Thiess Pty Ltd v Industrial Magistrate Elizabeth Hall & Ors [2013] QSC 130

MAGISTRATES - GENERALLY - POWERS AND DUTIES - IMPLIED OR INHERENT POWERS - where the third respondent made a complaint alleging the applicant breached obligations imposed by the Workplace Health and Safety Act 1995 (Qld) - where the complaint and summons contained alternative charges - where the applicant contended the complaint failed to comply with the requirement of s 43 of the Justices Act 1886 (Qld) and sought orders requiring the third respondent elect one of the offences - where the Industrial Magistrate dismissed the application but held the two alleged offences were not true alternatives - where the third respondent was granted leave to delete the words "in the alternative" - where the applicant appealed that decision to the Industrial Court - where the appeal was dismissed finding the words "in the alternative" had no legal effect - where the applicant sought judicial review of that decision - where it was held that s 43 does not authorise two matters of complaint to be pleaded in the alternative - where the applicant made application to the Industrial Magistrates Court for the amended complaint to be struck out - where the first respondent dismissed the application but held the prosecution would be called upon to elect one charge on which to proceed - where on appeal the second respondent held that although s 43(3)(a) and s 43(4) did not apply, the Industrial Magistrates Court had an implied power to strike out the charge on which the complainant elected not to proceed - where the applicant contends s 43 and 48 contain specific powers in relation to election and amendment - where the applicant contends an implied power of election or amendment would be inconsistent with the specific provisions of the Act - where the applicant seeks orders in the nature of prohibition and/or certiorari and declaratory relief in respect of the orders made by the first and second respondents - whether an amendment of the complaint was authorised by s 43 - whether the Industrial Magistrates Court has the express or implied power to cure any defect in the amended complaint

Justices Act 1886 (Qld) s 43, s 48

Edwards v Jones [1947] KB 659, distinguished

Grassby v R (1989) 168 CLR 1; [1989] HCA 45, cited

Higgins v Comans and Anor (2005) 153 A Crim R 565; [2005] QCA 234, followed

Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435; [1999] HCA 19, followed

Power v Heyward [2007] 2 Qd R 69; [2007] QSC 026, followed

Thiess Pty Ltd v President of the Industrial Court of Queensland & Anor [2011] QSC 294, cited

R v Forbes; Ex parte Bevan [1972] HCA 34; (1972) 127 CLR 1, cited

P J Flanagan SC, with G del Villar, for the applicant

M J Byrne QC, with P Matthews, for the third respondent

Legal & Prosecutions Services, Workplace Health & Safety Queensland for the third respondent

[1] By application for review filed 3 December 2012, the applicant sought orders in the nature of prohibition and/or certiorari together with declaratory relief in respect of orders made by the first and second respondents in an application to strike out a complaint and summons, made on the complaint of the third respondent, alleging breaches by the applicant of the Workplace Health and Safety Act 1995 (Qld) ("the WHS Act").

[2] The central issue for consideration in the application is whether an amendment of the complaint was authorised by s 43 of the Justices Act 1886 (Qld) ("the Act"), and whether the Industrial Magistrates Court has the express or implied power to cure any defect in the amended complaint.

[3] On 1 December 2008, an incident occurred at a construction site in Woolloongabba. One person was killed, and two other persons suffered bodily injuries. The applicant was performing construction work at the site at the time of the incident.

[4] On 27 November 2009, the third respondent made a complaint that the incident was caused by breaches of obligations imposed on the applicant by the WHS Act. The complaint and summons issued as a consequence of that complaint contained three charges. Each of those charges contained an alternative charge.

[5] On 7 May 2010, the applicant applied to the Industrial Magistrates Court to strike out the complaint and summons. Alternatively, the applicant sought orders requiring the third respondent to elect one matter of complaint on which to proceed, and further, or alternatively, deleting the second and third charges from the complaint.

[6] The application to strike out the complaint and summons was heard on 28 May 2010. At that hearing, the third respondent sought leave to amend the particulars of the first charge to encompass alleged injuries to the individuals originally referred to in charges 2 and 3. The applicant did not object to that course. After leave to amend was given, the third respondent offered no evidence on charges 2 and 3 of the complaint. Those charges were dismissed by the Industrial Magistrate.

[7] As a consequence of that amendment, the amended complaint contained two offences, alleged in the alternative, as one charge. The applicant contended such a complaint failed to comply with the requirements of s 43 of the Act, and should be struck out, or the third respondent should be put to his election.

[8] The application to strike out, and the application for the third respondent to be put to his election was dismissed. The Industrial Magistrate held the two alleged offences were not true alternatives. An application by the third respondent to further amend the complaint by deleting the words "in the alternative" from charge 1 on the amended complaint was granted.

[9] On 12 October 2010, the applicant appealed that decision to the Industrial Court of Queensland. On 12 April 2011, the President of the Industrial Court dismissed the appeal, finding the words "in the alternative" had no legal effect. The President further found that the power to amend a complaint, pursuant to s 48 of the Act, had not been lost for non-compliance with s 43 of the Act.

[10] On 20 June 2011, the applicant made application to this Court to judicially review the decision of the President of the Industrial Court. The applicant contended the President had committed jurisdictional error.

[11] On 13 October 2011 Applegarth J held the President had erred in construing s 48 of the Act but had not committed jurisdictional error as it was an error made within the Industrial Court's jurisdiction. Applegarth J found the Industrial Magistrate had, however, committed jurisdictional error by making a decision outside the limits of the power to amend in s 48 of the Act.

(a) that s 43 of the Act does not authorise two matters of complaint to be pleaded in the alternative;

(b) that s 48 of the Act does not authorise, by way of amendment, the removal of the words "in the alternative" from the amended complaint.

"[53] Because I have not made an order in the nature of certiorari setting aside the decision and orders of the first respondent, I do not consider that it is presently appropriate to make an order remitting the matter to the Industrial Court for further consideration. Instead, I am inclined to make declarations substantially in the form sought in paragraphs 3 and 4 of the application for review. If those declarations are made, then the Industrial Magistrate can consider the future course of the proceedings, having heard the submissions of the parties. One possible course would be to strike out part of the complaint after the second respondent/complainant has been required to choose upon which of the two matters of complaint in the amended complaint and summons it wishes to proceed."

[14] On 2 December 2011, the applicant again made application to the Industrial Magistrates Court for an order that the amended complaint be struck out. It submitted that as the words "in the alternative" were not 'joined' within the meaning of s 43 of the Act, the complaint could not properly be amended pursuant to s 48 the Act. As there was nothing in the Act that otherwise gave the third respondent the ability to cure the defect, the complaint should be struck out.

[15] On 30 May 2012, the first respondent dismissed the applicant's application to strike out the amended complaint. The first respondent held that s 43(3)(a) of the Act applied to the amended complaint, and the third respondent would be required, at the hearing, to elect one charge on which to proceed. Alternatively, if s 43(3)(a) did not apply, the first respondent held it was desirable for the matters in the complaint to be heard separately and an order to that effect would be made under s 43(4) of the Act. The prosecution, at the hearing, would be called upon to elect on which charge to proceed. The prosecution would then be allowed to offer no evidence on one of the charges, leaving one charge on which to proceed.[1]

[16] The applicant appealed to the Industrial Court. The second respondent held that s 43(3)(a) of the Act did not apply in the circumstances so as to require the prosecution to elect on which charge to proceed. The second respondent also held that s 43(4) of the Act did not apply. However, the second respondent dismissed the appeal on the basis the Industrial Magistrates Court had an implied power to act on the prosecutor's election by striking out the charge on which the complainant elected not to proceed. The second respondent did not accept that to permit a prosecutor to elect and to strike out an abandoned charge, even where the charges were not joined in accordance with the Act, was inconsistent with s 48 of the Act.

[17] Proceedings for offences under the WHS Act are brought by way of summary proceedings under the Act. Relevantly, the Act provides:

(1) Every complaint shall be for 1 matter only, and not for 2 or more matters, except -

(a) in the case of indictable offences - if the matters of complaint are such that they may be charged in 1 indictment; or

(b) in cases other than cases of indictable offences - if the matters of complaint -

(i) are alleged to be constituted by the same act or omission on the part of the defendant; or

(ii) are alleged to be constituted by a series of acts done or omitted to be done in the prosecution of a single purpose; or

(iii) are founded on substantially the same facts; or

(iv) are, or form part of, a series of offences or matters of complaint of the same or a similar character; or

(2) When 2 or more matters of complaint are joined in the 1 complaint each matter of complaint shall be set out in a separate paragraph.

(3) At the hearing of a complaint in which 2 or more matters of complaint have been joined but which does not comply with the provisions of this section -

(a) if an objection is taken to the complaint on the ground of such noncompliance - the court shall require the complainant to choose 1 matter of complaint on which to proceed at that hearing; or

(b) if no such objection is taken to the complaint - the court may proceed with the hearing and may determine the matters of complaint, and may convict or acquit the defendant in accordance with such determination.

(4) If, at the hearing of a complaint, it appears to the court that a defendant may be prejudiced or embarrassed in the defendant's defence because the complaint contains more than 1 matter of complaint or that for any other reason it is desirable that 1 or more matters of complaint should be heard separately, the court may order that such 1 or more matters of complaint be heard separately."

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

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

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

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

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

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

make such order for the amendment of the complaint, summons or warrant as appears to them to be necessary or desirable in the interests of justice."

[18] The applicant submits the provisions of the Act are unambiguous. Section 43(1) provides that, subject to certain exceptions, a complaint cannot have more than one matter. Section 43(3) only applies where matters have been "joined" in a complaint that does not comply with s 43. Here, matters have not been "joined" so s 43(3) has no operation. Further, s 48 only authorises an amendment where there is a defect in substance or in form other than non-compliance with the provisions of s 43. It has no operation in the present case.

[19] The applicant submits that as s 43 and s 48 contain specific powers in relation to election and amendment, no implied power of election or amendment can operate as it would be inconsistent with the specific provisions of the Act. Further, to imply a power to strike out a complaint would constitute an amendment to that complaint. Such a power is inconsistent with s 48 of the Act.

[20] The first and second respondents earlier agreed to abide the order of the Court. No further submissions were made at the hearing.

[21] The third respondent submits the second respondent correctly found the Industrial Magistrates Court had an implied power to permit an election on one of two charges within a complaint, and correctly rejected a contention that such an election is akin to an amendment of that complaint.

[22] The third respondent contends such an implied power is consistent with the Industrial Magistrates Court having, by implication, the powers reasonably necessary to enable it to act effectively within its jurisdiction.

[23] There is a distinction between superior courts and inferior courts. The former, as a court of unlimited jurisdiction, retains an inherent jurisdiction.[2] The latter, being a court of limited jurisdiction, has no inherent jurisdiction. However, such courts have implied powers, but only to the extent the implied power is reasonably necessary to give effect to the jurisdiction conferred upon the court.[3]

[24] The difference between an inherent power and an implied power was considered in Pelechowski v The Registrar, Court of Appeal (NSW)[4]. In a majority joint judgment, Gaudron, Gummow and Callinan JJ said:

"Some guidance in the matter is provided by the decision of this Court in Grassby v The Queen. It was there held that specific provision upon the subject made in the Justices Act 1902 (NSW) left no room for the implication of a discretionary power to terminate proceedings in a manner other than that provided. The result was that a magistrate had no power to order a stay of committal proceedings as an abuse of process. The leading judgment was given by Dawson J. After referring to the proposition that it is the general responsibility of a superior court of unlimited jurisdiction for the administration of justice which gives rise to its inherent power, his Honour continued:

'It is in that way that the Supreme Court of New South Wales exercises an inherent jurisdiction. Although conferred by statute, its powers are identified by reference to the unlimited powers of the courts at Westminster. On the other hand, a magistrate's court is an inferior court with a limited jurisdiction which does not involve any general responsibility for the administration of justice beyond the confines of its constitution. It is unable to draw upon the well of undefined powers which is available to the Supreme Court. However, notwithstanding that its powers may be defined, every court undoubtedly possesses jurisdiction arising by implication upon the principle that a grant of power carries with it everything necessary for its exercise. ... Those implied powers may in many instances serve a function similar to that served by the inherent powers exercised by a superior court but they are derived from a different source and are limited in their extent. The distinction between inherent jurisdiction and jurisdiction by implication is not always made explicit, but it is, as Menzies J points out, fundamental.'

Dawson J concluded that recognition of the existence of the powers which an inferior court must possess by way of necessary implication will be called for:

'whenever they are required for the effective exercise of a jurisdiction which is expressly conferred but will be confined to so much as can be "derived by implication from statutory provisions conferring particular jurisdiction".'

The term 'necessary' in such a setting as this is to be understood in the sense given it by Pollock CB in Attorney-General v Walker, namely as identifying a power to make orders which are reasonably required or legally ancillary to the accomplishment of the specific remedies for enforcement provided in Div 4 of Pt 3 of the District Court Act. In this settling, the term 'necessary' does not have the meaning of 'essential'; rather it is to be 'subjected to the touchstone of reasonableness."

[25] An implied power can only arise if it is reasonably necessary for the effective exercise of the court's jurisdiction. As to what amounts to "reasonably necessary" Keane JA (as his Honour then was) in Higgins[5] observed:

"It is not enough to justify the implication urged by the appellant that, perhaps as a matter of economy in the administration of criminal justice, it would be useful if a prosecution, that would probably be stayed at trial, could be halted at the committal stage. In this regard, I would respectfully agree with the observation of Spigelman CJ in John Fairfax Publications Pty Ltd v Ryde Local Court, in a judgment with which Mason P and Beazley JA agreed, that 'what is "reasonably necessary" cannot be stretched to encompass what is merely desirable or useful'. Whatever the merits that might attach to a power to stay committal proceedings, it cannot be said that such a power is reasonably necessary for those proceedings to be carried out. The result is that it is impossible to imply a power of the type contended for by the appellant. This was precisely the consideration that led Dawson J to conclude in Grassby that:

There is no room in the face of these statutory obligations, couched as they are in mandatory terms, for the implication of a discretionary power to terminate the proceedings in a manner other than that provided. Nor is this surprising. True it is that a person committed for trial is exposed to trial in a way in which he would otherwise not be, but the ultimate determination whether he does in fact stand trial does not rest with the magistrate. The power to order a stay where there is an abuse of the process of the trial court is not to be found in the committing magistrate and the considerations which would guide the exercise of that power have little relevance to the function which the magistrate is required to perform."

[26] The Magistrates Court of Queensland has, by implication, powers reasonably necessary to enable it to act effectively within its jurisdiction.[6] Byrne J, in Power[7], said:

"The more important of these are, 'subject to the rules of Court, and to statute, to regulate its own procedure, to ensure fairness investigative and trial procedures ...' and to prevent an abuse of its process. Moreover, 'a court may exercise its ... implied powers ..., even in respect of matters that are regulated by a provision of a statute or rules of court, so long as it can do so without contravening any such provision'."

[27] There is no reason why the Industrial Magistrates Court does not also have, by implication, powers reasonably necessary to enable it to act effectively within its jurisdiction, including powers in respect of matters "that are regulated by a provision of a statute or rules of court, so long as it can do so without contravening any such provision".

[28] An implied power cannot arise in a circumstance which would result in the power so implied overriding an express provision in the legislation upon the subject in issue. Relevantly, for present purposes, the Act does contain express provisions in respect of calling upon the prosecution to elect, and amendment. However, those express provisions only apply in specified circumstances. It is common ground that those specified circumstances, as set out in s 43(3) and s 48 of the Act, were not satisfied in the present case. It is also common ground that s 43(4) of the Act has no application to the present case.

[29] The Act is silent in relation to a power to strike out aspects of a complaint. To imply a power in the Industrial Magistrates Court to strike out part of a complaint would therefore not amount to the implication of a power contrary to an express provision in the Act.

[30] A power to strike out is classically a power reasonably necessary to enable a court to act effectively within its jurisdiction. If a court has a jurisdiction, it is reasonably necessary, to ensure fairness in its trial procedures, and to prevent an abuse of process, that that court have, by implication, the power to strike out.

[31] An implied power to strike out a complaint, or parts thereof, is a power reasonably necessary to enable the Industrial Magistrates Court to act effectively within its jurisdiction. There is no reason why it would be impermissible to imply a power to cure a non-compliance with s 43, other than specified in s 43 of the Act, by striking out that part of a complaint on which the third respondent chose not to proceed.

[32] Such a course of action is consistent with the observations of Applegarth J, in the earlier application for review, as to the approach to be taken by the Industrial Magistrate upon further consideration of the complaint and summons and after the application for review.[8]

[33] The applicant contends that an implied power to strike out part of a complaint is inconsistent with the express provisions of s 43 of the Act requiring that a complaint not have more than one matter, except in certain specified exceptions. However, that a matter is regulated by a provision or a statute does not prevent the implication of a power, provided the implied power does not contravene such a provision.[9] There is no reason why the Act should be interpreted as containing the only circumstances in which the court can act in relation to a complaint which does not comply with s 43.

[34] The applicant further contended that implication of such a power would constitute implying a power to amend the complaint contrary to the express power to amend in s 48 of the Act. In support of that contention, the applicant relied upon Edwards v Jones,[10] which considered similar provisions in the Summary Jurisdiction Act 1848 (UK). In Edwards, Goddard LCJ said:

"In the Summary Jurisdiction Act, 1848, it is laid down that an information shall be for one offence only. There is also a provision in the same Act that no objection as to substance or form is to prevail, but that does not mean that the justices can, where a statute provides that an information shall be for one offence only, proceed to hear an information which charges two offences at the same time. If magistrates find an information preferred which contains two offences and not one, they should take steps to see that it is amended. The way they should do it - the authorities bear this out - is by saying to the prosecutor: 'On which offence do you elect to proceed?' The prosecutor can then say: 'I will elect to proceed upon offence A'. Thereupon the information should be amended by striking out the second offence charged, so that the defendant is only called upon to answer to the one offence."[11]

[35] The observations of Goddard LCJ were made in the context of an amendment. Whilst they referred to the means by which the amendment would be effected, the comments do not purport to concern any power reposed in a court to strike out. Whilst the effect of striking out may be to alter the charge, the power is very different. A power to strike out is a separate and distinct power.

[36] Further, the implication of a power to strike out will not result in any unfairness to the applicant. The power to strike out is discretionary. In deciding whether to exercise that power, a court must have regard to all relevant factors, including any prejudice or unfairness its exercise may cause for a defendant.

[37] In considering those discretionary factors, it is relevant for a court to have regard to the consequence of the exercise of the power, including that it will deny a defendant the opportunity of relying upon a failure to comply with s 43 of the Act, in circumstances where a limitation on the time for the commencement of any further prosecution may be operative.

[38] The applicant has not established that the second respondent erred in concluding that the Industrial Magistrates Court had an implied power to strike out that part of the complaint which the prosecutor indicates it does not propose to rely upon.

[40] I shall hear the parties as to the form of orders, and as to costs.

[1] Workplace Health and Safety v Thiess Pty Ltd, 30 May 2013 at [90].

[2] R v Forbes; Ex parte Bevan [1972] HCA 34; (1972) 127 CLR 1 at 7.

[3] Grassby v R [1989] HCA 45; (1989) 168 CLR 1 at 17.

[4] [1999] HCA 19; (1999) 198 CLR 435 at 451.

[5] Higgins v Comans and Anor [2005] QCA 234; (2005) 153 A Crim R 565 at 573, [28].

[6] Power v Heyward [2007] QSC 26; (2007) 2 Qd R 69.

[8] Thiess Pty Ltd v President of the Industrial Court of Queensland & Anor [2011] QSC 294 at [53].

[10] (1947) 1 KB 659.

[11] (1947) 1 KB 659, 661.