Ove Arup Pty Ltd & v Industrial Court of NSW & Anor

(2006) 149 IR 193; [2006] NSWCA 28

NSW Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Appeal
3. › Appeal by prosecution
4. › Quashing of information or indictment
5. › Whether Full Bench had jurisdiction under s 5C of Criminal Appeal Act 1912 (NSW)
6. › Whether Crown was party to proceedings
7. › Inspector prosecuting on behalf of WorkCover Authority
8. › Criminal Appeal Act 1912 (NSW), s 5C
9. › Industrial Relations Act 1996 (NSW), s 196
1. Criminal Law
2. › Appeal
3. › Appeal by prosecution
4. › Interlocutory orders
5. › Whether s 5F of Criminal Appeal Act 1912 (NSW) conferred jurisdiction on Full Bench of Industrial Relations Commission
6. › Criminal Appeal Act 1912 (NSW), s 5F
1. Practice and Procedure
2. › Reopening of judgments
3. › Power of appellate court to reopen perfected orders
4. › Whether exceptional circumstances existed
5. › Whether alternative basis of jurisdiction removed need to reopen
6. › State Rail Authority of NSW v Codelfa Construction Pty Ltd (No 2) (1982) 150 CLR 29
1. Practice and Procedure
2. › Privative clauses
3. › Scope of protection
4. › Purported decisions on jurisdiction
5. › Whether wrongful assertion of jurisdiction established
6. › Industrial Relations Act 1996 (NSW), s 179

Quick Take

A prosecution under the Occupational Health and Safety Act 1983 (NSW) brought by an inspector appointed by the WorkCover Authority is a proceeding 'to which the Crown was a party' for the purposes of s 5C of the Criminal Appeal Act 1912 (NSW), because the inspector carries out statutory functions in the public interest and effectively represents the statutory authority which represents the Crown. This distinguishes John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508, where the prosecutor was a departmental officer acting as a private person. The principle extends to officers carrying out statutory functions under the control and direction of a Crown authority.