Industrial Relations Commission of New South Wales in Court Session CITATION : WorkCover v Red Lea Chickens [2000] NSWIRComm 168 PROSECUTOR: PARTIES : WorkCover DEFENDANT: Red Lea Chickens Pty Ltd FILE NUMBER: IRC 6669 of 1999 CORAM: Boland J CATCHWORDS : Practice and procedure - notice of motion - application to have matter struck out or permanently stayed - summons not issued by Registrar in accordance with Rule 220 of the Rules of the Commission - s12 of Supreme Court (Summary Jurisdiction) Act applied - notice of motion dismissed LEGISLATION CITED : Industrial Relations Act 1996 Supreme Court (Summary Jurisdiction) Act 1967 CASES CITED : Ridge Consolidated Pty Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 151 WorkCover Authority of New South Wales (Inspector Lancaster) v Re-Car Consolidated Industries (Wagga) Pty Ltd (unreported Matter No's 4663 4664 4666 of 1997 14 July 1999) HEARING DATES: 08/23/2000 EXTEMPORE JUDGMENT DATE : 08/23/2000 PROSECUTOR: Mr I Taylor of Counsel Ms K McCullough, Solicitor Ebsworth & Ebsworth LEGAL REPRESENTATIVES: DEFENDANT: Mr G Watson of Counsel Ms S Thomas, Solicitor Sparke Helmore JUDGMENT: - 3 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: BOLAND J. Wednesday 23 August 2000 Matter No IRC 6999 of 99 WORKCOVER AUTHORITY OF NSW (INSP MACBETH) V RED LEA CHICKENS PTY LTD Notice of Motion - Prosecution under s15(1) of the Occupational Health and Safety Act 1983 INTERLOCUTORY JUDGMENT ( extempore ) 1 This morning, at the outset of these proceedings, Mr Watson, counsel for the defendant filed a notice of motion and affidavit in support seeking that: 1. the matter be struck out; 2. in the alternative, the matter be permanently stayed; 3. the prosecution pay the respondent's costs; 2 The ground relied on for the motion was that the matter was not commenced in accordance with the proper rules in that the Summons was not issued by the Registrar in accordance with Rule 220 of the Rules of the Commission but was signed and issued by a clerical officer within the Registry, namely Ms Skinner. 3 Having heard Mr Watson's argument on the point and Mr Taylor's response for the prosecution opposing the motion, I have come to the view that I should dismiss the notice of motion and proceed to hear and determine the matter. 4 In dismissing the motion I have had regard to the judgment of the Full Bench in Ridge Consolidated Pty Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 151 handed down on 18 August 2000. I have also had particular regard to the provisions of sections 168, 170 and 196 (1) of the Industrial Relations Act 1996 and sections 4, 6(1) and 12 of the Supreme Court (Summary Jurisdiction) Act 1967 and Rule 220 of the Industrial Relations Commission Rules 1996. 5 I take the view that s 12 of the Supreme Court (Summary Jurisdiction) Act 1967 sufficiently deals with the situation. Section 12 provides that: 12. If, upon the day and at the time and place appointed for hearing or to which the hearing or further hearing has been adjourned, both parties appear in person or by their respective counsel or attorneys the Judge shall proceed to hear the case. 6 Both parties have appeared by their respective counsel this morning and are in a position to proceed with the hearing. 7 In any event, I rely on the judgment of Marks J in WorkCover Authority of New South Wales ( Inspector Lancaster ) v Re-Car Consolidated Industries (Wagga) Pty Ltd (unreported, Matter No.s 4663, 4664, 4666 of 1997, 14 July 1999) where his Honour dealt with the point raised by Mr Watson. On 30 May 2000 I consider that I did set down the time and place of the hearing of this summons consistent with the requirements of s4(1)(a) of the Supreme Court (Summary Jurisdiction) Act 1967. 8 I do not consider that by proceeding to hear and determine this matter I will have offended the public interest or that the defendant will get anything other than a fair trial. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.