Empire Waste Pty Ltd v District Court of New South Wales [2013] NSWCA 394

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Empire Waste Pty Ltd v District Court of New South Wales [2013] NSWCA 394 Hearing dates: 20 June 2013 Decision date: 27 November 2013 Before: Bathurst CJ at [1]; Beazley P at [97]; Hoeben JA at [98] Decision: 1. Application dismissed with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: STATUTORY INTERPRETATION - Pt 2 of Sch 18B to the Work Health and Safety Regulation 2011 - validity - savings and transitional provisions - whether regulation making power or transitional regulation making power in the Work Health and Safety Act 2011 enabled the making of regulations that conferred jurisdiction to determine prosecutions under the repealed Occupational Health and Safety Act 2000. PROCEDURE - application to commence proceedings and statement of facts - District Court Rules 1973, r 26 - whether statement of facts was contrary to r 26 and also s 246 of the Criminal Procedure Act 1986. Legislation Cited: Apple and Pear Organization Act 1936 (Cth), s 27 Criminal Procedure Act 1986, ss 15, 16, 170, 246, Ch 4 District Court Act 1973, ss 9, 166 District Court Rules 1973, r 26 Occupational Health and Safety Act 2000, ss 8, 26, 105, 107 Occupational Health and Safety Amendment Act 2011 Industrial Relations Act 1996, s 168 Interpretation Act 1987, ss 5, 30 Magistrates Court Act 2004 (WA), s 9 National Security Act 1939 Work Health and Safety Act 2011, ss 229B, 276, 276C, Sch 3, Sch 4 Work Health and Safety Legislation Amendment Act 2011, Sch 4 Work Health and Safety Regulation 2011, Sch 18B Work Health and Safety (Savings and Transitional) Regulation 2011, cls 4, 5, 6 Cases Cited: Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) [2009] HCA 41; (2009) 239 CLR 27 Australasian Meat Industry Employees Union v Hamberger [2000] FCA 1197; (2002) 102 FCR 74 Australian Native Landscapes Pty Ltd v McDonald [2013] NSWCA 395 Bird v John Sharp & Sons Pty Ltd (1942) 66 CLR 233 Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 86 ALJR 1044 Brayson Motors Pty Ltd v Federal Commissioner of Taxation (1985) 156 CLR 651 Carbines v Powell (1925) 36 CLR 88 Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56; (2012) 87 ALJR 131 City of Footscray v Maize Products Pty Ltd (1943) 67 CLR 301 Doja v The Queen [2009] NSWCCA 303; (2009) 198 A Crim R 349 Ex parte McGuigan (1923) 40 WN (NSW) 129 Federal Commissioner of Taxation v Consolidated Media Holding Ltd [2012] HCA 55; (2012) 87 ALJR 98 Inspector Brock v Empire Waste Pty Ltd [2013] NSWDC 38 M & J Mitchell Pty Ltd v Director General of the Department of Transport [2011] WASC 66 Master Education Services Pty Ltd v Ketchell [2008] HCA 38; (2008) 236 CLR 101 Minister for Planning v Walker [2008] NSWCA 224; (2008) 161 LGERA 423 Morton v The Union Steamship Company of New Zealand Ltd (1951) 83 CLR 402 Peacock v Newtown Marrickville and General Building Co-Operative Building Society No 4 Ltd (1943) 67 CLR 25 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 R v Secretary of State for Social Security; Ex parte Britnell [1991] 2 All ER 726; [1991] 1 WLR 198 Re Bolton; Ex parte Beane (1987) 162 CLR 514 Retirement Benefits Fund Board v Hingston (1997) 7 Tas R 134 Rockdale Beef Pty Ltd v Industrial Relations Commission of NSW [2007] NSWCA 128; (2007) 165 IR 7 Shanahan v Scott (1957) 96 CLR 245 Victorian Chamber of Manufactures v Commonwealth (Women's Employment Regulations) (1943) 67 CLR 347 Willocks v Anderson (1971) 124 CLR 293 Texts Cited: Model Work Health and Safety Regulations 2011 New South Wales Legislative Council, Parliamentary Debates (Hansard), 19 October 2011 Second Reading Speech, Work Health and Safety Act 2011and Occupational Health and Safety Amendment Act 2011, New South Wales Legislative Council, Parliamentary Debates (Hansard), 11 May 2011 Category: Principal judgment Parties: Empire Waste Pty Ltd (First applicant) Dean Baldwin (Second applicant) District Court of New South Wales (First respondent) Inspector Steven Brock (Second respondent) Representation: Counsel: G W McGrath SC and S A Adair (Applicants) J V Agius SC and B G Docking (Second respondent) Solicitors: Eastern Commercial Lawyers (Applicants) Crown Solicitor's Office (First respondent) Legal Group, Safety, Return to Work and Support Division (Second respondent) File Number(s): 2013/127697 Publication restriction: No Decision under appeal Jurisdiction: 9101 Citation: [2013] NSWDC 38 Date of Decision: 2013-04-12 00:00:00 Before: Curtis DCJ File Number(s): 2012/341785