Morrison v Pybar Mining Services Pty Limited [2011] NSWIRComm 1

Industrial Relations Commission New South Wales Medium Neutral Citation: Morrison v Pybar Mining Services Pty Limited [2011] NSWIRComm 1 Hearing dates: 28 October 2010, Written submissions: 17 and 24 January 2011; 1 February 2011 Decision date: 11 February 2011 Jurisdiction: Industrial Relations Commission Before: Backman J Decision: 1. The defendant's Notice of Motion filed on 5 March 2010 is dismissed. 2. Costs are reserved. 3. The matter is set down for a directions hearing at 10.00am on Friday, 18 February 2011. Catchwords: OCCUPATIONAL HEALTH AND SAFETY - defendant's Notice of Motion - charge brought under s 8(1) of the Occupational Health and Safety Act 2000 (OHS Act 2000) - application to withdraw plea of guilty -declarations sought that Court lacks jurisdiction to hear and determine proceedings - whether risk identified - whether charge failed to identify acts/omissions or measures not taken - whether "act or omission" is a legal element of the charge - distinction between legal elements and essential factual ingredients in terms of the absence of either or both from a charge discussed - whether words "by act or omission" in s 12 OHS Act 2000 should be imported into a charge under s 8(1) - Held: Court has jurisdiction to hear the proceedings - Held: some of the particulars fail to identify acts or omissions - charge capable of rectification - s 31 OHS Act 2000 considered - application to withdraw plea of guilty premature - Notice of Motion dismissed Legislation Cited: Criminal Procedure Act 1986 Industrial Relations Act 1996 Occupational Health and Safety Act 1983 Occupational Health and Safety Act 2000 Supreme Court (Summary Jurisdiction) Act 1967 Cases Cited: Inspector Hamilton v John Holland Pty Ltd [2010] NSWIRComm 72; (2010) 194 IR 189 John Holland Pty Ltd v Industrial Court of New South Wales; Parsons Brinckerhoff (Australia) Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 338 John L Pty Ltd v Attorney General (NSW) (1987) 163 CLR 508 Johnson v Miller (1937) 59 CLR 467 Kirk v Industrial Relations Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1; (2010) 239 CLR 531 Morrison v Chevalley [2010] NSWIRComm 116; (2010) 198 IR 30 Ridge Consolidated Pty Ltd v WorkCover Authority of New South Wales (Inspector Mauger) [2000] NSWIRComm 151; (2000) 100 IR 156 Rockdale Beef Pty Limited v Industrial Relations Commission of NSW [2007] NSWCA 128; (2007) 165 IR 7 R v Cooling [1990] 1 Qd R 376; (1989) 44 A Crim R 171 Stanton v Abernathy (1990) 19 NSWLR 656 WorkCover Authority of NSW (Inspector Keenan) v Lucon (Australia) Pty Limited [2002] NSWIRComm 68; (2002) 112 IR 332 Category: Principal judgment Parties: Rodney Dale Morrison (Prosecutor)