Western Freight Management Pty Ltd v Inspector Patton [2011] NSWIRComm 68

Industrial Relations Commission New South Wales Medium Neutral Citation: Western Freight Management Pty Ltd v Inspector Patton [2011] NSWIRComm 68 Hearing dates: 10/9/2010, 12/10/2010 and Written Submissions: 2/2/2011 Decision date: 16 June 2011 Jurisdiction: Industrial Court of NSW Before: Walton J, Acting President; Kavanagh J; Staff J Decision: 1. The appeal is upheld. 2. The conviction of Western Freight Management Pty Ltd ordered by Boland J in Matter No IRC 3547 of 2006 is quashed. 3. The penalties and costs ordered by Boland J in Matter No IRC 3547 of 2006 are quashed. 4. Costs are reserved. 5. The appellant shall file and serve any submission as to costs within 14 days of the date of this judgment and the respondent shall file any such submission within a further 14 days. Catchwords: APPEAL - Occupational Health and Safety - employee crushed by reversing truck - whether applications for order (charges) failed to plead the acts or omissions said to constitute breach of Occupational Health and Safety Act 2000 - whether charges specified relevant measures - held: charges defective by reason of their failure to plead relevant acts or omissions - held: trial judge fell into error when convicting the appellants on charges that failed to identify either expressly or by implication the Corporation's relevant acts or omissions - appeal allowed Legislation Cited: Criminal Appeal Act Criminal Procedure Act 1986 Industrial Arbitration Act 1940 Industrial Relations Act 1991 Industrial Relations Act 1996 Industrial Relations Commission Rules 1996 Industrial Relations Commission Rules 2009 Occupational Health and Safety Act 1983. Occupational Health and Safety Act 2000 Supreme Court (Summary Jurisdiction) Act 1967 Cases Cited: Doja v R [2009] NSWCCA 303 Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 Environment Protection Authority v Sydney Water Corporation Ltd (1997) 98 A Crim R 481 Ex parte Lovell; Re Buckley (1938) 38 SR (NSW) 153; 55 WN (NSW) 63 Heymann v R (1873) LR 8 QB 102 Inspector Patton v Western Freight Management Pty Ltd [2008] NSWIRComm 217 Inspector Patton v Western Freight Management Pty Ltd (No 2) [2009] NSWIRComm 124 Inspector Hamilton v John Holland Pty Ltd (2010) 194 IR 189; [2010] NSWIRComm 72 Johnson v Miller (1937) 59 CLR 467 John Holland Pty Ltd v Industrial Court of New South Wales v Industrial Court of New South Wales [2010] NSWCA 338 Kennedy-Taylor (NSW) Pty Ltd v WorkCover Authority of New South Wales (Inspector Charles) (2000) 102 IR 57 Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 Lorenzo and Santos v Inspector Peter Hayes [2011] NSWIRComm 54 Manpac Industries Pty Ltd (formerly t/as Pacific Concrete & Quarries Pty Ltd) v WorkCover Authority of New South Wales (Inspector Glass) [2001] NSWIRComm 190 Penrith Whitewater Stadium v Lesvos Enterprises [2007] NSWCA 131 R v FRH Victoria Pty Ltd [2010] VSCA 18 R v Halmi [2005] NSWCCA 2 Ridge Consolidated Pty Ltd v Workcover Authority of NSW (Insp Mauger) [2000] NSWIRComm 151 Rockdale Beef v Industrial Relations Commission of NSW (2007) 165 IR 7 St Hilliers Contracting Pty Ltd v WorkCover Authority of NSW [2007] NSWIRComm 39 State of New South Wales (Department of Education and Training and Department of Juvenile Justice) v Cahill (No. 2) [2011] NSWIRComm 33 The Crown in the Right of the State of New South Wales (Department of Education and Training) v O'Sullivan (2005) 143 IR 57 WorkCover Authority of NSW v Howard & Sons Fireworks Spectaculars Pty Limited [2000] NSWIRComm 211 Category: Principal judgment Parties: Western Freight Management Pty Ltd (Appellant) WorkCover Authority of New South Wales (Inspector John Patton) (Respondent) Representation: G J Hatcher SC with S R Coleman of counsel (Appellant) S Crawshaw SC and M P Cahill of counsel (Respondent) C J Boyd (Appellant) WorkCover Authority of New South Wales (Respondent) File Number(s): IRC 1237 of 2009 Decision under appeal Citation: Inspector Patton v Western Freight Management Pty Ltd [2008] NSWIRComm 217 Inspector Patton v Western Freight Management Pty Ltd (No 2) [2009] NSWIRComm 124 Before: Boland J, President File Number(s): IRC 3547 of 2006