Morrison v Milner and Baldwin [2009] NSWIRComm 57

Morrison v Milner and Baldwin [2009] NSWIRComm 57

Even assuming the appellant's appointment as inspector under s 47A of the Occupational Health and Safety Act 2000 did not strictly comply with required qualifications, the legislative purpose and statutory scheme did not mandate invalidity for non-compliance where functions were limited to instituting prosecutions. Therefore, the proceedings were properly instituted, and the notices of contention were not made out.

Jurisdiction
Australia
Judgment Date
28 April 2009
Procedural Posture
Appeal / Ruling on Preliminary Notices of Contention Before Substantive Hearing of Leave to Appeal and Appeal
Outcome
Respondents' notices of contention dismissed; matter to proceed to hearing of leave to appeal and substantive appeal. Costs of notices reserved.
Legal Topics
['appointment and Authority of Inspectors' 'collateral Challenge' 'de Facto Officer Doctrine' 'appeals From Acquittals' 'abuse of Process' 'use Immunity' 'statutory Construction of Regulatory Appointments']
['occupational Health and Safety Law' 'statutory Interpretation' 'criminal Procedure'] ['appointment and Authority of Inspectors' 'collateral Challenge' 'de Facto Officer Doctrine' 'appeals From Acquittals' 'abuse of Process' 'use Immunity' 'statutory Construction of Regulatory Appointments']

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Procedural Posture

Appeal / Ruling on Preliminary Notices of Contention Before Substantive Hearing of Leave to Appeal and Appeal

Legal Issues

  1. 1 ['Whether the appellant was validly appointed as an inspector under s 47A of the Occupational Health and Safety Act 2000' "Whether the Full Bench had jurisdiction and power to deal with respondents' notices of contention including collateral challenges" "Whether the de facto officer's doctrine applies to any defect in appointment" 'Whether any defect in appointment invalidates prosecutions or prohibits appeal by the appellant' 'Whether there was an abuse of process by the use of protected answers under s 60(2) Coal Mines Regulation Act 1982']

Ratio Decidendi

Even assuming the appellant's appointment as inspector under s 47A of the Occupational Health and Safety Act 2000 did not strictly comply with required qualifications, the legislative purpose and statutory scheme did not mandate invalidity for non-compliance where functions were limited to instituting prosecutions. Therefore, the proceedings were properly instituted, and the notices of contention were not made out.

Court Disposition

Respondents' notices of contention dismissed; matter to proceed to hearing of leave to appeal and substantive appeal. Costs of notices reserved.

Orders

  • ['The respondents have not made out any of the contentions in their notices of contention.' 'The Full Bench will proceed to deal with the application for leave to appeal and appeal on the scheduled dates in July 2009.' 'Costs of the notices are reserved.']