Inspector Doug Rolland v Coles Supermarkets Australia Pty Ltd [2011] NSWIRComm 126

Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Doug Rolland v Coles Supermarkets Australia Pty Ltd [2011] NSWIRComm 126 Hearing dates: 28 March 2011 Final Submissions 4 August 2011 Decision date: 22 September 2011 Jurisdiction: Industrial Court of NSW Before: Kavanagh J Decision: 1. The Notice of Motion filed in Matter No IRC 1259 of 2009 by the prosecutor is allowed. 2. The Notice of Motion filed in Matter No IRC 1259 of 2009 by the defendant is dismissed. 3. Costs of the defendant of the prosecutor's Notice of Motion in Matter No 1259 of 2009 are reserved. 4. There shall be no order in favour of either party for costs on the defendant's Notice of Motion in Matter No 1259 of 2009. Catchwords: OCCUPATIONAL HEALTH AND SAFETY - practice and procedure - Notice of Motion by defendant to declare invalid/dismiss/quash Application for Order issued under s 8(1) of the Occupational Health and Safety Act 2000 - legal requirements within pleadings in respect of applications for order - principles - original application for order held to identify essential elements of the offences - identification of risk - finding essential elements of offence pleaded - Notice of Motion of defendant dismissed

Notice of Motion by prosecutor for leave to further particularise acts or omissions of defendant to establish breach - application for order consistent with principles in authorities - Notice of Motion of prosecutor for leave to amend Application for Order allowed

COSTS - s 8(1) Occupational Health and Safety Act 2000, Industrial Relations Commission Rules 1996 (repealed), r 217B - consideration of costs applications by prosecutor and defendant - general rules as to costs - costs of defendant on application of prosecutor reserved Legislation Cited: Occupational Health and Safety Act 2000 Criminal Procedure Act 1986 Industrial Relations Act 1996 Cases Cited: De Romanis v Sibraa [1977] 2 NSWLR 264 G.P.I. (General) Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 157 Inspector Hamilton v John Holland Pty Ltd [2010] NSWIRComm 72; (2010) 194 IR 189 John L. Pty Ltd v Attorney-General for the State of New South Wales (1987) 163 CLR 508 Kirk v Industrial Relations Commission (NSW) [2010] HCA 1; (2010) 239 CLR 531 Latoudis v Casey [1990] 170 CLR 534 Lodhi v The Queen (2006) FLR 303 Rockdale Beef Pty Ltd v Industrial Relations Commission of NSW [2007] NSWCA 128; (2007) 165 IR 7 Smith v Moody [1903] 1 K.B. 56 Stephen Finlay McMartin v Newcastle Wallsend Coal Company Pty Limited & others [2005] NSWIRComm 31 Category: Interlocutory applications Parties: Inspector Doug Rolland (Prosecutor) Coles Supermarkets Australia Pty Ltd (Defendant) Representation: M K Scott of counsel (Prosecutor) P E McDonald SC (Defendant) WorkCover Authority of New South Wales (Prosecutor) Sparke Helmore Lawyers (Defendant) File Number(s): IRC No 1259 of 2009