Kirk v IRC NSW

  • Author : Arushan Pillay - 07-05-2012

There were three matters before the High Court, an appeal and two special leave applications.  The court proceeded to hear the appeal itself and as the appeal was upheld there was no need to further consider the two special leave applications.


s.106 s.347 s.348 

Seeking certiorari

to quash orders

made in NSWIC

to convict Kirk


If this appeal succeeds

the special leaves under s.347 + s.348

don’t arise


In this case Kirk Group Holdings was essentially a one person company.  Mr Kirk was the director of Kirk Group Holdings and lived in the city.  He owned a farm in the country and that farm was operated by the farm manager, Mr Palmer and another person.  Mr Palmer recommended the purchase of an ATV (all terrain vehicle).  Mr Kirk agreed and Mr Palmer purchased the vehicle and used it around the farm.  In the course of transporting some lengths of steel with the ATV, Mr Palmer went “off road” and crashed.  Mr Palmer was killed.

In the Industrial Court Kirk Group Holdings was convicted of charges against the New South Wales OH&S Act.  That decision was upheld in the NSW Court of Appeal.  The High Court appeal came on in response to the Court of Appeal’s decision.

It is important to note that the New South Wales OH&S Act differs to the Victorian Act.

Sections 15 and 16 of the New South Wales Act provide the general offences.  That is that an employer must take care to provide and maintain plant and systems of work that ensure the safety of their employees.  Section 16 extends the obligation of the employer to those present at the workplace.

Section 53 of the NSW Act however provides that there are very specific defences set out in the Act.  Those defences are firstly s.53(a) that it was not reasonably practicable for the employer to eliminate or control the risk or, s.53(b) the relevant risk which arose was not one over which the employer had control.

The first complaint made by the appellant was that the charges against him were not properly particularised.  He said that as they were not properly particularised the relevant risk could not be identified so that he could raise the defences under s.53.

The High Court was extremely critical of what had occurred in the New South Wales Court of Appeal.  The majority of the High Court, in the reasoning of French CJ stated that without properly particularisation the Kirk Group was unable to make use of the s.53 provisions.

The court held that the New South Wales Supreme Court held the power to quash the charges by means of issuing of certiorari, [38]-[40].

After the High Court had made that finding in relation to the failure to particularise, the court then went on to consider the distinction between jurisdictional error and error on the face of the record in this case.

Particularly, the court looked at whether the decision of the New South Wales Industrial Court was a decision that could be quashed.  They had an extensive discussion of the correctness of the decision in Craig v South Australia which established that Australian law does not follow UK law in respect of the distinction between jurisdictional error and error on the face of the record.  The court found that such a distinction continues to exist in Australia though it is hard to ascertain the bright line between the two concepts.

They found that the record at common law would be the decision of the Industrial Court and not the reasons.  However by reason of a privative provision of the Industrial Relations Act the reasons of the Industrial Court of New South Wales also form part of the record.

In Victoria it is an interesting question how to bring about an application to quash a particular finding relating to the particularisation of charges.  For example it could be that charges are filed against a relevant company.  That company immediately takes the point in the Magistrates’ Court that the charges are not properly particularised.  Upon the decision of the magistrate being given the defendant company may then seek to appeal from the decision alleging error of the face of the record or potentially jurisdictional error and seeking to quash the charges.  At that point however the prosecuting agency may well seek to refile the charges with better particulars.  The only benefit then to the defendant company is that they might have held up the prosecution in some way though the collateral benefit would be that the charges against them would hopefully be better particularised

About the Author

Arushan Pillay

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