Thiess Pty Limited v Industrial Court of New South Wales [2010] NSWCA 252

Reported Decision: 78 NSWLR 94205 IR 263

New South Wales Court of Appeal

CITATION: Thiess Pty Limited v Industrial Court of New South Wales [2010] NSWCA 252

HEARING DATE(S): 12 August 2010

JUDGMENT DATE: 30 September 2010

JUDGMENT OF: Spigelman CJ at 1; Beazley JA at 79; Basten JA at 80

DECISION: Application dismissed with costs.

CATCHWORDS: ADMINISTRATIVE LAW - judicial review - grounds of review - Occupational Health and Safety Act 2000 - meaning of 'exposed to risks' in s 8(2) - whether there is a requirement for the prosecution to prove the actual exposure of a person or persons to a risk - whether it is sufficient for the prosecution to prove that a person or persons were proximate to the risk - ADMINISTRATIVE LAW - prerogative writs and orders - Occupational Health and Safety Act 2000 - where the Full Bench of the Industrial Court dismisses an appeal from the Local Court - where the Court of Appeal subsequently finds that the Local Court decision was vitiated by jurisdictional error - whether the prerogative writs should issue with respect to the orders of both the Full Bench and the Local Court - ADMINISTRATIVE LAW - judicial review - grounds of review - Occupational Health and Safety Act 2000 - inconsistencies in magistrate's findings of fact

Crimes (Appeal and Review) Act 2001 Industrial Relations Act 1996 LEGISLATION CITED: Occupational Health and Safety Act 1983 Occupational Health and Safety Act 2000 Supreme Court Act 1970

Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147 Blacker v Parnell [1978] 1 NSWLR 616 Craig v State of South Australia (1995) 184 CLR 163 Forbes v NSW Trotting Club Limited (1979) 143 CLR 242 Hollingsworth v Industrial Court of New South Wales [2007] NSWCA 209; (2007) 166 IR 192 Keramianakis v Regional Publishers Pty Ltd [2009] HCA 18; (2009) 237 CLR 268 Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 CASES CITED: McDonnell and East Ltd v McGregor (1936) 56 CLR 50 Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; (2002) 209 CLR 597 R v Board of Trustees of the Science Museum [1993] 1 WLR 1171 R v Hull University Visitor; Ex parte Page [1993] AC 682 R v Marks; Ex parte Australian Building Construction Employees and Builders Labourers' Federation (1981) 147 CLR 471 Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612 Victorian Stevedoring and General Contracting Co Pty Limited v Dignan (1931) 46 CLR 73 Wishart v Fraser (1941) 64 CLR 470