Kirk Group Holdings Pty Ltd and Anor v WorkCover Authority of New South Wales (Inspector Childs) [2006] NSWIRComm 355

Industrial Court of New South Wales

CITATION: Kirk Group Holdings Pty Ltd and Anor v WorkCover Authority of New South Wales (Inspector Childs) [2006] NSWIRComm 355

APPELLANTS Kirk Group Holdings Pty Ltd PARTIES: Graeme Joseph Kirk

RESPONDENT WorkCover Authority of New South Wales (Inspector Childs)

FILE NUMBER(S): IRC 2680 of 2006

CORAM: Wright J President; Boland J; Backman J

Application to extend time to appeal - Appeal - Occupational health and safety - Simultaneous challenges to first instance decision of the Industrial Court pursued in Court of Appeal and Court of Criminal Appeal - Challenges unsuccessful - Applicants subsequently sought to extend time to appeal before Full Bench of Industrial Court - Consideration of appropriate statutory basis as to time for filing the appeal and for granting the extension of time to appeal - Application to appeal well out of time - Court's discretion to grant extension of time - Reason for delay because applicants considered they had a better chance of success in Courts of Appeal than in Industrial Court - No reason of substance why an appeal could not have been brought within prescribed time before Full Bench of Industrial Court - Effect of amendments to s 179 of Industrial Relations Act 1996 - Re-formulation of two alleged errors at first instance by Court of Appeal - To grant an extension of time would not only provide applicants with the benefit of forum shopping but also with added advantage of re-formulation by Court of Appeal of their jurisdictional case - Absolute nature of liability under Occupational Health and Safety Act - Considered that on balance extension of time should be granted in relation to third alleged error that Court at first instance failed to deal properly with the responsibility of individuals whose knowledge and acts could be those of the corporate employer - Extension of time to appeal granted only in respect of third alleged error. CATCHWORDS: Occupational health and safety - Application to extend time to appeal - Appeal - Simultaneous challenges to first instance decision of the Industrial Court pursued in Court of Appeal and Court of Criminal Appeal - Challenges unsuccessful - Applicants subsequently sought to extend time to appeal before Full Bench of Industrial Court - Consideration of appropriate statutory basis as to time for filing the appeal and for granting the extension of time to appeal - Application to appeal well out of time - Court's discretion to grant extension of time - Reason for delay because applicants considered they had a better chance of success in Courts of Appeal than in Industrial Court - No reason of substance why an appeal could not have been brought within prescribed time before Full Bench of Industrial Court - Effect of amendments to s 179 of Industrial Relations Act 1996 - Re-formulation of two alleged errors at first instance by Court of Appeal - To grant an extension of time would not only provide applicants with the benefit of forum shopping but also with added advantage of re-formulation by Court of Appeal of their jurisdictional case - Absolute nature of liability under Occupational Health and Safety Act - Considered that on balance extension of time should be granted in relation to third alleged error that Court at first instance failed to deal properly with the responsibility of individuals whose knowledge and acts could be those of the corporate employer - Extension of time to appeal granted only in respect of third alleged error.