INDUSTRIAL COURT OF QUEENSLAND
CITATION:
Schloss v Bell; Bell v Schloss [2015] ICQ 36
PARTIES:
Schloss, Dennis William
(Appellant)
v
Stewart Lynn Bell, Commissioner under the
Petroleum and Gas (Production and Safety)
Act 2004
(Respondent)
CASE NO:
PARTIES:
CASE NO:
C/2014/43
Stewart Lynn Bell, Commissioner under the
Petroleum and Gas (Production and Safety)
Act 2004
v
Schloss, Dennis William
(Appellant)
C/2014/44
PROCEEDING:
Appeal against decision of Industrial
Magistrate
DELIVERED ON:
24 December 2015
HEARING DATE:
30 January 2015
MEMBER:
Deputy President O'Connor
ORDERS:
1. In matter C/2014/43:
(i) the appeal is allowed;
(ii) the guilty verdict is set aside; and
(iii) the complaint is dismissed.
2. In matter C/2014/44 the appeal is
dismissed.
CATCHWORDS: INDUSTRIAL MAGISTRATES - APPEAL
AGAINST A DECISION OF THE
INDUSTRIAL MAGISTRATE -
PARTICULARS - SUFFICIENCY OF
REASONS - Where a worker suffered injuries
following an incident at a coal seam gas well -
2
Where the defendant was issued with a
complaint and summons in relation to safety
matters under the Petroleum and Gas
(Production and Safety) Act 2004 - Where the
complaint was accompanied by particulars –
Where, in respect of the description of
‘operating plant’, the learned Industrial
Magistrate determined a description not
contained within the complaint or
particularised by the prosecution - Whether
power to amend the complaint under s 48 of the
Justices Act 1886 was enlivened - Whether the
learned Industrial Magistrate impliedly
amended the complaint - Whether the learned
Industrial Magistrate ought to have dismissed
the complaint, the prosecution having failed to
prove essential elements of the offence -
Whether there was a valid Safety Management
Plan in operation - Whether a Job Hazard
Anaylsis was required to be carried out -
Whether a learned Industrial Magistrate erred
in failing to give adequate reasons - Whether
the learned Industrial Magistrate erred in
finding the offence proven - Whether the
learned Industrial Magistrate erred in not
considering defences - Appeal allowed -
Complaint dismissed - Cross-appeal
dismissed.
CASES: Industrial Relations Act 1999, ss 677, 683
Justices Act 1886, ss 43, 47, 48, 49, 158A
Petroleum and Gas (Production and Safety)
Act 2004, ss 670, 673, 674, 699, 702, 732A,
837
Beale v Government Insurance Office of NSW
(1997) 48 NSWLR 430
Bell v Hendry & Ors [2014] ICQ 18
Bell v Schloss [2014] QMC 023
Dare v Pulham (1982) 148 CLR 658
Drew v Makita (Australia) Pty Ltd [2009] 2 Qd
R 219
DPP(Vic) v Kypri (2011) 33 VR 157
Felix v Smeron (1944) 19 ALJ 30
GPI (General) Pty Ltd v Industrial Court of
New South Wales (2011) 207 IR 93
Mbuzi v Torcetti [2008] QCA 231
Parhusip v Bell; Bell v Parhusip [2015] ICQ
025
Pettit v Dunkly [1971] 1NSWLR 376
3
Qld Independent Education Union of
Employees v Local Govt Association of Qld Ltd
[2015] ICQ 003
Q-COMP v Mana (C/2011/48) - Decision
<http://www.qirc.qld.gov.au>
R v Juraszco [1967] Qd R 128
Soulemezis v Dudley (Holdings) Pty Ltd (1987)
Strbak v Newton [1989] NSWCA 202
Surman (1996) 85 A Crim R 361
Svenson v Q-Comp (2006) 181 QGIG 629
APPEARANCES: Mr P.J. Roney QC, Counsel instructed by
Ashurst Australia for the appellant and cross-
respondent.
Mr A.J. MacSporran QC, Counsel instructed
by Crown Law for the respondent and cross-
appellant.
Decision
[1] In March 2012, a complaint was issued by Mr Stewart Lyn Bell ("the respondent")
under the Justices Act 1886 alleging two counts of breaches of the Petroleum and Gas
(Production and Safety) Act 2004 ("the PG Act") against Mr Dennis Schloss ("the
appellant").
[2] A new complaint was sworn and issued on or about 20 July 2012. That complaint
made allegations of breaches of ss 699 and 702 of the PG Act.
[3] On 11 March 2013, the Prosecution indicated that the respondent would proceed
against the appellant in respect of count 2 only, namely that brought under s 702 of
the PG Act.
[4] The appellant was charged and convicted in the Industrial Magistrates Court at
Taroom of an offence against s 702 of the PG Act in that:
"On 16 March 2011, at an operating plant, namely, Santos Scotia well #22,
Petroleum Lease PL 176, approximately 30kms from Wandoan in the Dalby
Magistrates Court District in the State of Queensland, DENNIS WILLIAM
SCHLOSS, a person at an operating plant, failed to comply with safety
procedures and other obligations under the safety management plan for the plant
to the extent the procedures and obligations applied to DENNIS WILLIAM
SCHLOSS in contravention of s.702 of the Petroleum and Gas (Production
and Safety) Act 2004 and the contravention caused bodily harm to Gavin
Vieritz."
Particulars
[5] The original particulars of the offence were partially replaced by those which became
exhibit 6 and exhibit 57 as follows:
4
"Particulars
That at the place and time abovementioned:
1. Santos QNT Pty Ltd is a tenant in common with Vamgas Pty Ltd for
Petroleum Lease PL 176 and Santos QNT Pty Ltd was the principal holder
of that Petroleum Lease.
2. Santos Limited is the ultimate holding company for Santos QNT Pty Ltd.
3. Petroleum Lease PL 176 was an operating plant within the meaning of
s.670 of the Petroleum & Gas (Production & Safety) Act 2004.
4. The standard operating procedures for Santos Ltd were contained in a
document labelled "Santos Safety Management Plan Eastern Queensland
Gas". (SMP)
5. The SMP for Santos Ltd was issued on 30 June 2005.
6. The SMP provided that where there was no standard procedure for
maintenance and repair, a Job Hazard Analysis (JHA) was required to be
completed prior to work commencing.
7. Dennis William Schloss and Gavin Vieritz were employees of Santos Ltd
at the relevant time.
8. On 16 March 2011, Gavin Vieritz was on site at Santos Scotia well #22.
He commenced work on the mobile coal seam gas separator unit without
completing any safety documentation including either a Work Permit or a
JHA which are required under the SMP.
9. Dennis William Schloss was aware or should have been aware that Gavin
Vieritz was performing maintenance to the mobile coal seam gas separator
unit at Santos Scotia Wellhead #22 and that there was no standard
procedure for the task that Gavin Vieritz was performing.
10. Gavin Vieritz was dismantling the gas regulator, a component of the
separator unit, when it separated with force causing injury.
Particulars provided 5 June 2014
1. The Safety Management Plan (SMP) for the plant (PL 176) required a
JHA to be carried out prior to the commencement of the work undertaken
by Mr Vieritz on the mobile separator.
Reference
SMP, s 7;
EHSMS 09-1, 4.2, 4.25;
EHSMS 09.1 - 1, 2, 4.2.1, 4.2.2 (plus flowchart and Appendix C JHA
Guideline);
EHSMS 11.8 - 1.1, 1.2, 3.2.1(a);
5
Work Permit Procedure (WPP) – 1.1, 1.2, 5.2, 3.5.
2. The defendant had an obligation under the terms of the SMP to ensure that
a JHA was considered and undertaken by Mr Vieritz in that he was
required:
(i) to ensure that Mr Veiritz considered whether a JHA should be
conducted (WPP 5.2); and/or
(ii)(i) To nominate a team leader for the performance of the JHA
(EHSMS 09.1 at 4.2.3); and/or
(iii)(ii) To approve the content of the JHA prior to the work
commencing (EHSMS 09.1 at 4.2.5, 6).
3. The failure by the Defendant to comply with the obligations referred to in
2 above, caused the injury to Mr Vieritz amounting to bodily harm in that:
(i) The JHA was required to consider, identify, assess and control EHS
risks for the work to be undertaken by Mr Vieritz (EHSMS 09.1) at
1);
(ii) One of the safety precautions required to be considered for cold
work such as Mr Vieritz proposed to undertake, was isolation from
process operations (WPP 3.6, 7, 7.1, 7.2, 7.2.1, 7.2.2, 7.3, 7.3.2,
7.4, 7.4.3, 7.5, 7.6, 7.6.4, 7.6.7, 7.7, and Module 50 – Equipment
Isolations – 1, 1.1, 1.2, 1.3(i), 1.4, 2, 2.2, 3, 3.1, 3.2, 3.3, 3.4, 3.5,
3.7(i), 4, 4.1, 4.2, 6, 6.1);
(iii) Compliance with such procedures referred to at (i), (ii) and (iii)
above would have prevented the incident occurring and hence
have prevented the injury to Mr Vieritz."
[6] It is common ground that the operator from 2008 until the incident was Santos QNT
Pty Ltd.
The appeal by Dennis William Schloss
[7] Mr Schloss appeals against the conviction by the Industrial Magistrate of an offence
under s 702 of the PG Act. The grounds of appeal are:
"1. The learned Magistrate erred in finding that as a matter of law, on the evidence
before her, an offence under s.702 of the Petroleum and Gas (Production and
Safety) Act 2004 (Qld) ("P&G Act") was proven.
2. The learned Magistrate erred in her construction of the effect of s.702 of the
P&G Act in that:
a) she failed to identify any basis for, and failed to provide an explanation in
her reasons for, concluding that the Appellant was a person at an operating
plant within the meaning of that term in s.702 at the time of the alleged
offence;
6
b) she failed to identify any basis for, and failed to provide an explanation in
her reasons for, concluding that there were safety procedures and other
obligations under the safety management plan ("SMP") for that plant,
which was a precondition to the operation of s.702; and
c) she failed to identify any basis for, and failed to provide an explanation in
her reasons for, concluding that such safety and other obligations that
existed for that plant (to the extent that it was plant) applied to the
Appellant, which was a precondition to the operation of s.702.
3. The learned Magistrate erred in law in concluding that all well heads and other
infrastructure were operating plant for the purposes set out in s.670(2)(a) of the
P&G Act.
4. The learned Magistrate erred in finding that the Appellant was at operating plant
and that that was where the alleged offence had been committed, and also failed
to make the findings required under s.702 to establish the commission of an
offence under that section.
5. The learned Magistrate erred in failing to dismiss the charge notwithstanding
that:
a) the Prosecution case was that the relevant operating plant, at which the
Appellant was alleged to have been present when the relevant incident
occurred on 16 March 2011, was the Petroleum Lease PL 176; and
b) the Magistrate accepted that Petroleum Lease PL 176 was not operating
plant and that therefore the Prosecution case was not made out.
6. The learned Magistrate erred in:
a) failing to identify and specify in her reasons the basis for her conclusion
that the operating plant which the Appellant was present, namely 'the
tenure holder's offices, the processing sheds or other well heads' was
operating plant for the purposes of the P&G Act;
b) concluding that 'the tenure holder's offices, the processing sheds or other
well heads', which she found was the place where the Appellant was
present at the time of the offence, was operating plant within the meaning
of s.702 of the P&G Act;
c) concluding that there was evidence that the Appellant was present at that
operating plant at the time of the relevant offence, whereas there was no
evidence or no sufficient evidence to sustain that finding. In that context,
the learned Magistrate identified that there was no contention by either
7
party that the Appellant was at the operating plant in respect of which she
concluded he committed the offence; and
d) failing to hold that there was no evidence that demonstrated that the
Appellant was at that operating plant, or that where he was at any given
time on the day in question when the offence was allegedly committed
was operating plant within the meaning of that term in s.702 of the P&G
Act.
7. The learned Magistrate erred in finding the offence proven notwithstanding that
she did so on a bases (sic) other than that which was alleged in the Complaint,
as particularised.
8. The learned Magistrate erred in failing to make findings in respect of, or to
identify in what respects the SMP imposed any obligation on the Appellant in
accordance with, the Complaint as particularised, and:
a) concluded, contrary to the particularised case, that he had an obligation to
ensure that a Job Hazard Analysis ("JHA") was 'carried out' at that site on
that day by him;
b) failed to make any specific findings as to what the SMP required of him
in that regard by reference to the particularised case; and
c) ought have held that, properly construed, the SMP did not require that he
ensure that a JHA was carried out nor to do the things which under the
particularised case was alleged that he was required to do but did not do,
ie, to nominate a team leader for the performance of a JHA or to approve
the content of a JHA prior to the week commencing on that day.
9. The learned Magistrate erred in failing to find that, on their proper construction,
the documents that she concluded comprised the SMP did not require the
Appellant to ensure that a JHA was carried on and further did not require him
to nominate a team leader for the performance of a JHA or to approve the
content of a JHA prior to the work commencing on that day, which were
obligations which the Prosecution alleged were imposed upon him.
10. The learned Magistrate erred in concluding that the SMP required a JHA to be
carried out prior to the commencement of work undertaken by a worker on a
mobile separator that day and further did so improperly, based upon an
erroneous construction of the documents in the SMP and by reference to
impermissible opinion evidence about the level of risk or danger associated with
working with pressurised case. In that context:
a) she failed to give proper effect to the clear language of the SMP
documents;
8
b) she failed to conclude that any obligation for the performance of a JHA
was excluded because of the character of the work and the specific
training, knowledge and skills of the worker; and
c) alternatively, the learned Magistrate ought, to the extent that there was
any ambiguity in the SMP documents as to whether a JHA was required,
have construed the documents so as to give the Appellant the benefit of
the doubt as to whether any such obligation arose.
11. The learned Magistrate erred in concluding that an offence under s.702 was
made out in relation to the obligation upon the Appellant, as one that arose under
the SMP for the plant, despite concluding that the operator of the operating plant
or of the Petroleum Lease had not created or adopted the SMP.
12. The learned Magistrate erred in law in not concluding that since the operator
had not issued the SMP, its provisions did not operate to establish 'safety
procedures and other obligations under the safety management plan' for the
plant and further, that they did not 'apply' to the Appellant within the meaning
of s.702 of the P&G Act.
13. The learned Magistrate failed to provide reasons for her conclusional statement
that the SMP imposed specified obligations on the Appellant, and was the SMP
for the plant at which he was present according to her findings.
14. The learned Magistrate erred in concluding that the defences which were raised
under s.732A of the P&G Act were not made out because the Appellant did not
call evidence to prove the matters required by that section, and she therefore
failed to consider the evidence that was otherwise before her which was capable
of establishing that those defences were made out.
15. The learned Magistrate erred in failing to hold that the offence was not proven
beyond a reasonable doubt and in therefore failing to acquit the Appellant, and
to award him costs under s.158A of the Justices Act and on a basis other than
set out in the Scale of Costs in the Justices Regulation (as particularised in tables
of costs previously provided to the Respondent on 12 September 2014).
The decision sought is;
1. For an order setting aside the Industrial Magistrate's verdict.
2. For an order that the charge against the Appellant be dismissed with costs
of the Trial.
3. That the Respondent pay the costs of the Appeal."
The appeal by Stewart Lyn Bell
[8] "The grounds of appeal are:
9
a) The Industrial Magistrate erred in her determination that the Defendant's
breach of s.702 of the Petroleum and Gas (Production and Safety) Act
2004 did not cause bodily harm to Gavin James Vieritz.
The decision sought is:
a) The decision of the Industrial Magistrate of 12 September 2014 in respect
of the finding of causation be set aside and a decision to find that bodily
was caused by a breach of s.702 of the Petroleum and Gas (Production
and Safety) Act 2004 by the Respondent be substituted;
b) The matter be relisted for sentence before the Industrial Magistrate."
The relevant legislation
[9] The appellant was charged with breaching s 702 of the PG Act. At the relevant time
the section provided:
"702 Requirements to comply with safety management plan
A person at an operating plant must comply with safety procedures and other
obligations under the safety management plan for the plant to the extent the
procedures and obligations apply to the person."
[10] The PG Act imposes obligations on various persons engaged in the production of
petroleum or fuel gas. In Chapter 9 Part 2 of the PG Act, provisions relating to the
creation of safety management plans are set out. Section 670 provides a definition of
"operating plant" in the following way:
"(2) An operating plant is any of the following—
(a) a facility used to explore for, produce or process petroleum,
including machinery used for completing, maintaining,
repairing, converting or decommissioning a petroleum well;
Example of machinery used for maintaining or repairing a
petroleum well—
machinery known in the petroleum and gas industry as
a work over rig
(b) a facility that—
(i) is related to the exploration, production or processing of
petroleum; and
(ii) is used to take, interfere with or treat associated water
and any petroleum incidentally collected with the water;
(c) a petroleum facility;
(d) a pipeline authorised under a petroleum authority;
10
(e) a distribution pipeline;
(f) a distribution system;
(g) a bulk fuel gas storage facility;
(h) a facility that is in the area of a geothermal tenure and is used
for—
(i) geothermal exploration other than for wet geothermal
production; or
(ii) geothermal production other than wet geothermal
production;
Examples—
the following facilities if they are not used for wet
geothermal production—
• a drilling rig for a geothermal well
• equipment used for injecting into, maintaining or
repairing a geothermal well
• pipes and associated valves used in the geothermal
production process
(i) a facility that is in the area of a GHG authority and is—
(i) used for GHG storage exploration or GHG stream
storage; or
(ii) involved in GHG storage injection testing;
(j) a GHG stream pipeline under the GHG storage Act.
…
(5) An operating plant is also a place, or a part of a place, at which a
following activity is carried out, but only to the extent of the
carrying out of the activity—
(a) an LPG delivery network prescribed under a regulation;
(b) tanker delivery of bulk fuel gas;
(c) cylinder storage at premises prescribed under a regulation;
(d) an authorised activity under an authority if the activity is a
geophysical survey for data acquisition;
(da) an underground gasification activity;
(e) another activity prescribed under a regulation and associated
with the delivery, storage, transport, treatment or use of
petroleum or fuel gas.
(6) Also, an operating plant includes -
11
(a) any part of the area of a petroleum tenure or 1923 Act petroleum
tenure on which an operating plant under subsections (2) and (5)
happens or is located as an authorised activity for the tenure; and
…"
[11] The operator of an operating plant is referred to in s 673:
"673 Who is the operator of an operating plant
(1) This section provides for who is the operator of an operating plant.
(2) For a coal mining-CSG operating plant, the operator is the relevant
site senior executive under the Coal Mining Safety and Health Act.
(3) Otherwise, the operator is the person who has the role of being
responsible for the management and safe operation of the plant.
(4) For subsection (3), the operator does not include a person who in
relation to the plant is subject to the control of another person who
has the role of being responsible for the management and safe
operation of the plant.
Examples for subsections (3) and (4)—
1 The operator of a drilling rig is the operations manager or
another senior officer of the drilling company that is operating
the drilling rig and not the person employed as the driller or rig
manager.
2 The operator of a tanker delivery bulk LPG business is the
manager of the delivery operation and not the person employed
as the tanker driver."
[12] Section 674 of the PG Act provides:
"674 Requirement to have safety management plan
(1) The operator of an operating plant must—
(a) for each stage of the plant, make a safety management plan that
complies with—
(i) section 675; and
(ii) if the plant is used to explore for, extract, produce or release
petroleum within coal seams—section 388, subject to any
exemption given under section 389; and
(b) implement and maintain the plan.
Maximum penalty—1500 penalty units.
(2) The operator of an operating plant must not begin a stage of the plant
unless—
(a) the operator has made a safety management plan that applies to the
stage; and
(b) the plan complies with section 675; and
12
(c) if the plant is used to explore for, extract, produce or release
petroleum within coal seams—the plan complies with section 388,
subject to any exemption given under section 389.
Maximum penalty—1000 penalty units.
(3) A safety management plan may apply to more than 1 operating plant.
(4) However, the plan must still comply with section 675 in relation to each
operating plant to which the plan applies.
Note—
For coal mining-CSG operating plant, see division 4 (Special provisions
for safety management plans for coal mining-CSG operating plant).
(5) Also, if section 705 applies for an operating plant, the safety management
plan must include a principal hazard management plan."
[13] The content requirements for safety management plans are set out in s 675 and, so far
as this complaint is concerned, the relevant detail is in s 675(1)(i):
"(1) A safety management plan for an operating plant must include
details of each of the following to the extent they are appropriate for
the plant—
…
(i) safety standards and standard operating and maintenance
procedures applied, or to be applied, in each stage of the plant;
…"
[14] Chapter 13 Part 2 of the PG Act relates to offence proceedings. Section 837 provides:
"837 Offences under Act are summary
(1) An offence against this Act is a summary offence.
(2) A proceeding for an offence against a provision of chapter 9, part 2,
4 or 6—
(a) must be brought before an industrial magistrate; and
(b) can be started only by complaint of the commissioner.
(3) The Industrial Relations Act 1999 applies to a proceeding
mentioned in subsection (2).
Note—
For appeals from the industrial magistrate’s decision, see the
Industrial Relations Act 1999, section 341.
(4) A proceeding for an offence against this Act must start within the
later of the following periods to end—
(a) 1 year after the commission of the offence;
13
(b) 6 months after the offence comes to the complainant’s
knowledge, but within 2 years after the commission of the
offence;
(c) if the offence involves a breach of an obligation causing death
and the death is investigated by a coroner under the Coroners
Act 2003—2 years after the coroner makes a finding in
relation to the death."
[15] While s 837(3) refers to the application of the Industrial Relations Act 1999 ("the IR
Act") to a proceeding such as the one in the complaint in this case, the proceeding is
still to be dealt with pursuant to the Justices Act 1886 ("the Justices Act"). Section
683 of the IR Act provides:
"683 Offence proceedings generally
(1) Proceedings for an offence under this Act are to be heard and
decided by the court or a magistrate, within the limits of the court's
or magistrate's jurisdiction.
(2) Proceedings before a magistrate are to be heard and decided
summarily under the Justices Act 1886, but the Industrial
Magistrates Court where the proceedings are taken is to be
constituted by a magistrate sitting alone.
…"
[16] That s 683 applies to the complaint in this case is made clear by s 677 of the IR Act.
It provides:
"677 General application of jurisdictional provisions
The provisions of this Act providing for the powers of and procedures
before the court, the commission or an Industrial Magistrates Court apply
in relation to the jurisdiction of the court, the commission or an Industrial
Magistrates Court under this or another Act, unless the contrary intention
appears."
[17] Section 683(2) of the IR Act does provide to the contrary and requires that an
Industrial Magistrates Court is to be constituted by a magistrate sitting alone.
[18] Section 42 of the Justices Act relevantly requires that all proceedings under the
Justices Act are to be commenced by a complaint in writing. Section 43 provides:
"43 Matter of complaint
(1) Every complaint shall be for 1 matter only, and not for 2 or more
matters, except—
(a) in the case of indictable offences—if the matters of complaint
are such that they may be charged in 1 indictment; or
(b) in cases other than cases of indictable offences—if the matters
of complaint—
14
(i) are alleged to be constituted by the same act or omission
on the part of the defendant; or
(ii) are alleged to be constituted by a series of acts done or
omitted to be done in the prosecution of a single
purpose; or
(iii) are founded on substantially the same facts; or
(iv) are, or form part of, a series of offences or matters of
complaint of the same or a similar character; or
(c) when otherwise expressly provided.
(2) When 2 or more matters of complaint are joined in the 1 complaint
each matter of complaint shall be set out in a separate paragraph.
(3) At the hearing of a complaint in which 2 or more matters of
complaint have been joined but which does not comply with the
provisions of this section—
(a) if an objection is taken to the complaint on the ground of such
noncompliance—the court shall require the complainant to
choose 1 matter of complaint on which to proceed at that
hearing; or
(b) if no such objection is taken to the complaint—the court may
proceed with the hearing and may determine the matters of
complaint, and may convict or acquit the defendant in
accordance with such determination.
(4) If, at the hearing of a complaint, it appears to the court that a
defendant may be prejudiced or embarrassed in the defendant's
defence because the complaint contains more than 1 matter of
complaint or that for any other reason it is desirable that 1 or more
matters of complaint should be heard separately, the court may order
that such 1 or more matters of complaint be heard separately."
[19] Section 47 refers to the "sufficient description of [an] offence":
"(1) 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.
…"
[20] A complaint may be amended in accordance with s 48:
"48 Amendment of complaint
If at the hearing of a complaint, it appears to the justices that—
(a) there is a defect therein, in substance or in form, other than a
noncompliance with the provisions of section 43; or
(b) there is a defect in any summons or warrant to apprehend a
defendant issued upon such complaint; or
15
(c) there is a variance between such complaint, summons or warrant and
the evidence adduced at the hearing in support thereof;
then—
(d) if an objection is taken for any such defect or variance—the justices
shall; or
(e) if no such objection is taken—the justices may;
make such order for the amendment of the complaint, summons or warrant
as appears to them to be necessary or desirable in the interests of justice."
[21] A "hearing" is not defined in the Justices Act – apart from s 4 where it is provided that
a "hearing" includes an examination of witnesses in relation to an indictable offence.
[22] Section 49 provides for adjournment of a hearing in certain circumstances:
"49 Amendment
If in making an order for the amendment of a complaint summons or
warrant the justices consider that the defendant has been misled by the
form in which the complaint summons or warrant has been made out or if
it appears to them that the variance between the complaint summons or
warrant and the evidence adduced at the hearing in support thereof is such
that the defendant has been thereby deceived or misled, they may, and at
the request of the defendant shall, upon such terms as they think fit,
adjourn the hearing of the case to some future day, and in the meantime
may commit the defendant, or whether or not the defendant is in custody,
may grant the defendant bail or may suffer the defendant to go at large
without bail."
The Complaint
[23] The elements of the offence are as follows:
(a) on 16 March 2011, at an operating plant namely PL 176;
(b) the defendant (Schloss), a person at an operating plant;
(c) failed to comply with safety procedures and other obligations under the
safety management plan for the plant; and
(d) to the extent the procedures applied to the defendant.
[24] The requirements for a valid complaint under the Justices Act was considered by
Martin J in Bell v Hendry1:
"[32] The requirements for a valid complaint are to be determined, first,
by reference to the relevant provisions of the Act and the Justices
Act. Secondly, the complaint must be considered against the
background of the common law requirements and the constructions
the courts have given to the relevant provisions or their counterparts
in other jurisdictions.
1 Bell v Hendry & Ors [2014] ICQ 18.
16
[33] The Justices Act does not descend to great detail in setting out the
requirements for a complaint.
[34] Section 42 requires, among other things, that a complaint be in
writing.
[37] The common law requirements for a valid complaint were
considered in Kirk v Industrial Court of New South Wales and the
following were identified:
(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) An information (complaint) must specify 'the time, place and
manner of the defendant’s acts or omissions'.
[38] Another factor which should be taken into account when assessing
the competence of a complaint is the requirement that it contain
sufficient identification of the acts or omissions the subject of the
charge as to allow a defendant to rely upon any defence available
under the relevant statute." (Citations omitted)
[25] The complaint alleges that the failure to comply with the obligations under the safety
management plan for the plant caused bodily harm to Mr Vieritz. Section 732 of the
PG Act requires that this circumstance in the complaint is to be alleged and proved.
[26] Mr Gavin Vieritz, an operator/maintainer employed by Santos Ltd was injured in the
course of undertaking maintenance work on a mobile separator, when a back pressure
valve "… separated forcefully and without warning striking him in the face and
head."2
[27] The incident occurred at Scotia Well Number 22 located within the area of PL 176.
PL 176 is a 1923 Act petroleum tenure.3
[28] The prosecution originally particularised the "operating plant" as "Santos Scotia well
# 22" but later amended it to "Petroleum Lease PL 176".
[29] Section 670 (6) specifically provides:
"Also, an operating plant includes-
2 Bell v Schloss [2014] QMC 023 at [1]. 3 Exhibit 5.
17
(a) any part of the area of a petroleum tenure or 1923 Act petroleum tenure
on which an operating plant under subsections (2) to (5) happens or is
located has an authorized activity for the tenure: …"
[30] The prosecution's case as to what constituted the operating plant was rejected by the
learned Magistrate concluding that it was neither the petroleum lease, PL 176 or the
Scotia Well #22.
[31] The particulars of the "operating plant" the subject of the allegations state "Petroleum
Lease PL 176 was an operating plant within the meaning of s 670 of the Petroleum &
Gas (Production & Safety) Act 2004."
[32] Her Honour in determining the meaning to be given to "operating plant" in the
complaint concluded:
"[35] On a strict interpretation of the section, I find the meaning of 'operating plant'
as it applies to a petroleum tenure, as is the case here, includes those parts of the
tenure or lease which are used to 'explore for, produce or process petroleum,
including machinery used for maintaining or repairing a petroleum well'. In
other words, the operating plant for the purposes of this prosecution, includes
all well heads and other infrastructure constructed by the tenure holders for the
purposes set out in Section 670(2)(a).
[36] The prosecution originally alleged in the Complaint and Summons that Well
Number 22 was the operating plant, this being later amended to allege that the
Petroleum Lease PL176 was the operating plant. Neither of these contentions
is correct. Well Number 22 is 'part of the area of (the) petroleum tenure'. It is
my view that the failure by the prosecution to properly describe the 'operating
plant' in the Complaint and Summons is not fatal to the prosecution. There is
no doubt that the defendant was aware of the place where the alleged offence
had been committed and has not suffered any prejudice by the misdescription.
[37] There is no contention that the defendant was at the 'operating plant' being part
of the plant at which the tenure holder's offices, the processing sheds or other
well heads were situated. The defendant therefore being a person who was
present at the 'operating plant' on the day in question and on whom obligations
were placed due to his position, was required to 'comply with safety procedures
and other obligations under the safety management plan for the plant to the
extent the procedures and obligations' applied to him."
[33] Neither the appellant nor the respondent seek to disturb the above findings.
[34] It is not, with respect, sufficient for her Honour to conclude: "… that the defendant
was aware of the place where the alleged offence had been committed and has not
suffered any prejudice by the misdescription."
[35] It is unclear as to how her Honour has reached her conclusion. It cannot be assumed
that her Honour's conclusion is based on the belief that the complaint identifies the
"operating plant". Nor can it be assumed that the particulars which accompanied the
complaint refer to the "operating plant" as "…being part of the plant at which the
tenure holder's offices, the processing sheds or other well heads were situated", as
18
they do not. Any reasonable reading of the complaint and particulars could not lead
to any such a conclusion.
[36] As Nettle JA said in DPP(Vic) v Kypri4:
"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."5
Amendment of the Complaint
[37] Her Honour sentenced Mr Schloss and released her written reasons for decision on
12 September 2014. In the transcript of proceedings, the following exchange between
Mr MacSporran QC counsel for the respondent took place:
"MR MACSPORRAN: Now, one final matter. This is just a matter of an
abundance of caution. Can I take your Hour to page 7 of your decision, para
36.
BENCH: Yes. Yes.
MR MACSPORRAN: This is the question of the Prosecution's description of
the operator of the plant being incorrect. And you refer to what - based on which
the Prosecution contended that the operating plant was. It became, as you,
remember, PL176.
BENCH: Yes, yes,yes,yes.
MR MACSPORRAN: You said that was wrong as well as the initial iteration.
BENCH: Yeah.
MR MACSPORRAN: And you said there was no prejudice by the
misdescription and so forth. Was your Honour meaning to formally amend the
complaint or particulars to reflect that or - under 48 of the Justices Act because
of the variation?
BENCH: Not really. No. I don't think it's necessary unless you can convince me
otherwise.
MR MACSPORRAN: No, no. I was just wanting to clarify whether that was
your Honour's intention not to make an amendment and your Honour's probably
correct in the - on the basis of - that your Honour has dealt with it it's probably
not necessary, but I wanted to make sure that it wasn't an oversight.
BENCH: No, no. I wasn't thinking about doing that
MR MACSPORRAN: That's all right."
4 DPP(Vic) v Kypri (2011) 33 VR 157. 5 Ibid at [16].
19
[38] It was submitted by the respondent that "Although the learned Magistrate did not
expressly say so, her Honour impliedly amended the complaint (by amending the
particular in relation to operating plant) before finding the appellant guilty of the
offence." It was the respondent's contention that such a course was consistent with
the requirements of s 48 of the Justices Act.
[39] As is apparent from the above exchange, no formal amendment was made during the
hearing, nor was it the intention of her Honour to make an amendment under s 48 of
the Justices Act.
[40] The Justices Act provides, in ss 48, 49 and 50, for the amendment of, amongst other
things, a complaint. The sole power to amend a complaint is found in s 48. The
capacity to make an amendment is premised upon it taking place "at the hearing of a
complaint".
[41] Hearing is not defined in the Justices Act.
[42] In Parhusip v Bell6, Martin J had to consider the meaning of the term "hearing" as
referred to in the Justices Act. His Honour wrote:
"'hearing' is not defined in the Justices Act but its proper construction within the
context of that Act is that the word 'hearing' equates with the trial of the
complaint. So much can be drawn from s 48(c) where there is a reference to a
variance between the complaint and the evidence adduced at the hearing in
support of the complaint. Such evidence would not be adduced except at the
'trial' of the complaint. In other words, a 'hearing' for the purposes of s 48 is the
occasion on which the industrial magistrate hears the evidence and receives the
submissions of the parties relating to the final disposition of the complaint.
The provisions of s 48 and the balance of the Justices Act do not relate to the
particulars which are provided. Unless there is some unfairness involved by,
for example, a very late provision of particulars where there is no opportunity
for the defendant to deal with the change, amendments will ordinarily be able
to be made by the complainant and used at the hearing of the complaint."7
[43] In Surman8, Bollen J in the South Australian Supreme Court considered the validity
of a magistrate's decision to amend a charge at a hearing from attempting to put a
motor vehicle in motion while having the prescribed concentration of alcohol in his
blood to driving with the prescribed concentration. His Honour (at 363) referred with
approval to Lunn J's commentary in volume 2 of Criminal Law South Australia, which
says of the South Australian section in a similar form to s 48 of the Justices Act:
"An amendment may not be made under s 181 which would convert a bad
complaint into a good one or charge the defendant with a different offence... An
6 Parhusip v Bell; Bell v Parhusip [2015] ICQ 025. 7 Ibid [46] – [47]. 8 Surman (1996) 85 A Crim R 361.
20
amendment does not create a different offence where it only differently
describes an offence if the pith and substance of the charge remain the same...."
[44] The appellant submitted:
"26. Detailed submissions were made below on behalf of the Defendant to
demonstrate that the petroleum lease could not be operating plant under section
670 of the P&G Act, contrary to the Prosecution case. The Magistrate did not
deal with these submissions but instead found for an entirely different
construction of what was operating plant. Because this was not part of the
Prosecution case, the Defence did not have an opportunity to deal with the
proposition that founded her decision, namely, that the relevant operating plant
was a tenure holder's offices, processing sheds and other well heads (Reasons
para 37) or what she refers to as the well heads (Reasons par 35). For the reasons
set out comprehensively in the Defendant's submissions below, the Magistrate
clearly properly concluded that the petroleum lease itself was not operating
plant and, on that basis, she ought to have dismissed the Prosecution case."
[45] The legislature has provided a power is s 48 of the Justices Act to amend the complaint
if there is a variance between the complaint and the evidence adduced at the hearing.
[46] As the respondent properly notes, there is clear authority for the proposition that an
industrial magistrate has the power to amend a complaint. In my view, no "evidence
adduced in the case" was at variance with the complaint. As was observed in Felix v
Smeron9 "A variance exists where an offence which is charged is established with
some variation or difference in detail…" That is not the case here.
[47] If it is accepted, which I doubt for the reasons set out above, that her Honour amended
the Complaint, the question arises as to whether or not any prejudice will be suffered
by the appellant through the adoption of the revised complaint, to such an extent that
it can be properly said that "irreparable procedural fairness"10 has been suffered by
him.
[48] I do not accept the submission of the respondent that her Honour's "amendment" of
the complaint, which had originally described the operating plant as petroleum lease
PL 176, was "… to confine them to a part of the lease on which stood the Scotia plant
offices and associated equipment."
[49] The suggestion that the Scotia plant offices and kitchen constituted "other
infrastructure constructed by the tenure holders for the purposes set out in Section
670(2) (a)" was never part of the prosecution's particularised case.
[50] The complaint alleges a breach of s 702 of the PG Act by virtue of a failure or failures
in respect of obligations imposed by other sections of the Act. The function of
particulars is to enable an accused to know the nature of the charge which he or she is
called on to meet.11
9 Felix v Smeron (1944) 19 ALJ 30. 10 GPI (General) Pty Ltd v Industrial Court of New South Wales (2011) 207 IR 93 at [80]. 11 R v Juraszco [1967] Qd R 128 at 135 per Stable J, Gibbs J agreeing.
21
[51] The High Court in Dare v Pulham12, a case dealing with a civil matter, Murphy,
Wilson, Brennan, Deane and Dawson JJ said of the functions of particulars:-
"Pleadings and particulars have a number of functions: they furnish a
statement of the case sufficiently clear to allow the other party a fair
opportunity to meet it ...; they define the issues for decision in the
litigation and thereby enable the relevance and admissibility of
evidence to be determined at the trial .... Apart from cases where the
parties choose to disregard the pleadings and to fight the case on issues
chosen at the trial, the relief which may be granted to a party must be
founded on the pleadings.... But where there is no departure during the
trial from the pleaded cause of action, a disconformity between the
evidence and particulars earlier furnished will not disentitle a party to
a verdict based upon the evidence. Particulars may be amended after
the evidence in a trial has closed ..., though a failure to amend
particulars to accord precisely with the facts which have emerged in
the course of evidence does not necessarily preclude a plaintiff from
seeking a verdict on the cause of action alleged in reliance upon the
facts actually established by the evidence."13 (Emphasis added,
citations omitted)
[52] It seems to me that the respondent's submissions overlook the importance of requiring
the prosecution to prove the particular charge against a defendant. The defendant was
entitled to prepare for a trial on the basis of the offence with which he is charged, and
to allow the prosecution to seek to amend the complaint at the close of the prosecution
case or at some other point during the hearing, when it became apparent that the
offence with which he has been charged cannot be made out. To adopt a different
course carries with it the real risk of injustice.
[53] In GPI (General Pty Ltd) v Industrial Court of New South Wales14, Basten JA said:
"In circumstances where no irreparable procedural unfairness has been suffered
by the applicants (they not having faced trial or yet pleaded to the charges) and
where that which constitutes an essential factual allegation, as opposed to a
desirable degree of particularisation of facts alleged, is a distinction involving
matters of evaluative judgment, the contention should be rejected. The
underlying and important premise of criminal pleading is that no person should
be convicted without procedural fairness, nor for an offence not known to the
law."
[54] Unlike Mbuzi v Torcetti15, her Honour did not foreshadow any amendment, no
warning was given that an amendment to the complaint was likely and nothing was
said by her Honour which might have alerted the defendant so as not to catch him by
surprise. As noted above, even when her Honour was alerted by the prosecution to
the provisions of s 48 of the Justices Act, no order to amend was made.
12 Dare v Pulham (1982) 148 CLR 658. 13 Ibid at 664. 14 GPI (General Pty Ltd) v Industrial Court of New South Wales (2011) 207 IR 93. 15 Mbuzi v Torcetti [2008] QCA 231.
22
[55] Whilst Fraser JA concluded in Mbuzi v Torcetti that there was no denial of natural
justice, His Honour did observe:
"Nothing I have said is intended to diminish the central importance of ensuring
procedural fairness in summary proceedings, but I am not persuaded that there
was any error in the judge's conclusion that there was no unfairness to the
applicant in making the necessary amendment to reflect the evidence. In the
absence of any unfairness it is not a valid objection that the foreshadowed
amendment was finally ordered only immediately prior to the conviction of the
applicant: Paulger v Hall [2003] 2 Qd R 294 at [8]."16
[56] Her Honour, having rejected the prosecution case embarked on an exercise to
construct her own prosecution. The findings made by her in respect of "operating
plant" was never part of the prosecution case as set out in the Complaint and the
attached Particulars. The appellant submitted that her Honour "…rejected the
Prosecution case and replaced it with an entirely different one based upon her own
interpretation of the law and then upheld it. This was impermissible." I agree.
[57] It must therefore follow that having regard to the finding by her Honour that neither
the Scotia Well #22 or, in particular, the Petroleum Lease PL176 was the operating
plant in the Complaint and Summons, she ought to have dismissed the complaint. In
this regard she fell into error.
Was there a Safety Management Plan (SMP) in existence for operating plant
[58] Section 674 of the PG Act requires the "operator" to make an SMP and implement
and maintain it.
[59] The complaint does not, on its face, identify the operating plant at which Mr Schloss
was alleged to be the operator. At most, it alleges that the operating plant was PL 176.
It does not identify the site of the contravention as "operating plant". The particulars,
attached to the complaint, do refer to "the site is an operating plant within the meaning
of that term" in the PG Act and make reference to the work undertaken by Mr Vieritz
at Scotia Well #22 on 16 March 2011.
[60] The SMP did not specifically refer to PL 176, but broadly referenced gas fields at
Scotia comprising "a number of local seam methane wells".17 It was an essential
feature of the prosecution that in order for there to be a breach of s 702, it must be
established that some obligation was imposed on Mr Schloss under the SMP for the
operating plant.
[61] The appellant argued that it cannot be inferred that the SMP made by Santos Limited
was made, implemented or maintained by Santos QNT Pty Ltd, simply because Santos
Limited was the holding company of Santos QNT Pty Ltd or from the fact that they
had a common General Manager.
[62] Her Honour seems to have accepted that argument when she concluded:
16 Ibid at [31] per Fraser JA. 17 Exhibit 53.
23
"[38] Before discussing the various documents provided to the court, I note that
Mr Roney has made submissions with regard to whether the SMP which
is alleged to have been in force at the date of the incident had been adopted
by Santos QNT Pty Ltd when the 'operator' of the plant changed from
Santos Ltd to Santos QNT Pty Ltd in 2008. He submitted that simply
because Santos Limited was the holding company of Santos QNT Pty Ltd,
it could not be inferred that the Santos Ltd SMP was the SMP
implemented or maintained by Santos QNT Pty Ltd before the incident.
He argues that the Act requires the operator to 'actually do something to
make, implement or maintain it'.
[39] Section 674 of the Act provides, inter alia, that 'The operator of an
operating plant must … make a safety management plan that complies
with … section 675 and … implement and maintain the plan'.
[40] There was no evidence adduced by the prosecution to show that the SMP
they sought to prove was current at the time of the incident, was in fact
made by Santos QNT Pty Ltd, the entity which it is agreed was the
'operator' at the relevant time.
[41] The provisions of Section 674 of the Act are mandatory. In the absence
of any evidence that the 'operator' Santos QNT Pty Ltd did anything to
'make' a SMP, I find that Santos QNT Pty Ltd, being the 'operator' of the
plant had not complied with Section 674 of the Act with regard to the
making of an SMP."
[63] However, notwithstanding the finding that the prosecution had not established that an
SMP had been made for Santos QNT Pty Ltd, her Honour went on to conclude:
"[59] Mr Roney has submitted that there is real doubt as to which SMP was in
force at the date of the incident, given the differing versions of the
documents tendered to the court. After considering the documents before
me and hearing Ms Firth's evidence, it would appear to me that the SMP
current at the date of the incident was the green folder forming part of
Exhibit 53 and the online version of the EHSMSs to which it (the green
folder) referred."
[64] Ms Firth gave evidence that she had seen SMP documentation in the supervisor's
office of the Scotia site shortly after she had commenced employment with Santos in
June 2008. In cross-examination, Ms Firth was asked:
"So in terms, then, of the green folder, that's not something that you
worked with except to the extent that you've described in your evidence
when you saw it at the mine site?--- Yes, when I saw it at Scotia, yes.
And as I've understood your evidence – and you'll correct me if I've
misunderstood it – you might have, what you said, flicked through, the
document perhaps two or three times?--- Yes.
24
And the first time you were there was I think you said in 2007, when you
went to see a document in the supervisor – or more accurately when you
noticed the document in the supervisor's office?--- That's correct.
And the activity that you were involved in on that occasion wasn't
concerned with or directing itself at all to identifying what SMP or
ancillary documents operated in this mine, correct?--- That's correct.
So this was perhaps just more a matter of interest on your part? --- That's
correct.
And at that time, was – that is the first time you observed the document –
was that also a flick through? --- Yes.
Really just to see that it looked like what the usual sort of SMP's that you
might have seen on other sites? --- Yes.
You weren't looking to see what particular statements it made or what
standards it incorporated or that sort of thing? --- That's correct.
And would the same be true of each of the other two occasions when you
had a flick through of the document? --- Yes.
And should we understand your evidence about it, being the operative
SMP, to be that you reached that conclusions because that's the document
you saw on the mine site?--- That's correct.
So you've not ever been, for example, to the records of Santos or Santos
QNT to see what its records showed was the relevant SMP for any of those
times? In other words, you've not gone beyond the fact that you've
observed it at the mine site on those two occasions? --- I have – that's
correct.
So did you ask anyone, for example, at the mine site whether it was in fact
the current document? --- No.
So then, when you did some work in late 2011 – and it might have even
been some earlier work on revision 1 – you didn't go back to that folder,
did you, to start your work? No, I didn't go out to Scotia and have a look
at that folder to start the work."
[65] The evidence of Ms Firth does not support a conclusion that the SMP dated 30 June
2005 was the current SMP at the time of the incident. Her view as to the currency of
the SMP was based on the fact that she had seen the document in the supervisor's
office at the Scotia site. She agreed in cross-examination that she did not ask whether
the SMP was current.
[66] The respondent submitted that:
25
"39. Although the learned Magistrate found that Santos QNT Pty Ltd 'had not
complied with section 674 of the Act with regard to the making of an
SMP', Her Honour also noted that Santos QNT Pty Ltd was a subsidiary
of Santos Ltd and controlled by the parent company.
40. In context, this is a finding that Santos Ltd had complied with the
obligations imposed by s.674 of the Act and continued to do so, as the
parent company of Santos QNT Pty Ltd, from 2008 when Santos QNT
Pty Ltd became operator."
[67] Her Honour concluded that the SMP current at the time of the incident was the SMP
dated 30 June 2005 (green folder). However, this finding is at odds with her earlier
conclusion that there "… was no evidence adduced by the prosecution to show that
the SMP they sought to prove was current at the time of the incident". The SMP
sought to be proved by the prosecution and as particularised in paragraph 5 of the
particulars was the SMP for Santos Ltd issued on 30 June 2005.
[68] The case particularised by the prosecution was that the operating plant was the
petroleum lease itself, that is, PL 176. The incident according to the prosecution, was
at Scotia Well #22 where Mr Vieritz was working. The prosecution case was
conducted on the basis that it must prove that Mr Schloss was present on the relevant
petroleum lease on 16 March 2011 and that there was an obligation on Mr Schloss
which arose under the SMP for that operating plant.
[69] Her Honour analysed the contents of the SMP to determine which safety procedures
and obligations had application. The particulars as set out in Exhibit 57 detailed the
provisions of the SMP which it was said applied. In particular, it was the prosecution
case that the SMP required that a Job Hazard Analysis (JHA) be carried out prior to
the commencement of the work undertaken by Mr Vieritz on the mobile separator.
This requirement is contained in EHSMS 09.1 which provides:
"The purpose of this standard is to define the requirements for identifying,
assessing and controlling EHS risks associated with work activities by using Job
Hazard Analysis (JHA) and Stepback processes."
[70] Clause 4.2.2 of Standard 9.1 provides the following rider:
"A JHA is not required for low-risk tasks performed by a competent person as
the individual's competency and skill covers this."
[71] It was accepted by her Honour that Mr Vieritz was an experienced worker and was
qualified to carry out work on the mobile separator having previously carried out
similar work. She accepted the evidence of Mr Wood, a senior training officer with
Santos to conclude that work undertaken on the Kimray valve was minor maintenance
and therefore a low risk task.
[72] However, in relation to the isolation of the gas in the mobile separator, her Honour
found that this was not low risk. In doing so, her Honour accepted, as she was entitled
to do, the evidence of Mr Holmes an expert witness called by the prosecution.
26
[73] Her Honour found that the appellant had breached his obligation pursuant to s 702 to
comply with the JHA safety procedures.18 She said:
"[76] The safety procedures and other obligations which are to be complied with
in accordance with Section 702 of the Act not only apply to the defendant
Mr Schloss as a supervisor, but also to Mr Vieritz as an authorized permit
holder and employee on the site. But it is Mr Schloss who has been
charged pursuant to Section 702. In his evidence, Mr Vieritz stated that
at the toolbox meeting held on 16 March 2011, he had discussed with
Mr Schloss that he would be working on the mobile separator that day. It
would appear therefore that Mr Schloss had breached his obligation
pursuant to Section 702 to comply with the JHA safety procedures."
[74] The findings by her Honour are devoid of analysis. It is not immediately apparent on
reading her reasons and in light of the evidence, how she has concluded a breach of
s 702. In relation to her Honour's findings above, the respondent submits:
"In context, this is necessarily a finding that the appellant had an obligation
under the terms of the SMP to ensure that a JHA was considered and undertaken
by Mr Vieritz in that he was required:
'(ii) to nominate a team leader for the performance of the JHA (EHSMS
09.1 at 4.2.3.); and/or
(iii) to approve the content of the JHA prior to the work commencing
(EHSMS 09.1 at 4.2.5., 6);'
As particularised in Exhibit 57, particulars provided 5 June 2014, at (ii) and
(iii)."
[75] With respect to the respondent, the submission attempts to recreate the process of
reasoning which puts a gloss on her Honour's conclusion, the exact meaning of which
is unclear and the reasons for making it, absent.
[76] The prosecution's case is dependent on establishing that Mr Schloss was at PL 176 on
16 March 2011 and that his omissions, as particularised, if proved, must have occurred
when he was on the lease.
[77] The evidence of Mr Bowtell was that he saw Mr Schloss at the tool box meeting on
the morning of 16 March 2011 which was held at a table in the kitchen. He explained:
"Table in the kitchen. Yes. And the kitchen is part of what sort of building? ---
It's a donga type thing. There's two with a veranda in the middle of it. One's the
office and one's the lunchroom and toilets and that and me and Mark Bunker
had our office in there - desk in there."19
[78] The office was located some 5 kilometres from the Scotia Well #22.
18 Bell v Schloss [2014] QMC 023 at [77]. 19 T2-60 Ll. 39-42.
27
[79] Mr Bowtell also saw Mr Schloss "…at smoko time, lunch time."20 Mr Bowtell did
not see Mr Schloss again until after the incident when he saw him with Mr Vieritz
"…down in the shed at the eyewash station."21 The evidence of Mr Vieritz was that
he saw Mr Schloss at the tool box meeting and "…would've seen him at smoko or
lunchtime."22
[80] There is no evidence from Mr Bowtell or Mr Vieritz about the whereabouts of
Mr Schloss at the time of the incident. There is no evidence that Mr Schloss was at
the "…offices, the processing sheds or other well heads…"23
[81] It was submitted by the appellant that the evidence before the Court below was not
sufficient to support a conclusion that Mr Schloss was at the operating plant or
somewhere else at the time of the incident.
[82] In my view, as the evidence stands, the prosecution failed to prove, to the requisite
standard, that Mr Schloss was "at the operating plant".
[83] It was also submitted in the Court below that an element of the offence was the
requirement to prove that the relevant breach occurred in respect of obligations said
to arise "under the safety management plan for the plant."
[84] It was submitted by the prosecution that it must be inferred that Santos QNT Pty Ltd
made the SMP when it became the new operator. However, there is no evidence to
support such a conclusion.
[85] Whilst not expressly stated by her Honour, her finding that "operating plant" consisted
of infrastructure constructed by the tenure holder for the purposes of s 670(2)(a) must
mean that she regarded the SMP of 30 June 2005 as being applicable to this "operating
plant".
[86] Her Honour found:
"[33] Mr Roney, for the defendant, has submitted that a distinction should be drawn
between what he terms 'facility' plant and 'tenure' plant. These terms he appears
to have taken from Section 670(2)(a) which refers to 'a facility used to explore
for, produce or process' etc and Section 670(6) which refers to 'any part of the
area of a petroleum tenure', as being operating plant. I consider the distinction
to be somewhat ingenuous. If one were to apply this reasoning to the other
references in Section 670 as to what constituted 'operating plant', there would
need to be distinctions between other categories such as 'pipeline' plant, 'system'
plant and even 'activity' plant."
[87] It was the submission of the defendant in the Court below that having regard to the
statutory provisions and the explanatory notes, a distinction should be drawn between
what has been described as "facility" plant and "tenure" plant. In regard to s 670(6)
of the PG Act, it was argued that a broad view should be adopted, a view which draws
20 T2-60 L. 30. 21 T2-63 Ll. 42-43. 22 T2-87 Ll. 41-42. 23 Bell v Schloss [2014] QMC at [37].
28
a boundary around all operating plant on the lease area. Such a view would exclude
areas which have no operating plant and which is used for unrelated purposes, such
as cropping, grazing or housing.
[88] Section 3 of the PG Act sets out the main purpose of the Act. In particular, it identifies
some of the following purposes: (f) ensures petroleum activities are carried out in a
way that minimises conflict with other land uses; (i) encourages responsible land
management in the carrying out of petroleum activities; and (k) regulates and
promotes the safety of persons in relation to operating plant.
[89] In my view, it cannot have been the intention of the legislature that an SMP would
impose obligations upon any person on a petroleum lease and in relation to anything
occurring on the lease. Such a conclusion would be contrary to the purpose of the PG
Act.
[90] Given my conclusions above, I will deal only briefly with the following grounds of
appeal.
Defences
[91] It is the appellant's argument that her Honour wrongly excluded defences under
s 732A of the PG Act on the grounds that the Mr Schloss did not call any evidence to
prove the matters required by the section.
[92] There are defences under s 732A(2)(c) of the PG Act to a charge under s 702 of the
Act. Section 732A provides as follows:
"732A Defences for certain offences
(1) This section provides defences in a proceeding against a person for a
contravention of section 677, 688, 693, 699, 702, 703 or 704 (the relevant
sections).
(2) To the extent the contravention is a contravention of a particular safety
requirement, it is a defence in the proceedings to prove—
(a) if a regulation was made about the way to ensure the safety
requirement was to be met—the person followed the way prescribed
in the regulation to ensure the safety requirement was met; or
(b) subject to paragraph (a), if a recognised standard was made stating
a way or ways to ensure the safety requirement was to be met—
that the person adopted and followed a stated way to ensure the safety
requirement was met; or
that the person adopted and followed another way that ensured the safety
requirement was met that was equal to or better than the stated way for ensuring
the safety requirement was met; or
29
(c) if no regulation or recognised standard prescribes or states a way to
discharge the person's obligation in relation to the safety
requirement—that the person took reasonable precautions and
exercised proper diligence to ensure the safety requirement was met.
(3) Also, it is a defence in a proceeding against a person for an offence against
the relevant sections for the person to prove that the contravention was
due to causes over which the person had no control."
[93] Her Honour concluded:
"Mr Schloss did not call any evidence to "prove" those matters required by
Section 732A. There is no evidence that he took "reasonable precautions and
exercised proper diligence to ensure the safety requirement was met."
[94] It is not necessary, in order to rely on a defence under s732A(2)(a), for the defence to
call evidence. It is, as was properly submitted by the respondent, possible for proof
necessary to establish a defence to be satisfied by evidence given as part of the
prosecution case.
[95] It was argued that s 732A(3) afforded a defence.
[96] It is a defence under s 732A(3) "for a person to prove that the contravention was due
to causes over which the person had no control". Whilst this defence was argued
before her Honour, no finding as to its applicability was made.
[97] It was submitted by the respondent that in the absence of any steps being taken by the
appellant to satisfy himself that Mr Vieritz had undertaken an appropriate risk
assessment prior to commencing the task, it is irrelevant that Mr Vieritz chose to
perform the task in a different manner.24
[98] The real issue is that her Honour has failed to deal with the applicability of s 732A(3)
and indeed s 732A(2)(a). In the absence of any reference to the respondent's
submissions on the defences under s 732A, the defendant is left wondering why their
submissions have been rejected. If it is the case that her Honour has adopted the view
that in order to rely on a defence under s 732A, the defendant must call evidence to
"prove" those matters, then she has fallen into error. However, the process of
reasoning is so absent from her decision that it is not possible to determine whether
or not the decision is sound in law. As was said in Pettit v Dunkly25:
"An error of law in giving no reasons for judgment differs from an error of law
in coming to a verdict, for the latter directly vitiates the verdict either in the
sense that the verdict thereby is legally wrong and reversible or in the sense that
the verdict is based on an error in the legal process so that a new trial is attracted.
The error under consideration does not establish that the verdict itself involved
some error, but serves to make it difficult or perhaps impossible to determine
whether or not the verdict itself was based on an error of law. If a party is legally
entitled in the particular case to have the reasons for verdict stated, in order that
it will appear whether the verdict had been correctly come to in accordance with
24 See para. 80 of the Submission of the Respondent filed on 19 December 2014. 25 Pettit v Dunkly [1971] 1NSWLR 376.
30
the law, then the error of law in giving no reasons has deprived the litigant of
the right he had to have the Court of Appeal interfere if the decision involved
an error of law."26
[99] The failure to deal with the defences amounts to an error of law.
Adequacy of Reasons
[100] The failure to give sufficient reasons constitutes an error of law.27
[101] The principles guiding the adequacy and nature of reasons were set out in Qld
Independent Education Union of Employees v Local Govt Association of Qld Ltd28:
"[14] A Tribunal need not set out reasons for every step which has led to a
decision but it must record the steps which were taken to arrive at the
result (Public Service Board of New South Wales v Osmond (1986) 159
CLR 656 at 666).
[15] The extent of the reasons which are required to be given will depend upon
the circumstances and the context of the case. Generally, reasons should
deal with the substantial points which have been raised, including findings
on material questions of fact. The reasons should refer to any evidence or
other material upon which those findings are based and provide an
intelligible explanation of the process of reasoning that is led from the
evidence to the findings and from the findings to the ultimate conclusion.
Some explanations should be given if the evidence tendered or the
submissions made by a party have been rejected (Police Federation of
Australia v Nixon [2011] FCAFC 161 at [67]). The reasons must set out
the steps that were taken by the Tribunal to arrive at the decision. This
allows the parties who have been unsuccessful to determine whether they
have a basis for appeal (Housing Commission of New South Wales v
Tatmar Pastoral Co Pty Ltd [1983] 3 NSWLR 378 at 386).
[16] It must be understood, though that the principles set out above do not mean
that reasons for decision have to be lengthy or elaborate. A distinction has
always been drawn between courts and tribunals. Just as it is not necessary
for a judge to make an express finding in respect of every fact leading to,
or relevant to, his or her final conclusion of fact, it is not necessary that
the judge reason, and be seen to reason, from one fact to the next along
the chain of reasoning to that conclusion (Soulemezis v Dudley (Holdings)
Pty Ltd (1987) 10 NSWLR 247 at 271). The fact that reasons of the
Commission might be brief is not necessarily a flaw. Courts conducting
reviews or appeals from tribunals have been repeatedly enjoined by the
High Court to avoid overly pernickety examination of the reasons. The
focus of attention is on the substance of the decision and whether it has
addressed the 'real issue' presented by the contest between the parties
(Roncevich v Repatriation Commission (2005) 222 CLR 115 at [64])."
26 Ibid at [389]. 27 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 270, 279-280 (McHugh JA). 28 Qld Independent Education Union of Employees v Local Govt Association of Qld Ltd [2015] ICQ 003.
31
[102] A failure to provide reasons in accordance with the principles set out above will
ordinarily result in an appellable error.
[103] In Drew v Makita (Australia) Pty Ltd)29, Muir JA (with whom Holmes JA and
Daubney J agreed), observed:
"[58] The rationale for the requirement that courts give reasons for their
decisions provides some guidance as to the extent of the reasons required.
The requirement has been explained, variously, as necessary: to avoid
leaving the losing party with 'a justifiable sense of grievance' through not
knowing or understanding why that party lost; to facilitate or not frustrate
a right of appeal; as an attribute or incident of the judicial process; to
afford natural justice or procedural fairness; to provide 'the foundation for
the acceptability of the decision by the parties and the public' and to
further 'judicial accountability'.
[59] The extent to which a trial judge must expose his or her reasoning for the
conclusions reached will depend on the nature of the issues for
determination and 'the function to be served by the giving of reasons."
[104] Whist I appreciate that the prosecution case was factually dense and that in many
respects complex, it was nevertheless incumbent upon her Honour to satisfy the
requirements as set out in Qld Independent Education Union of Employees v Local
Govt Association of Qld Ltd. She did not.
[105] As Samuels JA wrote in Strbak v Newton30:
"What is necessary, it seems to me, is a basic explanation of the fundamental
reasons which led the judge to his conclusion. There is no requirement,
however, that the reasons must incorporate an extended intellectual dissertation
upon the claim of reasoning which authorises the judgment which is given."
[106] Her Honour's reasons for decision should be such that the losing party should know
or understand why they lost.31 Whilst I am not "overzealous to seek to discern
inadequacy,"32 I am not satisfied that her Honour has, in her written reasons for
decision, provided a sufficient level of particularity to enable an assessment as to
whether or not she has fallen into error.33
Bell Appeal
[107] The appeal filed by Mr Bell sought to set-aside her Honour's decision on causation
and to find that bodily harm was caused by a breach of s 702 of the PG Act.
29 Drew v Makita (Australia) Pty Ltd [2009] 2 Qd R 219. 30 Strbak v Newton [1989] NSWCA 202. 31 Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, 442; Drew v Makita (Australia) Pty
Ltd [2009] 2 Qd R 219. 32 Q-COMP v Mana (C/2011/48) - Decision <http://www.qirc.qld.gov.au> [2]. 33 Svenson v Q-Comp (2006) 181 QGIG 629, 632.
32
[108] It was the cross-appellant's submission that her Honour erred in failing to find that the
omission that constituted the offence under s 702 of the PG Act did not cause bodily
harm to Gavin James Vieritz.
[109] Her Honour concluded that:
"[84] As a result of Mr Vieritz's evidence, his experience, and the actions he
took on the day of the incident to isolate the separator, I am not satisfied that the
bodily injury sustained by Mr Vieritz was caused by the 'act or omission that
constitutes the offence'. I therefore find that the prosecution has not proved the
aggravating circumstances provided by Section 732(3)(d) of the Act to the
required standard and the increase in the maximum penalty is not activated."
[110] Having considered the evidence, it was open for her Honour to come to the conclusion
that she did. It is not the submission of the cross-appellant that there was insufficient
or no evidence to support the conclusion reached by her Honour. Rather, that the
cross-appellant points to other evidence which might support a different conclusion.
No appellable error has been disclosed.
[111] In light of my reasons above, it is not necessary to deal with the submissions on the
cross-appeal in any greater depth.
[112] The cross-appeal is dismissed.
Conclusions and Orders
[113] The appellant has succeeded in demonstrating that the decision of the Industrial
Magistrate is infected with error. The appeal is allowed.
[114] I make the following orders:
1. In matter C/2014/43:
(i) the appeal is allowed;
(ii) the guilty verdict is set aside; and
(iii) the complaint is dismissed.
2. In matter C/2014/44 the appeal is dismissed.
Costs
[115] I will hear the parties on costs in the Industrial Magistrate's Court.
I certify that the preceding 115 paragraphs are a true copy of the Reasons for Decision of
Deputy President O'Connor.
D. L. O'CONNOR, Deputy President: ………………………………
Dated: …………..