The recent decision of the District Court in Inspector Brock v Empire Waste Pty Ltd [2013] NSWDC 38 (12 April 2013) (Empire Waste decision) may, like the Built decision, have implications for prosecutions brought by the WorkCover Authority of New South Wales if it is successfully appealed. An appeal has not yet been brought.

The Empire Waste decision concerned an application by an employer to have the proceedings quashed on the basis that, inter alia, the District Court did not have jurisdiction to deal with prosecutions brought under the repealed OHS Act.

The employer was being prosecuted for a breach of section 8(1) of the repealed OHS Act being it allegedly failed to ensure the health, safety and welfare of its employee.

The basis of the application was that the jurisdiction of the District Court wasn’t spelt out in clear language in legislation. The WHS Act vested jurisdiction for most safety offences in the District Court and Local Courts, applied to proceedings relating to the repealed OHS Act. The Parliament then made regulations to give effect to the vesting of the jurisdiction in the District Court.

The provision which vested the jurisdiction was subsequently omitted by an amendment Act and as a result the employer argued that as the provision within the WHS Act was omitted, the Regulations could not vest the jurisdiction in the District Court.

Curtis J of District Court found that the confusion was as a result of an executive oversight and that the intention of Parliament was still to vest jurisdiction in the District Court.