Ove Arup Pty Ltd v Industrial Court of NSW

This matter concerned an appeal by the prosecution, Ove Arup Pty Ltd, against a decision of the Industrial Court of New South Wales. The dispute arose from proceedings instituted by an Inspector on behalf of WorkCover concerning an alleged offence under section 17 of the *Occupational Health and Safety Act 1983* (NSW). The central question before the court was whether the Industrial Court of NSW possessed the necessary jurisdiction to hear the appeal.

The legal issues before the court included whether the Full Bench of the Industrial Court had jurisdiction to hear the appeal under the *Industrial Relations Act 1996* (NSW) and section 5C of the *Criminal Appeal Act 1912* (NSW). This involved determining whether an earlier decision of the Full Bench should be reopened, whether an information had been "quashed," and whether an application had been made under section 4(1) of the *Supreme Court (Summary Jurisdiction) Act 1967* (NSW). The court also considered the effect of the privative clause in section 179 of the *Industrial Relations Act 1996* (NSW) on the jurisdiction of the court.

The court considered the principles governing the reopening of judgments, referencing the High Court decision in *DJL v The Central Authority*. It noted that the Full Bench had concluded its earlier orders had been "perfected" and then considered whether it was an "intermediate appellate court" or a "court of last resort." The Full Bench had proceeded on the basis that it might be regarded as a court of last resort, subject to the *Hickman* principle, and that any power to reopen its judgment should only be exercised in "quite exceptional" circumstances, as established in *State Rail Authority of NSW v Codelfa Construction Pty Ltd (No. 2)*. The court found it curious that the Full Bench had approached the question of power by establishing this dichotomy.

The application was dismissed, with the claimants ordered to pay the opponents' costs of the proceedings in the court, limited in relation to the first opponent to costs incurred on a submitting basis.