Inspector Walker v Roads and Maritime Services [2012] NSWIRComm 105

Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Walker v Roads and Maritime Services [2012] NSWIRComm 105 Hearing dates: 30 May 2012 Decision date: 14 September 2012 Jurisdiction: Industrial Court of NSW Before: Boland J, President; Walton J, Vice-President; Haylen J Decision: The Full Bench declines to answer the question referred under s 5AE and returns the matter to the trial judge for disposal. Catchwords: OCCUPATIONAL HEALTH AND SAFETY - prosecution under s 10(1) of the Occupational Health and Safety Act 2000 - question of law referred by trial judge pursuant to s 5AE of the Criminal Appeal Act 1912 by virtue of the Industrial Relations Act 1996 - question concerned the validity of the charge - issue as to whether the particulars of the charge in the application for order established the elements of an offence under s 10(1) - issue between the parties as to the correct construction of s 10(1) - submission of prosecutor that charge was valid upon either construction advanced - on one view particulars met the defendant's construction of s 10(1) - in any event no adequate factual basis for resolution of the question - question in substance hypothetical - Full Bench declines to answer the question - matter returned to the trial judge for disposal Legislation Cited: Criminal Appeal Act 1912 Industrial Relations Act 1996 Occupational Health and Safety Act 1983 Occupational Health and Safety Act 2000 Occupational Health and Safety Regulation 2001 Cases Cited: Brayson Motors Proprietary Limited (In Liquidation) v The Commissioner of Taxation for the Commonwealth of Australia [1984-1985] 156 CLR 651 Bros Bins Systems Pty Ltd v Inspector Ching [2006] NSWIRComm 287 Collins v State Rail Authority NSW (1986) 5 NSWLR 209 Deputy Federal Commissioner of Taxation for the State of South Australia v Ellis & Clark Limited [1934] 52 CLR 85 Environment Protection Authority v Land and Environment Court (NSW) and anor [2004] NSWCA 50; (2004) 144 A Crim R 198 G.P.I. (General) Pty Ltd v Industrial Court of NSW [2011] NSWCA 157 Glover v McDougall [1976] 2 NSWLR 359 Inspector Childs v State of New South Wales (Department of Services, Technology and Administration) [2009] NSWIRComm 202 Inspector Dall v Brambles Australia [2006] NSWIRComm 213 Inspector Nikolovski v Northpac Constructions Pty Ltd [2009] NSWIRComm 204 Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 Mailer v Austin Rover Group p/c [1989] 2 All ER 1087 Master of Education Services Pty Ltd v Ketchell [2008] HCA 38 McGrath v GPI (General) Pty Limited [2009] NSWIRComm 194 McMillan, Britton & Kell v WorkCover Authority (1999) 89 IR 464 Regan v Bulga Underground Operations Pty Ltd [2012] NSWIRComm 19 Rockdale Beef Pty Ltd v Industrial Relations Commission of NSW [2007] NSWCA 128; (2007) 165 IR 7 Category: Principal judgment Parties: Inspector Joanne Walker (Prosecutor) Roads and Maritime Services (Defendant) Representation: P R McDonald SC with C T Magee of counsel (Prosecutor) J V Agius SC with W Thompson of counsel (Defendant) WorkCover Authority of New South Wales (Prosecutor) Sparke Helmore Lawyers (Defendant) File Number(s): IRC 812 of 2011