Morrison v Powercoal Pty Ltd & Anor. (No. 2) [2005] NSWIRComm 6

Industrial Relations Commission of New South Wales in Court Session

CITATION: Morrison v Powercoal Pty Ltd & Anor. (No. 2) [2005] NSWIRComm 6

APPELLANT / RESPONDENT ON NOTICE OF MOTION Rodney Dale Morrison

RESPONDENT/APPLICANT ON NOTICE OF MOTION (IRC No 7068 of 2003) PARTIES: Powercoal Pty Ltd

RESPONDENT/APPLICANT ON NOTICE OF MOTION (IRC 7069 of 2003) Peter Lamont Foster

FILE NUMBER(S): IRC 7068 and 7069 of 2003

CORAM: Walton J Vice-President; Boland J; Staff J

Occupational health and safety - Interlocutory proceedings - Notice of motion - Coalmining industry - Workplace death - Whether respondents should be granted applications to vacate hearing date for sentencing in relation to earlier guilty findings for offences under Occupational Health and Safety Act 1983 - Respondents seeking prerogative relief in NSW Court of Appeal - Applications to vacate grounded on: (i) challenge to the jurisdiction of the Commission in Court Session to hear and determine criminal prosecutions in occupational health and safety, (ii) respondents' concern that s 179 of Industrial Relations Act 1996 (privative clause) might be a bar to gaining prerogative relief if Commission in Court Session proceeds to conviction and sentence - Lateness of jurisdictional and other challenges - Not previously raised in proceedings - Likelihood of similar applications generally - Significance of legislation - Public interest - No prejudice to respondents' jurisdictional challenge if Commission proceeds to conviction and sentence - Respondents' concern in relation to effect of s 179 not a basis to vacate hearing on sentence - That there is no further avenue of appeal open to the respondents does not make for a special circumstance that requires the Commission to stay its hand and not proceed to sentencing in order that the respondents may seek prerogative relief - Policy regarding interruption of criminal proceedings - Applications to vacate refused - Costs reserved