Loading...
Queensland Judgments
Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment
  • Appeal Pending

Ashley Robin Smith v Mark Douglas Stone; Nathan Leigh Guli v Mark Douglas Stone; Mount Isa Mines Limited & Michael Westerman v Mark Douglas Stone

 

[2020] ICQ 6

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Smith v Stone; Guli v Stone; Mount Isa Mines Limited v Stone [2020] ICQ 006

PARTIES:

ASHLEY ROBIN SMITH

(appellant)

v

MARK DOUGLAS STONE

(respondent)

FILE NO/S:

C/2019/19

PARTIES:

NATHAN LEIGH GULI

(appellant)

v

MARK DOUGLAS STONE

(respondent)

FILE NO/S:

C/2019/20

PARTIES:

MOUNT ISA MINES LIMITED and MICHAEL WESTERMAN

(appellants)

v

MARK DOUGLAS STONE

(respondent)

FILE NO/S:

C/2019/21

PROCEEDING:

Appeal

DELIVERED ON:

26 May 2020

HEARING DATE:

28 October 2019

MEMBER:

Martin J, President

ORDER/S:

In each appeal:

  1. The appeal is allowed.
  2. The decision of the Industrial Magistrate is set aside.
  3. The complaints made by the complainant on 22 September 2017 (as subsequently amended) are struck out for want of jurisdiction pursuant to s 158(2) of the Justices Act 1886.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – APPEALS – APPEAL TO INDUSTRIAL COURT – OTHER MATTERS

PROCEDURE – STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY – JURISDICTION – GENERALLY

MAGISTRATES – JURISDICTION – GENERAL MATTERS – OTHER PARTICULAR CASES – where the complainant filed complaints against each of the appellants alleging breaches of the Mining and Quarrying Safety and Health Act 1999 – where the complainant was the Executive Director of the Department of Natural Resources and Mines – where the complaints were made pursuant to a delegation from the Director-General of the Department of Natural Resources and Mines to the complainant – where each of the appellants filed an application in the Industrial Magistrates Court seeking an order that the complaints be struck out for want of jurisdiction – where the Industrial Magistrate dismissed each application and found that the complaints had been validly instituted – whether the complainant had the requisite standing to make the complaints

Acts Interpretation Act 1954 (Qld)
Acts Shortening Act 1867 (Qld)
Commonwealth Conciliation and Arbitration Act 1904-1930 (Cth)
Corporations Law (Cth)
Fines and Penalties Act 1901 (NSW)
Justices Act 1886 (Qld)
Mining and Quarrying Safety and Health Act 1999 (Qld)
Occupational Health and Safety Act 2000 (NSW)
Pure Food Act 1908 (NSW)
Statute Law (Miscellaneous Provisions) Act 1993 (Qld)
Therapeutic Goods Act 1989 (Cth)

CASES:

Anthony Hordern and Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1, considered
Attorney General (NSW) v Built NSW Pty Ltd (2013) 239 IR 102, considered
Bedingfeld v Keogh (1912) 13 CLR 601, applied
Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364, cited
Burns v Evans; ex parte Evans [1927] St R Qd 207, applied
Carltona v Commissioners of Works [1943] 2 All ER 560, applied
Commonwealth v Sanofi (2015) 237 FCR 483, considered
Comptroller-General of Customs v Kawasaki Motors Pty Ltd (No 2) (1991) 32 FCR 243, applied
David Grant & Co Pty Ltd v Westpac Banking Corporation (1995) 184 CLR 265, applied
Duncan v Demir (2009) 219 A Crim R 1, considered
Griffith University v Tang (2005) 221 CLR 99, considered
Ipswich City Council v Dixonbuild Pty Ltd [2012] QCA 98, applied
Malaysian Declaration Case (2011) 244 CLR 144, applied
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, cited
Monro v Revenue & Customs Commissioners (UK) [2009] Ch 69, applied 
R v Stewart [1896] 1 QB 300, applied
R v Thompson (1991) 58 A Crim R 81, considered
R v Wallis; Ex parte Employers Association of Wool Selling Brokers (1949) 78 CLR 529, applied

APPEARANCES:

For the appellant in C/2019/19 C Murdoch QC instructed by DWF Australia

For the appellant in C/2019/20 K Mellifont QC and A Scott instructed by Herbert Smith Freehills

For the appellants in C/2019/21 S Betzien, Solicitor of MinterEllison

For the respondent in each appeal G Beacham QC and A Wilson instructed by Holding Redlich

  1. [1]
    In September 2017, Mark Stone filed complaints against each of the appellants alleging breaches of the Mining and Quarrying Safety and Health Act 1999 (MQSHA). The particulars of those charges are not relevant to this appeal.
  2. [2]
    The complaints were made by Mr Stone pursuant to a delegation from the Director-General of the Department of Natural Resources and Mines to the Deputy Director-General and the Executive Director (Mr Stone) of that department of all powers of the Chief Executive, ie, the Director-General, under the MQSHA in relation to all sections of that Act. Each complaint states that the complaint is made by “a person delegated the powers of the Chief Executive under section 257(1) of the Mining and Quarrying Safety and Health Act 1999”.
  3. [3]
    Each of the appellants filed an application in the Industrial Magistrates Court seeking an order that the complaint be struck out for want of jurisdiction, pursuant to s 158 of the Justices Act 1886, on the basis that Mr Stone did not have the authority to commence proceedings for offences against the MQSHA.
  4. [4]
    Industrial Magistrate Merrin dismissed each application finding that the complaints had been validly instituted.
  5. [5]
    The issue for determination is whether Mr Stone had the requisite standing to make the complaints.
  6. [6]
    Mr Stone accepts that, if he did not have the necessary standing, then:
    1. (a)
      the complaint was not validly made,
    2. (b)
      the Industrial Magistrates Court lacked jurisdiction to hear the complaint, and
    3. (c)
      the complaints should have been struck out.

The legislative background

  1. [7]
    The legislation relevant to the questions raised is confined.
  2. [8]
    Section 27A of the Acts Interpretation Act 1954 (AIA) provides for the delegation of functions or powers:

27A Delegation of functions or powers

  1. (1)
    If an Act authorises a person or body to delegate a function or power, the person or body may, in accordance with the Act and any other applicable law, delegate the function or power to—
  1. (a)
    a person or body by name; or
  1. (b)
    a specified officer, or the holder of a specified office, by reference to the title of the office concerned.
  1. (2)
    The delegation may be—
  1. (a)
    general or limited; and
  1. (b)
    made from time to time; and
  1. (c)
    revoked, wholly or partly, by the delegator.

(3D) Anything done by or in relation to the delegate in relation to the delegation is taken to have been done by or in relation to the delegator.

Example—

Under an Act an evidentiary certificate purporting to be signed by an office holder is evidence of the content in any proceeding (the facilitation provision). The Act confers a general power of delegation on the office holder. The office holder uses the power to delegate the function of issuing the certificate to someone else. Under subsections (3C) and (3D) (and (6) and (7)), the facilitation provision is taken to provide for the certificate purporting to be signed by the delegate as having been signed by the delegator.

  1. [9]
    Part 11 of the AIA deals with deals with offences and criminal proceedings. Section 42 provides:

“Any person may take a proceeding for the imposition or enforcement of a penalty, or the making of a forfeiture order, under an Act.”

  1. [10]
    Those provisions are subject to s 4 of the AIA:

“The application of this Act may be displaced, wholly or partly, by a contrary intention appearing in any Act.”

  1. [11]
    The MQSHA contains the following relevant provisions:

234 Proceedings for offences

  1. (1)
    A prosecution for an offence against this Act is by way of summary proceedings before an industrial magistrate.
  1. (2)
    More than 1 contravention of a safety and health obligation under section 31 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 mine.
  1. (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.
  1. (4)
    The Industrial Relations Act 2016 applies, with necessary changes, to a proceeding before an industrial magistrate brought under subsection (1) and to a proceeding on appeal before the Industrial Court brought under subsection (3).
  1. (5)
    Proceedings for an offence against this Act may only be taken by—
  1. (a)
    the commissioner; or
  1. (b)
    the chief executive; or
  1. (c)
    another appropriately qualified person, with the written authorisation of the chief executive, either generally or in a particular case.
  1. (6)
    An authorisation under subsection (5)(c) is sufficient authority to continue proceedings in any case where the court amends the charge, warrant or summons.
  1. (7)
    In this section—

person dissatisfied with a decision in a proceeding means—

  1. (a)
    a party to the proceeding; or
  1. (b)
    a person bound by the decision.

257 Delegations

  1. (8)
    The Minister or chief executive may delegate his or her powers under this Act to an appropriately qualified public service employee.
  1. (9)
    In this section—

appropriately qualified includes having the qualifications, experience or standing appropriate to exercise the power.

Example of standing—

a person’s classification level in the public service

Ground of appeal

  1. [12]
    The ground of appeal advanced by all of the appellants (each appellant adopted the argument of the others) was that:

“[A] person who is not the Commissioner or the Chief Executive, and who does not hold a written authorisation of the Chief Executive under s. 234(5) of the MQSH Act to take proceedings under the Act, can[not] validly commence proceedings for offences against the MQSH Act under an instrument of delegation made by the Chief Executive under s. 257(1) of the MQSH Act.”

  1. [13]
    There were two arguments advanced in support of that ground:
    1. (a)
      s 234 of the MQSHA is the only source for identification of who may exercise the power to take proceedings for an offence against the MQSHA,
    2. (b)
      alternatively, s 257 of the MQSHA only permits delegation of a “power under the Act” and the power to prosecute is not a power under the MQSHA.

The power to bring a proceeding for an offence

  1. [14]
    The appellants argue that the power to commence proceedings for an offence does not arise under the MQSHA but from the common law which, as they put it, “has been enshrined in statute by s 42 of the Acts Interpretation Act 1954.
  2. [15]
    Section 42 of the AIA (set out above) broadly reflects the position at common law, namely, that any member of the public may make a complaint for an offence of a public nature. Whether that right still exists at common law or is now only to be derived from s 42 needs some consideration.
  3. [16]
    The power at common law was described by Kay LJ in R v Stewart[1] where he said:

“Prima facie there is no doubt that anybody may take proceedings to recover a penalty. That is an old rule and is well established. … In order to prevent the application of the general rule, it must be shewn that the Act in plain terms prevents any one, except certain specified persons, from prosecuting for offences under the Act.”

  1. [17]
    That power appeared, in statutory form, in the Acts Shortening Act 1867 (Qld). In Burns v Evans; ex parte Evans,[2] Macnaughton J said that s 26 of that Act “states in statutory form the common law on the subject”.[3] Section 26 provided:

“Any fine penalty or forfeiture so imposed may be sued and proceeded for by any person whomsoever unless by the Act imposing the same such right to sue or proceed shall be expressly given to any officer or person by name or designation.”

  1. [18]
    The AIA replaced the Acts Shortening Act in 1954 and, until 1993, the relevant section read:

42. Who may in general sue for penalties.

Any penalty or forfeiture imposed or made by, or authorised to be imposed or made under, any Act may be sued or proceeded for by any person whomsoever unless by the Act imposing or making or authorising the imposing or making of the same such right to sue or proceed shall be expressly given to any officer or person by name or designation.”

  1. [19]
    Section 42 reached its current form as a result of amendments made by the Statute Law (Miscellaneous Provisions) Act 1993. The Explanatory Note which formed part of the Bill for that Act relevantly stated that the amendment: “remakes existing sections 42 to 45 (that relate to offences and criminal proceedings) to make improvements of a drafting nature. No changes of substance have been made in remaking the sections.” (emphasis added)
  2. [20]
    In Ipswich City Council v Dixonbuild Pty Ltd,[4] Chesterman JA[5] said:

[19] Section 42 is a statutory expression of a common law principle. It was described as ‘an old rule’ by Kay LJ in R v Stewart, a case itself accepted as correct by the High Court in Bedingfeld v Keogh. Bedingfeld establishes that a contrary intention displacing the operation of s 42 of the Acts Interpretation Act should not be found without clear expression.” (citations omitted)

  1. [21]
    The situation where a statute “codifies” a common law right will not necessarily bring that common law right to an end. In Comptroller-General of Customs v Kawasaki Motors Pty Ltd (No 2),[6] Hill and Heerey JJ said:[7]

“Where a common law right exists and subsequently a right is created by statute, it may be accepted that the statute will be presumed not to take away the common law right unless that right is taken away expressly or by necessary implication.”

  1. [22]
    The AIA does not expressly deny the common law right. Does it exclude it, though, by necessary implication? Exclusion can arise through the imposition of restrictions which are incompatible with a right. It was put in this way by Arden LJ (as she then was) in Monro v Revenue & Customs Commissioners (UK):[8]

[22] In my judgment, the authorities give clear guidance that if Parliament creates a right which is inconsistent with a right given by the common law, the latter is displaced. By ‘inconsistent’ I mean that the statutory remedy has some restriction in it which reflects some policy rule of the statute which is a cardinal feature the statute. In those circumstances are likely implication of the statute, in the absence of contrary provision, is that the statutory remedy is an exclusive one.”

  1. [23]
    That and other authorities were considered in Commonwealth v Sanofi[9] where the Federal Court had to deal with provisions of the Therapeutic Goods Act 1989 (Cth) that contain provisions allowing the Commonwealth to seek compensation in circumstances where a patentee had obtained an interlocutory injunction. The respondents submitted that where Parliament created a statutory remedy, the creation of that statutory remedy necessarily qualifies the availability of other remedies. Justice Dowsett decided the case on the basis that it was not concerned with any general law right but with the practice of the court with respect to an undertaking for damages. Justices Kenny and Nicholas held that there was nothing inconsistent or incompatible with permitting recovery by the Commonwealth pursuant to the Act while not excluding recovery under the undertaking as to damages in the ordinary way.
  2. [24]
    When considering the effect of legislation on a common law right:

“The approach of the courts has consistently been to require very clear legislative intent before treating a statutory provision as taking away common law rights of a plaintiff, where there is an alternative construction available.”[10] (citations omitted)

  1. [25]
    There is nothing in the AIA that suggests that there is a restriction placed upon the right expressed in s 42 which, in some way, demonstrates an inconsistency with the common law right. It follows, that the common law right still exists and exists with s 42 of the AIA.
  2. [26]
    Another way of considering this matter is to conclude that s 42 does not take away the common law power, it codifies it. Whatever construction is placed upon this provision, it is sufficient for these purposes to conclude that there is a right conferred either at common law or under the AIA to commence proceedings.
  3. [27]
    The right contained in s 42 AIA can be displaced, wholly or partly, by a contrary intention appearing in any Act (s 4 AIA). But then, so can the common law right where legislation can, by the use of “plain terms” prevent anyone, except certain specified persons, from prosecuting for offences under an Act.
  4. [28]
    A provision similar to s 42 has been present in New South Wales legislation for some time. In Bedingfeld v Keogh,[11] the cognate provision was s 4 of the Fines and Penalties Act 1901 (NSW) which stated:

“Any fine penalty or forfeiture imposed or authorised to be imposed by any Act may be sued and proceeded for by any person whomsoever unless by the Act imposing the same such right to sue or proceed is expressly given to any officer or person by name or designation.”

  1. [29]
    In dealing with a prosecution under the Pure Food Act 1908 (NSW), Griffith CJ referred to that section and said:[12]

“What is necessary to be established, therefore, is that the Pure Food Act expressly gives some particular person the right to sue.”

  1. [30]
    With respect to the New South Wales provision referred to above, Priestley JA, in R v Thompson[13] said:

“The common law position is in one respect modified, but otherwise confirmed by s 4 of the Fines and Penalties Act … The right of any private person to prosecute a criminal charge is of very long standing in the legal systems of England and New South Wales … This right can only be displaced by clear words in a statute or statutory instrument.”

  1. [31]
    That displacement is not demonstrated by the AIA. The common law right may be abrogated in certain circumstances.[14] They were summarised by Kyrou J, in Duncan v Demir,[15] in the following way:

[21] At common law, any member of the public may bring a prosecution for an offence if the breach of the law charged is of a public nature and not of purely local interest (common law right) unless that right is abrogated by an Act either by express words or by necessary intendment. …

[22] The following principles are relevant to the question whether s 77 of the R[oad] S[afety] Act has abrogated the common law right:

  1. (a)
    the common law right is an important and very valuable public right which will not be held to be abrogated by a statute unless a contrary intention appears clearly from the statute;
  1. (b)
    the fact that a statute contains a list of persons authorised to bring a prosecution does not necessarily indicate that Parliament intends to abrogate the common law right;
  1. (c)
    the fact that a statute requires individuals to be authorised, including where the authorisation must be in writing, by a Minister, the head of a department or some other body before being empowered to bring a prosecution may, but will not necessarily, indicate that Parliament intends to abrogate the common law right;
  1. (d)
    the context within which a statutory provision that identifies the persons who are authorised to bring a prosecution under that statute appears may indicate that Parliament intends that only those persons may bring a prosecution under that statute.” (citations omitted)
  1. [32]
    In these circumstances, the question of abrogation need not be determined because the issue is whether the MQSHA is a or the source of that power for the purposes of prosecutions under that Act. If it is, then, subject to the other argument about inconsistency, that power could be delegated under s 257 MQSHA.
  2. [33]
    On behalf of Mr Smith it was argued that s 234 is the exclusive source for identification of those who may take proceedings for an offence against the MQSHA.
  3. [34]
    The respondent argues that by specifying the persons who “may only” commence proceedings for an offence s 234 gives those persons the power and authorisation to do so.
  4. [35]
    Section 234(5) provides that proceedings “may only be taken by” identified categories of persons. The meaning of the term “may only” was considered by Gummow J[16] in David Grant & Co Pty Ltd v Westpac Banking Corporation.[17] The subject legislation was s 459G of the Corporations Law (Cth) which relevantly provided:

“(1) A company may apply to the Court for an order setting aside a statutory demand served on the company.

  1. (2)
    An application may only be made within 21 days after the demand is so served.”
  1. [36]
    Gummow J said:[18]

“In this setting, the use in s 459G(2) of the term ‘may’ does not give rise to the considerations which apply where legislation confers upon a decision-maker an authority of a discretionary kind and the issue is whether ‘may’ is used in a facultative and permissive sense or an imperative sense. Here, the phrase ‘[a]n application may only be made within 21 days’ should be read as a whole. The force of the term ‘may only’ is to define the jurisdiction of the court by imposing a requirement as to time as an essential condition of the new right conferred by s 459G. An integer or element of the right created by s 459G is its exercise by application made within the time specified. To adapt what was said by Isaacs J in The Crown v McNeil it is a condition of the gift in sub-s (1) of s 459G that sub-s (2) be observed and, unless this is so, the gift can never take effect.” (citations omitted)

  1. [37]
    A not dissimilar circumstance arose in Attorney General (NSW) v Built NSW Pty Ltd,[19] where s 106(1) of the Occupational Health and Safety Act 2000 (NSW) was considered. It provided:

“Proceedings for an offence against this Act or the regulations may be instituted only:

  1. (a)
    with the written consent of a Minister of the Crown, or
  1. (b)
    with the written consent of an officer prescribed by the regulations, or
  1. (c)
    by an inspector, or
  1. (d)
    by the secretary of an industrial organisation of employees any member or members of which are concerned in the matter to which the proceedings relate.”
  1. [38]
    Of that section, Bathurst CJ[20] said:

[89] The context in the present case is that the legislature has evinced an intention that only a limited class of persons has the power to institute proceedings for an offence against other OH&S Act.”

  1. [39]
    The appellants argued, by analogy, that the reference to “powers” in s 257 should be construed as “powers” which have the MQSHA as their source. They point to the High Court decision in Griffith University v Tang[21] where it was held that a decision will only be “made under an enactment” if the decision is expressly or impliedly required or authorised by the enactment and the decision itself confers, alters or otherwise affect’s legal rights or obligations.[22] Thus, they say, only those powers that are conferred by the statute may be the subject of delegation.
  2. [40]
    I do not accept the respondent’s argument on this point. Section 234 does not confer a power – that is already done either at common law or by s 42 AIA – it confines the available power to three identified office holders. Thus, there is not a power capable of being delegated under s 257.

The Carltona principle

  1. [41]
    The respondent also relied upon a power to delegate other than that provided for in s 257. The principle relied upon was enunciated in Carltona v Commissioners of Works,[23] in which it was recognised that, in some cases, where a statutory provision confers an administrative power on a governmental officer, such as a Minister, it cannot have been intended that the power must be exercised personally. The nature of the power was explained by Mason J in Minister for Aboriginal Affairs v Peko-Wallsend Ltd:[24]

“The cases in which the principle has been applied are cases in which the nature, scope and purpose of the function vested in the repository made it unlikely that Parliament intended that it was to be exercised by the repository personally because administrative necessity indicated that it was impractical for him to act otherwise than through his officers or officers responsible to him.”

  1. [42]
    The respondent’s argument, on this point, asks the rhetorical question: is it the intention that the Minister or the Chief Executive would act personally, swearing the complaints themselves? The first point is, of course, that the Minister is not a person named in s 234 but only in s 257. But, the respondent argues that the appellants’ case must lead to the conclusion that Parliament intended the Minister or Chief Executive to personally swear the complaints. That does not follow, given that s 234 contemplates persons other than the Chief Executive commencing a proceeding.
  2. [43]
    The authors of “Interpretation”[25] make this comment, with which I agree, with respect to the so-called Carltona principle:

“The fact that a power is likely to affect the rights of individuals adversely tends against a conclusion that it can be exercised through an agent. To delegate to certain persons tends against a conclusion that it is permissible to act through other persons.”

Second argument

  1. [44]
    This leg of the appellants’ case is based upon the submission that s 234 of MQSHA is a special power relating to prosecution, whereas s 257 is a general power.
  2. [45]
    The first step in any argument of this kind is to examine the two sections to determine their role within the broader functions of the MQSHA. 
  3. [46]
    Section 234 appears in “Part 14 - Legal Proceedings”. That part provides for, among other things, the use of evidence, service of proceedings, and injunctions. Division 2 of Part 14 is headed up “Proceedings” and s 234 is in that division.  That division also provides for matters such as: recommendations to prosecute, limitation periods on starting proceedings, forfeiture on conviction, costs of investigations and recovery of fees.
  4. [47]
    Section 257, on the other hand, is in “Part 17 - Administration”. It is very brief. It contains powers of delegation, a power of the chief executive to require a person to keep and give to the chief executive statistics about the mining industry, a requirement that the chief executive must keep records about various things, including hazards and lost time, and a power for the chief inspector to approve forms for use under the Act.
  5. [48]
    It may be observed that Part 14 is confined to legal proceedings arising out of the operation or enforcement of the MQSHA. Part 17 can be seen as providing tools for a departmental head to conduct the general running of the department. It is of more general application than the provisions in Part 14.
  6. [49]
    The general principle relied upon by the appellants is the one expressed in Anthony Hordern and Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia.[26] In that case, the Commonwealth Conciliation and Arbitration Act 1904-1930 provided in ss 24 and 38 for the Court of Conciliation and Arbitration to have general powers to hear and determine industrial disputes. Using that power, the court made an order granting preference to female members of the union in certain circumstances. The employers challenged that order on the basis that it was inconsistent with the terms of s 40(a)(a) of the Act which relevantly provided:

“The Court … by its … award, or by order made on the application of any organization or person bound by the award, may … direct that, as between members of organizations of employers or employees and other persons … preference shall, in such manner as is specified in the award or order, be given to such members, other things being equal.”

  1. [50]
    The High Court determined that the Court of Conciliation and Arbitration had erred in making the award of preference under the general provisions referred to above. The power of the court to grant preference was limited by s 40.
  2. [51]
    Gavin Duffy CJ and Dixon J said:[27]

“But, in our opinion, the general power of the Court does not authorize his order. The order deals with preference of members of an organization over other persons in employment, and over that subject a limited and qualified power is specifically given by sec. 40. Extensive and unfettered as the authority of the Court of Conciliation and Arbitration to award preference in settlement of a dispute might have been in virtue of its general power, yet, when sec. 40 expressly gives a special power, subject to limitations and qualifications, surely it must be understood to mean that the Court shall not exercise an unqualified power to do the same thing. When the Legislature explicitly gives a power by a particular provision which prescribes the mode in which it shall be exercised and the conditions and restrictions which must be observed, it excludes the operation of general expressions in the same instrument which might otherwise have been relied upon for the same power.” (emphasis added)

  1. [52]
    That principle was also discussed by Dixon J in R v Wallis; Ex parte Employers Association of Wool Selling Brokers.[28] He described the relevant sections being considered in a manner in which they can be construed in the following way:[29]

“The general power of a conciliation commissioner to make an order or award determining a dispute is to be found in s. 38. The power is expressed in abstract terms without specifying or indicating what the determination may cover or what the award or order shall or may provide. Upon matters with reference to which the Act does not elsewhere specify or indicate what may or shall be done by an award or order, this general power is properly interpreted as enabling the arbitrator to make any provision he thinks fit that is relevant, appropriate or reasonably incidental to the settlement of the real dispute before him.

But upon some matters the Act does speak with more particularity. If it confers a specific power with respect to a limited subject or specifies a manner of dealing with it or otherwise provides what the duty or authority of the arbitrator shall be, then upon ordinary principles of interpretation the provision in which that is done should be treated as the source of his authority over the matter, notwithstanding that otherwise the same or a wider power over the same matter might have been implied in or covered by the general authority given by s. 38. This accords with the general principles of interpretation embodied in the maxim expressum facit cessare tacitum and in the proposition that an enactment in affirmative words appointing a course to be followed usually may be understood as importing a negative, namely, that the same matter is not to be done according to some other course.” (emphasis added)

  1. [53]
    Since Wallis, the High Court of Australia has applied these principles in many cases. A convenient summary of these various applications can be found in the Malaysian Declaration Case[30] where Gummow, Hayne, Crennan and Bell JJ said:[31]

“… [T]he relevant principle of construction has been identified by using a number of different terms. These have included whether the two powers are the ‘same power’ or are with respect to the ‘same matter’, or whether the general power encroaches upon the same subject matter exhaustively governed by the special power. But the central question is whether ‘the statute in question confers only one power to take the relevant action, necessitating the confinement of the generality of another apparently applicable power by reference to the restrictions in the former power’.” (citations omitted)

  1. [54]
    The mechanism set out in s 234 specifies the manner in which a prosecution for an offence is to be brought. It is contained within Part 14 of the MQSHA which is, itself, concerned with legal proceedings and in Division 2 of that Part which is specifically concerned with offences.
  2. [55]
    Section 234 sets out the essential elements for the commencement and conduct of a prosecution:
    1. (a)
      before whom the prosecution is to be brought,
    2. (b)
      that more than one contravention may be charged as a single charge if the contraventions happened within the same period and at the same mine,
    3. (c)
      that a person dissatisfied with the decision may appeal to the Industrial Court,
    4. (d)
      that the Industrial Relations Court applies to proceedings before an Industrial Magistrate,
    5. (e)
      that proceedings for an offence may only be taken by identified persons, and
    6. (f)
      that the authorisation of a person to commence proceedings is sufficient authority to continue proceedings in any case where the court amends the charge etc.
  3. [56]
    Section 234, so far as an authorisation under s 234(5) is concerned, prescribes the mode in which the power shall be exercised, that is, it requires that a proceeding for an offence (other than by the Commissioner or Chief Executive) be by a person who is “appropriately qualified” and has the “written authorisation of the Chief Executive”. Thus, the capacity to authorise a person confined to the Chief Executive. The section also specifically provides that the authority given under s 234(5) extends to proceedings where the charge, warrant or summons is amended by the court.
  4. [57]
    Section 257, on the other hand, provides a power of delegation to the Minister or Chief Executive. The Minister, though, cannot commence proceedings under s 234. Any delegation has to be made to an “appropriately qualified public service employee”. That strongly suggests that the purpose of the delegation is for the administration of the Department, that is, it is for internal purposes or for purposes recognised in Part 17. Further, that is supported by the definition of “appropriately qualified” which refers to a person having the “standing appropriate to exercise the power” and goes on to give an example of “standing” as being “a person’s classification level in the public service”. Again, that is something more relevant to the administration of the Department than to the qualifications necessary or appropriate to commence a proceeding for a breach of the Act.
  5. [58]
    The principle in Anthony Hordern applies in this case. The power to delegate under s 234 is a power by a particular provision that prescribes the mode in which it shall be exercised and the conditions and restrictions that must be observed. Thus, it excludes the operation of the general expression in s 257 which might otherwise have been relied upon for the same power.

Conclusion

  1. [59]
    The appellants have demonstrated that the Industrial Magistrate erred in reaching the conclusion she did. It follows that, in each appeal:
    1. (a)
      the appeal is allowed,
    2. (b)
      the decision of the Industrial Magistrate is set aside,
    3. (c)
      the complaints made by the complainant on 22 September 2017 (as subsequently amended) are struck out for want of jurisdiction pursuant to s 158(2) of the Justices Act 1886.

Footnotes

[1][1896] 1 QB 300 at 303.

[2] [1927] St R Qd 207.

[3][1927] St R Qd 207 at 216.

[4] [2012] QCA 98.

[5] With whom White JA and Dalton J agreed.

[6] (1991) 32 FCR 243.

[7] (1991) 32 FCR 243 at 258.

[8] [2009] Ch 69.

[9] (2015) 237 FCR 483.

[10]Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364 at 373 [23] per Gleeson CJ, Gummow, Hayne, Heydon and Crennan JJ.

[11] (1912) 13 CLR 601.

[12] (1912) 13 CLR 601 at 604.

[13](1991) 58 A Crim R 81 at 84-85.

[14] Duncan v Demir (2009) 219 A Crim R 1.

[15](2009) 219 A Crim R 1.

[16] With whom all other members of the court agreed.

[17](1995) 184 CLR 265.

[18] (1995) 184 CLR 265 at 277.

[19] (2013) 239 IR 102.

[20] With whom Beazley P and Hoeben CJ at CL agreed.

[21](2005) 221 CLR 99.

[22] (2005) 221 CLR 99 at 130 per Gummow, Callinan and Heydon JJ.

[23][1943] 2 All ER 560.

[24](1986) 162 CLR 24 at 38.

[25] Herzfeld and Prince, Interpretation, 2nd ed (2020) at 4.250.

[26] (1932) 47 CLR 1.

[27] Anthony Hordern and Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 at 47.

[28](1949) 78 CLR 529.

[29] (1949) 78 CLR 529 at 549-550.

[30] (2011) 244 CLR 144.

[31] (2011) 244 CLR 144 at 187-188.

Close

Editorial Notes

  • Published Case Name:

    Ashley Robin Smith v Mark Douglas Stone; Nathan Leigh Guli v Mark Douglas Stone; Mount Isa Mines Limited & Michael Westerman v Mark Douglas Stone

  • Shortened Case Name:

    Ashley Robin Smith v Mark Douglas Stone; Nathan Leigh Guli v Mark Douglas Stone; Mount Isa Mines Limited & Michael Westerman v Mark Douglas Stone

  • MNC:

    [2020] ICQ 6

  • Court:

    ICQ

  • Judge(s):

    Martin J, President

  • Date:

    26 May 2020

Litigation History

EventCitation or FileDateNotes
Primary Judgment-01 Jan 2019Complaints made by Mark Stone against each of Ashley Smith, Nathan Guli, Michael Westerman and Mount Isa Mines Ltd alleging breaches of the Mining and Quarrying Safety and Health Act 1999 (Qld); applications by each respondent that the complaints be struck out for want of jurisdiction pursuant to s 158 of the Justices Act 1886 (Qld); applications to strike out for want of jurisdiction dismissed: Industrial Magistrate Merrin.
Primary Judgment[2020] ICQ 626 May 2020In each appeal: appeal allowed; decision of Industrial Magistrate set aside; complaints made by Mark Stone struck out for want of jurisdiction pursuant to s 158(2) of the Justices Act 1886 (Qld): Martin J.
Notice of Appeal FiledFile Number: Appeals 6621/20; 6622/20; 6623/2019 Jun 2020-

Appeal Status

Appeal Pending
Help

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.