Rodney Morrison v United Collieries Pty Ltd - [2002] NSWIRComm 173 - NSWIRComm 2002 case summary — Zoe

NSWNSWIRComm

Rodney Morrison v United Collieries Pty Ltd

[2002] NSWIRComm 173

Industrial Relations Commission (NSW)|2002-05-21|Before: Schmidt J, Ms AJ

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At a glance

Source facts

Court

Industrial Relations Commission (NSW)

Decision date

2002-05-21

Before

Schmidt J, Ms AJ

Catchwords

05/22/2002
05/23/2002
05/24/2002
05/27/2002

Source

Original judgment source is linked above.

Catchwords

05/22/200205/23/200205/24/200205/27/200205/28/200205/29/200205/30/2002 DATE OF JUDGMENT: 07/29/2002

Judgment (84 paragraphs)

[1]

Industrial Relations Commission of New South Wales in Court Session

[2]

CITATION : Rodney Morrison v United Collieries Pty Ltd [2002] NSWIRComm 173 PROSECUTOR: Rodney Morrison PARTIES : DEFENDANT: United Collieries Pty Ltd (ACN 001 990 209) FILE NUMBER: IRC 4706 and 4707 of 2001 CORAM: Schmidt J CATCHWORDS : Occupational Health and Safety - two breaches of s15(1) of the Occupational Health and Safety Act 1983 - two separate consents to prosecute under s15 executed by Director General - whether prosecution failed to meet the requirements of s48 of the Act - whether Director General's intention was for the defendant to be prosecuted for only one offence - consideration of sequence of events provided a proper basis for the execution of two consents to prosecute - summonses to be dismissed declined Environmental Protection Act 1986 Fair Trading Act 1989 Interpretation Act 1987 LEGISLATION CITED : Occupational Health and Safety Act 1983 Supreme Court (Summary Jurisdiction) Act 1967 Trade Practices Act 1974 Wildlife Conservation Act 1950 Trading with the Enemy Act 1914 Berwin v Donohoe (1915) 21 CLR 1 Dever v Creevy (1993) 1 Qd R 232 MacCarron v Coles Supermarkets Australia Pty Ltd (2001) 23 WAR 355 Workcover Authority of New South Wales (Inspector Keenan) v Lucon (Australia) Pty Limited [2002] NSWIRComm 68 Palos Verdes Estates Pty Ltd v Carbon (1992) 6 WAR 223 CASES CITED : R v Cain [1976] 1 QB 496 Rabczynski v Morrison [1988] WAR 71 Rodney Morrison v Dartbrook Coal Pty Ltd and Tecrete Industries Pty Ltd [2002] NSWIRComm 127 Schultz v Virgin [1966] SASR 94 Thompson v The Queen (1989) 169 CLR 1 Traveland Pty Ltd v Doherty (1982) 41 ALR 563 HEARING DATES: 05/21/2002; 05/22/2002; 05/23/2002; 05/24/2002; 05/27/2002; 05/28/2002; 05/29/2002; 05/30/2002 DATE OF JUDGMENT: 07/29/2002

[55]

44 I have been fortified in this conclusion by the authorities to which I was referred by the parties. In Berwin, Higgins J contemplated the possibility that one consent might be given, leading to two prosecutions. He observed at pp28-9: 'It is quite true that the words in the written consent might also be applicable to some other offence than that specified in the information; but the words are distinctly applicable to that so specified. An indictment of John Smith would not be bad because there are other John Smiths to whom it might refer. A devise in a will of "my farm in the parish of Wycobe" is not void for uncertainty even if the testator had two farms in that parish; and evidence would be admissible to show which farm was referred to. Here there are not two prosecutions of Berwin, and the difficulty of showing which prosecution is referred to does not arise. The words of the Act providing for the consent of the Attorney-General are similar to those found in leases providing for the consent of the landlord to an assignment. If we had before us the words "an assignment of the lease shall not be made without the written consent of the lessor," and if the lessor signed a written consent to "assignment," without restricting it to assignment to any definite person, how could anyone say that there was a breach of the covenant? Inasmuch as the prosecution in this case answers the description of the prosecution to which consent has been given, it is not necessary for the prosecutor to give evidence identifying the former with the latter. It is for the accused to rebut the presumption that the consent refers to this prosecution ( Sewell v Evans 4 Q.B., 626); Leake on Contracts , 5th ed., p. 137). It is for the accused to show that the written consent which on its face, and without any straining of words, can fit this prosecution, does not relate to it (and see R. v. Metz 31 T.L.R., 401). Even if there were two prosecutions to which the consent is applicable; the consent would not be a bad consent. There would be a sufficient description even if evidence had to be given to show to which prosecution the consent referred ( Shardlow v Cotterell (20 Ch. D., 90); Plant v. Bourne (1897) 2 Ch., 281.)'

[58]

47 There were also difficulties with the offences specified in the information and the summonses issued pursuant to the consent. The prosecutor sought leave to amend the information. Traveland sought to have the summonses dismissed on the ground that they were void for want of jurisdiction in that they did not comply with the Minister's consent and that they did not allege an essential ingredient of the offence. The prosector succeeded before the trial judge. At p568 the Full Court observed: 'It is clear from the provisions of s 163(4) that the consent in writing of the Minister to the institution of a prosecution for an offence against the Act must be given before the proceedings are instituted. The sub-section contains no express provision as to the form which the consent should take or as to the detail or particularity with which the proceedings must be identified. The object of the requirement in s 163(4), that a prosecution shall not be instituted without the designated consent, is to protect the individual or corporation in danger of being charged, by ensuring that a prosecution will only be instituted if the Minister (or, where appropriate, his delegate) considers that it should. Consistently with that object, the requirements of s 163(4) will not be satisfied unless the Minister has in truth consented to the proceedings in question. It does not, however, follow that it is incumbent upon the Minister to restrict his consent to the institution of a prosecution for but one offence or that the consent should either define or particularize the precise offence or offences with which the prospective defendant should be charged. What is necessary is that the Minister should give his consent in terms which enable it to be said that the proceedings which are instituted have been instituted with his consent. It may be that this requirement precludes a consent being given in such wide terms as to be a consent to no proceedings in particular: see Crichton v Victorian Dairies Ltd [1965] VR 49 at 59. On the other hand, it does not preclude a consent to the institution of proceedings being worded in general terms with the identification of the precise offence, the particular wording of the charge and the content of any particulars being left to those responsible for the actual institution and conduct of the proceedings.'

Rodney Morrison v United Collieries Pty Ltd

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Judgment (84 paragraphs)

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Legislation Cited (1)

Cases Cited (8)

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