Thiess Pty Ltd v President of the Industrial Court of Queensland & Anor

The applicant did not seek an order in the nature of certiorari setting aside the decision and orders of the Industrial Magistrate.

[40] The applicant submits that, by misconstruing ss 43 and 48 of the Justices Act, the first respondent fell into jurisdictional error and, as a result, relief in the nature of certiorari may be granted. In response, the second respondent submits that if the first respondent erred, he did so in the course of exercising the jurisdiction committed to him, and that the applicant's arguments concerning the Industrial Magistrate's reliance on s 48 of the Justices Act do not support the conclusion that the President of the Industrial Court acted beyond his jurisdiction. The second respondent relies upon a passage from the Chief Justice's judgment in Bauer Foundations Australia Pty Ltd v President of the Industrial Court of Queensland:[13]

"Carrying out the process of evaluation committed to him as an appellate body, it was open (indeed compelling) for the President to conclude as he did. In any event, if he erred in the conclusion he drew, he did so in the course of exercising the jurisdiction committed to him."

The second respondent submits that the same reasoning applies in this case, in that any error by the first respondent was made in the course of exercising jurisdiction. The applicant replies that Bauer is distinguishable since this case does not involve the first respondent's assessment of a factual error made by an Industrial Magistrate. Rather, it involves the construction of a statute that confers power on a court. The applicant complains that ss 43 and 48 of the Justices Act, "properly construed, never authorised the First Respondent to delete the words 'In the alternative' from the amended complaint." I am unable to accept the applicant's submission in this regard. It does not distinguish between the decision made by the Industrial Magistrate and the decision made by the Industrial Court. The first respondent was not asked to delete the words "In the alternative" from the amended complaint. Instead, in hearing the appeal made to him, the first respondent was asked to decide whether the Industrial Magistrate's decision to delete these words was in error.

[41] Section 341(2) of the Industrial Relations Act 1999 permits a person to appeal to the Industrial Court if dissatisfied with a decision of a Magistrate in relation to a matter for which the Magistrate has jurisdiction.[14] The applicant in this case alleged that the Industrial Magistrate erred in failing to strike out the complaint on the basis that the remaining charge contained counts alleged to have been in the alternative when as a matter of law the two counts were not true alternatives. The second ground was that the Magistrate erred in holding that the remaining charge had already specifically pleaded two separate charges in compliance with s 43 of the Justices Act. The application to appeal to the Industrial Court sought orders that the appeal be allowed, the decision under appeal be set aside and the complaint be struck out. Alternatively, it sought an order that the appeal be allowed, the decision be set aside and the respondent/complainant be put to his election as to which of the alternatives in the charge the complainant wished to pursue, and that the remainder of the charge be struck out.

[42] The application to appeal was properly constituted and it invited the Industrial Court to find that the Magistrate had erred. The issue of whether the Magistrate had erred was one that the Industrial Court had jurisdiction to determine.[15] Misinterpretation of s 43 and s 48 of the Justices Act by the first respondent cannot be regarded as an error apt to deprive him of the authority to determine the appeal which came before him. The principles discussed by the Court of Appeal in Parker v President of the Industrial Court of Queensland in the context of the interpretation of substantive provisions of the Workers' Compensation and Rehabilitation Act 2003 also apply to the task of interpreting the provisions of the Justices Act. The principles of jurisdictional error discussed by Keane JA (with whom Fraser JA and White J agreed) in Parker are apposite in the present context.[16] Simply put, in this case, the issue was whether the Industrial Magistrate erred in the respects alleged in the application to appeal. That was a matter committed to the Industrial Court to decide. Its decision that the Industrial Magistrate did not err was made in the course of exercising its appellate jurisdiction.

[43] The issue then becomes whether, in the course of exercising the jurisdiction committed to it, the Industrial Court committed a "jurisdictional error". There may be no bright line separating jurisdictional errors from errors within jurisdiction.[17] The High Court in Kirk rejected the idea that there is "a rigid taxonomy of jurisdictional error."[18] The three examples of jurisdictional error given in Craig v South Australia[19] did not mark the boundaries of the relevant field. However, in this case the applicant relies upon jurisdictional error arising in respect of the third example given in Craig, namely misconstruction of the relevant statute thereby misconceiving the nature of the function which the inferior court is performing or the extent of its powers in the circumstances of the particular case.

[44] I have found that the Industrial Court fell into error in upholding the Industrial Magistrate's construction of ss 43 and 48 of the Justices Act, or his application of those sections to the facts. To the extent that the Industrial Court can be said to have misconstrued s 43 and s 48, it incorrectly decided something which it was authorised to decide. It was not a decision outside the limits of the functions and powers conferred on the Industrial Court, which would thereby render it a jurisdictional error. Any misinterpretation of ss 43 or 48 of the Justices Act did not involve a misconception by the President of the nature of the function that he was performing or the extent of the Industrial Court's powers in the circumstances of the particular case. The President of the Industrial Court decided points raised on appeal, including the proper interpretation of ss 43 and 48 of the Justices Act and their application to the circumstances at hand. The decision of the Industrial Court was one which the Industrial Court was authorised to decide and was an error within jurisdiction.

[45] Mr Flanagan SC for the applicant cited the following statement from Craig:[20]

"Similarly, jurisdictional error will occur where an inferior court disregards or takes account of some matter in circumstances where the statute or other instrument establishing it and conferring its jurisdiction requires that that particular matter be taken into account or ignored as a pre-condition of the existence of any authority to make an order or decision in the circumstances of the particular case"

and submitted that "the Industrial Magistrate and the Industrial Court misinterpreted the precondition to the exercise of the power under section 48."

[46] I accept the applicant's submission that the learned Industrial Magistrate misinterpreted a precondition to the exercise of the power to amend under s 48. In doing so, the Industrial Magistrate made a jurisdictional error because he made a decision outside the limits of the power to amend conferred on him. The Industrial Court can be said to have made the same error of interpretation in respect of the relevant provisions. However, the error that it made in this regard was about something which the Industrial Court was authorised to decide. It was an error within jurisdiction.

[47] After the hearing before me, I referred the parties to the decision in NK Collins Industries Pty Ltd v President of the Industrial Court of Queensland[21] and invited submissions in relation to it. In that case, an applicant sought to review a decision of the President of the Industrial Court dismissing an appeal from a decision of an Industrial Magistrate in a complaint brought against the applicant alleging a breach of the WHS Act. The issue related to the validity of the complaint. Justice Boddice found that the complaint was not a nullity but that, in dismissing the appeal, the President of the Industrial Court, whilst accepting that there are occasions when a complainant may be required to particularise inadequacies in precautions or lapses in diligence, erroneously held that there was no obligation on a complainant to particularise "the measures not taken" so as to apprise a defendant of the case it was to meet in preparing any defence.[22] Justice Boddice continued:

"That finding did not involve the application of established law to the facts as found by the first respondent. That finding constituted a misconstruction of the relevant statute and a misconception of the extent of the Court's powers in the particular case in relation to a matter which was specifically the subject of a ground of appeal before the first respondent. As such, the finding constitutes a jurisdictional error as that term is identified in Kirk."[23]

This passage suggests that a jurisdictional error will occur in a case in which the Industrial Court misconceives the extent of its powers in the particular case in relation to a matter which is specifically the subject of a ground of appeal before it. I accept that proposition and also the general proposition that a jurisdictional error will occur if the Industrial Court misconceives the extent of its powers. I do not understand the passage to mean that the Industrial Court falls into jurisdictional error whenever it misinterprets or misapplies statutory provisions that are the subject of a ground of appeal to it.

[48] It is appropriate to note the procedural and substantive differences between the present case and Kirk. Mr Kirk and the Kirk company applied to the New South Wales Court of Appeal for orders in the nature of certiorari quashing the decisions of the Industrial Court at first instance and orders in the nature of certiorari quashing two decisions of the Full Bench. The ultimate question in the appeal to the High Court was whether the Court of Appeal erred in refusing orders in the nature of certiorari to quash the orders for the convictions of the appellants. The High Court concluded that an order in the nature of certiorari could, and should, have been directed to the Industrial Court in respect of its decisions at first instance. That remedy should have been granted for jurisdictional error by the Industrial Court. Because both the order at first instance finding the offences proved and the order passing sentence should have been quashed, the orders subsequently made by the Full Bench of the Industrial Court were also quashed.[24]

[49] The course of proceedings in the present matter is of a different kind. The applicant did not seek an order in the nature of certiorari quashing the decision of the Industrial Magistrate. Instead, it first sought an order in the nature of certiorari setting aside the decision and orders of the President of the Industrial Court in dismissing an appeal from the Industrial Magistrate. The applicant then sought an order remitting the matter to the Industrial Court for further consideration. I have found that the error made by the Industrial Court was not a jurisdictional error and, in the circumstances, an order in the nature of certiorari should not be made. If the proceeding had been differently constituted and an application had been made to quash the Industrial Magistrate's decision on the grounds of jurisdictional error, then I would have found that such an error had been made by the Industrial Magistrate.

[50] In the end result, the Industrial Court made an error concerning the exercise of the Industrial Magistrate's power to amend in relation to a matter of substance. It was something about which the Industrial Court was authorised to decide. It was not an error about the extent of the Industrial Court's functions and powers. It was an error about the extent of the Industrial Magistrate's powers and whether the power to amend under s 48 arose in the circumstances. It was not, however, a jurisdictional error by the Industrial Court.

[51] As noted, the applicant did not seek certiorari against the Industrial Magistrate in the exercise of the Court's supervisory jurisdiction over inferior courts and tribunals. If it had done so, and if the decision of the Industrial Magistrate had been quashed, then the orders made by the Industrial Court upholding that decision would have been quashed as well. Instead, the applicant sought declaratory relief. No submissions were made concerning the discretion to grant such declaratory relief where there was no separate application to quash the decision of the Industrial Magistrate. It may be that the availability of an appeal to the Industrial Court is a powerful discretionary ground not to grant certiorari against an Industrial Magistrate even if it were otherwise available, and that similar discretionary considerations apply in relation to declaratory relief in respect of alleged errors. The exercise of the discretion to decline relief assumes importance where the Parliament has enacted a system for appealing the decisions of a Magistrate and has placed significant restraints upon proceedings by way of review of decisions in the Industrial Court. As Chesterman J (as his Honour then was) observed in a different context:

"If judicial review were available and prerogative orders were made in every case where the Supreme Court disagreed with the Industrial Court on a point of law which determines not only the outcome of the appeal but the jurisdiction of the Industrial Court with respect to the appeal, there would come into existence a right of appeal in every case from the Industrial Court to the trial division of the Supreme Court and thence to the Court of Appeal. Such an outcome was clearly not intended by Parliament when it enacted the Industrial Relations Act."[25]

The statutory restrictions upon the review of decisions of the Industrial Court do not affect the supervisory jurisdiction of the Court over inferior courts and tribunals in respect of jurisdictional error. The powerful discretionary considerations that apply in refusing relief, including an order in the nature of certiorari, in circumstances in which a party has yet to pursue and exhaust a remedy by way of appeal do not apply in the present circumstances. In this case, the applicant appealed to correct an error by the Industrial Magistrate which I have characterised as a jurisdictional error. The appeal was dismissed because, as I have found, the Industrial Court erred in concluding that the Industrial Magistrate was right to exercise the power to amend. In this matter, the consequence of the jurisdictional error made by the Industrial Magistrate concerning the availability of his power to amend pursuant to s 48 is to expose the applicant to two charges in circumstances where the Industrial Magistrate should have refused the application to amend, and proceeded to consider whether to strike out the complaint, or put the complainant to his election as to which of the two charges he wished to pursue, following which the other charge and the words "In the alternative" would have been struck out.

[52] I consider that it is an appropriate exercise of the supervisory jurisdiction of the Court to make orders that have the effect of not exposing the applicant to a conviction by reason of a jurisdictional error by the Industrial Magistrate. The applicant should not be exposed to conviction on two separate and distinct offences in circumstances where it finds itself in that position by reason of a jurisdictional error.

[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.

[54] I will provide the parties with an opportunity to make submissions concerning the granting of declaratory or other relief and the form of declaratory orders.

[55] In its supplementary submissions, the applicant made a final and alternative submission that if I found that an order in the nature of certiorari cannot be made against the first respondent because any error was made by him within jurisdiction, then I should join the Industrial Magistrate and make appropriate orders against him in the exercise of the Court's supervisory jurisdiction. I am not inclined to do so, at least at this stage. My preference at this stage is to make appropriate declaratory orders, following upon which I expect that the second respondent will not seek to proceed with both charges, will elect upon which charge he wishes to proceed and will invite the Industrial Magistrate to strike out the other charge. The Industrial Magistrate can deal with such an application according to law. I will make provision for liberty to apply, but the joinder of the Industrial Magistrate at this late stage may be an unnecessary exercise. Instead, I will exercise the supervisory jurisdiction by making appropriately worded declaratory orders.

[56] The applicant has established a jurisdictional error by the learned Industrial Magistrate. It has not established a jurisdictional error by the learned President of the Industrial Court of Queensland and, as a result, I decline to make an order in the nature of certiorari against the decision and orders of the first respondent.

[57] The form of declaratory relief sought by the applicant appears to invoke the supervisory jurisdiction of the Supreme Court in an instance of jurisdictional error by an inferior court, namely the Industrial Magistrate, being an error that was not corrected on appeal to the Industrial Court. Given the nature of the error, and the fact that the restrictions on reviews in s 349 of the Industrial Relations Act 1999 do not affect the Court's supervisory jurisdiction over jurisdictional error by an inferior court before which a party is facing criminal charges, this is an appropriate case for declaratory orders of the kind sought by the applicant. I will hear the parties in relation to appropriate forms of order. I will also hear the parties in relation to the issue of costs.

[1] [2010] QSC 373, [11].

[2] Industrial Relations Act 1999, s 349(2).

[3] s 41(2); Carey v Industrial Court of Queensland and Anor [2003] QSC 272, applying Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163, 177-178; Parker v President of the Industrial Court of Queensland [2008] QSC 175, [15]; on appeal [2009] QCA 120; [2010] Qd R 255.

[4] Kirk v Industrial Relations Commission (NSW) [2010] HCA 1; (2010) 239 CLR 531, 573-575 [72]-[74].

[5] Hayes v Wilson; Ex parte Hayes [1984] 2 Qd R 114, 139.

[6] Hayes v Wilson; Ex parte Hayes [1984] 2 Qd R 114,140.

[7] Hayes v Wilson; Ex parte Hayes [1984] 2 Qd R 114,141.

[8] Workplace Health and Safety Act 1995, s 165.

[9] cf Broome v Chenoweth [1946] HCA 53; (1946) 73 CLR 583, 601 per Dixon J.

[10] Thiess Pty Ltd v Adam John Low (C/2010/58; Industrial Court of Queensland No. 12 April 2011 unreported), [7]-[8].

[11] David Ross, Ross on Crime (5th ed) 2011, 783 [10.300].

[12] [1984] 2 Qd R 114.

[13] [2011] QSC 103, [7].

[14] This includes appeals from magistrates in workplace health and safety prosecutions: Workplace Health and Safety Act, s 164(3) and (4).

[15] Electrical Trades Union of Employees Queensland v President of the Industrial Court of Queensland [2006] QSC 76; [2007] 1 Qd R 1, 6; Parker v President of the Industrial Court of Queensland [2009] QCA 120; [2010] 1 Qd R 255, 270-71.

[16] [2009] QCA 120; [2010] 1 Qd R 255, 270-73 [32]-[38].

[17] Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82, 141 [163]; Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531, 571 [66].

[18] [2010] HCA 1; (2010) 239 CLR 531, 574 [73].

[19] [1995] HCA 58; (1995) 184 CLR 163, 177-8.

[20] [1995] HCA 58; (1995) 184 CLR 163, 177-8.

[21] [2010] QSC 373.

[22] [2010] QSC 373, [28] (footnotes omitted).

[23] [2010] QSC 373 [29] (footnotes omitted).

[24] Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531, 583 [108].

[25] Electrical Trade Union of Employees Queensland v President of the Industrial Court of Queensland [2006] QSC 76; [2007] 1 Qd R 1, 6 [21].