Inspector Pile v Sutherland [2011] NSWIRComm 163

Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Pile v Sutherland [2011] NSWIRComm 163 Hearing dates: 12 December 2011 Decision date: 12 December 2011 Jurisdiction: Industrial Court of NSW Before: Marks J Decision: The defendant's motion is dismissed. Costs are reserved. Catchwords: OCCUPATIONAL HEALTH AND SAFETY - notice of motion to stay proceedings - alleged abuse of process - rule against 'double jeopardy' - alleged breach of s 9 of the Occupational Health and Safety Act 2000 - concurrent proceedings for alleged breach of s 14 of the Home Building Act 1989 - whether essential elements of the offences are the same or substantially the same - notice of motion dismissed - costs reserved Legislation Cited: Home Building Act 1989 - s 14 Occupational Health and Safety Act 2000 - s 9 Cases Cited: Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales [2010] HCA 1 Nahlous v R [2010] NSWCCA 59 Pearce v Regina (1998) 194 CLR 610 Standen v Commonwealth Director of Public Prosecutions [2011] NSWCCA 187 Category: Interlocutory applications Parties: Inspector Kevin Pile of WorkCover Authority of New South Wales (Prosecutor) Forbye Sutherland (Defendant) Representation: Mr R Reitano of counsel (Prosecutor) Mr I Judd of counsel (Defendant) Legal Group, WorkCover Authority of New South Wales (Prosecutor) NECA Legal Pty Ltd (Defendant) File Number(s): IRC 202 of 2011

ex tempore Judgment 1The defendant in these proceedings has by notice of motion sought to have them stayed as an abuse of possess. The basis is that by reason of concurrent proceedings taken against the defendant in the local court at Mudgee alleging a breach of section 14 of the Home Building Act (1989) the defendant is exposed to two sets of proceedings which are the same, or essentially the same. 2It is asserted on behalf of the defendant that this enables him to raise a plea in bar to these proceedings. The relevant principles are set out in the decision of the High Court of Australia in Pearce v Regina (1998) 194 CLR 610. 3In passages occurring at paragraphs 18, 19, and 24 of that judgment, it is clear that the joint decision of McHugh, Hayne and Callinan JJ focuses attention on the essential elements of each of the offences which need to be compared to determine whether they are identical, or essentially identical. A plea in bar may then be brought. 4The defendant's outline of argument did not deal with the relevant principles nor did they analyse the elements of the respective proceedings to assist the Court in determining whether a plea in bar might exist in the circumstances of these proceedings. 5The prosecutor's written submissions does refer to the relevant principles and contains an analysis of the elements of each of the offences expressed in a clear and concise manner. These submissions demonstrate conclusively why the defendant's motion must fail. 6I am content to adopt and apply the prosecutor's submissions as my reasons for judgment, not because I am unwilling to express my reasons for myself but because I doubt whether I can improve on them. They are appended to and will form part of my reasons for judgment. 7The defendant's motion is dismissed. Costs are reserved.