Inspector Wade v John Holland Rail Pty Ltd [2011] NSWIRComm 42

Industrial Court New South Wales

Medium Neutral Citation: Inspector Wade v John Holland Rail Pty Ltd [2011] NSWIRComm 42 Hearing dates: 16 March 2011 Decision date: 08 April 2011 Jurisdiction: Industrial Court of NSW Before: Staff J Decision: In Matter No IRC 2050 of 2008 - Inspector Paul Wade v John Holland Rail Pty Ltd 1. The notice of motion filed by the defendant is dismissed. 2. Leave is granted to the prosecutor to file an amended application for order in the terms set out in Annexure A to its notice of motion. 3. Costs are reserved. In Matter No IRC 2055 of 2008 - Inspector Paul Wade v John Holland Pty Ltd 1. The notice of motion filed by the defendant is dismissed. 2. Leave is granted to the prosecutor to file an amended application for order in the terms set out in Annexure A to its notice of motion. 3. Costs are reserved. Catchwords: NOTICES OF MOTION - OCCUPATIONAL HEALTH AND SAFETY - PRACTICE AND PROCEDURE - Section 8(1) and s 10(1) of the Occupational Health and Safety Act 2000 - orders sought by the defendants that applications for order be dismissed - whether applications invalid - PRINCIPLES - applications for order identify essential elements of the offence - particulars of acts or omissions - particulars of measures that should have been taken may be implied or inferred from the particulars - whether pleadings disclosed identifiable risk - applications valid - notices of motion dismissed - notices of motion by prosecutor to amend applications for order granted - costs reserved - Occupational Health and Safety Act 2000, s 8(1), s 10(1) - Criminal Procedure Act 1996, s 16(2) - Industrial Relations Act 1996, s 170 Legislation Cited: Criminal Procedure Act 1986 Industrial Relations Act 1996 Industrial Relations Commission Rules 1996 Industrial Relations Commission Rules 2009 Occupational Health and Safety Act 2000 Cases Cited: Ex parte Burnett; Re Wicks [1968] 2 NSWR 119 Ex parte Lovell; Re Buckley (1938) 38 SR (NSW) 153 Ex parte Price (1899) 20 LR (NSW) 343 Inspector Hamilton v John Holland Pty Ltd [2010] NSWIRComm 72; (2010) 194 IR 189 Inspector Stevens v Ford [2010] NSWIRComm 10 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 Limited v Attorney-General (NSW) [1987] HCA 42; (1987) 163 CLR 508 Johnson v Miller [1937] HCA 77; (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 Knaggs v Director of Public Prosecutions [2007] NSWCA 83; (2007) 70 A Crim R 366 Rockdale Beef Pty Ltd v Industrial Relations Commission of NSW [2007] NSWCA 128; (2007) 165 IR 7 State of New South Wales (Department of Education and Training and Department of Juvenile Justice) v Cahill (No 2) [2011] NSWIRComm 33 Category: Interlocutory applications Parties: Inspector Paul Wade (Prosecutor) John Holland Rail Pty Ltd (First Defendant) John Holland Pty Ltd (Second Defendant) Representation: Mr J Agius SC with Mr M Cahill of counsel (Prosecutor) Mr GJ Hatcher SC with Mr GW McGrath SC (Defendants) WorkCover Authority of New South Wales (Prosecutor) Herbert Geer Lawyers (Defendants) File Number(s): IRC 2050 and 2055 of 2008