Industrial Relations Commission New South Wales Medium Neutral Citation: Various applications for adjournment of proceedings under the Occupational Health and Safety Act 2000 [2012] NSWIRComm 9 Hearing dates: 27 February 2012 Decision date: 27 February 2012 Jurisdiction: Industrial Court of NSW Before: Boland J, President Decision: The applications for adjournment in the matters that are the subject of this Statement and Directions are refused. The files are returned to the Registrar. Catchwords: PRACTICE AND PROCEDURE - Applications for adjournment of various proceedings under the Occupational Health and Safety Act 2000 - Charges brought against a number of defendants to be the subject of review by WorkCover New South Wales - No explanation to the Court as to the purpose of the review or the relevance of the review to individual charges - Applications for adjournment refused Legislation Cited: Occupational Health and Safety Act 2000 Category: Interlocutory applications Parties: Inspector Ronald John Spence (Prosecutor in IRC2011/1398, 1399, 1400) Inspector Ringland (Prosecutor in IRC2011/1423) Inspector Pamela Estreich (Prosecutor in IRC2011/1491, 1494, 1495) Inspector Scott Middleton (Prosecutor in IRC2011/1829, 1830) Jackson Cai (Defendant in IRC2011/1398) Aleksic Carpentry Pty Ltd (Defendant in IRC2011/1399) Milivoje Aleksic (Defendant in IRC2011/1400) Lonewood Farm Pty Ltd ACN 074 590 382 as trustee for the Lonewood Trust ABN 43 886 046 Cement Australia (Kandos) Pty Ltd (Defendant in IRC2011/1491) Cement Australia Pty Limited (Defendant in IRC2011/1494) Cement Australia Holdings Pty Limited (Defendant in Matter IRC2011/1495) Cafe C Pty Ltd in its capacity as Trustee of Cafe C Discretionary Trust (Defendant in IRC2011/1829) Olga Stojkovic (Defendant in IRC2011/1830) Representation: Mr C Magee of counsel (Prosecutor for all matters) WorkCover Authority of New South Wales Mr B Shields of counsel (Defendant in IRC2011/1491, 1494, 1495) Norton Rose, Lawyers Mr D Abraham, solicitor (Defendant in IRC2011/1398) Mr Milanovic, solicitor (Defendant in IRC2011/1399, 1400) Mr G Fernie, solicitor (Defendant in IRC2011/1423) Ms V Manh, solicitor (Defendant in IRC2011/1829, 1830) File Number(s): IRC 1398-1400, 1423, 1491, 1494-1495 and 1829-1830 of 2011 statement and directions 1On 21 February 2012 I was advised by the Acting Industrial Registrar, Ms Hourigan, that an officer of WorkCover had indicated to Ms Hourigan that the officer had been instructed to request adjournments of all prosecutions (including sentencing, directions and case conferencing) listed before the Court over the next two weeks pending the outcome of a review by WorkCover of all prosecutions filed with the Court under the Occupational Health and Safety Act 2000 ("the OHS Act"). 2Despite inquiries by the Acting Registrar, the WorkCover officer could provide no further information to Ms Hourigan regarding the adjournments because the officer's instructions were limited to simply seeking an adjournment. 3In these unusual circumstances, I requested the Acting Registrar to send to me the files of those matters that were listed before her over the next two weeks and that I would list them for directions before me at 9.00 am this morning. 4I was provided with 22 files. Mr C Magee of counsel helpfully provided me with information concerning each of the files and their status. In respect of 13 of the files, adjournments were sought on grounds that would be considered unexceptional and part of the normal pre-trial process. For example, the defendant was endeavouring to obtain legal representation or active discussions were continuing between the prosecutor and the defendant regarding the charge and the prosecutor was not in a position to proceed until those discussions had been completed. 5In respect of those 13 files I directed they be returned to the callover list to be dealt with in the normal course by the Acting Registrar. 6In respect of the remaining nine files the subject of this statement, counsel advised that adjournments were sought for two weeks for the reason that WorkCover was conducting a review of prosecutions filed with the Court under the OHS Act. Counsel was unable to provide any further information in support of the adjournment applications. I am aware that in other proceedings before judges of the Industrial Court applications on a similar basis have been made. Judges have either granted the adjournment or refused it. That is entirely a matter within each judge's discretion depending upon the particular circumstances of the case. 7However, a 'blanket' application to adjourn criminal proceedings on the basis that the relevant statutory authority is reviewing all of the prosecutions that have been filed is an application that needs to be approached with some caution. If the Court inquires as to what provoked the review, what is the objective of the review, how does the review relate to the individual charge before the Court (for example, is withdrawal or amendment in contemplation) and the Court receives no answer other than a 'review' is taking place, the Court is entitled to wonder why it cannot be better informed. An adjournment for no good reason will inevitably add to delay and costs. 8In one case that is the subject of an adjournment application, the prosecution was filed in August 2011 in respect of an alleged contravention of the OHS Act involving an employee who fell from a roof and was fatally injured. Having raised it as an issue, the Court is entitled to the courtesy of being advised, in respect of this matter and the others, of at least the purpose of the review and how it is relevant to the charge that has been laid. The Court would then be in a position to make an informed assessment as to whether the adjournment should be granted. I do not understand the need for WorkCover to keep the purpose of the review, and its relevance to the charge that is before the Court, secret. 9The applications all seek a two-week adjournment, which is not lengthy. However, I understand it is proposed all prosecutions filed with the Court will be reviewed. There are presently over 200 prosecutions filed in the Court that have yet to be finalised. It seems to me that it is an ambitious target to complete a review of over 200 files (for whatever the purpose) in a period of two weeks and I would be concerned that further adjournments would be sought. 10In the circumstances, notwithstanding consent by the defendants, the applications for adjournment in the matters that are the subject of this Statement and Directions (Matter Nos IRC 1398, 1399, 1400, 1423, 1491, 1494, 1495, 1829 and 1830 of 2011) are refused. The files are returned to the Acting Registrar. ********** 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: 27 February 2012