Botany Bay City Council v Work Cover [2007] NSWDC 61

New South Wales District Court

CITATION: Botany Bay City Council v Work Cover [2007] NSWDC 61 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 29 March 2007

JUDGMENT DATE: 3 April 2007

JURISDICTION: Criminal

JUDGMENT OF: Williams DCJ at 1

DECISION: The appeal to this Court is stayed for a period of three months and then, subject to any order of a superior court, is dismissed as being beyond the Court's jurisdiction.; Costs reserved.

CATCHWORDS: Notice of Motion - Appeal to the District Court - Chief Industrial Magistrate - Occupational Health & Safety Legislation - Jurisdiction of the District Court - Jurisdiction of the Industrial Commission

Crimes( Appeal & Review ) Act 2001 LEGISLATION CITED: Dangerous Goods Act 1975 Industrial Relations Act 1996

PARTIES: Botany Bay City Council Work Cover Authority of NSW

FILE NUMBER(S): 07/12/0033

COUNSEL: Appellant: Mr R A Bonnici Respondent: Mr P Skinner

SOLICITORS: Appellant: Houston Dearn O'Connor Respondent: Carroll & O'Dea

1. In this matter on 5 December 2006 Botany Bay City Council, the appellant, was convicted of an offence contrary to s 9(1) of the Dangerous Goods Act 1975 but no penalty was imposed utilising section 10A of the Crimes (Sentencing Procedure) Act . The matter was heard in the Local Court before the Chief Industrial Magistrate. 2. The appellant has appealed to the District Court under s 11 of the Crimes (Appeal and Review) Act 2001 which provides that any person who has been convicted by a Local Court may appeal to the District Court against the conviction. Local Court is defined to include "any court constituted by a Magistrate and that exercises criminal jurisdiction". Appeals under s 11 of the Act are appeals as of right to the District Court. Such appeals are to be determined by way of a re-hearing based upon a transcript of the evidence in the Local Court. 3. The respondent has filed a notice of motion seeking that the appeal be dismissed as incompetent through want of jurisdiction in the District Court. Essentially the respondent says that if the appellant wishes to appeal it must be to a full bench of the Industrial Commission in Court Session. It relies on s 33 of the Dangerous Goods Act 1975 and s 197 and 179 of the Industrial Relations Act 1996. For a corporation a breach of s 9(1) of the Dangerous Goods Act could result in a maximum fine of 500 penalty units. 4. Section 33 of the Dangerous Goods Act relevantly provides as follows; "Proceedings for offences 1. Proceedings for an offence against the Act may be disposed of summarily before a Local Court or before the Industrial Relations Commission in court session. 1C. The provisions of the Industrial Relations Act 1996 and of the regulations under that Act relating to appeals from and the stating of a case by a Local Court to the Industrial Relations Commission in court session apply to proceeding before a Local Court for offences against this Act or the regulations." 5. Section 197 of the Industrial Relations Act relevantly provides as follows; "Appeals from the Local Court . 1. An appeal lies to the full bench of the commission in court session against - b) any conviction imposed by the Local Court for an offence against this Act or the Regulations. 2. The provisions of the Crimes (Local Courts Appeal and Review) Act 2001 that relate to; a) appeals from a Local Court to the District Court b) the decisions of the District Court, and c) the carrying out or enforcement of any such decision apply subject to the Regulations under this Act to any appeal referred to in sub s 1. 4. The full bench of the Commission in court session may refer a matter subject of an appeal back to the Local Court. 5. Section 179 (Finality of Decisions): a) applies to a decision or purported decision of a Local Court in proceedings to which this section applies in the same way as it applies to a decision or purported decision of the Commission, and b) without limiting that section applies to a decision or purported decision of the Commission in respect of proceedings to which this section applies." 6. Section 179 of the Industrial Relations Act relevantly provides as follows; "(1) A decision of the Commission however constituted is final and may not be appealed against, reviewed, quashed or called into question by any court or tribunal." 7. The appellant argues that as ss 187, 188 and 191 of the Industrial Relations Act govern appeals to the full bench, that regime is a less beneficial appeal regime for an offender than the provisions of the Crimes Appeal and Review Act . Section 188(1) of the Industrial Relations Act says that appeals to the full bench of the Commission can only be made with the leave of the full bench. Section 191 provides that appeals are not a new hearing but are to be determined on the evidence and material adduced in relation to the decision appealed against. 8. It is argued that in having to get leave to make such an appeal, whereas the provisions of s 11 of the Crimes Appeal and Review Act give a person convicted an appeal as of right, then that constitutes a significant difference. 9. Whilst it is not this Court's function to rule on practice and procedure in the Industrial Relations Commission, it seems very clear to me from the sections that I have referred, that those sections only apply to appeals to the full bench of the Commission and not to the full bench of the Commission in Court Session. 10. Under s 151A of the Industrial Relations Act the full bench of the Commission in court session is to be known as the Industrial Court of New South Wales , a superior court of record. By virtue of s 153(1) ss (j) only the Industrial Court can deal with proceedings on appeal or on a case stated from the Industrial Magistrate or any other court. Subsection (k) says that only the Commission in court session can deal with any other proceedings that are by this Act or any Act required to be taken before the Commission in court session. 11. It is, it seems to me, a wrong argument to suggest that ss 187, 188, 189, 190, 190A, 191 & 193 of the Industrial Relations Act have any applicability to appeals to the Industrial Court from the Local Court as opposed to other types of appeals to the Industrial Commission. The two bodies are not the same and are differently constituted. This is particularly apparent when one has regard to s 197(2), which requires the Industrial Court to deal with appeals, that otherwise could have been made to the District Court, in accordance with the provisions of the Crimes (Appeal and Review) Act . This would mean that there is an appeal as of right to the Industrial Court against a conviction in a Local Court, by virtue of s 11, and the matter should be disposed of by the Industrial Court in accordance with the other provisions of the Crimes (Appeal and Review) Act . 12. A District Court appeal decision is final by virtue of s 176 of the District Court Act , except that the Supreme Court has jurisdiction in regard to certiorari on a point of law. The decision of the Industrial Court is final by virtue of s 179 of the Industrial Relations Act . I cannot see that these differences are such as would disadvantage an appellant. 13. Another argument raised is that because s 197 of the Industrial Relations Act does not indicate exclusivity of appeal to the Industrial Court, for example by including the words, "solely" after the word "appeal" ie "an appeal lies solely to a full bench et cetera" that that failure suggests that an appeal to the District Court under the Crimes (Appeal and Review) Act has not been excluded. 14. However, what is apparent from the other legislation is a clear intent to have industrial and occupational health and safety issues determined within the industrial system rather than within the general criminal law. 15. True it is that the Crimes (Appeal and Review) Act makes specific provision to exclude appeals for environmental offences from the District Court and Supreme Court but does not make a similar exclusion in regard to occupational health and safety offences. However, I do not see that as being necessarily determinative of the issue, especially where there is clear intent in other legislation that occupational health and safety appeals should be dealt with within the industrial system. That is made clear by s 33(1C) of the Dangerous Goods Act 1975. It is made clearer by s 197(2) of the Industrial Relations Act which purposely requires that such appeals be dealt with by the Industrial Court in accordance with the Crimes (Appeal and Review) Act 2001 both substantively and procedurally, which is an indication that the effect of the latter legislation was in the Parliament's mind at the time it was passed. 16. It is not conducive to the administration of justice that there be two competing paths of appeal in two different jurisdictions, one of which is inferior to the other. 17. In my view the order that should be made on the notice of motion is that the appeal to this Court is stayed for a period of three months and then, subject to any order of a superior court, is dismissed as being beyond the Court's jurisdiction. 18. The costs issue was not argued before me. I reserve the issue of costs and grant liberty to both parties to have the matter re-listed for that purpose. oOo