The future of workplace health and safety prosecutions in Queensland is in limbo after a recent case held the complaint form used by the Workplace Health and Safety Prosecutor provides insufficient detail to enable the defendant to defend the matter and therefore fails to invoke the jurisdiction of the Court.
In the case of Guilfoyle v Niepe Constructions Pty Ltd, the Court impactfully decided that pleadings that leave defendants ‘in the dark’ can be nullified, even after the defendant has already been charged.
This case raises concerns about the future and validity of cases prosecuted in a similar manner.
In September 2020, Niepe Constructions Pty Ltd was charged for failing to comply with its duty to ensure the health and safety of its workers and other persons under the Work Health and Safety Act 2011 (WHS Act). Eight months later, these charges were struck out due to insufficient information contained in the Work Health and Safety Prosecutor’s complaint.
Where did everything go wrong, and what does this mean moving forward?
The general rule is that defendants are entitled to be told about both the legal elements of an offence and the factual particulars, which includes the act, matter or thing alleged to have occurred and the grounds for the charge.
The complaint filed against Niepe, which followed the standard Office of the Workplace Health and Safety Prosecutor form, only set out the legal elements of the offence by restating the language from the WHS Act. Apart from mentioning the date and place of the incident, the complaint did not contain factual particulars about the alleged breach, describe Niepe’s act or omission that allegedly resulted in its breach, or even name the person who was exposed to the risk as a result of Niepe’s alleged conduct. Instead, a separate document entitled ‘statement of facts and particulars’ was served on Niepe, but not filed in Court. Questions were raised about whether the Prosecutor’s practice complied with the general rule, being, if legal and factual information is not given to the defendant, will the Prosecutor’s complaint be void?
Niepe argued that the complaint was void because it did not contain the necessary factual particulars. The Prosecutor disagreed with this, arguing that the statement of facts and particulars served on Niepe at the same time as the complaint was sufficient.
Niepe argued that merely setting out the legal elements of the offence without providing factual particulars about the alleged breach constituted a ‘major defect’, therefore rendering the complaint void.
In contrast, the Prosecutor argued that the complaint was not void merely because of a failure to provide factual particulars in the complaint. Instead, it argued that factual particulars can be provided to the defendant by giving them a separate document containing a ‘statement of facts and particulars’, or alternatively, by amending the complaint at a later time.
Niepe disagreed and submitted that the deficiencies in the complaint meant that the Magistrates Court did not have jurisdiction to hear the case. Unsurprisingly, the Prosecutor argued that the Magistrates Court did have jurisdiction since the legal elements of the offence were pleaded in the complaint.
Consideration of these arguments
The Court considered two issues:
- Was the complaint void?
- Could the complaint be saved by allowing it to be amended?
Was the complaint void?
The Court identified that, instead of setting out the circumstances of the breach in the complaint followed by detailed allegations, the Prosecutor provided Niepe with a separate document containing the facts and particulars. This meant that no ‘essential factual ingredients’ were pleaded, except for the date and place of the incident. The complaint did not give Niepe any guidance about what the alleged contravention actually consisted of.
The Court considered that a missing element in a complaint is not necessarily fatal because an amendment could be made to clarify what was already apparent from the face of the complaint. However, the same could not be said about the complaint against Niepe since it contained no particulars, and therefore, the true nature of the offence was not clear on the face of the complaint. The Court went on to say that Niepe was ‘left completely in the dark’.
The Court concluded that there were major defects on the face of the complaint. These could not be saved by the Prosecutor providing particulars in a separate document. The complaint would be void unless it could be saved by amendment.
Could the complaint be saved by allowing it to be amended?
The power to amend a complaint is found in the Justices Act 1886. If there is a defect in the substance or form of the complaint, an order may be made allowing the complaint to be amended if this would be in the interests of justice.
However, a court will not have jurisdiction to allow an amendment if a complaint discloses no offence.
The complaint against Niepe lacked sufficient particulars to explain the factual nature of the case. As a result, the complaint was so defective that it was incapable of amendment.
The complaint was deemed nullified ab initio, which means that the complaint is treated as though it never existed in the first place. The failure to provide factual particulars in the complaint rendered it so defective that it could not be saved by allowing it to be amended.
This raises concerns about other cases the Prosecutor has won without setting out factual particulars in the complaint. Are these cases still valid? Will this open the floodgates to more prosecutions being struck out? It is a possibility, but at this time, we simply do not know.
The Prosecutor has indicated that it will be appealing the Niepe decision in the Queensland District Court. Until then, it is likely that most WHS prosecutions on foot at the time of the decision will be adjourned until a final decision is reached. Watch this space.