KIRK GROUP HOLDINGS PTY LTD & ANOR v WORKCOVER AUTHORITY OF NEW SOUTH WALES & ANOR [2006] NSWCA 172

Reported Decision : 66 NSWLR 151 154 IR 310

New South Wales Court of Appeal

CITATION: KIRK GROUP HOLDINGS PTY LTD & ANOR v WORKCOVER AUTHORITY OF NEW SOUTH WALES & ANOR [2006] NSWCA 172

HEARING DATE(S): 15 May 2006

JUDGMENT DATE: 30 June 2006

JUDGMENT OF: Spigelman CJ at 1; Beazley JA at 52; Basten JA at 53

DECISION: (1) In the proceedings in the Court of Criminal Appeal, the appeal should be dismissed; (2) In the proceedings in the Court of Appeal; (a) dismiss the amended summons filed on 11 April 2005; (b) order the Claimants to pay the costs of the Second Opponent

CATCHWORDS: JURISDICTION – Court of Criminal Appeal – Charges against Appellants under Occupational Health and Safety Act 1983 (NSW) found proved in Industrial Court – whether appeal from Industrial court can be brought to Court of Criminal Appeal under Criminal Appeal Act 1912, s5(1) – whether the Appellants can make an application for an inquiry under Crimes Act 1900 (NSW), Part 13A - JURISDICTION – Court of Appeal – whether the Court of Appeal has supervisory jurisdiction over the Industrial Court – whether the jurisdiction should be exercised - PRIVATIVE CLAUSE – whether s179 of the Industrial Relations Act is valid – whether s179 operated in relation to proceedings in the criminal jurisdiction of the Industrial Court

The Constitution (Cth), ss 73(ii), 75(v), 109, Chapter III Crimes Act 1900 (NSW), ss 3, 474D, 474E, 474H, 474L, 475, Pt 13A Criminal Amendment Act 1883, ss 383, 384 Criminal Appeal Act 1912 (NSW), ss 2, 5, 5AA, 6 Criminal Procedure Act 1986, ss 170, 256, Pt 5; Sch 2, Pt 7, cls 26, 32 Dangerous Goods Regulation 1978 (NSW), regs 18 and 19 Industrial Arbitration Act 1940 (NSW), s 84 Industrial Relations Act 1991 (NSW), s 301 Industrial Relations Act 1996 (NSW), ss 151A, 168, 179, 187, 188, 196, 197 Industrial Relations Amendment Act 2005 (NSW), Sch 4, cl 31B LEGISLATION CITED: Interpretation Act 1987 (NSW), s 30 Judiciary Act 1903 (Cth), s 3 Justices Legislation Repeal and Amendment Act 2001 (NSW), Sch 2, item 2.126[1] Occupational Health and Safety Act 1983 (NSW), ss 15, 16, 50, 53 Occupational Health and Safety Act 2000 (NSW), s 139, Sch 1, Sch 3, cls 2, 13 Stevedoring Industry Act 1949 (Cth), s 52 Supreme Court Act 1970 (NSW), ss 44, 69 Supreme Court (Summary Jurisdiction) Act 1967 (NSW), ss 4, 28B Workplace Relations Act 1996 (Cth), s16 Workplace Relations Amendment (Work Choices) Act 2005 (Cth) Workplace Relations Regulations 2006 (Cth), reg 1.2(2)