Harrison v President of the Industrial Court of Queensland & Ors [2016] QCA 89

SUPREME COURT OF QUEENSLAND

CITATION: Harrison v President of the Industrial Court of Queensland & Ors [2016] QCA 89

PARTIES: PAUL KEVIN HARRISON AS ACTING COMMISSIONER FOR MINE SAFETY AND HEALTH (appellant) v THE PRESIDENT OF THE INDUSTRIAL COURT OF QUEENSLAND (first respondent) KEVIN JAMES HENDRY (second respondent) MANSELL MINING AND SHOTCRETE PTY LTD ACN 083 099 718 (third respondent) MOUNT ISA MINES LIMITED ACN 009 661 447 (fourth respondent)

FILE NO/S: Appeal No 6941 of 2015 / SC No 9195 of 2014

DIVISION: Court of Appeal

PROCEEDING: Case Stated

ORIGINATING COURT: Industrial Court at Brisbane – [2014] ICQ 18

DELIVERED ON: 12 April 2016

DELIVERED AT: Brisbane

HEARING DATE: 25 November 2015

JUDGES: Margaret McMurdo P and Morrison JA and Jackson J / Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS: Yes. / Yes.

CATCHWORDS: MAGISTRATES – COMMENCEMENT OF PROCEEDINGS – GENERALLY – where complaints were made to prosecute offences under the Mining and Quarrying Safety and Health Act 1999 (Qld) – where the Industrial Magistrate dismissed the complaints because they were duplex and so deficient as to the required legal and factual ingredients that they did not disclose an offence known to law – where the Industrial Magistrate refused to allow any amendment – where the Industrial Court held that the complaints did not identify the legal ingredients of the charge or the factual basis of the charge, and were nullities – where the Industrial Court held that the complaints did not comply with s 43 of the Justices Act 1886 (Qld) and were incapable of amendment under s 48 – whether the complaints were nullities and incapable of amendment / ADMINISTRATIVE LAW – PREROGATIVE WRITS AND ORDERS – CERTIORARI – GROUNDS FOR CERTIORARI TO QUASH – EXCESS OR WANT OF JURISDICTION – PARTICULAR INSTANCES OF JURISDICTIONAL ERROR – where the Industrial Magistrate erroneously decided the complaints were incapable of amendment – where the Industrial Court on appeal made an error of law in determining that the Industrial Magistrate had no jurisdiction to proceed because the complaints were nullities – where the applicant applied for orders in the nature of certiorari to quash the orders of the Industrial Court – whether there was an error within jurisdiction or a constructive refusal or failure to exercise the jurisdiction of the Industrial Court amounting to jurisdictional error / Criminal Code (Qld), s 564 / Industrial Conciliation and Arbitration Act 1961 (Qld), s 8(5), s 34(1) / Industrial Relations Act 1999 (Qld), s 242, s 242C, s 243, s 248, s 341, s 348, s 349, s 683 / Jervis’s Acts (UK), s 1 / Judicial Review Act 1991 (Qld), s 41(2) / Justices Act 1886 (Qld), s 43, s 47, s 48, s 52(1) / Mining and Quarrying Safety and Health Act 1999 (Qld), s 31, s 36, s 38, s 39, s 40, s 234 / Summary Jurisdiction Act 1879 (Imp), s 39 / Area Concrete Pumping Pty Ltd v Inspector Childs (2012) 223 IR 86; [2012] NSWCA 208, cited / Attorney General (NSW) v Built NSW Pty Ltd [2013] NSWCCA 299, cited / Barr Rock Pty Ltd v Blast Ice Creams Pty Ltd [2011] QCA 252, cited / Bell v Hendry & Ors [2014] ICQ 18, considered / Bell v MIM Ltd & Ors [2012] QMC 28, considered / Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364; [2006] HCA 32, cited / Broome v Chenoweth (1946) 73 CLR 583; [1946] HCA 53, cited / Bruce v Odhams Press Ltd [1936] 1 KB 697, cited / Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; [2000] HCA 47, cited / Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58, applied / Director of Public Prosecutions v Edwards (2012) 44 VR 114; [2012] VSCA 293, cited / Director of Public Prosecutions v Kypri (2011) 33 VR 157; [2011] VSCA 257, cited / Director of Public Prosecutions (Cth) v Poniatowska (2011) 244 CLR 408; [2011] HCA 43, cited / Doja v The Queen (2009) 198 A Crim R 349; [2009] NSWCCA 303, cited / Draney v Barry [2002] 1 Qd R 145; [1999] QCA 491, cited / Electrical Trades Union of Employees Queensland v President of the Industrial Court of Queensland [2007] 1 Qd R 1; [2006] QSC 76, considered / Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416; [1947] NSWStRp 24, cited / Ex parte Lovell; Re Buckley (1938) 38 SR (NSW) 153; [1938] NSWStRp 12, cited / GPI (General) Pty Ltd v Industrial Court (NSW) (2011) 207 IR 93; [2011] NSWCA 157, cited / In re Racal Communications Ltd [1981] AC 374, cited / John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508; [1987] HCA 42, cited / Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77, cited / Karimbla Construction Services Pty Ltd v President of the Industrial Court of Queensland & Ors [2014] QSC 56, cited / Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1, applied / Knaggs v Director of Public Prosecutions (NSW) (2007) 170 A Crim R 366; [2007] NSWCA 83, considered / New South Wales v Kable (2013) 252 CLR 118; [2013] HCA 26, cited / NK Collins Industries Pty Ltd v President of the Industrial Court of Queensland [2010] QSC 373, cited / NK Collins Industries Pty Ltd v President of the Industrial Court of Queensland [2014] 2 Qd R 304; [2013] QCA 179, followed / Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369; [1938] HCA 7, cited / Parker v President of the Industrial Court of Queensland [2010] 1 Qd R 255; [2009] QCA 120, considered / Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, applied / Public Service Association of South Australia Inc v Industrial Relations Commission (SA) (2012) 249 CLR 398; [2012] HCA 25, cited / R v Bartlett [1972] Qd R 337, cited / R v Brisbane City Council, ex parte Read [1986] 2 Qd R 22, cited / R v Buckett (1995) 132 ALR 669, cited / R v Castles (Justices) (1894) 6 QLJ 94, cited / R v District Court; Ex parte White (1966) 116 CLR 644; [1966] HCA 69, considered / R v Dodds; Ex parte Smith [1990] 2 Qd R 80, considered / R v Hodgson [2009] 1 WLR 1070; [2008] EWCA Crim 895, cited / R v Juraszko [1967] Qd R 128, cited / R v Logan [2012] QCA 210, cited / R v The Industrial Court & Ors; ex parte Brisbane City Council [1957] St R Qd 553, explained / R v The Industrial Court and Mount Isa Mines [1966] Qd R 245, explained / R v The Industrial Court of Queensland and Ors; Ex parte Federated Miscellaneous Workers’ Union of Employees of Australia & Anor [1967] Qd R 349, explained / R v Trifyllis [1998] QCA 416, cited / Re Gray; Ex parte Marsh (1985) 157 CLR 351; [1985] HCA 67, cited / Re Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82; [2000] HCA 57, applied / Rockdale Beef Pty Ltd v Industrial Relations Commission of New South Wales (2007) 165 IR 7; [2007] NSWCA 128, considered / Stubberfield v Webster [1996] 2 Qd R 211; [1995] QSC 182, cited / Suratt v Attorney General of Trinidad and Tobago [2008] 1 AC 655; [2007] UKPC 55, cited / Teys Australia Beenleigh Pty Ltd v Australasian Meat Employees Union (2015) 234 FCR 405; (2015) 147 ALD 569; [2015] FCAFC 105, cited / Thiess Pty Ltd v Industrial Magistrate Hall [2015] 2 Qd R 125; [2014] QCA 129, cited / Thiess Pty Ltd v President of the Industrial Court of Queensland [2012] 2 Qd R 387; [2011] QSC 294, cited / Walsh v Tattersall (1996) 188 CLR 77; [1996] HCA 26, cited

COUNSEL: D Kent QC, with M Nicolson, for the appellant / No appearance for the first respondent / J Murdoch QC for the second respondent / A Glynn QC, with G Dann, for the third respondent / J Bell QC, with A Scott, for the fourth respondent

SOLICITORS: Crown Law for the appellant / No appearance for the first respondent / Sparke Helmore for the second respondent / Simpson Quinn Lawyers for the third respondent / Minter Ellison for the fourth respondent

MARGARET McMURDO P: I agree with Jackson J’s reasons and answers to the questions in this case stated, and with the additional orders proposed by his Honour.

MORRISON JA: I have read the reasons of Jackson J and agree with those reasons and the orders his Honour proposes.

JACKSON J: The originating proceeding is an application for judicial review of three orders made by the Industrial Court dismissing appeals from orders of the Industrial Magistrate dismissing three complaints.¹ Each complaint purported to charge a summary criminal offence under the procedural provisions of the Justices Act 1886 (Qld).

The complaints were made against the second, third and fourth respondents respectively. They arose out of an industrial accident on 27 July 2009 at the George Fisher Mine near Mt Isa. The driver of a mine vehicle was seriously injured when its brakes failed.

The complaints were made to prosecute offences under the Mining and Quarrying Safety and Health Act 1999 (Qld) (“the Act”). One was brought against the second respondent as the site senior executive for the mine; a second was brought against the third respondent as a contractor at the mine; and a third was brought against the fourth respondent as the operator of the mine.

The Industrial Magistrate dismissed each complaint because it was so deficient as to the required legal and factual ingredients that it did not disclose an offence known to law.² Additionally, his Honour concluded that each complaint was duplex.³ His Honour refused to allow any amendment.⁴

On appeal, the Industrial Court held that each complaint was a nullity because it failed to identify the act or omission that comprised the offence, namely the particular obligation which had not been met and the measure that could have been taken to meet it.⁵ The court held that each complaint did not expose the legal ingredients of the charge, did not provide the factual basis of all matters necessary to constitute a charge and did not allege sufficient facts to allow the defendant to understand the charge being made.⁶ It did not identify, in an intelligible matter, the actions which should have been taken to address the relevant risk or risks.⁷ Accordingly, it was a nullity.⁸

The applicant applies for orders in the nature of certiorari to quash the orders of the Industrial Court dismissing each appeal and seeks orders remitting the matter to the Industrial Magistrate. He also seeks his costs of the application.

The ground of the application is that the decision of the first respondent involved an error of law amounting to a jurisdictional error. In particular, it is contended that the finding that the complaints were nullities and there was no power to amend them misconceived the nature or limits of the functions or powers of the Industrial Court.

On 23 March 2015, I stated a case to the Court of Appeal to answer the following questions:

was it a jurisdictional error for the Industrial Court to find that each complaint was a nullity or incapable of amendment under s 48 of the Justices Act 1886 (Qld)?

if “yes” to (a), and in the absence of any discretionary reasons for declining the orders, should orders in the nature of certiorari be made quashing the orders of the Industrial Court and directing that court to proceed according to law?

For the reasons that follow, in my view, the Industrial Court erred in finding that each of the complaints was a nullity and that error was a jurisdictional error.

Second, in my view, the Industrial Court erred in finding that each of the complaints was beyond the reach of the power to amend under s 48 of the Justices Act 1886 (Qld). Accordingly, orders in the nature of certiorari should be made.

The content of the complaints summarised

Relevantly, the complaint against the fourth respondent alleged that:

“On the 27th day of July 2009 at the George Fisher Mine near Mt Isa in the Mt Isa Magistrates Courts District in the State of Queensland [the fourth respondent], the operator for a mine and a person on whom safety and health obligations were imposed by s 36 and s 38 of the Mining and Quarrying Safety and Health Act 1999, did fail to discharge the obligations, contrary to s 31 of the Mining and Quarrying Safety and Health Act 1999, and the said failure by [the fourth respondent] to discharge the obligations caused grievous bodily harm to [the driver]”.

The complaint then contained over six pages of allegations under the heading of “Particulars”.

It is unnecessary to set out the complaints made against the second and third respondents. The points discussed below apply to them mutatis mutandis, although as the site senior executive and contractor respectively, different sections⁹ applied to them.

Offence provisions

Section 31 of the Act provided:

“31****Discharge of obligations

A person on whom a safety and health obligation is imposed must discharge the obligation.

Maximum penalty—

(a)if the contravention caused multiple deaths—2000 penalty units or 3 years imprisonment; or

(b)if the contravention caused death or grievous bodily harm—1000 penalty units or 2 years imprisonment; or

(c)if the contravention caused bodily harm—750 penalty units or 1 year’s imprisonment; or

(d)if the contravention involved exposure to a substance that is likely to cause death or grievous bodily harm—750 penalty units or 1 year’s imprisonment; or

(e) otherwise—500 penalty units or 6 months imprisonment.”

Section 36 of the Act provided:

“36****Obligations of persons generally

(1)A worker or other person at a mine or a person who may affect safety and health of persons at a mine or as a result of operations, has the following obligations—

(a)to comply with this Act, standard work instructions, and procedures applying to the worker or person that form part of a safety and health management system for the mine;

(b)if the worker or other person has information that other persons need to know to fulfil their obligations or duties under this Act, or to protect themselves from the risk of injury or illness—to give the information to the other persons;

(c)to take any other reasonable and necessary course of action to ensure that persons are not exposed to unacceptable levels of risk.

(2)A worker or other person at a mine has the following additional obligations at the mine—

(a)to manage the risk of injury or illness to himself or herself or any other person in the worker’s or other person’s own work and activities, so that the risk is at an acceptable level;

(b)to ensure, to the extent of the responsibilities and duties allocated to the worker or other person, that the risk of injury or illness to any person is managed in the work and activities under the worker’s or other person’s control, supervision, or leadership, so that the risk is at an acceptable level;

(c)to the extent of the worker’s or other person’s involvement, to participate in and conform to the risk management practices of the operations;

(d)to comply with instructions given for safety and health of persons by the mine operator or site senior executive for the mine or a supervisor at the mine;

(e)to work at the mine only if the worker or other person is in a fit condition to carry out the work without affecting the safety and health of others;

(f)not to do anything wilfully or recklessly that might adversely affect the safety and health of someone else at the mine.”

Section 38 of the Act provided, in part:

“38****Obligations of operators

(1)An operator for a mine has the following obligations—

(a)to ensure the risk to workers while at the operator’s mine is at an acceptable level, including, for example, by—

(i)providing a safe place of work and safe plant; and

(ii)maintaining plant in a safe state;

(b)to ensure the operator’s own safety and health and the safety and health of others is not affected by the way the operator conducts operations;

(c)to appoint a site senior executive for the mine;

(d)to ensure the site senior executive for the mine—

(i)develops and implements a safety and health management system for the mine; and

(ii)develops, implements and maintains a management structure for the mine that helps ensure the safety and health of persons at the mine;

(e)to audit and review the effectiveness and implementation of the safety and health management system to ensure the risk to persons from operations is at an acceptable level;

(f)to provide adequate resources to ensure the effectiveness and implementation of the safety and health management system.

(2)Without limiting subsection (1), an operator has an obligation not to operate a mine without a safety and health management system for the mine…”

Section 234 of the Act provided, in part:

“234****Proceedings for offences

(1)A prosecution for an offence against this Act is by way of summary proceedings before an industrial magistrate.

(2)More than 1 contravention of a safety and health obligation under section 31 may be charged as a single charge if the acts or omissions giving rise to the claimed contravention happened within the same period and in relation to the same mine.

(3)A person dissatisfied with a decision of an industrial magistrate in proceedings brought under subsection (1) who wants to appeal must appeal to the Industrial Court.

(4)The Industrial Relations Act 1999 applies, with necessary changes, to a proceeding before an industrial magistrate brought under subsection (1) and to a proceeding on appeal before the Industrial Court brought under subsection (3)…”

Jurisdiction of the Industrial Magistrate

A proceeding before the Industrial Magistrates Court¹⁰ constituted by an Industrial Magistrate¹¹ on such a charge is brought by complaint made under the Justices Act 1886 (Qld).¹² I have previously discussed some of the requirements for a complaint in a similar context in Karimbla Construction Services Pty Ltd v President of the Industrial Court of Queensland & Ors.¹³

Later, it will be necessary to consider the extent of the power of the Industrial Magistrate to hear each of the complaints, having regard to their particular defects and the Industrial Magistrate’s power to amend a complaint. It is convenient to start, however, with this court’s power to make orders in the nature of certiorari to quash the orders of the Industrial Court.

Jurisdiction of the Industrial Court

The Industrial Court was organised, in part, under ss 242, 242C and 243 of the Industrial Relations Act 1999 (Qld), as follows:

“242****Continuance

The Industrial Court, as formerly established as a superior court of record in Queensland, is continued in existence as the Industrial Court of Queensland (the court).

242C****Members of the court

The members of the court are—

(a)the president; and

(b)the vice-president; and

(c)the deputy presidents (court).

243****Appointment of president

(1)The Governor in Council may, by gazette notice, appoint a person who is a Supreme Court judge as president of the court.

(2)The person is appointed on a full-time basis unless the gazette notice appointing the president states the appointment is to be on a part-time basis.”

The jurisdiction and powers of the Industrial Court were conferred by Division 3 of Part 1 of Chapter 8 of the Industrial Relations Act 1999 (Qld). Section 248 relevantly provided:

“248Court’s jurisdiction

(1)The court may—

perform all functions and exercise all powers prescribed by the court by this or another Act; and…

if the court is constituted by the president, exercise the jurisdiction and powers of the Supreme Court to ensure, by prerogative order or other appropriate process—

the … magistrates exercise their jurisdictions according to law;

the … magistrates do not exceed their jurisdictions.

(2)In proceedings, the court may—

(a)make the decisions it considers appropriate, irrespective of specific relief sought by a party; and

(b) give directions about the hearing of a matter…”

Each of the appeals to the Industrial Court from the orders of the Industrial Magistrate was brought under s 234 of the Act and s 341 of the Industrial Relations Act 1999 (Qld). The latter relevantly provided:

“341Appeal from commission, magistrate or registrar

(1)…

(2)A person may appeal to the court if dissatisfied with a decision of a magistrate in relation to a matter for which the magistrate has jurisdiction.

(3)The court may—

dismiss the appeal; or

allow the appeal, set aside the decision and substitute another decision; or

allow the appeal and amend the decision; or

allow the appeal, suspend the operation of the decision and remit the industrial cause, with or without directions, to the commission, an Industrial Magistrates Court or the registrar to act according to law.”

Section 348 of the Industrial Relations Act 1999 (Qld) provided:

“348****Nature of appeal

An appeal to an industrial tribunal is by way of re-hearing on the record.

(2)However, the industrial tribunal may hear evidence afresh, or hear additional evidence, if the industrial tribunal considers it appropriate to effectively dispose of the appeal.”

The finality of a decision of the Industrial Court was provided for by s 349 of the Industrial Relations Act 1999 (Qld) as follows:

“349Finality of decisions

(1)This section applies to the following decisions—

…

a decision of the court under section 341…

…

…

another decision of the court…

(2)The decision—

is final and conclusive; and

can not be impeached for informality or want of form; and

can not be appealed against, reviewed, quashed or invalidated in any court.

(3)The industrial tribunal’s jurisdiction is exclusive of any court’s jurisdiction and an injunction or prerogative order can not be issued, granted or made in relation to proceedings in the court within its jurisdiction.

(4)This section does not apply to a decision mentioned in subsection (1) to the extent that this Act or another Act provides for a right of appeal from the decision.

(5)In this section—

industrial tribunal includes an Industrial Magistrates Court...”

Review of the Industrial Court: a question of jurisdictional error

No appeal lies from the Industrial Court to this court. The parties agree that a consequence of s 349 is that an application for judicial review of the Industrial Court’s orders may only be made to this court in the exercise of its supervisory jurisdiction on the ground of jurisdictional error.

Critically, the jurisdictional error must be one by the Industrial Court itself. It is of no consequence, per se, that the Industrial Magistrate may have made a jurisdictional error. On an application for judicial review of the orders of the Industrial Court, only an error by the Industrial Court which is a jurisdictional error will engage this court’s supervisory jurisdiction.

In Parker v President of the Industrial Court of Qld¹⁴ this court considered whether the Industrial Court had made a jurisdictional error of that kind. In that case, WorkCover had rejected the appellant’s claim for worker’s compensation. WorkCover’s decision was upheld by the Industrial Magistrate. The appellant appealed to the Industrial Court. The Industrial Court dismissed the appeal. The appellant then applied for judicial review on the ground of jurisdictional error by the Industrial Court.

The jurisdiction of the Industrial Court in that case was conferred by s 248 of the Industrial Relations Act 1999 (Qld) and s 561 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld). The latter section conferred jurisdiction to hear and determine appeals from decisions of the Industrial Magistrate made under that Act. The appellant’s particular complaint was that both the Industrial Magistrate and the Industrial Court had misconstrued a relevant section of the Workers’ Compensation and Rehabilitation Act 2003 (Qld) as to the required causal connection between the appellant’s injury and her employment.

This court held that there was no jurisdictional error by the Industrial Court. Keane JA said:

“If there is a duly constituted appeal from an Industrial Magistrate, then the Industrial Court has jurisdiction to hear and determine that matter. The exercise of the jurisdiction of the Industrial Court to determine appeals from an Industrial Magistrate must inevitably involve the interpretation of the substantive provisions of legislation which give rise to the controversy between the parties. There is nothing in s 561 of the WCR Act which offers even the faintest support for the idea that the determination of the proper construction of substantive provisions of the WCR Act such as s 32(1) and (5) is not an issue committed to the jurisdiction of the Industrial Court. Indeed, s 561(4) of the WCR Act strongly suggests that the contrary is the case.”¹⁵

The same point was made in another context by the High Court in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission.¹⁶

Closer to the present case, two decisions of the Trial Division of this court have held that a decision of the Industrial Court on appeal as to the adequacy of a complaint under the relevant sections of the Justices Act 1886 (Qld) does not involve jurisdictional error by the Industrial Court even if the decision of the Industrial Magistrate may do so.¹⁷

However, in NK Collins Industries Pty Ltd v President of the Industrial Court of Qld¹⁸ this court considered whether both an Industrial Magistrate and the Industrial Court had made jurisdictional errors in failing to dismiss a complaint that did not identify the relevant acts or omissions constituting the offences. The charge was for an offence under s 24 of the Workplace Health and Safety Act 1995 (Qld). The substance of the offence alleged was that the appellant failed to ensure that the workplace safety and health of its workers was not affected by the conduct of the appellant’s business or undertaking. It arose out of an incident in the course of the appellant’s business of harvesting trees where a worker had been injured by a falling cypress tree.

Both the Industrial Magistrate and the Industrial Court had held that there was no obligation for the complainant to particularise the measures not taken by the appellant as constituting the offence. The Industrial Court had held that particulars were not required to accord procedural fairness to the appellant.

In the Trial Division of this court it was held that the decision of the Industrial Court was an error within jurisdiction. The Judge concluded that it followed from Parker that the jurisdiction of the Industrial Court to hear an appeal from the Magistrates Court includes the power to decide whether or not the Industrial Magistrate had erred.

On appeal to this court, it was held that the Industrial Magistrate had misconstrued s 24. The consequence was that the appellant was convicted of an offence where there was no jurisdiction to do so because no act or omission was alleged in the complaint as constituting the offence. Holmes JA continued:

“The [Industrial Court] correspondingly committed jurisdictional error by upholding a conviction for which there was no jurisdiction...”¹⁹

Jurisdictional error now and then

The concept of jurisdictional error has been developed or expanded by the High Court of Australia over recent years. In particular, Craig v South Australia,²⁰ Re Refugee Review Tribunal; Ex parte Aala²¹ and Kirk v Industrial Court of New South Wales²² are often referred to as containing the leading statements of principle. Yet, in the particular context of the power of this court to grant relief by way of an order in the nature of prohibition or certiorari directed to the Industrial Court of this State, there are prior relevant cases.

The fundamental principles owe their existence to case law concerned with cognate questions extending back to the historical development of the writs of prohibition and certiorari in 18th and 19th century England. That development is well traced by Professor Craig.²³

Consistently with those principles, under earlier iterations of the Industrial Court’s organising legislation, this court has considered the distinction between an error of law or fact within jurisdiction and one in excess of jurisdiction, in assessing whether prohibition or certiorari would lie to the Industrial Court for error made on appeal from a decision of the Industrial Commission or an Industrial Magistrate. It will be relevant to discuss those cases later, but the present case must be decided by reference to the current statutory provisions, as set out above.

The statutes have changed. Yet the core questions have not. It is a question of construction of the statute conferring jurisdiction upon the Industrial Court.

The Industrial Court was exercising appellate jurisdiction in each of the appeals brought from the order of the Industrial Magistrate dismissing the relevant complaint. The appeal was from a judgment or order made by an inferior court, being the Industrial Magistrates Court constituted by an Industrial Magistrate. The inferior court was exercising criminal jurisdiction. The proceeding was the prosecution of a summary offence that was punishable by fine or imprisonment. The inferior court was required to proceed as a court of law and constituted as a court of record. It was required to proceed under the general statute applying in the State for the prosecution of summary criminal offences. It was bound by the rules of evidence. At the conclusion of the trial of the offence, it would have been required to decide the question of guilt. On a finding of guilty, the inferior court would have been required to decide whether to record a conviction and what order to make by way of sentence.

As are all appeals, each appeal from the orders made by the Industrial Magistrate to the Industrial Court was the creature of statute. The powers of the Industrial Court are usual powers for a court exercising appellate power in such a criminal case. As a superior court of record, the Industrial Court has jurisdiction and power to decide the relevant questions of fact and law under the statutory framework.

From early times, cases arose where it was necessary to consider whether a statutory court was given power to decide questions of law conclusively by their organising and jurisdictional statutes. There is no hard and fast rule. Craig encapsulates the distinctions to be drawn having regard to the terms of the particular statute and the context in which it operates.

Kirk is no different. It was said there:

“The drawing of a distinction between errors within jurisdiction and errors outside jurisdiction was held, in Craig, to require different application as between ‘on the one hand, the inferior courts which are amenable to certiorari and, on the other, those other tribunals exercising governmental powers which are also amenable to the writ’. The Court said that:

‘If … an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.’

By contrast, demonstrable error on the part of an inferior court ‘entrusted with authority to identify, formulate and determine’ relevant issues, relevant questions, and what is and what is not relevant evidence was held, in Craig**, not ordinarily to constitute jurisdictional error. The Court held that:**

‘a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error.’

The basis for the distinction thus drawn between courts and administrative tribunals was identified in the lack of authority of an administrative tribunal (at least in the absence of contrary intent in the statute or other instrument establishing it) ‘either to authoritatively determine questions of law or to make an order or decision otherwise than in accordance with the law’. By contrast, it was said that ‘the ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine’.”²⁴ (emphasis added) (footnotes omitted)

There are marginal situations, which illustrate that the question depends on the terms of the particular legislation, or common law, and the particular decision maker’s functions. For example, in England, certiorari does not go to the Ecclesiastical Courts, or a University Visitor, or a Judge of the High Court of Justice of England and Wales as a visitor to the Inns of Court. Towards the top of the English judicial tree, following the enactment of the Judicature Acts, the High Court of Justice and Court of Appeal were not subject to judicial review.

The Industrial Court: a superior court of record?

One of the factors in play in the present case is that the Industrial Court is constituted expressly as a superior court of record.

This provision mirrors a change introduced to the organising Act for the Industrial Court as long ago as 1917, although the status of a “superior” court of record was omitted between 1929 and 1932 when it was re-introduced.²⁵ The point of interest is that, generally speaking, a superior court of record is not subject to judicial review, except by way of appeal (itself the creature of statute).

As the House of Lords said of the High Court of Justice In re Racal Communications Ltd:²⁶

“It is a superior court of record. It was not, in the past, subject to control by prerogative writ or order, nor today is it subject to the judicial review that has taken their place.”²⁷

And in Suratt v Attorney General of Trinidad and Tobago²⁸ the Privy Council said the following was a helpful explanation of the term “superior court of record”:

“Courts are of two principal classes–of record and not of record. A court of record is one whereof the acts and judicial proceedings are enrolled for a perpetual memory and testimony, and which has the authority to fine and imprison for contempt of its authority ... Courts are also divided into superior and inferior, superior courts being those which are not subject to the control of any other courts, except by way of appeal…”²⁹

The circumstances in which the Industrial Court was made a superior court of record in 1916 were described by Philp J in R v The Industrial Court & Ors; ex parte Brisbane City Council.³⁰ In brief, in 1915 and 1916 this court held that prohibition lay to the Industrial Court despite a privative clause, when that court was “a court of record”. Apparently to reverse those decisions, on 18 December 1916 the Industrial Arbitration Act 1916 (Qld), s 6(1) constituted the Industrial Court as a “superior court of record”.

That apparent attempt to immunise the decisions of the Industrial Court from certiorari and prohibition ultimately failed. In R v The Industrial Court & Ors; ex parte Brisbane City Council,³¹ the Full Court of this court held that the fact that the Industrial Court was named as a superior court of record³² did not prevent prohibition going to it.

In R v Brisbane City Council, ex parte Read³³ McPherson J described a “superior court of record” thus:

“The Supreme Court of Queensland is a court of record: Supreme Court Constitution Amendment Act of 1861, s 2, which was continued under that name by s 1 of the Supreme Court Act of 1867. It is as its name implies a “superior” court of record; indeed, it is the only superior court of record having general jurisdiction in and over Queensland, ss 2, 21, 22, 23 and 24 of the Supreme Court Act of 1867. The distinction and its incidents between a superior court and an inferior court, such as the Local Government Court, are considerable. They were discussed at length by Willes J. in Mayor of London v Cox (1867) LR 2 HL 239, principally at pp 269–263. One consequence of the distinction is that there is a presumption that a superior court such as the Supreme Court has jurisdiction over any and every justiciable matter arising within the territorial jurisdiction of the Court. ‘The rule for jurisdiction is that nothing shall be intended to be out of the jurisdiction of a superior Court but that which specially appears to be so’: see Mayor of London v Cox (1867) LR 2 HL 239, 259, citing Peacock v Bell (1667) 1 Wms Saund 69, 73–74; 85 ER 83–84, referred to with approval by Dawson J in DMW v CGW (1982) 151 CLR 491, 509; R v Commonwealth Court of Conciliation; ex p Ozone Theatres (Aust) Ltd (1949) 78 CLR 389, 399. Of course, it is not impossible for the legislature to exclude the jurisdiction of the Supreme Court. That has in Queensland been done, for example, by some of the provisions conferring powers on the Industrial Court and Commission, and to some extent also by the Commonwealth Parliament in the case of the Family Court and the Federal Court The starting point for the jurisdictional presumption is, however, the other way.

The second incident of a superior court of general jurisdiction is that it enjoys the power and privilege of determining its own jurisdiction, and, moreover, of doing so conclusively, subject only to rights of appeal: see Mayor of London v Cox (1867) LR 2 HL 239, 262; Harris v Harris [1947] VLR 44, 46–47, per Fullagar J. Contrast R v Federal Court of Australia, ex p Western Australian National Football League (Inc) (1979) 143 CLR 190.”³⁴

Measured against those standards, the Industrial Court does not have jurisdiction over any and every justiciable matter arising within the territorial jurisdiction of the Court. On the contrary, the probable purpose of the statutory description that it is a superior court of record was to attract the second incident that it enjoys the privilege of determining its own jurisdiction.

The effect of R v The Industrial Court & Ors; ex parte Brisbane City Council is that whether a court possesses that incident is a matter of the proper construction of the organising statute. It is not a status that can simply be conferred by using the label “superior” in describing the court’s status.

Although the Industrial Relations Act 1999 (Qld) is the fourth successor to the organising legislation considered in R v The Industrial Court & Ors; ex parte Brisbane City Council, s 242 as set out above is not materially different from the sections contained in the earlier Act. There are some differences in the powers of the court but it is unnecessary to detail them. The question at issue in that case was whether prohibition would lie to the Industrial Court for an excess of jurisdiction in exercising appellate jurisdiction in an appeal under a provision of the City of Brisbane Act 1924 (Qld) from the dismissal by the council of an employee for misconduct.

Accordingly, in my view, in an appropriate case this court may make an order in the nature of certiorari or prohibition directed to the Industrial Court, notwithstanding its statutory designation as a superior court of record.

That is consistent with the decisions of this court where orders in the nature of prohibition or certiorari have been made. It is also consistent with Kirk where the High Court said of a similar provision in the organising legislation of the NSW Industrial Court:

“Designation of the Industrial Court as a “superior court of record” does not alter the conclusions stated about the availability of certiorari. It may well affect whether the orders of the Industrial Court are subject to collateral challenge but that is not an issue that need be examined here.”³⁵ (footnotes omitted)

Earlier, the High Court said of the cognate question under Commonwealth laws, in Re Gray ; Ex parte Marsh:³⁶

“It is firmly established that under s 75(v) of the Constitution mandamus and prohibition will lie to a judge of a tribunal set up by the Commonwealth Parliament, notwithstanding that it is declared to be a superior court of record: see R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389 at 399. Thus prohibition may issue to the Family Court (R v Watson; Ex parte Armstrong (1976) 136 CLR 248 at 263; Re Ross-Jones; Ex parte Green (1984) 59 ALJR 132 ; 56 ALR 609) and to the Federal Court (R v Federal Court of Australia; Ex parte WA National Football League (1979) 23 ALR 439; 143 CLR 190). Prohibition will issue for jurisdictional error and denial of natural justice, but not for non-jurisdictional error of law (Amalgamated Society of Carpenters and Joiners v Haberfield Pty Ltd (1907) 5 CLR 33 at 49; Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369). The decisions of this Court provide many instances in the field of industrial arbitration of refusal to grant prohibition for non-jurisdictional error (see Parisienne Basket Shoes; R v Taylor; Ex parte Professional Officers’ Association — Commonwealth Public Service (1951) 82 CLR 177 at 186; R v Commonwealth Court of Conciliation and Arbitration; Ex parte Amalgamated Engineering Union, Australian Section (1953) 89 CLR 636 at 647; Re Moore; Ex parte Co-operative Bulk Handling Ltd (1982) 56 ALJR 697; 41 ALR 221).

In general, the grant of jurisdiction to a superior court carries with it the power to determine conclusively, subject to any appeal, the existence or otherwise of facts upon which the jurisdiction depends, unless the legislature otherwise provides. As Dixon J pointed out in Parisienne Basket Shoes (at p 391) to make an actual fact, event or circumstance a condition on which jurisdiction depends: ‘… produces so inconvenient a result that no enactment dealing with proceedings in any of the ordinary courts of justice should receive such an interpretation unless the intention is clearly expressed.’

The point has special force in relation to a superior court, even if it be a superior court with limited jurisdiction.

If, however, the court lacks power to decide conclusively whether it has jurisdiction because its jurisdiction is made to depend upon the actual occurrence of some fact, event or circumstance, then the court will be subject to the prerogative writs in the event that it wrongly decides it has jurisdiction (DMW v CGW (1982) 44 ALR 225; 151 CLR 491 at 507). A superior court with limited jurisdiction may lack power to determine its own jurisdiction conclusively because it depends upon the existence of facts essential to the valid exercise of jurisdiction under the Constitution.”³⁷

In the same vein, the High court recently refined the point about the status of a superior court of record in this country in New South Wales v Kable:³⁸

“Secondly, there is no Australian court with unlimited jurisdiction. Hence, although it is sometimes suggested that, in England, the prerogative writs of mandamus, prohibition and certiorari were not available to provide relief against a judgment or orders of a judge of a superior court, that suggestion, even if accurate, could have no direct or immediate application in Australia.

Thirdly, all courts, whether superior or inferior, have the authority to decide whether a claim that is made in the court is within its jurisdiction. That power can be described as a court having jurisdiction to decide its own jurisdiction. But because there is no Australian court with unlimited jurisdiction, a decision that a court does, or does not, have authority to decide a particular claim will be subject to review and correction. Sometimes that will be by the grant of prohibition or certiorari;sometimes, as exemplified by Kable [No 1], it will be by the process of appeal, and ultimately by appeal to this Court. And if it is said that a superior court is presumed to act within its jurisdiction, that is best understood as a statement about the effect that is to be given to its orders unless or until they are set aside.”³⁹ (footnotes omitted)

Other relevant cases

From the prior discussion, it is apparent that the question whether the order of the Industrial Court in the present case is reviewable for jurisdictional error must be decided in accordance with the principles of Craig, Aala and Kirk, assisted by the relevant cases in this court as to the scope of the powers of the Industrial Court.

In 1965, the Industrial Court was constituted under The Industrial Conciliation and Arbitration Acts, 1961 to 1964. Section 8(5) contained a privative clause like those in the present Act and those previously considered by this court. Under the 1961 Act, the Industrial Court had appellate jurisdiction on an appeal from a decision of the Industrial Commission exercising a statutory power to reinstate a worker. The appeal was limited by s 34(1) of the 1961 Act to an appeal on the grounds of error in law or excess of jurisdiction only.⁴⁰

The Full Court of this court held in R v The Industrial Court and Mount Isa Mines that the Industrial Court could not give itself jurisdiction where there was none.⁴¹ Therefore, a wrong decision on the question whether an appeal was brought to the Industrial Court on the ground of an error of law was reviewable on prohibition or certiorari as an excess of jurisdiction.⁴²

Remarkably, in 1967, under exactly the same provisions, a differently constituted Full Court came to the contrary view, in R v The Industrial Court of Queensland and Ors; ex parte Federated Miscellaneous Workers’ Union of Employees of Australia & Anor.⁴³ Gibbs J held that the proper construction of s 34(1) was that:

“… the legislature has in terms entrusted the determination of appeals on the two stated grounds to the Industrial Court and thus has left it to that court to decide whether the decision of the Commission was erroneous in point of law or in excess of jurisdiction, and has declared its intention that the decision of the Industrial Court should be final and without appeal.”⁴⁴

However, although the court in 1967 was clearly of the opinion that the decision of the court in 1965 was wrong, it followed the earlier decision because at that time this court considered that it was bound to follow its own earlier decisions.

The 1967 case of Federated Miscellaneous Workers’ Union is potentially significant. The permitted statutory grounds of appeal to the Industrial Court were intended to operate as limits on its powers to hear an appeal. Whether a decision appealed from to the Industrial Court was made in excess of jurisdiction of the Commission below is akin to the issue in the present case, whether the refusal of the Industrial Magistrate to exercise jurisdiction was a jurisdictional error. If, as Gibbs J held, the legislation conferred on the Industrial Court the power to decide whether the decision below was in excess of jurisdiction in a way that was itself immune from judicial review, the effect of the statutory right of appeal was to exclude the jurisdiction of this court to grant relief by way of prerogative order to the Industrial Court.

In my view, these cases do not decide the present question, but they inform the analysis of the operation of the statutory provisions upon which the present question must be answered. Because of the general similarity of the relevant provisions to those considered in the earlier cases and the similarities in the questions that were asked and answered in those cases, they are a useful discussion.

Another relevant case in the same vein is The Electrical Trades Union of Employees Queensland v President of the Industrial Court of Queensland.⁴⁵ That case considered the provisions of the present Industrial Relations Act 1999 (Qld). By s 341(1) of that Act a person dissatisfied with a decision of the Industrial Commission could appeal against the decision to the Industrial Court only on the ground of (relevantly) an error of law. Chesterman J held that:

“… s 341 of the Act should be construed as conferring on the Industrial Court the power to decide whether the Commission has made an error of law so as to enliven its appellate jurisdiction … and an error (if there wasone) by that court would not be an error which deprived it of jurisdiction.”⁴⁶

This conclusion is consistent with the reasoning (although not the result) in Federated Miscellaneous Workers’ Union, although that case was not referred to.

These cases also show that Parker is a regular application of the principles as to the scope of jurisdictional error whether looked at by applying the principles as stated in Craig, Aala, Kirk, or the older cases dealing with the cognate questions arising under the earlier statutes under which the Industrial Court was organised.

The respondents submitted that the Industrial Court had the “jurisdiction to go wrong”. They relied on Parisienne Basket Shoes Pty Ltd v Whyte:⁴⁷

“If the Justices had jurisdiction to decide upon the objection based upon s 229(a), then it is immaterial in these prohibition proceedings whether their decision was (in the case which they heard) or may be (in the other case which they have not yet heard) right or wrong. When jurisdiction is given to decide a question, there is power to decide it rightly or wrongly, and not only power to decide it rightly.”⁴⁸ (footnotes omitted)

Parisienne Basket Shoes was also treated as significant in the reasoning of Chesterman J in The Electrical Trades Union of Employees Queensland.

However, it cannot be said that every decision maker who has the power to rightly decide that they have jurisdiction must also have the power to wrongly decide that they do not. The point was made in Kirk, as follows:

“In part, perhaps in large part, these difficulties stem from the existence of unresolved competition between two opposing purposes for the grant of certiorari … [T]he English common law courts sought to control inferior courts by ‘keeping the inferior tribunal within its ‘jurisdiction’ [which] may be equated with compelling the inferior tribunal to observe ‘the law’, ie, what the superior tribunal considers the law to be’. Yet at the same time ‘it [was] usually desired, for reasons of expediency, to give the inferior decision some degree of finality, or, as is often said, some jurisdiction to go wrong’. Those two purposes pull in opposite directions. There being this tension between them, it is unsurprising that the course of judicial decision-making in this area has not yielded principles that are always easily applied. As Sawer wrote, ‘it is plain enough that the question is at bottom one of policy, not of logic’.⁴⁹ (footnotes omitted)

In my view, the question in the present case is not answered by application of an a priori concept that a decision maker has as much power to decide a question wrongly as rightly. That is a conclusion that may be reached on the proper construction of the statutory provisions in question, but it is not a means for discerning what is not jurisdictional error.

The particular problem in the present case is raised because the Industrial Court’s order was made in the exercise of its appellate jurisdiction on appeal from a decision of the Industrial Magistrate as an inferior court exercising criminal jurisdiction upon the prosecution of a summary offence. The question is the scope of jurisdictional error on judicial review where there is no right of appeal from the Industrial Court to the Court of Appeal.

The absence of a right of appeal from the Industrial Court to the Court of Appeal, even subject to a leave requirement, distinguishes the Industrial Court from other inferior courts and tribunals, including the District Court, Land Court, the Magistrates Court and QCAT. In passing, I note that the existence of a right of appeal from those other courts and tribunals does not destroy the supervisory jurisdiction of this court. However, in practice, a right of appeal will sound the death knell for most applications for judicial review for discretionary reasons.⁵⁰

In R v Dodds; Ex parte Smith,⁵¹ the District Court exercising appellate jurisdiction under s 222 of the Justices Act 1886 (Qld) allowed an appeal from an order of the Magistrates Court dismissing a charge laid under the Mining Act 1968 (Qld). The District Court ordered that the proceeding be remitted to the Magistrates Court to proceed. The Full Court granted certiorari to the District Court on the ground that the powers of the District Court on appeal did not include the power to remit the proceeding to the Magistrates Court.

In R v District Court; Ex parte White⁵² the power to excuse a person from military service depended on a finding of fact as to whether the person was a conscientious objector. It was said that the statute committed the determination of the question to the Court of Petty Sessions and on appeal to the District Court whose decision was declared by the Act to be final and conclusive, so that certiorari would not lie.⁵³

In a context where the question was whether a rating provision authorised a local lighting rate, Sir Frederick Jordan famously said in Ex parte Hebburn Ltd; Re Kearsley Shire Council,⁵⁴ that there are “mistakes and mistakes”:

“I quite agree that the mere fact that a tribunal has made a mistake of law, even as to the proper construction of a statute, does not necessarily constitute a constructive failure to exercise jurisdiction … But there are mistakes and mistakes; and if a mistake of law as to the proper construction of a statute investing a tribunal with jurisdiction leads it to misunderstand the nature of the jurisdiction which it is to exercise, and to apply “a wrong and inadmissible test” … or to “misconceive its duty,” or “not to apply itself to the question which the law prescribes”: The King v War Pensions Entitlement Appeal Tribunal [Ex parte Bott] (1933) 50 CLR 228 at 242–3]; or “to misunderstand the nature of the opinion which it is to form”: The King v Connell (1944) 69 CLR 407 at 432], in giving a decision in exercise of its jurisdiction or authority, a decision so given will be regarded as given in a purported and not a real exercise of jurisdiction, leaving the jurisdiction in law constructively unexercised, and the tribunal liable to the issue of a prerogative writ of mandamus to hear and determine the matter according to law…”⁵⁵

There is no difficulty in law in treating a constructive failure to exercise jurisdiction as a jurisdictional error for the purposes of the principles expounded in Kirk. An attempt to confine Kirk so as not to apply to a case of wrongful refusal to exercise jurisdiction was rejected by the High Court in Public Service Association of South Australia Inc v Industrial Relations Commission (SA).⁵⁶

The present case

Let it be assumed that the question is whether the Industrial Magistrate erroneously construed the requirements of the relevant sections in deciding whether the complaints were so defective that they did not engage the jurisdiction of the Industrial Magistrate to proceed upon them to determine whether the respondents were guilty or not guilty of the charges sought to be laid against them. In my view, there is no doubt that an erroneous construction of the sections or an erroneous application of their requirements to the contents of the complaints by the Industrial Magistrate would amount to a jurisdiction “constructively unexercised”. Certiorari would lie⁵⁷ to bring up the record and quash the order dismissing the complaint in each case and mandamus would lie to make an order to proceed according to law to hear and determine the matter.

Yet, the question is not that. The question is whether if the same error or a similar error was made by the Industrial Court on appeal from the orders of the Industrial Magistrate, there is a constructive refusal or failure to exercise the jurisdiction of the Industrial Court on appeal or merely an error within jurisdiction.

I observe that as against the Industrial Court certiorari would only bring up the record of the Industrial Court to quash the orders dismissing the appeals and mandamus would only order the Industrial Court to proceed according to law to hear and determine each of the appeals to the Industrial Court.

A critical consideration is that the Industrial Court exercising appellate jurisdiction is not exercising the original jurisdiction of the Industrial Magistrate. On appeal, the statute conferring the right of appeal gives the Industrial Court power to decide whether the Industrial Magistrate was right or wrong and to make orders accordingly. Even so, if the Industrial Court answers those questions wrongly, by deciding that the Industrial Magistrate had no jurisdiction to proceed when in truth he did have that power, it seems unsatisfactory to say that the Industrial Magistrate fell into jurisdictional error but the Industrial Court did not. Both courts will have metaphorically tripped and fallen over the same hazard in reaching the erroneous conclusion that the proceedings were foredoomed.

The difference is that if the Industrial Magistrate refused to exercise jurisdiction when in truth he did have power to proceed that was plainly a jurisdictional error. The postulate is that the Industrial Magistrate decided wrongly that the complaint did not engage his power to hear and decide the complaint. But if the Industrial Court made the same error as to the jurisdiction of the Industrial Magistrate to proceed, that was not an error of law as to the extent of the appellate jurisdiction of the Industrial Court.

If the Industrial Court had decided that the Industrial Magistrate had made an error in refusing to proceed, it would have proceeded to consider for itself the consequences of that error in terms of the orders it should make under s 341(3)(b) and (d) of the Industrial Relations Act 1999 (Qld), still exercising the appellate jurisdiction of the Industrial Court.

At no point would the Industrial Court have exercised the original jurisdiction of the Industrial Magistrate.

The question thrown up by this case is by no means easy to decide. Where the possible jurisdictional error arises because an inferior court “misconstrues [the] statute or other instrument and thereby misconceives … the extent of its powers in the circumstances of the particular case … the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern.”⁵⁸

In my view, if the decision of the Industrial Court involved an error of law that the Industrial Magistrate had no jurisdiction to proceed because the complaints were nullities, it should be held that the error amounts to jurisdictional error.

I am somewhat fortified in that conclusion by the order made in comparable circumstances in Kirk, as explained by the High Court:

“An order in the nature of certiorari could, and in this case should, have been directed to the Industrial Court in respect of its decisions at first instance. That remedy should have been granted for jurisdictional error of the Industrial Court. Because both the order of Walton J finding the offences proved and the order of Walton J passing sentence should have been quashed, the orders subsequently made by the Full Bench of the Industrial Court should also be quashed.”⁵⁹

The proceeding in Kirk was an appeal to the High Court from the order of the Court of Appeal of NSW dismissing the application for an order in the nature of certiorari to quash the order of the Full Bench of the Industrial Court dismissing the appeal against the order of the Industrial Court convicting the appellant. However, it does not appear that the High Court gave any particular attention to the difference between the appellate jurisdiction of the Full Bench in comparison to the original jurisdiction of the Industrial Court in reaching the conclusion that an order quashing the orders made by the Full Bench could be made.

In like vein, this court in NK Collins Industries Pty Ltd v President of the Industrial Court of Qld⁶⁰ held that where the Industrial Magistrate convicted without jurisdiction to do so, the Industrial Court correspondingly committed jurisdictional error by upholding that order – without considering any difference between the original and appellate jurisdiction of those two courts.

Finally, there are some similarities between the present case and Rockdale Beef Pty Ltd v Industrial Relations Commission.⁶¹ In that case, the applicant for orders in the nature of prohibition or declaratory relief contended that there was a failure to allege an essential ingredient of the offence with which it was charged in the application containing the charge. The Industrial Relations Commission dismissed the charge because of the failure. The Full Bench of the Commission upheld an appeal. The Supreme Court of New South Wales agreed. But in the course of his reasons, Basten JA said:

“If the Full Bench resolved a question as to the validity of the charge by reference to a wrong legal standard, there might be a nice question as to whether it was an error within jurisdiction or constituted a constructive failure to exercise the jurisdiction of the Court. However, they were right to find error on the part of the trial judge, for a reason which might have been slightly differently expressed. The error lay in the fact that the failure to plead that the conduct in question took place in circumstances where the relevant plant was controlled in “the course of a trade, business or other undertaking” was a failure to allege an essential legal element of the offence.”⁶² (emphasis added)

This case raises such a “nice question”.

Were the complaints nullities and incapable of amendment?

There is a difference between the bases of the decisions of the Industrial Magistrate on the one hand and the Industrial Court on the other hand.

The Industrial Magistrate held that each complaint was defective because it did not allege the breach of a separate obligation and then particularise the facts relating to that offence.

This was a contravention of the requirement under s 43(2) of the Justices Act 1886 (Qld) that “When 2 or more matters of complaint are joined in the 1 complaint each matter of complaint shall be set out in a separate paragraph.”

The Industrial Magistrate held that there was no “jurisdiction to amend” the complaints because of non-compliance with s 43(2).⁶³ In this, his Honour relied on Thiess Pty Ltd v President of the Industrial Court of Queensland.⁶⁴ There was no appeal from that decision but in a related appeal a contrary view was reached in Thiess Pty Ltd v Industrial Magistrate Hall.⁶⁵

The proposition that a complaint that does not comply with s 43 cannot be amended under s 48 calls for further consideration. That proposition stems from the text of s 48 as follows:

“If at the hearing of a complaint, it appears to the justices that—

(a)there is a defect therein, in substance or in form, other than a noncompliance with the provisions of section 43; or

(b)there is a defect in any summons or warrant to apprehend a defendant issued upon such complaint; or

(c)there is a variance between such complaint, summons or warrant and the evidence adduced at the hearing in support thereof;

then—

(d)if an objection is taken for any such defect or variance—the justices shall; or

(e)if no such objection is taken—the justices may;

make such order for the amendment of the complaint, summons or warrant as appears to them to be necessary or desirable in the interests of justice.” (emphasis added)

The exception of a defect constituting a noncompliance with s 43 from the power to amend the complaint under s 48 was introduced with the substituted form of s 48 in 1964.⁶⁶ Before that amendment, Kennedy Allen said that the proper procedure under the power to amend a complaint under s 43 of the Justices Act 1886 (Qld) was to put the complainant to an election of the charge on which to proceed. If the complainant refused, the complaint would be dismissed. If an election was made, the court would then strike out the allegations for the abandoned offence or offences (ie amend by striking out).⁶⁷

The long reach of the power of amendment under s 48 is apparent from its terms – it extends to a defect in substance or in form. A possibly duplex complaint (under s 43) was considered in R v Bartlett.⁶⁸ It was held that:

“If it is duplex the magistrate is obliged to require the complainant to choose one matter on which to proceed. Such an election by the complainant is not an amendment … Once such an election is made the magistrate has jurisdiction to proceed with the hearing.”⁶⁹

No case before Thiess Pty Ltd v President of the Industrial Court of Queensland⁷⁰ of which I am aware decided that the effect of the current text of s 48(1)(a) is that the earlier procedure (striking out the abandoned allegations) should not be followed now.

The power to amend where a complainant is made to elect under s 43 was considered by this court in Thiess Pty Ltd v Industrial Magistrate Hall.⁷¹ It was held that:

“It would … be proper to imply a strike-out power as a corollary of the express power to require election under s 43(3)(a); in other words, having required the complainant to choose one matter of complaint, it is reasonably necessary that there be implied a power to dispose of the remaining matter.”⁷²

In my view, accordingly, the Industrial Magistrate, having decided that the complaint did not comply with s 43, should have put the complainant to his election as to the offence on which he proposed to proceed, before dismissing the complaints for non-compliance.

That procedure is consistent with the exception from s 48 of a power to amend for a defect of non-compliance with s 43. It also admits of the power of amendment under s 48 as an implied power, once the election has been made and the defect under s 43 thereby cured.

The Industrial Magistrate did alternatively consider whether he should permit an amendment, if he had power to do so. As a matter of discretion, his Honour decided that no amendment would be permitted because the existing complaints charged offences not known to law, the limitation period had expired and the offences sought to be charged were not cognate with the offence already charged or purportedly charged.

However, on this point, the Industrial Court did not uphold the decision of the Industrial Magistrate as a proper exercise of discretion. Instead, it held that the complaints were so defective as to constitute “nullities” that were incapable of amendment.

The distinction between a proceeding that is a nullity and one that is not is nowadays made more rarely than in earlier times, perhaps corresponding to the increasing recognition that the question must often be asked by reference to the particular context or purpose.

Like the difference between “void” and “voidable” the difference between a proceeding that is a “nullity” and one that is an “irregularity” is not always easily identified.⁷³

In Director of Public Prosecutions v Poniatowska⁷⁴ the High Court said:

“In substance the contention advanced has two aspects. One aspect is that ‘the complaint is a nullity and does not disclose an offence known to law.’ The other aspect of the contention is that it would not be possible for the appellant adequately to particularise the charges. It is necessary to bear in mind that the central question is whether the Full Court should have granted leave to the respondent to change her plea from guilty to not guilty. It is also necessary to bear in mind that the assumption on which consideration of the notice of contention rests is that the respondent’s construction of the legislation is not sound. On that assumption, it cannot be said that the charges are nullities. It is true that the particulars of the charges were inadequate. But if the respondent had pleaded not guilty and complained about the inadequacy of the particulars, that question could have been investigated, and any difficulty met by amendment. The respondent submits that it would not have been possible for the appellant to have particularised the charges in a manner indicating to the respondent the particular act she failed to perform and when she failed to perform it. That submission must be rejected. The respondent knew the details of her own affairs much better than Centrelink did. Her silence about the state of those affairs resulted in the gaining by her of excessive benefits. Assuming that an omission satisfying s 135.2 must take place before receipt of each excessive benefit — and the appellant did not contend otherwise — the appellant might face difficulties in proof, depending on what was particularised, but particularisation would be possible. For example, particulars could have been given, as the appellant submitted, that after the moment of receipt of each commission payment, the respondent omitted to inform Centrelink of it before receipt of her next benefit payment.”⁷⁵

The question to be asked, in accordance with the modern law of statutory interpretation, was identified in Project Blue Sky Inc v Australian Broadcasting Authority:⁷⁶

“A better test … is to ask whether it was a purpose of the legislation that an act done in breach of [a] provision should be invalid … In determining the question of purpose, regard must be had to ‘the languageof the relevant provision and the scope and object of the whole statute’”.⁷⁷

The characterisation of a defective court process as a nullity is connected to the distinction between superior courts of record of general jurisdiction and courts of limited jurisdiction. In the case of superior courts, acts in excess of jurisdiction cannot be characterised as invalid until quashed or set aside on appeal.⁷⁸ That is not necessarily true of courts of limited jurisdiction.⁷⁹

But the question in the present case must now be decided having regard to the effect of s 48 and the other sections of the Justice Act 1886 (Qld).

For example, the discussion as to the operation of s 43 set out above shows that a complaint that is defective because of non-compliance with s 43 is not a nullity. The same is true of some other defects that fall within s 48. Even a failure to allege a necessary element of an offence may be amended under s 48, subject to the applicable principles.⁸⁰

The problem in the present case was argued by reference to analogous authorities upon cognate legislation in other States, in particular: GPI (General) Pty Ltd v Industrial Court (NSW),⁸¹ Director of Public Prosecutions (Vic) v Kypri,⁸² Area Concrete Pumping Pty Ltd v Inspector Childs⁸³ and Attorney General (NSW) v Built NSW Pty Ltd.⁸⁴

The Industrial Court’s finding in the present case that the complaints were nullities and incapable of amendment should be seen, in my view, as a conclusion that they were nullities because the complaints were noncompliant with the requirements for a valid complaint in a way that the power to amend cannot reach. In other words, characterisation as a nullity is a conclusion that does not inform the scope of the power of amendment.⁸⁵

Knaggs v Director of Public Prosecutions⁸⁶ has some similarities to the present problem. In that case, the relevant legislation, in s 175(3)(b) of the Criminal Procedure Act 1986 (NSW), required that a court attendance notice (“CAN”) for a summary proceeding in the Local Court should briefly state particulars of the alleged offence. The claimant was convicted of the offence of assault occasioning bodily harm. He appealed unsuccessfully against the conviction to the District Court. He then applied for orders in the nature of certiorari or prohibition from the Supreme Court of New South Wales on the ground that the particulars were inadequate and the CAN was thereby rendered a nullity.

Among other things, in reaching the conclusion that non-compliance did not invalidate the CAN so as to render it a nullity, Campbell JA said:

“Fifth, the express power of amendment of a CAN that is conferred by s 21 is, in its terms, capable of applying to a CAN that is defective by reason of a failure to comply with s 175(3)(b). As s 21 is wide enough to permit an amendment of any particulars that were originally contained in a CAN, it would be strange if the legislature intended that a failure to fully state particulars in the CAN at the outset made that CAN void.

Sixth, one of the purposes of the legislature in enacting s 175(3)(b) was that a person who was subject to a charge should have sufficient information about the allegations that were to be made against him or her to be able to prepare a defence. Requiring particulars to be given at the earliest stage of the proceedings, in a CAN, is an aid to the fair and efficient conduct of the proceedings. However, those purposes of the legislature are not ones that can be put into effect only if the invalidity of proceedings is a consequence of a failure to comply with s 175(3)(b)...”⁸⁷

So viewed, the true question is what is the scope of the power of amendment under s 48 of the Justices Act 1886 (Qld) in relation to the particular defects to be found in the complaints. To analyse that question it is first necessary to ascertain the extent of the non-compliance with the requirements for the complaints.

The Industrial Court looked at the defects in the complaints by reference to both the text of the charge, the particulars included in the complaint and further particulars provided by the complainant. It assists analysis to confine attention to the charge and the particulars in the complaints because, as the Industrial Court observed, if the complaints as originally laid were nullities, any later particulars were irrelevant.

I return to the complaint against the fourth respondent. The charge alleged a failure to discharge the safety and health obligations under ss 36 and 38 of the Act. It is convenient to leave s 36 aside to reduce the scope of the analysis necessary. However, s 38 alone contains no fewer than five or six obligations, or sets of obligations. On the proper construction of s 38, a contravention of any one of those obligations would be an offence.⁸⁸

The charge does not identify which of those obligations the complainant alleges was breached. Instead, it generally refers to “the obligations”. In part, common sense dictates that not all of the obligations under s 38 can have been intended. For example, the obligation under s 38(1)(c) is to appoint a site senior executive for the mine. No fact alleged in the particulars suggests the second respondent was not in truth the site senior executive, and the second respondent was charged as the site senior executive over the same events as the fourth respondent.

Which of the obligations did the complainant intend to allege were breached? For example, was it the obligation under s 38(1)(a) to ensure the risk to workers while at the operator’s mine is at an acceptable level, including, for example, by providing a safe place of work and safe plant; or maintaining plant in a safe state? Paragraph 8(a) of the particulars would make it seem so, but it is not clear.

What is clear, however, is that the complainant also sought to prefer the charge by reference to a series of further obligations imposed by the Mining and Quarrying Safety and Health Regulation 2001 (Qld). They are not mentioned in the charge itself. They are identified in the particulars as regs 6, 7, 8, 9, 100(1)(a), 100(1)(b), 105(1), 106, 108 and 109.

Even if this were not enough, the particulars of the breaches of the unidentified obligations under ss 36 and 38 allege⁸⁹ failure “to ensure that procedures were developed and enforced for the safe operation of Unit 40, namely conducting comprehensive and accurate mechanical inspection of all of the equipment operated by the [third respondent] at the mine”. There are a number of other similar allegations of “failing to ensure that procedures were developed and enforced for the safe operation of Unit 40”.⁹⁰

There is no obligation under ss 36 or 38 or the regulation cast in those terms. There are detailed obligations under the regulation for commissioning, operating, monitoring, service and maintenance of plant in use at the mine in regs 105, 106, 108, 109 and 110.

The respondents’ submissions included a formidable analysis of the many permutations and combinations that arise.

In choosing to plead the offence in the way I have summarised, the complainant eschewed the authorisation under s 47(1) of the Justices Act 1886 (Qld) that to charge the alleged offence “in the words of the Act … [or] regulation … creating the offence, or in similar words shall be sufficient in law”.

This provision may be traced in origin back to the Summary Jurisdiction Act 1879 (Imp),⁹¹ and is reflected for trials on indictment in s 564(3) of the Criminal Code. It is not a universal panacea. As was said in Ex parte Lovell; re Buckley:⁹²

“… it was held that the section does not mean what it appears to say. It means only that it is sufficient so to describe the offence itself, but leaves it still necessary to accompany the description with particulars of the acts relied on as constituting the offence.”⁹³

Some matters other than the text of the offence creating provision must be alleged. But if the text is not used, the question is raised whether the ingredients or the elements of the particular offence charged are sufficiently alleged.

The Industrial Court held that allegations in that form of the charge in this complaint do not expose the legal ingredients of the charge and that a complaint that does not do so is a nullity. It is necessary to identify the basis of those two steps in its reasoning with precision. The second step was elucidated by the proposition that “A failure to identify the act which comprises the offence, that is, the particular obligation which has been ignored and the measure that could have been taken, renders the complaint a nullity.”⁹⁴

In my view, those reasons need to be read in the light of the particular defects in question. It is not to be assumed that every failure to allege a necessary ingredient of a charge is beyond the reach of the power of amendment under s 48.

The present case presents an extreme example of a pleading that informs the reader of the substance of the matter but at the same time manages, almost artfully, to avoid setting out a clear statement of the relevant obligation or its contravention.

First, had the complainant intended to engage the obligation to ensure the risk to workers while at the operator’s mine is at an acceptable level by providing safe plant and by maintaining plant in a safe state he should have alleged that was the obligation and that the fourth respondent breached that obligation by identified acts or omissions.

Second, if the complainant intended to allege that the fourth respondent breached that obligation by failing to comply with a particular duty imposed under one of the regulations, he should have alleged the breach of the obligation was constituted by the breach of the regulation and the relevant acts or omissions constituting the breach.

These things the complainant did not do, either in the charge or in the particulars of the charge in the complaint.

Section 234(2) of the Act provides that “more than 1 contravention of a safety and health obligation under section 31 may be charged as a single charge if the acts or omissions giving rise to the claimed contravention happened within the same period and in relation to the same mine.” However, that provision does not authorise a single charge for different safety and health obligations.

On the other hand, the “story”,⁹⁵ in the form of the substance of the facts and acts or omissions in question is set out in the particulars of the complaint. Summarising, they allege that:

the fourth respondent did not assess Unit 40’s suitability for its use;

Unit 40 was routinely overloaded in operation by up to 55%;

the brakes on Unit 40 were defective or had an overloading brake defect;

the brake maintenance was generic in nature; and

the overloading brake defect was not detected in maintenance.

There is more detail alleged but it can be seen already that the fourth respondent is quite clearly apprised of the factual nature of the case of the complainant, except for identification of the particular obligation under s 38 that was contravened and the acts or omissions which were the breach of that obligation.

Where the obligation is that under s 38(1)(a), it would be necessary to allege what was not an acceptable level by one of the means identified in the paragraph or some other means, and to allege the respects in which the risk was not acceptable.

In order to assist in crystallising the questions that must be decided on the application, at the court’s request, the applicant submitted that if the application were successful it would elect to proceed against the fourth respondent upon the offence constituted by breach of the obligation under s 38(1)(a) to ensure that the risk to workers at the mine is at an acceptable level by allowing operation of Unit 40 when it was not safe plant. The applicant submitted it would abandon the other breaches of obligations raised by the complaint.

Second, the applicant submitted that it would seek to strike-out reference in the complaint to any other obligations.

Third, the applicant submitted that it would seek to amend the particulars to identify the manner in which the risk to workers was not an acceptable level and the measures the fourth respondent should have taken to ensure that Unit 40 was in a safe state.

It is necessary to turn to the width of the power to amend the complaint under s 48. I have previously mentioned the reach of the express power to amend a “defect in substance or form”. Quite apart from the implied power to strike-out any parts of the complaint to remove duplicity, the power to amend under s 48 is informed by three relevant principles. First, “it is a fundamental principle of the criminal law that an indictment must … disclose an offence that is punishable in law”.⁹⁶ Second, a relevant function of an indictment or complaint and summons is to confer jurisdiction upon the court.⁹⁷ Third, a complaint under the Justices Act 1886 (Qld) in any case of a simple offence or breach of duty must be made within one year from the time when the matter of complaint arose.⁹⁸

Section 48 owes its origins to the passage of Jervis’s Acts⁹⁹ in England in 1848 but there is an important difference. The difference lies in the duty and power to amend the complaint. Originally, sections modelled on Jervis’s Acts simply provided that no objection was to be taken to any alleged defect in the complaint in substance or in form or any variation between it and the evidence.¹⁰⁰

Another of the provisions designed to overcome technical objections to the form of a complaint provided that a description of the offence in the words of the statute would suffice. But the cases show that the section did not dispense with the usual necessity for specifying the time and place and matter in a way in which it had been hitherto specified.¹⁰¹

Although some other cases in the High Court circle the question,¹⁰² Broome v Chenoweth¹⁰³ seems to be the case in that court that squarely considers the scope of the power to amend under cognate legislation.¹⁰⁴ Dixon J said:

“An offence may be clearly indicated in an information, but, in its statement, there may be some slip or clumsiness, which, upon a strict analysis results in an ingredient in the offence being the subject of no proper averment. Logically it may be said in such a case that no offence is disclosed and yet it would seem to be a fit case for amendment, if justice is not to be defeated. By contrast, at the other extreme, an information may contain nothing which can identify the charge with any offence known to the law. Such a case may not be covered by the power of amendment. It is, perhaps, enough to say that I think that the earlier information in the present case, although defective, was not outside the power of amendment conferred by s 239(1).”¹⁰⁵

However, Broome did not decide that an information offending the requirement to identify the charge with an offence known to the law was outside the power of amendment. Dixon J’s remarks were obiter and they say only that the information may be outside the power of amendment.

In my view, analysis of the application of the power of amendment in the present case should proceed from what is reasonably disclosed as to the offence sought to be charged on the face of the complaint including the particulars.

Accordingly, it appears that the offence is alleged to have been committed on 27 July 2009 at the George Fisher Mine and was a failure to discharge the obligations imposed under s 38 of the Act (which includes the obligation under s 38(1)(a)) that caused grievous bodily harm to the driver who was a person employed to drive Unit 40. Further, the particulars disclose that the injury was caused by a failure of the brakes of Unit 40 due to an overloading brake defect that was a risk of injury to the driver thereof.

Having regard to those alleged facts, in my view, the complainant ought to have alleged that the fourth respondent failed to discharge the obligation to ensure that the risk to the driver as a worker was at an acceptable level by permitting only safe plant to be operated under s 38(1)(a). The particulars allege that Unit 40 was regularly operated overloaded, that the maintenance was generic in nature and that there was a purported brake inspection but no defect was identified.

The fourth respondent submitted that no amendment was permissible because the amendments proposed by the applicant would go farther than merely clarifying the charge. In particular, it submitted that an amendment made out of time to allege an essential element of the charge is only permissible if either the true nature of the offence is apparent on the face of the charge, or if the defendant is otherwise put on notice in writing of the true nature of the offence alleged before the expiration of the limitation period. It was also submitted that the notice of the true nature of the offence must be unambiguous. These formulations of the power of amendment were drawn from passages in Director of Public Prosecutions v Kypri.¹⁰⁶ There is some uncertainty about what would constitute notice in writing for the purpose of this test.¹⁰⁷

The fourth respondent submitted that an offence against s 38(1)(a), as proposed by the amendments suggested by the applicant, was not unambiguously notified and therefore no amendment is permissible.

In my view, it should be accepted that if the facts alleged in the particulars included the required essential elements of a properly pleaded charge, the complaint was one capable of amendment even though the limitation period may have expired after the particulars were provided.¹⁰⁸

Beyond that, if the test proposed applies in all cases, the present case illustrates the potential difficulties, because of the obvious multiplicity of the charges in the complaint as it stood. Is the proposed test one that must extend to any of the offences charged, considered separately, in such a context? What would be the purpose of such a test, if s 43 of the Justices Act 1886 (Qld) otherwise authorises a complainant to elect to proceed on one of the duplex charges?

In my view, the court should be slow to accept that a complaint is so defective as to be incapable of amendment, not because it fails to allege the required elements for an offence, but because it alleges too many other facts; for example, because it alleges the required elements for a multiplicity of offences.

Once that point is reached, in my view, the question in the present case is whether the absence from the complaint of an allegation that the fourth respondent failed to discharge its obligation to ensure the risk to the driver as a worker was at an acceptable level by permitting only safe plant to be operated or a similar allegation is fatal to the application to amend.

As presently formulated, par 8(a) of the particulars alleges that the fourth respondent failed “to discharge its obligations imposed by ss 36 and 38 of the Act by … failing to ensure [that] the risk to [the driver] was at an acceptable level in operating or allowing operation of Unit 40, as modified and used as an agitator truck, and that it was safe plant and fit for use for its intended purpose.”

Paragraph 3 of the particulars alleges that the driver “was a person employed and permitted to carry out work in the mine”, was “employed by” the third respondent and “was so employed, inter alia, to drive, from time to time … Unit 40”.

In my view, there is no substantial variance between what the particulars allege and what was required to be alleged to charge an offence under s 38(1)(a) of the Act.

The discussion so far justifies the conclusion, in my view, that the complaint was not so defective that it did not even engage the jurisdiction of the Industrial Magistrate or that it was beyond the reach of the power of amendment under s 48. No doubt, the surgery required was major. But there was enough in the complaint to repel the conclusion that it was foredoomed from the beginning.

The court asked the applicant to provide a draft of a form into which the complaint might be amended. A draft was provided. While it meets many of the objections discussed above, as this court will not be the court to allow or disallow any amendment, it is not appropriate to consider it in detail. There is one point that requires comment, however.

As previously stated, the charge in the complaint did not charge the alleged offence in the words of the Act creating the offence, or in similar words. Instead, the charge merely alleged that the fourth respondent failed to discharge the safety obligations imposed by ss 36 and 38 of the Act. The proposed amendment would delete reference to s 36 and confine itself to the obligation under s 38(1)(a), but does not allege the offence in the words of the Act. That function is left to the particulars.

In my view, that is not the appropriate or required form of criminal pleading under the Justices Act 1886 (Qld). The requirements for a complaint under that Act do not generally refer to a distinction between the pleading of a charge in a complaint and any particulars of the facts alleged.¹⁰⁹ In contrast, s 564(1) of the Criminal Code provides that an indictment must set forth the offence with which the accused person is charged in such manner and with such particulars as may be necessary to inform the accused person of the nature of the charge.

The purpose of particulars is not the same as the purpose of charging the alleged offence in the words of the Act. The charge itself must satisfy the requirement that it charges an offence known to law. And “it is preferable that a statutory offence be pleaded in the relevant terms of the statute by which it is created.”¹¹⁰ Even where the words of the section creating the offence are used, the absence of particulars may leave the accused person without notice of the facts to prove the charge. In R v Trifyllis,¹¹¹ Chesterman J said:

“The function of particulars is to enable an accused to know the nature of the charge which he is called on to meet. See R v Juraszko [1967] Qd R 128 at 135 per Stable J (with whom on this point Gibbs J agreed) … The same conclusion as to the function of particulars was arrived at by Hunt A-JA in R v Saffron (1989) 17 NSWLR 395 at 445-9. The point was discussed at a little more length than in Juraszko but, in essence, it was thought that the function of particulars is the same in criminal as in civil cases. Hunt AJA said:

‘In a civil case, particulars once given cannot circumscribe or modify the cause of action upon which the plaintiff sues ... The function of particulars in such a case is simply to relieve the other party of the need to investigate the issues of fact not identified by the particulars, or to show what will be put forward as constituting the case which has been pleaded ... Where a party seeks to lead evidence in support of his pleaded case which is outside the particulars which have been supplied in support of that case, it is for the trial judge to consider whether such evidence unfairly amounts to a case of which the other party has had insufficient warning ... It is a matter within the discretion of the trial judge whether to permit the evidence ... or to hold the party whose particulars were deficient to the issues of fact to be investigated as limited by those particulars ... The exercise of that discretion must necessarily depend upon many things, including the amount of warning which the other party has had that such evidence was to be led. The relief which is granted to a party at the trial must in the end be founded on the pleadings and not upon any particulars which have been given of the matters alleged in those pleadings...

The appellant argues that the principles relating to particulars in criminal cases are different to those applicable in civil cases. No authority was produced for that submission. Nor is it easy to see why that should be so.

Certainly, an accused’s entitlement to particulars in a criminal case is the same as a defendant's entitlement in a civil case. An accused is not able to plead to the charge unless he knows the precise case which is the basis for the charge preferred against him...

Where the relevant particulars are not stated in the indictment (because the necessity to do so has been dispensed with by statute), an accused is entitled to have identified the specific transaction upon which the Crown relies and to be appraised not only of the legal nature of the offence with which he is charged but also the particular act, matter or thing alleged as the foundation of the charge...’”¹¹²

In my view, although the defect may not be fatal,¹¹³ a pleading in the proposed amended form would still suffer from the defect that the charge of the offence in the complaint would not set out the nature of the charge so that it charges an offence known to law. The offence itself is still to be found in the particulars. There are differences between criminal and civil pleading, but in the context of civil pleading it is not sufficient to allege the material facts in the particulars.¹¹⁴ The use of particulars in the criminal context described above is not different and is consistent with the practice that developed in the Magistrates’ Court of Queensland in proceedings under the Justices Act 1886 (Qld), described by Stable J in 1967 as follows:

“In the Magistrates Court it is usual to get particulars, for without them the accused person may have only a slight idea of what is being alleged.”¹¹⁵

Accordingly, in my view, the form of amendment proffered by the applicant is not one that should be accepted as possibly answering the range of defects or non-compliances contained in the existing complaint.

Nevertheless, for the reasons previously set out, in my view, the complaints were capable of amendment in a way that would comply with the requirements for a properly pleaded charge of an offence against s 38(1)(a) of the Act.

It is unnecessary to add to the length of these reasons by separately applying the same process of reasoning to the complaints made by the applicant against the second respondent and the third respondent. Mutatis mutandis, that process leads to the same result in each of the applications.

In my view the Industrial Court’s conclusion that each complaint was a nullity and incapable of amendment was made in error.

It follows that in each case, the Industrial Magistrate should have:

required the complainant to elect which of the safety and health obligations under ss 31, 36 or 38 he would prosecute so as to comply with s 43; and

struck-out parts of the complaint so as to charge an offence by contravention of the relevant safety and health obligation in a non-duplex way; and

required the complainant to charge all the relevant facts by way of elements or ingredients of the charge in the paragraph of the charge so as to charge an offence known to law; and

permitted the complainant to particularise the matters necessary to apprise the fourth respondent of the facts in proof of the charge; and

otherwise struck-out all surplusage from the complaint.

This the Industrial Magistrate did not do. Instead, his Honour erroneously decided that the parts of the complaint that charged the duplex offences could not be struck out and that as a matter of discretion no amendment should be permitted. That was a constructive failure to exercise the Industrial Magistrate’s jurisdiction.

In affirming the Industrial Magistrate’s decision and dismissing the appeal in each case on the ground that the complaint was a nullity, the Industrial Court fell into jurisdictional error.

Because this application is one brought to this court for judicial review of the order made by the first respondent dismissing the appeal from the decision of the Industrial Magistrate, this court does not have power to set aside the Industrial Magistrate’s decision.¹¹⁶

There should be an order in the nature of certiorari quashing the Industrial Court’s orders in each case. In particular, I would make the orders that follow:

1.The questions posed by the case stated should be answered as follows:

Was it a jurisdictional error for the Industrial Court to find that each complaint was a nullity or incapable of amendment under s 48 of the Justices Act 1886 (Qld)?

Answer: Yes

If “yes” to (a), and in the absence of any discretionary reasons for declining the orders, should orders in the nature of certiorari be made quashing the orders of the Industrial Court and directing that court to proceed according to law?

Answer: Yes

2.Set aside the orders of the first respondent dismissing the applicant’s appeal from the Industrial Magistrate’s decision in each proceeding before the Industrial Court.

3.Remit the matter to the first respondent for hearing and determination according to law.

4.Order that the parties have leave to make submissions as to the appropriate orders as to costs in accordance with Practice Direction Number 3 of 2013 paras 52(3) and (4).

Footnotes

1. Bell v Hendry & Ors [2014] ICQ 18. ↩

2. Bell v MIM Ltd & Ors [2012] QMC 28, [94]. ↩

3. Bell v MIM Ltd & Ors [2012] QMC 28, [101]. ↩

4. Bell v MIM Ltd & Ors [2012] QMC 28, [111] ↩

5. Bell v Hendry & Ors [2014] ICQ 18, [56]. ↩

6. Bell v Hendry & Ors [2014] ICQ 18, [58]. ↩

7. Bell v Hendry & Ors [2014] ICQ 18, [58]. ↩

8. Bell v Hendry & Ors [2014] ICQ 18, [58]. ↩

9. Mining and Quarrying Safety and Health Act 1999 (Qld), ss 39(1)(a) and 40 respectively. ↩

10. See Industrial Relations Act 1999 (Qld), ss 289 and 292-293. ↩

11. See Industrial Relations Act 1999 (Qld), ss 290-291. ↩

12. Industrial Relations Act 1999 (Qld), s 683(2). ↩