Romanski v Stone [2025] ICQ 5

Industrial Court of Queensland|2025-03-28|Before: Hartigan DP

INDUSTRIAL LAW - QUEENSLAND - APPEALS - APPEAL TO INDUSTRIAL COURT - OTHER MATTERS - where the appellant appeals an interlocutory decision of the Industrial Magistrates Court regarding an application to strike out paragraphs of the respondent's statement of contentions - where the respondent has filed an interlocutory application seeking that a determination be made as to whether the Industrial Court of Queensland is the proper court to determine the appeal - where the respondent submits that the District Court of Queensland is the correct jurisdiction for the appeal in accordance with s 242 of the Coal Mining Safety and Health Act 1999 (Qld) - whether the Industrial Court of Queensland has jurisdiction to hear the appeal - where the application is dismissed

Central Queensland Services Pty Ltd v Construction, Forestry, Mining and Energy Union [2017] FCAFC 43; (2017) 249 FCR 154

Dalliston v Taylor & Anor [2014] ICQ 17

Fuller v Stone [2023] ICQ 8

Gilbert v Metro North Health and Hospital Service (No 2) (2023) 327 IR 282

Nicholson v Carborough Downs Coal Management Pty Ltd & Ors (No 4) [2023] ICQ 5

Schneider v Curtis [1967] Qd R 300

Tuesley v Workers' Compensation Regulator [2021] ICQ 8

Turay v Workers' Compensation Regulator [2023] ICQ 13

Mr N.D. Boyd of counsel instructed by McGinness & Associates Lawyers for the Appellant

Mr S. McLeod KC of counsel instructed by Resources Safety and Health Queensland for the Respondent

[1] Mr Marek Romanski, the Appellant, appeals a decision of an Industrial Magistrate dismissing an application to strike out certain paragraphs of the Respondent's Statement of Contentions ('the Appeal').

[2] The Respondent, the Chief Executive Officer, Resources Safety and Health Queensland, has filed an application in existing proceedings, seeking that the appeal be dismissed for want of jurisdiction. The Respondent raises the jurisdictional objection on the basis that it contends that the Industrial Court of Queensland ('Industrial Court') does not have jurisdiction to hear the appeal and, rather, the appeal should have been commenced in the District Court of Queensland ('District Court') in accordance with s 242 of the Coal Mining Safety and Health Act 1999 (Qld) ('CMSH Act').

The proceedings below involved an appeal in the Industrial Magistrates Court of two decisions made by the Respondent, cancelling Mr Romanski and Dr Black's certificates of competency under s 197D of the CMSH Act.[1]

[4] Relevantly, Mr Romanski had, prior to the decision, held certificates of competency being an underground mine manager's certificate of competency and a site senior executive notice.

[5] The decision of the Respondent cancelling the certificates of competency followed a process in which Mr Romanski was placed on notice that it intended to cancel the certificates, including the reasons relied on in support of that proposed action, and

Mr Romanski was given an opportunity to make written submissions as to why the certificates should not be cancelled.

[6] During the course of the appeal proceedings below, Mr Romanski and Dr Black, each filed applications seeking, inter alia, that identified paragraphs in the Respondent's Statement of Contentions be struck out on the grounds that these paragraphs contained "new claims" that went beyond the particulars of the reasons for the decision. On this basis it was contended that the Industrial Magistrates Court lacked the jurisdiction to entertain the said "new claims". Specifically, Mr Romanski submitted that the jurisdiction of the Industrial Magistrates Court in hearing the appeal was expressly limited to considering the grounds for cancellation detailed in the Respondent's Show Cause Notice and subsequent decision. In the alternative, the Applicants sought further directions be made including for further disclosure by the Respondent.

[7] The Industrial Magistrate dismissed Mr Romanski's application to strike out paragraphs 15(d), 86(b)(c), 88(a)(b), 89, 90, 93-95, 97 and 100 - 103 of the Respondent's Statement of Contentions and, instead, made an order striking out paragraphs 18, 115, 116 and 117 in accordance with the orders sought by Dr Black.

[8] Mr Romanski has appealed to this Court seeking orders that the decision of the Industrial Magistrate be set aside, and a declaration be made that the jurisdiction of the Industrial Magistrates Court is confined to the grounds for cancellation contained in the Proposed Action Notice and the Decision of the Respondent. Mr Romanski also seeks his costs.

[9] Mr Romanski filed an application to appeal in the Industrial Registry on 14 February 2024. The grounds relied on in support of the application to appeal are as follows:

(a) the Industrial Magistrate has erroneously asserted the existence of jurisdiction to hear grounds of cancellation that were not contained in the Proposed Action Notice and the Decision of the Respondent; and

(b) the Industrial Magistrate has misconstrued the CMSH Act to erroneously assert the existence of jurisdiction to hear grounds of cancellation that were not contained in the Proposed Action Notice and the Decision of the Respondent.

[10] The current application requires consideration as to whether the decision of the Industrial Magistrate is one that may be appealed to this Court.

[11] In support of the application, the Respondent submits that the avenue for an appeal of a decision made under s 242 of the CMSH Act is to the District Court rather than the Industrial Court on the following grounds:

... where a decision is made under Division 1 of [Part 14] of the CMSH Act, the appeal must, pursuant to s.242 of the CMSH Act, take place in the District Court of Queensland.[2]

[12] The Respondent further contends that both interlocutory and final decisions of the Industrial Magistrates Court under Part 14, Division 1 are appealable to the District Court under s 242 of the CMSH Act.[3] In the alternative, the Respondent argues, that should it be found that s 242 only applies to final, and not interlocutory, decisions, then there is no right of appeal from an interlocutory decision under s 242(1) of the CMSH Act.

[13] In response, Mr Romanski argues that the Industrial Court has jurisdiction to hear the appeal on the following summarised basis:

(a) the CMSH Act provides for an appeal to the District Court on questions of law only;

(b) the right of appeal right relates to "the decision" of an Industrial Magistrate, which is a reference to the final decision disposing of the appeal rather than an interlocutory order;

(c) the use of the definite article "the" as opposed to the indefinite article "a" before the word "decision" in s 242 of the CMSH Act supports a conclusion that the reference is to the decision made under s 241 of the CMSH Act; and

(d) as no decision has been made pursuant to s 241 of the CMSH Act, the appeal right created by s 242 of the CMSH Act has not been enlivened.

[14] Additionally, Mr Romanski also seeks to rely on the fact that he has sought relief against the interlocutory decision through the supervisory jurisdiction conferred by s 424(1)(e) of the Industrial Relations Act 2016 (Qld) ('IR Act') and by way of appeal under s 556 of the IR Act. He argues that there is no clear statutory indication that ss 424 and 556 of the IR Act are inconsistent with the operation of the CMSH Act.

[15] The CMSH Act has objects that include the protection of the safety and health of persons at coal mines and to require that the risk of injury or illness to any person resulting from coal mining operations to be at an acceptable level.[4]

[16] The CMSH Act seeks to achieve these objects by, inter alia, imposing safety and health obligations on persons who operate coal mines or who may affect the safety and health of others at coal mines;[5] providing inspectors and other officers to monitor the effectiveness of risk management and control at coal mines, and to take appropriate action to ensure adequate risk management;[6] providing a way for the competencies of persons at coal mines to be assessed and recognised;[7] and requiring management structures so that persons may competently supervise the safe operation of coal mines.[8]

[17] Part 10, Division 2 of the CMSH Act provides for the establishment of a board of examiners which has functions including,[9] inter alia, deciding necessary competencies for holders of certificates of competency and granting certificates of competency and keeping a register.[10]

[18] Part 10A of the CMSH Act provides for a process of suspending and cancelling certificates of competency and site senior executive notice by the CEO.

[19] Section 197A(1) of the CMSH Act provides for the grounds upon which a person's certificate of competency may be suspended or cancelled as follows:

(a) the person has contravened a safety and health obligation;

(b) the person has committed an offence against a law of Queensland or another State (a corresponding law) relating to mining safety;

(c) a certificate, equivalent to a certificate of competency, that was issued to the person under a corresponding law of another State has been suspended or cancelled.

[20] Section 197A(2) of the CMSH Act provides that, a site senior executive notice may be cancelled or suspended if:

(a) the person has contravened a safety and health obligation;

(b) the person has committed an offence against a corresponding law.

[21] When the CEO considers there is a ground to suspend or cancel a board qualification, then s 197B of the CMSH Act provides a process whereby the CEO must give the person notice of the proposed action within the terms of s 197B(2) of the CMSH Act.

[22] Section 197C of the CMSH Act provides a process whereby the person may make a written submission to the CEO as to why the CEO should not take the proposed action.

[23] Relevantly, s 197D(2) of the CMSH Act provides that the CEO may make a decision suspending,[11] or cancelling the certificate of competency or site senior executive notice.[12]

[24] The CEO must give notice of the decision,[13] including the reasons for the decision.[14]

[25] The substance of Mr Romanski's interlocutory application before the Industrial Magistrate seemingly is related to the process set out above as he contends that the particulars stated in the Statement of Contentions before the Industrial Magistrate went beyond the grounds stated and relied on in the notice of proposed action and the decision cancelling his certificate of competency. Mr Romanski argues that, consequently, the Industrial Magistrate erred in not striking out the additional particulars contained in the Statement of Contentions.

[26] Mr Romanski's appeal to the Industrial Magistrates Court was commenced pursuant to Part 14, Division 1 of the CMSH Act.

[27] Part 14 of the CMSH Act provides for two distinct avenues of appeal depending on the type of decision being appealed. Division 1 deals with "Appeals against particular decisions of Minister, CEO or board of examiners" ('Division 1 decisions') and Division 2 relates to "Appeals against chief inspector's directives and particular decisions" ('Division 2 decisions').

[28] Relevant to this appeal, s 236A of the CMSH Act, which falls within Division 1 of Part 14, identifies the persons who may appeal against a Division 1 decision as follows:

The following persons may appeal against the CEO's decision under the following provisions to an Industrial Magistrates Court under this division -

(a) a person whose certificate of competency or site senior executive notice is suspended or cancelled by the CEO - section 197D;

(b) a corporation on which a civil penalty is imposed - section 267I.

[29] Mr Romanski is a person whose certificate of competency was cancelled under s 197D of the CMSH Act by the CEO and consequently that decision is a Division 1 decision.

[30] Section 238(1)(a) of the CMSH Act provides that an appeal of a Division 1 decision, inter alia, is commenced by filing a notice of appeal with an Industrial Magistrates Court.

[31] Section 240 of the CMSH Act provides for the hearing procedures in the following terms:

(1) Unless this division otherwise provides, the practice and procedure for the appeal are to be in accordance with the rules of court or, if the rules make no provision or insufficient provision, in accordance with the directions of the court.

(2) An appeal must be by way of rehearing, unaffected by the original decision-maker's decision.

(3) However, for deciding an appeal against a decision of the CEO under section 267I to impose a civil penalty on a corporation, information that was not available to the CEO in making the decision must not be taken into account.

(4) In deciding an appeal, an Industrial Magistrates Court -

(a) is not bound by the rules of evidence; and

(b) must observe natural justice.

original decision-maker means the Minister, CEO or the board of examiners.

Sections 240(1) and (2) of the CMSH Act are in similar terms to ss 246(1) and (2) of the CMSH Act,[15] the operation of which was considered by Martin J in Dalliston v Taylor & Anor[16] as follows:

[11] The language used in s 246 is inconsistent. For an "appeal by way of rehearing" to be successful it ordinarily requires that the original decision-maker be shown to have erred in law or fact. But this section says that the appeal is to be "unaffected by the chief inspector's review decision" which would seem to be inconsistent with the ordinary understanding of an appeal by way of rehearing.

[12] This clumsiness of expression is to be found in other statutes. A similar provision was considered in De Tournouer v Chief Executive, Department of Environment & Resource Management where Fraser JA said that the expression meant that the appeal tribunal could "exercise afresh the statutory power". In other words, section 246 uses a form of words which is more clearly understood as an appeal de novo. An appeal de novo involves a rehearing of the evidence by the appellate court. It is analogous to a new trial.[17]

[33] Similarly, the appeal of a Division 1 decision before an Industrial Magistrate is effectively a hearing de novo wherein the Court stands in the shoes of the CEO and exercises the powers afresh.

[34] Section 241 of the CMSH Act sets out the powers of an Industrial Magistrates Court in deciding an appeal of a Division 1 decision as follows:

(1) In deciding an appeal, an Industrial Magistrates Court may -

(a) confirm the decision appealed against; or

(b) set aside the decision and substitute another decision; or

(c) set aside the decision and return the matter to the original decision-maker with directions that the court considers appropriate.

(2) In substituting another decision, the court has the same powers as the original decision-maker.

In an appeal against the Minister's decision to cancel an accreditation, the court may decide to cancel the accreditation or to amend the accreditation by imposing conditions.

(3) If the court substitutes another decision, the substituted decision is taken to be the decision of the original decision-maker.

(4) The court may make an order for costs it considers appropriate.

[35] Section 242 of the CMSH Act identifies the circumstances in which an appellant may appeal the decision of an Industrial Magistrates Court with respect to a Division 1 decision to the District Court as follows:

242 Appeal to District Court on questions of law only

(1) An appellant may appeal against the decision of an Industrial Magistrates Court to the District Court, but only on a question of law.

(2) On hearing the appeal, the court may make any order for costs it considers appropriate.

[36] Division 2 of Part 14 of the CMSH Act sets out the appeal process with respect to Division 2 decisions, namely, particular decisions regarding chief inspector's directives and other particular decisions. Section 243 sets out that an appeal to the Industrial Court may be made by persons whose interests are affected by the following Division 2 decisions:

(a) a decision of the chief inspector under section 149(3)(a) to retain a seized thing;

(b) a directive given by the chief inspector;

(c) a review decision of the chief inspector under part 9, division 5, subdivision 8.

[37] Section 244 of the CMSH Act provides that an appeal with respect to a Division 2 decision may be appealed by filing a notice of appeal with the registrar of the Industrial Court.[18]

[38] Section 248 of the CMSH Act identifies the powers of the Industrial Court on appeal as follows:

(1) In deciding an appeal, the Industrial Court may -

(a) confirm the directive or decision appealed against; or

(b) vary the directive or decision appealed against; or

(c) set aside the directive or decision appealed against and make a directive or decision in substitution for the directive or decision set aside; or

(d) set aside the directive or decision appealed against and return the issue to the person who gave the directive or to the maker of the decision with directions the court considers appropriate.

(2) If on appeal the court acts under subsection (1)(b) or (c), the decision is taken, for this Act (other than this part), to be that of the chief inspector or the person who gave the directive.

(3) The court may make an order for costs it considers appropriate.

[39] It is apparent from the above provisions, that the CMSH Act provides separate pathways of appeal depending on the type of decisions which are the subject of the appeal. An appeal from an Industrial Magistrates' decision with respect to a Division 1 decision is to the District Court, but only on a question of law. An appeal with respect to a Division 2 decision is to the Industrial Court.

[40] The term "decision" is not defined within the CMSH Act. The term will be considered further below.

[41] Mr Romanski's application to appeal relies on several provisions of the IR Act in pursuit of the relief sought, being ss 424(1)(e) and 556 of the IR Act. Mr Romanski does not seek to rely on the appeal provisions set out in the CMSH Act to appeal the decision.

[42] The jurisdiction and powers of the Industrial Court are set out pursuant to s 424 of the IR Act as follows:

(a) perform all functions and exercise all powers given to the court under this Act or another Act; and

(b) hear and decide, and give its opinion on, a matter referred to it by the commission; and

(c) hear and decide an offence against this Act, unless this Act provides otherwise; and

(d) hear and decide appeals from an industrial magistrate's decision in proceedings for -

(i) an offence against this Act; or

(ii) recovery of damages, or other amounts, under this Act; and

(e) 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 -

(i) the commission and magistrates exercise their jurisdictions according to law; and

(ii) the commission and magistrates do not exceed their jurisdictions.

(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.

(3) The court's jurisdiction is not limited, by implication, by a provision of this Act or another Act.

(4) The jurisdiction conferred on the court by this Act or another Act is exclusive of the jurisdiction of another court or tribunal, unless this or the other Act provides otherwise.

[43] During the course of the hearing of this application, it was confirmed that, in addition to the application to appeal, Mr Romanski also sought orders by way of prerogative relief.[19] As noted above, when the Court is constituted by the President, s 424(1)(e) of the IR Act provides that the Court may "exercise the jurisdiction and powers of the Supreme Court to ensure, by prerogative order or other appropriate process" that "the commission and magistrates exercise their jurisdictions according to law..."[20]

[44] Section 556 of the IR Act provides an avenue of appeal from a decision of a Magistrate as follows:

A person aggrieved by a decision of a magistrate may appeal against the decision to the court.

[45] "Decision" is defined in sch 5 of the IR Act as meaning:

(a) a decision of the court, the commission, a magistrate or the registrar; or

(b) an award, declaration, determination, direction, judgment, order or ruling; or

(c) an agreement approved, certified, or amended by the commission and an extension of the agreement; or

(d) a bargaining award made or amended by the commission.

Should the appeal properly lie to the District Court pursuant to s 242 of the CMSH Act?

[46] The Respondent contends that the strike out decision which is the subject of

Mr Romanski's appeal was made pursuant to s 240(1) of the CMSH Act and, consequently, may only be appealed to the District Court as it is an appeal with respect to a Division 1 decision.

[47] The Respondent further contends that the Uniform and Civil Procedure Rules 1999 (Qld) ('UCPR') provides that the District Court may hear a decision, being a judgment (without qualification as to whether it is an interlocutory or final from the Magistrates Court) and, consequently, may hear the appeal of the interlocutory decision of the Industrial Magistrate.

[48] In contrast Mr Romanski contends that the correct construction of s 242 of the CMSH Act supports the conclusion that "the decision" referred to in s 242 can only be a decision dispensing of the appeal as provided for in s 241 of the CMSH Act. As the decision, appealed against in this matter is an interlocutory decision it cannot be the subject of a s 242 CMSH Act appeal.

Relevant principles with respect to the approach to be taken in statutory construction

[49] The task of determining whether the reference to "the decision" in s 242 of the CMSH Act includes reference to an interlocutory decision is a task of statutory construction. The Court in Gilbert v Metro North Health and Hospital Service (No 2)[21] considered the relevant principles as follows:

The approach to be taken to ascertain the true meaning of words used is well settled. The approach requires that the text of the legislative provision in question be construed by reference to its context and its legislative purpose.

The relevant principles with respect to statutory construction were considered and summarised in R v A2 as follows (citations omitted):

[32] The method to be applied in construing a statute to ascertain the intended meaning of the words used is well settled. It commences with a consideration of the words of the provision itself, but it does not end there. A literal approach to construction, which requires the courts to obey the ordinary meaning or usage of the words of a provision, even if the result is improbable, has long been eschewed by this Court. It is now accepted that even words having an apparently clear ordinary or grammatical meaning may be ascribed a different legal meaning after the process of construction is complete. This is because consideration of the context for the provision may point to factors that tend against the ordinary usage of the words of the provision.

[33] Consideration of the context for the provision is undertaken at the first stage of the process of construction. Context is to be understood in its widest sense. It includes surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole. It extends to the mischief which it may be seen that the statute is intended to remedy. "Mischief" is an old expression. It may be understood to refer to a state of affairs which to date the law has not addressed. It is in that sense a defect in the law which is now sought to be remedied. The mischief may point most clearly to what it is that the statute seeks to achieve.

[34] This is not to suggest that a very general purpose of a statute will necessarily provide much context for a particular provision or that the words of the provision should be lost sight of in the process of construction. These considerations were emphasised in the decisions of this Court upon which the Court of Criminal Appeal placed some weight.

[35] The joint judgment in Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue rejected an approach which paid no regard to the words of the provision and sought to apply the general purpose of the statute, to raise revenue, to derive a very different meaning from that which could be drawn from the terms of the provision. The general purpose said nothing meaningful about the provision, the text of which clearly enough conveyed its intended operation. Similarly, in Saeed v Minister for Immigration and Citizenship the court below was held to have failed to consider the actual terms of the section. A general purpose of the statute, to address shortcomings identified in an earlier decision of this Court, was not as useful as the intention revealed by the terms of the statute itself. In Baini v The Queen, it was necessary to reiterate that the question of whether there had been a "substantial miscarriage of justice" within the meaning of the relevant provision required consideration of the text of the provision, not resort to paraphrases of the statutory language in extrinsic materials, other cases and different legislation.

[36] These cases serve to remind that the text of a statute is important, for it contains the words being construed, and that a very general purpose may not detract from the meaning of those words. As always with statutory construction, much depends upon the terms of the particular statute and what may be drawn from the context for and purpose of the provision.

[37] None of these cases suggest a return to a literal approach to construction. They do not suggest that the text should not be read in context and by reference to the mischief to which the provision is directed. They do not deny the possibility, adverted to in CIC Insurance Ltd v Bankstown Football Club Ltd, that in a particular , "if the apparently plain words of a provision are read in the light of the mischief which the statute was designed to overcome and of the objects of the legislation, they may wear a very different appearance". When a literal meaning of words in a statute does not conform to the evident purpose or policy of the particular provision, it is entirely appropriate for the courts to depart from the literal meaning. A construction which promotes the purpose of a statute is to be preferred.

In SZTAL v Minister for Immigration and Border Protection the High Court identified that consideration of context may include consideration of statutory, historical and other context as follows (citations omitted):

The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.

Additionally, s 14A of the Acts Interpretation Act 1954 (Qld) provides that, when interpreting a provision, the interpretation that best achieves the purpose of the Act is to be preferred.[22]

[50] The Respondent seeks to rely on the terms of s 242 of the CMSH Act to argue that the appeal of the Industrial Magistrate's interlocutory decision should have properly been commenced in the District Court of Queensland.

[51] In construing the provision regard must be had to the meaning of the words "the decision" within s 242 of the CMSH Act. In this regard, Mr Romanski submits that the use of the definite article "the" before "decision" is relevant to such a consideration.

[52] In Central Queensland Services Pty Ltd v Construction, Forestry, Mining and Energy Union,[23] the Full Bench of the Federal Court embarked on a process of statutory construction with respect to the phrase "the purpose". In construing that phrase, the Full Court considered the use of the definite article "the" as follows:

As the Full Court observed in Australian Crime Commission v AA Pty Ltd [2006] FCAFC 30; (2006) 149 FCR 540 (at [28]): "The Cambridge Australian English Style Guide, describes the definite article as signalling 'that a noun is to follow, and it very often implies that the noun is one with which the reader is already acquainted' so that 'the' says: 'You know which one I mean', and reminds us of an earlier reference to the same thing in the text' (emphasis in original): Peters, P, Cambridge Australian English Style Guide (Cambridge University Press, 1995) pp 747-748." Similarly, in Tamas v Victorian Civil and Administrative Tribunal [2003] VSCA 113; (2003) 9 VR 154 (at [8]), Callaway JA pointed out: "it is a natural and correct use of English to employ the definite article when one is referring to a person or thing already identified expressly or by implication".

These observations therefore suggest that the usual grammatical use of the definite article is to indicate that there is an earlier reference to that expression in the writing in question...[24]

[53] Having regard to the plain meaning of the words and adopting a similar approach to that taken in Central Queensland Services Pty Ltd v CFMEU, the use of "the" before "decision" is taken to be a reference to a previously identified "decision". Accordingly, consideration will need to be had with respect to whether, within the context of the CMSH Act, there is a previously identified decision.

[54] As noted above, s 242 appears within Part 14, Division 1 of the CMSH Act which provides for an appeal avenue with respect to Division 1 decisions. Within this context, s 241 of the CMSH Act identifies the types of decision that may be made by an Industrial Magistrate in such an appeal. These decisions include decisions confirming the decision, setting aside the decision and substituting with a fresh decision or setting aside the decision and returning the matter to the original decision-maker. It is apparent that the type of decision that may be made pursuant to s 241 of the CMSH Act are in the nature of decisions that dispose of the appeal.

[55] Section 241 of the CMSH Act immediately precedes s 242 and defines the type of decision that may be made by an Industrial Magistrate.

[56] In Tuesley v Workers' Compensation Regulator,[25] the Industrial Court considered the operation of ss 558 and 561 of the Workers' Compensation and Rehabilitation Act 2003 (Qld) which are in similar terms to s 241 and s 242 of the CMSH Act.

[57] Section 558 of the WCR Act provides for the powers of the Commission on deciding an appeal. It is in similar terms to s 242 of the CMSH Act and provides that the appeal body may confirm,[26] vary,[27] set aside the decision and substitute it with another decision,[28] or return the matter to the Regulator.[29]

[58] Relevantly, s 561(1) of the WCR Act provides that a party aggrieved by, relevantly, an Industrial Commissioner's decision may appeal to the Industrial Court.

[59] The Court construed the relevant provisions of the WCR Act as follows:

[43] The "decision of ... the Industrial Commission", to which Division 1A applies, is a decision made under s 558. There isn't yet a decision made by the QIRC under s 558 in the present case.

[44] Under s 561, the party who may appeal to the Court is one "aggrieved by ... the Industrial Commission's decision". Again, that is the decision made under s 558. Ms Tuesley cannot be "aggrieved" by a decision that has not yet been made.

[45] The powers of this Court are prescribed by s 562 to "confirm", "vary" or "set aside" the "decision". Consistently, the "decision" is one made under s 558. As there is, as yet, no such decision, there is nothing to "confirm", "vary" or "set aside".

[46] Section 561(2) applies the IR Act to the appeal brought under the WCR Act. There is nothing in the WCR Act itself which confers jurisdiction on this court to entertain an appeal from Industrial Commissioner Hartigan's finding.[30]

[60] Applying similar reasoning and having regard to the relevant statutory context, "the decision" referred to in s 242 of the CMSH Act is the decision of the Industrial Magistrate that accords with the type of decision able to be made pursuant to s 241, that is, a decision to "confirm", "vary" or "set aside" the decision.

[61] For the sake of completeness, I note the Respondent's submissions that the definition of "decision" in the "UCPR" would encompass a decision of an interlocutory nature. Whilst that may be the case, the definition contained in the UCPR is irrelevant on the basis that a reference to the UCPR would only be applicable if the appeal was before the District Court. It is not.

[62] The Respondent further submits that s 240(1) of the CMSH Act assists in the construction of what amounts to "the decision" in s 242 and relevantly encompasses the making of an interlocutory decision. The purpose of s 240 is to provide for the procedures for the hearing. It does so by stating, inter alia, that the practice and procedure for the appeal are to be in accordance with the rules of the court, or if they are insufficient, in accordance with a direction given by the court. Section 240(1) makes no reference to the making of any decision. Whilst it is accepted that a decision may be made incidental to the court exercising its powers with respect to the practice and procedure for the appeal, it certainly could not be said that s 240(1) of the CMSH Act contains an identified prior use of the term "decision" so as to aid in the construction of s 242 of the CMSH Act.

[63] The Respondent contends that the Industrial Court's decision in Fuller v Stone[31] assists in the interpretation of what amounts to a "decision" under the CMSH Act more broadly. Relevantly, the Respondent's submissions in this regard were as follows:

As discussed in the judgment at [17], s. 255 of the CMSH Act (contained in Part 15, Division 2) vests jurisdiction upon the Industrial Magistrates Court to hear complaints against offences created by the CMSH Act, but also expressly provides for an avenue of appeal to the Industrial Court by way of s. 255 which provides:

(1) A prosecution for an offence against this Act, other than an offence against part 3A, is by way of summary proceedings before an industrial magistrate.

(2) More than 1 contravention of a safety and health obligation under section 34 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 coal 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."

"Although the industrial magistrate's judgment was not a final hearing and determination of the complaint, no party suggests it was not "a decision... in proceedings" for "a prosecution for an offence against [the CMSH Act]", so the appeal is competent."

If a decision on a strike out is an appellable 'decision' for the purpose of s. 255, then it is axiomatic that a decision on strike out under s. 242 would be afforded the same interpretation.[32]

[64] As is apparent in the extract above, the terms of s 255 of the CMSH Act adopts different language to s 242 of the CMSH Act and provides for a broad avenue of appeal from a decision including from a decision made in the proceedings. That alone distinguishes s 255 of the CMSH Act from s 242 of the CMSH Act.

[65] Further, the extract of the decision from Fuller referred to in the Respondent's submission excluded a relevant footnote reference which sought to distinguish the matter from Tuesley. The relevant footnote reference to the words "no party suggests it was not 'a decision ... in proceedings'" is as follows:

Compare, for example, the statutory provisions considered in Tuesley v Workers' Compensation Regulator (2021) 307 IR 395.[33]

[66] For these reasons, I do not consider that the Respondent's submissions with respect to s 255 of the CMSH Act assist as an aid in the construction of s 242 of the CMSH Act.

[67] Whilst there has been no previous consideration as to whether an interlocutory decision of an Industrial Magistrate with respect to a Division 1 decision may be appealed pursuant to s 242 of the CMSH Act, there are several authorities which assist in such a consideration.

[68] In Schneider v Curtis,[34] the Full Bench considered whether an appeal to the District Court pursuant to s 222 of the Justices Act 1886 (Qld), 1886 to 1965, only lies from an order which disposes of a complaint. Relevantly, Gibbs J (as his Honour then was) stated:

The question we have to decide is whether an appeal under s. 222 of the Justices Acts lies in the present case. That section gives a right of appeal not from any order but only from "any order made.... upon a complaint for an offence or breach of duty." The section does not give a right of appeal from any order made in proceedings commenced by a complaint but only from "an order made upon a complaint." These words (which are similar to the words of the definition of "order" originally contained in s. 4 of The Justices Act of 1886, whose effect was discussed by Griffith C.J. in Castlemaine Brewery and Quinlan Gray & Co. Brisbane Limited v. Callings Ex parte Ceilings (1896) 6 Q.L.J.s 273, at p. 275) in my opinion refer to an order disposing of the complaint itself and do not include an order upon an application made during the course of the proceedings instituted by the complaint.

There was a sound reason for the legislature to allow a right of appeal under s. 222 only from orders disposing of the complaint itself. On the hearing of an order to review the court has a discretion to refuse relief. Whether or not there is a discretion at the outset to refuse an order to review (a question discussed in Byrne v. Baker (supra) at p. 460 and Mudge v. O'Grady (supra) at p. 71) it is clear that on the return of the order the court has a discretion to discharge it; it is expressly provided by the proviso to s. 213 that notwithstanding that the court or judge may be of opinion that any point raised by the order to review might be decided in favour of the appellant the court or judge may discharge the order if it or he considers that no substantial miscarriage of justice has occurred. However there is no similar discretion to refuse to allow an appeal under s. 222 if it is established that the order appealed from was erroneous. Serious inconvenience could result if litigants could appeal from any decision on any interlocutory application made during the course of a case, including an application for a ruling on an incidental question that arose during the trial, and the court had no discretion to refuse to entertain such appeals.

In my opinion the legislature did not intend that the wide powers of control over the proceedings of magistrates which this court may exercise by way of order to review should also be available on an appeal under s. 222. Such an appeal in my opinion only lies from an order which disposes of a complaint, for example by dismissing it, or by entering a conviction and imposing a penalty. It does not lie from a magistrate's ruling, given at the close of the complainant's case, that there is a case for the defendant to answer, for although such a ruling may amount to the refusal of an application, and may be regarded as an order within the definition in s. 4, it is made upon an incidental application during the hearing of the complaint, and is not an order made upon the complaint.[35]

[69] The correctness of this approach was approved by the Court of Appeal in Paulger v Hall.[36] Additionally, Holmes J (as her Honour then was) also considered why, on policy grounds appeals from interlocutory rulings would not relevantly be permitted as follows:

[27] Quite apart from the construction question addressed in Schneider v. Curtis, there is much to be said on policy grounds for prohibiting the bringing of appeals under s. 222 against interlocutory rulings. Such appeals may lead to fragmentation of the criminal process, may in the long run prove to have been pointless, and are capable of being misused to exhaust the resources of a less well-heeled opponent. But an appellant may in an appeal against a final judgment properly raise the issue of the correctness of an interlocutory order "which affected the final result": Gerlach v. Clifton Bricks Pty Ltd. Thus, an appeal from a ruling before any evidence had been put before the court on the voir dire or called in the case might well be doomed to failure, because of the impossibility of saying whether it had affected the final result. On the other hand, it does not follow in a case such as the present that every piece of evidence available to the prosecution must be called before it can be said that an interlocutory ruling has affected the outcome.[37]

[70] The Industrial Magistrate's interlocutory decision did not dispose of the appeal. It follows that the interlocutory decision was not made in the exercise of the Industrial Magistrate's powers pursuant to s 241 of the CMSH Act. Part 14, Division 1 of the CMSH Act does not provide for an avenue of appeal from a decision made on an interlocutory application during the course of the appeal proceedings.

[71] Accordingly, as the Industrial Magistrate is yet to make a decision pursuant to s 241 of the CMSH Act, s 242 of the CMSH Act is not yet enlivened. It follows that there is no avenue of appeal from the interlocutory decision to the District Court.

[72] It must now be considered as to whether the Industrial Court has jurisdiction to hear the appeal pursuant to s 556 of the IR Act as contended by Mr Romanski.

Can Mr Romanski seek to appeal the decision pursuant to s 556 of the IR Act?

[73] Section 556 of the IR Act provides that a person aggrieved by a decision of a Magistrate may appeal against the decision to the Industrial Court.

[74] Mr Romanski contends that the interlocutory decision of the Industrial Magistrate is a "decision" within the meaning of that term as it is defined in sch 5 of the IR Act and consequently he is entitled to appeal the interlocutory decision pursuant to s 556 of the IR Act.

[75] Mr Romanski submits that the use of the indefinite article "a" before the word "decision" in s 556 of the IR Act supports a conclusion that the language is permissive of an appeal of an interlocutory decision.

[76] In taking this position, it is apparent that Mr Romanski seeks to rely on s 556 of the IR Act as providing an alternative avenue of appeal to the Industrial Court separate from the avenues of appeal available pursuant to the CMSH Act.

[77] There is an obvious tension between the relevant appeal provisions contained in the CMSH Act and s 556 of the IR Act. As already established, under the CMSH Act, the appeal pathway hierarchy with respect to a Division 1 decision made by the CEO is firstly to the Industrial Magistrates Court and, then to the District Court but on a matter of law only. The Industrial Court is not included in the appeal pathway hierarchy with respect to appeals arising from Division 1 decisions. The tension arises because it is contended by Mr Romanski that s 556 of the IR Act provides an alternative avenue of appeal to the Industrial Court with respect to such appeals as it permits a party to appeal a decision of an Industrial Magistrate.

[78] In response, the Respondent submits that it would be a "non-sensical situation if an interim appeal could take place in the Industrial Court, but any final appeal on the same subject matter is to be heard in the District Court".

[79] In order to resolve the tension, consideration must be given to the identification of the statutory source that creates the right of appeal. The Court has previously engaged in such an exercise but with respect to a right of appeal arising in the context of a worker's compensation appeal pursuant to s 561 of the WCR Act and s 557 of the IR Act.[38]

[80] In Turay v Workers' Compensation Regulator,[39] Davis J considered the operation of s 561 of the WCR Act and s 557 of the IR Act respectively. Relevantly, his Honour held:

[75] As explained in Glass, the structure is that the WCR Act creates the right of appeal from decisions of the QIRC made under the WCR Act and then picks up the 2016 IR Act which provides the procedural provisions. Therefore, the construction task is not to attempt to construe all the provisions of the two Acts consistently with each other but to identify the provisions of the WCR Act which provide the right of appeal. Those provisions may well be consistent with the 2016 IR Act provisions but, if not, will prevail to the extent of any inconsistency. This is a product of the legislative scheme rather than of application of the doctrine of generalia specialibus non derogant which only applies where there are inconsistent provisions which cannot be reconciled as a matter of ordinary interpretation.

[76] Section 557 of the 2016 IR Act gives a right of appeal generally from decisions of the QIRC. It does not provide an appeal against decisions made by the QIRC under the WCR Act. Section 561 of the WCR Act does that. None of the provisions of Division 2 of Part 6 of Chapter 11 applies to appeals under the WCR Act. In particular:

Section 556 of the 2016 IR Act: Section 561(1) of the WCR Act provides an avenue of appeal from the Industrial Magistrates Court or the QIRC to this Court in relation to decisions made under the WCR Act. Section 556 of the 2016 IR Act must only concern other appeals.

Section 557 of the 2016 IR Act: As already observed, s 561(1) of the WCR Act provides the avenue of appeal from the QIRC, not s 557 of the 2016 IR Act which provides for other appeals from the QIRC.

Section 558 of the 2016 IR Act: Section 562 of the WCR Act provides the powers of this Court upon an appeal from the QIRC on matters under the WCR Act. Section 558 of the 2016 IR Act vests powers on this Court in relation to other appeals from the QIRC.

Section 559 of the 2016 IR Act: Section 559 of the 2016 IR Act has no application to appeals against decisions under the WCR Act because an appeal from the QIRC in a case under the WCR Act is an appeal under s 561 of the WCR Act, not s 557 of the IR Act. Therefore, no "appeal" is made under s 557.

[77] Division 5 of Part 6 of Chapter 11 of the 2016 IR Act does apply, at least in part, to appeals under the WCR Act:

Section 563 of the 2016 IR Act: Section 563 of the 2016 IR Act is the definitions section. This Court, being the court to which an appeal lies under s 561 of the WCR Act, is included in the definition of "industrial tribunal" in s 563 of the 2016 IR Act.

Section 564 of the 2016 IR Act: Section 564 of the 2016 IR Act limits the time for appeal. Nothing in s 561 of the WCR Act speaks of a time limit for an appeal. There is no reason why s 564 would not apply to appeals under the WCR Act. This is confirmed by the extrinsic material to the Electrical Safety Amendment Act.

Section 565 of the 2016 IR Act: Section 565 of the 2016 IR Act only applies to appeals under ss 554, 557 or 560 of the IR Act. An appeal against the QIRC's decision under the WCR Act is an appeal under s 561 of the WCR Act.

Section 566 of the 2016 IR Act: Section 566 of the 2016 IR Act concerns stays of judgments pending appeal. It is clearly intended that s 566 applies generally to appeals under the WCR Act. Section 566(2) specifically accepts some appeals from its operation.

Section 567 of the 2016 IR Act: Section 567 of the 2016 IR Act provides the "nature of appeal". Section 561 of the WCR Act specifically provides for the nature of an appeal under the WCR Act and therefore, at least to the extent of any inconsistency, s 561 would prevail over s 567. However, s 561 of the WCR Act and s 567 of the 2016 IR Act are equivalents.

[78] Therefore, on a proper construction of s 561 of the WCR Act, Division 1 of Part 6 of Chapter 11 of the 2016 IR Act does not apply to appeals brought under s 561 of the WCR Act. The purpose of s 557 of the 2016 IR Act is to grant a right of appeal. With appeals under the WCR Act, the right of appeal is bestowed by s 561 of the WCR Act. Section 561(2) of the WCR Act operates so as to apply the provisions of Division 5 of Chapter 11 of the 2016 IR Act to appeals launched under s 561(1) of the WCR Act.[40]

[81] An analysis of the relevant provisions of the CMSH Act as conducted above, identifies that with respect to Division 1 decisions, an appeal pathway is created to the Industrial Magistrates Court and then to the District Court. Relevantly, in this respect, the right of appeal is bestowed by 242 of the CMSH Act. For the reasons previously identified, no decision has yet been made that would permit an appeal pursuant to s 242 of the CMSH Act. Also, for the reasons identified above, the CMSH Act does not provide an appeal pathway for interlocutory decisions made during the course of proceedings for appeals made in respect of a Division 1 decision.

[82] It is the CMSH Act which provides for and limits appeals that arise with respect to Division 1 decisions made under the CMSH Act. In this respect, the source of the statutory right to appeal decisions made with respect to Division 1 decisions is the CMSH Act.

[83] Section 556 of the IR Act gives a general right of appeal from decisions of the Industrial Magistrates Court. However, s 556 of the IR Act does not provide a right of appeal against decisions of an Industrial Magistrates with respect to a Division 1 decision under the CMSH Act. Accordingly, s 556 of the IR Act must only concern other appeals.

[84] Indeed, the purpose of the appeal pathways with respect to a Division 1 decision set out in the CMSH Act would be meaningless if s 556 of the IR Act operated in such a way so as to provide jurisdiction to the Industrial Court to hear an appeal of a decision from an Industrial Magistrate with respect to a Division 1 decision.

[85] Consequently, because the source of the statutory right to appeal with respect to Division 1 is provided for by the CMSH Act, s 556 of the IR Act does not provide an alternative pathway of appeal.

[86] The Industrial Court does not have jurisdiction to entertain an appeal from the Industrial Magistrates decision pursuant to s 556 of the IR Act with respect to an appeal regarding a Division 1 decision made in accordance with the CMSH Act.

Is Mr Romanski able to proceed in this Court by operation of s 424 of the IR Act?

[87] In the alternative, Mr Romanski seeks to rely on s 424 of the IR Act as a means for the appeal to be heard in the Industrial Court.

[88] As noted above, Mr Romanski filed an application to appeal in the Industrial Registry. Mr Romanski has not made a formal application for prerogative relief.

[89] However, it is apparent on the face of the application to appeal, that Mr Romanski appears to attempt to identify that he also seeks to rely on s 424 of the IR Act.[41] This was further confirmed during the course of submissions.

[90] Consequently, while the grounds of the appeal do not specifically address, in usual terms, that Mr Romanski applies for relief by way of prerogative order, the grounds of appeal do contend that the Industrial Magistrate did not exercise their jurisdiction according to law and/or the Industrial Magistrate exceeded their jurisdiction.[42] On this basis, the Court is content to accept that Mr Romanski seeks relief pursuant to s 424(1)(e)(i) and (ii) of the IR Act.

[91] As previously stated, the Industrial Court does not have jurisdiction to hear and determine an appeal of the Industrial Magistrate's interlocutory decision as there is no statutorily provided avenue of appeal. That does not mean, however, that Mr Romanski is precluded from seeking a review of the Industrial Magistrate's decision in this Court.

[92] Section 424 of the IR Act grants jurisdiction and powers to the Industrial Court. Section 424(e)(i) and (ii) relevantly provides for relief by prerogative order in the following limited circumstances:

(e) 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 -

(i) the commission and magistrates exercise their jurisdictions according to law; and

(ii) the commission and magistrates do not exceed their jurisdictions.

[93] Section 424 of the IR Act provides a means for review, including in the absence of an avenue of appeal provided by statute, as discussed by Davis J in Tuesley as follows:

At a glance

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Before

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Legislation Cited (5)

Cases Cited (5)