ON 3 FEBRUARY 2010, the High Court of Australia delivered Kirk v Industrial Relations Commission; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (Inspector Childs) [2010] HCA 1 (3 February 2010).

http://www.austlii.edu.au/au/cases/cth/HCA/2010/1.html

Kirk was charged for offences under the Occupational Health and Safety Act 1983 (NSW). The statement of offence did not identify the acts or omissions that constituted the alleged offences.

The charges were heard by the NSW Industrial Court. During the hearing the prosecution called Kirk as a witness for the prosecution.

Kirk was convicted and sentenced.

Kirk appealed to the NSW Court of Appeal seeking an order in the nature of certiorari on the grounds that there was a jurisdictional error. Kirk argued that the Industrial Court exceeded its jurisdiction in two ways: (1) the statement of offence did not identify the acts of omissions that constituted the alleged offences, nor the measures available to address the risks, so the defendant was denied an opportunity to properly defend the charges and (2) that under s17(2) of the Evidence Act 1995 (NSW), a defendant is not competent to give evidence for the prosecution and the trial was therefore conducted otherwise than in accordance with the laws of evidence. The NSW Court of Appeal refused to quash the convictions and sentences on the grounds that s179 of the Industrial Relations Act 1996 (NSW) prohibits an appeal against a review, quashing or calling into question a decision of the Industrial Court.

The High Court allowed the appeal, set aside the Court of Appeal’s decision and quashed the convictions and sentences. In overturning the Court of Appeal, High Court held that (1) the a “decision” does not include a decision made by the Industrial Court outside of their jurisdiction and (2) it was beyond the power of the State legislature to limit the power of a State Supreme Court to grant relief to correct jurisdictional errors made by courts and tribunals of limited jurisdiction.

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