Inspector Hamilton v John Holland Pty Ltd and anor [2009] NSWIRComm 26

Industrial Court of New South Wales

CITATION: Inspector Hamilton v John Holland Pty Ltd and anor [2009] NSWIRComm 26

PROSECUTOR: Inspector Nathan Hamilton

DEFENDANT (Matter Nos 1989 & 1990 of 2007): John Holland Pty Ltd PARTIES: DEFENDANT (Matter Nos 1991 & 1992 of 2007): ACN 061 447 621 Pty Ltd (formerly known as Pells Sullivan Meynink Pty Ltd)

INTERVENOR: Attorney General of New South Wales

FILE NUMBER(S): IRC 1989 of 2007; IRC 1990 of 2007; IRC 1991 of 2007; IRC 1992 of 2007

CORAM: Boland J President; Walton J Vice-President; Staff J

OCCUPATIONAL HEALTH AND SAFETY - Interlocutory proceedings - Prosecutions under s 8(1) and s 8(2) of the Occupational Health and Safety Act 2000 - Notices of motion challenging Industrial Court's jurisdiction to deal with the prosecutions - Constitutional question involving inconsistency between Commonwealth and State laws - Whether because the first defendant was "a non Commonwealth licensee" at the time the charges were laid and, consequently, an "employer" within the meaning of those expressions in the Occupational Health and Safety Act 1991 (Cth), an inconsistency existed between s 4(1) of the Commonwealth Act and the continuing operation of the NSW Act in relation to the first defendant and its employees - Whether the prosecutor was authorised to commence the prosecutions on the ground that the site where the alleged offences occurred was a mine - Further submissions sought as to whether Court should proceed to determine constitutional question in light of proceedings in the High Court that purportedly raised the same question - Held that the site of the incident in each of the charges was not a "mine" at the relevant time within the meaning of the Occupational Health and Safety Act 2000 CATCHWORDS: STATUTORY INTERPRETATION - Occupational health and safety - Interlocutory proceedings - Prosecutions under s 8(1) and s 8(2) of the Occupational Health and Safety Act 2000 - Notices of motion challenging Industrial Court's jurisdiction to deal with the prosecutions - Whether the prosecutor was authorised to commence the prosecutions on the ground that the site where the alleged offences occurred was a mine - Rules of statutory construction - "Context" - Purpose of legislation - Meaning of the word "mine" in Mines Inspection Act 1901 - Meaning of the word "extraction" in Mines Inspection Act 1901 - Held that the site of the incident in each of the charges was not a "mine" at the relevant time within the meaning of the Occupational Health and Safety Act 2000