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27 Apr 2010 12:00 AMBinding Financial AgreementsThe drafting of Binding Financial Agreements has always been a process designed more to resolution that to litigation.More...The DeveloperInology Pty Ltdsupport@inology.com.auwww.inology.com.au
27 Apr 2010 12:00 AMIndustrial Magistrates Court LegislationHigh Court redefines the focus of prosecutions in the Industrial Magistrates Court.More...The DeveloperInology Pty Ltdsupport@inology.com.auwww.inology.com.au
The recent High Court case of Kirk v Industrial Relations Commission; Kirk group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1 (3 February 2010) has redefined the focus of prosecutions in the Industrial Magistrates Court. The substantive legislation is Queensland together with the proscriptive nature of the regulations and codes of practice were designed to identify risk in the workplace and the steps needed to be taken by employers to preclude that risk. The prosecutions under that legislation were pursued on an “understanding” that the employer knew what was required, i.e. provide a safe workplace, and failed to achieve that; evidenced by the fact that a worker was injured. It was then left to the employer to prove that it did operate a safe work environment.
The High Court in Kirk established that it was necessary for the prosecution to allege what act or omission of the employer actually led to the injury to the worker. A portion of the judgment reads:
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), 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. In more recent times the rationale of that requirement has been seen as lying 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 or she is called upon to meet. The common law requirement is that an information, or an application containing a statement of offences, "must at the least condescend to identifying the essential factual ingredients of the actual offence". These facts need not be as extensive as those which a defendant might obtain on an application for particulars. In Johnson v Miller, Dixon J considered that an information must specify "the time, place and manner of the defendant's acts or omissions". McTiernan J referred to the requirements of "fair information and reasonable particularity as to the nature of the offence charged”
It is arguable then that there is, incumbent on the complainant, the obligation to prove the or at the very least allege the actual act or omission that is it said the employer undertook that is said to be a breach of the employers duty. Without informing the employer of that act or omission with sufficient particularity to enable the employer to be informed of and understand the charge against it then no charge exists. The employer cannot be expected to defend itself in such circumstances. The Kirk case is currently being tested against the Queensland legislation. We will update this article with the relevant outcome once to hand.