Industrial Relations Commission of New South Wales in Court Session CITATION : Manassa v WorkCover Authority of New South Wales [2002] NSWIRComm 219 APPELLANT James Anthony Manassa PARTIES : RESPONDENT WorkCover Authority of New South Wales FILE NUMBER: IRC 6427 of 2001 CORAM: Wright J President; Walton J Vice-President; Haylen J CATCHWORDS : Appeal - Leave to appeal - Appeal from convictions and fines imposed by Chief Industrial Magistrate - Refusal to grant adjournment application - Whether s 100D of the Justices Act applies to circumstances before magistrate - Appeal upheld - Matter remitted to be dealt with as if application pursuant to s 100D Industrial Relations Act 1996 s 197 LEGISLATION CITED : Justices Act 1902 s 100D s 100P Occupational Health and Safety Act 1983 s 31N s 50 HEARING DATES: 07/30/2002 EXTEMPORE JUDGMENT DATE : 07/30/2002 APPELLANT Mr S R Coleman of counsel Solicitors: Michael Jokovic & Associates (Mr P P Cutajar) LEGAL REPRESENTATIVES: RESPONDENT Mr B G Docking of counsel Solicitors: Carroll & O'Dea (Ms T M Neilson) JUDGMENT: - 5 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: WRIGHT J, President WALTON J, Vice-President HAYLEN J Tuesday 30 July 2002 Matter No IRC 6427 of 2001 JAMES ANTHONY MANASSA v WORKCOVER AUTHORITY OF NEW SOUTH WALES Application for leave to appeal and appeal against a decision of the Chief Industrial Magistrate given on 3 September 2001 in Matters Nos 20202224/00/2-20202267/00/2 JUDGMENT OF THE COURT (Extempore) [2002] NSWIRComm 219 1 This is an application for leave to appeal and, subject to leave being granted, an appeal pursuant to s 197 of the Industrial Relations Act 1996 from convictions recorded on 3 September 2001 at the Downing Centre Local Court by his Worship the Chief Industrial Magistrate. The convictions were recorded in prosecutions brought by Dennis Howard, an inspector of the WorkCover Authority of New South Wales, pursuant to s 50(1) and s 31N(d) of the Occupational Health and Safety Act 1983. 2 The matters the subject of appeal are both the conviction and the severity of the penalty imposed. His Worship fined the defendant the sum of $37,500 in the proceedings brought under s 50(1) and in respect of the proceedings under s 31N(d) the fine was $5,500. 3 The basis upon which leave to appeal was sought, and one of the bases on which the appeal was sought to be upheld, was that the Chief Industrial Magistrate had refused to grant the adjournment sought on behalf of the appellant when in all the circumstances it was in the interests of justice to grant it; and that, by virtue of the failure to grant the adjournment, his Worship denied the appellant the opportunity to present his case in defence or to place before the court any material in mitigation. Thus, it was submitted, there was no hearing on the merits of the case either as to conviction or as to penalty. 4 It is common ground that the defendant did not appear in the court on the relevant day and in the course of their detailed argument, counsel for each party has contended that s 100D of the Justices Act 1902 applies to the present circumstances and that, instead of filing the present appeal under s 197 of the Industrial Relation Act, the appellant could have made an application under s 100D for annulment of the conviction. Section 100D, Applications for annulment, of the Justices Act is in the following terms: (1) An application may be made by or on behalf of a person for the annulment of any of the following: (a) a conviction or an order (other than an interlocutory order) made in respect of the person by a Magistrate that was made in the absence of the person. (b) a sentence imposed on the person by a Magistrate in the absence of the person. (2) An application for an annulment of a conviction or an order made by a Magistrate or a sentence imposed by a Magistrate may also be made by or on behalf of any person who is an informant in the proceedings concerned. 5 At the time the proceedings were dealt with at first instance and at the time the notice of appeal was lodged, s 100P of the Justices Act was in force, although it subsequently ceased to have effect from January 2002. That provision was in the following terms: 100P Application prohibited if decision has been appealed to another court An application may not be made by a person under section 100D or 100G if an appeal or an application for leave to appeal has been made by the person under this Act to the Supreme Court, the District Court or the Land Environment Court or under the Industrial Relations Act 1996 to the Industrial Relations Commission in Court Session. 6 We do not consider that these proceedings provide an appropriate vehicle for the final determination of the issue whether the procedure under s 100D is available in circumstances where an appeal may be made to this Court pursuant to s 197 of the Industrial Relations Act. Nor do we consider it is necessary to determine finally that issue in the light of s 197(4) which provides: (4) The Full Bench of the Commission in Court Session may refer a 7 matter the subject of an appeal back to the Local Court with 8 such directions or recommendations as it considers appropriate. 9 We consider that s 197(4) enables the Full Bench to refer this matter to the Local Court with a direction that the matter be dealt with in the manner of an application under s 100D notwithstanding our preliminary view that the joint or common view of counsel as to the availability of s 100D is correct. We consider, for example, that the terms of s 100P, as in force at the relevant time, provide support for this approach. 10 We therefore consider that the appropriate manner of dealing with this matter is in the way set out earlier under s 197(4) and order accordingly. 11 This matter is one to which the provisions of s 100D are and were entirely appropriate and this, of itself, in the present circumstances of this case, warrants the grant of leave. 12 We therefore make the following orders: (1) Leave to appeal granted. (2) This Court refers the matters the subject of these proceedings pursuant to the provisions of s 197(4) of the Industrial Relations Act 1996 back to the Local Court to deal with in the manner of an application for annulment of conviction or order pursuant to s 100D of the Justices Act 1902. (3) This Court directs that the evidence in these proceedings be evidence in the proceedings before the Local Court. (4) The question of costs is reserved until after the proceedings in the Local Court have concluded. (5) Any application as to the stay earlier made in these proceedings or as to costs shall be dealt with in the first instance "on the papers". _______________________________________ 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.