Gore v Carborough Downs Coal Management Pty Ltd
[2022] ICQ 31
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- Gore v Carborough Downs Coal Management Pty Ltd[2022] ICQ 31
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Gore v Carborough Downs Coal Management Pty Ltd[2022] ICQ 31
Gore v Carborough Downs Coal Management Pty Ltd[2022] ICQ 31
INDUSTRIAL COURT OF QUEENSLAND
CITATION: | Gore v Carborough Downs Coal Management Pty Ltd & Ors [2022] ICQ 031 |
PARTIES: | DAVID THOMAS GORE (appellant) v CARBOROUGH DOWNS COAL MANAGEMENT PTY LTD (respondent) DAVID THOMAS GORE (appellant) v CARBOROUGH DOWNS COAL MANAGEMENT PTY LTD (respondent) DAVID THOMAS GORE (appellant) v RUSSELL CLIVE UHR (respondent) DAVID THOMAS GORE (appellant) v JEREMY DAVID FUTERAN (respondent) DAVID THOMAS GORE (appellant) v JEREMY DAVID FUTERAN (respondent) DAVID THOMAS GORE (appellant) v BERNARD VANDEVENTER (respondent) DAVID THOMAS GORE (appellant) v KEVIN JAMES CASEY (respondent) DAVID THOMAS GORE (appellant) v GARY ROY JONES (respondent) |
FILE NO/S: | C/2022/16, C/2022/17, C/2022/18, C/2022/19, C/2022/20, C/2022/21, C/2022/22, C/2022/23 |
PROCEEDING: | Application |
DELIVERED ON: | Orders made on 28 October 2022, reasons delivered on 1 November 2022 |
HEARING DATE: | 28 October 2022 |
MEMBER: | Davis J, President |
ORDER/S: |
|
CATCHWORDS: | APPEAL AND NEW TRIAL – RIGHT OF APPEAL – WHEN APPEAL LIES – where proceedings were commenced by complaint – where the appellant alleged offences against the Coal Mining Safety and Health Act 1999 (the CMSH Act) – where the CMSH Act provides for prosecution of offences in the Industrial Magistrates Court – where the summons issued pursuant to the complaint commanded defendants to appear in the Magistrates Court, not the Industrial Magistrates Court – where the magistrate dismissed the complaints on the basis of lack of jurisdiction – where appeals from summary proceedings in the Magistrates Court lie to the District Court – where appeals from summary proceedings in the Industrial Magistrates Court lie to the Industrial Court – where the appellants appealed the dismissal of the complaints – whether the appeal made to the Industrial Court of Queensland was competent PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – where the appellants appealed decisions to the Industrial Court of Queensland – where the respondents assert that the Industrial Court of Queensland has no jurisdiction to hear the appeals – where the respondents sought to strike out the appeals – whether there are arguable issues on appeal – whether the appeals should be struck out Acts Interpretation Act 1954, s 36, s 44 Coal Mining Safety and Health Act 1999, s 6, s 33, s 34, s 255 Industrial Relations Act 2016, s 424, s 503, s 504, s 505, s 507 Judicial Review Act 1991, s 41 Justices Act 1886, s 22B, s 42, s 47, s 48, s 49, s 53, s 54, s 222 Magistrates Act 1991 Magistrates Courts Act 1921, s 14 |
CASES: | General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125, followed |
COUNSEL: | B J Power KC for the appellant in all appeals C J Murdoch KC with J A Bremhorst for the respondents in appeal numbers C/2022/16, C/2022/17 and C/2022/18 P J Roney KC for the respondents in appeal numbers C/2022/19 and C/2022/20 J Ford for the respondent in appeal number C/2022/21 K McAuliffe-Lake for the respondent in appeal number C/2022/22 A Cardell-Ree, solicitor for the respondent in appeal number C/2022/23 |
SOLICITORS: | Workplace Health and Safety Prosecutor for the appellant in all appeals McCullough Robertson for the respondents in appeal numbers C/2022/16, C/2022/17 and C/2022/18 Australian Business Lawyers & Advisors for the respondents in appeal numbers C/2022/19 and C/2022/20 Mills Oakley for the respondent in appeal number C/2022/21 Ashurst for the respondent in appeal number C/2022/22 Thomson Greer for the respondent in appeal number C/2022/23 |
- [1]These are applications which arise from eight appeals each from orders dismissing complaints alleging offences against the Coal Mining Safety and Health Act 1999 (the CMSH Act).[1]
- [2]Three issues arise. Firstly, three of the respondents have made application to strike out the appeals that have been filed against the orders dismissing the claims against them. Second is an issue as to whether the eight appeals should be heard together. The third and closely related issue is whether these appeals should be stayed until related proceedings presently being conducted in the District Court are finalised.
Background
- [3]The CMSH Act, as its name suggests, has as its objects the protection of the safety and health of persons at coal mines and the reduction of the risk of injury or illness to any person resulting from coal mining operations.[2] Those objectives are sought to be achieved in various ways, including by the imposition of safety obligations upon various persons working in or associated with coal mines.[3]
- [4]Section 34 of the CMSH Act makes it an offence to fail to discharge a safety obligation. Section 255 provides that prosecution for the offences alleged against the various defendants here “is by way of summary proceedings before an industrial magistrate”.[4]
- [5]The Industrial Magistrates Court is established by the Industrial Relations Act 2016 (the IR Act). By s 503 of the IR Act “an Industrial Magistrate Court is a court of record”. By s 504, an Industrial Magistrates Court “is constituted by a magistrate sitting alone”.
- [6]By s 505 of the IR Act, every magistrate or acting magistrate appointed under the Magistrates Act 1991 is an Industrial Magistrate.[5] The jurisdiction of an Industrial Magistrate is that conferred by the IR Act or “another Act”, relevantly here the CMSH Act. By force of s 507 of the IR Act, the jurisdiction conferred by the CMSH Act is exclusive to the Industrial Magistrates Court.[6]
- [7]Section 14 of the Magistrates Courts Act 1921 provides that Magistrates Courts are courts of record. The Justices Act 1886 provides that Magistrates Courts have, relevantly here, criminal jurisdiction conferred on them by the Justices Act or other Acts, of which the CMSH Act is one.
- [8]By s 22B of the Justices Act, there are Magistrates Court districts.
- [9]Section 42 of the Justices Act provides that proceedings are commenced by complaint. Section 47 provides that the description on the complaint of the offence in the words of the Act creating the offence shall be sufficient.
- [10]Pursuant to s 53 of the Justices Act, a Justice of the Peace may issue a summons upon the complaint. Section 54 provides that the summons shall require the defendant “to appear at a certain time and place before the Magistrates Court … to answer the complaint and to be further dealt with according to law”.
- [11]Sections 48 and 49 of the Justices Act empower magistrates to amend both the complaint and the summons.
- [12]By s 222 of the Justices Act, an aggrieved complainant or defendant may appeal a decision of a magistrate to the District Court.
- [13]Each of the complaints are in a similar form. For present purposes, one of the complaints[7] against Carborough Downs Coal Management Pty Ltd can be taken as an example. It is in these terms:
“THE COMPLAINT of AARON JOHN GUILFOYLE,[8] Work Health and Safety Prosecutor, Level 1, 347 Ann Street, Brisbane in the State of Queensland, made this twenty-fourth day of November 2020, before the undersigned, a Justice of the Peace for the said State, who says that between about the twelfth day of August 2019 and about the twenty-sixth day of November 2019, near Coppabella in the said State, CARBOROUGH DOWNS COAL MANAGEMENT PTY LTD A.C.N. 108 803 461 was a coal mine operator for a coal mine, namely the Carborough Downs Coal Mine, pursuant to section 41(1)(a) of the Coal Mining Safety and Health Act 1999, had an obligation to ensure the risk to coal mine workers while at the said mine was at an acceptable level, and failed to discharge that obligation, contrary to section 34 of the said Act;[9]
AND the contravention caused the death of a coal mine worker.”
- [14]Following the complaint in each of the eight cases are very detailed particulars setting out the place of the alleged breach, the date of the alleged breach and the circumstances under which it is alleged that the relevant safety obligation was breached. In five of the eight cases[10] the summons which was issued upon the complaint is in these terms:
“Whereas the above complaint has been made before me: you are hereby commanded to appear at the Industrial Magistrates Court situated at [an Industrial Magistrates Court is nominated].”
- [15]
“Whereas the above complaint has been made before me: you are hereby commanded to appear at the Magistrates Court situated at [a Magistrates Court is nominated].”
- [16]In those three cases, which I will call the “wrong court cases”, the summons ought to have commanded the defendant to appear at an Industrial Magistrates Court, not a Magistrates Court. The other five I will call the “correct court cases”.
- [17]Applications were made in the Magistrates Court to strike out all eight complaints.
- [18]The five “correct court cases” were all struck out for reasons:
- the complaint did not state on its face the Magistrates Court district in which the offence occurred; and
- the complaint itself did not make express reference to s 255 of the CMSH Act and the “Industrial Magistrates Court”.
- [19]Those two defects were held to be ones which denied the Industrial Magistrates Court jurisdiction to hear the complaint.
- [20]In relation to the “wrong court cases”, there was a third reason given supporting the striking out of the complaint. That was that the summons referred to the “Magistrates Court” rather than the “Industrial Magistrates Court”. The Magistrates Court has no jurisdiction to hear a complaint for an offence under the CMSH Act.
- [21]The strike-out orders made in the “wrong court cases” were purportedly made by the Magistrates Court, not the Industrial Magistrates Court. The complainant in the “wrong court cases” lodged an appeal both to the Industrial Court pursuant to s 556 of the IR Act and to the District Court pursuant to s 222 of the Justices Act. On the five “correct court cases”, appeals have only been filed to this Court.
The strike-out application
- [22]It is well-established that proceedings will only be summarily disposed of by strike-out in the clearest of cases and where no full hearing is justified.[14] The applicants for such orders say these are clear cases. The summons commanded them to appear in the Magistrates Court, not the Industrial Magistrates Court. The magistrate sat as a magistrate sitting in the Magistrates Court, not the Industrial Magistrates Court. The Magistrates Court had no jurisdiction to hear the complaints so, by order of the Magistrates Court, not the Industrial Magistrates Court, the complaints were dismissed. Any appeal is then against a decision of a Magistrates Court, not an Industrial Magistrates Court, so the proper forum is the District Court, and not this Court.
- [23]In my view, the issues raised on the appeals are not so straightforward.
- [24]As already observed, each magistrate is, by force of the IR Act, also an Industrial Magistrate.
- [25]The complaint in each case alleged an offence by following the terms of the relevant offence provision of the CMSH Act.[15] The particulars made clear what safety obligations imposed by the CMSH Act were allegedly breached and why.
- [26]The summons is not part of the complaint. The summons serves the purpose of securing the defendant’s attendance. Arguably, having been in possession of a complaint enlivening the magistrate’s powers as an Industrial Magistrate, that was the power he was, as a matter of law, exercising. Arguably, the title on the written order is a matter of form only.
- [27]However, the appellant may be seeking the wrong relief in the wrong proceeding. The magistrate is obliged to hear the complaints and proceed according to law. If the complaints enliven the jurisdiction of the Industrial Magistrates Court, but the magistrate instead purports to sit in the Magistrates Court and dismisses the complaints, prerogative relief in the nature of certiorari compelling the exercise of the Industrial Magistrates Court’s jurisdiction may be the appropriate relief.[16]
- [28]The appeals raise serious and complicated issues which should be the subject of full argument and determination.
- [29]The strike-out applications are dismissed.
Should the appeals be heard together?
- [30]This aspect concerns all eight appeals.
- [31]The three appeals in the “wrong court cases” all raise the same issues. There is no reason why they ought not be heard together.
- [32]The five appeals in the “correct court cases” all raise the same issues. There is no reason why they ought not be heard together.
- [33]Two of the three issues raised in the “wrong court cases” are the only issues raised in the “correct court cases”.
- [34]The interests of efficiency strongly indicate that all appeals should be heard together. No party pointed to any prejudice which might be suffered if the appeals are heard together. I will order that the appeals be heard together.
Should appeals to this Court be stayed until the hearing of the appeals in the District Court?
- [35]It is, with respect, difficult to see the utility of the appeals to the District Court.
- [36]If the complaints have invoked the jurisdiction of the Industrial Magistrates Court, and any order striking out the complaints has, as a matter of fact and law, been made by the Industrial Magistrates Court, the appeal lies to this Court.
- [37]If the appellants are wrong about that and the complaints have invoked, or purported to invoke, the jurisdiction only of the Magistrates Court, then the magistrate was correct to strike out the complaints. The Magistrates Court has no jurisdiction to hear them. Any appeal to the District Court must surely fail.
- [38]The real issue is whether or not the complaints invoked the jurisdiction of the Industrial Magistrates Court. Resolution of that issue determines whether or not this Court has jurisdiction to hear the appeals. It is appropriate for this Court, not the District Court, to determine whether this Court has jurisdiction to hear the appeals. Further, if any prerogative orders are sought, this Court, not the District Court, has jurisdiction.[17] No stay ought be granted.
Orders
- [39]All parties urged me to reserve costs and make directions as to any further written submissions.
- [40]For the reasons explained, I order:
- The applications to strike out appeal numbers C/2022/17, C/2022/18 and C/2022/19 are dismissed.
- Appeals C/2022/16, C/2022/17, C/2022/18, C/2022/19, C/2022/20, C/2022/21, C/2022/22 and C/2022/23 shall be heard together.
- The appeals are set down for hearing on 2 December 2022.
- All parties have liberty to apply.
- Each parties’ costs are reserved.
- All parties have liberty to file and serve further supplementary submissions by 4:00 pm on 25 November 2022.
Footnotes
[1]Carborough Downs Coal Management Pty Ltd, C/2022/17; Russell Clive Uhr, C/2022/18 and Jeremy David Futeran, C/2022/19.
[2]Coal Mining Safety and Health Act 1999, s 6.
[3]Coal Mining Safety and Health Act 1999, s 33. Division 3 of Part 3 of the CMSH Act identifies the safety obligations which are imposed.
[4]Coal Mining Safety and Health Act 1999, s 255(1); summary proceedings are proceedings under the Justices Act 1886; see Acts Interpretation Act 1954, s 44.
[5]See Acts Interpretation Act 1954, Schedule 1, definition of “magistrate” and s 36.
[6]Section 507(2) does not list prosecutions pursuant to the Coal Mining Safety and Health Act 1999.
[7]There are two: C/2022/16 and C/2022/17.
[8]The original complainant. David Thomas Gore, the present appellant, is now effectively the complainant.
[9]C/2022/17.
[10]C/2022/16, C/2022/20, C/2022/21, C/2022/22 and C/2022/23.
[11]There are two: C/2022/16 and C/2022/17. The relevant one is C/2022/17.
[12]C/2022/18.
[13]There are two: C/2022/19 and C/2022/20. The relevant one is C/2022/19.
[14]General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125, at 128-130.
[15]Justices Act 1886, s 47.
[16]Industrial Relations Act 2016, s 424(1)(e), Judicial Review Act 1991, s 41.
[17]Industrial Relations Act 2016, s 424(1)(e).