Regan v Bulga Underground Operations Pty Ltd [2012] NSWIRComm 19

Industrial Relations Commission New South Wales Medium Neutral Citation: Regan v Bulga Underground Operations Pty Ltd [2012] NSWIRComm 19 Hearing dates: 31 October, 1-4, 7-11, 14, 16-18 November 2011, 5, 22 March 2012; 30 March and 2 April 2012 (written submissions) Decision date: 05 April 2012 Jurisdiction: Industrial Court of NSW Before: Marks J Decision: 1) I decline to refer three questions as formulated by the prosecutor to a Full Bench under s 5AE of the Criminal Appeal Act. 2) I conclude that the prosecutor has not made out his case against the defendant and that the proceedings should be dismissed. 3) I refrain from making any formal orders to give effect to these conclusions so that the prosecutor may have an opportunity to consider his position. 4) I stand the matter over until 1 May next at 9.30am for mention or for making of formal orders. Catchwords: OCCUPATIONAL HEALTH AND SAFETY - referral of question of law under s 5AE of Criminal Appeal Act - questions hypothetical - no utility in referral until findings of fact made - conclusions reached - defendant found not guilty of breach of s 8(2) of the Occupational Health and Safety Act 2000 - risk of being crushed - no training for specific task - comprehensive general training and instruction in safety and risk assessment - experienced employee - relatively simple task - causal nexus between risk and act or omission of defendant - particularisation of charge - system of work - spontaneous, unexpected and spur of the moment action inconsistent with system of work - no evidence that supervision would have prevented injury - Act to be applied with practicality and common sense - consideration of s 16(2)(b) Criminal Procedure Act 1986 - defect in particulars not merely technical but forms foundation of charge - amendment to particulars not sought - failure to establish particulars - failure to establish charge - proceedings stood over for making of formal orders Legislation Cited: Criminal Appeal Act 1912 - s5AE Criminal Procedure Act 1986 - s 11, s 16 Industrial Relations Act 1996 - s 196 Occupational Health and Safety Act 2000 - s 8(2), s 28 Occupational Health, Safety and Welfare Act 1986 (SA) Cases Cited: De Romanis v Sibraa (1977) 2 NSWLR 264 Environmental Protection Authority v Land and Environment Court (NSW) and anor [2004] NSWCA 50 Epacris Pty Limited v Director-General, Department of Natural Resources [2007] NSWCCA 76 Johnston v Miller (1937) 59 CLR 467 Kirk v Industrial Court (NSW) [2010] HCA 1; (2010) 239 CLR 531 R v Chargot Limited (t/a Contract Services) and ors [2008] UKHL 73 Reg v Justelius (1973) 1 NSWLR 471 Rockdale Beef Pty Ltd v Industrial Relations Commission of NSW [2007] NSWCA 128; (2007) 165 IR 7 Smith v Austin Lifts Ltd (1959) 1 All ER 81; (1959) 1 WLR 100 T&R (Murray Bridge) Pty Ltd v Hillman [2011] SAIRC 4; (2011) 203 IR 66 Category: Principal judgment Parties: Robert William Regan of Department of Industry and Investment of New South Wales (Prosecutor) Bulga Underground Operations Pty Ltd (Defendant) Representation: Mr P Skinner of counsel with Ms E Raper of counsel (Prosecutor) Mr D Buchanan SC with Mr M Shume of counsel (Defendant) Crown Solicitor for New South Wales (Prosecutor) Sparke Helmore Lawyers (Defendant) File Number(s): IRC 824 of 2010