Thiess Pty Ltd v Industrial Magistrate Elizabeth Hall & Ors

This is an interesting but complex judgment of the Court of Appeal addressing the application of ss 43 and 48 of the Justices Act 1886 (the “JA”). This appeal arises from a decision of Boddice J on an application for review of orders holding that “an industrial magistrate had power, where the prosecutor had elected to proceed with only one of two counts described as alternatives . . . to strike out the other”. [2] Upon review his Honour held that industrial magistrates had an implied power to strike out parts of a complaint where it is necessary to do so to enable the court to act within its jurisdiction and that this right was not inconsistent with either s 43 or s 48 of the JA [3]. Theiss appealed this conclusion, arguing that Boddice J erred in implying this power and in holding that it was consistent with s 48.

Legislation

Given the nature of this appeal, it is (unfortunately) necessary to set out in large part the relevant sections of the Justices Act, ss 43 and 48. Section 43 prescribes what may be contained in a complaint:

(1)Every complaint shall be for 1 matter only, and not for 2 or more matters except –

…

(b) in cases other than cases of indictable offences — if the matters of complaint — …

(iii) are founded on substantially the same facts;

(2)When 2 or more matters of complaint are joined in the 1 complaint each matter of complaint shall be set out in a separate paragraph.

(3)At the hearing of a complaint in which 2 or more matters of complaint have been joined but which does not comply with the provisions of this section —

(a)if an objection is taken to the complaint on the ground of such noncompliance — the court shall require the complainant to choose 1 matter of complaint on which to proceed at that hearing; or

(b)if no such objection is taken to the complaint — the court may proceed with the hearing and may determine the matters of complaint …

Section 48 confers the power to amend:

“If at the hearing of a complaint it appears to the justices that –

(a)there is a defect therein in substance or in form, other than a noncompliance with the provisions of section 43;

…

then –

(d)if an objection is taken for any such defect or variance – the justices shall; or

(e)if no such objection is taken – the justices may;

make such an order for the amendment of the complaint, summons or warrant as appears to them to be necessary or desirable in the interests of justice.”

The procedural history of this matter is complicated. The substantive complaint, a claim under the Workplace Health and Safety Act, was initially filed in the Industrial Magistrates Court.  The original complaint was improperly drafted – it alleged separate charges as alternatives – and, despite the appellant’s objections, the presiding Magistrate granted leave to amend the complaint, allowing the excising of the phrase “in the alternative”. [8] This decision was appealed, first to the Industrial Court and then to the Supreme Court where Applegarth J concluded that “the inclusion of the words ‘in the alternative’ rendered the complaint defective” and the “complaint did not comply with s 43 because the two matters were charged as alternatives” whereas for s 43(3) to apply they must be joined. [10]. Further, his Honour concluded that as the complaint did not comply with s 43, “the power to amend under s 48” was unavailable; See the discussion at [10]–[12]. The matter was then remitted back to the Industrial Magistrates Court for determination.  There, Magistrate Hall decided that the complainant was entitled to proceed on one complaint and choose not to call evidence on the remaining one.  That decision was appealed to the Industrial Court and then (again) to the Supreme Court where Boddice J upheld the Magistrate’s ruling.  It is the appeal from that decision which is the subject of the Court’s judgment.  In considering the appeal, the Court addressed two separate issues:

(1)In spite of Applegarth J’s judgment, whether the two matters in the complaint could be pleaded in the alternative and whether the words “in the alternative” could be removed?

(2)Whether the Industrial Magistrate’s Court had power to require the complainant to elect?

Alternative Charges in Complaint

The Court of Appeal held that given the complainant did not appeal the order of Applegarth J, the Court could not now reconsider his Honour’s order that “the two matters of complaint could not be pleaded in the alternative and that the words ‘in the alternative’ could not be removed from the complaint”.  Nevertheless, the Court recorded its differing conclusion in relation to that issue. [26]. After a thorough examination of the authorities, their Honours concluded that the rule that “alternative charges” could not be brought together was no longer good law;  See the discussion at [28]–[30].  Not only was there no “general” rule that alternative charges could not be brought in the one complaint, there was nothing in the language of s 43 which prevented the bringing of alternative charges in summary proceedings, provided, however, that all subsections of s 43 were complied with.  [33].

Power to Require Election Under s 43(3)(a)

Despite its conclusion regarding the pleading of alternative charges the Court, as it was bound to do, proceeded on the basis of Applegarth J’s judgment. Upon analysing the language of s 43, and contrary to the arguments made by the appellant, the Court concluded that s 43(3) was “directed at the correction of complaints charging more than one matter in a form not authorised by s 43”. [40]. Further their Honours considered that charges, included in the same complaint or indictment for the “purpose[s] of having them heard at the same time, ought be regarded as “joined”. [41]. Given these conclusions, it followed that although, as per the judgment of Applegarth J, the charges were alternatives and did not comply with the provisions of s 43, it was nonetheless the case that the matters were also “joined”, albeit incorrectly. Thus, s 43(3) was enlivened once an objection had been made. [42] It followed that the Magistrate had an express power to require election under s 43(3)(a) and, as a corollary an implied strike-out power. [43] Despite concluding that the applicant had established that there was not an implied power of election, the Court considered that it was in the interests of justice that, notwithstanding the fact that this issue was initially raised by the court, to determine the s 43(3) issue and dismissed the appeal.