Industrial Relations Commission of New South Wales in Court Session CITATION : Inspector Sequeira v O'Neill Shows Pty Ltd [2003] NSWIRComm 18 PROSECUTOR Inspector Sequeira PARTIES : DEFENDANT O'Neill Shows Pty Limited FILE NUMBER: IRC 75 of 2003 CORAM: Boland J CATCHWORDS : Occupational Health and Safety - Notice of motion filed to amend application for order under s 4 (1) of Supreme Court (Summary Jurisdiction) Act 1967 - Defendant claiming out of time - Leave granted to file amended application - Order to be issued Industrial Relations Act 1996 LEGISLATION CITED : Industrial Relations Commission Rules 1996 Supreme Court (Summary Jurisdiction) Act 1967 Mansell v TMG International Pty Limited (2002) 116 IR 128 CASES CITED : Ridge Consolidated Pty Ltd v WorkCover Authority of New South Wales (Inspector Mauger) (2000) 100 IR 156 WorkCover Authority of New South Wales (Inspector Keenan) v Lucon (Australia) Pty Limited (2002) 112 IR 332 HEARING DATES: 02/03/2003 DATE OF JUDGMENT: 02/07/2003 PROSECUTOR Ms L McManus of counsel Solicitor: Mr G Spain WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: DEFENDANT Mr J Lundy Solicitor Grinberg Young JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Boland J Date: 7 February, 2003 Matter No IRC 75 of 2003 INSPECTOR BRENDAN SEQUEIRA v O'NEILL SHOWS PTY LIMITED Prosecution under section 16(1) of the Occupational Health and Safety Act 1983 JUDGMENT 1 On 7 January 2003 Brendan Sequeira an Inspector with the WorkCover Authority of New South Wales made application for an order pursuant to s 4 of the Supreme Court (Summary Jurisdiction) Act 1967 as applied by s 168 of the Industrial Relations Act 1996. The application alleged that the defendant, O'Neill Shows Pty Limited, breached s 16(1) of the Occupational Health and Safety Act 1983. 2 The application was referred to Kavanagh J who, upon noticing an inconsistency between the date of the alleged offence (7 April 2001) and the date particularised (7 January 2001), declined to issue an order. 3 On 15 January 2003 the prosecutor filed a notice of motion seeking to amend the application for order to remove the inconsistency so that both the date of the alleged offence and the date particularised read the same, namely, 7 January 2001. The problem was that the notice of motion was also wrong, referring to the year 2003 rather than 2001. The affidavit in support of the notice of motion was also wrong. 4 In the proceedings to deal with the motion an amended motion was tendered with the correct date. The defendant opposed the motion, asserting that the prosecutor was now out of time it being more than two years (7 January 2001) since the alleged offence occurred. 5 It is clear from Ridge Consolidated Pty Ltd v WorkCover Authority of New South Wales (Inspector Mauger) (2000) 100 IR 156, WorkCover Authority of New South Wales (Inspector Keenan) v Lucon (Australia) Pty Limited (2002) 112 IR 332 and Mansell v TMG International Pty Limited (2002) 116 IR 128 that the proceedings were validly commenced when the application for order and supporting affidavit were filed in the Registry on 7 January 2003. Pursuant to s 170 of the Act and r 148 of the Industrial Relations Commission Rules 1996 the Commission may give leave to amend any document in the proceedings. 6 Leave is granted to the prosecution to amend the application for order and the affidavit in support of the application for order filed in these proceedings on 7 January 2003 by changing the date of the offence to 7 January 2001. 7 On the basis of the amended application and supporting affidavit the Commission will make an order pursuant to s 4(1) of the Supreme Court (Summary Jurisdiction) Act 1967 as applied by s 168 of the Industrial Relations Act for the defendant to appear before the Commission in Court Session to answer to the offence charged. __________________________ 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.