Nicholson v Thomas Borthwick & Sons

Justices Act 1886 (Qld), ss 19, 42, 53, 54, 54 (1A), 54(2), 56, 56 (1)(b), 83A, 222, 222(1), 223(1), 225.

Justices Act Amendment Act 1973 (Qld) ss 3, 3(3).

Justice and Other Legislation (Miscellaneous Provisions) Act 1997 (Qld), ss 3, 40, 53, 53(3)-(5), 53A, 54(2).

Justice and Other Legislation (Miscellaneous Provisions) Act (No. 2) 1997.

Work Health and Safety Act 2011, ss 19(1), 32.

Alleasch v Maunz [2000] HCA 40; (2000) 203 CLR 172.

Cuttler v Browne & Anor [2010] QCA 346; (2010) 201 IR 141.

Gore v Thomas Borthwick & Sons (Australia) Pty Ltd [2024] QMC.

Palmanova Pty Ltd v The Commonwealth [2025] HCA 35; (2025) 99 ALJR 1362.

Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355.

R v Hughes (1879) 4 QBD 614.

Sheridan v Maurvan Pty Ltd (unreported, District Court of Queensland, Rockhampton, 7 November 2003).

Slatcher v Globex Shipping S.A. [2019] QCA 167; [2019] 2 Qd R 134.

Office of Work Health and Safety Prosecutor for the Appellant.

[1] Simon Nicholson, the Work Health and Safety Prosecutor (the appellant) appeals under s 222 of the Justices Act 1886 (the JA) the order of a Magistrate striking out a complaint made against Thomas Borthwick & Sons (Australia) Pty Ltd (the respondent) under the Work Health and Safety Act 2011 (the WHSA) for want of jurisdiction.

[2] On 15 June 2023, the appellant made a complaint against the respondent alleging a failure by it to comply with a health and safety duty imposed by s 19(1) of the WHSA, with the consequence that an individual was exposed to a risk of death or serious injury or illness contrary to s 32 of the WHSA. The complaint was made in writing before a justice of the peace in accordance with s 42 of the JA (the complaint). The justice issued a summons under s 53 of the JA (the summons).

[3] Section 54(2) of the JA provides that every summons and, where the summons has been issued on a complaint in writing, such complaint, shall, before the hearing is proceeded with, be filed with the Clerk of the Court within three days of the summons being issued.

[4] Consequently, the complaint and summons should have been filed on 18 June 2023. The 18th of June was a Sunday, so the complaint and the summons had to be filed on Monday 19 June 2023: see s 38(2) of the Acts Interpretation Act 1954 (Qld) (the AIAQ).

[5] The appellant sent the complaint and summons by express post to the Magistrates Court at Mackay. The complainant and summons arrived and were filed on 20 June 2023.

[6] On 2 February 2024, the respondent applied under s 83A of the JA for a direction that the complaint be struck out because of the breach of s 54(2) of the JA.

[7] The application was heard on 26 March 2024. The Magistrate published their reasons for decision on 28 June 2024 (see Gore v Thomas Borthwick & Sons (Australia) Pty Ltd [2024] QMC) and ordered that the complaint be struck out.

[8] In relation to the question of how s 54(2) of the JA should be construed the Magistrate held at p. 10 [57] and [59] that:

"[57] In my view, the provision should be given its ordinary meaning. That is, a complaint and summons must be filed within three days of the complaint being made and a summons being issued with the relevant clerk of the court. It is the filed document which engages the jurisdiction of the court.

[59] In my view, the proper construction is that the requirement to file the complaint and summons as prescribed and within the time frame of three days provided for filing is a mandatory. If it is not complied with, the Court's jurisdiction is not engaged."

[9] The Magistrate went on to apply that construction and find that the complaint and the summons issued on 15 June 2023, should have been filed by 19 June 2023 but was filed in the Mackay Magistrates Court on 20 June 2023 (see [60] to [61]) and held at [62] that:

"[62] Therefore, the complaint and summons was not filed in accordance with s 54(2) of the JA. Accordingly, the jurisdiction of the Court is not engaged."

"1. The decision of the learned Magistrate was given per incuriam.

2. The learned Magistrate erred in holding that it was a condition of the Court's jurisdiction that a complaint be filed within 3 days of the summons having been issued.

3. The learned Magistrate erred in holding that she could not consider extrinsic material when interpreting s 54(2) of the Justices Act 1886 (Qld)."

[11] Section 222(1) of the JA provides:

"If a person feels aggrieved as complainant, defendant or otherwise by an order made by justices or a justice in a summary way on a complaint for an offence or breach of duty, the person may appeal within 1 month after the date of the order to a District Court judge."

[12] Section 223 of the Act relevantly provides that:

"(1) An appeal under section 222 is by way of rehearing on the evidence (original evidence) given in the proceeding before the justices."

[13] In Alleasch v Maunz [2000] HCA 40; (2000) 203 CLR 172, Gaudron, McHugh, Gummow and Hayne JJ, at p.180 [23], when defining the difference between an appeal by way of rehearing and a hearing de novo, said:

"... the critical difference between an appeal by way of rehearing and a hearing de novo is that, in the former case, the powers of the appellate court are exercisable only where the appellant can demonstrate that, having regard to all the evidence now before the appellate court, the order that is the subject of the appeal is the result of some legal, factual or discretionary error, whereas, in the latter case, those powers may be exercised regardless of error." (see also Fox v Percy [2003] HCA 22; (2003) 214 CLR 118).

"(1) On the hearing of an appeal, the judge may confirm, set aside or vary the appealed order or make any other order in the matter the judge considers just.

(2) If the judge sets aside an order, the judge may send the proceeding back to whoever made the order or to any Magistrates Court with directions of any kind for the further conduct of the proceedings including, for example, directions for rehearing or reconsideration."

[15] At the hearing of the appeal, it was accepted by both parties that the Magistrate was not referred to and did not apply the decision of Judge Britton SC in Sheridan v Maurvan Pty Ltd (unreported, District Court of Queensland, Rockhampton, 7 November 2003). In that case, Judge Britton SC held that a breach of s 54(2) of the JA:

"...should be treated as an irregularity only and it did not result in the complaint and summons being invalid and did not result in the Magistrate Court having no jurisdiction to hear the complaint."

[16] Notwithstanding that, the parties agreed that the issue for determination is whether s 54(2) of the JA should be construed to mean that the conditions prescribed therein are required to give the Magistrates Court jurisdiction.

(a) "... as a matter of principle rather than authority, s 54(2) does not condition the jurisdiction of the Magistrates Court to hear and determine only those complaints which are filed within three days of a summons being issued. Section 54(2) does not specify any consequence for noncompliance. Having regard to the text, context and purpose of the provision, there is no basis to conclude that the consequence for noncompliance is that the Magistrates Court is deprived of jurisdiction."

(b) "... the learned Magistrate erred in holding s 14B of the Acts Interpretation Act 1954 precluded her from having regard to extrinsic materials. Section 14B is facultative, not preclusive. Contrary to her Honour's view, she was permitted by the common law to consider extrinsic materials independently of s 14B."

[18] The respondent contends that "the clear meaning of the provision is discernible from the statutory text, and that its purpose is to ensure that the court is informed of - and can therefore regulate - the conduct of proceeding commenced in its criminal jurisdiction by way of complaint and summons." It submitted that s 54 provides the "infrastructure" for issuing and serving a complaint and summons so that a defendant is brought before a court. Without the provision the Act would be silent on when a Magistrate's powers to make orders in relation to a complaint were enlivened. The provision imposes a condition precedent on a Magistrate hearing a complaint, thereby engaging the court's powers, and the consequence of non-compliance is the failure to engage the court's jurisdiction to hear a matter. This also explains why there is no power to extend the time allowed. In the context of a condition precedent the word "shall" takes on a mandatory meaning. The imposition of the three-day period is a condition which allows the court to manage the proceedings, including mediation, but is not confined to matters engaging the mediation powers. It is submitted that s 14 of the AIAQ is not engaged to allow reference to extrinsic materials because the meaning of the section is clear, and reference to such materials is allowed only to identify the "mischief" the provision is directed at.

Form of summons and filing of complaint and summons

(1) Every summons shall be directed to the defendant and shall require the defendant to appear at a certain time and place before the Magistrates Court, or, as the case may require, before justices taking an examination of witnesses in relation to an indictable offence, to answer the complaint and to be further dealt with according to law.

(1A) Every summons shall be served in accordance with this Act, and, where the summons has been issued on a complaint in writing, other than an entry of a charge on a bench charge sheet, a copy of such complaint shall be served with and in the same manner as the summons.

(2) Every summons and, where the summons has been issued on a complaint in writing, other than an entry of a charge on a bench charge sheet, such complaint, shall, before the hearing is proceeded with, be filed, within 3 days of the summons being issued, with the clerk of the court at the place at which the defendant is required by the summons to appear, to be by such clerk kept and preserved.

(3) Where a summons has not been served upon a defendant prior to the time at which the defendant is thereunder required to appear before a Magistrates Court, or, as the case may be, before justices taking an examination of witnesses in relation to an indictable offence, the clerk of the court at the place where the defendant is required by the summons to appear, being a justice, or other justice at such place authorised by such clerk, whether or not such clerk is a justice, may, from time to time and before, at or after the time appointed by the summons for the appearance of the defendant in accordance with the summons, extend the time so appointed.

(4) Every such extension shall be made under the hand of the justice making the same, who shall alter the time appointed in the summons and shall endorse and sign a memorandum in the margin of the summons, as nearly opposite such alteration as is practicable, stating that the time appointed has been extended and the date to which such time has been extended.

_(5) If the complainant gives the clerk of the court written notice that the dispute has been resolved by mediation - _

(a)the filing fee paid on filing of the summons must be refunded; and

(b)the summons may not be served, and no other action may be taken on the summons. (underlining added)

[20] The rules for construing a section of a statute such as s 54(2) of the JA are well settled. Recently, in Palmanova Pty Ltd v The Commonwealth [2025] HCA 35; (2025) 99 ALJR 1362, Gageler CJ and Gordon, Jagot and Beech-Jones JJ said at p. 1365 [4]-[5]:

"[4] Statutory construction is the process of attributing meaning to statutory text. The construction of a statutory provision begins and ends with the statutory text understood in context and in light of the statutory purpose - being what the provision is designed to achieve in fact - insofar as that purpose is discernible from the statutory text and context. In the construction of a provision of a Commonwealth statute, the meaning that would best achieve the statutory purpose so discerned is to be preferred to each alternative meaning.

[5] That being the nature of the task to which the process is directed, the "modern approach" to statutory construction, as was explained nearly 30 years ago in CIC Insurance Ltd v Bankstown Football Club Ltd in a statement repeated and endorsed many times since: "(a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses 'context' in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means ... , one may discern the statute was intended to remedy". Use of extrinsic material in the construction of a provision of a Commonwealth statute is guided but not governed by a non-exhaustive list of categories of material statutorily recognised to have potential to illuminate the statutory context." (Footnotes omitted)

[21] The discussion of the use of extrinsic material in the construction of a provision of a Commonwealth statute in paragraph 5 of Palmanova referred to section 15AB(2) of the Acts Interpretation Act 1901(Cth) (the AIAC). In Queensland, s 14B of the AIAQ provides for the use of extrinsic material in interpretation of a provision of an Act. It relevantly provides:

_"(1) Subject to subsection (2), in the interpretation of a provision of an Act, consideration may be given to extrinsic material capable of assisting in the interpretation - _

(a) if the provision is ambiguous or obscure - to provide an interpretation of it; or

(b) if the ordinary meaning of the provision leads to a result that is manifestly absurd or is unreasonable - to provide an interpretation that avoids such a result; or

(c) in any other case - to confirm the interpretation conveyed by the ordinary meaning of the provision.

_(2) In determining whether consideration should be given to extrinsic material, and in determining the weight to be given to extrinsic material, regard is to be had to - _

(a) the desirability of a provision being interpreted as having its ordinary meaning; and

(b) the undesirability of prolonging proceedings without compensating advantage; and

_(3) In this section - extrinsic material means relevant material not forming part of the Act concerned, including, for example - _

(e) an explanatory note or memorandum relating to the Bill that contained the provision, or any other relevant document, that was laid before, or given to the members of, the Legislative Assembly by the member bringing in the Bill before the provision was enacted; and

(f) the speech made to the Legislative Assembly by the member when introducing the Bill; and Note - See section 53 in relation to Bills introduced before the commencement of that section."

[22] Section 14B of the AIAQ, which is in similar terms to s 15AB(2) of the AIAC, is a facultative provision that does not limit when a court can have regard to extrinsic materials. The court must construe the statutory text having regard to its context when determining what the provision is designed to achieve or its purpose. Context may be revealed by extrinsic material and may be referred to in order to fix the meaning of the statutory text. In Palmanova, the majority said at p. 1365 [6]:

"Though the construction of s 14(1) of the Act adopted by the majority of the Full Court was correct, the majority saw the statutory text as so "clear" as to make material extrinsic to the Act "unnecessary to consider". Understanding context, including so much of the context as might be revealed by extrinsic material, "has utility if, and in so far as, it assists in fixing the meaning of the statutory text". Focus on the statutory text is not to the exclusion of extrinsic material that has the potential to assist in fixing its meaning."

[23] Further, Edelman J, who agreed with the joint reasons, said of the relevance of extrinsic materials at p. 1375-1376 [77] - [79]:

"[77] The cautious approach to extrinsic materials by the majority of the Full Court was probably informed by the terms of s 15AB(1) of the Acts Interpretation Act 1901 (Cth), which, superficially, appear to be in tension with the modern approach to statutory interpretation, reflecting ordinary language use, by which text, context, and purpose all inform each other and together shape the meaning of the provision.

[78] In theory, that tension arises in any case in which s 15AB(1) is seen as requiring a stepped, iterative approach to interpretation, by which the literal or semantic meaning of words in their internal context (described in s 15AB(1) as an "ordinary meaning") is considered before considering whether that "ordinary meaning" is altered by extrinsic material. In practice, however, even with reliance only upon s 15AB(1) without reference to the common law position, there should rarely, if ever, be a need for such a stepped approach since: (i) s 15AB(1)(b)(i) reflects the modern approach to statutory interpretation by which all context is relevant in the first instance to determine the meaning of a provision whenever the provision is ambiguous or obscure; and (ii) ambiguity includes latent ambiguity, the existence of which cannot be eliminated without reference to extrinsic materials.

[79] In any event, s 15AB of the Acts Interpretation Act was introduced in 1984 as a facultative provision, by which "Parliament should give a lead", partly because the common law rules of interpretation at that time were "neither clear nor convincing". The section provided a baseline of circumstances in which, in cases considered to be appropriate, reference could be made to extrinsic materials, including the non-exhaustive list in s 15AB (2). But the section was not limited to those circumstances. Reference to extrinsic materials was "to be left to the discretion and the judgment of the courts". That discretion and judgment now generally extends beyond the stepped, iterative process of s 15AB (1) to apply the modern approach to statutory interpretation, as applied in this case by the joint reasons." (Footnotes omitted)

[24] The clear legislative intent discerned from the text of s 54 of the JA is that where a justice issues a summons then every summons (and complaint if the summons is issued on complaint) shall:

(i) Be directed to the defendant and require the defendant to appear before the Magistrates Court, to answer the complaint and to be further dealt with according to law: see s 54 (1).

(ii) Be served on the defendant in accordance with the JA: see s 54 (1A).

(iii) Before the hearing is proceeded with, be filed, within three days of the summons being issued, with the Clerk of the Court: see s 54(2).

[25] What is not clear, in the absence of any express provision in the JA, is what the legislature intended should be the result of non-compliance with the temporal requirement in s 54(2) that the summons (and complaint) be filed within three days of the summons being issued.

[26] In the present case the summons and complaint were filed with the Clerk of the Court but not within three days of the summons being issued. Does that mean that the Magistrate cannot proceed to hear the matter? The issue raised by the question is whether that temporal requirement in s 54(2) of the JA is mandatory or directory. If it is mandatory, then non-compliance will mean there is no power to proceed to hear the matter. If the requirement is directory, then non-compliance is treated as an irregularity that does not affect the jurisdiction of the Magistrate to proceed to hearing. The test is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid: see Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 per McHugh, Gummow, Kirby and Hayne JJ at [91]-[93]. In Project Blue Sky, the majority said at [92]:

"Traditionally, the courts have distinguished between acts done in breach of an essential preliminary to the exercise of a statutory power or authority and acts done in breach of a procedural condition for the exercise of a statutory power or authority. Cases falling within the first category are regarded as going to the jurisdiction of the person or body exercising the power or authority. Compliance with the condition is regarded as mandatory, and failure to comply with the condition will result in the invalidity of an act done in breach of the condition. Cases falling within the second category are traditionally classified as directory rather than mandatory. In Pearse v Morrice, Taunton J said, "a clause is directory where the provisions contain mere matter of direction and nothing more". In R v Loxdale, Lord Mansfield CJ said "[t]here is a known distinction between circumstances which are of the essence of a thing required to be done by an Act of Parliament, and clauses merely directory". As a result, if the statutory condition is regarded as directory, an act done in breach of it does not result in invalidity." (footnotes omitted)

[27] Applying the approach to statutory construction prescribed by the High Court in Palmanova and Project Blue Sky, I construe the temporal requirement in s 54(2) of the JA to be directory and not mandatory, so that the Magistrate's jurisdiction to proceed to hear the matter is not conditional upon filing the complaint and summons within three days of the summons being issued for the following reasons:

[28] First, s 54 of the JA is not concerned with jurisdiction. The JA is "an Act to consolidate law about the powers and jurisdiction of justices and magistrates and to provide for proceedings before, and appeals from justices and magistrates, and other matters". The provisions conferring jurisdiction and power should be construed broadly. In Owner of the Ship "Shin Kobe Maru" v Empire Shipping Company Inc (1994) 181 CLR 404, the High Court said at p. 420-421:

"It is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words."

[29] The jurisdiction of the Magistrates Court to hear and determine a matter under s 19 of the JA was engaged by the complaint in writing: see s 42 of the JA. The complaint having been made; the justice was empowered to issue the summons under s 53 of the JA. The proceedings had been validly commenced and a summons properly issued. Section 54(2) is concerned with the procedure "before the hearing is proceeded with". There is a difference between the jurisdiction engaged by making a complaint in writing and the issuing of a summons on one hand and the process of serving and filing the complaint and summons directed to the defendant on the other. In R v Hughes (1879) 4 QBD 614 where the issue was whether a conviction for perjury before a Magistrate should be quashed because there was no information on oath for the warrant which brought the defendant before the court as required under the statute, Hawkins J said at 625:

"The information, which is in the nature of an indictment, of necessity precedes the process; and it is only after the information is laid, that the question as to the particular form and nature of the process can properly arise. Process is not essential to the jurisdiction of the justices to hear and adjudicate. It is but the proceeding adopted to compel the appearance of the accused to answer the information already duly laid, without which no hearing in the nature of a trial could take place (unless under special statutory enactment)." (See also Nietz v Evans (1993) 19 MVR 55, per Hayne J at p. 6-7 and Parisienne Basket Shoes Pty Ltd v Whyte [1938] HCA 7; (1938) 59 CLR 369.)

[30] Secondly, s 54 of the JA is a procedural provision designed to achieve procedural fairness: see Slatcher v Globex Shipping S.A. [2019] QCA 167; [2019] 2 Qd R 134 at p. 151 [36] - [38]. The express limitation of proceedings prescribed by s 52 of the Act was not engaged by the appellant's failure to file within three days of the summons issuing. Section 54 of the JA is in Part 4 General Procedure, Division 5 Summonses, and is headed 'Form of summons and filing of complaint and summons'. Section 54 of the JA is not directed at limiting the court's jurisdiction, rather its purpose is to ensure that every summons, and if the summons issues on a complaint in writing, every complaint, is brought to the notice of the defendant so that the defendant is able to respond to the complaint, and further to ensure that the summons and complaint is filed in the court so that the court is aware of it, can give directions about the conduct of the hearing and can hear it. Section 54(2) is designed to engage the court so that procedural fairness and natural justice is afforded to a defendant.

[31] There is no provision prescribing the consequences of a failure to comply with the temporal requirement in s 54(2). Section 54(2) has not been considered by the Court of Appeal. However, in Slatcher, the Court of Appeal dealt with the situation where the defendant had notice of the proceedings but had not been served in the way prescribed in ss 54(1A) and 56 of the JA. Section 54(1A) requires that every summons and complaint be served "in accordance with this Act" and s 56(1)(b) prescribed the manner of service. The summons and complaint had not been served in that way, and the issue was whether the Magistrate's jurisdiction to examine witnesses in relation to an indictable offence is made conditional upon service in that particular way. Fraser JA, with whom Philippides JA and Douglas J agreed, said at p. 155 [46]:

"Focussing upon the particular provisions of the Justices Act, s 54(1A) requires every summons to be served "in accordance with this Act", s 56(1) does not expressly require a summons upon a complaint of an indictable offence by a corporation to be "properly served" in one of the ways described in s 56(1)(b), and no provision expressly makes proper service, or even service in accordance with the Act, a condition of the power of justices to conduct an examination of witnesses. In this context, and taking into account that the evident purpose of those provisions is to ensure procedural fairness and the statutory context (particularly the strong contrast within the scheme of the Justices Act discussed in [34] of these reasons), I would construe that Act as empowering justices to conduct an examination of witnesses upon a complaint of an indictable offence by a corporate defendant both where the complaint and summons has been served in a way described in s 56(1)(b) and where (as in this case) procedural fairness has been afforded to the defendant by virtue of it having acquired knowledge of the content of the complaint and summons in some other way."

[32] Section 54(2) of the JA provides that every summons and complaint, shall, before the hearing is proceeded with, be filed, within three days of the summons being issued, with the Clerk of the Court. The use of the word shall does not engage s 32CA(2) of the AIAQ because it is not used in relation to a power. The use of the imperative language in connection with the temporal requirement does not condition the court's jurisdiction to proceed to a hearing because it is a procedural step designed to ensure the court is given notice, engages the court process and procedure and allows for the matter to either be referred to mediation or proceed to a hearing. Its purpose is to achieve procedural fairness by setting in motion the process by which the matter can be managed by the court to a disposition. It is necessary to assess the importance of the requirement in the context of the purpose of the provision, and ascertain whether failure to adhere to that requirement caused prejudice to the defendant. It is filing the complaint and summons with the court that is fundamentally important. The reason for the temporal requirement is explained by the context of its enactment in 1997 (explained below). The requirement is directed at the early identification of matters to be referred to mediation. The temporal requirement that the complaint and summons be filed within three days of the summons being issued is a peripheral matter: see Cuttler v Browne & Anor [2010] QCA 346; (2010) 201 IR 141 at [41] and [42]. It is also unlikely, given the text and purpose of the section alone, that the legislature intended that the court would not have jurisdiction to proceed to hear a matter in circumstances where the jurisdiction of the court is engaged, the defendant has notice of the hearing, can participate in the hearing and there is no denial of natural justice. Further, a delay of more than three days before filing may or may not materially prejudice a defendant. The respondent in this case could not identify any prejudice suffered as a result of the delay of one day. In any event, if there is prejudice then the defendant may bring an application under s 83A of the JA for the Magistrate to exercise their jurisdiction to give directions as to the conduct of the proceeding to relieve any prejudice and ensure the proceedings are fair. The powers include those to order a stay, grant an adjournment or make a direction as to the future conduct of the proceeding. The ability of the court to exercise its jurisdiction to regulate its process explains why the legislature did not consider it necessary to provide a power to extend time. The legislative intent could not have been that the court should strike out the complaint only to force the complainant to make and file a new one (for those cases within the limitation period). That would be an absurd construction.

[33] Thirdly, the context of the provision supports a construction of the temporal requirement as directory and not mandatory. The legislative intent and purpose of the requirement that the complaint and summons be filed with the Clerk of the Court within three days of the summons being issued is made clear when reference is had to the relevant amendments to the JA and the legislature's accompanying explanation.

[34] The first iteration of ss 53 and 54 of the JA in 1886, as assented to, read:

"53. When a complaint is made before a justice that any person is guilty of or is suspected of having committed any indictable offence, simple offence, or breach of duty, within the jurisdiction of such justice, then such justice may issue his summons.

54. The summons shall be directed to the defendant and shall state shortly the matter of the complaint and require him to appear at a certain time and place before such justices as shall then be there, to answer the complaint and to be further dealt with according to law."

[35] Section 54 remained unchanged from the time of its enactment until 1964. In 1964, s 54 was amended by the Justices Acts Amendment Act of 1964, s 26, which repealed s 54 in its existing form and inserted in its stead relevantly:

"[54] Form of summons and filing of complaint and summons.

(1) Every summons shall be directed to the defendant and shall require him to appear at a certain time and place before the Magistrates Court, or, as the case may require, before justices taking an examination of witnesses in relation to an indictable offence, to answer the complaint and to be further dealt with according to law.

Every summons shall be served in accordance with this Act, and, where the summons has been issued on a complaint in writing, other than an entry of a charge in the Bench Record Book, a copy of such complaint shall be served with and in the same manner as the summons.

(2) Every summons and, where the summons has been issued on a complaint in writing, other than an entry of a charge in the Bench Record Book, a copy of such complaint, shall, before the hearing is proceeded with, be lodged with the clerk of the court at the place at which the defendant is required by the summons to appear, to be by such clerk kept and preserved.

[36] There followed a series of amendments to the JA to facilitate the resolution of complaints by mediation. In 1990, the Dispute Resolution Centres Bill 1990 amended s 53 - to which additional procedural provisions had already been added by s 3 of the Justices Act Amendment Act 1973 - to incorporate the power to refer matters to alternative dispute resolution through the addition of subsection (3), which provided:

"(3) Where the justice before whom a complaint is made considers that the matter of the complaint would be better resolved by mediation than by proceedings under this Act, the justice may, with the consent of the complainant, instead of issuing a summons under subsection (1), order the complainant to submit the matter of the complaint to mediation under the Dispute Resolution Centres Act 1990."

[37] In 1997, s 40 of the Justice and Other Legislation (Miscellaneous Provisions) Act 1997 amended s 54(2) of the JA, as follows:

"40. Section 54(2), after 'lodged' - insert - ', within 3 days of the summons being issued."

[38] Following this amendment, section 54(2) read (underlining added):

"(2) Every summons and, where the summons has been issued on a complaint in writing, other than an entry of a charge on a bench charge sheet, such complaint, shall, before the hearing is proceeded with, be lodged, within 3 days of the summons being issued, with the clerk of the court at the place at which the defendant is required by the summons to appear, to be by such clerk kept and preserved."

[39] Subsequently in 1997, the Justice and Other Legislation (Miscellaneous Provisions) Act (No. 2) 1997 further amended s 53 of the JA to omit s 53(3) to 53(5) and insert a new s 53A, a standalone section that empowered the Clerk of the Court to order the complainant to submit the matter to mediation under the Dispute Resolution Centres Act 1990 (make an order to mediate) if a summons had been issued under section 53.

[40] The Explanatory Notes to the Justice and Other Legislation (Miscellaneous Provisions) Bill 1997 relating to clause 40 concerning the amendment to s 54(2) of the JA by adding "within 3 days of the summons being issued" after the word lodged state:

"Clause 40 provides for the amendment of section 54 of the statute to require lodgement within three days of the summons being issued so as to allow the court more time to refer appropriate matters to alternative dispute resolution such as mediation. It strengthens the operation of section 53 of the statute which allows justices (including clerks of the court) to refer appropriate matters to mediation instead of issuing a summons."

[41] Finally, at the second reading of the Justice and Other Legislation (Miscellaneous Provisions Bill 1997, the Attorney-General and Minister for Justice said_:_

"By way of information, there is a provision - section 53 - in the Justices Act 1886 which allows justices to refer appropriate matters to mediation instead of issuing summonses. Similarly, there is a proposed amendment to the Justices Act 1886 to also enhance the use of mediation as alternative dispute resolution in the Magistrates Courts"

[42] It is clear that the purpose of the requirement that the complaint and summons be filed with the Clerk of the Court within three days of the summons being issued is not to deny the Magistrate jurisdiction to proceed to hear the complaint but rather is to facilitate early consideration by the justice or Clerk of the Court whether to make an order to mediate, and not cause undue delay in the matter proceeding to hearing if an order to mediate is not made.

[43] In the present case the complaint and summons had been filed with the Clerk of the Court. The failure to file within three days of the summons being issued is a procedural irregularity which did not deny the Magistrate jurisdiction to proceed to a hearing.

[44] Fourthly, I do not, for above reasons, disagree with the findings of Judge Britton SC in Sheridan and I apply it.

[45] For the reasons I have given the orders are:

(i) The appeal is allowed.

(ii) The order of the Magistrate is set aside.

(iii) The matter is remitted to the Magistrates Court at Mackay to proceed according to law.

[46] Both parties sought an order for costs to follow the event on the standard basis. If costs are not agreed between the parties the parties are to file by 2 March 2026 written submissions of no more than 500 words as to the order for costs.