WorkCover Authority of NSW (Inspector Maltby) v Abigroup Contractors Pty Ltd

HEARING DATES: 08/27/2001 DATE OF JUDGMENT: 10/12/2001

Prosecutor: Mr J.W. Shaw of counsel Solicitors: Moray & Agnew LEGAL REPRESENTATIVES: Defendant: Mr B.D. Hodgkinson Solicitors: Clayton Utz

JUDGMENT: - 12 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: KAVANAGH J Date : 12 October 2001

IRC5432 of 1999 WORKCOVER AUTHORITY OF NSW (INSP MALTBY) v ABIGROUP CONTRACTORS PTY LIMITED Prosecution under s15(1) of the Occupational Health and Safety Act 1983 IRC5433 of 1999 WORKCOVER AUTHORITY OF NSW (INSP MALTBY) v ABIGROUP CONTRACTORS PTY LIMITED Prosecution under s16(1) of the Occupational Health and Safety Act 1983 IRC5434 of 1999 WORKCOVER AUTHORITY OF NSW (INSP MALTBY) v ABIGROUP CONTRACTORS PTY LIMITED Prosecution under s16(1) of the Occupational Health and Safety Act 1983 IRC5436 of 1999 WORKCOVER AUTHORITY OF NSW (INSP MALTBY) v ABIGROUP CONTRACTORS PTY LIMITED Prosecution under s15(1) of the Occupational Health and Safety Act 1983 IRC5437 of 1999 WORKCOVER AUTHORITY OF NSW (INSP MALTBY) v ABIGROUP CONTRACTORS PTY LIMITED Prosecution under s15(1) of the Occupational Health and Safety Act 1983 IRC5438 of 1999 WORKCOVER AUTHORITY OF NSW (INSP MALTBY) v ABIGROUP CONTRACTORS PTY LIMITED Prosecution under s16(1) of the Occupational Health and Safety Act 1983 IRC5502 of 1999 WORKCOVER AUTHORITY OF NSW (INSP MANSELL) v LUIS BUSTAMANTE Prosecution under s19(a) of the Occupational Health and Safety Act 1983 IRC5503 of 1999 WORKCOVER AUTHORITY OF NSW (INSP MANSELL) v LUIS BUSTAMANTE Prosecution under s19(a) of the Occupational Health and Safety Act 1983

JUDGMENT (as to Notices of Motion) [2001] NSWIRComm239

1 These prosecutions are brought by the WorkCover Authority of New South Wales through Inspector Paul Maltby for alleged breaches of s15(1) and s16(1) of the Occupational Health and Safety Act 1983 by a company, Abigroup Contractors Pty Limited, and of s19(a) of the Occupational Health and Safety Act 1983 by an individual, Mr Luis Bustamante. 2 They have been brought before the Court by way of Notices of Motion filed by the defendants, which Notices of Motion seek: 1. An order setting aside the Orders made in this matter. 2. A declaration that the Orders, or some of them made in this matter, were made outside the time limits prescribed by Section 49(1) of the Act. 3. An order for costs plus GST payable in connection with any costs.

B. Grounds and Reasons 1. Section 49(1) of the Occupational Health and Safety Act 1983 (NSW) ("the Act") requires that proceedings for an offence against the Act be instituted within a period of 2 years after the act or omission alleged to constitute the offence. 2. These proceedings were not instituted within the period of 2 years after the acts or omissions alleged to constitute the offences. 3. The Respondent failed, at or before launching these prosecutions, to determine that the offence(s) charged appeared from the Coroner's report or proceedings. In the alternative: 4. In the circumstances, the Respondent has failed to satisfy the requirements of Section 49(4) of the Act so as to be able to rely upon the extended time limit provided by that section. Further and in the alternative: 5. The Coroner's report on the proceedings do not disclose a rational basis for the view that the offence(s) or some of them, appear to have been committed. 3 The Orders of the Court referred to in the Notices of Motion are those of the President in matter Nos IRC5432, 5433, 5434, 5436, 5437 and 5438 of 1999 and IRC502 and 503 of 1999. Each of the Orders issued by the President are similar and read as follows: THE COURT ORDERS you to appear before a judge of the Industrial Relations Commission of New South Wales in Court Session in Court No. 4, Level 5, 50 Phillip Street, Sydney in the State of New South Wales on 21 February 2001 at 9.30 am to answer to the offence alleged by the prosecutor as set out in the application filed in the Industrial Registry on 12 October 1999, a copy of which is attached.

4 Mr J.W. Shaw QC with Mr P.M. Skinner appeared for the Prosecutor, the respondent on the Notices of Motion.

5 Mr B.D. Hodgkinson of counsel, appeared for both the defendant corporation and the individual named in the Orders. Mr Hodgkinson moved on the Notices of Motion. Before argument was heard on the Notices of Motion, Mr Shaw made a submission as to this court's jurisdiction to consider the Motions. Mr Hodgkinson conceded Mr Shaw's application could be held to have an effect on his Notices of Motion and consented to Mr Shaw putting his submissions before the hearing of argument in support of the Motions. 6 Mr Shaw submitted: that the privative section of the Industrial Relations Act 1996, namely, s179, protects the Orders made by Wright J, President.

7 In support of his submission, Mr Shaw relied upon the transcript of the submissions before Wright J, President covering four days, namely, 7 September 2000, 14 November 2000, 7 February 2001 and 21 February 2001.

8 The Orders referred to in the Notices of Motion were issued by Wright J, President on 7 February 2001. His Honour in issuing the Orders made the followings Statement on transcript: In these proceedings today an application is made by the prosecution for orders in each of these proceedings as to the respective defendants, pursuant to section 4 of the Supreme Court (Summary Jurisdiction) Act 1967 as incorporated into the powers of this Court by section 168 of the Industrial Relations Act 1996.

I consider that it is appropriate to make orders in this matter. I note that the issues raised by the defendants on previous occasions as to why it would be inappropriate or premature to make orders on those previous occasions have been the subject of detailed particulars and, in addition, the Court has been taken to the matters relied upon by the prosecution as to particular matters raised by the defendants on previous occasions or matters relating to such matters.

It is also noted that the solicitors for the defendants have given certain advice in the sense of a notification of their position to the solicitors for the prosecution. That information or advice is in letter form, being a letter from Messrs Clayton Utz to Messrs Moray & Agnew dated 31 January 2001. Relevantly it has been marked exhibit B in the proceedings.

I should record that the operative and relevant part of that correspondence is as follows: "We are instructed that our client does not wish to be heard in either support or opposition to any application that you make under section 4 of the Supreme Court (Summary Jurisdiction) Act . In accordance with those instructions, we will not be advancing a position of either consent or objection on 7 February 2001." Section 4 of the Supreme Court (Summary Jurisdiction) Act provides in subsection (2) thereof that an order under subsection (1) of the same section may be made ex parte.

The fact that the making of these orders will occur in open court arises from certain aspects of the particular history of these proceedings but does not, in my opinion, change the essential nature of the role of the judge making the order. In this respect I consider that two relevant considerations emerge from the statutory scheme as follows:

1. Notwithstanding the importance of the role of the judge issuing or making the order or orders under section 4(1), it is not necessary that reasons for the making of the orders be provided.

2. The making of the orders does not, or does not necessarily, deprive the defendant of its usual rights in proceedings of this nature.

By making that last observation I am not issuing invitations, I am simply stating what I consider to be obvious and it is also one of the considerations why I do not consider it is necessary, even when orders are being made in open court, for reasons to be given. The making of orders does not finally determine the legal rights of the parties.

I therefore make the following orders and determinations: 1. I determine that orders should issue in each of the matters listed before me today except in matter IRC 99/5435.

2. Such orders shall be returnable before the Court at 9.30 am on 21 February 2001.

9 Wright J, President, noted in his Statement, a prosecution under the Occupational Health and Safety Act 1983 is heard before the Industrial Relations Commission of New South Wales in Court Session. Section 168 of the Industrial Relations Act 1996 deals with criminal procedures heard before the Commission in Court Session. Section 168 states: Criminal Procedure 168(1) Proceedings for any offence in respect of which proceedings are taken before the Commission in Court Session are to be dealt with summarily by the Commission. 168(2) The Supreme Court (Summary Jurisdiction) Act 1967 applies to any such proceedings in the same way as it applies to proceedings that may be taken before the Supreme Court in its summary jurisdiction. 168(3) For the purposes of subsection (2), a reference (however expressed) in the Supreme Court (Summary Jurisdiction) Act 1967 : (a) to the Supreme Court (except in section 15)---is taken to be a reference to the Commission in Court Session, and (b) to rules is taken to be a reference to rules of the Commission, and (c) to the Prothonotary---is taken to be a reference to the Industrial Registrar. 168(4) The provisions applied by this section prevail over any other provisions of this Part for the purposes of proceedings for an offence. 10 Relevantly, it is s4 of the Supreme Court (Summary Jurisdiction) Act 1967 which applies to any such proceedings: Orders for appearance or apprehension of defendants 4(1) Upon an application being made by any person (in this Act referred to as the " prosecutor ") in accordance with the rules, a Judge shall make an order: (a) ordering any person alleged in the application to have committed an offence punishable in the Court in its summary jurisdiction to appear at a time and place specified in the order to answer to the offence charged in the order; or (b) ordering the apprehension of any such person for the purpose of the person's being brought before a Judge to answer to the offence charged in the order. (2) An order under subsection (1) may be made ex parte. (3) An order in respect of an offence alleged to have been committed by a person may be made under paragraph (b) of subsection (1) whether or not an order in respect of that offence has been made under paragraph (a) of that subsection. (4) An order under paragraph (b) of subsection (1): (a) shall be addressed to all members of the police force; (b) may be addressed to any other person specified in the order; and (c) may be executed by any member of the police force or by any person to whom it is addressed at any place at which, had the offence specified in the order been committed at that place, that offence would be triable in the Court. Incorporated into the Supreme Court Act 1970 are the Rights of Appeal against an interlocutory judgment or Order as defined in s5F of the Criminal Appeal Act 1912.

11 The "privative section" of the Industrial Relations Act 1996 referred to and relied upon by Mr Shaw is found in s179 of the Act. It reads as follows Finality of decisions 179(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).

179(2) A judgment or order that, but for this section, might be given or made in order to grant 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.

179(3) To avoid doubt, this section extends to any decision or purported decision of the Commission, including an award or order of the Commission.

12 Mr Shaw submitted, subject to the exercise of a right of appeal to the Full Bench of the Commission (which right of appeal by way of leave had not been utilised), the Orders of Wright J, President, are final and may not be appealed against, reviewed, quashed or called into question by any court or tribunal whether on an issue of fact, law, jurisdiction or otherwise. He submitted, on the evidence relied upon, as a matter of fact the defendant company did not object to the Orders being issued nor, following the issue of those Orders, made any application for leave to appeal.

13 Mr Hodgkinson for the defendants challenged whether the Orders of the President could be held to be a "decision" or a "purported decision" of the Commission. The provisions of s179 of the Industrial Relations Act 1996 acknowledges the exercise of a right of appeal to "a decision or purported decision" of the Commission (see s179(1),(2)&(3)). The defendants submitted the Orders arising from the statement cannot be held to be a "decision" or "purported decision" of the court as required under s179(1),(2)&(3) of the Industrial Relations Act 1996. The defendants therefore submitted the intended protection to Orders of the Court under s179(1),(2)&(3) of the Act cannot be applied in the circumstances of these prosecutions. Consideration 14 As to the effect of a privative clause in Industrial legislation, the Full Bench of this Commission in Nutshack Franchise Pty Limited & Ors v Smith & Anor 90 IR 355 (at 360) Wright J President, Hungerford and Peterson JJ held (at 360) as to s179 of the Act: Our view of that statutory scheme is that a decision of a single member once made is final, subject only to the exercise of a right of appeal to a Full Bench. That appeal facility is not unrestricted and is not as of right but subject to the grant of leave by the Full Bench. The effect of s179(1) was also considered by the Full Bench of the Commission in WorkCover Authority of NSW (Insp Hopkins) v Profab Industries Pty Ltd (No. 2) (2000) 101 IR 92 [at 10] where the Full Bench considered a Notice of Motion (in appeal proceedings) which Motion: . . . effectively called in question the decision of Peterson J on jurisdictional grounds, even though such grounds were not argued before his Honour. The court found "the motion failing in limine as being misconceived by reason of s179(1)".

15 Other aspects of the effect of a privative clause in industrial legislation have been considered by the court. In New South Wales Public Medical Officers Association v Eastern Area Health Service 39 IR 211 (at 213) Maidment J considered the effect of s84 of the Industrial Arbitration Act 1940 where an employer breached an Order of Sweeney J. In that matter there was challenge to the Order and an application for a declaration that the Order was a nullity. His Honour held: It is my view that it is not for the Commission in these proceedings to pass upon the existence of statutory authority for the order made by Sweeney J, nor to call the order into question. To do so would, in my opinion, be repugnant to section 84. The remedy open to an affected person who disputes the validity of the order is that of an appeal pursuant to the provisions . . . of the Act . . .

Section 84 of the Industrial Arbitration Act 1940 was a privative clause as contained in preceding industrial legislation and could be termed a less restrictive privative clause than that of s179 as contained in the 1996 Act. Maidment J relied upon the expressed views of the Court of Appeal where Moffett P, Hope and Hutley JJA were called upon in Caltex Oil (Australia) Pty Limited v Feenan [1981] NSWLR 724 to consider granting a declaration and Orders restraining enforcement of Orders of this Commission arising from a decision of a judge of the Commission issued under s88F of the Act. Hutley JA said (at 730G): . . . even if the Court had decided that it was proper for it to intervene, it would have no jurisdiction to make the declaration which is sought. . . . The Industrial Commission is a superior court of record ( Industrial Arbitration Act 1940, section 14(1)) and an order of a Superior Court of record is never a nullity: Sanders v Sanders (1967) 116 CLR 366 at 376 per Barwick CJ. A declaration produces an authoritative statement on an existing state of affairs it is not a constitutive act. 16 The High Court in Houssein v The Under Secretary, Department of Industrial Relations and Technology NSW & Anor 148 CLR 88 at 94, expressed the following opinion in relation to the effect of s84(1) of the 1940 Act: Thus even excess of jurisdiction in relation to industrial matters may not suffice to attract the prerogative writs. It will not do so if it is a matter which, on the face of the proceedings, nevertheless appears to be or to relate to an industrial matter. . . . 17 Such a view as to the effect of s179 of the 1996 Act was endorsed in Woolworths Limited v Hawke & Ors (1998) 45 NSWLR 13. The Court of Appeal had before it proceedings seeking Orders in the nature of prohibition against the Industrial Relations Commission of NSW & Ors. It was alleged the Full Bench of the Commission in Court Session had exercised jurisdiction in hearing an appeal from Peterson J in excess of jurisdiction. Priestley JA with Sheller and Stein JJA concurring held (at 19): . . . the jurisdiction was there, and so long as the jurisdiction was exercised, whether or not an error of law was committed along the way, s 179 made the decision final and not subject to review in this court.

Even if I am wrong in my understanding of the provisions in the 1996 Act which give the Commission in Court Session its powers, and if the right view were that it was subject to the same limitations as the Local Reference Board in R v Hickman; Ex parte Fox and Clinton (1945) 70 CLR 598, I would still be of the opinion that this court is not empowered to embark upon a consideration of the rightness of wrongness of its decision. This is because, to adapt the words of Dixon J in Hickman (at 617) the decisions of the Commission in the present proceedings do not upon their face exceed the Commission's authority, they amount to a bona fide attempt to exercise the powers of the Commission and they relate to the subject matter of the 1996 Act. 18 The Industrial Relation Commission of New South Wales is a superior court of record and therefore an Order of a superior court must remain in operation and be obeyed until vacated formally (see News Limited v Printing & Kindred Industries Union [1975] 1NSWLR 151).

19 The effect of s179 of the Act can therefore be stated as follows: it is a clearly and widely worded privative clause governing a tribunal of stature, the Industrial Relation Commission of New South Wales, and the clause will protect Orders and Awards or decisions or purported decisions of the Industrial Relations Commission of New South Wales from any Order of a court to void, vary or review the Order, Award or decision or purported decision, whether on an issue of fact, law, jurisdiction or otherwise.

20 Wright J, President considered before his determination to issue the Orders, a judgment of Schmidt J in WorkCover v SRA (2000) 101 IR 271 ("the first SRA decision"). Schmidt J's judgment considered Notices of Motion seeking the dismissal of prosecutions which were allegedly issued after the expiration of a limitation period (see s49(1) of the Occupational Health and Safety Act, 1983). In her Honour's Judgment, it was found the proceedings were not a nullity but Orders were issued requiring the prosecutor to provide further particulars as to the circumstances surrounding the issue of the Application for Orders. Her Honour has since given a second judgment WorkCover Authority v SRA [2001] NSWIRComm 120 handed down 31 May 2001. The second decision of Schmidt J ("the second SRA decision") was not published until after these Orders of the President were issued. The Judgment is now on Appeal.

21 The President also considered, before the issuing of Orders, the effect of Ridge Consolidated Pty Ltd v WorkCover Authority of New South Wales (Inspector Mauger) (2000) 100 IR 156 (published 18 August 2000).

22 I am satisfied the Orders of the President are a decision of the Commission at first instance. His Honour referred in his Statement to his "determinations". I reject the submission these Orders cannot be termed a "decision" of the court and are therefore not covered by the terms of s179 of the Act. I am satisfied his Honour's Orders which arise from what he termed a "determination" are in effect a "decision" of the court. They are therefore protected by the provision of s179 of the Act and referring to comments of Maidment J in relation to s84 of the 1940 Act, it would "be repugnant" to s179 to find otherwise. I am further persuaded to this view by the specific wording in s179(3) of the Act: To avoid any doubt, this section extends to any decision or purported decision of the Commission, including an award or order of the Commission.

Wright J, President issued Orders of the Commission.

23 I find the privative section of the Industrial Relations Act 1996, namely, s179 protects the Orders made by Wright J, President on 7 February 2001. I find s179 precludes the present challenge to the validity of the Orders made by Wright J, President on 7 February 2001.

24 Mr Hodgkinson, in the alternative, makes two further submissions. He submits firstly the issuing of the Orders was an abuse of process given the requirements on the WorkCover Authority under s49(4) of the Act, and secondly, arising out of the lack of particularity and/or a lack of evidence provided by the prosecution there is not established an alleged offence was committed on the day/days as pleaded in the charge. Therefore, he submitted, some charges must be held to be duplicitous.

25 If the defendants wish to challenge the jurisdiction of the Court to hear the prosecutions, such challenges should be heard at trial and determined in accordance with established legal principles and at the appropriate time within the trial process. It is clearly stated law that it is most undesirable to fragment the criminal process. As was held in Yates v Wilson & Ors 168 CLR 338 (at 339) by Mason CJ, joined by Toohey and Gaudron JJ, on an application for special leave to appeal from a decision of the Federal Court of Australia: It would require an exceptional case to warrant the grant of special leave to appeal in relation to a review by the Federal Court of a magistrate's decision to commit a person for trial. The undesirability of fragmenting the criminal process is so powerful a consideration that it requires no elaboration by us. It is a factor which should inhibit the Federal Court from exercising jurisdiction under the Administrative Decisions (Judicial Review) Act 1977 (Cth) and as well inhibits this Court from granting special leave to appeal.

26 Mr Hodgkinson's two alternative submissions are matters which can be determined at trial. Any submissions by the defendants as to the status of the Prosecution relying upon the reasoning in the second SRA judgment of Schmidt J can be properly dealt with by the defendants at trial.

27 As to the Motions for the court to issue a declaration for the Orders issued on 7 February 2001 to be set aside or for the court to issue a declaration that the Orders, or some of them, were made outside the time limits prescribed by s 49(1) of the Act, I reject the Notices of Motion. 28 These prosecutions are set down for hearing for 58 days beginning in February 2002. I confirm the hearing dates of these prosecutions on 11, 12, 13, 15, 19, 20, 25, 26, 27 February; 4, 5, 6, 11, 12, 13, 18, 19, 20, 25, 26, 27 March; 2, 3, 4, 5, 8, 9, 10, 15, 16, 17, 22, 23, 24, 29, 30 April, 1, 6, 7, 8, 13, 14, 15, 20, 21, 22, 27, 28, 29 May; 3, 4, 5, 11, 12, 13, 17, 18, 19 June 2002.

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