Morrison v Powercoal Pty Ltd & Anor.

RESPONDENT/APPLICANT ON NOTICE OF MOTION (IRC 7069 of 2003) Peter Lamont Foster

CORAM: Walton J Vice-President; Boland J; Staff J

Occupational health and safety - Interlocutory proceedings - Notice of motion - Coalmining industry - Workplace death - Whether respondents should be granted applications to vacate hearing date for sentencing in relation to earlier guilty findings for offences under Occupational Health and Safety Act 1983 - Respondents seeking prerogative relief in NSW Court of Appeal - Applications to vacate grounded on: (i) challenge to the jurisdiction of the Commission in Court Session to hear and determine criminal prosecutions in occupational health and safety, (ii) respondents' concern that s 179 of Industrial Relations Act 1996 (privative clause) might be a bar to gaining prerogative relief if Commission in Court Session proceeds to conviction and sentence - Lateness of jurisdictional and other challenges - Not previously raised in proceedings - Likelihood of similar applications generally - Significance of legislation - Public interest - No prejudice to respondents' jurisdictional challenge if Commission proceeds to conviction and sentence - Respondents' concern in relation to effect of s 179 not a basis to vacate hearing on sentence - That there is no further avenue of appeal open to the respondents does not make for a special circumstance that requires the Commission to stay its hand and not proceed to sentencing in order that the respondents may seek prerogative relief - Policy regarding interruption of criminal proceedings - Applications to vacate refused - Costs reserved

CATCHWORDS: Practice and procedure - Occupational health and safety - Interlocutory proceedings - Notice of motion - Coalmining industry - Workplace death - Whether respondents should be granted applications to vacate hearing date for sentencing in relation to earlier guilty findings for offences under Occupational Health and Safety Act 1983 - Respondents seeking prerogative relief in NSW Court of Appeal - Applications to vacate grounded on: (i) challenge to the jurisdiction of the Commission in Court Session to hear and determine criminal prosecutions in occupational health and safety (ii) respondents' concern that s 179 of Industrial Relations Act 1996 (privative clause) might be a bar to gaining prerogative relief if Commission in Court Session proceeds to conviction and sentence - Lateness of jurisdictional and other challenges - Not previously raised in proceedings - Likelihood of similar applications generally - Significance of legislation - Public interest - No prejudice to respondents' jurisdictional challenge if Commission proceeds to conviction and sentence - Respondents' concern in relation to effect of s 179 not a basis to vacate hearing on sentence - That there is no further avenue of appeal open to the respondents does not make for a special circumstance that requires the Commission to stay its hand and not proceed to sentencing in order that the respondents may seek prerogative relief - Policy regarding interruption of criminal proceedings - Applications to vacate refused - Costs reserved

Industrial Relations Act 1996 s 179 197A LEGISLATION CITED: Occupational Health and Safety Act 1983 s 15(1) s 50(1)

Abigroup Contractors Pty Limited and Anor v WorkCover Authority of New South Wales (Inspector Maltby) (2002) 119 IR 319 Building Workers' Industrial Union of Australia Ex parte Norman Leslie Gallagher, Re [1988] HCA 4 (11 February 1988) Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 Mayne Nickless Limited v Industrial Relations Commission of New South Wales & 3 Ors [2004] NSWCA 359 Mitchforce v Industrial Relations Commission & Ors (2003) 57 NSWLR 212, 124 IR 79 Morrison v Powercoal Pty Ltd & Anor [2004] NSWIRComm 297 CASES CITED: R v Allen (unreported, Gleeson CJ, Meagher JA, Loveday J, 60412 of 1991, 14 August 1991) R v BWM (1997) 91 A Crim R 260 R v Hickman, Ex parte Fox and Clinton (1945) 70 CLR 598 Ridge Consolidated Pty Ltd v WorkCover Authority (NSW) (Inspector Mauger) (2000) 100 IR 156 Rogerson v R (1990) 45 A Crim R 253 Steffan v R (1993) 30 NSWLR 633, 67 A Crim R 506 Truelove v Sydney Water Corporation Limited and Anor [2004] NSWIRComm 298

APPELLANT / RESPONDENT ON MOTION Mr S Crawshaw SC with Mr B G Docking of counsel Solicitor: I V Knight Crown Solicitor's Office LEGAL REPRESENTATIVES:

RESPONDENTS / APPLICANTS ON MOTION Mr S C Rothman SC with Mr M L Shume and Mrs W G Thompson of counsel Solicitor: Mr G McCann Sparke Helmore

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION FULL BENCH Coram: Walton J Vice-President Boland J Staff J

Application by Rodney Dale Morrison for Leave to Appeal and Appeal Judgment of Justice Peterson given on 21 November 2003 in Matter No IRC 6372 and 6376 of 2001

Application by Rodney Dale Morrison for Leave to Appeal and Appeal Judgment of Justice Peterson given on 21 November 2003 in Matter No IRC 6375 and 6377 of 2001

1 On 21 January 2005 the respondents brought applications in the New South Wales Court of Appeal seeking prerogative relief on bases not earlier raised in these proceedings (either at first instance or on appeal) and on the eve of their sentencing for breaches of the Occupational Health and Safety Act 1983.

2 The relief sought in the Court of Appeal proceedings (Peter Lamont Foster v Industrial Relations Commission of New South Wales and Rodney Dale Morrison; Powercoal Pty Ltd v Industrial Relations Commission of New South Wales and Rodney Dale Morrison - Court of Appeal Matters 40062 and 40063 of 2005 respectively) is, inter alia, the quashing of findings of guilt against the respondents by this Full Bench in the appeal of Morrison v Powercoal Pty Ltd & Anor [2004] NSWIRComm 297, such findings being in relation to offences under s 15(1) and s 50(1) of the Occupational Health and Safety Act. Those prosecutions arose from an incident that occurred on 17 July 1998 in which a miner, Barry John Edwards, was killed when the roof of an underground coal mine collapsed. Powercoal owned and operated the mine. Mr Foster was the mine manager. The relief also sought that the proceedings be removed from the Commission in Court Session into the Court of Appeal and that the charges be dismissed.

3 The Full Bench found the offences proven on 18 November 2004. The matters were listed for hearing as to sentence on 4 February 2005. In the light of the applications in the Court of Appeal the respondents, by way of notices of motion filed on 25 January 2005, now seek to have the sentencing proceedings vacated (or alternatively that the Court not proceed to judgment after hearing the parties on sentence until the completion of the challenges brought in the Court of Appeal). This judgment concerns those motions.

4 There were two grounds relied upon by the respondents in support of their applications to vacate. The first was that the matters before the Court of Appeal go to the jurisdiction of the Commission in Court Session and the operation of the Occupational Health and Safety Act. The respondents intend to argue in the Court of Appeal on several bases that the Commission in Court Session lacked jurisdiction to hear and determine proceedings for an offence under the Occupational Health and Safety Act 1983. The second ground was that, whilst the respondents intended to argue that s 179 of the Industrial Relations Act 1996 (the privative provision) was not a bar to them seeking prerogative relief, "the argument raised [in the respondents' summonses in the Court of Appeal] may be irreversibly affected if the matter proceeds to sentence before the matters raised in the Summons[es] are considered by the Court of Appeal."

5 If the only ground relied upon by the respondents for vacating the sentencing proceedings was that relating to jurisdiction we would have no hesitation in rejecting the applications. There is no merit whatsoever in such applications; nothing we might determine in relation to sentences would have any implications for the jurisdictional arguments foreshadowed in the respondents' summonses in the Court of Appeal. To vacate the sentencing hearing on the basis that the respondents belatedly wish to challenge jurisdiction (particularly on the broad and speculative bases contained in the points of claim in their summonses) would inevitably mean that the Commission would receive an avalanche of applications in respect of prosecutions under the Occupational Health and Safety Act seeking either to have the matters adjourned pending the outcome of the respondents' jurisdictional challenge or have the hearing of the prosecutions deferred pending an independent challenge on jurisdictional grounds.

6 The Occupational Health and Safety Act is an important piece of social legislation. Its purpose is to protect workers from workplace death or injury. It would be contrary to the public interest to create a hiatus for an indeterminate period in the hearing and determination of prosecutions merely because the respondents have decided as an after-thought, or opportunistically, to challenge the Commission's occupational health and safety jurisdiction, particularly given no prejudice on jurisdictional grounds is caused to the respondents if the sentencing hearing proceeds.

7 Senior counsel for the respondents submitted that, where there is a challenge to the jurisdiction of a court and that challenge would be prejudiced by further proceedings in that court, it was appropriate for the court not to proceed further. Counsel referred to Re Building Workers' Industrial Union of Australia Ex parte Norman Leslie Gallagher [1988] HCA 4 (11 February 1988) in support of this contention. We do not consider that case stands for any such contention. In any event, we fail to see how the prejudice arises in relation to the jurisdictional challenge in the nature of that revealed in the respondents' points of claim in the Court of Appeal if we were to proceed to finalise the proceedings by determining appropriate sentences, if any, in respect of the two defendants.

8 There is, however, another dimension to the respondents' applications and that goes to their concern that, if we proceed to hear and determine sentences, their cases in the Court of Appeal might be "irreversibly affected" because of the provisions of s 179 of the Industrial Relations Act. That section provides: 179 Finality of decisions (1) Subject to the exercise of a right of appeal to a Full Bench of the Commission conferred by this or any other Act or law, a decision or purported decision of the Commission (however constituted): (a) is final, and (b) may not be appealed against, reviewed, quashed or called in question by any court or tribunal (whether on an issue of fact, law, jurisdiction or otherwise). (2) A judgment or order that, but for this section, might be given or made in order to grant a relief or remedy (whether by order in the nature of prohibition, certiorari or mandamus, by injunction or declaration or otherwise) may not be given or made in relation to a decision or purported decision of the Commission, however constituted. (3) To avoid doubt, this section extends to any decision or purported decision of the Commission, including an award or order of the Commission.

9 Senior counsel for the respondents submitted that the Full Bench was faced with a "unique situation" in that, pursuant to s 197A of the Industrial Relations Act, the respondents had been found guilty for the first time on appeal after acquittal at first instance with no further opportunity to appeal. Counsel submitted that it would be "manifestly unjust" to allow guilty findings to stand if there were errors of law committed by the Commission in Court Session on appeal (as contended by the respondents) and they were prevented from seeking relief in circumstances where it was open to this Full Bench to allow access to that relief by not proceeding to conviction and sentence.

10 It appears to us that the true effect of the respondents' submission is to have this Full Bench assist them in creating a legal artifice designed to avoid the operation of s 179 of the Act. That is, the respondents seek the assistance of this Court in legal manoeuvring that is designed to avoid that section having its intended effect. If the respondents wish to challenge the validity of s 179 that is a matter for them. But they cannot reasonably expect this Full Bench to ignore what is the clear legislative intention embodied in the terms of s 179 that a determination of a Full Bench of the Commission is final and not subject to challenge other than in the manner described in Mitchforce v Industrial Relations Commission & Ors (2003) 57 NSWLR 212; 124 IR 79 under the Hickman principle (R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598). We are entitled, indeed bound, to perform our role as an appellate court on the basis of that understanding of the statutory provision. We are obliged also to pay regard to the public interest in the finality of litigation, which is one of the purposes of s 179.

11 Further, in relation to the ground relied upon by the respondents involving s 179, we note that the respondents concede that there is only the possibility that their claim for prerogative relief might be "irreversibly affected" if we were to proceed to sentence. It would seem from the thrust of the respondents' submissions they are not convinced that s 179 is a bar to the relief they seek because they contend they have not yet been convicted and, therefore, s 179 does not apply, but even if it could be said there have been convictions, s 179 still did not apply. The speculative nature of the respondents' attack on s 179 diminishes even further the substance of the grounds in support of the motions.

12 There are other reasons why we do not propose to grant the respondents' applications to vacate the hearing date listed for 4 February 2005. Directions were issued on 9 December 2004 in relation to the filing of evidence and submissions in respect of sentencing. The respondents expressed an inability to meet the timetable including the date for hearing as to sentence. The Full Bench sought to accommodate the respondents but was unable to because of full lists and on 17 December advised the parties that the matters would proceed on 4 February 2005. The appellant subsequently filed written submissions in relation to sentencing and costs. The respondents had not done so but senior counsel indicated at the hearing of the motions on 31 January 2005 that if the matters were to proceed on 4 February evidence and submissions could be quickly filed and as an alternative to the application in the motions to vacate, the Full Bench could hear the parties as to sentencing and costs and reserve any decision pending the outcome of proceedings in the Court of Appeal.

13 There seems to us to be no practical impediment to the matters going forward on 4 February and they may, therefore, be dealt with in the ordinary way.

14 We emphasise the lateness of the respondents' jurisdictional challenge. They have known of the guilty findings since the decision in Powercoal was handed down on 18 November 2004. The Full Bench indicated in its judgment that: A date is to be fixed for hearing as to sentence and costs. The matter will be listed before Boland J for directions on Thursday 9 December 2004 at 9.30 am for this purpose.

15 No indication of a challenge was forthcoming until 25 January 2005. In this respect, we note the observations of Mason P (with whom Hodgson and McColl JJA agreed) in Mayne Nickless Limited v Industrial Relations Commission of New South Wales & 3 Ors [2004] NSWCA 359 at [11] relating to first instance proceedings in the Commission: Claimants who file applications for prohibition in the Court of Appeal (especially late ones) should not presume that their proceedings in this Court will be expedited, nor should they view the pendency of proceedings in this Court as any dispensation from obligations under Rules or directions of the Commission as regards preparation for a hearing in the Commission.

16 At no stage in the lengthy proceedings at first instance before Peterson J, nor on appeal, did the respondents raise any jurisdictional issue. Nor did the respondents raise jurisdiction issues in the directions hearing before Boland J on 9 December 2004 for the purpose of setting a hearing date in relation to sentencing. Any jurisdictional issue could have been dealt with either at first instance or on appeal. Now the respondents want this Full Bench to vacate those proceedings so that they may pursue an argument in another place that was always available to them in the Commission in Court Session. Whether the respondents have only very recently come to decide on this jurisdictional challenge in the face of guilty findings and imminent sentencing proceedings, or are opportunistically engaging in forum shopping of the type referred to in Truelove v Sydney Water Corporation Limited and Anor [2004] NSWIRComm 298, or are moving on some other basis, their failure to prosecute the jurisdictional issues in a timely way is another factor against the granting of the motions.

17 We made an inquiry of counsel as to whether they could refer us to any authority that might assist in determining applications of the kind before us. Other than the reference to Ex parte Gallagher and the appellant's reliance on Truelove, counsel were unable to provide any further assistance. 18 We would, however, observe the settled principle that "it is undesirable for criminal prosecutions to be interfered with or interrupted by interlocutory or appellate procedures prior to conviction and sentence": Ridge Consolidated Pty Ltd v WorkCover Authority (NSW) (Inspector Mauger) (2000) 100 IR 156 at [19], cited with approval in Abigroup Contractors Pty Limited and Anor v WorkCover Authority of New South Wales (Inspector Maltby) (2002) 119 IR 319 at [7]. There is a line of authority in the Court of Criminal Appeal to this effect: Rogerson (1990) 45 A Crim R 253 per Gleeson CJ at 254; R v Allen (unreported, Gleeson CJ, Meagher JA, Loveday J, 60412 of 1991, 14 August 1991); Steffan (1993) 30 NSWLR 633 at 642-643; 67 A Crim R 506 at 515; BWM (1997) 91 A Crim R 260 at 267 per Hunt CJ at CL. In Chow v DPP (1992) 28 NSWLR 593 at 599 Kirby P stated: The High Court of Australia and this Court have repeatedly emphasised the undesirability of interference - whether by declaration or otherwise - in the conduct of criminal proceedings. Such interference is reserved to exceptional or special cases: see Sankey v Whitlam (1978) 142 CLR 1 at 22, 23, 24; Barton v The Queen (1980) 147 CLR 75 at 104; Lamb v Moss (1983) 76 FLR 296 at 307-308; 49 ALR 533 at 545; Bacon v Rose [1972] 2 NSWLR 793 at 797; Cain v Glass (No 2) (1985) 3 NSWLR 230 at 235. More than lip service must be given to injunctions of this kind. They are based upon the high public interest in the conduct of orderly conduct of criminal proceedings, which include the sentencing of persons convicted following a plea. They rest upon the avoidance or interruption of such proceedings by those who have access to funds and a determination to manipulate criminal prosecutions. The availability of appellate procedures following conviction and sentence and the possibility that many problems disappear, or are resolved, at first instance, if only cases are allowed to take their ordinary course provide further reasons to restrain an over-enthusiastic response to interlocutory claims for judicial review of criminal proceedings.

19 We acknowledge that the circumstances here are somewhat different to those that attracted the observations in the foregoing series of cases regarding the undesirability of interference in the conduct of criminal proceedings. As senior counsel for the respondents rightly pointed out, there is no appeal from a conviction imposed by a Full Bench of the Commission in Court Session pursuant to s 197A of the Industrial Relations Act. Nonetheless, the broad thrust of the policy stated in those decisions does seem applicable. In any event, the absence of a further appeal reflects the legislature's intent in this area of the law. The fact that there is no further avenue of appeal open to the respondents does not, in our opinion, make for a special circumstance that requires us to exercise our discretion to stay our hand and not proceed to sentencing in order that the respondents may seek prerogative relief, which on the face of the statute is not open to them.

20 The applications by the respondents to vacate the hearing date of 4 February 2005 are refused. Costs are reserved.

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