SafeWork NSW v BOC Limited [2020] NSWCA 306

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: SafeWork NSW v BOC Limited [2020] NSWCA 306 Hearing dates: 16 October 2020 Decision date: 26 November 2020 Before: Basten JA at [1]; Macfarlan JA at [64]; Leeming JA at [65] Decision: (1) Dismiss the summons filed on 25 June 2020. (2) Order the applicant to pay the first respondent's costs. Catchwords: CRIME – work health and safety – application for judicial review of verdict of acquittal – risk of death or serious injury to other persons – conduct of employee in the course of his duties – prosecution of employer – employer acquitted due to dishonesty of employee – attempt by prosecutor to review acquittal – Work Health and Safety Act 2011 (NSW), s 19(2) JUDICIAL REVIEW – supervisory jurisdiction – acquittal – principle of double jeopardy – application for judicial review in supervisory jurisdiction of the Supreme Court by prosecutor following acquittal – circumstances in which the Court's jurisdiction to review an acquittal is engaged JUDICIAL REVIEW – supervisory jurisdiction – discretion to refuse relief – opportunity to address trial judge or to seek stated case to the Court of Criminal Appeal prior to final orders – failure to apply to judge – subsequent attempt to invoke supervisory jurisdiction Legislation Cited: Coal Mines Act 1911 (UK), s 74 Commonwealth Constitution, s 73 Crimes (Appeal and Review) Act 2001 (NSW), ss 100, 101, 107; Pt 8, Div 3 Crimes (Appeal and Review) Amendment (Double Jeopardy) Act 2006 (NSW), Sch 2.2[1] Criminal Appeal Act 1912 (NSW), ss 5A, 5AE District Court Act 1973 (NSW), s 8 Federal Court of Australia Act 1976 (Cth), s 24 Highway Act, 1835 (UK), s 72 Industrial Relations Act 1996 (NSW), s 197A Work Health and Safety Act 2011 (NSW), ss 19, 30, 32, 229B, 230; Sch 2, cl 1 Cases Cited: Bros Bins Systems Pty Ltd v Industrial Relations Commission of New South Wales (2008) 74 NSWLR 257; [2008] NSWCA 292 Bulga Underground Operations Pty Ltd v Nash (2016) 93 NSWLR 338; [2016] NSWCCA 37 CI&D Manufacturing Pty Ltd v Registrar Industrial Court (NSW) (1996) 40 NSWLR 1 Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58 Davern v Messel (1984) 155 CLR 21; [1984] HCA 34 Director of Public Prosecutions v Ozakca (2006) 68 NSWLR 325; [2006] NSWSC 1425 Ex parte Schofield; Re Austin; Ex parte Green; Re Austin (1953] 53 SR(NSW) 163 Hanna v O'Shane [2003] NSWSC 1055; 144 A Crim R 21 Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 Orr v Cobar Management Pty Ltd [2020] NSWCCA 220 Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 Quach v Health Care Complaints Commission [2015] NSWCA 187 R v Bournemouth Crown Court, ex parte Weight [1984] 1 WLR 980 R v Simpson [1914] 1 KB 66 R v Tchorzewski (1897) 8 QLJ 79 Reg v Dorking Justices; ex parte Harrington [1983] QB 1076 Reg v Duncan (1881) 7 QBD 198 Reg v Middlesex Quarter Sessions (Chairman); Ex parte Director of Public Prosecutions [1952] 2 Q.B. 758 SZFDE v Minister for Immigration and Citizenship (2007) 232 CLR 189; [2007] HCA 35 The Queen v The Keepers of the Peace and Justices of the County of London ("London Justices") (1890) 25 QBD 357 Thompson v Mastertouch TV Service Pty Ltd [No 3] (1978) 38 FLR 397 Texts Cited: M Aronson, M Groves and G Weeks, Judicial Review of Administrative Action and Government Liability (6th ed, LawBook Co, 2017) at [10.30] Second reading speech, Work Health and Safety Legislation Amendment Bill 2011, Parliamentary Debates, NSW Legislative Council Category: Principal judgment Parties: SafeWork NSW (Applicant) BOC Limited (First Respondent) District Court of New South Wales (Second Respondent) Representation: Counsel: J Agius SC / M Moir (Applicant) B D Hodgkinson SC / Y Shariff (First Respondent)