Director General, Department of Trade and Investment, Regional Infrastructure and Services v Glennies Creek Coal Management Pty Ltd

The Director General, Department of Trade and Investment, Regional Infrastructure and Services (the appellant) sought judicial review of a decision by the Industrial Court of New South Wales. The dispute concerned the Industrial Court's refusal to submit a question of law to the Full Bench of that court, as requested by the appellant. The appellant had been prosecuting Glennies Creek Coal Management Pty Ltd (the respondent) under the *Occupational Health and Safety Act 2000* (NSW).

The primary legal issue before the Supreme Court of New South Wales was whether the Industrial Court had a discretion to refuse to submit a question of law to its Full Bench when requested to do so by the prosecutor under section 5AE of the *Criminal Appeal Act 1912* (NSW). A related issue was whether the question sought to be submitted by the appellant constituted a "question of law arising at or in reference to the proceedings" within the meaning of that section.

The Supreme Court held that section 5AE of the *Criminal Appeal Act 1912* imposed an obligation on the Industrial Court to refer a question of law to the Full Bench if requested by the Crown, and that there was no discretion to decline such a request. The Court found that while a judge might assist in formulating or refining a question, the prosecutor was not entitled to request the submission of a different question than that which had been properly rejected. The Court concluded that the question put by the appellant was not properly formulated for the purpose of a referral under section 5AE, and therefore the Industrial Court's refusal to submit it was not a jurisdictional error.

The amended summons filed by the applicants was dismissed with costs.