Patrick Stevedores Holdings Pty Ltd v Coombs

JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: WALTON J, Vice-President HUNGERFORD J BOLAND J Wednesday, 21 March 2001 Matter No IRC 1967 of 2001 PATRICK STEVEDORES HOLDINGS PTY LIMITED v ROBERT DARCY COOMBS

Appeal against a decision of Justice Wright given on 2 March 2001 in Matters No IRC 1967, 6102, 6103, 6104 and 6105 of 2001. JUDGMENT OF THE COURT (extempore) [2001] NSWIRComm 65

1 On 2 and 5 March 2001, Wright J President gave an interlocutory judgment in relation to two notices of motion filed by Patrick Stevedores Holdings Pty Limited, the appellant in these proceedings, in five sets of proceedings commenced under s 15(1) of the Occupational Health and Safety Act 1983 ([2001] NSWIRComm 39). 2 The first notice of motion sought that a summons for production served on the appellant be set aside or varied on the grounds that the summons was too wide, that it sought production of documents from third parties and that it required documents irrelevant to the proceedings. 3 The second notice of motion sought an order staying the five proceedings under s 15(1) of the Occupational Health and Safety Act . 4 Wright J, made the following orders: A. As to the defendant's notice of motion filed on 2 February 2001 the Court orders that: 1. The prosecutor shall file and serve amended orders removing from the process filed allegations and particulars framed in the alternative.

2. The defendant's motion is otherwise dismissed. B. As to the defendant's notice of motion filed on 31 January 2001 the Court orders that: 1. The defendant is required to produce the documents in accordance with the summons issued by the Industrial Registrar on 20 December 2000 to the extent specified in these reasons for judgment and to do so at a time and date to be fixed.

2. The balance of the summons and the defendant's notice of motion as to the balance of the summons is stood over for further consideration by the Court at 2.15 pm on Thursday 15 March 2001. 3. Liberty to apply as to the above matters in the meantime. C. The question of the costs of the two motions is stood over to 2.15 pm Thursday, 15 March 2001. 5 On 15 March 2001 the appellant filed an appeal pursuant to s 196 of the Industrial Relations Act 1996 against part of the decision by Wright J. The matters appealed against were: (1) part of the decision; (2) his Honour erred in finding that the particulars in respect of each charge disclosed an offence; (3) his Honour erred in finding that the application in each charge was sufficient to ground a valid order; (4) his Honour erred in finding that the appellant was not exposed to double jeopardy. 6 The relief sought was: (1) That the proceedings be dismissed or in the alternative stayed; (2) In the alternative, that the particulars in respect of each charge be amended; (3) Costs. 7 The appellant also sought a stay of the decision made by Wright J.

8 On 20 March 2001, the parties to the appeal were notified of a directions hearing before a Full Bench of the Court at 1.00 pm today in relation to a hearing of the appeal at 10.00 am on Monday 26 March 2001. 9 Mr I M Barker QC, with Mr B D Hodgkinson of counsel, for the appellant made application for the hearing date of the appeal to be vacated and a new hearing date set after 27 April 2001. Mr Barker submitted that it was unreasonable for the appeal to be brought on at such short notice and without any consultation with the parties beforehand. Senior counsel submitted that he was not available on 26 March nor was junior counsel; that the transcript was not available; and that it was almost unprecedented for appeals to be brought on so quickly. He submitted that appeals ordinarily would take three to six months before hearing. 10 Mr Barker sought an explanation on behalf of his client as to why the appeal had been brought on so quickly and suggested that his client was being singled out by the Court. He also submitted that the prosecutor had not sought an expedition of the proceedings. Mr Barker also suggested in reply that the prosecution of his client was not about genuine concerns related to occupational health and safety but more related to industrial matters associated with the negotiation of an industrial agreement later this year. 11 Mr B G Docking of counsel appeared for the respondent. Mr Docking indicated that the respondent was ready to proceed on Monday 26 March and the reasons put forward by the appellant to vacate that date were not persuasive. In this respect, counsel submitted that the fact counsel may not be available was not sufficient for the appeal not proceeding. The non-availability of transcript of the proceedings at first instance could be cured by an order from this Full Bench expediting the transcript but, in any event, transcript was not essential because the issues raised on appeal were legal issues not involving evidence. It was further submitted that comprehensive outlines of submission were tendered before Wright J at first instance. 12 Mr Docking submitted that the appeal was incompetent; that no application for leave had been made as required under s 5F of the Criminal Appeal Act 1912 despite the appellant's attention being drawn to this question on 15 March 2001 by Wright J; and that it was contradictory of the appellant to seek to avoid an early hearing date of the appeal and at the same time apply for a stay of the decision at first instance. 13 Mr Docking referred to the decision of the Court of Criminal Appeal in R v Lisoff [1999] NSW CCA 364 and submitted the matters before Wright J should proceed according to law and in an orderly, disciplined and efficient fashion, uninterrupted by what is no more than an opportunistic appeal to the jurisdiction, real or imagined, of this Court. Mr Docking rejected the assertion by Mr Barker that the prosecutions under s 15(1) were not genuine. He submitted they were genuine and that the Court should proceed to deal with them expeditiously, given that the alleged offences had occurred over a two year period and were continuing. 14 In giving consideration to the appellant's application to vacate the date for hearing the appeal and to set a further date after 27 April 2001, we wish to comment firstly on Mr Barker 's assertion that his client is being singled out in some way by the setting of an early date. We find it objectionable, indeed regrettable, that senior counsel without any foundation for his assertion would say that his client is being singled out in some fashion because of who his client happened to be. This Court has a large workload and the availability of judges to sit on appeals is limited. If the opportunity arises to bring together a Full Bench at short notice to hear what have been described as fundamental issues arising out of an interlocutory judgment then it would take that opportunity, with no further explanation being provided to the parties. We do not intend to have the scheduling of hearings in this Court put into the hands of individual litigants. 15 Moreover, we find it odd indeed when a party lodges an appeal in relation to an interlocutory judgment which seeks a stay of the orders made below that it objects strongly to the appeal being heard expeditiously. This is, of course, unless the appeal is merely a tactic employed by the appellant to delay or otherwise attempt to frustrate the proceedings below, but we express no view about that at this time. The appellant did not identify any real issue of prejudice to it other than the availability of counsel of its choice. 16 We observe that the Court may, in any event, list particular matters, such as appeals from interlocutory decisions in criminal trials, consistent with the issues raised on appeal and the course of the proceedings at first instance. Such matters may be listed at shorter notice. We also note this appeal was lodged during the proceedings at first instance from an interlocutory judgment and prior to the completion of the interlocutory issues in the substantive proceedings at first instance. 17 In those circumstances, we have decided that on Monday 26 March 2001 at 10.00 am we will hear any application for leave to appeal separately from the substantive issue raised by the appeal. At the same time we will hear any application for a stay of the orders appealed against. In the meantime, the appellant is to file and serve an application for leave to appeal on or before 4.00 pm on Thursday 22 March 2001. The appellant and respondent are to file and serve an outline of their submissions on leave and a stay on or before 4.00 pm on Friday 23 March 2001. 18 The transcript of the proceedings before Wright J, as we are advised, is now available to the parties. There is no requirement at this stage for appeal books to be filed.

19 [It is to be noted that immediately upon the handing down of this decision Mr Barker sought leave to discontinue the appeal. Leave was granted and the hearing on 26 March 2001 vacated].

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