Abigroup Contractors Pty Limited v Inspector Kathleen Maltby [2002] NSWIRComm 18 (13 December 2001)

Last Updated: 2 April 2002

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : Abigroup Contractors Pty Limited v Inspector Kathleen Maltby [2002] NSWIRComm 18

FILE NUMBER(S): IRC 7384 & 7385

HEARING DATE(S): 13/12/2001

EX TEMPORE DATE: 13/12/2001

PARTIES:

APPELLANT:

Abigroup Contractors Pty Limited

RESPONDENT:

Workcover Authority of New South Wales (Inspector Kathleen Maltby)

JUDGMENT OF: Walton J Vice-President Hungerford J Boland J

LEGAL REPRESENTATIVES

APPELLANT:

Mr B Hodgkinson SC

SOLICITOR:

Mr J Catanzariti

Clayton Utz Lawyers

RESPONDENT:

Mr P Skinner of counsel

SOLICITOR:

Mr N Correy

Moray & Agnew Solicitors

CASES CITED: Knowles v Anglican Church Property Trust (No. 2) (1999) 95 IR 380

WorkCover Authority of New South Wales (Inspector Maltby) v Abigroup Contractors Pty Limited [2001] NSWIRComm 239

WorkCover Authority of New South Wales v State Rail Authority (2000) 101 IR 271

LEGISLATION CITED: Criminal Appeal Act 1912 s5F

Industrial Relations Act 1996 s179 s188

Occupational Health and Safety Act 1983 s49(4)

Supreme Court (Summary Jurisdiction) Act 1967 s4

JUDGMENT:

3

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

FULL BENCH

CORAM: WALTON J VP

HUNGERFORD J

BOLAND J

THURSDAY 13 DECEMBER 2001

IRC 01/7384 - ABIGROUP CONTRACTORS PTY LIMITED v INSPECTOR KATHLEEN MALTBY.

Application to extend to appeal and appeal against orders and determination of Justice Wright given on 7 February 2001 in matter Nos IRC5432,5433,5434,5436 & 5438 of 1999.

IRC O1/7385 - LUIS BUSTAMANTE v INSPECTOR PAUL ANTHONY MANSELL

Application to extend time to appeal and appeal against orders and determinations of Justice Wright given on 7 February 2001 in matter Nos IRC 5502 & 5503 of 1999.

EXTEMPORE JUDGMENT:

WALTON J VP: These matters concern applications for leave to appeal and if granted an appeal from the decision of Wright J given on 7 February 2001 to make orders directed to the appellants under s4(1) of the Supreme Court (Summary Jurisdiction) Act 1967.

The appellants also made an application to extend time to appeal which, at the commencement of the proceedings today and in the absence of opposition by the respondent, we granted. We note the appellants accepted that they were required to obtain leave to appeal in order to bring their appeals. It is, therefore, unnecessary for us to decide whether this appeal arises under s5F of the Criminal Appeal Act 1912 or s188 of the Industrial Relations Act 1996.

We consider that the application for leave to appeal may be simply resolved applying the principles in Knowles v Anglican Church Property Trust (No. 2) (1999) 95 IR 380. We consider that leave to appeal should be refused as the appellants failed to raise any of the primary issues which they now seek to raise on appeal at first instance. Notwithstanding that at the relevant time they were well appraised of these issues due to the proceedings before and a decision issued by Schmidt J in WorkCover Authority of NSW v SRA (2000) 101 IR 271. Indeed, the appellants, at first instance, did not oppose the orders made by his Honour. In reaching this decision we have also taken into account the appellant's failure to appeal the judgment of Kavanagh J in WorkCover Authority (Inspector Maltby) v Abigroup Contractors Pty Limited [2001] NSWIRComm 239.

However, we are compelled, by some of the submissions made by the appellants in support of the application for leave, to make some further observations which relate to the strength of the appellants' case for leave:

Firstly, and without deciding the matter finally, we have real doubts as to whether, having regard to the provisions of s4(1) of the Supreme Court (Summary Jurisdiction) Act that his Honour was in fact required to consider whether s49(4) of the Occupational Health and Safety Act 1983 operated, in the circumstances of these matters, to preclude the issuing of such orders. On its face, s4(1) enables the order made to require the defendant to appear before a Judge to "answer the charge" alleged against it. Whether any such charge ultimately be made out, either in terms of jurisdiction or merit, is not a matter relevantly open in the initiation of proceedings, particularly where such an order maybe made ex parte.

Secondly, we have some considerable misgivings about the appellants' submission as to s179 of the Industrial Relations Act 1996.

We do not review Kavanagh J's decision at first instance which, on one view, is directed to whether the orders made by Wright J per se may be impeached. However, the appellant went so far as submitting that s179 of the Industrial Relations Act 1996 operated in such a way as to preclude a member of the Commission (even in arbitral proceedings) from questioning (that is, arriving at a different view) to a decision of another member, even where different parties were involved in later proceedings. This is said to extend to proceeding where a Full Bench is considering an earlier judgment of a single member or by another Full Bench. We have real doubts the section operates in such a manner.

We are of the view, if such an issue had to be decided, then it should only be, unlike here, where the Full Bench has the benefit of reasoning at first instance. We do not sit to make first instance decisions and that is a matter going directly to the question of leave to appeal.

We order:

(1) Leave to appeal is refused.

(2) The appeal is dismissed.

(Mr Shaw sought costs of the application for leave to appeal).

We make a further order that the appellant shall pay the costs of the respondent as agreed or as assessed.

LAST UPDATED: 21/02/2002