WorkCover Authority of New South Wales (Inspector Rech) v Walter Construction Group Pty Ltd [2000] NSWIRComm 165

WorkCover Authority of New South Wales (Inspector Rech) v Walter Construction Group Pty Ltd [2000] NSWIRComm 165

The prosecution was not entitled to rely on s 65 because it failed to prove that the makers of the representations were unavailable: the steps taken to locate or secure Mr Peter and the employee statement-makers did not constitute all reasonable steps. The purported s 67 notices also failed to state the particular provisions relied on, did not comply with regulation 5 in material respects, were not given within a reasonable time, and did not comply with r 189. There was no basis to exercise discretion to excuse the non-compliance.

Jurisdiction
Australia
Judgment Date
25 August 2000
Procedural Posture
Three Prosecutions Under S 15(1) of the Occupational Health and Safety Act 1983 / Interlocutory Judgment on Prosecution Application Under S 65 of the Evidence Act 1995 to Adduce Documentary Evidence
Outcome
Prosecution applications refused.
Legal Topics
['hearsay Exception for Unavailable Witnesses' 'previous Representations' 'reasonable Steps to Secure Attendance of Witnesses' 'reasonable Notice Under S 67 of the Evidence Act 1995' 'compliance With Evidence Regulation 2000 Regulation 5' 'industrial Relations Commission Rules R 189']
['evidence' 'occupational Health and Safety' 'criminal Procedure' 'industrial Relations'] ['hearsay Exception for Unavailable Witnesses' 'previous Representations' 'reasonable Steps to Secure Attendance of Witnesses' 'reasonable Notice Under S 67 of the Evidence Act 1995' 'compliance With Evidence Regulation 2000 Regulation 5' 'industrial Relations Commission Rules R 189']

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Procedural Posture

Three Prosecutions Under S 15(1) of the Occupational Health and Safety Act 1983 / Interlocutory Judgment on Prosecution Application Under S 65 of the Evidence Act 1995 to Adduce Documentary Evidence

Legal Issues

  1. 1 ['Whether the makers of the previous representations were not available to give evidence for the purposes of s 65 of the Evidence Act 1995.' 'Whether the prosecution had taken all reasonable steps to find the persons, secure their attendance, or compel them to give evidence.' 'Whether the notices purportedly given under s 67 of the Evidence Act 1995 complied with s 67, Evidence Regulation 2000 regulation 5, and Industrial Relations Commission Rules r 189.' 'Whether the Court should dispense with or relieve non-compliance with the notice requirements.']

Ratio Decidendi

The prosecution was not entitled to rely on s 65 because it failed to prove that the makers of the representations were unavailable: the steps taken to locate or secure Mr Peter and the employee statement-makers did not constitute all reasonable steps. The purported s 67 notices also failed to state the particular provisions relied on, did not comply with regulation 5 in material respects, were not given within a reasonable time, and did not comply with r 189. There was no basis to exercise discretion to excuse the non-compliance.

Court Disposition

Prosecution applications refused.

Orders

  • ['The applications brought by the prosecution to adduce evidence under the provisions of s 65 of the Evidence Act are refused.']