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  • Unreported Judgment

Du Preez v Chelden

 

[2020] ICQ 8

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Du Preez v Chelden [2020] ICQ 008

PARTIES:

KATHERINE EVELYN DU PREEZ (COMMISSIONER FOR MINE SAFETY AND HEALTH)

(appellant)

v

CHELDEN PTY LTD

ACN 071 477 891

(respondent)

FILE NO/S:

C/2018/18

C/2019/5

PARTIES:

KATHERINE EVELYN DU PREEZ (COMMISSIONER FOR MINE SAFETY AND HEALTH)

(appellant)

v

MOUNT ISA MINES LTD

ACN 009 661 447

(respondent)

FILE NO/S:

C/2018/19
C/2018/28

PROCEEDING:

Appeal

DELIVERED ON:

15 June 2020

HEARING DATE:

20 April 2020

MEMBER:

Martin J, President

ORDER/S:

The application for leave to appeal is struck out.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – APPEALS – APPEAL TO INDUSTRIAL COURT – WHO MAY APPEAL – where the defendants were prosecuted for alleged breaches of the Mining and Quarrying Safety and Health Act 1999 – where the Industrial Magistrate dismissed the charges and acquitted the defendants – where the prosecutor applied to appeal from those decisions and sought orders that the Industrial Magistrate’s decision be set aside and that each respondent be found guilty on all charges – whether the relevant legislation allows for a prosecutor to appeal against the acquittals entered

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – GENERAL APPROACHES TO INTERPRETATION – LEGISLATIVE HISTORY OF ACT – where the appeal provision in the relevant industrial legislation at the time that the Mining and Quarrying Safety and Health Act 1999 was enacted, the Workplace Relations Act 1997, provided that “a person dissatisfied with a decision” may appeal – where the industrial legislation was subsequently repealed and replaced twice – where the appeal provision in the current industrial legislation, the Industrial Relations Act 2016, provided that “a person aggrieved by a decision” may appeal – where s 234(3) of the Mining and Quarrying Safety and Health Act 1999 provided that “a person dissatisfied with a decision of an industrial magistrate… who wants to appeal must appeal to the Industrial Court” – where s 234(4) of the Mining and Quarrying Safety and Health Act 1999 provided that the Industrial Relations Act 2016 applied “with necessary changes” – whether the general principle, that “a person aggrieved by a decision of an industrial magistrate” does not include the prosecution, is displaced by s 234(3) of the Mining and Quarrying Safety and Health Act 1999

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – PRESUMPTIONS AS TO LEGISLATIVE INTENTION – NOT TO INVADE PERSONAL COMMON LAW RIGHTS – where the prosecutor sought to appeal from the decision of the Industrial Magistrate to acquit the defendants on all charges – whether the legislation intended to abrogate the common law principle that an acquittal cannot be questioned in another court

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – GENERAL APPROACHES TO INTERPRETATION – COMPATIBILITY WITH HUMAN RIGHTS LEGISLATION – where the proceedings commenced before the commencement of the Human Rights Act 2019 – whether the Human Rights Act 2019 applies to these proceedings

STATUTES – ACTS OF PARLIAMENT – INTERPRETATION – CONSIDERATION OF EXTRINSIC MATTERS – INTERNATIONAL CONVENTIONS, TREATIES OR AGREEMENTS – where the respondent submitted that the court should favour a construction of the relevant legislation that accords with the obligations Australia has under Article 14, paragraph 7 of the International Covenant on Civil and Political Rights – whether the court is required to take into account the obligations under the International Covenant on Civil and Political Rights

Federal Court of Australia Act 1976 (Cth)
Human Rights Act 2019 (Qld)
Industrial Relations Act 1991 (NSW)
Industrial Relations Act 1999 (Qld)
Industrial Relations Act 2016 (Qld), s 556, s 558, s 567
Mining and Quarrying Safety and Health Act 1999 (Qld)
Occupational Health and Safety Act 1993 (NSW)
Supreme Court Act 1995 (Qld)
Trade Practices Act 1974 (Cth)
Workplace Relations Act 1997 (Qld)

CASES:

Balog v Independent Commission Against Corruption (1990) 169 CLR 625, cited
CI & D Manufacturing Pty Ltd v Registrar Industrial Court of NSW (1996) 40 NSWLR 1, cited
Davern v Messel (1984) 155 CLR 21, cited
Hawkins v Jones (2000) 165 QGIG 253, not followed
Henderson v Taylor [2007] 2 Qd R 269, cited
Lee v NSW Crime Commission (2013) 251 CLR 196, cited
R v Chairman and Justices of the County of Tyrone (1905) 40 Ir LT 181, applied
R v Keepers of Peace and Justices of County of London (1890) 25 QBD 357, cited
R v Snow (1915) 20 CLR 315, applied
Scales v Tabone (1996) 153 QGIG 538, cited
Smith v The Queen (1994) 181 CLR 338, applied
Thomas v Paterson (1998) 159 QGIG 11, not followed
Thompson v Mastertouch TV Service Pty Ltd (No 3) (1978) 38 FLR 397, cited
Walsh v Stephenson (1996) 68 IR 22, cited

APPEARANCES:

J Hunter QC and R O’Gorman instructed by Gilshenan & Luton for the appellant in each matter

A Moses QC and J R Jones instructed by MinterEllison for Mount Isa Mines Ltd

P Kelly instructed by Carvosso & Winship for Chelden Pty Ltd

  1. [1]
    On 6 March 2013, Jordan Richard Taurima was cleaning a bund (a walled containment area) in the Primary Gas Area at the Mount Isa Mines copper smelter. Mr Taurima was employed by Chelden Pty Ltd which was a cleaning contractor engaged by Mount Isa Mines Ltd (MIM). At the same time as Mr Taurima was engaged in his work, a crane was being used to remove an on-site pump at the bund for repair. The pump fell, struck Mr Taurima and he was killed.
  2. [2]
    The Commissioner for Mine Safety and Health (then Mr Stewart Bell) prosecuted MIM and Chelden alleging that each had breached provisions of the Mining and Quarrying Safety and Health Act 1999 (MQSH Act). The trial took place over 13 days. On 14 August 2018, the Industrial Magistrate dismissed the charges and acquitted each defendant.
  3. [3]
    Ms Du Preez (referred to in these reasons the prosecutor) has applied to appeal from those decisions and seeks orders that the Industrial Magistrate’s decision be set aside and, in substitution, that each defendant be found guilty on all charges.
  4. [4]
    After the application to appeal was heard, the parties were invited to make such submissions as they wished with respect to the nature of the appeal and whether the relevant legislation allowed for a prosecutor to appeal against the acquittals entered for the defendants. The respondents to the appeal (Chelden and MIM – referred to in these reasons as the defendants) contend that the legislation does not allow for an appeal from an acquittal and apply for an order dismissing the appeal.[1] These reasons deal with that issue.

The legislative background

  1. [5]
    Section 31 of the MQSH Act provides:

“A person on whom a safety and health obligation is imposed must discharge the obligation.

…”

  1. [6]
    The section then goes on to provide for the maximum penalties which may be imposed depending upon the consequence of the failure to discharge the obligation. At the time, the maximum penalty was 1,000 penalty units or 2 years imprisonment.
  2. [7]
    Section 569 of the Industrial Relations Act 2016 (IR Act) relevantly provides:

569 Where offence proceedings are to be heard and decided

  1. (1)
    Proceedings for an offence against this Act are to be heard and decided by the court or a magistrate, within the limits of the court’s or magistrate’s jurisdiction.
  1. (2)
    Proceedings before a magistrate are to be heard and decided summarily under the Justices Act 1886, but the Industrial Magistrates Court where the proceedings are started must be constituted by a magistrate sitting alone.

...”

  1. [8]
    Section 234 of the MQSH Act provides:

“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.” (emphasis added)
  1. [9]
    The word “decision” is not defined in the MQSH Act.
  2. [10]
    The applications to appeal are made pursuant to s 556 of the  IR Act:

A person aggrieved by a decision of a magistrate may appeal against the decision to a court.” (emphasis added)

  1. [11]
    So far as it is relevant, “decision” is defined in the IR Act in this way:[2]

decision means—

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

…”

  1. [12]
    On such an appeal, the powers of this court are set out in s 558:

558 What court may do

  1. (1)
    On an appeal under section 556 or 557, the court may—
  1. (a)
    dismiss the appeal; or
  1. (b)
    allow the appeal, set aside the decision and substitute another decision; or
  1. (c)
    allow the appeal and amend the decision; or
  1. (d)
    allow the appeal, suspend the operation of the decision and remit the matter, with or without directions, to the commission or an Industrial Magistrates Court to act according to law.

…”

The history of these provisions

  1. [13]
    When the MQSH Act was enacted in 1999 the relevant industrial legislation was the Workplace Relations Act 1997. Section 234(4) of the MQSH Act referred to it. The Workplace Relations Act relevantly provided:

Appeal from commission, magistrate or registrar to court

360. 

(3) A person dissatisfied with a decision of a magistrate exercising jurisdiction conferred under section 310 in relation to—

  1. (a)
    the matters stated in section 310(2)(a) or (c); or
  1. (b)
    the powers provided for in section 435;

may appeal to the court.

(4) The court may—

  1. (a)
    dismiss the appeal; or
  1. (b)
    allow the appeal and—
  1. (i)
    set aside the decision appealed against and substitute the decision it considers should have been made; or
  1. (ii)
    amend, as it considers appropriate, the decision appealed against; or
  1. (iii)
    suspend the operation of the decision appealed against and remit the industrial cause, with or without directions, to the commission, an Industrial Magistrates Court or the registrar to act according to law.

Court may vary penalty on appeal

361. If the court, on appeal, confirms a person’s conviction for an offence, it may increase or reduce the penalty imposed on the person for the offence.” (emphasis added)

  1. [14]
    The Workplace Relations Act was repealed and replaced by the Industrial Relations Act 1999 and s 234 of the MQSH Act was amended to reflect that. The relevant section of the Industrial Relations Act 1999 was:

341 Appeal from the commission, magistrate or registrar

  1. (2)
    A person may appeal to the court if dissatisfied with a decision of a magistrate in relation to a matter for which the magistrate has jurisdiction.
  1. (3)
    The court may—
  1. (a)
    dismiss the appeal; or
  1. (b)
    allow the appeal, set aside the decision and substitute another decision; or
  1. (c)
    allow the appeal and amend the decision; or
  1. (d)
    allow the appeal, suspend the operation of the decision and remit the industrial cause, with or without directions, to the commission, an Industrial Magistrates Court or the registrar to act according to law.

…” (emphasis added)

  1. [15]
    When the Industrial Relations Act 1999 was repealed, its replacement, the IR Act, replaced the requirement that an appellant be a “person dissatisfied” with the requirement that it be a “person aggrieved”.

Fundamental principles concerning appeals from acquittals

  1. [16]
    It was not disputed that a statute will not permit a prosecution appeal against an acquittal unless there is clear and unambiguous language used to allow such an appeal being taken.[3]
  2. [17]
    This is based upon a long standing common law principle that “an acquittal made by a Court of competent jurisdiction and made within its jurisdiction, although erroneous in point of fact, cannot as a rule be questioned and brought before any other Court”[4]
  3. [18]
    That principle was applied by Deane J in Thompson v Mastertouch TV Service Pty Ltd (No 3).[5] In that case Mastertouch had been charged with an offence under the Trade Practices Act 1974 (Cth). It was acquitted. The prosecutor sought to appeal and relied upon s 24(1) of the Federal Court of Australia Act 1974 (Cth). So far as is relevant, s 24 provided:

“(1) Subject to this section and to any other Act, whether passed before or after the commencement of this Act (including an Act by virtue of which any judgments referred to in this section are made final and conclusive or not subject to appeal), the Court has jurisdiction to hear and determine—

  1. (a)
    appeals from judgments of the Court constituted by a single Judge;
  1. (b)
    appeals from judgments of the Supreme Court of a Territory;

…”

  1. [19]
    Justice Deane (with whom Smithers and Riley JJ agreed) said:

“The essential question is whether, in that context, the grant of jurisdiction contained in the general words of s. 24 (1) (a) and (b) should be construed as encompassing jurisdiction to hear and determine appeals brought as of right upon judgments of acquittal pronounced by superior courts in circumstances where it is a well-established and fundamental principle of the common law that no such appeal should ordinarily lie. The conclusion which I have reached is that, on their proper construction, the provisions of s. 24 (1) (a) and (b) do not confer jurisdiction to hear, or authority to institute, such appeals.”[6]

  1. [20]
    It should be understood that when Deane J referred to “superior courts” he was, of course, including the Federal Court which s 24(1)(a) specifically referred to as a court constituted by a single judge. That is relevant to discussion later in these reasons about acquittal after a summary trial and acquittal after a jury trial. This issue was considered earlier in his Honour’s reasons where his Honour said:

“It is apparent that any general principle recognised by the above cases applies in respect of judgments of acquittal pronounced, after a hearing on the merits, by a court of competent jurisdiction regardless of whether the judgement was pronounced after the verdict of a jury and regardless of whether the relevant issues were issues of fact or of law.”[7]

  1. [21]
    In the later decision in Davern v Messel,[8] Gibbs CJ[9] said that there was no sufficient reason to question the rule that a statute will not be understood to confer a right of appeal from a decision dismissing a criminal charge unless it does so distinctly. But, his Honour went on to draw a distinction between jury verdicts and summary verdicts:

“A decision of a court of summary jurisdiction discharging a complaint or information has never been regarded with the same sanctity as the verdict of a jury. The consistent trend of legislation … has been towards allowing the prosecution to appeal against an order of a magistrate or justices dismissing a charge and empowering the court on appeal to quash the order and to direct that the defendant be convicted.”[10]

  1. [22]
    Chief Justice Gibbs, it should be noted, referred to a “consistent trend of legislation” rather than a consistent trend of interpretation. Perhaps it is a matter of perspective, for, in the same case, Mason and Brennan JJ said:

“The Australian cases indicate that our courts have readily perceived indications of statutory intention to confer a right of appeal on a prosecutor from an acquittal in summary proceedings. There has been less reluctance to concede a right of appeal from an acquittal in summary proceedings than from an acquittal on indictment, for the very good reason that a jury verdict of not guilty has been traditionally regarded as inviolate …”[11] (citations omitted)

  1. [23]
    The statements above are consistent with the principle that, when construing sections which are said to support a right of appeal against acquittal, wide or general words should be read down so as to avoid radical or substantial change to existing law in the absence of a clear contrary intention.[12]

The Human Rights Act 2019 (Qld) and international treaties

  1. [24]
    The parties agreed, correctly with respect, that the Human Rights Act 2019 did not apply in these circumstances because s 108 provides that the Act does not affect proceedings commenced before the commencement of the Act.
  2. [25]
    It was argued on behalf of MIM that I should take into account the obligations Australia has under the International Covenant on Civil and Political Rights, in particular, Article 14, paragraph 7 of that Covenant which is identical in terms to s 34 of the Human Rights Act 2019. It is unnecessary, given the conclusion I have reached to engage in that consideration.

The principle of legality

  1. [26]
    The defendants argued that to allow the complainant to appeal against an acquittal would be inconsistent with the principle of legality and its protection of the common law rule against double jeopardy.
  2. [27]
    The High Court has had occasion to consider this issue on a number of occasions. It is, for example, expressed in robust terms in Lee v NSW Crime Commission.[13] Chief Justice French said:

[29] A statute said to affect important common law rights and procedural and other safeguards of individual rights and freedoms will be construed “as effecting no more than is strictly required by clear words or as a matter of necessary implication”. That is a formulation, sufficient for present purposes, of the principle of legality, the origins and content of which are discussed in the reasons for judgment of Kiefel J https://www-westlaw-com-au.ezproxy.sclqld.org.au/maf/wlau/app/document?snippets=true&ao=&src=docnav&docguid=Ice27a8c030e011e3a707f08032e742e8&srguid=&startChunk=2&endChunk=2&nstid=std-anz-highlight&nsds=AUNZ_CASES&isTocNav=true&tocDs=AUNZ_CASES_TOC&details=most&originates-from-link-before=false - FTN.20and in the joint reasons for judgment of Gageler and Keane JJ. It is the application rather than the content of that principle which is in issue in this case. Legislative purpose, text and context have a role to play when considering its application.” (citations omitted)

  1. [28]
    Justice Kiefel dealt with the issue in this way:

[307]  The principle of construction now sought to be invoked can be traced to a statement of Marshall CJ in the Supreme Court of the United States in 1805:

“Where rights are infringed, where fundamental principles are overthrown, where the general system of the laws is departed from, the legislative intention must be expressed with irresistible clearness, to induce a court of justice to suppose a design to effect such objects.”

That statement, amongst others, was relied on in successive editions of Maxwell on the Interpretation of Statutes, first published in 1875, in support of the existence of a “presumption against any alteration of the law beyond the specific object of the Act”

[308] In Australia, the principle is generally traced to the adoption and application in Potter v Minahan of a passage in the fourth edition of Maxwell, published in 1905. After stating that “[t]here are certain objects which the Legislature is presumed not to intend” and that “a construction which would lead to any of them is therefore to be avoided”, the passage as quoted and applied continued:

“One of these presumptions is that the Legislature does not intend to make any alteration in the law beyond what it explicitly declares, either in express terms or by implication; or, in other words, beyond the immediate scope and object of the statute. In all general matters beyond, the law remains undisturbed. It is in the last degree improbable that the Legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness; and to give any such effect to general words, simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used.”

(Footnotes omitted.) The passage concluded:

“General words and phrases, therefore, however wide and comprehensive in their literal sense, must be construed as strictly limited to the actual objects of the Act, and as not altering the law beyond.”

[314] The principle of construction is fulfilled in accordance with its rationale where the objects or terms or context of legislation make plain that the legislature has directed its attention to the question of the abrogation or curtailment of the right, freedom or immunity in question and has made a legislative determination that the right, freedom or immunity is to be abrogated or curtailed. The principle at most can have limited application to the construction of legislation which has amongst its objects the abrogation or curtailment of the particular right, freedom or immunity in respect of which the principle is sought to be invoked. The simple reason is that “[i]t is of little assistance, in endeavouring to work out the meaning of parts of [a legislative] scheme, to invoke a general presumption against the very thing which the legislation sets out to achieve” (footnotes omitted)

  1. [29]
    Another expression of this aid to construction can be found in Balog v Independent Commission Against Corruption,[14] where provisions in the relevant legislation were held not to allow the Independent Commission Against Corruption to include in a report a statement of any finding by it that any person was or may have been guilty of a criminal offence or corrupt conduct. The court expressed the general principle of construction in this way:

“If the legislation admits of a wider interpretation than that which we have given to it (and we do not think that it does), then the narrower construction is nevertheless to be adopted upon the basis that where two alternative constructions of legislation are open, that which is consonant with the common law is to be preferred.”[15]

The treatment of provisions allowing an appeal

  1. [30]
    The respondent accepts that the phrase “a person aggrieved by a decision of an Industrial Magistrate” does not include the prosecution. That was the decision reached by de Jersey P in Walsh v Stephenson[16] because the prosecution, unlike a defendant, is not someone to whom something has been done as a consequence of the decision.[17]
  2. [31]
    In this case, though, the prosecutor says that there has been a clear and unambiguous displacement of the general principle by reason of the use of the words “a person dissatisfied with a decision of an industrial magistrate” in s 234(3) of the MQSH Act and the provision in s 234(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. [32]
    A “person dissatisfied with the decision” is defined to include “a party to the proceeding” and thus, argues the prosecutor, includes Ms du Preez. Ms du Preez’s predecessor, having brought the proceedings, was a party to the proceedings.
  2. [33]
    Further, the prosecutor contends that the “necessary changes” referred to in s 234(4) is the change between the phrase “person aggrieved” in the IR Act and the “person dissatisfied” in the MQSH Act. That is not immediately obvious. From the commencement of the MQSH Act until the enactment of the IR Act there was a consistency of definition with respect to who might bring an appeal. Until the IR Act both statutes referred to “a person dissatisfied”. It is difficult to conceive why the legislature would change the term in the IR Act if it was intended that the changed term would have no effect so far as the MQSH Act was concerned.
  3. [34]
    The words used in s 234 are words of general application. They are neither specifically confined nor enlarged. Similar expressions have been considered in other circumstances. For example, in CI & D Manufacturing Pty Ltd v Registrar Industrial Court of NSW[18] the Court of Appeal considered s 297 of the Industrial Relations Act 1991 (NSW):

“(1)  The Full Industrial Court consists of 3 Judges, whether or not including either the Chief Judge or the Deputy Chief Judge, or both of them.

  1. (2)
    The Full Industrial Court has jurisdiction to hear and determine:

  1. (d)
    an appeal to it from a decision of a Judge sitting alone in the exercise of the jurisdiction of the Industrial Court otherwise than on an appeal.

…”

  1. [35]
    The prosecution in that case was for an offence under the Occupational Health and Safety Act 1993 (NSW). Unlike the MQSH Act, that statute did not contain any appeal provision – appeals were heard pursuant to s 297 of the Industrial Relations Act 1991 (NSW). Clarke JA (with whom Mahoney P and Handley JA agreed) said:

It will be seen that there is no provision in the Industrial Relations Act (or in the Occupational Health and Safety Act) which expressly gives a right of appeal against an acquittal of a criminal charge by a judge sitting alone exercising the jurisdiction of the Industrial Court. The relevant appeal provision (s 297(2)(d)), which the Full Court of the Industrial Court expressly held applied to the appeal, is in general terms not unlike the sections of the Federal Court of Australia Act 1976 (Cth) considered in Thompson and it is impossible to derive from it an expression of a power of appeal from a judge exercising the jurisdiction of the Industrial Court who has made an order of acquittal. That conclusion is sufficient to dispose of the point under consideration.”[19]

  1. [36]
    A provision of similar generality was considered in Henderson v Taylor.[20] In that case, the primary judge had dismissed an application that the respondent be punished for an alleged contempt of court. The Supreme Court Act 1995 (which then applied) provided:

254 As to appeals from orders made by single judge

An appeal shall lie to the Court of Appeal from every order made by a judge in court or chambers except orders made in the exercise of such discretion as aforesaid.”

  1. [37]
    That is, obviously, a provision of broad application. But it was held not to be available with respect to an acquittal on an alleged contempt of court. McMurdo J (with whom Mackenzie and Philippides JJ agreed) said:

[75]  In Queensland the prevailing view is that an appeal lies against a conviction of contempt under what is now s.254 of the Supreme Court Act 1995. The challenge to the competency of the present appeal does not question that view. Instead it involves a rule of interpretation which applies only to appeals against acquittals. That rule has its basis in what Viscount Simon L.C. in Benson described as the right of a citizen, who has been acquitted of a charge, “not to be a second time vexed”.

[76]  The alleged contempt in this case is of the kind characterised as a criminal contempt, but the better view appears to be that all types of contempt of court are essentially criminal in nature. … In Australian Building Construction Employees, in the judgment of the Full Court at 521–522, it was concluded that a case of the present kind, an alleged contempt of court by wrongful interference with the course of justice, was relevantly criminal in nature so as to engage the principle that there should be no appeal from an acquittal. The reasoning is equally relevant to the present context and I respectfully adopt it. …

[77]  In relation to the present question, which is whether a proceeding for punishment for an alleged contempt of court should be regarded as criminal so as to preclude an appeal against a dismissal of the proceeding (absent a clearly expressed jurisdiction), the Court of Appeal in O’Shea v. O’Shea and Parnell (1890) 15 P.D. 59 was asked to decide a purported appeal from an order refusing the issue of a writ of attachment in respect of an alleged criminal contempt. Lindley L.J. there said (at 64):

“The offence of the appellant is certainly a criminal offence. I do not say that it is an indictable offence, but, whether indictable or not, it is a criminal offence, and it is an offence, and the only offence that I know of, which is punishable at common law by summary process.

As regards the authorities, no case has been cited which conflicts with the view which we take on this appeal … after the appeal had been heard and judgment given, the point occurred to me, and I said I was not satisfied that we had any jurisdiction to hear the appeal. I am now satisfied that we had no jurisdiction to hear it.”

[78]  An appeal is not a common law remedy but a statutory right: Builders Licensing Board v. Sperway Constructions (Syd.) Pty Ltd (1976) 135 C.L.R. 616 at 619. Section 254 of the Supreme Court Act 1995 provides that an appeal lies to the Court of Appeal from every order made by a judge. But that is in general terms and makes no specific provision for an appeal against an order dismissing such a charge of contempt. Rights of appeal in criminal proceedings derive from ch. 67 of the Criminal Code, but those provisions do not provide for an appeal against an acquittal of a criminal charge.” (citations omitted, emphasis added)

  1. [38]
    Another matter which assists in construing these sections is s 558 of the IR Act. It provides for the orders which may be made on an appeal:

558 What court may do

  1. (1)
    On an appeal under section 556 or 557, the court may—
  1. (a)
    dismiss the appeal; or
  1. (b)
    allow the appeal, set aside the decision and substitute another decision; or
  1. (c)
    allow the appeal and amend the decision; or
  1. (d)
    allow the appeal, suspend the operation of the decision and remit the matter, with or without directions, to the commission or an Industrial Magistrates Court to act according to law.
  1. (2)
    Also, the court may direct an industrial magistrate to issue a warrant for the appellant’s arrest if—
  1. (a)
    under the decision that was appealed, the appellant was sentenced to a term of imprisonment; and
  1. (b)
    the appellant was released from custody by a magistrate under the rules made under section 551; and
  1. (c)
    after the appeal is decided, discontinued or struck out, the appellant is still required to serve all or part of the term of imprisonment.
  1. (3)
    The industrial magistrate must comply with the direction.
  1. (4)
    When arrested, the appellant must be taken to a corrective services facility within the meaning of the Corrective Services Act 2006 to serve the unexpired portion of the term of imprisonment to which the appellant was sentenced.”
  1. [39]
    As the respondents point out, the section does not explicitly allow the court to set aside the acquittal and enter a verdict of guilty. Thus, they say, there is no authority for such an order to be made. And, because that was not considered in earlier decisions of this court – Thomas v Paterson[21] and Hawkins v Jones[22] – I should not follow them. I agree. It was not argued in those cases that the power of the court should be taken into account when considering whether the common law principle against double jeopardy had been abrogated.

Conclusion

  1. [40]
    The words used in s 234 MQSH Act are words of general application. They do not make plain that the legislature has directed its attention to the question of the abrogation of the common law principle that an acquittal cannot be questioned in another court. The reference in s 234 of the MQSH Act to the application of the IR Act “with necessary changes” does not clarify the intention to the extent necessary. It works to create an ambiguity especially given that the legislature must be taken to have deliberately changed the reference to “a person dissatisfied” in the predecessors of the IR Act to “a person aggrieved” in the current IR Act. 
  2. [41]
    The prosecutor argued that the words are plain and that they are neither broad nor ambiguous. I do not accept that. The term “person dissatisfied” is a term of wide application. It comes within that category of description which allows alternative constructions and where there are alternative constructions available that which is consonant with the common law is to be preferred.
  3. [42]
    The construction advanced by the prosecutor would undermine the protection of the common law including the general rule against double jeopardy.
  4. [43]
    On its proper construction, s 234 MQSH Act does not permit an appeal to be brought against an acquittal after a trial on the merits. The application for leave to appeal by the prosecutor, therefore, is incompetent and struck out.
  5. [44]
    I will hear the parties on costs.

Footnotes

[1]Each applicant adopted the other’s submissions.

[2]Industrial Relations Act 2016 sch 5 (definition of “decision”).

[3]R v Snow (1915) 20 CLR 315 at 322-323 per Griffiths CJ.

[4]R v Chairman and Justices of the County of Tyrone (1905) 40 Ir LT 181 at 182 per Palles LCB.

[5](1978) 38 FLR 397 at 401.

[6](1978) 38 FLR 397 at 412.

[7](1978) 38 FLR 397 at 402.

[8](1984) 155 CLR 21.

[9]With whom Dawson J agreed.

[10](1984) 155 CLR 21 at 37-38.

[11](1984) 155 CLR 21 at 52.

[12]Smith v The Queen (1994) 181 CLR 338 at 346-347 per Mason CJ, Dawson, Gaudron and McHugh JJ.

[13](2013) 251 CLR 196.

[14](1990) 169 CLR 625.

[15](1990) 169 CLR 625 at 635-636 per Mason CJ, Deane, Dawson, Toohey and Gaudron JJ.

[16](1996) 68 IR 22.

[17]See also Scales v Tabone (1996) 153 QGIG 538; R v Keepers of Peace and Justices of County of London (1890) 25 QBD 357.

[18](1996) 40 NSWLR 1.

[19](1996) 40 NSWLR 1 at 9.

[20][2007] 2 Qd R 269.

[21](1998) 159 QGIG 11.

[22](2000) 165 QGIG 253.

Close

Editorial Notes

  • Published Case Name:

    Du Preez v Chelden

  • Shortened Case Name:

    Du Preez v Chelden

  • MNC:

    [2020] ICQ 8

  • Court:

    ICQ

  • Judge(s):

    Member Martin J

  • Date:

    15 Jun 2020

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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