Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Stevens v Harrison [2011] NSWIRComm 135 Hearing dates: 4 October 2011 Decision date: 05 October 2011 Jurisdiction: Industrial Court of NSW Before: Boland J, President Decision: The hearing fixed for 10 October 2011 before the Full Bench is vacated. The parties are directed to contact the President's Associate to have the matter restored to the list once the Court of Appeal's judgment in Chevalley is known. Catchwords: OCCUPATIONAL HEALTH AND SAFETY - Interlocutory proceedings - Application by defendant to vacate hearing date before Full Bench of the Industrial Court - Intersection of issues before the Industrial Court and matters heard by the Court of Appeal in other proceedings in August 2011 - Judgment of Court of Appeal reserved - Judgment of Court of Appeal likely to be critical to proceedings before Industrial Court - No prejudice to prosecutor - Hearing date vacated Legislation Cited: Industrial Relations Act 1996 Occupational Health and Safety Act 2000 Cases Cited: Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1; (2010) 239 CLR 531 Masterton Homes Pty Ltd v WorkCover Authority of New South Wales (Inspector Batty) [2009] NSWIRComm 91; (2009) 185 IR 176 Morrison v Chevalley [2010] NSWIRComm 116; (2010) 198 IR 30 Category: Interlocutory applications Parties: Inspector Erinn Stevens (Prosecutor/Respondent on the motion) Stephen Patrick Harrison (Defendant/Applicant on the motion) Representation: R Reitano of counsel (Prosecutor/Respondent on the motion) D O'Neill of counsel (Defendant/Applicant on the motion) WorkCover Authority of New South Wales (Prosecutor/Respondent on the motion) HWL Ebsworth (Defendant/Applicant on the motion) File Number(s): IRC 1253 of 2009 INTERLOCUTORY Judgment 1In an Application for Order filed on 21 August 2009 (later amended), Inspector Erinn Stevens of the WorkCover Authority of New South Wales alleged that Stephen Patrick Harrison ("the defendant"), a director of a corporation known as Australian Independent Contractors Agency Pty Ltd, was deemed to have contravened s 8(2) of the Occupational Health and Safety Act 2000 by virtue of s 26(1) of that Act. 2The alleged contravention concerned an incident that occurred on 23 August 2005 when Hamish Crombie-Smith was killed after falling from a tree he was in the process of cutting down. 3It is unnecessary to explore in any more detail at this stage the background to this prosecution except to say that an application by the defendant for declaratory relief pursuant to s 154 of the Industrial Relations Act 1996 is listed to be heard before a Full Bench on Monday 10 October 2011. Essentially, the application seeks orders that the defendant has no further obligation to attend the Court to answer the amended Application for Order. 4On 29 September 2011, the defendant filed a notice of motion seeking orders that the hearing of his application for declaratory relief be vacated and the matter stood over generally with liberty to restore pending the determination of the Court of Appeal in the matter of Chevalley and Grugeon v Industrial Court of New South Wales and others (2010/342090) (" Chevalley "). It was pleaded that the Court of Appeal heard the matters in Chevalley on 30 and 31 August 2011 when that Court reserved its decision. Further, that those proceedings dealt with some of the matters in issue in the defendant's application for declaratory relief. The prosecutor opposed the notice of motion. 5It seems to me there is a very clear intersection between some of the matters to be determined in Chevalley in the Court of Appeal and the matters to be determined in the present proceedings. In Morrison v Chevalley [2010] NSWIRComm 116; (2010) 198 IR 30, which is the subject of applications for relief in the Court of Appeal proceedings, the Full Court of the Industrial Court held that in charging a director or manager under s 26, the prosecutor is not required to separately plead and particularise the charge so as to identify the "acts or omissions" of such persons, as distinct from the corporation. This finding is being directly challenged in the Court of Appeal. Further, the Industrial Court held that s 26 is constitutionally valid. This is also being directly challenged in the Court of Appeal. 6It is contended in the present proceedings that the charge against the defendant did not identify his acts or omissions that gave rise to a risk to health and safety. Moreover, if the Court of Appeal were to find that s 26 is constitutionally invalid the charge against the defendant would be invalid. 7The decision of the Court of Appeal in Chevalley was reserved over one month ago and one would not expect any judgment to be unduly delayed. One option for the Industrial Court would be to proceed to hear the application for declaratory relief on 10 October, to reserve any decision and call on the parties to make any further submissions once the Court of Appeal had given judgment. However, there does not appear to be any particular advantage in this course. On the contrary, it would add to costs and Court time. 8In Masterton Homes Pty Ltd v WorkCover Authority of New South Wales (Inspector Batty) [2009] NSWIRComm 91; (2009) 185 IR 176 the Full Bench considered a similar application to the one currently before this Court. Whilst Masterton Homes concerned an appeal from a single judge and the present proceedings concerns an application before a Full Bench for declaratory relief, the decision in Masterton Homes is relevant. There the Full Bench granted the application by the appellant to vacate the hearing dates in order to await the decision of the High Court in 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. 9At [39] the Full Bench stated: [39] ... The Court of Appeal accepted in Satara that there are cases where justice demands that the parties not simply be left to pursue their appeal rights, but where instead, the proper course is to adjourn to await the High Court's decision. That is, in cases where the High Court's decision will have a critical impact on the case under consideration by the other Court. In those cases, justice requires that the hearing be adjourned, unless there is some other particular reason for the trial proceeding, such as was found in Re Yates' Settlement Trusts , where it was concluded that there might be an injustice to the parties, if the settlor died before the matter was heard. 10It is undoubtedly the case that any judgment in the Court of Appeal in Chevalley will have a critical bearing on the defendant's application for declaratory relief. It has the potential to effectively determine whether or not the defendant should face a summary trial for contravention of the Occupational Health and Safety Act involving the death of a person. 11As to whether any injustice would arise from adjourning the hearing scheduled for 10 October, I am unable to see how that would be so and none was argued by the prosecutor. 12In the circumstances I am satisfied that the hearing of the application for declaratory relief should be adjourned. Order 13The hearing fixed for 10 October 2011 before the Full Bench is vacated. The parties are directed to contact the President's Associate to have the matter restored to the list once the Court of Appeal's judgment in Chevalley is known. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 October 2011