John Holland Pty Ltd v Industrial Court of New South Wales; Parsons Brinckerhoff (Australia) Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 338

John Holland Pty Ltd v Industrial Court of New South Wales; Parsons Brinckerhoff (Australia) Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 338

Charges under s 8 of the Occupational Health and Safety Act 2000, when read together with supplied particulars, validly identified relevant risks and particular measures alleged not to have been taken, thus invoked the Industrial Court's jurisdiction. Reference by trial judge to Full Bench under s 193 of the Industrial Relations Act 1996 in criminal proceedings was invalid, rendering Full Bench decision of no effect; usual criminal procedure requires trial at first instance and right of appeal. Use of terms such as 'adequate' or 'sufficient' may require further particulars but does not invalidate the charge for jurisdictional purposes.

Parties
Applicant: John Holland Pty Ltd; Applicant: Parsons Brinckerhoff (Australia) Pty Ltd; First Respondent: Industrial Court of New South Wales; Second Respondent: Inspector Nathan Hamilton (WorkCover Authority of NSW)
Jurisdiction
Australia
Judgment Date
09 December 2010
Procedural Posture
Appeals and Supervisory Review / Judgment on Applications to Quash Orders for Appearance and to Prohibit Proceedings; Declaration as to Jurisdiction of Full Bench
Outcome
John Holland: Order quashed and declaration made; application otherwise dismissed. Parsons Brinckerhoff: application dismissed.
Legal Topics
Procedure for Criminal Prosecutions, Adequacy of Charge, Jurisdictional Error, Interpretation of Particulars, Occupational Health and Safety Offences, Reference to Full Bench, Supervisory Jurisdiction of Supreme Court
Criminal Law Industrial Law Procedure for Criminal Prosecutions Adequacy of Charge Jurisdictional Error Interpretation of Particulars Occupational Health and Safety Offences Reference to Full Bench +1 more

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Parties

John Holland Pty Ltd

Applicant

Parsons Brinckerhoff (Australia) Pty Ltd

Applicant

Industrial Court of New South Wales

First Respondent

Inspector Nathan Hamilton (WorkCover Authority of NSW)

Second Respondent

Procedural Posture

Appeals and Supervisory Review / Judgment on Applications to Quash Orders for Appearance and to Prohibit Proceedings; Declaration as to Jurisdiction of Full Bench

Legal Issues

  1. 1 Whether charges under s 8 of the Occupational Health and Safety Act 2000 validly invoked the Industrial Court's jurisdiction by adequately identifying acts or omissions
  2. 2 Whether reference to Full Bench under s 193 of the Industrial Relations Act 1996 was valid in criminal proceedings
  3. 3 Adequacy of particulars in charge for purposes of criminal procedure

Ratio Decidendi

Charges under s 8 of the Occupational Health and Safety Act 2000, when read together with supplied particulars, validly identified relevant risks and particular measures alleged not to have been taken, thus invoked the Industrial Court's jurisdiction. Reference by trial judge to Full Bench under s 193 of the Industrial Relations Act 1996 in criminal proceedings was invalid, rendering Full Bench decision of no effect; usual criminal procedure requires trial at first instance and right of appeal. Use of terms such as 'adequate' or 'sufficient' may require further particulars but does not invalidate the charge for jurisdictional purposes.

Court Disposition

John Holland: Order quashed and declaration made; application otherwise dismissed. Parsons Brinckerhoff: application dismissed.

Orders

  • Proceedings 2010/213607: Quash the order of 21 October 2008 transferring the Notice of Motion of 13 October 2008 purportedly pursuant to s 193 of the Industrial Relations Act 1996.
  • Declare the judgment of the Full Court in Inspector Hamilton v John Holland Pty Ltd [2009] NSWIRComm 26 is of no effect.