- 20 Duplicity [95] The defendants argue that each instance of a breach of an obligation should be charged separately. S 43 of the JA prohibits charging more than one matter in a single complaint except in certain specified circumstances or where otherwise expressly provided and where two or more matters are joined in the one complaint each matter of the complaint shall be set out in a separate paragraph. [96] The exceptions allowing more than one matter to be contained in a complaint in cases other than in indictable offences are where the matters of the complaint are alleged to be constituted by the same act or omission or are alleged to be constituted by a series of acts or omissions done in the prosecution of a single purpose or are founded on substantially the same facts or are or form a part of a series of offences of the same or similar character. [97] S 234(2) of MQSHA provides:- “More than one contravention of a safety and health obligation under section 31 may be charged as a single charge if the acts or omissions giving rise to the claim to contravention happened within the same period and in relation to the same mine.” [98] In John Holland v Industrial Court (NSW)34 Spigelman CJ said “Section 31(1) is facultative and permits a course which common law principles of duplicity would not permit.” The s 31(1) referred to there by His Honour was that section of the Occupational Health and Safety Act 2000. It was in the following terms:- “1. More than one contravention of a provision of division 1 by a person that arise out of the same factual circumstances may be charged as a single offence or as separate offences. 2. This section does not authorise contraventions of two or more of those provisions to be charged as a single offence. 3. A single penalty only may be imposed in respect of more than one contravention of any such provision that is charged as a single offence.” [99] S 234(2) of the Act is expressed in the singular and refers to more than one contravention of a safety and health obligation. The complaints here against each defendant allege contravention of more than one safety and health obligation. In my view section 234(2) does not permit for more that one contravention of more than one safety and health obligations to be charged as a single charge. [100] In my view section 31 of the MQSHA, as it is also expressed in the singular, creates a separate offence for each contravention of each obligation. It does not create one offence for breaches of more than one obligation. Breaches of separate obligations can be committed in more than one way but here the complaint alleges breaches of separate and distinct obligations. [101] For these reasons I am of the view that the complaint against each of the defendants is duplicitous. Amendment 34 (2010) 202 IR 82 at para 71 -- 20 of 22 -- 21 [102] S 48 of the JA relevantly permits the amendment of a complaint if it appears to the Court that there is a defect therein in substance or form other than a non-compliance with the provisions of s 43 then if an objection is taken to the same the Court shall make an order for the amendment of the complaint as appears necessary or desirable in the interests of justice. [103] The complainant argues that the particulars35 set out each matter of complaint in separate paragraphs and there is therefore no breach of s 43(2) of the JA. I disagree. Each complaint should have alleged in a paragraph that the defendant breached S 31 of the MQSHA by contravening the obligation imposed upon it or him in s 36(1)(a) (for example) and then particularise the breach and then go on to the next paragraph and allege that the defendant breached s 31 MQSHA by contravening an obligation imposed upon it or him in s 36(1)(b) (for example) and then particularise that breach and so on. [104] As s 43(2) has not been complied with then there is no jurisdiction to amend the complaints36. [105] Even if I am wrong in finding non-compliance with s 43(2) I, in the exercise of my discretion, would not permit amendment of the complaint. My reasons for this are several. As the court may make an order for the amendment of the complaint as appears necessary or desirable in the interests of justice, the power to amend is discretionary. The discretion has to be exercised judicially. [106] I have already found the charges were charges of offences which were not known to law. The limitation period expired the day after the Complaints were made. If an amendment were now allowed (allowing the Complainant to charge the defendants with charges known to law) then this would result in an improper avoidance of the limitation period. Nettle JA in Kypri37 said “…it is not unfair so to defeat the limitation period where the defendant has been made to understand the true nature of the offence alleged before the limitation period expired.” Here whilst these defendants knew that they were being charged with an offence arising out of the injury suffered by Mr Bertoni, both from the complaints them selves made on 26 July 2010 and through the briefs of evidence which were delivered in September 2010 they were never made aware of the true nature of the offence(s) alleged against each of them. [107] A test to be applied is whether the offence sought to be charged by the amendment is one cognate to the offence in respect of which the amendment is sought.38 [108] Tate JA in Kypri39 said “The relevant question to ask is whether an amendment can cure the irregularity by clarifying the charge that had been laid without injustice to the defendant.” There His honour when on to examine a variety of reasons as to why amendments can be made while avoiding injustice, with one being where there “has never been any doubt about the criminal conduct with which the appellant was charged. The offence would remain the same notwithstanding the amendment” There, as in this case, one would not be able to ask the question “Is it the same 35 In para 8 in MIM complaint and in para 9 in the Mansell and Hendry complaints 36 See Theiss Pty Ltd v President of the Industrial Court & Anor [2011] QSC 294 per Applegarth J at [35] 37 At paragraph 37 38 Fox v Chiu, Ex-parte Fox 1978 QDR 88 at 90 39 At paragraph 68 -- 21 of 22 -- 22 offence pre and post amendment?” due to the uncertainty or ambiguity in the original charges. [109] Tate JA, again in Kypri40 said Another reason for concluding that no injustice would flow from the grant of an amendment is where the details of the charge, albeit defective, are nevertheless sufficient to disclose the nature of the offence alleged.” There the example was given of an amendment being granted to a charge alleging contravention of a certain regulation which was repealed and replaced by other regulations prohibiting the same conduct. Here the details of the charge have always been insufficient to disclose the nature of the offence alleged. [110] Tate JA, again in Kypri41 said “A third reason is where there are errors in the identification of the relevant statutory provision but the errors are obvious and the intended meaning plain.” There the example was given of an amendment being granted to a charge which contained a mistaken reference to s 51(1) RSA rather then s 55(1) RSA but the wording of the charge sufficiently conveyed what was being alleged. This is not the case here. [111] I am of the opinion that to allow an amendment would not be either necessary in the interests of justice nor would it be desirable in the interests of justice. [112] The complaint against each defendant is dismissed. 40 At paragraph 70 41 At paragraph 72 -- 22 of 22 --