High Court of Australia

Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1

Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs)

239 CLR 531; 84 ALJR 154; 262 ALR 569

3 Feb 2010

Case Number: S106/2009 S347/2008 S348/2008


French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel, Bell JJ


Occupational health and safety – Statutory duty - Occupational Health and Safety Act 1983 (NSW), ss 15 and 16 provided duties of employer to "ensure the health, safety and welfare at work of all the employer's employees" and that "persons not in the employer's employment are not exposed to risks to their health or safety arising from the conduct of the employer's undertaking" - Section 53(a) provided a defence where it was "not reasonably practicable . . . to comply with the provision of this Act" - Breach of duty criminal offence - Statement of offences as particularised did not identify what measures defendant could have taken but did not take to fulfil duty - Whether statement of offence must identify act or omission said to constitute contravention of s 15 or s 16 - Whether failure to charge act or omission an error of law - Whether error on the face of the record - Whether jurisdictional error.

Evidence – Competence and compellability of accused persons - Joint trial - Industrial Relations Act 1996 (NSW), s 163(2) required hearing to be conducted in accordance with the rules of evidence - Evidence Act 1995 (NSW), s 17(2) provided that a defendant is not competent to give evidence as witness for prosecution - No power of Industrial Court of New South Wales to dispense with s 17(2) - Defendant called as witness for prosecution - Whether jurisdictional error - Whether error on the face of the record.

Administrative law – Jurisdictional error - Error of law on the face of the record - Whether orders in nature of certiorari available.

Statutes – Privative clause - Industrial Court of New South Wales - Construction of privative clause - Whether privative provision effective to prevent review for jurisdictional error - Whether effective to prevent review for error of law on the face of the record - Relevance of exclusion of right to appeal to Supreme Court of New South Wales and to High Court of Australia.

Constitutional law (Cth) – Chapter III - State Supreme Courts - Power of State Parliament to alter defining characteristic of Supreme Court of a State - Supervisory jurisdiction - Whether a defining characteristic is power to confine inferior courts and tribunals within limit of their authority to decide.

Procedure – Costs - Appellate court exercising supervisory not appellate jurisdiction - Appellate court makes orders in nature of certiorari - Whether appellate court has power to make orders in place of orders quashed.

Words and phrases – "act or omission", "certiorari", "description of offence", "error of law on the face of the record", "jurisdictional error", "privative provisions", "reasonably practicable", "superior court of record", "Supreme Court of a State", "the record".

Constitution – Ch III, ss 71, 73, 75(v).

Criminal Procedure Act 1986 (NSW) – s 11.

Evidence Act 1995 (NSW) – ss 17(2), 190.

Industrial Relations Act 1996 (NSW) – ss 179, 163(2).

Occupational Health and Safety Act 1983 (NSW) – ss 15, 16, 53.

Supreme Court Act 1970 (NSW) – s 69.

Supreme Court (Summary Jurisdiction) Act 1967 (NSW) – ss 4, 6.


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