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Rockhampton Regional Council v Cosgrove[2015] QSC 22

Rockhampton Regional Council v Cosgrove[2015] QSC 22

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Rockhampton Regional Council v Cosgrove & Ors [2015] QSC 22

PARTIES:

ROCKHAMPTON REGIONAL COUNCIL
(Applicant)

v

MAGISTRATE BARRY COSGROVE
(First respondent)

And

JOANNE LILLEY
(Second respondent)

And

LIVINGSTONE SHIRE COUNCIL

(Third Respondent)

FILE NO/S:

S 388/14

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court Rockhampton

DELIVERED ON:

16 February 2015

DELIVERED AT:

Rockhampton

HEARING DATE:

9 February 2015

JUDGE:

McMeekin J

ORDERS:

The application is dismissed

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GENERALLY – where applicant is continuing local government following de-amalgamation – where third respondent is new local government re-established following de-amalgamation – where complaint made of offence under Workplace Health and Safety Act 2011 (Qld) against applicant by second respondent prior to de-amalgamation – where applicant asserts that proper defendant is third respondent following de-amalgamation –  where first respondent found that complaint should continue against applicant rather than third respondent – where applicant seeks order of certiorari quashing decision of first respondent – where applicant applied for judicial review – where applicant seeks declaration that the proper defendant against the complaint is third respondent – whether criminal liability transferred to new local government by transitional provisions in enactments

INTERPRETATION – GENERAL RULES OF CONSTRUCTION OF INSTRUMENTS – GENERAL MATTERS

Acts Interpretation Act 1954 (Qld), s 35C, Schedule 1

Judicial Review Act 1991 (Qld), s 5

Local Government Act 2009 (Qld), s 242

Local Government and Other Legislation Amendment Act 2012 (Qld)

Local Government and Other Legislation Amendment Act 2013 (Qld)

Local Government (De-Amalgamation Implementation) Regulation 2013 (Qld), s 5, s 39, s 45, s 46, s 47, s 48, s 49,      s 50, s 51

Occupational Health & Safety Act 1983 (NSW)

Penalties and Sentences Act 1995 (Qld), s 9, s 12

Workplace Health and Safety Act 2011 (Qld), s 3, s 14, s 19,    s 32, s 232, s 253

Attorney-General (NSW) v Commonwealth Savings Bank (1986) 160 CLR 315 cited

Beckwith v The Queen (1976) 135 CLR 569 cited

Butler v Fife Coal Co [1912] AC 149 cited

Byrne v Garrisson [1965] VR 253 cited

Chakera v Kuzamanovic [2003] VSC 92 cited

Country Energy v Malone [2005] NSWIRComm 78 applied

George Hudson Ltd v Australian Timber Workers Union [1922] 32 CLR 413 cited

Joye v Beach Petroleum NL (1996) 67 FCR 275 cited

K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 60 ALR 509 cited

Neumann Contractors Pty Ltd v Traspunt No 5 Pty Ltd [2010] QCA 119 cited

R v Deemal [2010] 2 Qd R 70 cited

R v Adams (1935) 53 CLR 563 cited

Re The Commercial Bank of Australia Ltd (1893) 19 VLR 333 cited

Roads Corporation v Gerkens (1993) 6 VAR 363 cited

COUNSEL:

P Roney QC with R Byrnes for the applicant

M J Byrne QC with T Cvetkovski for the second respondent

M  Hinson QC for the third respondent

SOLICITORS:

McCullough Robertson for the applicant

No appearance for the first respondent

Workplace Health and Safety Queensland for the second respondent

King and Company for the third respondent

  1. McMeekin J: The issue for determination concerns the effect of the legislative provisions relating to the de-amalgamation of the local government councils that came into effect on 1 January 2014. The question is whether criminal responsibility for an alleged offence has been, or should be, transferred to a new council where the basis of the liability alleged is founded in the past actions of the continuing council?

The Background

  1. The applicant, the Rockhampton Regional Council (“RRC”), is presently subject to prosecution under the Work Health & Safety Act 2011 (“WHS Act”). It is alleged that the RRC committed an offence against s 32 of that Act. The prosecution commenced by the filing of a complaint on 6 February 2013 and was pending as at 1 January 2014. The particulars of the complaint against the RRC allege that the offence occurred when one of its employees suffered injury in the course of his employment at the Yeppoon Sewerage Treatment Plant on 7 February 2012.
  1. The RRC asserts that the proper defendant is not itself but the third respondent, the Livingstone Shire Council (“the LSC”).
  1. The LSC either did not exist at the time of the alleged offence or existed in some form of local authority limbo. For present purposes it came into existence on 1 January 2014 pursuant to the Local Government and Other Legislation Amendment Act 2012, the Local Government and Other Legislation Amendment Act 2013 and the Local Government (De-Amalgamation Implementation) Regulation 2013.
  1. Since 1 January 2014 the LSC has owned and operated the Yeppoon Sewerage Treatment Plant. The plant is located within the local government area for which it is now responsible.
  1. If found guilty of the offence alleged by the second respondent, the appropriate defendant would be liable for a fine of up to $1,500,000 and the recording of a conviction against it.[1]

The Litigation to Date

  1. The matter first came before the first respondent, Magistrate Cosgrove,[2] who was asked to order that the LSC be made the respondent to the complaint. His Honour declined to so order finding that the legislative provisions did not have the effect of making the LSC criminally responsible for the defaults of the RRC, as the RRC contended.
  1. The present application is made pursuant to s 5 of the Judicial Review Act 1991. The RRC seeks an order in the nature of certiorari quashing the decision of Magistrate Cosgrove and seeking a declaration inter alia that the complaint is a “pending legal proceeding… for a matter relating to a new local government area…” thus making the LSC the proper defendant.
  1. The applicant further argued in the alternative that a decision previously made by a “transfer committee” under s 39 of the Local Government (De-Amalgamation Implementation) Regulation 2013 (“the Regulations”) entitled the RRC to a declaration as follows:

“The liability for the breach of section 32 of the Work Health and Safety Act 2011 (Qld) as alleged in the Complaint made by the Second Respondent on 6 February 2013 was transferred as of 1 January 2014 to the Third Respondent and the Applicant bears no further liability in respect of that complaint.”

The Legislation

  1. Whether the LSC or the RRC is the proper defendant to the complaint turns principally on the interpretation and application of s 48 of the Regulations. It provides:

48Pending legal proceedings

(1)Despite anything else in this regulation, a pending legal proceeding by or against a continuing local government for a matter relating to the new local government area of the related new local government must, from the changeover day, be started or continued by or against the new local government.

(2)In this section-

pending legal proceeding, by or against a continuing local government, means a legal proceeding that –

(a)could have been started or continued by or against the continuing local government before the changeover day; and

(b)is not finished before the changeover day.

  1. The “changeover day” was 1 January 2014: s 5(1) of the Regulations.
  1. A consideration of s 39 of the Regulations is also necessary. Section 39 provides:

Liabilities transfer

(1)The transfer committee for a new local government must decide the liabilities that are to transfer from the related continuing local government to the new local government.

(2)On the changeover day, each liability to be transferred to the new local government is transferred to, and becomes the liability of, the new local government.

  1. Section 39 appears in Part 4 of the Regulations and s 48 in Part 5.

The Applicant’s Primary Submission

  1. The applicant submits that the term “proceeding” that appears in s 48, in its ordinary usage, includes criminal proceedings; that the word is used to include criminal proceedings in other parts of the Local Government Act 2009 – see Part 4 of Chapter 7 and most notably s 242; that there is no textual reason to read the word down from its ordinary meaning; similarly that the word “matter” where it appears in s 48(1)  as ordinarily used refers to the subject matter for determination in the proceedings and so includes the criminal responsibility of the RRC; that the phrase “relating to the new local government area” merely requires there to be a connection between the geographical area of the LSC and the subject matter for determination in the relevant legal proceedings, the word “relating” being of wide import; and that connection is shown here by reason of the following :
  1. the location of the accident as alleged in the complaint is now in the LSC’s geographic area;
  1. the workplace at which the accident occurred was the plant which is now owned and operated by the LSC;
  1. the workers at the plant are presently  employed by the LSC;
  1. the plant carries out one of the core functions of the LSC in providing services to the rate payers of the LSC.
  1. The applicant submits that the respondents’ arguments that the provision should be read down to exclude criminal liability and so restrict its operation to civil and administrative matters suffers from a number of problems. First, the opening words of s 48 (1) (“Despite anything else in this regulation”) if they are to have any effect should mean that any textual or other indication that would otherwise limit the effect of the provision is to be ignored. Secondly, there is no such indication in the legislation. Thirdly, the evident purpose of the provisions is to have the new entity – the LSC – take on the existing rights and obligations pertaining to the assets transferred and this is one such obligation. Fourthly, there is the practical issue that the RRC would, on the respondents’ interpretation, remain liable for prosecutions of which it has no notice as at the changeover date and which might be brought against it up and until 24 months after the changeover date (the prosecutor being entitled to bring a prosecution within 24 months of an offence) without any commensurate adjustment of assets. 

The Second Respondent’s Submissions

  1. The second respondent – the prosecutor - submits that Magistrate Cosgrove’s decision was correct. In support of that submission the prosecutor argues:
  1. that the primary duty owed by the RRC to its worker under the WHS Act cannot be transferred to another entity: s 14 of the WHS Act;
  1. s 48 of the Regulation does not expressly or by implication impose on the LSC those duties and the criminal responsibility attaching;
  1. that there is no textual reason to read s 48 as extending to criminal prosecutions but rather to the contrary as the balance of Part 5 of the Regulations, in which s 48 appears, deals with local laws (s 45, s 47 and s 51), planning matters (s 46), administrative matters (s 49) and contracts (s 50) consistently with its heading “Local Laws and Other Instruments”;[3]
  1. the public policy objectives of the WHS Act would be defeated if an entity could avoid criminal responsibility in the way proposed by the RRC;
  1. it is unlikely that parliament intended to impose criminal liability on the new entity, particularly by way of subordinate legislation, given that the liability was not at the material time within its power to avoid;
  1. if the LSC were to be substituted that would have the effect of rendering the prosecution out of time as it would have been commenced against the LSC at the date of substitution and so more than two years after the relevant incident, contrary to s 232 of the WHS Act;
  1. any prosecution of LSC would be futile as it has not committed the acts or omissions that constitute the offence alleged.

The Third Respondent’s Submissions

  1. Similarly the third respondent submits that Magistrate Cosgrove did not err. The LSC argues:
  1. The purpose of s 32 of the WHS Act, being an offence provision, is to make persons criminally liable for a failure to comply with the duty under s 19 of the WHS Act. It would be contrary to that purpose to impose criminal liability on an entity which did not exist at the time the offence was committed and cannot, therefore, have been responsible for the commission of that offence.
  1. The phrase a “pending legal proceeding” in s 48 does not include a prosecution for an offence given the context of s 48, and if it does, the prosecution in this case is not for “a matter relating to the new local government area”. That is so because the relevant “matter” is the criminal responsibility of RRC for its conduct on 7 February 2012 and that does not relate to the new local government area;
  1. The geographic location of the offence is not an element of the offence;
  1. Properly understood s 48 deals with legal proceedings relating to assets and liabilities transferred to the new entity. Criminal responsibility is not a “liability” within the meaning of the Regulation capable of being transferred.

Discussion

  1. The task of course is to determine the intent of the legislature.
  1. I am unpersuaded by the various submissions that assert that the existing prosecution would be futile; out of time; or that such a transfer would defeat the objects of the WHS Act.
  1. As to that last point the particular objects that are said to be defeated by declaring the LSC as the proper defendant are not identified. That is not to say that there is not evident utility in maintaining any criminal responsibility of the RRC, assuming that it is so responsible. As Eames J remarked in another context “the sting and notoriety (and the consequent impact on its budget of a fine) of prosecution and conviction may more readily today be regarded as being intended by Parliament to apply to recalcitrant employer corporations…”.[4] LSC is not such a recalcitrant employer.
  1. Nor does it seem to me that the consideration adverted to by Isaacs J in George Hudson Ltd v Australian Timber Workers Union[5] is relevant here. I refer to his Honour’s reference to the words of Lord Shaw in Butler v Fife Coal Co [1912] AC 149 at 179 who said that legislation designed to overcome a particular evil or to protect citizens from dangers (which is apposite to the WHS Act) should be “interpreted in the sense favourable to making the remedy effective and the protection secure”.  In my view whichever entity faces prosecution the protection of the worker should be secured.
  1. That is so because it is inherent in the notion of the proceedings “continuing” against the new local government entity, as s 48 provides, that the new entity is in precisely the same position as the continuing entity. The implicit assumption in the legislation, for those pending proceedings, is that no defences will be available to the new entity that were not available to the continuing entity. If that was not so then, as the prosecutor’s arguments demonstrate, there would be little point to continuing any proceedings. Further, the work practices at the Yeppoon Sewerage Plant presumably will be adjusted, if that is necessary, whichever entity is the defendant, and so the principal object of securing the health and safety of workers and workplaces (see s 3(1) of the WHS Act) would be achieved. I cannot imagine that either the RRC or the LSC would welcome a second prosecution on the same grounds.
  1. Nor am I persuaded by the alleged practical difficulties of unexpected prosecutions long after the asset division has occurred. The rather obvious retort is that either one or the other Council will have to cope with such unexpected liabilities without adjustment of assets and if the true criminal responsibility lies with the continuing entity then they are not only in the best position to know and anticipate the difficulty but ought, in justice, to bear it.
  1. Nor is it right to say, as I understood the second respondent to argue, that if the applicant’s argument was successful it would mean a transfer of an employer’s duty under the Act to a third party – something prohibited by s 14 of the WHS Act – with the peculiar result that the subordinate legislation under consideration here would trump the provisions of the WHS Act. The transfer of an employer’s duty under the Act is not under discussion here. As the applicant asserts what is in issue is whether the legislature has exercised its undoubted power to make another liable for the RRC’s breach of the duty imposed on it by the WHS Act.
  1. I turn then to the substance of the debate. As the parties’ submissions recognise dictionary definitions and the Acts Interpretation Act 1954[6] provide no assistance.
  1. It is true that the words “proceeding” and “liability”[7] are wide enough to encompass criminal proceedings as the RRC asserts. But that too is of little assistance.  It has been remarked before that it follows from the varieties of meaning attributable to “proceeding” that recourse must be had to the statutory context to arrive at what is actually meant: see the discussion in R v Deemal per Holmes JA.[8]
  1. The resolution of the problem lies in the context in which s 48 appears and in an assessment of the effect of the legislation so construed and its evident objects.
  1. A fundamental difference between the parties is their approach to the role that s 48 is intended to play in the legislative scheme. The applicant argues that there is no limit on the powers conferred on the “transfer committee” by s 39 of the Regulations. Section 48 is there to make provision for whatever the transfer committee may have missed. The respondents submit that s 48 has a very different role. They argue that it governs the powers of the transfer committee so far as the liabilities that arise by reason of any “pending litigation”.
  1. In my view the respondents are correct. The opening words of s 48, the fact that it deals with a particular form of liability as opposed to liabilities generally[9] and the unlikelihood of the legislature leaving it to a committee charged with distributing assets and liabilities to deal with something as important as the allocation of criminal responsibilities all tend against the applicant’s arguments.
  1. But accepting that s 48 has that role does not resolve the main issue.
  1. The applicant argues that the words “relating to” in the phrase “a matter relating to the new local government area” that appears in s 48 are “wide words” signifying only that there need be “some connection” between the pending proceeding and the geographical area and one not necessarily “direct or substantial”: see the discussion in Neumann Contractors Pty Ltd v Traspunt No 5 Pty Ltd [2010] QCA 119 at [46] per Muir JA, Holmes and Chesterman JJA agreeing, and his Honour’s citation of the judgment of Beaumont and Lehane JJ in Joye v Beach Petroleum NL (1996) 67 FCR 275 at 285. The applicant’s principal point is that the words used are plainly wide enough to achieve the allocation of responsibility to the LSC for the breach of the WHS Act and that there is no good reason not to give the words their natural and ordinary meaning.
  1. I have come to the view that the applicant’s submission is wrong both because of the guidance that authority can give to the question and because of evident textual considerations that tell against RRC’s argument.
  1. First to the authorities. The question of the transfer of criminal liability from one corporation to another has been considered on a number of occasions. A close examination of the authorities and applicable principles was undertaken by the Full Bench of the Industrial Relations Commission of New South Wales in Country Energy v Malone.[10] The court had to consider a very similar question to that here. Like here, Malone involved a prosecution of an “employer” under the New South Wales equivalent of the WHS Act, the Occupational Health and Safety Act 1983. There the employer at the time of the relevant event – an explosion in which an employee was injured – had, subsequent to the explosion but prior to the prosecution, merged with another corporation. That latter corporation and not the employer at the time of the event was the subject of the prosecution. It was held that there was no legal justification for the prosecution. The applicable principles were summarised as follows:[11]
  1. absent statutory provisions to the contrary, the dissolution of a statutory body or corporation results in the abatement of criminal proceedings against the body;
  1. if there is a successor of the defunct corporation the question whether any criminal liability of the former body will be assumed by the new body will depend on the terms of the statutory provisions (or possibly the delegated legislation) dissolving the former body and creating the new one;
  1. examples of situations where criminal liability would be assumed by a successor body include where there is express legislative provision that the original and successor bodies are the same legal person or where the new body is created with the same legal personality as the former body;
  1. the ordinary meaning of the word "liability" is apt to embrace both criminal and civil responsibility but whether, in a particular case, the word does embrace criminal liability will depend on the statutory context in which it is used;
  1. the mere transfer of the former body's staff, assets, rights and liabilities to the new body is unlikely to result in the two bodies being the same legal person;
  1. the equating of the two bodies (the body dissolved and the new one) as the one body for the purpose of succession to criminal liability could only occur by legislative enactment which would usually be expected to be accomplished in words "clearly so stated".
  1. While the New South Wales legislative scheme under consideration in Malone differs from that here I do not see that the principles applicable are any different.
  1. Absent express statutory provision it is inconceivable that an entity, not in existence at the time of an alleged offence, could be criminally responsible for that offence, an offence said to have been committed by the actions or defaults of another existing entity. Self-evidently the new entity could not have done the acts or failed to do the acts said to constitute the offence.
  1. An example of such an express provision is s 253 of the WHS Act. It expressly provides for the imposition of criminal responsibility on a public authority not in existence at the time of the alleged offence for an alleged offence against that Act. But it has no application here as the imposition is posited on the assumptions that the offending entity has been dissolved and so ceased to exist and the new entity is its successor. The RRC continues and has not been dissolved, as the section requires.
  1. There is no such express imposition in the Regulations under consideration here. The applicant’s argument depends upon an implication of such a liability, not a clearly expressed intention. As the applicant submitted the legislature could have dissolved the RRC and established two bodies in its place making the LSC the successor of the RRC, in which case s 253 would have applied according to its terms. But it is telling that the legislature chose not to do that.
  1. The absence of an express statement of intention is against, and in my view strongly against, RRC’s construction. The imposition of criminal responsibility is no light matter. As the submissions point out the potential fine is substantial and if found guilty a conviction is recorded, assuming the discretion in s 12 of the Penalties and Sentences Act 1995 is not invoked. To burden even a corporate entity with a criminal conviction for acts or omissions for which it was not responsible seems anomalous. There is force in the argument that it tends against the usual justifications for imposing criminal sanction, namely punishment, rehabilitation, deterrence, denunciation and protection of the community[12] to make criminally liable an entity not in fact responsible for the crime. That is not to say that the legislature cannot bring about that result. But as the Full Bench concluded in Malone, generally speaking, one would expect Parliament’s intention to bring about such a result to be clearly stated.
  1. To like effect, in a slightly different context, is the observation of Gibbs J in Beckwith v The Queen:[13]

“In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences ... .”

  1. I am not here concerned with construing the statute that imposes the criminal penalty (the WHS Act) but rather the Regulations. Thus, Gibbs J’s observation is not directly apposite. But the principle is just as applicable here. I note that Eames J took the same approach in Roads Corporation v Gerkens[14] where the question before the Court had similarities to that here. To the extent that there is any doubt it ought to go in favour of not extending criminal responsibility.
  1. The examples given in Malone of situations where criminal liability would be assumed by a successor body do not apply here. As the review of authorities there show the cases in which it has been found that criminal responsibility has been imposed on an “innocent” entity have been restricted to those where there is “express legislative provision that the original and successor bodies are the same legal person or where the new body is created with the same legal personality as the former body”: see paragraph [33](c) above.  It is quite plain that the LSC is not the “same legal person” or has the “same legal personality” as the continuing and separate entity the RRC. It is merely the transferee of some, but by no means all, of RRC’s “staff, assets, rights and liabilities”: cf. paragraph [33](e) above.
  1. In my view the third respondent has accurately identified the key issue. Not all legal proceedings were to be continued against the new entity, but only those that concern “a matter relating to the new local government area.” What is the “matter” here? As both the applicant and third respondent assert it is the criminal responsibility of RRC for its conduct on 7 February 2012. That is the subject matter to be determined in the legal proceeding: see Attorney-General (NSW) v Commonwealth Savings Bank.[15] 
  1. That criminal responsibility does not “relate to the new local government area”. That the impugned conduct allegedly had an effect – namely that a worker was exposed to risk and was injured - at the sewerage plant now located within the LSC’s geographical responsibilities is not to the point. The alleged criminal responsibility relates to the activities and decisions made by the RRC years before the “new local government area” came into existence. True it is that those activities and decisions concerned plant now located in the area under LSC’s control but that in my view is not a sufficient, or indeed relevant, connection. The very significant step of allocating criminal responsibility to an innocent entity requires that the relationship between the pending proceeding and the “new local government area” be considerably more “direct” and “substantial”, to adopt the phraseology used by Beaumont and Lehane JJ in Joye cited earlier, than is apparent here. 
  1. Considerations related to the context in which s 48 appears reinforce that view. There is a deal of force in the submissions that Part 5 of the Regulations is otherwise exclusively concerned with civil and administrative matters and not criminal responsibilities. The textual considerations are summarised above.[16] The RRC argues that s 48 is a unique provision unrelated to any other subject matter of Part 5, dealing as it does with pending legal proceedings, and so does not take its colour from the surrounding sections. Such an approach in my view would run counter to basic statutory construction: see the observations of Mason J in K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 60 ALR 509 at 514 and his Honour’s reference to the “cardinal rule of statutory interpretation”. While the division of the Regulations into Parts may not be determinative, it is at least a useful starting point to assume that the division is for some purpose, presumably to group related subject matter.[17]
  1. The evident object of the Regulations is to provide for the transfer of assets to the new local government entity along with the liabilities properly attendant on those assets. One can readily understand the logic of that. In no sense does the taking over of the plant on 1 January 2014 involve any logical connection with the activities and decisions made by the RCC about safe work practices at the plant prior to February 2012.
  1. I reject the applicant’s principal submission.

The Section 39 Argument

  1. I turn now to the alternative submission. It was to the effect that the decision of a “transfer committee”, established under the provisions contained in Part 4 of the Regulations, to transfer a liability to the LSC was of “conclusive legal effect”. The relevant committee was charged with the task of determining what assets and liabilities were to be transferred from, in this case, the RRC to the LSC, and made its decisions pursuant to the power contained in s 39 of the Regulations.
  1. In my view this submission too fails for essentially the same reasons as the principal submission.
  1. It is common ground that the relevant transfer committee has met and has recorded in its minutes of meeting of 18 December 2013 the following: “The transfer committee formally notes the transfer of 6 outstanding legal matters as listed which will novate to LSC.” There appears appended a list headed “Legal Matters Report” which notes the subject prosecution and a reference to “LSC” which presumably means that entity is to take over some obligation related to the prosecution.
  1. The applicant argues that these records show that the transfer committee has determined to transfer to the LSC the “liability” of RRC which can only mean the criminal responsibility for the alleged breach. It argues that the committee having so resolved then that is the end of the matter. Section 39(2), it is submitted, has the effect that as and from the changeover date each liability that the transfer committee has determined is to be transferred to the new local government “is transferred to, and becomes the liability of, the new local government”, to use the words of the section, simply by force of the statutory enactment.
  1. In my view things are not so straightforward. There is some force in the third respondent’s submission that it is far from clear what decision the transfer committee has made – is it the criminal responsibility that has been transferred? Or the liability for the costs of conducting the defence? Or the obligation to pay any fine that might be imposed on the RRC?
  1. But accepting for the moment the applicant’s factual argument the question is whether the committee has the power to affect RRC’s criminal responsibility for its past actions.
  1. Quite apart from the rather startling notion that a committee charged with assigning assets and liabilities would have such a power, the argument is met in my view by a consideration of the legislative context of the grant of the committee’s power and the principle that the exercise of Parliament’s power to make an innocent entity criminally liable will only be assumed to have been exercised by words “clearly so stated”.
  1. There are two difficulties. First, there is no reference in s 39 or anywhere else in the Part (or in the Regulations taken as a whole) of any express intention to effect the criminal responsibility of continuing entities. If anything the inference is to the contrary. Part 4 by its heading, is said to relate to “Financial matters”. Sections 38 and 39 deal with the allocation of assets and liabilities. While the word “liability” may be wide enough to encompass criminal liability, as previously discussed, it is far from clear that the intention is to encompass criminal responsibility. The indication from the heading, and the subject matter of the other sections within Part 4 of the Regulations, is to the contrary.
  1. Secondly, again as I have mentioned and contrary to the applicant’s submission, the introductory words of s 48(1) of the Regulations to which I have earlier referred (“Despite anything else in this regulation…”) have the result that the width of the regulations, such as s 39, is cut back. The transfer committee’s power is governed by s 48. It can only transfer liabilities that are the subject of pending legal proceedings, as defined, that meet the test laid down by s 48(1).

Conclusion

  1. There is no merit in the application. It is dismissed. I will hear from counsel as to costs.

Footnotes

[1] Work Place Health and Safety Act 2011 (Qld), s 32.

[2] His Honour has, of course, no interest in the matter and has taken no part in the application but will abide the order of the Court.

[3] See s 35C(1) of the Acts Interpretation Act 1954: “The heading to a chapter, part, division, subdivision, section, subsection, schedule or another provision of an Act forms part of the provision to which it is a heading”.

[4] Roads Corporation v Gerkens (1993) 6 VAR 363, 380.

[5] (1923) 32 CLR 413, 441.

[6] Schedule 1 to the Act defines “legal proceeding” to mean  “a legal or other action or proceeding”; and “liability” to mean “any liability or obligation (whether liquidated or unliquidated, certain or contingent, or accrued or accruing)”.

[7] See the discussion in Byrne v Garrison [1965] VR 523 at 528 per Gowans J.

[8] [2010] 2 Qd R 70 at [19] and following.

[9] See Statutory Interpretation in Australia (6th edn) by Pearce & Geddes at para [4.32] and authorities there discussed.

[10] [2005] NSWIRComm 78.

[11] Ibid at [28] - omitting the authorities cited.

[12] See s 9(1) of the Penalties and Sentences Act 1992.

[13] (1976) 135 CLR 569 at 576.

[14] (1993) 6 VAR 363, 384. And see R v Adams (1935) 53 CLR 563 at 567-568.

[15] (1986) 160 CLR 315 at 323.

[16] See paragraph [16](c).

[17] See Re The Commercial Bank of Australia Ltd (1893) 19 VLR 333 at 375 cf. Chakera v Kuzamanovic [2003] VSC 92 per Nettle J.

Close

Editorial Notes

  • Published Case Name:

    Rockhampton Regional Council v Cosgrove & Ors

  • Shortened Case Name:

    Rockhampton Regional Council v Cosgrove

  • MNC:

    [2015] QSC 22

  • Court:

    QSC

  • Judge(s):

    McMeekin J

  • Date:

    16 Feb 2015

  • White Star Case:

    Yes

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
Attorney-General (NSW) v Commonwealth Savings Bank (1986) 160 CLR 315
2 citations
Jump To
Cite 1 - (1986) 160 CLR 315
Cite 2 - (1986) 160 CLR 315
Beckwith v R (1976) 135 CLR 569
2 citations
Jump To
Cite 1 - (1976) 135 CLR 569
Cite 2 - (1976) 135 CLR 569
Butler v Fife Coal Co (1912) AC 149
2 citations
Jump To
Cite 1 - (1912) AC 149
Cite 2 - (1912) AC 149
Byrne v Garrisson [1965] VR 253
1 citation
Jump To
Cite 1 - [1965] VR 253
Byrne v Garrisson (1965) VR 523
1 citation
Jump To
Cite 1 - (1965) VR 523
Chakera v Kuzamanovic [2003] VSC 92
2 citations
Jump To
Cite 1 - [2003] VSC 92
Cite 2 - [2003] VSC 92
Country Energy v Malone [2005] NSWIRComm 78
2 citations
Jump To
Cite 1 - [2005] NSWIRComm 78
Cite 2 - [2005] NSWIRComm 78
George Hudson Limited v The Australian Timber Workers' Union (1923) 32 CLR 413
2 citations
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Cite 1 - (1923) 32 CLR 413
Cite 2 - (1923) 32 CLR 413
Joye v Beach Petroleum NL (1996) 67 FCR 275
2 citations
Jump To
Cite 1 - (1996) 67 FCR 275
Cite 2 - (1996) 67 FCR 275
K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 60 ALR 509
2 citations
Jump To
Cite 1 - (1985) 60 ALR 509
Cite 2 - (1985) 60 ALR 509
Neumann Contractors Pty Ltd v Traspunt No 5 Pty Ltd[2011] 2 Qd R 114; [2010] QCA 119
2 citations
Jump To
Cite 1 - [2010] QCA 119
Cite 2 - [2010] QCA 119
R v Deemal[2010] 2 Qd R 70; [2009] QCA 131
2 citations
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Cite 1 - [2010] 2 Qd R 70
Cite 2 - [2010] 2 Qd R 70
R. v Adams (1935) 53 CLR 563
2 citations
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Cite 1 - (1935) 53 CLR 563
Cite 2 - (1935) 53 CLR 563
Re The Commercial Bank of Australia Ltd (1893) 19 VLR 333
2 citations
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Cite 1 - (1893) 19 VLR 333
Cite 2 - (1893) 19 VLR 333
Roads Corporation v Gerkens (1993) 6 VAR 363
3 citations
Jump To
Cite 1 - (1993) 6 VAR 363
Cite 2 - (1993) 6 VAR 363
Cite 3 - (1993) 6 VAR 363

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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