Loading...
Queensland Judgments

beta

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

Newman v President of the Industrial Court of Qld

 

[2012] QSC 145

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Newman v President of the Industrial Court of Qld & Anor [2012] QSC 145

PARTIES:

CLIVE JOHN NEWMAN
(applicant)
v
PRESIDENT OF THE INDUSTRIAL COURT OF QUEENSLAND
(first respondent)
TJV ELECTRICAL PTY LTD
(second respondent)

FILE NO/S:

No 9634 of 2011

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

1 June 2012

DELIVERED AT:

Brisbane

HEARING DATE:

24 May 2012

JUDGE:

Ann Lyons J

ORDER:

The Application is dismissed.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – JURISDICTIONAL MATTERS – where applicant was charged with offence under the Electrical safety Act 2002 (Qld) – where Industrial Magistrate determined a preliminary application that the complaint was so incurably defective that it denied jurisdiction and struck out the complaint – where, on appeal, the President of the Industrial Court confirmed that the Industrial Magistrate had no jurisdiction and that the complaint was incurably defective – where applicant argues that the President of the Industrial Court failed to properly appreciate the effect of Kirk v Industrial Relations Commission of New South Wales & Anor; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (2010) 239 CLR 531 and therefore his Honour’s approach involved a misconstruction of the applicable legal principles and a misconception of the extent of his powers – where applicant argues a constructive failure to exercise jurisdiction by the President of the Industrial Court to save the complaint pursuant to s 47 of the Justices Act 1886 (Qld) – where applicant argues that the Supreme Court of Queensland has power pursuant to its supervisory jurisdiction to grant declaratory relief.

Electrical Safety Act 2002 (Qld), s 10, s 14, s, 18, s 19, s 27, s 30, s 46, s 47

Industrial Relations Act 1999(Qld), s 341, s 348, s 349

Justices Act 1886 (Qld), s 47

Craig v South Australia (1985) 184 CLR 163

GPI (General) v The Industrial Court of New South Wales [2011] NSWCA 157

Kirk v Industrial Relations Commission of New South Wales & Anor; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (2010) 239 CLR 531

Newman v TJV Electrical Pty Ltd [2011] QMC 16

Newman v TJV Electrical Pty Ltd [2011] QIR Comm 129

NK Collins Industries Pty Ltd v President of the Industrial Court of Queensland & Anor [2010] QSC 373

Parker v The President of the Industrial Court of Queensland & Q-Comp [2009] QCA 120

Rockdale Beef Pty Ltd v The Industrial Commissioner of New South Wales & Anor [2007] NSWCA 128

The Electrical Trades Union of Employees Queensland v President of the Industrial Court of Queensland [2006] QSC 76

Thiess v President of the Industrial Court of Queensland [2011] QSC 294

COUNSEL:

J Hunter SC for the applicant

R Perry SC for the second respondent

SOLICITORS:

Legal and Prosecution Services, Office and Fair and Safe Work Queensland for the applicant

Norton Rose Australia for the second respondent

This Application

  1. On 17 November 2008 an employee of TJV Electrical Pty Ltd (“TJV”) was electrocuted whilst working at a workplace at Eagle Farm. On 16 November 2009, just prior to expiration of the limitation period the applicant, an inspector under the Electrical Safety Act 2002 (Qld) (“ESA”) charged TJV with an offence under the ESA.
  1. On 2 March 2011 Industrial Magistrate Lee determined a preliminary application by TJV that the complaint should be struck out as it was defective. His Honour considered that the complainant had failed to plead the acts or omissions which were alleged to constitute the failure to discharge the obligation under the ESA. His Honour also held that the complaint had failed to specify the required essential factual ingredients of the offence because the source of the risk and the nature of the risk are essential factual ingredients. He considered that those facts had not been pleaded so as to identify a connection between the alleged breach and the resultant death. His Honour considered the complaint was so incurably defective that it denied jurisdiction and he struck out the complaint.
  1. That decision was appealed to the Industrial Court of Queensland. On 25 July 2011 the President of the Industrial Court dismissed the appeal, stating that he had come to the same conclusion as the Industrial Magistrate. The President also considered that the essential factual ingredients had not been pleaded, with the consequence that that the magistrate had no jurisdiction. Further, the President considered that the deficiency was incurable.
  1. The applicant now seeks judicial review of the decision of the President of the Industrial Court and orders that the decision of 25 July 2011 be quashed, the complaint be declared valid at law and that the matter be remitted to the Industrial Court for further determination.
  1. Because of the nature if this application it is necessary to consider the actual complaint which was laid in some detail.

The Complaint

  1. The complaint dated 16 November 2009 was in the following terms:

“..that on 17th day of November 2008 at Eagle Farm ...TJV Electrical Pty Ltd being a person on whom an electricity safety obligation prescribed by section 30(2) of the Electrical Safety Act 2002 is imposed did fail to discharge that obligation contrary to section 27 of the said Act

Particulars

Failure:It is alleged that, being an employer, TJV Electrical Pty Ltd failed to ensure that its business or undertaking was conducted in a way that was electrically safe [s.30(2) and (3)]

Worker:Michael Joseph Laffey

Workplace:External main switchboard number 1.07 at building 104, Da Vinci Park, cnr Lomandra Drive and Boronia Road, Eagle Farm

Business or Undertaking: Electrical contracting”

The Electrical Safety Act 2002 (Qld)

  1. It is also necessary to consider the relevant provisions of the ESA. Section 27 of the ESA creates the offence charged:

27 Obligation offence provision

A person on whom an electrical safety obligation is imposed

must discharge the obligation.

Maximum penalty—

(a) if the breach causes multiple deaths—2000 penalty units

or 3 years imprisonment; or

(b) if the breach causes death or grievous bodily

harm—1000 penalty units or 2 years imprisonment; or

(c) if the breach causes bodily harm—750 penalty units or 1

year’s imprisonment; or

(d) otherwise—500 penalty units or 6 months

imprisonment.

  1. In this case s 27(b) is the relevant provision as a death is alleged.
  1. Part 2 Division 2 then provides the relevant obligations which apply, as follows:

“30 Obligation of employer or self-employed person

(1) This section applies to an employer or self-employed person.

(2) A person to whom this section applies has an obligation to ensure that the person’s business or undertaking is conducted in a way that is electrically safe.

(3) Without limiting subsection (2), the obligation includes—

(a) ensuring that all electrical equipment used in the conduct of the person’s business or undertaking is electrically safe; and

(b) if the person’s business or undertaking includes the performance of electrical work, ensuring the electrical safety of all persons and property likely to be affected by the electrical work; and

(c) if the person’s business or undertaking includes the performance of work, whether or not electrical work, involving contact with, or being near to, exposed parts, ensuring persons performing the work are electrically safe.”

  1. The term ‘electrically safe’ is then defined in s 10(2) and (3):

(2) Electrically safe means—

(a) for a person or property, that the person or property is free from electrical risk; and

(b)for electrical equipment or an electrical installation, that all persons and property are free from electrical risk from the equipment or installation; and

(c)for the way electrical equipment, an electrical installation or the works of an electricity entity are operated or used, that all persons and property are free from electrical risk from the operation or use of the equipment, installation or works; and

(d)for the way electrical work is performed, that all persons are free from electrical risk from the performance of the work; and

(e) for the way a business or undertaking is conducted, that all persons are free from electrical risk from the conduct of the business or undertaking; and

(f)for the way electrical equipment or an electrical installation is installed or repaired, that all persons are free from electrical risk from the installing or repairing of the equipment or installation.

(3) Electrical safety, for a person or property, means the person or property is electrically safe.”

  1. The terms ‘electrical risk’ and ‘free from electrical risk’ are then defined in s 10(1) and (4):

10 Meanings of electrical risk, electrically safe and electrical

safety

(1) Electrical risk means—

(a)in relation to a person, the risk to the person of death, shock or injury caused directly by electricity or originating from electricity; or

(b) in relation to property, the risk to the property of—

(i)damage caused by a cathodic protection system; or

(ii)loss or damage caused directly by electricity or originating from electricity…

(4)In this section—

free from electrical risk, for a person or property, means that the electrical risk to the person or property is as low as reasonably achievable, having regard to—

(a) likelihood of harm; and

(b) likely severity of harm.

  1. The obligation in s 30(3)(a) refers to ‘electrical equipment’ and the meaning of ‘electrical equipment’ is defined in s 14:

14 Meaning of electrical equipment

(1) Electrical equipment is any apparatus, appliance, cable, conductor, fitting, insulator, material, meter or wire—

(a) used for controlling, generating, supplying, transforming or transmitting electricity at a voltage greater than extra low voltage; or

(b) operated by electricity at a voltage greater than extra low voltage; or

(c) operated by electricity at an extra low voltage, if the equipment forms part of an electrical installation located in a hazardous area; or

(d) that is, or that forms part of, a cathodic protection system.

  1. Section 30 refers to ‘electrical work’, which is defined in ss 18 and 19. Section 18 sets out the meaning of ‘electrical work’ as follows:

18 Meaning of electrical work

(1) Electrical work is the manufacturing, constructing, installing, testing, maintaining, repairing, altering, removing, or replacing of electrical equipment.

Examples of electrical work—

•  installing low voltage electrical wiring in a building

installing electrical equipment into an installation coupler or interconnecter

replacing a low voltage electrical component of a washing machine

maintaining an electricity entity’s overhead distribution system

  1. Section 18(2)(a)-(n) provides for a number of exceptions to s 18(1) and s 19 sets out three different categories of electrical work.
  1. Division 3 relates to regulations, ministerial notices and codes of practice. The Industrial Magistrate noted in his reasons that if the regulations do not cover the field and if the complainant is relying on other acts or omissions then those acts or omissions have not been pleaded. He considered that such a pleading was essential for TJV to consider defences under ss 46 and 47 and contributed to the overall defect in the pleadings.
  1. The ESA then provides for defences in Division 4 of Part 2:

Division 4 Defences

46 Defence in proceeding for offence against obligation offence provision

(1)It is a defence in a proceeding against a person for an offence against the obligation offence provision for the person to prove that the commission of the offence was due to causes over which the person had no control.

(2)However, the Criminal Code, sections 23 and 24, do not apply in relation to a contravention of the obligation offence provision.

47 Further defence if no regulation, ministerial notice or code of practice

(1) This section applies to a person if—

(a)the person is proceeded against for an offence against the obligation offence provision; and

(b)at the time of the alleged offence, there was no regulation, ministerial notice or code of practice prescribing or stating a way of discharging the person’s electrical safety obligation in the circumstances of the alleged offence.

(2)It is a defence in the proceeding for the person to prove that the person chose an appropriate way, and took reasonable precautions and exercised proper diligence, to discharge the person’s electrical safety obligation.

The Decision of the Industrial Magistrate

  1. The preliminary application by TJV to strike out the complaint was heard on 15 February 2011. As the Industrial Magistrate noted, the application was opposed because, if the application was successful, the complainant may be statute barred from instituting fresh proceedings as s 187 of the ESA, in force at the date of the alleged offence, provided for a limitation period of one year after the commission of the offence.
  1. On 2 March 2011 the Industrial Magistrate delivered his very thorough and extensive reasons for his determination that the complaint was incurably defective. His Honour noted that the Justices Act 1886 (Qld) (the “JA”) applied to proceedings for offences under the ESA so that prosecution for an offence under the ESA is by way of summary proceeding under the JA before an Industrial Magistrate. His Honour also noted that s 47(1) of the JA provided: “The description of any offence in the words of the Act, order, by-law, regulation, or other instrument creating the offence, or in similar words, shall be sufficient in law.” His Honour held, however, that that provision does not abrogate from the common law requirement to plead essential factual ingredients. 
  1. His Honour noted that the general principles as stated in the High Court decision of Kirk v Industrial Relations Commission of New South Wales & Anor; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales (“Kirk”)[1] and the recent decision of Boddice J in NK Collins Industries Pty Ltd v President of the Industrial Court of Queensland & Anor (“NK Collins”)[2] reflected the common law requirement to plead essential factual ingredients. His Honour relied on the summary of the statements of principle outlined in NK Collins:

“[17]A defendant to any prosecution is entitled to be apprised, not only of the legal nature of the offence charged, but also of the particular act, matter or thing alleged as the foundation of the charge. Essential particulars include “the time, place and manner of the defendant’s acts or omissions”. This requirement is consistent with the definition of “offence” in the Criminal Code (Qld) as it is the ‘act or omission which renders the person doing the act or omission liable to punishment’ which is ‘an offence’...

[24]There is a distinction between a complaint which is so equivocal as to make it impossible to identify the occasion, transaction or occurrence to which it refers and a complaint which identifies the “essential factual ingredients” of the offence but requires further particularisation so as to ensure that a defendant can properly prepare a defence. The former is defective and liable to be struck out as being insufficient in law. The latter is a valid complaint but may be subject to further particularisation.

[25] To be valid, a complaint must at least condescend to identify the essential factual ingredients of the actual offence, although practical difficulties result from the fact that there is no “technical verbal formula of precise application which constitutes an easy guide, in the circumstances of any given case, as to whether the common law has been infringed to such an extent … to save the information”.[3]

  1. The complaint before the Magistrate alleged a breach of s 27(1) of the ESA on the basis of an alleged failure by the second respondent to comply with the obligation imposed under s 30(2) of the ESA. His Honour held that the complaint failed to plead the essential factual ingredients for an offence under s 27 of the ESA, with the consequence that “it is incurable thus denying this court jurisdiction.”[4] His Honour considered that the complaint simply pleaded that, in reliance on subsections 30(2) and (3) of the ESA, as an employer TJV failed to ensure that its business or undertaking was conducted in a way that was electrically safe. His Honour held that the source of the risk and the nature of the risk are essential factual ingredients and they had not been pleaded so as to identify a link between the alleged breach and the resultant death.
  1. His Honour held that there was a poverty of pleading and that the essential factual ingredients had not been pleaded, as follows:

“[34] …The pleading simply asserts that TJV breached its obligations as an employer and this resulted in the death of a named worker. The description of TJV's business or undertaking and the particular describing the "workplace" take the matter no further. The pleading fails to make a connection between the alleged failure and the consequent death. It fails to plead the acts or omissions constituting the failure by TJV in discharging its obligation under section 30 resulting in death.”

  1. His Honour continued:

“[38] The pleading as it currently stands, is incurably deficient. First, in respect of subsections 30(2) & (3), it does not identify which category of activity or activities that constitute the obligation in s 30(3)(a) to (c) alleged to have been breached. Paragraph (a) refers to use of electrical equipment. Paragraph (b) refers to performance of electrical work and paragraph (c) refers to performance of work (whether electrical or not) involving, among other things, contact with exposed parts. These three activities are wide and varied but the pleading does not identify any. Simply pleading ‘External main switchboard number 1.07 at [address]’ does not address this. Is TJV charged on the basis that the switchboard is ‘electrical equipment’ (paragraph (a)), or on the basis that electrical work or work that is not electrical work was being carried out on or around it?

[39] I note subsection 30(3) is merely an inclusive definition. It is not exhaustive and it expressly provides that it does not limit subsection 30(2). If the complainant is not in fact relying on any of the obligations in subsection 30(3), then equally the pleading has failed to identify the nature of the obligation being relied on. It has not identified the source and nature of the risk in which it is alleged TJV has failed in its obligation nor has it identified the acts or omissions in respect of that risk that constitute the breach of obligation.

[40] Further, even assuming that that was not enough to render the complaint incurably defective, the pleading does not identify at all in which respect the conduct of TJV’s business was not ‘electrically safe’, a pivotal term used throughout section 30. ‘Electrically safe’ is exhaustively defined in subsection 10(2)(a) to (f) constituting a wide range of circumstances. Paragraph (a) seems to be a general one i.e. persons being free from electrical risk. More specific circumstances include the operation of electrical equipment (paragraph (c)) and the way electrical work is performed (paragraph (d)). The circumstances are wide and varied and yet the relevant circumstances have not been identified at all in the pleading. TJV is left completely in the dark.

[41]  Finally, ‘free from electrical risk’ imports practicability as to whether there has been a failure to discharge an obligation.

[42]  I agree that the scheme of the ES Act materially differs from the WHSA with which Collins was concerned. In my view, it does not follow that because Collins did not find the complaint incurably defective for an offence under the WHSA, that that should be the outcome in this case while having regard to the common law requirement of pleading essential factual ingredients endorsed in Kirk. Each case is to be determined on the particular legislation and facts. I agree with submissions for TJV that a greater degree of particularisation is required for an offence under the ES Act than one under the WHSA. However, I note that even in Collins where the requirements of particularisation are not as demanding as a pleading for an offence under the ES Act, the complaint pleaded the source of risk which is absent in the present case. In Collins, the complaint pleaded (from page 3 of the judgment in Collins):

The source of risk emanates from:

  • Falling dead cypress trees, and /or
  • System of work for the felling of dead cypress trees.

The Risk is the risk of death or injury including the risk of crush injuries to [a named worker].

  1. His Honour also noted that for a defence to be mounted under ss 46 or 47 of the ESA, the prosecution would be required to plead facts that would give rise to the breach of obligation or the circumstances relied upon in relation to giving rise to the breach of the risk. His Honour also specifically noted the argument by the complainant’s Counsel that the pleading was curable by the provision of particulars which the complainant had offered to give. His Honour noted the submission by Counsel for the complainant that deficient pleadings are capable of being salvaged particularly in the early stages and that it was argued that Kirk supported that proposition. Having considered those submissions, his Honour still ultimately considered that there had been a failure to provide the essential factual ingredients for an offence under s 27 which meant that it was “incurably defective” and therefore denied jurisdiction.

The decision of the President of the Industrial Court of Queensland

  1. On appeal before the President, Counsel for the applicant again argued that the charge properly addressed every necessary element of the offence but what it did not plead was the nature of the obligation by reference to s 30(3) and in particular the way in which the business or undertaking was not electrically safe or what measures should have been taken. Counsel also argued that the applicant had, at a timely stage in the proceedings, offered to properly particularise the charge but that the respondent refused that offer by arguing that the charge was incurably defective and asserting that particularisation would not cure that defect. Counsel for the applicant argued that it is in fact this offer to properly particularise the charge which immediately distinguishes this case from Kirk, where the charge had proceeded without proper particulars at any stage.
  1. The President of the Industrial Court, however, held that the authorities ‘lend support to the proposition’ that a complaint which fails to identify the essential ingredients of the offence is incurably flawed. His Honour held that it was flawed because it failed to found the jurisdiction of the Court. The President also relied on the decisions of Kirk and NK Collins and held that there had been no attempt to particularise which of the limbs of the obligation at s 30(3) of the ESA was relied upon, neither was there any attempt to identify which of the limbs of ‘electrical equipment’ and/or ‘electrical work’ are apposite in the circumstances. His Honour considered that to simply plead ‘workplace’

“does not disclose whether the allegation is that the switchboard is ‘electrical equipment’ (s. 30(3)(a)) or whether the allegation is that work (whether or not electrical work) was being done in the vicinity of the switch board (s30(3)(c)).”[5]

  1. The President concluded:

“[8]A further criticism of the Complaint arises from the provisions of Part 2, Division 3 of the Act. If a Regulation, Ministerial Notice or Code of Practice is made about discharging an electrical safety obligation, a complainant may (not must) elect to make out a case that the way for discharging the electrical safety obligation prescribed by the Regulation, Ministerial Notice or Code of Practice, has not been followed. Here, the Complainant reveals neither whether there is a relevant Regulation, Ministerial Notice or Code of Practice, nor (if there is) whether the Complainant intends to rely upon it. It is not, of course, suggested that a complainant disclaim an intention to rely upon any provision of Part 2, Division 3 of the Act. However, if a complainant does disclose the case to be made, a defendant is entitled to prepare on the basis that no other case will be advanced. Here, so little is said about the factual basis of the charge that the Defendant may only speculate about the case which it will be required to meet.

[9]In the result, I have come to the same conclusion as the Industrial Magistrate, viz., the essential factual ingredients have not been pleaded. I share also His Honour's view that the consequence was that the Industrial Magistrate's Court had no jurisdiction (paragraph 50) and that the deficiency is incurable. So much is established by the Decision of the majority in Kirk at paragraphs 26, 74, 75 and 85 and by the decision of Boddice J in N.K. Collins Industries Pty Ltd v President of Industrial Court of Queensland and Twigg. The Industrial Magistrate had neither power to order further particulars nor power to grant relief pursuant to s. 47 of the Justices Act 1886.”

The Application for Judicial Review

  1. The appellate jurisdiction of the Industrial Court is governed by s 341 of the Industrial Relations Act 1999 (Qld). Section 349 of the Industrial Relations Act then provides that a decision of the Industrial Court is final and conclusive; it cannot be impeached for informality or want of form; and cannot be appealed against, reviewed, quashed, or invalidated in any court. However, it has been clearly established that this provision is subject to the decision being within jurisdiction.  As Chesterman J (as his Honour then was) held in The Electrical Trades Union of Employees Queensland v President of the Industrial Court of Queensland:

“[15] Despite the forcefulness of the language chosen for s 349(2) and (3), and its inviobility from the operation of the Judicial Review Act, a decision of the Industrial Court which it had no jurisdiction to make is amenable to judicial review and may be set aside or quashed. This is established by Carey v President of the Industrial Court of Queensland and Department of Justice & Attorney-General [2004] QCA 62 per McPherson JA, paras 4 and 22, and Squires v President of the Industrial Court of Queensland & Ors [2002] QSC 272 in which Mullins J pointed out that:

‘… s 349(3) … specifically proscribe[s] prerogative orders … in relation to proceedings in the industrial tribunal within the jurisdiction of the industrial tribunal. The express provisions of ss 349(2) and (3) … therefore have the effect of excluding this Court’s jurisdiction in granting prerogative relief in respect of the decision of the [Industrial Court], if it was made within jurisdiction.’”[6]

  1. Accordingly, as the decision of the Queensland Court of Appeal in Parker v The President of the Industrial Court of Queensland & Q-Comp (“Parker”)[7] makes clear, where it is shown that the decision under review involves jurisdictional error, then that decision can be reviewed under Part 5 of the Judicial  Review Act 1991 (Qld) (“JRA”).
  1. Therefore, there is no doubt that a decision is susceptible to judicial review, notwithstanding the provisions of s 349, provided the decision involves jurisdictional error.
  1. The question, however, of what actually amounts to jurisdictional error is a particularly vexed question. In Kirk the High Court noted that the expression is used in a variety of senses and noted Lord Diplock’s observation that its takes “its colour from its context”.[8] The Court also indicated that “[i]t is a “generic” term or, as Frankfurter J wrote in United States v LA Tucker Truck Lines Inc in the Supreme Court of the United States, “jurisdiction …is a verbal coat of too many colours”.”[9] The High Court, however, noted that whilst the difficulty of distinguishing between jurisdictional and non-jurisdictional error had been specifically considered in Craig v South Australia (“Craig”),[10] the distinction had been maintained as follows:

66In Craig v South Australia, this Court recognised the difficulty of distinguishing between jurisdictional and non-jurisdictional errors, but maintained the distinction. As was pointed out in Re Refugee Review Tribunal; Ex parte Aala:

‘The difficulty of drawing a bright line between jurisdictional error and error in the exercise of jurisdiction should not be permitted, however, to obscure the difference that is illustrated by considering clear cases of each species of error. There is a jurisdictional error if the decision maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks power to do. By contrast, incorrectly deciding something which the decision maker is authorised to decide is an error within jurisdiction. (This is sometimes described as authority to go wrong, that is, to decide matters within jurisdiction incorrectly.) The former kind of error concerns departures from limits upon the exercise of power. The latter does not.’

As was also pointed out in Aala, there can be no automatic transposition to Australia of the principles that developed in England in relation to the availability of certiorari and prohibition. The constitutional context is too different to permit such a transposition. At the federal level, allowance must be made for the evident constitutional purposes of s 75(v) of the Constitution; at a State level, other constitutional considerations are engaged. As was pointed out by Gummow J in Gould v Brown, ‘[w]hen viewed against the Constitution in its entirety, Ch III presents a distinct appearance. Upon what had been the judicial structures of the Australian colonies and, upon federation, became the judicial structures of the States, the Constitution by its own force imposed significant changes.’

67The drawing of a distinction between errors within jurisdiction and errors outside jurisdiction was held, in Craig, to require different application as between "on the one hand, the inferior courts which are amenable to certiorari and, on the other, those other tribunals exercising governmental powers which are also amenable to the writ". The Court said that:

‘If ... an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.’

By contrast, demonstrable error on the part of an inferior court ‘entrusted with authority to identify, formulate and determine’ relevant issues, relevant questions, and what is and what is not relevant evidence was held, in Craig, not ordinarily to constitute jurisdictional error. The Court held that:

‘a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error’.

68The basis for the distinction thus drawn between courts and administrative tribunals was identified in the lack of authority of an administrative tribunal (at least in the absence of contrary intent in the statute or other instrument establishing it) "either to authoritatively determine questions of law or to make an order or decision otherwise than in accordance with the law". By contrast, it was said that "the ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine".[11]

  1. The High Court then continued and summarised the findings of Craig in relation to jurisdictional error in the following way:

71It is neither necessary, nor possible, to attempt to mark the metes and bounds of jurisdictional error. Professor Aronson has collected authorities recognising some eight categories of jurisdictional error. It is necessary, however, to make good the proposition stated earlier in these reasons that the two errors that have been identified as made by the Industrial Court at first instance (and not corrected on appeal to the Full Bench) were jurisdictional errors. The Court in Craig explained the ambit of jurisdictional error in the case of an inferior court in reasoning that it is convenient to summarise as follows.

72First, the Court stated, as a general description of what is jurisdictional error by an inferior court, that an inferior court falls into jurisdictional error "if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist" (emphasis added). Secondly, the Court pointed out that jurisdictional error ‘is at its most obvious where the inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers’ (emphasis added). (The reference to ‘theoretical limits’ should not distract attention from the need to focus upon the limits of the body's functions and powers. Those limits are real and are to be identified from the relevant statute establishing the body and regulating its work.) Thirdly, the Court amplified what was said about an inferior court acting beyond jurisdiction by entertaining a matter outside the limits of the inferior court's functions or powers by giving three examples:

(a) the absence of a jurisdictional fact;

(b) disregard of a matter that the relevant statute requires be taken to account as a condition of jurisdiction (or the converse case of taking account of a matter required to be ignored); and

(c) 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. The Court said of this last example that ‘the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern’ and gave as examples of such difficulties R v Dunphy; Ex parte Maynes, R v Gray; Ex parte Marsh and Public Service Association (SA) v Federated Clerks' Union.

73As this case demonstrates, it is important to recognise that the reasoning in Craig that has just been summarised is not to be seen as providing a rigid taxonomy of jurisdictional error. The three examples given in further explanation of the ambit of jurisdictional error by an inferior court are just that – examples. They are not to be taken as marking the boundaries of the relevant field. So much is apparent from the reference in Craig to the difficulties that are encountered in cases of the kind described in the third example.”[12]

The applicant’s argument on jurisdictional error

  1. Counsel for the applicant submits that the sole ground of appeal from the decision of the Magistrate to the President was that the Magistrate "erred in concluding that the complaint was incurably defective". Accordingly, central to the magistrate's decision were conclusions that:
  1. the complaint failed to specify the required ‘essential factual ingredients of the actual offence’ and was therefore, on the authority of Kirk, susceptible of being struck out; and
  1. section 47 of the JA could not operate to save a complaint that suffered from that defect. 
  1. Counsel for the applicant argued before the Industrial Court that:
  1. the cases did not reveal any discernible formula by which an irremediably bad complaint could be identified;
  1. excepting the decision in John L v Attorney-General (NSW) (“John L”),[13] the cases usually cited in support of the proposition that an improperly particularised complaint deprived the primary court of jurisdiction did not, in fact support it. Rather, those cases involved the failure of the prosecution to particularise the complaint at any stage in the proceedings. In particular, the applicant emphasised that, in Kirk, the High Court impliedly concluded that the complaint did enliven jurisdiction but that the “matter should not have proceeded without further particularisation.”[14]
  1. the principle in John L was markedly inconsistent with the approach taken elsewhere in the criminal law (ie the provision of particulars) and that case stood alone as an example of a defective complaint that failed to enliven jurisdiction; and
  1. in any event, section 47 of the JA could save a complaint that breached the common law requirements for particularity and that there was no binding authority to the contrary - only some cautionary words in Kirk and John L about what may have been meant by Dixon J in Johnson v Miller[15] when his Honour referred to Smith v Moody.[16]
  1. In dismissing the appeal, it is clear that the learned President was satisfied that there was authority for the proposition that a complaint which fails to identify the essential ingredients of the offence alleged fails to found the jurisdiction of the Court because it is incurably flawed. The decision in Kirk was cited as authority for that proposition. However, Counsel for the applicant submits that the effect of Kirk has been misapprehended by the President because in Kirk the court impliedly confirmed that the complaint, in that case, was sufficient to found jurisdiction. Counsel submitted that whilst it was observed that “the matter should not have proceeded without further particularisation of the acts and omissions said to found the charges”,[17] the High Court said that the jurisdictional error consisted in the fact that “no particular act or omission, or set of acts or omissions, was identified at any point in the proceedings, up to and including the passing of sentence”.[18]
  1. Counsel for the applicant submits that the proper approach to Kirk was explained in the New South Wales Court of Appeal decision of GPI (General) v The Industrial Court of New South Wales (“GPI”).[19]  In GPI it was held:

“32The High Court decision in Kirk does establish that it is necessary that a statement of the offence identify the act or omission of the defendant said to constitute the offence, and that in the case of omission this requires identification of the measures that should have been taken to address the relevant risks.

33However, it did not decide that this requirement displaced ss 11 and 16(2) of the CP Act , which relevantly restricted objections that may be taken to the form of charges, noting the extended definition of "indictment" given by s 15 of the CP Act . Rather, the High Court in Kirk held that s 11 did not dispense with the necessity for the defendant not only to be told of the legal nature of the offence but also of the particular act, matter and thing alleged as the foundation of the charge: see Kirk at [26] - [30]. The High Court did not rule that this particularisation had to occur at the time the charge was first brought, but based its decision on the point that the matter should not have proceeded without further particularisation.

51 No doubt there are circumstances in which a procedure by which criminal proceedings are commenced may be challenged and set aside. However, Kirk says nothing as to when such steps will be taken. In particular, it does not say, as the applicant appeared to submit, that the failure adequately to particularise the charge as initially laid should necessarily lead to the charge being rejected or an order based upon it being set aside.”[20]

  1. Accordingly, it is argued by counsel that the President’s failure to properly appreciate the effect of Kirk meant that, as in NK Collins, his Honour’s approach did not involve the application of established law to the facts but a misconstruction of the applicable legal principles and a misconception of the extent of his powers in this particular case.

Has there been jurisdictional error?

  1. The applicant argued that the first respondent fell into jurisdictional error by –
  1. wrongly concluding the complaint was invalid and thereby misconstruing the nature and limits of his power; and
  1. constructively failing to exercise his jurisdiction by not taking into account the contention of the applicant that the complaint was not void ab initio and s 47 of the JA would save the complaint.
  1. Essentially, therefore, it is argued that there has been jurisdictional error because the first respondent misconstrued the nature and the limits of his power in concluding that the complaint was invalid.
  1. In my view, no jurisdictional error on the part of the President has been established. The President had jurisdiction under the Industrial Relations Act to hear the appeal from the Industrial Magistrate who had resolved the controversy between the parties. The appeal was something that the President was clearly authorised to decide.  There was no error in relation to the Industrial Court’s functions and powers. In particular, in this regard I note the analysis of Keane JA (as his Honour then was) in Parker in relation to appeals from an Industrial Magistrate to the Industrial Court as follows:

“[32] As Hayne J said in Re Refugee Review Tribunal; Ex parte Aala, the line between "jurisdictional error" and error within jurisdiction is often difficult to discern. The abstract notion of jurisdictional error affords little assistance in the determination of the question of statutory construction involved in determining whether error goes to jurisdiction. That is because "jurisdictional error" is the expression of a conclusion rather than an explanation of the process of reasoning whereby that conclusion is to be reached. The task of any court in seeking to discern where the line has been drawn by the legislature in any particular case is essentially one of statutory interpretation. In this case it is not said that there has been a failure to accord the parties procedural fairness, or a failure to observe an express statutory command as to the exercise of the Industrial Court's function on such an appeal.

[33] Jurisdiction to resolve the controversy between the parties which came before the President of the Industrial Court was conferred by s 248 of the Industrial Relations Act 1999 (Qld) and s 561 of the WCR Act. Section 248(1) of the Industrial Relations Act provides relevantly that the Industrial Court "may … perform all functions and exercise all powers prescribed for the court by this or another Act".

[34] Accordingly, the task of statutory interpretation, so far as the scope of the jurisdiction of the Industrial Court on appeal from the Industrial Magistrate is concerned, depends upon the construction of s 561 of the WCR Act. On the face of s 561 of the WCR Act, the Industrial Court has jurisdiction to hear and determine appeals from decisions of the Industrial Magistrate.

[35] If there is a duly constituted appeal from an Industrial Magistrate, then the Industrial Court has jurisdiction to hear and determine that matter. The exercise of the jurisdiction of the Industrial Court to determine appeals from an Industrial Magistrate must inevitably involve the interpretation of the substantive provisions of legislation which give rise to the controversy between the parties. There is nothing in s 561 of the WCR Act which offers even the faintest support for the idea that the determination of the proper construction of substantive provisions of the WCR Act such as s 32(1) and (5) is not an issue committed to the jurisdiction of the Industrial Court. Indeed, s 561(4) of the WCR Act strongly suggests that the contrary is the case.”[21]

  1. Keane JA considered that an error of statutory construction by a decision maker will constitute jurisdictional error on the part of the decision maker only where the error goes to a “pre-condition of the existence of… authority to make an order or decision in the circumstances of a particular case.”[22]
  1. Accordingly, the decision in Parker makes it abundantly clear that even an error of law by the President of the Industrial Court is not sufficient to ground jurisdictional error. In order to succeed in this application, the applicant must show that the President must have misunderstood the nature of his jurisdiction, applied a wrong or inadequate test, misconceived his duty, not applied himself to the question which the law prescribes, or misunderstood the nature of the opinion he was to form.  Keane JA in Parker confirmed that in examining that issue, it is not appropriate to embark upon an examination of the correctness of the decision because the correctness of the decision is not the question which needs to be determined.
  1. In my view the President undertook an entirely orthodox approach to his consideration of the ESA and the requirements of the particular sections. He undertook an analysis of the relevant sections and determined that, in his view, the complaint which had been brought did not particularise which of the limbs of the obligation at s 30(3) of the ESA and which of the limbs of ‘electrical equipment’ and/or ‘electrical work’ were relied upon to found the complaint. As I have already indicated, his Honour considered the pleadings closely and concluded that to simply plead ‘workplace’ does not disclose whether the “allegation is that the switchboard is ‘electrical equipment’ (s 30(3)(a)) or whether the allegation is that work (whether or not electrical work) was being done in the vicinity of the switch board (s30(3)(c)).”
  1. On appeal, the President confirmed that the decision that the Magistrate had reached was the correct decision on the authority of Kirk and Collins. Without going to the correctness of the decision, because that is not the task which I have to perform, it is clear that the President performed the function he was required to perform under the Act. He was determining whether the Magistrate had correctly viewed the relevant facts and applied the relevant tests.  There is no doubt that the President’s reasons are brief but there is no doubt that he did review the relevant decision and came to his own conclusions applying the relevant tests. He noted the approach of the High Court in Kirk, in particular paragraph [26] of that decision which is in the following terms:

“[26]The common law requires that a defendant is entitled to be told not only of the legal nature of the offence with which he or she is charged, but also of the particular act, matter or thing alleged as the foundation of the charge. In John L Pty Ltd v Attorney-General (NSW) it was explained that the older cases established that an information could be quashed as insufficient in law if it failed to inform the justices of both the nature of the offence and the manner in which it had been committed. In more recent times the rationale of that requirement has been seen as lying in the necessity of informing the court of the identity of the offence with which it is required to deal and in providing the accused with the substance of the charge which he or she is called upon to meet. The common law requirement is that an information, or an application containing a statement of offences, "must at the least condescend to identifying the essential factual ingredients of the actual offence". These facts need not be as extensive as those which a defendant might obtain on an application for particulars. In Johnson v Miller, Dixon J considered that an information must specify ‘the time, place and manner of the defendant's acts or omissions’. McTiernan J referred to the requirements of ‘fair information and reasonable particularity as to the nature of the offence charged’.”[23]

  1. The President also relied on NK Collins, where Boddice J also made it clear that there was a requirement to specify particulars: 

“[17]A defendant to any prosecution is entitled to be apprised, not only of the legal nature of the offence charged, but also of the particular act, matter or thing alleged as the foundation of the charge. Essential particulars include “the time, place and manner of the defendant’s acts or omissions”. This requirement is consistent with the definition of “offence” in the Criminal Code (Qld) as it is the “act or omission which renders the person doing the act or omission liable to punishment” which is “an offence”.

[24] There is a distinction between a complaint which is so equivocal as to make it impossible to identify the occasion, transaction or occurrence to which it refers and a complaint which identifies the “essential factual ingredients” of the offence but requires further particularisation so as to ensure that a defendant can properly prepare a defence. The former is defective and liable to be struck out as being insufficient in law. The latter is a valid complaint but may be subject to further particularisation.”

  1. In my view, the way in which the President approached his task in conducting the appeal before him was to review the facts and apply the law as he found it to be. Even if the President misinterpreted the statutory provisions, such an approach does not amount to jurisdictional error.
  1. I also note that in Thiess Pty Ltd v President of the Industrial Court of Queensland & Anor (“Thiess”),[24] it was held by Applegarth J that even where a jurisdictional error is made by an Industrial Magistrate and the Industrial Court fails to correct that error, the Industrial Court will have been acting within its jurisdiction as pursuant s 341 of the Industrial Relations Act and the Industrial Court is empowered to determine issues of jurisdiction. His Honour held;

“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.”[25]

  1. I endorse that approach.

Constructive Failure to Exercise Jurisdiction

  1. It is also argued that there has been a constructive failure to exercise jurisdiction because the President did not address the applicant’s argument that the authorities did not support a conclusion that the complaint was bad ab initio.
  1. Furthermore, it is argued that his Honour also failed to consider whether s 47 operated to save the complaint. It is argued that even if both of those arguments were utterly devoid of substance, the learned President ought to have considered them and explained his reasons for rejecting them.
  1. It is argued, therefore, that the President’s failure to do so represents a failure to discharge the duty imposed upon him by sections 341 and 348(2) of the Industrial Relations Act and is a constructive failure to exercise jurisdiction. It is argued that the President erred in concluding that the complaint deprived the Industrial Magistrate of jurisdiction and in doing so he misapprehended the effect of decided cases and the proper interpretation of s 47 of the JA.
  1. In Rockdale Beef Pty Ltd v The Industrial relations Commission of New South Wales & Anor,[26] Basten JA considered this issue in the following terms:

“85 Each of the errors identified by the claimant is identified as an error of law. However, it is clear that that is not, of itself, sufficient. The error must amount to a decision beyond jurisdiction or, perhaps, a constructive failure to exercise the jurisdiction conferred on the Industrial Court. The flavour of the distinction can be understood by reference to the explanation given by Jordan CJ in Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416 at 420:

‘I quite agree that the mere fact that a tribunal has made a mistake of law, even as to the proper construction of a statute, does not necessarily constitute a constructive failure to exercise jurisdiction ... . But there are mistakes and mistakes; and if a mistake of law as to the proper construction of a statute investing a tribunal with jurisdiction leads it to misunderstand the nature of the jurisdiction which it is to exercise, and to apply ‘a wrong and inadmissible test’: ... or to ‘misconceive its duty’, or ‘not to apply itself to the question which the law prescribes’: The King v War Pensions Entitlement Appeal Tribunal [Ex parte Bott] [1933] HCA 30; (1933) 50 CLR 228 at 242-3]; or ‘to misunderstand the nature of the opinion which it is to form’: The King v Connell [(1944) [1944] HCA 42; 69 CLR 407 at 432], in giving a decision in exercise of its jurisdiction or authority, a decision so given will be regarded as given in a purported and not a real exercise of jurisdiction, leaving the jurisdiction in law constructively unexercised, and the tribunal liable to the issue of a prerogative writ of mandamus to hear and determine the matter according to law ....’”

  1. In my view, the President did turn his mind to the issue of s 47 as well as the submission in relation to Kirk which had been made by counsel for the applicant.  In my view it is clear that the President adopted the reasoning of the Magistrate and made that abundantly clear in his reasons. It was not necessary that it be set out again in chapter and verse. In my view there was a clear statement by the first Respondent that the authorities support the proposition that a complaint which fails to plead ‘essential factual ingredients’ is void ab initio. His Honour clearly applied the law as he found it be to the facts as he found them to be. Once again, in my view, that does not constitute jurisdictional error.
  1. I do not consider that this ground is made out.

Should there be Declaratory Relief?

  1. The applicant also argues, on the basis of the decision of Thiess that this court has power, pursuant to its supervisory jurisdiction, to grant the declaratory relief sought.
  1. There is no doubt that such relief is discretionary and good reason would need to be shown before such relief was granted. The onus is on the applicant in this regard.
  1. The applicant simply asserts that the facts in this matter are similar to those in Thiess because, in that case, a magistrate had “committed jurisdictional error that was compounded on appeal, albeit within jurisdiction.” In my view that is not sufficient to satisfy the onus on the applicant.
  1. It is clear that in Thiess the reason why Applegarth J considered that the supervisory jurisdiction should be exercised was because there was a very real concern that a man had been wrongly convicted because of a jurisdictional error made by an Industrial Magistrate, as follows:

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”.[27]

  1. In my view the circumstances in that case are decidedly different to the facts in the present case.
  1. The application is dismissed.
  1. I will hear submissions from Counsel as to Costs.

Footnotes

[1] (2010) 239 CLR 531.

[2] [2010] QSC 373.

[3] Newman v TJV Electrical Pty Ltd [2011] QMC 016, [28]-[30].

[4] Ibid, [33].

[5] Newman v TJV Electrical Pty Ltd [2011] QIR Comm 129, [7].

[6] [2006] QSC 76.

[7] [2009] QCA 120.

[8] Above n 1, [63], citing Baxter v Commissioners of Taxation (NSW) (1907) 4 CLR 1087 per Diplock LJ.

[9] Ibid (references omitted).

[10] (1985) 184 CLR 163.

[11] Above n 1 (references omitted).

[12] Above n 1 (references omitted).

[13] (1987) 163 CLR 508.

[14] Above n 1, [30].

[15] (1937) 59 CLR 467.

[16] [1903] 1 KB 56.

[17] Above n 1, [30].

[18] Ibid [74] (my emphasis).

[19] [2011] NSWCA 157.

[20] Ibid (references omitted).

[21] Above n 7 (references omitted).

[22] Above n 7, [37] (my emphasis).

[23] Above n 1 (references omitted).

[24] [2011] QSC 294.

[25] Ibid, [47].

[26] [2007] NSWCA 128.

[27] Above n 24, [52].

Close

Editorial Notes

  • Published Case Name:

    Newman v President of the Industrial Court of Qld & Anor

  • Shortened Case Name:

    Newman v President of the Industrial Court of Qld

  • MNC:

    [2012] QSC 145

  • Court:

    QSC

  • Judge(s):

    A Lyons J

  • Date:

    01 Jun 2012

Litigation History

No Litigation History

Appeal Status

No Status