Inspector Brock v Empire Waste Pty Ltd - [2013] NSWDC 38

District Court

New South Wales

Medium Neutral Citation: Inspector Brock v Empire Waste Pty Ltd [2013] NSWDC 38
Hearing dates: 08/04/2013
Decision date: 12 April 2013
Jurisdiction: Criminal
Before: Curtis, J
Decision: I find that clauses 2 and 3 of Schedule 18B of the Work Health and Safety Regulation 2011 are valiad regulations enabled by clause 1 of Schedule 4 of the Work Health and Safety Act 2011
Catchwords: District Court - Criminal jurisdiction - workplace prosecutation - occupational health and safety - Notice of Motion challenging District Court's jurisdiction - whether proceedings defective in failing to comply with the District Court Rules - whether Executive has power to invest jurisdiction in the District Court and the Local Court
Legislation Cited: Criminal Procedure Act 1986
Occupational Health and Safety Act 2000
District Court Rules 1973
Work Health and Safety Act 2011
Work Health and Safety Regulation 2011
Work Health and Safety Leglislation Amendment Act 2011
Work Health and Safety (Savings and Transitional) Regulation 2011
Interpretation Act 1987
Cases Cited: McConnell Dowell Constructions (Aust) Pty Ltd v Environment Protection Authority [2000] NSWCCA 367
Doja v R [2009] NSWCCA 303
Jago v District Court of New South Wales (1989) 168 CLR 23
Ex parte McGuigan (1923) WN (NSW) 129
Wilcocks v Anderson 124 CLR 293
The Retirement Benifits Fund Board v Hingston [1997] TASSC 66
Australian Meat Industry Employees Union v Hamberger [2000] FCA 1197
Texts Cited: New South Wales Hansard, 19 October 2011
Category: Procedural and other rulings
Parties: Inspector Steven Brock (Prosecutor)
Empire Waste Pty Ltd (Defendant)
Representation: J V Agius, SC with B G Docking appeared for the Prosecutor
G W McGrath, SC with S A Adair appeared for the Defendant
Workcover Authority of New South Wales (Prosecutor)
Eastern Commercial Lawyers (Defendnant)

File Number(s): 2012/341785

RULING

Introduction

On 1 November 2012 the prosecutor, pursuant to s246 of the Criminal Procedure Act 1986, applied for an order that Empire Waste Proprietary Limited (the defendant) appear before the Court to answer a charge that on 20 December 2010, contrary to s8(1) of the Occupational Health and Safety Act 2000 (OHS Act) it failed to ensure the health and safety and welfare of its employee, Thomas Hill.

In response to that application, the court ordered that the defendant appear on 14 December 2012 to answer that charge. On 15 November 2012 the defendant filed a Notice of Appearance.

By Notice of Motion filed 11 February 2013 the defendant seeks orders that the order made by the court, or in the alternative, the proceedings, be quashed, permanently stayed or dismissed upon the following grounds:

(a) That the District Court has no jurisdiction to deal with proceedings for offences against the Occupational Health and Safety Act 2000.

(b) That if the court does have jurisdiction, the Application to Commence Proceedings was defective in failing to comply with Part 53 rule 26 of the District Court Rules 1973 because the statement of facts, purportedly in compliance with the rule, included extraneous matters of fact, mixed…

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] NSWDC 38
Decision Date: 12 April 2013

CaseChat Overview and Summary

The case of Inspector Brock v Empire Waste Pty Ltd involved a workplace prosecution under occupational health and safety legislation. The defendant, Empire Waste Pty Ltd, was charged with multiple breaches of safety regulations. The case was heard in the District Court of New South Wales, which has criminal jurisdiction over such matters. The prosecution was brought by Inspector Brock, an authorised officer responsible for enforcing the occupational health and safety laws.

The primary legal issue before the court was whether the District Court had the authority to hear the case given the alleged procedural defects in the prosecution. Specifically, Empire Waste argued that the proceedings were defective as they did not comply with the District Court Rules, which in turn raised questions about the Executive's power to invest jurisdiction in the District Court and the Local Court. The court was tasked with determining the validity of the regulations that granted the District Court jurisdiction over these types of prosecutions.

The court examined the relevant statutory provisions and found that clauses 2 and 3 of Schedule 18B of the Work Health and Safety Regulation 2011 were valid regulations enabled by clause 1 of Schedule 4 of the Work Health and Safety Act 2011. This conclusion confirmed that the District Court had the requisite jurisdiction to hear the case. The court rejected Empire Waste's argument that the proceedings were defective due to non-compliance with the District Court Rules, as it found that such non-compliance did not affect the court's jurisdiction or the validity of the regulations. Therefore, the court upheld its jurisdiction over the matter and dismissed the motion challenging the court's authority.

The court's decision affirmed the validity of the regulations and the court's jurisdiction, allowing the prosecution to proceed. This ruling ensures that workplace safety prosecutions can be effectively pursued in the appropriate courts, safeguarding the enforcement of occupational health and safety laws.

Orders

Orders of the court

I find that clauses 2 and 3 of Schedule 18B of the Work Health and Safety Regulation 2011 are valiad regulations enabled by clause 1 of Schedule 4 of the Work Health and Safety Act 2011

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:	Inspector Brock v Empire Waste Pty Ltd [2013] NSWDC 38
Hearing dates:	08/04/2013
Decision date:	12 April 2013
Jurisdiction:	Criminal
Before:	Curtis, J
Decision:	I find that clauses 2 and 3 of Schedule 18B of the Work Health and Safety Regulation 2011 are valiad regulations enabled by clause 1 of Schedule 4 of the Work Health and Safety Act 2011
Catchwords:	District Court - Criminal jurisdiction - workplace prosecutation - occupational health and safety - Notice of Motion challenging District Court's jurisdiction - whether proceedings defective in failing to comply with the District Court Rules - whether Executive has power to invest jurisdiction in the District Court and the Local Court
Legislation Cited:	Criminal Procedure Act 1986 Occupational Health and Safety Act 2000 District Court Rules 1973 Work Health and Safety Act 2011 Work Health and Safety Regulation 2011 Work Health and Safety Leglislation Amendment Act 2011 Work Health and Safety (Savings and Transitional) Regulation 2011 Interpretation Act 1987
Cases Cited:	McConnell Dowell Constructions (Aust) Pty Ltd v Environment Protection Authority [2000] NSWCCA 367 Doja v R [2009] NSWCCA 303 Jago v District Court of New South Wales (1989) 168 CLR 23 Ex parte McGuigan (1923) WN (NSW) 129 Wilcocks v Anderson 124 CLR 293 The Retirement Benifits Fund Board v Hingston [1997] TASSC 66 Australian Meat Industry Employees Union v Hamberger [2000] FCA 1197
Texts Cited:	New South Wales Hansard, 19 October 2011
Category:	Procedural and other rulings
Parties:	Inspector Steven Brock (Prosecutor) Empire Waste Pty Ltd (Defendant)
Representation:	J V Agius, SC with B G Docking appeared for the Prosecutor G W McGrath, SC with S A Adair appeared for the Defendant Workcover Authority of New South Wales (Prosecutor) Eastern Commercial Lawyers (Defendnant)
File Number(s):	2012/341785