Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales

Kirk Group Holdings Pty Ltd and others (the Appellants) appealed to the Court of Criminal Appeal and the Court of Appeal of New South Wales against findings of guilt in the Industrial Court under the *Occupational Health and Safety Act 1983* (NSW). The central dispute concerned the proper appellate pathway for decisions made by the Industrial Court in its criminal jurisdiction, and the extent of supervisory jurisdiction the Supreme Court of New South Wales possessed over the Industrial Court.

The primary legal issues before the Court of Criminal Appeal were whether an appeal from the Industrial Court, in proceedings brought under the *Occupational Health and Safety Act*, could be brought to the Court of Criminal Appeal pursuant to section 5(1) of the *Criminal Appeal Act 1912* (NSW), and whether the Appellants could make an application for an inquiry under Part 13A of the *Crimes Act 1900* (NSW). In the Court of Appeal, the issues revolved around whether that court possessed supervisory jurisdiction over the Industrial Court and, if so, whether that jurisdiction should be exercised, particularly in light of section 179 of the *Industrial Relations Act 1996* (NSW), which contained a privative clause.

The Court of Criminal Appeal determined that the *Criminal Appeal Act 1912* did not confer jurisdiction to hear appeals from the Industrial Court in matters of this nature. The Court of Appeal considered the supervisory jurisdiction of the Supreme Court and the effect of the privative clause in section 179 of the *Industrial Relations Act 1996*. The Court concluded that section 179 was a valid provision and operated to exclude the supervisory jurisdiction of the Court of Appeal in relation to the criminal jurisdiction of the Industrial Court.

Consequently, the Court of Criminal Appeal ordered that the appeal be dismissed. In the proceedings before the Court of Appeal, the amended summons was also dismissed, and the Appellants were ordered to pay the costs of the Second Opponent.