Industrial Relations Commission of New South Wales in Court Session CITATION : Inspector Steven Jones v State of New South Wales (Department of Public Works and Services) [2001] NSWIRComm 321 PROSECUTOR Inspector Steven Jones (WorkCover Authority of New South Wales) PARTIES : DEFENDANT State of New South Wales (Department of Public Works and Services) AMICUS CURIAE Attorney General for New South Wales FILE NUMBER: IRC 2097 of 2000 CORAM: Wright J President; Walton J Vice-President; Hungerford J Occupational health and safety - Crown - Whether Crown department liable to prosecution under the OH & S Act - Whether an "employer" within the meaning of the OH & S Act - Application by notice of motion to dismiss prosecution against government department - Reference of questions of law to Full Bench - No longer utility in Full Bench answering questions of law - No jurisdictional impediment to Court hearing and determining charges laid - Questions remitted to single judge to deal with notice of motion. CATCHWORDS : Crown - Occupational health and safety - Whether Crown department liable to prosecution under the OH & S Act - Whether an "employer" within the meaning of the OH & S Act - Application by notice of motion to dismiss prosecution against government department - Reference of questions of law to Full Bench - No longer utility in Full Bench answering questions of law - No jurisdictional impediment to Court hearing and determining charges laid - Questions remitted to single judge to deal with notice of motion. LEGISLATION CITED : Occupational Health and Safety Act 1983 HEARING DATES: 11/20/2001 EXTEMPORE JUDGMENT DATE : 11/20/2001 PROSECUTOR Mr J W Shaw QC with Mr B G Docking of Counsel Solicitor: Mr G Henderson PricewaterhouseCoopers Legal DEFENDANT LEGAL REPRESENTATIVES: Mr James Whittaker, Solicitor Corrs Chambers Westgarth AMICUS CURIAE Mr M G Sexton SC SG with Ms K T Nomchong of Counsel Solicitor: Mr I V Knight, Crown solicitor (Mr B Stewart) JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION FULL BENCH CORAM: WRIGHT J, President WALTON J, Vice-President HUNGERFORD J Tuesday 20 November 2001 Matter No IRC 2097 of 2000 INSPECTOR STEVEN JONES v STATE OF NEW SOUTH WALES (DEPARTMENT OF PUBLIC WORKS AND SERVICES) Prosecution under s 16(1) of the Occupational Health and Safety Act 1983 JUDGMENT OF THE COURT (Extempore) [2001] NSWIRComm 321 1 The Full Bench has decided to reject the application by the defendant to withdraw its submissions in support of the notice of motion and as to the questions referred. We do so in order that those submissions will be available for the purpose of considering the submissions put today by amicus curiae and by the prosecutor as to the questions of law which have been referred to the Full Bench in these terms 1. Is the defendant Crown in right of the State of New South Wales (Department of Public Works and Services) liable to criminal prosecution under the Occupational Health and Safety Act 1983? 2. Is the defendant Crown in right of the State of New South Wales (Department of Public Works and Services) an "employer" within the meaning of section 16(1) of the Occupational Health and Safety Act 1983? 2 Having heard the helpful and comprehensive submissions put by Mr Shaw QC for the prosecutor and Mr Sexton SC, Solicitor-General, for the Attorney General as amicus curiae, we consider that there is no longer any utility in answering the questions. Even when the questions are considered against the submissions filed by the defendant, we are satisfied that no jurisdictional impediment exists to the Court proceeding to hear and determine the charges brought by the prosecutor. 3 In reaching this conclusion we have very much in mind the submissions made today by Mr Sexton SC and Ms Nomchong as amicus to this effect: "If it were considered that these questions might arise before the Commission on a regular basis in the future, there might be a good reason for determining them at this time. But, as already noted, these questions cannot arise under the new legislation and so can only be an issue in a closed class of cases remaining under the old legislation. Given the existence of an opinion by the Solicitor General on these questions, it might be thought that it is unlikely that they will arise even in that closed class of cases involving a government agency or instrumentality as the defendant." 4 Accordingly we decline to answer the two questions referred and the questions are remitted to Hungerford J to deal with the notice of motion in accordance with this judgment. 5 [Note: When the proceedings were dealt with by Hungerford J later on Tuesday 20 November 2001, his Honour delivered the following extempore judgment and made orders accordingly: In light of the decision reached by the Full Bench on the issue of the two referred questions of law, I am satisfied that it is only appropriate that the notice of motion by the defendant be disposed of in a definitive way. That may properly be effected, in my view, by the dismissal of the motion. The question of costs arises. The prosecution seeks costs of and incidental to the motion. Consistent with the decision of the Full Bench, I think it is only proper that the defendant pay the prosecutor's costs of the notice of motion. Accordingly I make an order that the notice of motion be dismissed. I further order that the defendant pay the prosecutor's costs of and incidental to the motion. The parties will be advised in due course of the matter being listed for the purposes of directions in order that the hearing and determination of the charges concerned be dealt with.] ________________________________ 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.