John Cahill v State of New South Wales (Department of Community Services) (No 2) [2007] NSWIRComm 187

Industrial Court of New South Wales

CITATION: John Cahill v State of New South Wales (Department of Community Services) (No 2) [2007] NSWIRComm 187

PROSECUTOR John Joseph Cahill PARTIES: DEFENDANT State of New South Wales (Department of Community Services)

FILE NUMBER(S): IRC 2387 of 2006

CORAM: Boland J

Occupational Health and Safety - Interlocutory proceedings - Application by defendant to strike out application for order for abuse of process and invalid delegation of power to institute proceedings - Whether at the time of instituting the proceedings the prosecutor was in possession or command of sufficient admissible evidence capable of establishing each element of charge - Whether proceedings were commenced on 23 May 2006 for the purpose of avoiding the effect of subsection 107(1) of the Occupational Health and Safety Act 2000, the operation of which would have caused any proceedings alleging breaches of that Act by the defendant on 24 May 2004 to become statute-barred at midnight on 23 May 2006 - Whether prosecutor invalidly delegated his authority under s 106(1)(d) of the Occupational Health and Safety Act 2000 to decide to institute these proceedings - Consideration of power to stay criminal proceedings where there is an abuse of process - Obligations on a secretary of an industrial organisation in instituting proceedings under the Occupational Health and Safety Act 2000 - Held defendant had not made out grounds in strike out motion - Motion dismissed CATCHWORDS: Practice and procedure - Occupational Health and Safety - Interlocutory proceedings - Application by defendant to strike out application for order for abuse of process and invalid delegation of power to institute proceedings - Whether at the time of instituting the proceedings the prosecutor was in possession or command of sufficient admissible evidence capable of establishing each element of charge - Whether proceedings were commenced on 23 May 2006 for the purpose of avoiding the effect of subsection 107(1) of the Occupational Health and Safety Act 2000, the operation of which would have caused any proceedings alleging breaches of that Act by the defendant on 24 May 2004 to become statute-barred at midnight on 23 May 2006 - Whether prosecutor invalidly delegated his authority under s 106(1)(d) of the Occupational Health and Safety Act 2000 to decide to institute these proceedings - Consideration of power to stay criminal proceedings where there is an abuse of process - Obligations on a secretary of an industrial organisation in instituting proceedings under the Occupational Health and Safety Act 2000 - Held defendant had not made out grounds in strike out motion - Motion dismissed