Reported Decision : 153 IR 97 New South Wales Court of Appeal CITATION: John Holland Group Pty Ltd v Industrial Relations Court of NSW & Inspector Gary Mason (WorkCover Authority of NSW) [2006] NSWCA 93 HEARING DATE(S): 12 April 2006 JUDGMENT DATE: 28 April 2006 JUDGMENT OF: Spigelman CJ at 1; Handley JA at 28; Giles JA at 29 DECISION: Summons dismissed with costs CATCHWORDS: JUDICIAL REVIEW - Application to intervene in criminal proceedings commenced in Industrial Court - Where claimant asserted that proceedings baseless - Where claimant asserted that proceedings begun out of time - Where claimant took no step before Industrial Court to challenge validity of proceedings - Supreme Court should not interfere pre-emptively Criminal Appeal Act 1912, s5F Criminal Procedure Act 1986, s246(1); Sch 2 LEGISLATION CITED: Criminal Procedure Amendment (Justices & Local Courts) Act 2001 Industrial Relations Act 1996, ss 168, 179 Industrial Relations Commission Rules 1996, r 217B Occupational Health and Safety Act 2000, ss 8(2), 107 McConnell Dowell Constructors (Aus) Pty Ltd v Environment Protection Authority (2000) 50 NSWLR 127 McGerty v Dairy Farmers Co-Operative Limited (1989) 43 A Crim R 308 CASES CITED: Morrison v Joy Manufacturing Co Pty Ltd [2004] NSWIRComm 107 Ove Arup Pty Ltd & Ors v Industrial Court of NSW [2006] NSWCA 28 S.S. Kalibia v Wilson (1910) 11 CLR 689 Sankey v Whitlam (1978) 142 CLR 1 John Holland Group (Claimant) PARTIES: Industrial Relations Court of New South Wales (First Opponent) Inspector Gary Mason (WorkCover Authority of New South Wales) (Second Opponent) FILE NUMBER(S): CA 40721/05 G Hatcher SC, G McGrath (Claimant) COUNSEL: J Agius SC, P Lowson (Second Opponent) N Perram (Attorney General, intervening) Thomas Playford (Claimant) SOLICITORS: IV Knight - Crown Solicitor (First Opponent, Attorney General) WorkCover Authority of New South Wales (Second Opponent) LOWER COURT JURISDICTION: Industrial Relations Court of New South Wales LOWER COURT FILE NUMBER(S): IRC 2174 of 2005 LOWER COURT JUDICIAL OFFICER: Haylen J - 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40721/05 SPIGELMAN CJ HANDLEY JA GILES JA FRIDAY 28 APRIL 2006 JOHN HOLLAND GROUP PTY LTD v INDUSTRIAL RELATIONS COURT OF NEW SOUTH WALES & INSPECTOR GARY MASON (WORKCOVER AUTHORITY OF NEW SOUTH WALES) Judgment 1 SPIGELMAN CJ: The Claimant invokes the supervisory jurisdiction of this Court to intervene in proceedings in the Industrial Relations Court of New South Wales in which allegations have been made that the Claimant committed an offence against s8(2) of the Occupational Health and Safety Act 2000 (the "OH&S Act"). 2 On 29 May 2003 a worker was injured at a worksite. He was employed as a rigger by Telecommunication Infrastructure Pty Ltd which was undertaking the demolition of a telecommunications mast as a subcontractor to another company, John Holland Pty Ltd. Each of these companies was related to the Claimant, John Holland Group Pty Ltd. 3 Prosecutions were commenced against each of John Holland Pty Ltd and Telecommunications Infrastructure Pty Ltd as well as against the Claimant. The only matter before this Court concerns the proceedings against the Claimant. 4 On 27 May 2005, immediately before the expiration of a period of two years within which proceedings had to be commenced, the Second Opponent, acting on behalf of his employer, the Workcover Authority, filed an Application for Order together with a supporting affidavit. On 1 June 2005 his Honour Justice Haylen, a judicial member of the then Industrial Relations Commission of New South Wales, made the order sought, pursuant to s246(1) of the Criminal Procedure Act 1986, as applied by s168 of the Industrial Relations Act 1996, ordering the defendant to appear before the Court to answer the offence charged. The order was made ex parte. 5 The Claimant made no application to Justice Haylen to vary or set aside the ex parte order. (See Owners of S.S. Kalibia v Wilson (1910) 11 CLR 689 at 694.) Nor did the Claimant take any step to challenge the jurisdiction in the Commission. In September 2005, the Claimant brought these proceedings in this Court and sought from this Court a stay of the hearing of the proceedings in the Industrial Relations Commission. I should note that in September 2005 the Claimant applied in the Commission for a stay of the hearing of the proceedings that had been instituted against John Holland Group Pty Ltd, but Justice Schmidt of the Industrial Relations Commission declined to grant a stay. 6 On 31 October 2005 Giles JA made an order staying the proceedings against the Claimant in the Industrial Relations Commission. His Honour found that it was at least arguable that the proceedings were not instituted within the required time period and that, if that be the case, the privative provision in s179 of the Industrial Relations Act 1996, in its then form, may preclude any review by this Court of an adverse decision in the Industrial Relations Commission. 7 His Honour concluded: "[14] … [I]t seems to me that there is a significant prospect that a decision adverse to the Claimant will be arrived at, which the privative clause will make immune from the supervisory jurisdiction of this court." 8 His Honour exercised the discretion to grant a stay. 9 With effect from 9 December 2005, s179 of the Industrial Relations Act 1996 was amended. The effect of the amendment was to limit the privative provision so that this Court's supervisory jurisdiction could be exercised after the internal appellate process within the then Industrial Relations Commission had been completed. This was a fundamental change to the basis upon which Giles JA had exercised the jurisdiction to grant a stay. 10 Issues of considerable complexity have arisen with respect to the applicability of s179 in its new form. This includes a constitutional challenge to the validity of the section. These matters only arise if it is necessary for the Second Opponent to rely on s179 of the Act. In my opinion, it is not necessary for the Opponent to do so. 11 The Claimant must establish some form of jurisdictional error on the part of the Industrial Relations Commission. Furthermore, it must satisfy the Court that it is appropriate to exercise the discretion to intervene at this stage of the proceedings. In my opinion, the Court should not intervene. 12 The Claimant has asserted two forms of jurisdictional error. First, it asserts that the proceedings were instituted subsequent to the expiration of the period of two years from the commission of the alleged offences, stipulated in s107 of the OH&S Act. Secondly, the Claimant asserts that, on the material contained in the affidavit of the Second Opponent, which was before Haylen J for the purpose of making the order, the essential ingredients of the offence could not be made out. 13 The Claimant conceded that the Industrial Relations Court, as the Commission is now called, has jurisdiction to determine its own jurisdiction. Furthermore, the Claimant conceded that it had to establish a jurisdictional error. 14 With respect to the time bar issue, the Claimant accepted that limitation questions do not necessarily go to jurisdiction. It asserted, however, that a failure to consider such questions does go to jurisdiction. On the basis of this concession this Court ought not to intervene. The Industrial Relations Court has never given an indication that it would not consider the issue. Indeed, it has not, on any occasion, been called upon to do so. 15 The order made by Haylen J was an ex parte order. Nothing prevented the Claimant from approaching Haylen J to hear an application that the order made should be vacated on any basis. No foundation has been lain for the Court to exercise its discretion to intervene in the proceedings. 16 The Claimant relied on the observations of Gibbs ACJ in Sankey v Whitlam (1978) 142 CLR 1 at 24 that a person in the position of the Claimant "has a 'right' not to be exposed to proceedings that have no legal substance". That is, of course, a very pertinent matter from the point of view of the exercise of the discretion. It is, however, a submission that can be, and ought be, made in the first instance to the Industrial Relations Court. I am aware that the summary nature of the proceedings under the OH&S Act does mean that there would be no appeal to the Full Bench of the Industrial Relations Court from an interlocutory order of a single judge of that Court under s5F of the Criminal Appeal Act 1912 which applies only to indictable offences. (Morrison v Joy Manufacturing Co Pty Ltd [2004] NSWIRComm 107; Ove Arup Pty Ltd & Ors v Industrial Court of NSW [2006] NSWCA 28.) Nevertheless, at this stage there is no basis on which the Claimant could establish the proposition that Haylen J has failed to consider the question of whether or not the time period has expired. 17 The Second Opponent submits that the prosecution commenced upon the filing of the application rather than upon the making of the order by Haylen J. He submits that this case was indistinguishable from the judgment of the Court of Criminal Appeal in McGerty v Dairy Farmers Co-Operative Limited (1989) 43 A Crim R 308. He relied in this respect on rule 217B of the Industrial Relations Commission Rules 1996 which, he submits, continued relevantly in force as an "instrument" pursuant to the section headed Construction of Certain References inserted into Schedule 2 of the Criminal Procedure Act 1986 by the Criminal Procedure Amendment (Justices & Local Courts) Act 2001. There is much force in this submission. However, it is not necessary to express a final view. It is a matter to be determined by the Industrial Relations Court, if called upon to do so. 18 I do, however, wish to make one observation with respect to the Claimant's reliance on the judgment in McConnell Dowell Constructors (Aus) Pty Ltd v Environment Protection Authority (2000) 50 NSWLR 127. That case determined that, in relevantly analogous legislation, a court had to be satisfied with certain matters before making an order requiring the attendance of a person to answer charges before the court. That judgment does not determine the distinct question of when it is that proceedings can be said to be instituted. Simply because a court order is not automatic does not determine the question of when proceedings have been commenced for purposes of provisions such as s107 of the OH&S Act. Again, it is not necessary to express a final view in this respect. 19 The second alleged jurisdictional error was based on the evidence before the Industrial Relations Commission prior to the order made by Haylen J. The Claimant submits that the essential elements of the offence under s8(2) of the OH&S Act could not be made out on that evidence. 20 That section is relevantly: "8(2) An employer must ensure that people (other than employees of the employer) are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking while they are at the employer's place of work." 21 The Claimant submits that the material in the supporting affidavit could not establish the proposition that the risk arose from the conduct of the Claimant's undertaking, nor the proposition that the risk arose while the worker was at the Claimant's place of work. 22 It appears that the relevant link between the Claimant and the accident was through the provision by the Claimant of one of its officers who was seconded to John Holland Pty Ltd, which contracted to supply site supervisors with respect to the conduct of the works by Telecommunication Infrastructure Pty Ltd. 23 In its submissions the Claimant said: "At its highest, the second opponent's case is that the claimant has provided an employee to John Holland who in turn has nominated the employee as a supervisor of subcontracted work performed by another company on a privately owned site, where the employee knows nothing about the particular work or incident. This evidence is not capable of sustaining the allegation that the Moree worksite where the worker was injured was in a matter arising from the conduct of the claimant's undertaking or, more particularly, while the worker was at the claimant's place of work." 24 Accordingly, it was submitted that the evidence before the Court when the order was made could not make out essential ingredients of the offence charged. 25 As noted above, no application based on any such proposition was made to Haylen J. His Honour made an order ex parte on the basis of the material before him. This Court should not, in the exercise of its discretion, intervene in the pre-emptive manner sought by the Claimant. 26 A relevantly analogous provision was considered by the Court of Criminal Appeal in McConnell Dowell supra. As was indicated in that judgment at [64], the purpose of such an affidavit is to provide the judge with material which indicates that it is appropriate to exercise the coercive powers for which the section provides. It is not to establish a prima facie case. It is entirely inappropriate for this Court to intervene in the criminal justice process on the basis that affidavit evidence, filed for purposes of granting an order of this character, should be assessed as if the Crown had to establish therein the essential elements of the offence charged. 27 In my opinion the Summons should be dismissed with costs. 28 HANDLEY JA: I agree with Spigelman CJ. 29 GILES JA: On the amendment of s 179 of the Industrial Relations Act 1996, a decision on whether the proceedings brought against the claimant were instituted within the required time period was no longer immune from the supervisory jurisdiction of this Court. By s 179(4), a purported decision on an issue of jurisdiction of the Full Bench of the Commission, or of the Commission if leave to appeal to the Full Bench was refused, was open to review. If the new s 179 is constitutionally flawed, the opportunity for review will not be any less. In these circumstances, for the reasons given by the Chief Justice the claimant should be left to contend in the Industrial Relations Court that the proceedings were not instituted within the required time and that the evidence can not make out the offence. In the exercise of its discretion, this Court should not now intervene. I agree that the summons should be dismissed with costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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