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Whitsunday Regional Council v Work Health and Safety Prosecutor[2024] QSC 25

Whitsunday Regional Council v Work Health and Safety Prosecutor[2024] QSC 25

SUPREME COURT OF QUEENSLAND

CITATION:

Whitsunday Regional Council v Office of the Work Health and Safety Prosecutor & Anor [2024] QSC 25

PARTIES:

WHITSUNDAY REGIONAL COUNCIL

(applicant)

v

OFFICE OF THE WORK HEALTH AND SAFETY PROSECUTOR

(first respondent)

MAGISTRATE HOWARD

(second respondent)

FILE NO:

BS 7291 of 2023

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland at Brisbane

DELIVERED ON:

5 March 2024

DELIVERED AT:

Brisbane

HEARING DATE:

26 and 28 September 2023

JUDGE:

Sullivan J

ORDER:

The application is dismissed pursuant to s 14 of the Judicial Review Act and pursuant to the inherent power of the Supreme Court.

CATCHWORDS:

ADMINISTRATIVE LAW – PREROGATIVE WRITS AND ORDERS – CERTIORARI – NATURE AND APPROPRIATENESS OF REMEDY – where a Magistrate determined that the Safety in Recreational Water Activities Act 2011 (Qld) did not apply – where an application for a permanent stay or strike out of a complaint and summons issued against the plaintiff was dismissed – where the plaintiff sought an order in the nature of a certiorari for the purposes of quashing that decision – whether it is appropriate to grant an order in the nature of a certiorari

ADMINISTRATIVE LAW – JUDICIAL REVIEW – POWERS OF COURTS UNDER JUDICIAL REVIEW LEGISLATION – DECLARATIONS – where the plaintiff sought a declaration that the Magistrates Court did not have jurisdiction to hear the complaint – whether it is appropriate to grant that declaration  

ADMINISTRATIVE LAW – PREROGATIVE WRITS AND ORDERS – PROHIBITION – NATURE AND APPROPRIATENESS OF REMEDY – where the plaintiff sought an order in the nature of prohibition to prohibit the Magistrates Court from continuing to deal with the complaint – whether it is appropriate to dismiss the application for review at a threshold stage

Judicial Review Act 1991 (Qld), s 14, s 41, s 43

Justices Act 1886 (Qld), s 222

Safety in Recreational Water Activities Act 2011 (Qld)

Workplace Health and Safety Act 1995 (Qld)

Workplace Health and Safety Act 2011 (Qld)

Anderson v Attorney-General for New South Wales (1987) 10 NSWLR 198, considered

Barbour v Melling & Anor [2022] QSC 125, considered

Citta Hobart Pty Ltd v Cawthorn (2022) 400 ALR 1, cited

Chow v Director of Public Prosecutions (1992) 28 NSWLR 593, cited

Gedeon v Commissioner of New South Wales Crime Commission (2008) 236 CLR 120, considered

Globex Shipping SA v Magistrate Mack (No 1) [2019] 1 Qd R 345, considered

Hutson v Australian Securities and Investment Commission & Anor [2023] QCA 167, cited

J Hutchinson Pty Ltd v Guilfoyle (2022) 11 QR 850, cited

Kirk v Industrial Court of New South Wales (2010) 239 CLR 531, cited

Maules Creek Coal Pty Ltd v Environment Protection Authority [2023] NSWCCA 275, considered

McNab Developments (Qld) Pty Ltd v Mak Construction Services Pty Ltd & Ors [2015] 1 Qd R 350,  considered

Northbuild Construction Pty Ltd v Central Interior Lightings Pty Ltd [2012] 1 Qd R 525, considered

Office of Work Health and Safety Prosecutor v Whitsunday Regional Council [2023] QMC 3, cited

Paulger v Hall [2003] 2 Qd R 294, cited

R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13, considered

Re Rozenes; Ex parte Burd (1994) 68 ALJR 372

Sankey v Whitlam (1978) 142 CLR 1, cited

Sica v Attorney-General for the State of Queensland (2021) 9 QR 543, cited

COUNSEL:

C J Murdoch KC for the applicant

S E Harburg for the first respondent

No appearance for the second respondent

SOLICITORS:

Wotton + Kearney Solicitors for the applicant

Office of the Work Health and Safety Prosecutor for the first respondent

GR Cooper Crown Solicitor for the second respondent

Introduction

  1. [1]
    This is the hearing of a proceeding which was commenced on 16 June 2023 by the Whitsunday Regional Council (the “Council”) as an application for review (the “Review Application”).  By the commencement of the proceeding as an application for review, the Council was making clear that this was a proceeding brought pursuant to s 43 of the Judicial Review Act 1991 (Qld) (the “Judicial Review Act”). An application for review under s 43 of the Judicial Review Act allows for the making of prerogative orders, prerogative injunctions and declarations.[1] 
  2. [2]
    The Review Application seeks to review the decision of Magistrate Howard handed down on 19 May 2023, found in Office of Work Health and Safety Prosecutor v Whitsunday Regional Council [2023] QMC 3.
  3. [3]
    By that decision, Magistrate Howard dismissed an application brought by the Council for a permanent stay or the striking out of a complaint which had been issued by the Office of the Work Health and Safety Prosecutor (the “Office of the Prosecutor”) on 27 October 2020.
  4. [4]
    The relief sought in the Review Application is:
    1. an order in the nature of certiorari, quashing the order of the Magistrate;
    2. a declaration that the Magistrates Court does not have jurisdiction to hear the Complaint; and
    3. an order in the nature of prohibition, prohibiting the Magistrates Court from continuing to deal with the complaint.
  5. [5]
    In addition, an ancillary order for costs is sought in favour of the Council against the Office of the Prosecutor.

Background

  1. [6]
    The background to this Review Application can be briefly summarised.
  2. [7]
    The complaint in the Magistrates Court was brought by the Office of the Prosecutor against the Council.  It related to the operation of the Airlie Beach Lagoon in North Queensland (“the Lagoon”).  The Office of the Prosecutor relies on a statement of particulars in support of the complaint that alleges, in summary:
    1. the Council owned the Lagoon;
    2. the Lagoon was a pool containing water comprising of a wading area for children and another larger area with a maximum depth of two metres;
    3. the Council was responsible for the operation of the Lagoon and its maintenance;
    4. the Council was engaged in the business of providing the Lagoon and aquatic facilities for persons to use;
    5. there was a risk posed from the provision of the Lagoon as an aquatic facility, namely the risk of death or serious injury from drowning;
    6. the Council could have eliminated the risk so far as was reasonably practicable by ensuring certain controls were implemented, namely:
      1. (i)
        a minimum number of three qualified lifeguards on duty at any one time when then Lagoon was open;
      1. (ii)
        inspections, analysis and examination of the supervision services provided at the Lagoon by the contractors engaged to provide lifeguard and maintenance services;
      1. (iii)
        completing a risk assessment giving consideration, among other things, to the number of persons who visit the Lagoon and their swimming capabilities; and
      1. (iv)
        the role of the lifeguards at the Lagoon and whether additional duties inhibited their ability to ensure all persons within the Lagoon can be supervised at any one time.
    7. the Council failed to implement the said controls;
    8. the failure exposed persons to a risk of death, serious injury or illness, and the risk materialised when two persons drowned at the Lagoon.
  3. [8]
    The application brought before Magistrate Howard in the Magistrates Court was based on the contention that the Magistrates Court was without jurisdiction because the complaint had been brought under the Workplace Health and Safety Act 1995 (Qld) (the “Workplace Act”) in circumstances where a different Act was said by the Council to apply.  The Council contended that the provision of safe systems for the operation of the Lagoon was regulated solely by a separate Act, being the Safety in Recreational Water Activities Act 2011 (Qld) (the “Safety Act”). 
  4. [9]
    The Council’s contention centred around the submission that the Safety Act applied because the Council was a person in the conduct of its business or undertaking who provided a “recreational water activity” under its management and control for the purposes of s 8 of the Safety Act. 
  5. [10]
    That submission involved questions of statutory construction then applied to the framework set by the statement of particulars which now accompanies the complaint. 
  6. [11]
    Magistrate Howard’s decision involved an analysis of a number of provisions of the Safety Act.  Her Honour ultimately concluded that the Council did not provide a “recreational water activity” under its management and control for the purposes of s 8 of the Safety Act, and accordingly, the Safety Act did not apply.  The consequence of that determination was the dismissal of the application before Magistrate Howard.
  7. [12]
    It is accepted by all parties that the Council did not have a direct right to appeal from the decision of Magistrate Howard.  The right of appeal in relation to proceedings brought by a complaint is contained in s 222 of the Justices Act 1886 (Qld) (the “Justices Act”).  That section provides a right of appeal in respect of an order made upon complaint, where the order disposes of the complaint itself. 
  8. [13]
    In Paulger v Hall [2003] 2 Qd R 294, Holmes J (as her Honour then was) identified various likely policy reasons for the absence of direct appeals against interlocutory rulings in proceedings brought by complaint.  They were as follows:[2]

“…such appeals may lead to fragmentation of the criminal process, may in the long run prove to have been pointless, and are capable of being misused to exhaust the resources of a less well-heeled opponent…”

  1. [14]
    All parties accepted that if there were a conviction on this complaint, then on any appeal, the Council’s contention as to the lack of jurisdiction could be raised as a ground of appeal.  In this way, the interlocutory decision could effectively be reviewed. 
  2. [15]
    In addition, both sides were in agreement that the jurisdictional point argued before Magistrate Howard could be re-agitated at any trial of the complaint as well. 
  3. [16]
    I should note that the Office of the Prosecutor disputes that this issue should be referred to as a jurisdictional point.  It submits that the issue raised should be more properly described as one which goes to the prospects of the complaint and whether the complaint was doomed to fail.
  4. [17]
    It is correct to observe that inferior courts have jurisdiction to judicially determine whether they have jurisdiction to entertain a particular matter or make a particular order.  However, that authority is not to reach a conclusion having legal effect, but rather it is to form an opinion for the purpose of moulding its conduct with the law.[3]  A magistrate therefore acts within jurisdiction in determining the Court’s jurisdiction to hear a matter, but that decision will not be determinative of a jurisdictional issue which may exist.  It is in this sense that the Council describes the point as a jurisdictional one.
  5. [18]
    I will refer to this issue as a jurisdictional one in these reasons so as to reflect Council’s submissions on the matter.

Progress of the complaint

  1. [19]
    It is relevant to this Review Application to understand how the complaint has been brought and proceeded with.
  2. [20]
    The circumstances surrounding the complaint relate to a period between October 2017 to October 2018.  During that period, there were two deaths at the Lagoon.  Those deaths are identified in the Statement of Particulars to the complaint as occurring on 28 October 2018.
  3. [21]
    After those deaths, an investigation was undertaken by Workplace Health and Safety Queensland.  It resulted in the issue of the complaint on 27 October 2020.  The complaint was then served on 11 November 2020.  At the same time, a document titled ‘Statement of Facts’ was delivered.
  4. [22]
    Correspondence of 5 October 2022 from the Office of the Prosecutor to the legal representative of the Council records that there had been a delay in the prosecution of the complaint, as the parties awaited a decision of the Court of Appeal in J Hutchinson Pty Ltd v Guilfoyle (2022) 11 QR 850.  That decision concerned whether a particular form of complaint resulted in the complaint being a nullity and being unamenable to amendment.  That decision was resolved on 27 September 2022, in favour of the validity of the form of complaint used by the Office of the Prosecutor in the underlying proceeding before the Magistrates Court in this case.  By 5 October 2022, the Office of the Prosecutor advised that this complaint could now proceed.  It advised that it would ask the Court to annex to the complaint a copy of the particulars provided by the Office of the Prosecutor to the Council on 3 November 2020. This was obviously a reference to the Statement of Facts which had been provided on 11 November 2020.
  5. [23]
    By letter dated 31 October 2022, the legal representatives for the Council wrote identifying that the matter still could not proceed on the current form of the complaint because no particulars had been included in the current form of the complaint.  The Council required the Office of the Prosecutor to bring an application for the amendment of the complaint to include the statement of particulars.  This again appears to be a reference to the Statement of Facts which had been provided on 11 November 2020. 
  6. [24]
    On 23 November 2022, the legal representatives for the Council wrote noting that the matter was next listed for mention at the Proserpine Magistrates Court on 5 December 2022.  They also raised, on behalf of the Council, the contention that the complaint was separately void on the basis that the charge could not be brought under the Workplace Act because it was the Safety Act which applied in the circumstances of the case.  The letter rehearsed the arguments on this issue which ultimately became the subject of the strike-out and stay application before the Magistrates Court.  The legal representatives for the Council stated as part of the contentions that the Office of the Prosecutor would not be able to amend the complaint to add a prosecution under a section of the Workplace Act, as the two-year time limit for commencing proceedings was said to have expired.  The Council identified in their letter that it did not consent to the proposal to annex the particulars to the complaint as the complaint was void.  Once again, this appears to be a reference to the Statement of Facts provided on 11 November 2020.
  7. [25]
    By letter dated 30 November 2022, the Office of the Prosecutor identified that it did not agree with the contentions made, but suggested a timetable for the bringing of an application by the respondent in respect of the contentions. 
  8. [26]
    An application was filed by the Council in the Magistrates Court on 6 February 2023.  It sought to strike out or stay the complaint.
  9. [27]
    On 17 February 2023, the Office of the Prosecutor provided the Council with a statement of particulars document.  It was this document that the parties then proceeded on for the purposes of arguing the Council’s application and this Review Application.
  10. [28]
    The Magistrates Court then heard the application on 23 March 2023, with judgment delivered on 19 May 2023.
  11. [29]
    The Review Application was filed on 16 June 2023 and heard on 26 and 28 September 2023, with further written submissions on two discrete issues delivered on 3 October 2023.

Threshold issue

(i) Jurisdictional bases for the relief sought

  1. [30]
    It is submitted by the Office of the Prosecutor that there is a threshold issue which should be dealt with before the Court turns to any consideration of the merits of the Review Application before it.
  2. [31]
    As submissions developed in writing and orally, three possible bases of jurisdiction for the relief sought was relied upon by the Council. 
  3. [32]
    The first jurisdictional basis that the Council relied upon was the jurisdiction to challenge decisions of an inferior Court previously exercised by way of the writs of mandamus, certiorari or prohibition.  As noted previously, that jurisdiction is now exercised via an application for review, with the remedies being in the form of prerogative orders, prerogative injunctions and declarations. 
  4. [33]
    The second basis of jurisdiction was separately raised by the Office of the Prosecutor.  I had understood that it was also relied upon in argument by the Council. This is the inherent jurisdiction of the Supreme Court to supervise criminal Court proceedings within the State.  Relief flowing from this jurisdiction is commonly in the form of declarations.
  5. [34]
    The third possible jurisdictional basis was raised by Council in supplementary written submissions which were delivered for the purpose of addressing the recent Court of Appeal decision in Hutson v Australian Securities and Investment Commission & Anor [2023] QCA 167 (“Hutson”).  The Council submitted that it did not seek to invoke the same jurisdiction as in Hutson.  This presumably was a reference to the second form of jurisdiction referred to above. 
  6. [35]
    The Council continued in its supplementary written submissions to the effect that it was not merely applying for a declaration dealing with the same issue which had already been the subject of an interlocutory decision.  It was also applying for orders:
    1. quashing an interlocutory order;
    2. striking out or staying the complaint and summons; and
    3. prohibiting the Magistrates Court from hearing and determining the complaint and summons. 
  7. [36]
    The Council submitted further that the application to the Supreme Court in this case was made in the Court’s supervisory jurisdiction, exercising the constitutionally entrenched power to grant an order in the nature of certiorari, quashing the decision of an inferior court for jurisdictional error.
  8. [37]
    Whilst no authority was identified for this proposition, plainly enough it was a reference to the constitutionally entrenched jurisdiction discussed in Kirk v Industrial Court of New South Wales (2010) 239 CLR 531.
  9. [38]
    It is somewhat unclear if the Council is submitting that this is a separate third jurisdictional basis, different in some way to the first jurisdictional basis.  If that were the submission, then I would not accept it.  Alternatively, the Council may only be saying that this jurisdiction is within that jurisdiction preserved by ss 41 and 43 of the Judicial Review Act.  If that were the submission (which I think is more likely the case), then I would accept that argument.  A similar conclusion was reached in Sica v Attorney-General for the State of Queensland (2021) 9 QR 543 by Burns J, particularly at [13], where his Honour observed as follows:

“[13]  Section 41(2) of the Judicial Review Act preserves this court's jurisdiction to grant any relief or remedy by way of a writ of mandamus, prohibition or certiorari, although the power to issue the prerogative writs themselves has been abolished: s 41(1). Despite the contrary submissions made on behalf of Mr Sica, I am not persuaded that there is a separate source of power outside the Judicial Review Act to grant prerogative relief. In this regard, the decision of the High Court in Kirk v Industrial Court (NSW) does not assist Mr Sica. Although it confirmed this court's constitutionally entrenched supervisory jurisdiction to grant prerogative relief for ju risdictional error, a power that is expressly preserved by s 41(2), that does not necessarily mean that the court has some reserve of power outside the Act to grant prerogative relief.”[4]

  1. [39]
    I agree with his Honour’s remarks.
  2. [40]
    His Honour’s remarks were obviously addressing the situation (as is present here) where the decision in question has arisen under an Act to which the Judicial Review Act applies.[5]
  3. [41]
    Accordingly, there are only two bases of jurisdiction to consider in this case. 

(ii) Threshold question for the inherent jurisdiction to supervise criminal proceedings

  1. [42]
    It is appropriate to commence a consideration of the threshold issue by reference to the second jurisdictional basis for relief.  It was under this jurisdiction that the threshold issue was first raised by the Office of the Prosecutor. 
  2. [43]
    In the exercise of that jurisdiction, the Court may grant declaratory relief in respect of a criminal proceeding which is before an inferior court, including by declaring the absence of jurisdiction of that inferior court to hear and determine the matter. 
  3. [44]
    However, relief under this jurisdiction will be exercised only in special or exceptional circumstances.[6]  This requirement for the circumstances of an individual case to be special or exceptional was recently examined in Hutson.
  4. [45]
    The Court of Appeal emphasised that important public policy considerations underpin the limiting concept of exceptional or special circumstances.  President Mullins, with whom the other members of the Court of Appeal concurred, observed as follows:[7]

“[47]  As these seminal cases show, there are important public policy reasons for limiting the exercise of the Supreme Court’s supervisory jurisdiction over criminal trials to exceptional or special cases.  One of the most significant reasons recognised in Sankey at 26 is to avoid the fragmentation of criminal proceedings which otherwise detracts from the efficiency of the criminal process.  If it were not the case that the supervisory jurisdiction was confined to exceptional or special cases, there would be the potential of multiplicity of proceedings on the same issue in the anticipation by a defendant to a criminal proceeding that a judge, in the exercise of the Supreme Court’s supervisory jurisdiction, in advance of the criminal trial might look favourably on the questions sought to be determined outside the processes that apply to a criminal proceeding.  The broad test that applies to whether a defendant in a criminal proceeding should be permitted to invoke the supervisory jurisdiction of the Supreme Court is whether it is in the interests of justice.  The interests of justice is not confined to what is in the interests of the particular defendant but is a broader question involving efficient and far use of resources available in the criminal justice system and the interests of the administration of justice generally.  Where the defendant is unsuccessful in invoking the Supreme Court’s supervisory jurisdiction, there will be consequential delay to the criminal proceeding which is not in the interests of the administration of justice.” (Footnotes omitted)

  1. [46]
    The discretion which has to be exercised must balance the identified and weighty public policy considerations against any countervailing circumstances of the particular case before the Court.
  2. [47]
    Similar observations to those made by the President have been expressed on a number of occasions at both State and Federal appellant levels.[8]
  3. [48]
    One such observation was that of Kirby P in Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 at 599-600:

“The High Court of Australia and this Court have repeatedly emphasised the undesirability of interference - whether by declaration or otherwise - in the conduct of criminal proceedings.  Such interference is reserved to exceptional or special cases…More than lip service must given to injunctions of this kind.  They are based upon high public interest in the orderly conduct of criminal proceedings, which include the sentencing of persons convicted following a plea.  They rest upon the avoidance of interruption of such proceedings by those who have access to funds and a determination to manipulate criminal prosecutions. The availability of appellate procedures following conviction and sentence and the possibility that many problems disappear, or are resolved, at first instance if only cases are allowed to take their ordinary course provide further reasons to restrain an over-enthusiastic response to interlocutory claims for judicial review of criminal proceedings.” (Footnotes omitted)

(iii) The existence of a threshold question for an application for review under s 43 of the Judicial Review Act

  1. [49]
    I turn then to the first jurisdictional basis brought pursuant to s 43 of the Judicial Review Act.  The Judicial Review Act contains mechanisms which regulate when and how the Court should proceed under the Act.  They include ss 10 to 14 and s 48(1)(a) of the Act.  It is ss 14 and 48(1)(a) which are relevant in the current application for review.  They relevantly provide as follows:

14 When application for statutory order of review concerning interim initial proceeding must be dismissed

Despite section 10, but without limiting section 48, if—

  1. an application under section 20 to 22 or 43 is made to the court in relation to a reviewable matter made or engaged in by a tribunal, authority or person in the course of a proceeding (the initial proceeding) before the tribunal, authority or person (the decision-maker); and
  1. review of the matter is available because of provision made by a law (including this Act) under which the applicant is entitled to seek a review by the court, another court, or another tribunal, authority or person, of any decision of the decision-maker at the end of the initial proceeding; and
  1. the court considers that it is desirable to dismiss the application in order to avoid interference with the due and orderly conduct of the initial proceeding because, in all the circumstances, the balance of convenience (including the interests of the applicant, another party or another person, the public interest and the consequences of delay in the initial proceeding) so requires;

the court must dismiss the application if it is satisfied, having regard to the interests of justice, that it should do so.

…

48 Power of the court to stay or dismiss applications in certain circumstances

  1. The court may stay or dismiss an application under section 20,  21, 22 or 43 or a claim for relief in such an application, if the court considers that—
  1. it would be inappropriate—
  1. for proceedings in relation to the application or claim to be continued; or
  1. to grant the application or claim; or

…”

  1. [50]
    Both parties have submitted that s 14 applies to the present application for review.  A “reviewable matter” includes a decision.  In this case, the subject matter of the decision of Magistrate Howard is able to be the subject of a ground of appeal in a s 222 Justices Act appeal if there is ultimately a conviction.  Both parties submitted that this complies with the requirements of ss 14(a) and 14(b).  I agree with those submissions.  I am satisfied that s 14 of the Judicial Review Act is engaged. 
  2. [51]
    I also accept the separate submission of the Office of the Prosecutor that even if s 14 of the Judicial Review Act were not engaged, there would still be a discretion to refuse the application, or its continuation, at a threshold level by way of s 48(1)(a)(i) and (ii).
  3. [52]
    The statutory public policy considerations identified in the supervisory jurisdiction of criminal proceedings will equally be present as a threshold question if the decision is also, or separately, sought to be reviewed under the Judicial Review Act.
  4. [53]
    Turning back to s 14(c) of the Judicial Review Act, this section calls up, amongst other relevant considerations, the requirement for the Court to have regard to the public interest.  By that mechanism, the section directly calls up similar public policy considerations as identified in Hutson.  Where the decision sought to be reviewed is effectively an interlocutory one, in the sense that the subject matter may later be included in a final appeal, and the proceeding is a criminal proceeding, the well-known public policy grounds will be especially weighty considerations favouring the exercise of a discretion not to determine the substantive application. 

Determination of the threshold question for the inherent jurisdiction to supervise criminal proceedings

  1. [54]
    I will first consider the threshold question which arises in the context of the inherent supervisory jurisdiction of criminal proceedings.  The Council says that it does have exceptional or special circumstances in this case. 
  2. [55]
    This is first on the basis that the substance of the construction question before the Court is one which goes to the jurisdiction of the Magistrates Court to hear the complaint.  The Council relies on the statement in Sankey v Whitlam (1978) 142 CLR 1 at 24 by Gibbs ACJ (as his Honour then was) that:

“…in my opinion, the Court has power to declare the charge brought against an accused person is not known to the law since the accused has a ‘right’ not to be exposed to proceedings that have no legal substance.”[9]

  1. [56]
    If the Council were successful on the substantive construction argument, then such a determination in its favour would dispose of the proceeding.  Whether this be expressed as a jurisdictional point or one going to a conclusion that the prosecution is doomed to fail, I accept that this is a factor that should be taken into account.
  2. [57]
    Secondly, the Council submits that whilst the construction argument raised by it could be determined on an ultimate appeal if the prosecution were successful in obtaining a conviction, that would only be after the parties had been put to the time and expense of a trial.  It is submitted that, given this is a fundamental point, it is appropriate for the point to be determined early so as to save the time and expense from being incurred.  I accept that I should take into account that the Council, if successful, would save resources (in terms of involvement of Council employees) and expenses.  However, this is not a case where it is asserted that the expenditure of time and resources would be such as to have an adverse effect on the ability of the Council to properly defend itself at a final hearing.
  3. [58]
    Thirdly, the Council submits that the construction argument is effectively a legal point arising from the statutory interpretation of two statutes within the framework of an underlying set of particulars.  The resolution of this legal point was said to be one which could be determined in a short way.  I accept that this is a factor to take into account.  The construction question was capable of argument in a day and does not involve disputed facts.
  4. [59]
    Fourthly, the Council submits that this is an important construction question to determine.  In a sense it has some importance to the Council which wishes to avoid a trial, however the material did not establish that this construction question raised some more urgent and larger public interest concern which would elevate this review process to one which should be  regarded as special or exceptional.  Indeed, the Office of the Prosecutor actively opposed the construction question being determined in this proceeding.  This is to be contrasted to those authorities where both parties have jointly submitted to the Court that it should decide the underlying substantive issue because it raised an important question of larger public importance.  In this respect, this identified factor is effectively subsumed into the first factor set out above.
  5. [60]
    Against the determining of the substantive construction argument, the Office of the Prosecutor raises important public policy grounds.  These include the public interest in the non-fragmentation of criminal proceedings.
  6. [61]
    I accept that these public policy issues are relevant to take into account and underly the reason that the opposing considerations in an individual case must rise to being special or exceptional to overcome them.
  7. [62]
    In this respect, the interests of justice are not confined to what is in the interests of a particular defendant, but raise broader questions involving efficient and fair use of resources available in the criminal justice system and the interests of the administration of justice generally.
  8. [63]
    The first consideration is that fragmentation of issues in criminal litigation have a real potential to cause delay within individual proceedings. 
  9. [64]
    Here, the circumstances about which the complaint is concerned with occurred between October 2017 and October 2018, some five to six years ago.  The complaint was instituted in October 2020 and served by 11 November 2020.  On that same date, a Statement of Facts was also served. 
  10. [65]
    There has already been a period of delay which was at least, in part, attributable to both parties waiting for the outcome of a Court of Appeal decision in relation to the validity of the form of the complaint.  That decision came down in September 2022.
  11. [66]
    However, on the evidence, it was only in November 2022 that the present issue was raised by the Council.  This is despite the Council having had, since 11 November 2022, the Statement of Facts it relied upon to raise the issue.  That issue was then the subject of an interlocutory application made in March 2023 and determined in favour of the Office of the Prosecutor in May 2023. 
  12. [67]
    This application for review was brought in June 2023 and then was heard in late September 2023 and early October 2023. 
  13. [68]
    This Review Application and the request for the invocation of the Supreme Court’s inherent supervisory jurisdiction has caused further delay to the resolution of the criminal proceeding.  In one sense, that is delay now actually incurred.  The argument would be that as that delay is already incurred, the Court should determine the substantive matter. 
  14. [69]
    However, the delay of course is not simply attributable to the first instance decision.  There is an appreciable risk that there might be a further appeal from any determination on the substantive construction question, if one was to be made.  That appreciable risk raises the realistic prospect of further future delay. 
  15. [70]
    Secondly, whilst one result of a decision on the substantive issue may be an early determination of the proceeding, (that is, if the Council were to succeed), another result may be the continuation of the proceeding, but with the accompanying delay and wasted expenses resulting from the pursuit of the fragmented issue. 
  16. [71]
    Thirdly, even if the Office of the Prosecutor were successful in this Review Application at first instance, or on any appeal, a similar but not identical jurisdictional argument could be run at trial by the Council.  The Council may seek to lead additional facts at trial which may result in the construction question being dealt with under a different factual framework to that which appears in the particulars.  That is, even if on the statement of particulars the Council was not providing a “recreational water activity”, the Council may at trial, by the leading of additional evidence, separately seek to establish that it did provide such an activity as a matter of fact, and accordingly the Safety Act did apply.  If that were so, then the Council would run a “jurisdictional point”.  This fragmentation of the construction argument by this proceeding is not intended by Council to prevent it running a similar but more nuanced factual form of the argument at trial.
  17. [72]
    Fourthly, the Council has already had an opportunity within the existing procedures applicable to the criminal proceeding to ventilate, on an interlocutory basis, the relevant jurisdictional argument within the framework of the Statement of  Particulars.  The Council did not succeed.  Section 222 of the Justices Act does not provide for a separate appeal of that interlocutory decision.  Consistent with the observations of Holmes J in Paulger v Hall,[10] there are similar public policy grounds for why that is so.  This particular consideration reflects the already existing public policy considerations.
  18. [73]
    Fifthly, there is a public interest in the due administration of justice.  In the context of criminal proceedings, that is reflected by such proceedings being prosecuted in a prompt and efficient manner.  That reflects not only the individual interests of the defendant, but also the interests of the community at large.  The further the ultimate hearing moves away from the events the subject of the complaint, the greater risk that detriment may be suffered as a result of that delay.  This is so in terms of expectations of the public in relation to the administration of justice, the effect on the quality of evidence which may be given by relevant witnesses, and the deployment of the resources available for the prosecution of offences over a larger period of time.
  19. [74]
    Balancing up the factors that I have set out above, in my view, the circumstances here are not exceptional or special so as to support the Court exercising the supervisory jurisdiction.  Whilst the matter in issue is one which would go to the ability of the complaint to succeed (whether jurisdictionally or because it was doomed to fail), it is an argument which can ultimately be raised both at the trial of the complaint and on an appeal from any conviction, if one were to occur.  I do not regard this as a factor whether by itself, or in combination with the other factors raised by the Council, as being sufficient to make this an exceptional or special case.  I acknowledge that in some decisions such a consideration in combination with other factors have satisfied the requirement for exceptional or special circumstances, but each case must be decided on its own facts.
  20. [75]
    I regard the present proceeding as involving an unacceptable fragmentation of the criminal proceeding.  The jurisdictional point, if determined against the Council in the Review Application, could still be ventilated at trial in a more nuanced and different factual way.  This illustrates the fragmentary way the issue is being dealt with. This Review Application has caused, and had the potential to cause in the future, delay to an already significantly delayed prosecution in respect of factual circumstances which occurred in 2017 and 2018.  These matters together with the other general public policy considerations I have identified above weigh heavily against the exercise of the jurisdiction in the circumstances of this case.
  21. [76]
    There is an obvious public interest in having this particular criminal proceeding dealt with, without further delay. 
  22. [77]
    When asking the relevant question identified by the Court of Appeal in Hutson, the answer is that the interests of justice lie in the current jurisdictional point, arising from the relevant construction argument, being ventilated within the criminal proceeding instituted by the complainant in the Magistrates Court and in any subsequent appellant process, and not by the exercise of the supervisory jurisdiction as sought by the applicant.

(iv) Threshold question under the Judicial Review Act

  1. [78]
    In the exercise of the discretion under s 14 of the Judicial Review Act, I have reached the same conclusion.  In the balancing of convenience, the same factors referred to above are relevant and I have taken each into account.  That is not to read into the statutory framework the words “only in exceptional or special circumstances”, but rather to recognise that as part of the factors to be considered, the public policy considerations, are of great weight in the balancing task.
  2. [79]
    In the circumstances of this case, I find that pursuant to s 14(c) of the Judicial Review Act, it is desirable to dismiss or not continue the Review Application in order to avoid interference with the due and orderly conduct of the criminal proceedings commenced by the complaint, because in all the circumstances, the balance of convenience so requires. 
  3. [80]
    Even if s 14 had not been available, I could have exercised my general discretion under s 48(1)(a)(i) and (ii) to dismiss the Review Application at a threshold stage, as it would not have been appropriate to grant the application or to continue the application.  I would have exercised that discretion having regard to the same factors relevant to the threshold question for the supervisory jurisdiction of criminal proceedings and s 14 of the Judicial Review Act.

Conclusion

  1. [81]
    Based upon my conclusions above, it is appropriate to dismiss the application without determining the subsequent construction argument.  Accordingly, I will dismiss the Review Application.
  2. [82]
    I will hear the parties on costs.

Footnotes

[1]  Section 41(1) of the Judicial Review Act abolished the writs of mandamus, prohibition and certiorari.  Sections 41(2), 43(1) and 43(2), read with the definitions of prerogative orders and prerogative injunctions have the effect that any relief which may have been granted under the abolished writs  is to be granted via an application for review and in the form of prerogative orders and prerogative injunctions and, or alternatively, via declarations.

[2] Paulger v Hall [2003] 2 Qd R 294, 301 (per Holmes J).

[3] Citta Hobart Pty Ltd v Cawthorn (2022) 400 ALR 1 at [24] per Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ.

[4] Sica v Attorney-General for the State of Queensland (2021) 9 QR 543 at [13].

[5]  Contrast this to the more complex situation which emerges when the underlying Act from which the relevant decision arises is excluded from the operation of the Judicial Review Act, see the differing views expressed in Northbuild Construction Pty Ltd v Central Interior Lightings Pty Ltd [2012] 1 Qd R 525 when such a situation arises. In that situation, the Court most commonly grants declaratory relief via a power sourced outside of the Judicial Review Act.

[6] Sankey v Whitlam (1978) 142 CLR 1, particularly at 25-26, 80 and 82, and Gedeon v Commissioner of New South Wales Crime Commission (2008) 236 CLR 120 at [23].

[7] Hutson at [47].

[8]  See the authorities identified by the Court in Maules Creek Coal Pty Ltd v Environment Protection Authority [2023] NSWCCA 275 at [75] within the extracted portion of the reasons of Kirby P in Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 at 599-600.

[9] Sankey v Whitlam (1978) 142 CLR 1 at 24.

[10]  [2003] 2 Qd R 294 at [27].

Close

Editorial Notes

  • Published Case Name:

    Whitsunday Regional Council v Office of the Work Health and Safety Prosecutor & Anor

  • Shortened Case Name:

    Whitsunday Regional Council v Work Health and Safety Prosecutor

  • MNC:

    [2024] QSC 25

  • Court:

    QSC

  • Judge(s):

    Sullivan J

  • Date:

    05 Mar 2024

  • White Star Case:

    Yes

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2023] QMC 319 May 2023Magistrate Howard
Primary Judgment[2024] QSC 2505 Mar 2024Sullivan J

Appeal Status

No Status

Cases Cited

Case NameFull CitationFrequency
Anderson & Ors v Attorney General for NSW & Ors (1987) 10 NSW LR 198
1 citation
Jump To
Cite 1 - (1987) 10 NSW LR 198
Barbour v Melling [2022] QSC 125
1 citation
Jump To
Cite 1 - [2022] QSC 125
Chow v Director of Public Prosecutions (1992) 28 NSWLR 593
3 citations
Jump To
Cite 1 - (1992) 28 NSWLR 593
Cite 2 - (1992) 28 NSWLR 593
Cite 3 - (1992) 28 NSWLR 593
Citta Hobart Pty Ltd v Cawthorn (2022) 400 ALR 1
2 citations
Jump To
Cite 1 - (2022) 400 ALR 1
Cite 2 - (2022) 400 ALR 1
Gedeon v Commissioner of the NSW Crime Commission (2008) 236 CLR 120
2 citations
Jump To
Cite 1 - (2008) 236 CLR 120
Cite 2 - (2008) 236 CLR 120
Globex Shipping SA v Mack[2019] 1 Qd R 345; [2018] QSC 138
1 citation
Jump To
Cite 1 - [2019] 1 Qd R 345
Hutson v Australian Securities and Investments Commission(2023) 17 QR 21; [2023] QCA 167
2 citations
Jump To
Cite 1 - [2023] QCA 167
Cite 2 - [2023] QCA 167
J Hutchinson Pty Ltd v Guilfoyle(2022) 11 QR 850; [2022] QCA 186
2 citations
Jump To
Cite 1 - (2022) 11 QR 850
Cite 2 - (2022) 11 QR 850
Kirk v Industrial Court (NSW) (2010) 239 CLR 531
2 citations
Jump To
Cite 1 - (2010) 239 CLR 531
Cite 2 - (2010) 239 CLR 531
Maules Creek Coal Pty Ltd v Environment Protection Authority [2023] NSWCCA 275
2 citations
Jump To
Cite 1 - [2023] NSWCCA 275
Cite 2 - [2023] NSWCCA 275
McNab Developments (Qld) Pty Ltd v MAK Construction Services Pty Ltd[2015] 1 Qd R 350; [2014] QCA 232
1 citation
Jump To
Cite 1 - [2015] 1 Qd R 350
Northbuild Construction Pty Ltd v Central Interior Linings Pty Ltd[2012] 1 Qd R 525; [2011] QCA 22
2 citations
Jump To
Cite 1 - [2012] 1 Qd R 525
Cite 2 - [2012] 1 Qd R 525
Paulger v Hall[2003] 2 Qd R 294; [2002] QCA 353
4 citations
Jump To
Cite 1 - [2003] 2 Qd R 294
Cite 2 - [2003] 2 Qd R 294
Cite 3 - [2003] 2 Qd R 294
Cite 4 - [2003] 2 Qd R 294
R v Australian Broadcasting Tribunal &Ors; Ex parte Hardiman & Ors (1980) 144 CLR 13
1 citation
Jump To
Cite 1 - (1980) 144 CLR 13
Rozenes, Re; Ex parte Burd (1994) 68 ALJR 372
1 citation
Jump To
Cite 1 - (1994) 68 ALJR 372
Sankey v Whitlam (1978) 142 C.L.R. 1
4 citations
Jump To
Cite 1 - (1978) 142 C.L.R. 1
Cite 2 - (1978) 142 C.L.R. 1
Cite 3 - (1978) 142 C.L.R. 1
Cite 4 - (1978) 142 C.L.R. 1
Sica v Attorney-General(2021) 9 QR 543; [2021] QSC 309
3 citations
Jump To
Cite 1 - (2021) 9 QR 543
Cite 2 - (2021) 9 QR 543
Cite 3 - (2021) 9 QR 543
Work Health and Safety Prosecutor v Whitsunday Regional Council [2023] QMC 3
2 citations
Jump To
Cite 1 - [2023] QMC 3
Cite 2 - [2023] QMC 3

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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