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  4. Thomas Borthwick & Sons (Australia) Pty Ltd v The President of the Industrial Court of Queensland - [2009] QSC 406

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Thomas Borthwick & Sons (Australia) Pty Ltd v The President of the Industrial Court of Queensland[2009] QSC 406

Thomas Borthwick & Sons (Australia) Pty Ltd v The President of the Industrial Court of Queensland[2009] QSC 406

 

SUPREME COURT OF QUEENSLAND

  

CITATION:

Thomas Borthwick & Sons (Australia) Pty Ltd v The President of the Industrial Court of Queensland & Anor [2009] QSC 406

PARTIES:

THOMAS BORTHWICK & SONS (AUSTRALIA) PTY LTD
(applicant)
v
THE PRESIDENT OF THE INDUSTRIAL COURT OF QUEENSLAND
(first respondent)
GAVIN WESCHE
(second respondent)

FILE NO/S:

BS 7888 of 2009

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

15 December 2009

DELIVERED AT:

Brisbane

HEARING DATE:

11 December 2009

JUDGE:

Chief Justice

ORDERS:

  1. that the application of Thomas Borthwick and Sons (Australia) Pty Ltd filed on 23 July 2009 be dismissed.
  2. that Thomas Borthwick and Sons (Australia) Pty Ltd pay the second respondent’s costs of and incidental to the application, by agreement fixed at $5,000.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – Defendant to industrial complaint – conviction – appeal to Industrial Court – application for judicial review of decision of Industrial Court to remit cause to Magistrate – whether remitting within jurisdiction in this case – whether defendant was denied procedural fairness in Industrial Court

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

Judicial Review Act 1991 (Qld) s 48

Workplace Health and Safety Act 1995 (Qld) s 37(2)

Carey v President of the Industrial Court of Queensland [2004] 2 Qd R 359; [2004] QCA 062, cited

R v Smillie (2002) 134 A Crim R 100; [2002] QCA 341, cited

Squires v President of Industrial Court Queensland [2002] QSC 272, cited

COUNSEL:

M O'Sullivan for the applicant

P Matthews for the second respondent

SOLICITORS:

Bruce Thomas Lawyers for the applicant

Legal and Prosecution Services Unit – WHSQ for the second respondent

  1. CHIEF JUSTICE: Thomas Borthwick and Sons (Australia) Pty Ltd seeks the quashing of an order of the Industrial Court, made on 25 June 2009, remitting to an Industrial Magistrate the determination of a complaint brought against Thomas Borthwick by the second respondent, Mr Wesche, an inspector under the Workplace Health and Safety Act 1995.  The Industrial Magistrate had found Thomas Borthwick guilty of the breach charged.  The President of the Industrial Court allowed the appeal brought to the Industrial Court, and made the order for remission.
  1. Thomas Borthwick contends that the President erred jurisdictionally by remitting the matter, because there was no evidence to establish the breach: the President should have entered an acquittal. Thomas Borthwick also contends that the President denied it procedural fairness, by not specifically inviting a submission on the question whether remittal was appropriate.
  1. The Industrial Court was proceeding under s 341 of the Industrial Relations Act 1999.  It provides, in sub-s (3)(d), that in allowing an appeal, the court may “remit the industrial cause…to...an Industrial Magistrates Court…to act according to law”.  Mr O'Sullivan, for Thomas Borthwick, submitted however that because there was insufficient evidence to support a conviction, the President should have himself dismissed the complaint (R v Smillie [2002] QCA 341).  He must establish that the President did not merely err in the exercise of his jurisdiction, but that he had no jurisdiction to make the order he made, which in light of s 341(3)(d) would seem to be a substantial task.
  1. This court cannot intervene unless the Industrial Court was acting outside its jurisdiction (s 349 Industrial Relations Act;  Part 1, Schedule 1 Judicial Review Act 1991;  Squires v President of Industrial Court Queensland [2002] QSC 272;  Carey v President of the Industrial Court of Queensland [2004] QCA 62).
  1. The Industrial Inspector seeks an order for the summary dismissal of Thomas Borthwick’s application for judicial review. The Inspector’s application was brought under s 48 of the Judicial Review Act.  The first respondent, the President of the Industrial Court, who abides the decision of this court, made no submissions.
  1. The Industrial Magistrate heard complaints in respect of Ms Burrows and Ms Sousa. The present application concerns the Burrows matter. Ms Burrows suffered serious injuries when she placed her limb into the vicinity of a roller which was advancing a conveyor belt, in order to remove segments of meat. She had been directed not to do so. The Magistrate found that Thomas Borthwick had a system of work which complied with the relevant code of practice, but that “it was not being complied with in that Ms Burrows was allowed access to unguarded operating plant”. Accordingly, “Borthwick has failed to discharge the onus upon it to establish its defence”.
  1. Relevant subordinate legislation provided that “access to…a danger zone shall not be permitted while the conveyor is running”.
  1. The President of the Industrial Court criticized the Magistrate’s failure to articulate the evidentiary basis for his finding that Thomas Borthwick had allowed
    Ms Burrows access to the unguarded operating plant.  He said this:

“…The Industrial Magistrate did not particularise the evidence relied upon for the finding that Ms Burrows had been ‘allowed access’ to the danger area, and counsel for the complainant has been unable to take to court to a body of evidence which would support the finding.  On the face of the transcript, the finding was not open.”

  1. But the President seems to have preferred the view that “shall not permit” in the subordinate legislation meant “shall successfully prohibit”, added that if one should…enquire whether access was (successfully) prohibited, the conclusion that Borthwick did not (successfully) prohibit access by Ms Burrows seems to follow from the fact of the injury and its circumstances”. That in turn would raise the issue “whether a defendant has established that the commission of the offence was due to causes over which the defendant had no control”. Section 37(2) of the Workplace Health and Safety Act raised a defence to such a complaint, should the defendant “prove that the commission of the offence was due to causes over which the person had no control”.  On that approach, the President would have affirmed the Magistrate’s conclusion, unless on the evidence accepted by the Magistrate, Thomas Borthwick had established the lack of control to which s 37(2) refers.
  1. Mr O'Sullivan fastened upon the President’s statement that “on the face of the transcript”, the finding that Thomas Borthwick allowed Ms Burrows access to the dangerous operating equipment “was not open”. The President had just referred to the Magistrate’s failure to articulate the basis for his finding. I am not sure however that the President meant to conclude the issue in favour of Thomas Borthwick. Looking at the judgment as a whole, the President is I think to be taken to be saying that the Magistrate dealt inadequately with the matter and should give further consideration to it, clearly addressing by what means Thomas Borthwick allowed the access, and as necessary, whether the company established the defence under s 37(2).  When I say I am not sure that the President meant to conclude the issue favourably for the company, it is significant that having said that the finding was not open, the President went on in the next paragraph to offer a basis as to why it was open. 
  1. If the finding was arguably open, then obviously the President was perfectly entitled to exercise his discretion to remit the matter for proper consideration. As he said:

“I have given consideration to re-hearing the matter on the record.  On other occasions that course has been adopted.  Here critical primary facts remain to be found.  There is some attraction in the idea that a defendant in a criminal matter is entitled to a determination by a tribunal which has heard the evidence.  Credibility is not the only issue.  A querulous arbiter of fact may be answered.  A reviewer who has not observed the trial develop may place great weight on an untaken point which, if raised, may have been met by evidence or even by concession.”  (emphasis added)

  1. The President was not, as a matter of law, bound to conclude the matter himself. He had a discretion to remit, and it was open to him to do so in this case.
  1. But in any case, and fundamentally, because of the existence of the statutory discretion to remit, if the President erred in remitting, he erred in the exercise of the Court’s jurisdiction, with the consequence that the Supreme Court lacks jurisdiction.
  1. As to the contention that the President denied Thomas Borthwick procedural fairness because he did not invite submissions on the course which he should ultimately follow, the transcript shows that the question of remission was the subject of discussion in relation to the Sousa matter. It is clear that Counsel for Thomas Borthwick (the same Counsel) had full opportunity to raise matters before the President. That the question was raised and discussed in relation to Sousa, gave it sufficient currency in relation to the Burrows matter as well. In any case, it primarily fell to Counsel to address possible courses depending on whether the appeal succeeded wholly or in part. While a denial of procedural fairness may sometimes give rise to jurisdictional error, I am not satisfied that there was here any such denial.
  1. There will be orders:
  1. that the application of Thomas Borthwick and Sons (Australia) Pty Ltd filed on 23 July 2009 be dismissed;
  1. that Thomas Borthwick and Sons (Australia) Pty Ltd pay the second respondent’s costs of and incidental to the application, by agreement fixed at $5,000.
Close

Editorial Notes

  • Published Case Name:

    Thomas Borthwick & Sons (Australia) Pty Ltd v The President of the Industrial Court of Queensland & Anor

  • Shortened Case Name:

    Thomas Borthwick & Sons (Australia) Pty Ltd v The President of the Industrial Court of Queensland

  • MNC:

    [2009] QSC 406

  • Court:

    QSC

  • Judge(s):

    de Jersey CJ

  • Date:

    15 Dec 2009

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Carey v President of the Industrial Court Queensland[2004] 2 Qd R 359; [2004] QCA 62
3 citations
Jump To
Cite 1 - [2004] QCA 62
Cite 2 - [2004] QCA 62
Cite 3 - [2004] 2 Qd R 359
R v Smillie [2002] QCA 341
2 citations
Jump To
Cite 1 - [2002] QCA 341
Cite 2 - [2002] QCA 341
R v Smillie (2002) 134 A Crim R 100
1 citation
Jump To
Cite 1 - (2002) 134 A Crim R 100
Squires v President of Industrial Court Queensland [2002] QSC 272
2 citations
Jump To
Cite 1 - [2002] QSC 272
Cite 2 - [2002] QSC 272

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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