Australian Native Landscapes Pty Ltd v McDonald - [2013] NSWCA 395

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Australian Native Landscapes Pty Ltd v McDonald [2013] NSWCA 395
Hearing dates: 20 June 2013
Decision date: 27 November 2013
Before: Bathurst CJ at [1]; Beazley P at [22]; Hoeben JA at [23]
Decision:
1. Application dismissed with costs.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: STATUTORY INTERPRETATION - Pt 2 of Sch 18B to the Work Health and Safety Regulation 2011 - validity - savings and transitional provisions - whether regulation making power or transitional regulation making power in the Work Health and Safety Act 2011 enabled the making of regulations that conferred jurisdiction to determine prosecutions under the repealed Occupational Health and Safety Act 2000.
Legislation Cited: Criminal Procedure Act 1986, s 246
Occupational Health and Safety Act 2000, ss 8, 105
Work Health and Safety Act 2011, s 229B, Pt 13, Sch 4
Work Health and Safety Regulation 2011, Sch 18B
Work Health Safety (Savings and Transitional) Regulation 2011
Cases Cited: Empire Waste Pty Ltd v District Court of New South Wales [2013] NSWCA 394
Ex parte McGuigan (1923) 40 WN (NSW) 129
Inspector Brock v Empire Waste Pty Ltd [2013] NSWDC 38
M & J Mitchell Pty Ltd v Director General of Department of Transport [2011] WASC 66
Morton v The Union Steamship Company of New Zealand (1951) 83 CLR 402
Peacock v Newtown Marrickville and General Building Co-Operative Building Society No 4 Ltd (1943) 67 CLR 25
Willocks v Anderson (1971) 124 CLR 293
Category: Principal judgment
Parties: Australian Native Landscapes Pty Ltd (Applicant)
Inspector Nathan McDonald (First respondent)
District Court of New South Wales (Second respondent)
Representation: Counsel:
A R Moses SC and P Keyzer (Applicant)
J V Agius SC and B G Docking (First respondent)
Solicitors:
Berry Buddle Wilkins Lawyers (Applicant)
Legal Group, Safety, Return to Work and Support Division (First respondent)
Crown Solicitor's Office (Second respondent)

File Number(s): 2013/137589
Publication restriction: No
Decision under appeal

Jurisdiction:

9101

File Number(s):

2012/293511

Judgment

BATHURST CJ: On 19 September 2012 the first respondent (the prosecutor) made an application under s 246 of the Criminal Procedure Act 1986 to commence proceedings against the applicant, alleging that between 17-18 March 2011 the applicant failed to ensure the health, safety and welfare at work of all of its employees, naming three employees in particular, contrary to s 8(1) of the Occupational Health and Safety Act 2000 (the OH&S Act).

On 20 September 2012 a judge of the District Court issued a summons ordering the applicant to appear to answer the charges.

Following the decision of Judge Curtis in Inspector Brock v Empire Waste Pty Ltd

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] NSWCA 395
Decision Date: 27 November 2013

CaseChat Overview and Summary

Australian Native Landscapes Pty Ltd (the applicant) sought to challenge the validity of Part 2 of Schedule 18B to the Work Health and Safety Regulation 2011 (the Regulation). The dispute concerned whether the Regulation validly conferred jurisdiction to determine prosecutions under the repealed Occupational Health and Safety Act 2000. The matter was heard in the Court of Appeal of New South Wales.

The central legal issue before the Court of Appeal was whether the regulation-making power, or specifically the transitional regulation-making power, contained within the Work Health and Safety Act 2011, authorised the making of regulations that purported to grant jurisdiction to hear and determine prosecutions initiated under the previous Occupational Health and Safety Act 2000.

The Court of Appeal dismissed the application. The reasoning of the Court, though not detailed in the provided text, would have involved an interpretation of the Work Health and Safety Act 2011 and the Work Health and Safety Regulation 2011, particularly the provisions relating to savings and transitional arrangements. The Court would have considered whether the legislative intent and the language of the Act permitted the conferral of such jurisdiction through the transitional regulations. The application was dismissed with costs.

Orders

Orders of the court

1. Application dismissed with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Australian Native Landscapes Pty Ltd v McDonald [2013] NSWCA 395
Hearing dates:	20 June 2013
Decision date:	27 November 2013
Before:	Bathurst CJ at [1]; Beazley P at [22]; Hoeben JA at [23]
Decision:	1. Application dismissed with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	STATUTORY INTERPRETATION - Pt 2 of Sch 18B to the Work Health and Safety Regulation 2011 - validity - savings and transitional provisions - whether regulation making power or transitional regulation making power in the Work Health and Safety Act 2011 enabled the making of regulations that conferred jurisdiction to determine prosecutions under the repealed Occupational Health and Safety Act 2000.
Legislation Cited:	Criminal Procedure Act 1986, s 246 Occupational Health and Safety Act 2000, ss 8, 105 Work Health and Safety Act 2011, s 229B, Pt 13, Sch 4 Work Health and Safety Regulation 2011, Sch 18B Work Health Safety (Savings and Transitional) Regulation 2011
Cases Cited:	Empire Waste Pty Ltd v District Court of New South Wales [2013] NSWCA 394 Ex parte McGuigan (1923) 40 WN (NSW) 129 Inspector Brock v Empire Waste Pty Ltd [2013] NSWDC 38 M & J Mitchell Pty Ltd v Director General of Department of Transport [2011] WASC 66 Morton v The Union Steamship Company of New Zealand (1951) 83 CLR 402 Peacock v Newtown Marrickville and General Building Co-Operative Building Society No 4 Ltd (1943) 67 CLR 25 Willocks v Anderson (1971) 124 CLR 293
Category:	Principal judgment
Parties:	Australian Native Landscapes Pty Ltd (Applicant) Inspector Nathan McDonald (First respondent) District Court of New South Wales (Second respondent)
Representation:	Counsel: A R Moses SC and P Keyzer (Applicant) J V Agius SC and B G Docking (First respondent) Solicitors: Berry Buddle Wilkins Lawyers (Applicant) Legal Group, Safety, Return to Work and Support Division (First respondent) Crown Solicitor's Office (Second respondent)
File Number(s):	2013/137589
Publication restriction:	No
Decision under appeal	Jurisdiction: 9101 File Number(s): 2012/293511