Bros Bins Systems Pty Ltd v Industrial Relations Commission of New South Wales

(2008) 74 NSWLR 257; [2008] NSWCA 292

NSW Court of Appeal

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Interrogate

Catchwords

1. Industrial Law
2. › Occupational health and safety
3. › Offences
4. › Interpretation of offence-creating provision
5. › Whether equipment delivered for repair constitutes 'plant' provided for use of persons at work
6. › Whether error in interpretation is jurisdictional or non-jurisdictional error
7. › Occupational Health and Safety Act 1983 (NSW), s 17(1)(b)
1. Practice and Procedure
2. › Appeal from acquittal
3. › Powers of Full Bench on appeal
4. › Whether power to remit for retrial
5. › Whether s 197A(7)(b) requires Full Bench to make its own decision
6. › Double jeopardy
7. › Clear statement principle
8. › Industrial Relations Act 1996 (NSW), s 197A
1. Administrative Law
2. › Jurisdictional error
3. › Distinction between jurisdictional and non-jurisdictional error
4. › Inferior courts and courts of limited jurisdiction
5. › Whether failure to exercise statutory power constitutes jurisdictional error
1. Statutory Interpretation
2. › Clear statement principle
3. › Abrogation of fundamental common law principles
4. › Double jeopardy
5. › Degree to which Parliament has abrogated fundamental principle
6. › Analogy with retroactive statutes

Quick Take

On an appeal from an acquittal under s 197A of the Industrial Relations Act 1996, the Full Bench has no power to remit the matter for retrial; it must make its own decision on guilt or innocence. The clear statement principle applies not only to whether Parliament intended to abrogate the double jeopardy principle, but also to the degree of abrogation. Irregularity provisions such as s 170(3) do not cure jurisdictional error.