Williamson v ADG Engineers (Aust) Pty Ltd
[2018] QDC 195
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- Unreported Judgment
- Williamson v ADG Engineers (Aust) Pty Ltd[2018] QDC 195
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Williamson v ADG Engineers (Aust) Pty Ltd[2018] QDC 195
Williamson v ADG Engineers (Aust) Pty Ltd[2018] QDC 195
DISTRICT COURT OF QUEENSLAND
CITATION: | Williamson v ADG Engineers (Aust) Pty Ltd [2018] QDC 195 |
PARTIES: | IAN WILLIAMSON (Appellant) v ADG Engineers (Aust) Pty Ltd (Respondent) |
FILE NO/S: | D76/17 |
DIVISION: | Criminal |
PROCEEDING: | Appeal under Justices Act 1886 s 222 |
ORIGINATING COURT: | Magistrates Court at Ipswich |
DELIVERED ON: | 25 September 2018 |
DELIVERED AT: | Ipswich |
HEARING DATE: | 1 May 2018 |
JUDGE: | Lynch QC DCJ |
ORDER: |
|
CATCHWORDS: | CRIMINAL LAW – APPEAL – PARTICULAR GROUNDS OF APPEAL – SUMMARY DISMISSAL OF COMPLAINT UPON NON-APPEARANCE OF COMPLAINANT – where a complaint under the Work Health and Safety Act 2011 was issued – where the legal representative of the complainant failed to appear on the first return date – where the legal representative was an employee of Workplace Health and Safety Queensland – where the defendant’s legal representative appeared and sought an adjournment – where presiding Magistrate ordered the complaint be struck out – whether the order dismissing the complaint was authorised by s 141 of the Justices Act 1886 – whether s 141 required Magistrate to consider if proper reason existed for adjourning the hearing – whether Magistrate erred in not adjourning complaint for further mention or hearing – whether s 141 requires consideration of all circumstances and public interest Legislation Justices Act 1886 ss 141, 142, 142A, 147, 147A 222, 223 Work Health and Safety Act 2011 ss 22, 32 Cases Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194 Fox v Percy (2003) 214 CLR 118 House v The King (1936) 55 CLR 499 James v Williams; Ex parte James [1967] Qd R 496 Minister for Immigration and Border Protection v SZVFW & Ors [2018] HCA 30 Newman v Foamaction Pty Ltd [2001] QIC 48 O'Sullivan v Farrar (1989) 168 CLR 210 R v EL [2017] QCA 135 R v Spina [2012] QCA 179 Shield v Topliner Pty Ltd [2005] 1 Qd R 551 Waltham v Wadda Farms Pty Ltd [2007] QIC 6 |
COUNSEL: | S A McLeod for the appellant K A Mellifont QC for the respondent |
SOLICITORS: | Workplace Health and Safety for the appellant Colin Biggers & Paisley for the respondent |
Appeal
- [1]This is an appeal, pursuant to s 222 of the Justices Act 1886, against an order of a Magistrate striking out a complaint of an alleged offence against s 32 of the Work Health and Safety Act 2011. The complaint alleged as follows:
(T)hat on 15 July 2015, at Springfield in the Magistrates Courts District of Ipswich appointed under the Justices Act 1886, ADG Engineers (Aust) Pty Ltd (A.C.N. 131 876 143), being a company duly incorporated according to law and a person who had a health and safety duty under section 22 (2) of the Work Health and Safety Act 2011, failed to comply with the duty, so far as reasonably practicable, contrary to section 32 of the said Act and the failure exposed an individual to a risk of death or serious injury.
The complaint also set out particulars of the alleged breach.
- [2]The appellant, who was named as complainant in the complaint, is an investigator employed by Workplace Health and Safety Queensland. On the first return date of the complaint, neither the appellant nor any representative of the Department appeared. A solicitor appeared on behalf of the respondent. In the absence of any appearance on behalf of the prosecution, the Magistrate ordered the complaint be struck out.
- [3]The appellant complains the Magistrate erred in law in so doing. For the reasons set out below, I conclude the Magistrate was in error in striking out the complaint, his decision should be set aside, and the matter remitted to the Magistrates Court for hearing according to law.
Material
- [4]The following material was admitted on the hearing of the appeal.
| Exhibit 1: | Notice of appeal |
| Exhibit 2: | Affidavit of Stephen Peter McMurray; sworn on 19 September 2017 |
| Exhibit 3: | Appellant’s outline of submissions |
| Exhibit 4: | Respondent’s amended outline of submissions |
| Exhibit 5: | Respondent’s transcript of proceedings |
| Exhibit 6: | Auscript transcript of proceedings |
Proceedings before the Magistrates Court
- [5]The complaint and summons were issued on 21 June 2017 and filed in the Ipswich Magistrates Court on 11 July 2017. The summons commanded the defendant’s appearance before the Magistrates Court at Ipswich on 21 August 2017, at 10.30am. The complaint and summons identified the complainant Ian Williamson as a “Public Officer” and provided contact details for Workplace Health and Safety Queensland. A Notice of Appearance, filed for the defendant company, identified Greg McCann of Colin Biggers and Paisley Lawyers as intending to appear on behalf of ADG Engineers (Aust) Pty Ltd as its legal representative.
- [6]On 21 August 2017, the matter of the complaint was called on. The following is agreed to be an accurate transcript of events; commencing at 10.56am and concluding at 11.00am.
| Magistrate: | There’s a Workplace Health and Safety matter. Is anyone here for that? |
| Wichlinski: | Yes, your Honour. |
| Magistrate: | Yes. |
| Wichlinski: | Good morning your Honour my name is Wichlinski, initials M. J. |
| Magistrate: | Sorry, what was your name? |
| Wichlinski: | Wichlinski, W-I-C-H-L-I-N-S-K-I. It’s quite a mouthful. |
| Magistrate: | From? |
| Wichlinski: | Colin Biggers and Paisley Lawyers. And we act on behalf of ADG Engineers. Is this the correct matter? |
| Magistrate: | Where’s – do you know where the – sorry. This is a complaint made by Workplace Health and Safety, is it not? |
| Wichlinski: | To my knowledge it is. |
| Magistrate: | Do you appear for the person who’s the subject of the complaint? |
| Wichlinski: | The company. |
| Magistrate: | Yes. |
| Magistrate: | Yes. Do you know where the prosecutor is? |
| Wichlinski: | No, your Honour, I’ve not seen him or her. (Pause) Our client does seek an adjournment of this matter anyway, your Honour. |
| Magistrate: | Can you call the Department of Workplace Health and Safety for me please? |
| Court Clerk: | Representatives from Workplace Health and Safety, representatives from Workplace Health and Safety, representatives from Workplace Health and Safety, to Court 2. |
| Magistrate: | Is it Colin Biggers and Paisley? |
| Wichlinski: | Yes, your Honour. |
| Magistrate: | The notice says that somebody else was going to appear. |
| Wichlinski: | My apologies your Honour. I only received instructions on this on Friday. |
| Magistrate: | That’s alright. Have you had any contact with the Department? |
| Wichlinski: | No, your Honour. I was seeking to meet with them this morning, but I haven’t been able to find anyone. |
| Magistrate: | In the absence of the prosecutor or any representative from the Department, the matter is struck out. Thank you. |
| Wichlinski: | Thank you, your Honour. |
| Magistrate: | If they want to come again they can try. |
- [7]No evidence, nor any further submissions or material were placed before the Magistrate.
New evidence
- [8]On the hearing of the appeal, the appellant sought leave, pursuant to s 223(2) of the Justices Act, to introduce new evidence to explain the non-appearance by the Department on 21 August 2017. The respondent opposed the granting of leave but acknowledged the Court should receive the material in order to rule upon its admissibility.
- [9]The new evidence consists of an affidavit of Stephen Peter McMurray and various attachments. Mr McMurray is a legal officer within the Workplace Health and Safety prosecution unit. Mr McMurray was allocated the file concerning the present complaint in December 2016. Mr McMurray was aware any prosecution of the matter would be statute barred from 15 July 2017. After a decision was made to proceed with prosecution, Mr McMurray settled the complaint and summons. In doing so, he accessed the Ipswich Magistrates Court online diary and selected 21 August 2017 as the first return date. This date was then specified in the summons. Mr McMurray forwarded the draft to Mr Williamson on 21 June 2017 and the complaint and summons were issued on that date. Mr McMurray explains he wrongly entered 1 September 2017 in his work diary as the first return date; presumably when he also recorded that return date for one of his other files. The complaint and summons were duly served upon the defendant company. Solicitors for the defendant subsequently contacted the complainant Mr Williamson, provided a Notice of Appearance, and requested a copy of the brief of evidence which Mr Williamson provided them. Mr McMurray acknowledges the complainant, Mr Williamson, rightly expected Mr McMurray to appear as his legal representative on the first return date in the Ipswich Magistrates Court. Mr McMurray says he did not appear on that date because he mistakenly believed, because of his error when entering the date in his diary, the return date was 1 September. On 28 August 2017, Mr McMurray realised this error when looking at documents prior to contacting the defendant company’s solicitors. He subsequently contacted the principal of that firm, Mr McCann, who advised the matter had been heard on 21 August and struck out because no one appeared for the Department.
- [10]The appellant’s argument on the appeal is that the Magistrate erred in dismissing the complaint. The appellant’s arguments proceed on the basis the Magistrate was acting pursuant to s 141 of the Justices Act. The appellant submitted the new evidence provides explanation why no appearance was made by the complainant or his legal representative on 21 August 2017; namely, a simple administrative error in diarising the return date. It was submitted the non-appearance was therefore not deliberate and should not have been regarded as indication the Department was not interested in pursuing the prosecution. The appellant submitted that, in circumstances where the Magistrate had no evidence or explanation for the non-appearance on the return date, the fact it was due to an oversight provides special reason to admit the new evidence.
- [11]The respondent submitted the new evidence is irrelevant to determination of whether the Magistrate erred in dismissing the complaint. The respondent submitted the question is whether dismissal by the Magistrate was in accordance with s 141 of the Justices Act which should be determined on the basis of the information or evidence then before the court. The respondent submitted explanation why the prosecutor did not appear on 21 August 2017 cannot affect that determination. The appellant submitted in the circumstances no special reason is demonstrated and leave should be refused.
- [12]Section 223(2) of the Justices Act provides the Court may give leave to adduce new evidence if “satisfied there are special grounds” for doing so. In R v Spina,[1] McMurdo P said:
Appellate courts recognise, however, that there remains a residual discretion in exceptional cases to receive new or further evidence which is not fresh in the legal sense where to refuse to do so would result in a miscarriage of justice. See Mallard v The Queen; R v Young (No 2); R v Condren; ex parte Attorney-General; R v Main; R v Daley; ex parte A-G (Qld); and R v Katsidis. In determining an appeal which turns on new or further evidence, there are strictly two questions. The first is whether the court should receive the evidence. The second is whether that evidence, if received, when combined with the evidence at trial, requires that the conviction be set aside to avoid a miscarriage of justice. Frequently those two questions can be conveniently dealt with together. (Citations removed.)[2]
- [13]The new evidence in this case amounts to no more than an explanation of the circumstances which led to the failure by the prosecution to appear at the first return date of the complaint. The reasons for the non-appearance can be described as a simple mistake. The Magistrate did not seek any explanation or make any enquiry which might have established any reason. Instead, the Magistrate acted solely upon the fact of the non-appearance in ordering the complaint be struck out. That might suggest the Magistrate acted hastily or without due consideration; however, the explanation now available was not a factor in his doing so. It is common ground that the real issue on this appeal is whether the order dismissing the complaint was authorised by the terms of s 141 of the Justices Act. It follows the actual explanation for non-appearance is irrelevant to the question whether the Magistrate was in error. And, since the real question is whether the dismissal based solely on the non-appearance was in accordance with the provision, the explanation does not of itself demonstrate a miscarriage of justice. Therefore, leave to introduce the new evidence should be refused.
Submissions
- [14]The notice of appeal asserts the Magistrate erred in law in finding the complaint should be struck out. Particulars of what was alleged as error in the exercise of discretion included:
- the Magistrate drawing the inference the complainant was unable or unwilling to continue with the proceedings;
- the Magistrate wrongly deciding there had been no contact between the Department and the defendant;
- the Magistrate proceeding without caution in circumstances where there is a public interest in continuing the proceedings and the non-appearance was on the first return date;
- the Magistrate not making any enquiry with the Department as to the reason for the non-appearance.
- [15]The appellant submitted that although the Magistrate did not explain what power he exercised in striking out the complaint, it was to be presumed he acted pursuant to s 141 of the Justices Act. The appellant submitted the Magistrate was faced with circumstances that the non-appearance by the complainant or his legal representative on the first mention date was unexplained, there was no evidence or information before the Magistrate to indicate any lack of bona fides or unwillingness to pursue the complaint, the Magistrate may have misunderstood what he was told by the defendant’s solicitor as indicating there had been no contact between the complainant and the defendant, and there was no evidence of any prejudice to the defendant by reason of the non-appearance.
- [16]The appellant submitted these circumstances were analogous to those in Shield v Topliner Pty Ltd[3] in which the Court of Appeal concluded the appropriate resolution, where the complainant failed to appear at a mention of the complaint, was to order an adjournment with costs in favour of the defendant. In particular, the appellant relied upon the following passage in the judgment of McPherson JA:
I will say now that I consider the present case to be covered by the authority of the Full Court in James v Williams, ex p. James [1967] Qd R 496, 501-502. There, Hanger J (with whom Mack CJ agreed) said:
“If a defendant who has been served with a summons to appear on a certain day attends at Court on that day ready to answer the complaint, and the complainant is not then ready to proceed, then, if nothing else appears, the prima facie order to be made would be to adjourn the hearing and to require the complainant to pay the expenses of the defendant - the costs thrown away. If justice can be done by adjourning the case and ordering payment of costs, there is no justification for dismissing the complaint where the bona fides of the complainant is not challenged.”
Remarks to somewhat similar effect are to be found in the reasons of Hart J ([1967] Qd R 496, 506), who was the third member of the Full Court on that occasion.[4]
- [17]
- [18]The appellant submitted the Magistrate therefore erred in exercise of the discretion under s 141 by striking out the complaint. It was submitted the appropriate course, as approved by McPherson JA in Shield v Topliner, and following the authority of James v Williams, was to have adjourned the proceedings with costs if considered appropriate. The appellant submitted the circumstances were akin to those described in James v Williams since there was no expectation the hearing would proceed, this being the first return date. It was submitted adjournment would inevitably have revealed the human error behind the non-appearance.
- [19]The appellant also submitted the Magistrate may have inadvertently been misled by reason of his exchange with the solicitor appearing for the defendant. The Magistrate asked the solicitor “Have you had any contact with the Department?” and the solicitor replied “No, your Honour.” It was submitted the Magistrate may therefore have wrongly concluded there had been no contact at all between the defendant and complainant, rather than this simply being a reference to events that morning. It was submitted a reasonable course was for the Magistrate to have stood the matter down so that contact with the Department could be made, particularly in light of the defendant not seeking to have the complaint struck out. The appellant submitted the public interest in the due determination of the complaint was another reason the Magistrate should simply have adjourned the proceedings, particularly where no prejudice to the defendant was apparent.
- [20]The appellant submitted the appeal should be allowed, the order of the Magistrate set aside, and the hearing of the complaint remitted to the Magistrates Court to be determined according to law. The appellant submitted it was appropriate to order the appellant pay the respondent’s reasonable costs of an incidental to the appeal.
- [21]The respondent likewise submitted the Magistrate should be presumed to have acted pursuant to s 141 of the Justices Act. The respondent submitted no discretion to adjourn the hearing arose under s 141, except where proper reason is demonstrated. The respondent contrasted this with s 147 of the Justices Act which provided, in the case of an adjourned hearing, a discretion to dismiss the complaint upon non-appearance by either or both parties. The respondent submitted this construction of s 141 results from the express terms of s 141, i.e. the use of the words “shall dismiss”. In addition, the respondent submitted, there are sound policy reasons behind this strict requirement. It was submitted service of a summons compels a defendant to appear before a court to answer the complaint and is therefore an infringement on the defendant’s liberty. Because the process is initiated by the complainant, the section requires the appearance of the complainant on the first return date. In those circumstances, it was submitted, it is the conduct of the complainant which informs s 141 and has the consequence that a failure of the complainant to appear will, without proper reason, result in the peremptory dismissal of the complaint. For that reason, the respondent submitted, the expressed intention by the defendant’s solicitor to seek an adjournment, was not relevant to whether proper reason to adjourn was before the Magistrate. Similarly, the respondent submitted, expectation that the hearing would not take place on the first return date was also not proper reason to adjourn. The respondent submitted proper reason could include where a complainant contacted the court to provide a reason they could not appear, or where some information is known or made known to the Magistrate and forms a basis for concluding proper reason to adjourn exists. It was also submitted the section did not cast any onus on the Magistrate to enquire as to any non-appearance.
- [22]The respondent sought to distinguish the cases relied upon by the appellant, apart from Waltham v Wadda, because they did not involve dismissal under s 141. The respondent submitted the circumstances of Shield v Topliner revealed adjournment of the hearing of the complaint from one Magistrates Courts district to another, and dismissal pursuant to s 147 was ordered where no appearance was made by the complainant on the first mention in the new district. The respondent relied upon that distinction but also a passage in the judgment of McPherson JA as follows:
It is, of course, true that, as the magistrate said, it is not the duty of a court to communicate with absent litigants to find out why they have not appeared. It is, however, another matter to say that their proceedings should be peremptorily dismissed for failing to do so. Even if there is in such circumstances a power under the Justices Act to dismiss the complaint, the magistrate ought not, in my opinion, to have exercised it in the circumstances here. He should on this occasion have followed the course called for in James v Williams of adjourning the complaints to another date for mention, and of ordering the complainant to pay the respondents’ costs thrown away by the adjournment on 12 December. Predictably, taking that course would have alerted the complainant to the oversight that had taken place and discouraged the Department from making the same mistake again.[8]
- [23]The respondent submitted that in James v Williams the dismissal was made on the first return date of the complaint, but not because of non-appearance by the complainant, and therefore not pursuant to s 141. There, the complainant appeared but was not then ready to proceed with the hearing. The defendant sought dismissal of the charge which the Magistrate duly ordered. The Full Court, aware of the Court’s usual practice that hearings did not occur on the first return date, upheld the appeal against the dismissal, making it plain the appropriate order was to adjourn the hearing to another day. The respondent contends in that case no power of dismissal actually existed.
- [24]The respondent also distinguished Newman v Foamaction on the grounds it involved dismissal under s 147, i.e. upon a subsequent hearing date rather than the first return date. In that case the non-appearance was at the third mention at a callover of cases and the Industrial Magistrate dismissed the complaint. On appeal, that decision was overturned, the court applying the decision in James v Williams.
- [25]The respondent also dealt with the decision in Waltham v Wadda, which involved dismissal of a complaint under s 141 for non-appearance by the complainant, which decision was overturned on appeal; President Hall applying Shield v Topliner and James v Williams. The respondent submitted the Court should not follow that decision because it is not binding authority and was wrongly decided. The respondent submitted the conclusion in that case was in effect to align s 141 with s 147, despite the markedly different language of the respective provisions. It was submitted the use of the word “shall” in s 141 cannot be equated with the word “may” in s 147, as per the reasoning of President Hall.
- [26]The respondent submitted to interpret s 141 in that way would result in automatic adjournment at the first return date, regardless of the circumstances, and render s 141 meaningless. The respondent submitted such a result could have been legislated if that were intended and the scheme of the Justices Act otherwise told against that construction; there being discrete provisions relating to the nature and extent of powers of a Magistrate upon non-appearance by a complainant and/or defendant (see ss 141, 142, 142A, 147 and 147A). The respondent submitted examination of those provisions demonstrated an intention to provide a discretion where a complainant does not appear on subsequent dates, the power to re-open and rehear where a defendant fails to appear, no equivalent power where a complainant fails to appear, power of re-opening where a complainant fails to appear, only where there is a demonstrated error of fact, and deliberate use of the word “shall” in s 141.
- [27]The respondent submitted accordingly, in the present case, no proper reason for adjournment was before the Magistrate and the Magistrate acted in accordance with the section. The respondent submitted, although the remedy of re-issuing proceedings would ordinarily arise, that was precluded in this case because of the statutory limitation period having passed. The respondent submitted that factor was of no consequence to the current appeal since that circumstance arose by reason of the appellant’s deliberate actions in initiating proceedings so close to the limitation date. The respondent submitted the appeal should be dismissed.
- [28]The respondent’s alternative submission was that, assuming the court concluded s 141 did provide a discretion to the Magistrate to adjourn proceedings, it had not been demonstrated the exercise of discretion miscarried. In this regard, the respondent submitted, it was necessary to demonstrate error of the kind described in House v The King.[9]
- [29]The respondent dealt with the matters relied upon by the appellant as demonstrating error in exercise of the discretion. As regards the claim the Magistrate inferred the complainant was unwilling or unable to continue with the complaint, the respondent submitted the Magistrate was not required to make such a finding under the terms of s 141, but in any event, nothing said by the Magistrate permitted the conclusion he had drawn such an inference. As regards the submission the Magistrate was misled by the exchange with the defendant’s solicitor concerning contact with the Department, the respondent submitted the statement made by the solicitor was factually correct and referred to the solicitor’s personal involvement in the case. The respondent submitted that since the solicitor informed the Magistrate the respondent was seeking an adjournment and did not seek dismissal of the complaint, it cannot be concluded the Magistrate was misled or misunderstood any material consideration. It was submitted no factual error is demonstrated which would show the discretion miscarried.
- [30]As regards the public interest in the complaint being duly heard, the respondent submitted s 141 did not require the Magistrate to consider the public interest but instead prima facie required dismissal on the first return date for non-appearance. Similarly, the respondent submitted, the court had no duty to communicate with absent litigants to discover a reason for their non-appearance, citing the above passage from McPherson JA’s judgment in this respect. The respondent submitted no basis had been demonstrated to conclude any error on the part of the Magistrate and the decision was not so unreasonable as to itself justify the conclusion that the discretion miscarried. The respondent submitted the appeal should be dismissed.
Consideration
- [31]
The nature of the "rehearing" provided in these and like provisions has been described in many cases. To some extent, its character is indicated by the provisions of the sub-sections quoted. The "rehearing" does not involve a completely fresh hearing by the appellate court of all the evidence. That court proceeds on the basis of the record and any fresh evidence that, exceptionally, it admits. No such fresh evidence was admitted in the present appeal.
The foregoing procedure shapes the requirements, and limitations, of such an appeal. On the one hand, the appellate court is obliged to "give the judgment which in its opinion ought to have been given in the first instance". On the other, it must, of necessity, observe the "natural limitations" that exist in the case of any appellate court proceeding wholly or substantially on the record. These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses' credibility and of the "feeling" of a case which an appellate court, reading the transcript, cannot always fully share.
…
… If, making proper allowance for the advantages of the trial judge, they conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute.[12] (Citations removed.)
- [32]The requirement that error be demonstrated was confirmed in Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission,[13]where the majority (Gleeson CJ, Gordon and Hayne JJ) said:
Ordinarily, if there has been no further evidence admitted and if there has been no relevant change in the law, a court or tribunal entertaining an appeal by way of rehearing can exercise its appellate powers only if satisfied that there was error on the part of the primary decision-maker. That is because statutory provisions conferring appellate powers, even in the case of an appeal by way of rehearing, are construed on the basis that, unless there is something to indicate otherwise, the power is to be exercised for the correction of error.[14](Citations removed.)
- [33]
Like an appeal in the strict sense, of which an appeal to the High Court under s73 of the Constitution is the prime example, an appeal by way of rehearing is a procedure under which the appellate court is permitted and, unless the appellate court dismisses the appeal or remits the matter for rehearing, required to "give the judgment which in its opinion ought to have been given in the first instance". And like an appeal in the strict sense, an appeal by way of rehearing is a procedure for the correction of error. "[T]he existence of an error, whether of law or fact, on the part of the court at first instance is an indispensable condition of a successful appeal."[16](Citations removed.)
- [34]It follows from these various statements that, on the hearing of this appeal and upon consideration of the material before the Magistrate, if error of fact or law is demonstrated, I am required to give the judgment which in my opinion ought to have been given in the first instance. I am also required to observe the natural limitations that exist in so far as the evaluation of credibility is relevant. In this case, I am satisfied no such limitation arises. No formal evidence was placed before the Magistrate. The Magistrate made the order striking out the complaint after hearing short oral submissions. I conclude therefore I am in as good a position as the Magistrate to make assessment of the relevant circumstances.
- [35]Both parties’ arguments assume the Magistrate acted pursuant to s 141 of the Justices Act in ordering the complaint be struck out. The Magistrate did not expressly explain his decision apart from saying, “In the absence of the prosecutor or any representative from the Department, the matter is struck out”. The order was made on the first return date of the complaint. Section 141 of the Justices Act provides:
141 Dismissal or adjournment in absence of complainant
If upon the day and at the place appointed by the summons for hearing and determining a complaint of a simple offence or breach of duty the defendant attends voluntarily in obedience to the summons, or is brought before the justices by virtue of a warrant, and the complainant (having had notice of such day and place) does not appear personally or by lawyer, the justices shall dismiss the complaint, unless for some reason they think proper to adjourn the hearing of the same to some other day, in which case they may adjourn the hearing accordingly, upon such terms as they think fit, and may commit the defendant in the meantime or may grant the defendant bail.
- [36]The appellant argues the provision required the Magistrate to exercise a discretion by reason of inclusion of the words “unless for some reason they think proper to adjourn the hearing”. The respondent contends no discretion arose until proper reason was demonstrated. The section, which provides a power to decide, without identifying what amounts to reason that will be proper, must be considered in its entirety and accorded its natural meaning, consistent with the scheme and purpose of the legislation.[17]
- [37]The section initially describes the course to be taken upon non-appearance by the complainant or their legal representative in the mandatory terms “shall dismiss the complaint”. That position is qualified by the following words “unless for some reason they think proper to adjourn the hearing”. The natural meaning of that qualification must be to require the Magistrate to consider whether reason that is proper exists. The provision could have been drafted differently; for example, by first stating a requirement to consider if proper reason to adjourn is shown before compelling dismissal in the absence of such reason. However, I conclude the provision in the existing form has the same practical meaning. That is because it is not possible to apply the qualification “unless for some reason they think proper”, without considering whether proper reason to adjourn exists. Unless understood in that way, the qualification could have no practical effect. That construction seems to me consistent with the scheme and purpose of the Justices Act, which provides the mechanism and rules for the initiation and determination of complaints such as the present. I see no inconsistency with the other provisions referred to by the respondent. That construction seems also consistent with the modern practice and procedure of the Magistrates Courts. I conclude the Magistrate was required to consider whether the circumstances before him amounted to proper reason to adjourn the hearing. The Magistrates reasons do not disclose whether he did so.
- [38]Determination of whether proper reason is shown requires consideration of all of the circumstances. This will include all information then known to the Magistrate but also the public interest in the due administration of justice. It could hardly be contemplated that a Magistrate should act otherwise. The due administration of justice will include proceeding in accordance with the court’s modern practice and procedure and permitting complainants and defendants an opportunity for a fair hearing of the case on its merits. This approach is consistent with the decisions in Shield v Topliner and James v Williams, even though those decisions were not made in identical circumstances to the present.
- [39]The respondent argues to the effect that, since no information was before the Magistrate, no proper reason to adjourn the hearing existed. However, the Magistrate did have information which should have informed his decision. First, the Magistrate was aware this was the first return date of the complaint. Second, the Magistrate would have known that, in accordance with the modern practice and procedure of the court, no contested hearing or trial of the merits of the complaint would occur on the first return date. Inevitably, the complaint would be adjourned to a subsequent date either for further mention or for hearing. Third, the Magistrate was aware the complaint was one initiated by a government department as the prosecuting authority, as is usually the case with a complaint under the Work Health and Safety Act. Fourth, neither the complainant nor a representative of the Department appeared when the matter was called. Fifth, the Magistrate had no reason to doubt the bona fides of the complainant or conclude the Department was unwilling or unable to continue the proceedings. Sixth, the Magistrate knew the complaint and summons had been duly served upon the defendant since a Notice of Appearance had been entered and a solicitor appeared. Seventh, the Magistrate was aware the defendant was seeking to have the matter adjourned to another date. Eighth, the Magistrate had no evidence adjournment of the hearing would prejudice or otherwise disadvantage the defendant. In addition, to determine whether proper reason to adjourn existed, the Magistrate was obliged to consider the public interest in this complaint being determined after a fair hearing on the merits.
- [40]As is obvious from the transcript of the proceedings set out above, the entirety of the hearing on the first return date was very brief. The decision of the Magistrate was given after the court clerk called the representative of the Department and no appearance was forthcoming. The Magistrate’s reasons do not disclose whether he considered all of the relevant circumstances and the public interest. The time taken for the hearing and the lack of detailed reasons might suggest he did not. If he did not, he was in error. If the matters set out above were considered, then in my view, the Magistrate should have concluded there was proper reason to adjourn the hearing. I conclude the Magistrate either erred in not considering all relevant factors or that, if he did so, he erred in coming to his determination.
- [41]The combination of factors present in this case, taken in conjunction with the public interest that a complaint alleging breach of workplace safety requirements be determined after a fair hearing on the merits, are such that adjournment of the hearing was clearly appropriate. If an appearance by the complainant or Department had been made, adjournment would inevitably have resulted. Current court practice does not contemplate that any complaint should proceed to a contested hearing on the first return date. Here, the lawyer for the respondent was not expecting that course and voiced the intention to seek adjournment. He did not complain that adjournment would cause any prejudice. The Magistrate was expecting an appearance by the Department and had no basis to conclude they did not wish to proceed with the complaint. In my view, to conclude no proper reason to adjourn is made out in these circumstances is plainly wrong. The natural conclusion to be drawn from the non-appearance was either that there had been an administrative error or that the representative of the Department had been delayed. Adjournment to another date would easily have clarified the position and not prejudiced the complainant, the defendant or adversely impacted the public interest.
- [42]The respondent argued this construction of the section renders the power of dismissal under s 141 redundant and will lead to automatic adjournment regardless of the non-appearance of the complainant or their legal representative. That submission overlooks the requirement for the Magistrate to consider the circumstances of the case to determine whether proper reason to adjourn exists. Whether adjournment in any particular case is warranted must depend upon the circumstances of that case. Some basis for determining a lack of bona fides or other feature might arise which would warrant dismissal. Clearly, in light of the current practice and procedure of the Magistrates Courts, adjournment is the usual remedy. As was said in James v Williams:
…if nothing else appears, the prima facie order to be made would be to adjourn the hearing and to require the complainant to pay the expenses of the defendant - the costs thrown away. If justice can be done by adjourning the case and ordering payment of costs, there is no justification for dismissing the complaint where the bona fides of the complainant is not challenged.
In adopting that approach in Shield v Topliner, McPherson JA said:
It is, of course, true that, as the magistrate said, it is not the duty of a court to communicate with absent litigants to find out why they have not appeared. It is, however, another matter to say that their proceedings should be peremptorily dismissed for failing to do so.
- [43]The decision of the Magistrate in this case amounted to peremptory dismissal in circumstances where no inference of lack of bona fides could be drawn. Significantly, adjournment was the very solution sought by the respondent’s legal representative. No injustice to the respondent could result by adjournment in those circumstances.
- [44]I conclude that in the circumstances the Magistrate was in error in dismissing the complaint. He should have adjourned the matter to another date for mention or hearing. The decision of the Magistrate should be set aside, and the matter remitted to the Magistrates Court for hearing according to law.
Orders
- [45]It is ordered that:
- The order of the Magistrate dismissing the complaint is set aside.
- The complaint is remitted to the Magistrates Court for determination according to law.
- The appellant pay the respondent’s reasonable costs of an incidental to the appeal.
Footnotes
[1] [2012] QCA 179.
[2] At [34]; cited with approval in R v EL [2017] QCA 135 at [49].
[3] [2005] 1 Qd R 551.
[4] At 553-554.
[5] [1967] Qd R 496.
[6] [2007] QIC 6.
[7] [2001] QIC 48.
[8] At 554-555.
[9] (1936) 55 CLR 499 at 504-505.
[10] Justices Act 1886 s 223(1).
[11] (2003) 214 CLR 118.
[12] At 125-126, 127-128; [22]-[23], [27].
[13] (2000) 203 CLR 194.
[14] At 203-204, [14].
[15] [2018] HCA 30.
[16] At [30].
[17] O'Sullivan v Farrar (1989) 168 CLR 210 at 216.