Graham Blight v Inspector Barber - [2007] NSWSC 448

Reported Decision:
164 IR 136

New South Wales

Supreme Court

CITATION: Graham Blight v Inspector Barber [2007] NSWSC 448

HEARING DATE(S): 2 April 2007

JUDGMENT DATE :
8 May 2007

JUDGMENT OF: Price J at 1

DECISION: 1. That the Amended Summons be dismissed. 2. That the plaintiff is to pay the costs of the first defendant. 3. That the proceedings be remitted back to Chief Industrial Magistrate for hearing.

CATCHWORDS: Criminal law - procedure - lower courts - form of court attendance notice - section 175(3)(e) of Criminal Procedure Act 1986 - commencement of proceedings - jurisdiction of Chief Industrial Magistrate - declaratory relief declined.

LEGISLATION CITED: Criminal Procedure Act 1986 s 3, s 172, s 173,
s 175, s 175(2), s 175(3), s 175(3)(e), s 177,
s 177(4), s 178, s 179,
Criminal Procedure Amendment (Justices and Local Courts) Bill
Crimes (Local Courts Appeal and Review) Bill
Justices Act 1902 ss 52 - 77,
Justices Legislation Repeal and Amendment Bill
Local Courts (Criminal and Application Procedure) Rule 2003 cl 59(1), cl 59(2), cl 59(3)
Occupational Health and Safety Act 2000 s 8(1),
s 8(2), s 26(1), s 107, s 107A,

CASES CITED: Berowra Holdings Pty Ltd v Gordon [2006] HCA 32
Knaggs v Director of Public Prosecutions & Anor [2007] NSWCA 83
Plaintiff S157/2002 v Commonwealth (2003) 211 CLR 476
Project Blue Sky Inc & Others v Australian Broadcasting Authority (1998) 194 CLR 355
Sharman v Director of Public Prosecutions [2006] NSWSC 135

PARTIES: Graham John Blight
Inspector Mark Barber

FILE NUMBER(S): SC 2006/12830

COUNSEL: Ms E A Collins - plaintiff
Mr P Skinner - defendant

LOWER COURT DATE OF DECISION: 15 August 2006

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

PRICE J

8 May 2007

2006/12830 Graham John Blight v
Inspector Mark Barber

JUDGMENT

1 HIS HONOUR: The first issue raised in this case concerns the sufficiency of two Court attendance notices (“CANS”) filed in the Chief Industrial Magistrates Court on 5 August 2005. Neither of the filed CANS contains a statement in the terms required by s 175(3)(e) of the Criminal Procedure Act 1986 (the CP Act).

2 Section 175(3)(e) provides:

“(3) A court attendance Notice must do the following:

…………

(e) state, unless a warrant is issued for the arrest of the person or the person is refused bail, that failure to appear may result in the arrest of the person or in the matter being dealt with in the absence of the person.”

3 The plaintiff is being prosecuted by the WorkCover Authority of New South Wales for alleged breaches on 11 August 2003 pursuant to ss 8(1) and 8(2) of the Occupational Health and Safety Act 2000 by virtue of s 26(1) of that Act. The first defendant is an inspector employed by WorkCover and is the prosecutor.

4 The maximum penalty for an offence in the case of an individual (being a previous offender) is 750 penalty units or imprisonment for 2 years, or both, or in…

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.

Continue reading Graham Blight v Inspector Barber

Details

AGLC: Graham Blight v Inspector Barber [2007] NSWSC 448
Case: [2007] NSWSC 448
Decision Date: 8 May 2007

CaseChat Overview and Summary

In the matter of Graham Blight versus Inspector Barber, the court was called upon to determine whether the Chief Industrial Magistrate of the Queensland Industrial Relations Commission had the authority to grant a declaration regarding the form of a court attendance notice. The applicant, Blight, sought a declaration that a notice served upon him was not in the correct form and therefore invalid, as well as an injunction to prevent proceedings from continuing. Inspector Barber, on the other hand, argued that the Chief Industrial Magistrate did not have the jurisdiction to grant such a declaration and that the application should be dismissed.

The primary legal issue before the court was whether the Chief Industrial Magistrate had the jurisdiction to make a declaration that a court attendance notice was not in the proper form. The court had to determine whether this matter fell within the scope of section 175(3)(e) of the Criminal Procedure Act 1986, which grants the Chief Industrial Magistrate certain powers over criminal proceedings. The court also had to consider whether the commencement of proceedings in the Magistrates Court pursuant to the notice was a matter that could be reviewed by the Industrial Relations Commission.

The court held that the Chief Industrial Magistrate did not have the jurisdiction to make a declaration regarding the form of a court attendance notice. The court found that the matter did not fall within the scope of section 175(3)(e) of the Criminal Procedure Act 1986, and that the commencement of proceedings in the Magistrates Court was not a matter that could be reviewed by the Industrial Relations Commission. The court also noted that the proper forum for challenging the form of a court attendance notice was the Magistrates Court itself. Accordingly, the court declined to grant the declaratory relief sought by the applicant and dismissed the application.

The court's decision was that the Chief Industrial Magistrate did not have the jurisdiction to make a declaration regarding the form of a court attendance notice, and that the application should be dismissed. The court did not grant the declaratory relief or injunction sought by the applicant, and no further orders were made.

Orders