Rodney Morrison v Joy Manufacturing Co Pty Ltd [2002] NSWIRComm 366

Industrial Relations Commission of New South Wales

CITATION : Rodney Morrison v Joy Manufacturing Co Pty Ltd [2002] NSWIRComm 366 PROSECUTOR Mr Rodney Morrison, Department of Mineral Resources New SouthWales PARTIES : DEFENDANT Joy Manufacturing Co Pty Ltd FILE NUMBER: IRC 5413 of 2001 CORAM: Marks J CATCHWORDS : Occupational Health and Safety Act prosecution - Solicitor retained for prosecutor a partner of solicitors appointed by workers compensation and public liability insurers to represent the defendant in the defence of insurance claims - Held information obtained by solicitors in connection with the defence of insurance claims had actual and potential relevance to the defence by the defendant of the occupational health and safety prosecution - Held that in the circumstances the retention of the solicitor by the prosecutor and the refusal by the solicitor to cease acting for the prosecutor constituted an abuse of process - Held that abuse of process not capable of being cured - Proceedings permanently stayed. Occupational Health & Safety Act 1983 s 18(2)(a) LEGISLATION CITED : Supreme Court (Summary Jurisdiction) Act 1967 S 4(1) Industrial Relations Act 1996 s 168 Limitation Act 1969 (NSW) Groom v Crocker (1939) 1 KB 194 Ford Excavations Pty Ltd v Do Carmo (1981) 2 NSWLR 253 Spector v Ageda (1973) 1 CH 30 Moody v Cox (1917) 2 CH 71 Romanin v University Co-op Bookshop Ltd (2001) 107 IRComm 295 CASES CITED : Rakusen v Ellis (1912) 1 CH 831 Prince Jefri Bolkiah v KPMF (a firm) (1999) 2 AC 222 Mallesons Stephen Jaques v KMPG Peat Marwick (1991) 4 WAR 357 Younghams v Elfic Ltd (unreported 3 July 1998 Matter No 5970 of 1997 Grant v Downs (1976) 135 CLR 674 Automotive Food Metals Engineering Printing & Kindred Use Industries Union v Joy Manufacturing Co Pty Ltd (2000) FDA 693 Oceanic v HIH (1999) NSW SC 292 HEARING DATES: 12/05/2002 DATE OF JUDGMENT: 12/27/2002