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[2022] ICQ 34
General information, not legal advice.
Industrial Court of Queensland
2022-12-23
Davis J
Original judgment source is linked above.
(a) what further orders (if any) ought to be made consequent upon dismissal of the application for an extension of time; > > (b) costs against the applicant.
[2] The second respondent in each application.
[4] Coal Mining Safety and Health Act 1999, s 33. Division 3 of Part 3 of the CMSH Act defines the safety obligations which are imposed.
[6] There is evidence (affidavit of Anne Bernadine McIntyre) that Carborough Downs Coal Management Pty Ltd has changed its name to Fitzroy Coal Management Pty Ltd, but no party has asked for any formal correction, so I will continue to refer to "Carborough".
[8] Petroleum and Gas (Production and Safety) Act 2004, for example.
[10] Which provides that prosecutions under the CMSH Act are taken in the Industrial Magistrates Court.
[11] The complaints relating to the Best incident were each accompanied by a summons.
[14] Gore v Carborough Downs Coal Management Pty Ltd & Ors [2022] ICQ 031 at [26]-[27]; Mr Nicholson is now the Work Health and Safety Prosecutor.
[16] In Queensland, the Supreme Court of Queensland.
[17] Kirk v Industrial Court (NSW) (2010) 239 CLR 531.
[18] Part 5 and the Uniform Civil Procedure Rules 1999 prescribe the procedure.
[23] Chibanda v Chief Executive, Queensland Health & Anor [2018] QSC 128, Lambert v Dalziell & Ors [1995] QSC 48, Hoffmann v The Queensland Local Government Superannuation Board [1994] 1 Qd R 369 at 370.
[26] The Commonwealth equivalent of Part 3 of the Judicial Review Act 1991.
[27] Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54 at 65 and Smethurst v Commissioner of Police (Cth) [2020] HCA 14; (2020) 272 CLR 177 at [65].
[28] Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23 at 30, 60, 61 and 72 and Walton v Gardiner (1993) 177 CLR 378 at 395-396.
[29] Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23 at 30, 60-61 and 72.
[31] Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509.
[32] See generally, Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 403 ALR 604.
[33] Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 403 ALR 604 at [18].
[35] See generally, Walsh v Doherty [1907] HCA 51; (1907) 5 CLR 196 at 199, Plenty v Dillon (1991) 171 CLR 635 at 641.
[36] Acts Interpretation Act 1954, s 36, Schedule 1, definition of "magistrate", Magistrates Act 1991, s 6(8).
[38] Aronson, Groves and Weeks, Judicial Review of Administrative Action and Government Lability, sixth edition, Thomson Reuters 2017, and, see generally, Re Wilcox; Ex parte Venture Industries Pty Ltd [1996] FCA 1497; (1996) 66 FCR 511, 533 at B-F.
[42] When the strike-out applications were mentioned.
[45] Criminal Code, s 1, definition of "circumstance of aggravation".
[48] Particulars paragraphs 11, 12 and 13.
[55] Which is identical to paragraph 25(b) in the particulars against Mr Futeran.
[56] Nominating the wrong court in the summons.
[59] Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378 at 398 and 423.
[65] Subsections 545(2)(b) and (3) are not relevant here.
[66] Carborough Downs Coal Management Pty Ltd.
Nicholson
Carborough Downs Coal Management Pty Ltd & Ors [2022] ICQ 34
Bunning v Cross [1978] HCA 22; (1978) 141 CLR 54, followed
Chibanda v Chief Executive, Queensland Health & Anor [2018] QSC 128, cited
Gore v Carborough Downs Coal Management Pty Ltd & Ors [2022] ICQ 031, related
Jago v District Court of New South Wales [1989] HCA 46; (1989) 168 CLR 23, followed
Lambert v Dalziell & Ors [1995] QSC 48, cited
R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13, cited
Re Wilcox; Ex parte Venture Industries Pty Ltd [1996] FCA 1497; (1996) 66 FCR 511, cited
Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378, followed
Smethurst v Commissioner of Police (Cth) [2020] HCA 14; (2020) 272 CLR 177, followed
Tu'uta Katoa v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] HCA 28; (2022) 403 ALR 604, followed
Walsh v Doherty [1907] HCA 51; (1907) 5 CLR 196, cited
Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509, cited
"l. Although the section does not, in terms, place any onus of proof upon an applicant for extension an application has to be made. Special circumstances need not be shown but the court will not grant the application unless positively satisfied that it is proper so to do. The 'prescribed period' of twenty-eight days is not to be ignored (Ralkon Agricultural Co. Pty Ltd v Aboriginal Development Commission [1982] FCA 153; (1982) 43 ALR 535 at 550). Indeed, it is the prima facie rule that proceedings commenced outside that period will not be entertained (Lucic v Nolan [1982] FCA 217; (1982) 45 ALR 411 at 416). It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show an 'acceptable explanation of the delay' and that it is 'fair and equitable in the circumstances' to extend time (Duff at 485; Chapman v Reilly unreported (Federal Court of Australia, Neaves J, 9 December 1983) at 7).
It is in relation to the former category of cases, that is, those 'which affect only the immediate parties' that the approach adopted by Bray CJ in Lovatt v Le Gall [1975] SASC 2385; (1975) 10 SASR 479 at 485 in respect of private litigation but adopted in this context in both Doyle at 287 and Duff at 485, is apposite namely:
(1991) 171 CLR 635
(1907) 5 CLR 196
(1993) 177 CLR 378
(1983) 48 ALR 517
(1975) 10 SASR 479
(1978) 141 CLR 54
(1984) 3 FCR 344
(1980) 144 CLR 13
(1991) 172 CLR 378
(2022) 403 ALR 604
(1982) 45 ALR 411
(1982) 42 ALR 283
(1989) 168 CLR 23
(2010) 239 CLR 531
(1996) 66 FCR 511
(2020) 272 CLR 177
(1992) 174 CLR 509
(1982) 43 ALR 535
(1984) 1 FCR 287
(1983) 47 ALR 528