Guilfoyle v Niepe Construction Pty Ltd
[2023] QDC 40
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- Guilfoyle v Niepe Construction Pty Ltd[2023] QDC 40
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Guilfoyle v Niepe Construction Pty Ltd[2023] QDC 40
Guilfoyle v Niepe Construction Pty Ltd[2023] QDC 40
DISTRICT COURT OF QUEENSLAND
CITATION: | Guilfoyle v Niepe Construction Pty Ltd [2023] QDC 40 |
PARTIES: | AARON JOHN GUILFOYLE (appellant) v NIEPE CONSTRUCTION PTY LTD (respondent) |
FILE NO/S: | D25/2021 |
DIVISION: | Appellate |
PROCEEDING: | Appeal pursuant to section 222 of the Justices Act 1886 (Qld) |
ORIGINATING COURT: | Toowoomba Magistrates Court |
DELIVERED ON: | 14 March 2023 |
DELIVERED AT: | Toowoomba |
HEARING DATE: | 6 March 2023 |
JUDGES: | Smith DCJA |
ORDER: |
|
CATCHWORDS: | APPEAL AND NEW TRIAL – INDUSTRIAL LAW – QUEENSLAND – OFFENCES – OTHER MATTERS – where a complaint was laid against the respondent alleging a breach of statutory health and safety duty pursuant to the Work Health and Safety Act 2011 (Qld) – where the Magistrate struck out the complaint – whether the complaint was a “nullity” and/or whether it was capable of amendment Criminal Code 1899 (Qld) ss 564, 573 Justices Act 1886 (Qld) ss 46, 47, 48, 222 Work Health and Safety Act 2011 (Qld) ss 19, 32, 230 Ciorra v Cole [2004] VSC 416; (2004) 150 A Crim R 189; 42 MVR 547, cited Clayton v John L Pty Ltd [1984] 1 NSWLR 344, cited Davies v Ryan [1933] HCA 64; (1933) 50 CLR 379, cited Ex Parte Lovell; Re Buckley (1938) 38 SR (NSW) 153; 55 WN (NSW) 63, cited Guilfoyle v Niepe Constructions Pty Ltd [2021] QMC 1, overruled Harrison v President of the Industrial Court of Queensland [2016] QCA 89; [2017] 1 Qd R 515, applied J Hutchinson Pty Ltd v Guilfoyle [2022] QCA 186, applied John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42; (1987) 163 CLR 508; 27 A Crim R 228, cited Johnson v Miller [1937] HCA 77; (1937) 59 CLR 567, cited Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531; 262 ALR 569, cited R v Lewis [1992] QCA 223; [1994] 1 Qd R 613; 63 A Crim R 18, cited S Kidman & Co v Lowndes [2016] NTCA 5; (2016) 314 FLR 358; 264 IR 68, applied |
COUNSEL: | Mr G Rice KC with Ms S Harburg for the appellant Mr P Roney KC for the respondent |
SOLICITORS: | Office of the Work Health and Safety Prosecutor for the appellant Herbert Smith Freehills for the respondent |
Introduction
- [1]This is an appeal pursuant to section 222 of the Justices Act 1886 (Qld) (“Justices Act”) against the decision of the Toowoomba Magistrates Court given on 29 April 2021 to strike out a complaint for want of jurisdiction and for the appellant to pay the respondent’s costs fixed in an amount of $13,834.52.
- [2]The ground of appeal is that the Magistrate erred in law in finding the complaint was a “nullity ab initio” or that it was so defective it was incapable of amendment.
The charges
- [3]The complaint was in the following terms:
“The complaint of Aaron John Guilfoyle, Work Health and Safety Prosecutor … made this thirteenth day of February 2020 before the undersigned, a Justice of the Peace for the said State who says:
Charge 1
That on or about the eleventh day of September 2018, at the Toowoomba Second Range Crossing in the said State, [the respondent] was conducting a business or undertaking, and held a Health and Safety duty, namely a duty pursuant to section 19(1) of the Work Health and Safety Act 2011, to ensure so far as it is reasonably practicable, the health and safety of workers engaged or cause (sic) to be engaged, or workers whose activities in carrying out work are influenced or directed by the said [respondent] while the workers were at work in the business or undertaking, and failed to comply with the said duty, and the failure exposed an individual to a risk of death or serious injury, contrary to section 32 of the Work Health and Safety Act 2011.
Charge 2
That on or about the eleventh day of September 2018, at the Toowoomba Second Range Crossing in the said State, [the respondent] was conducting a business or undertaking, and held a Health and Safety duty, namely a duty pursuant to section 19(2) of the Work Health and Safety Act 2011, to ensure so far as it is reasonably practicable, the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking of the said [respondent] and the failure exposed an individual to a risk of death or serious injury, contrary to section 32 of the Work Health and Safety Act 2011.
- [4]In my view the charges reflected the elements contained in sections 19 and 32 of the Work Health and Safety Act 2011 (Qld) (“WHSA”).
Proceedings below
- [5]The Magistrate noted the application was one to strike out the complaint.
- [6]The respondent submitted that none of the essential factual ingredients discussed in Kirk v Industrial Court of NSW[1] (“Kirk”) were pleaded in the charge.[2] The legislation was referred to. It was submitted that this was an invalid complaint.[3] It was submitted that “it doesn’t mean that just because the court can order particulars or because particulars are volunteered you can cure a defective complaint.”[4] The complaint should be struck out.[5]
- [7]The appellant pointed out that a statement of the particulars had been served on the respondent.[6] The argument that day was as to jurisdiction and not the sufficiency of the particulars.[7] The sole issue was jurisdiction and whether the complaint was sufficient to engage the jurisdiction of the court.[8] It was submitted that particularisation can occur by various means and the delivery of separate particulars was sufficient to comply with Kirk[9] but in any event this complaint was not a nullity as opposed to being defective. The legal elements were correctly pleaded in the complaint.[10] Section 47 of the Justices Act was complied with.[11] The charge could be amended under section 48 of the Justices Act, although that was not the issue before the court.[12]
- [8]The respondent replied but did not suggest that the appellant was wrong when it was submitted that the only issue before the court was one of jurisdiction.
- [9]The Magistrate considered the matter. In his written decision[13] he considered the charges, the legislative framework and the case law. His Honour then considered the submissions of both parties. His Honour ultimately distinguished the cases of S Kidman & Co v Lowndes[14] (“Kidman”) and Harrison v President of the Industrial Court of Queensland[15] (“Harrison”) and found the complaint to be a nullity and incapable of amendment.
The appellant’s submissions
- [10]The appellant submits that in light of the decision in J Hutchinson Pty Ltd v Guilfoyle[16] (“Hutchinson”) the Magistrate’s decision was an error. It is submitted that the complaint appropriately alleged breaches of section 32 of the WHSA in conjunction with sections 19(1) and (2) of the WHSA. It is conceded that particulars of the time, place and manner of the defendant’s acts or omissions were not included in the complaint but as in Hutchinson, a separate statement of the facts and particulars was provided to the respondent when the complaint and summons was served so that the respondent was informed of the relevant particulars. It is submitted that the Magistrate was in error at paragraph [109] where he found the complaint was a nullity ab initio and at paragraph [110] where he found it was so defective as to be incapable of amendment.
- [11]It is submitted that the terms of the charge in the instant case are very similar to that in the cases of Hutchinson and Kidman. It is submitted that the charges did disclose an offence known to law and the validity of any complaint is to be determined in conjunction with a power of amendment. It is conceded that although defective, the charge was not a nullity and was amenable to amendment. It is submitted that there is no distinguishing feature of the present case which would permit a different outcome to the decisions in Hutchinson and Kidman. In those circumstances, the appeal should be allowed and the matter remitted to the Magistrates Court for determination.
- [12]In oral submissions Mr Rice repeated his contentions. He also submitted that section 46 of the Justices Act applied to this prosecution such as to render relevant section 546 of the Criminal Code 1899 (Qld). He noted that written particulars were delivered with the complaint and indeed the Magistrate referred to this. He said if there was a defect in the complaint it was technical only and could be amended and hence the Magistrate was in error at paragraph [110] in finding that the complaint was incapable of amendment.
Respondent’s submissions
- [13]The respondent submits that the complaint here alleges in a skeletal way, two breaches of different provisions of the WHSA. It is submitted there has been a significant delay here. It is submitted that aside from the date and geographical location where the alleged breaches occurred, no other essential or factual ingredients of the offences are set out in the complaint. It is submitted there is no allegation which identifies the nature of the relevant incident or incidents which would lead to the conclusion that the WHSA has been breached. It is conceded that a principle to be derived from Hutchinson is that the validity of the complaint is to be determined in conjunction with the amendment power in section 48 of the Justices Act. It is submitted that the complaint here did not descend into sufficient particularity as to the essential ingredients of the offence alleged and in those circumstances the Magistrate did not err in law. It is submitted that decisions such as Kirk and John L Pty Ltd v Attorney-General (NSW) (“John L”)[17] require that a defendant be told of the factual ingredients of the “time, place and manner of the defendant’s acts or omissions.” The complaint in this case does not do this. It is not accepted that the statement of facts and particulars provided with the complaint are sufficient particulars. It is submitted that no application was made by the appellant to amend the complaint and the circumstances would give rise to an injustice if that was permitted now. It was submitted that this would not be a case where the court would amend the complaint evidence of its own motion and to do this would be quite wrong. It is submitted that purporting to bring criminal proceedings whilst reserving to oneself the capacity to change the foundations of the case would be an abuse of the court’s process. A significant feature of the summary jurisdiction are the narrow time limits involved. It is submitted that in Hutchinson the Court of Appeal did not make a finding that the defective complaint was open to amendment and should be amended but rather upheld the District Court Judge’s decision to send it back to the Magistrate to consider the power to amend. The error in that case was that the Magistrate ought to have considered the amendment power. No such error has occurred in the present case. In this case, the Magistrate did expressly consider the amendment power unlike in Hutchinson. The Magistrate appropriately exercised the power to refuse an amendment and it is submitted in those circumstances, the appeal should be dismissed.
- [14]In oral submissions, Mr Roney accepted that the complaint was not a nullity. He submitted that the appellant did not seek to amend the complaint and it would be unjust now to remit the matter and allow him to amend the complaint now. He submits the Magistrate did not err at paragraph [110] because the prosecution elected not to apply to amend the complaint. In that way, Hutchinson may be distinguished.
Discussion
- [15]I accept the appellant’s arguments and reject the respondent’s arguments for the following reasons.
- [16]Since the Magistrate’s decision, Hutchinson has been decided. It is common ground that the Magistrate erred at paragraph [109] in finding the complaint was a nullity in light of the Court of Appeal decision.
- [17]In Hutchinson, the complaint was in very similar terms to the present case. At paragraph [23], the court noted the respondent’s concession that the principles in Kirk, John L and Johnson v Miller[18] apply. At paragraph [24] it was noted that factual particulars had been provided to Hutchinson separately to the complaint and summons, as in the present case.
- [18]The appellant in Hutchinson argued that absent a threshold level of particularity in a complaint, the complaint was a nullity and unable to be saved by amendment under section 48 of the Justices Act. At paragraph [26] the court rejected that contention. It was noted that in Harrison it was said that the amendment power under section 48 could extend to a failure to allege a necessary ingredient of the charge even if that was a failure to allege an element of the offence.[19]
- [19]The court noted at paragraph [30] “those statements of principle[20] are contrary to the contention that Harrison established a threshold level of particularity, short of which a complaint was a nullity. To the contrary, Harrison acknowledged that the validity of complaint was a matter to be determined in conjunction with the power of amendment.”
- [20]The court also noted at paragraph [34] the amendment power was not a narrow one. The long reach of the power of amendment extends to a defect in substance or in form.
- [21]The court also referred to the Victorian decision of Ciorra v Cole[21] where it was held that an amendment was available even in cases where a charge disclosed no offence.
- [22]The court then referred to the Northern Territory decision of Kidman. It was said at paragraph [43] that the complaint in that case was similar to the case in Hutchinson. Particulars of the charge were later provided. It was noted at paragraph [46] that the Supreme Court in Kidman found that the particulars could be provided after the limitation period, that they were adequate and that there was no need to amend the complaint.
- [23]On the other hand, the court noted at paragraph [49] that the Court of Appeal in Kidman found the complaint was defective in that it omitted one of the essential elements of the offence, but the defect was not fatal because there was a power of amendment. The court in Kidman noted that the complaint needed to particularise the act or omission said to constitute the relevant failure. Therefore, the complaint was defective on its face. Ultimately, the court in Kidman found that invalidity did not lead to the conclusion that the complaint was a nullity. The conclusion of the court in Kidman was that the defective complaint was open to amendment and should be amended.
- [24]At paragraph [56] the court in Hutchinson found:
“[56] Hutchinson contended that Kidman was of no assistance as it involved a different statutory regime and a different factual scenario. That contention must be rejected. As explained above, the factual scenario was close to that here, in that the complaint was similarly defective by the omission of an essential element of the offence. The legislation was the same for the creation of the offence. The only difference was in the provision governing amendment. As to that, both statutes give a court power to amend where a complaint is defective. Section 183 in the Northern Territory is engaged where a complaint ‘fails to disclose any offence or matter of complaint, or is otherwise defective’. In Queensland s 48 is engaged where a complaint exhibits ‘a defect therein, in substance or in form’. Failure to disclose an offence or matter of complaint is comprehended by the phrase ‘defect of substance or in form’. And each section is engaged where a complaint contains a defect.
[57] In our view, the differences between the two provisions are not so great as to limit the utility of the observations in Kidman that a defective complaint, such as that in the present case, is not a nullity, and capable of amendment under a provision such as s 48 of the Justices Act.”[22]
- [25]Ultimately, the court in Hutchinson found the complaint was not a nullity, it was merely invalid and it could be the subject of valid amendment.
- [26]The respondent to the present appeal sought to distinguish Hutchinson on the basis that in the present case the Magistrate did consider the exercise of the power under section 48. However, in my view, that is an immaterial distinction. Hutchinson sets out the principles of law which apply in this case. They are that this complaint is not a nullity and may be amended under section 48 of the Justices Act.
- [27]An application of these principles undoubtedly leads to the conclusion that the Magistrate erred at paragraph [109] when he found the complaint was a nullity. It was not a nullity, it was at worst for the appellant, invalid.
- [28]I also find that the Magistrate erred at paragraph [110]. It was not correct to say that the complaint “was so defective that it was incapable of amendment.” This statement is directly contrary to the statement made at paragraph [57] in Hutchinson. It is true that no application was made by the prosecutor to amend the complaint before the Magistrate in the present case. However, it is clear to me from the transcript of proceedings below, that both parties proceeded on the basis that this was not an application to amend, it was merely an application as to nullity and therefore jurisdiction.[23] Reference to section 48 of the Justices Act was only ancillary to the jurisdiction point. Without seeing the written particulars, it is difficult to see how the Magistrate could have found the charge incapable of amendment. This is particularly so when the charges did plead all of the legal requirements of sections 19 and 32 of the WHSA.
- [29]I agree with the appellant’s contentions that the Magistrate erred in treating the question of amendment separately to the question of nullity. As was noted in Hutchinson at paragraph [30], the validity of complaint is to be determined with the power of amendment. It seems clear to me that both parties approached the matter below contrary to that approach.
- [30]As to alleged injustice relied on by Mr Roney, the fact is that particulars were delivered with the complaint. If there was an issue with their content, that could have been raised below. By remitting the matter to the Magistrates Court the respondent is in the same position as it was in absent an argument as to nullity. There has been delay, but the fact is the parties had to await the decision in Hutchinson. Any delay is unfortunate but sometimes it is a necessary consequence of litigation, particularly where there are preliminary skirmishes which become the subject of appeal.
- [31]I also find that section 46 of the Justices Act applied[24] so as to render relevant sections 564 and 573 of the Criminal Code. In my view, written particulars delivered with the charge sheet can be read with the charge and provided they give sufficient particularly in accordance with Kirk then the complaint may not have been invalid or defective.[25] It has been held previously that particulars of a complaint may be given separately to the complaint itself.[26]
- [32]I cannot decide this issue further because the particulars delivered are not before the court. But the Magistrate in this case should have regard to the written particulars before striking out the charges.
- [33]Despite the authorities referred to above, it might be thought prudent for a prosecuting authority to include the detail of the particulars in the complaint or at the least as an annexure, so as to avoid this issue arising again in the future.
- [34]In all of those circumstances, I am satisfied the appellant has established that legal errors occurred in this case. I am satisfied the ground of appeal is made out.
Conclusion
- [35]For the reasons given, the following orders should be made:
- The appeal is allowed.
- The decision of the Magistrate to strike out the complaint for want of jurisdiction is set aside.
- The matter is remitted to the Magistrates Court at Toowoomba to be dealt with according to law.
- I will hear the parties on the question of costs.
Footnotes
[1] [2010] HCA 1; (2010) 239 CLR 531; 262 ALR 569.
[2] Transcript page 5.35.
[3] Transcript page 7.25.
[4] Transcript page 12.30.
[5] Transcript page 29.10.
[6] Transcript page 29.45.
[7] Transcript page 30.5.
[8] Transcript page 30.20.
[9] Transcript page 33.10-30.
[10] Transcript page 33.45.
[11] Transcript page 51.5.
[12] Transcript pages 58-60.
[13]Guilfoyle v Niepe Constructions Pty Ltd [2021] QMC 1.
[14] [2016] NTCA 5; (2016) 314 FLR 358; 264 IR 68.
[15] [2016] QCA 89; [2017] 1 Qd R 515.
[16] [2022] QCA 186.
[17] [1987] HCA 42; (1987) 163 CLR 508; 27 A Crim R 228.
[18] [1937] HCA 77; (1937) 59 CLR 567.
[19] Hutchinson at [29].
[20] In Harrison at [112]-[132].
[21] [2004] VSC 416; (2004) 150 A Crim R 189; 42 MVR 547.
[22] I note this is directly contrary to the Magistrate’s conclusion at [106].
[23] Transcript page 60.10.
[24] See section 230(1AA) of the WHSA.
[25] Note in Queensland the particulars form part of the charge: R v Lewis [1992] QCA 223; [1994] 1 Qd R 613 at 624; 63 A Crim R 18.
[26] Davies v Ryan [1933] HCA 64; (1933) 50 CLR 379 at 386; Ex Parte Lovell; Re Buckley (1938) 38 SR (NSW) 153 at 169,170; 55 WN (NSW) and Clayton v John L Pty Ltd [1984] 1 NSWLR 344 at 348 (Yeldham J’s decision was restored by the High Court in John L Pty Ltd v Attorney-General (NSW) [1987] HCA 42; (1987) 163 CLR 508; 27 A Crim R 228).