Addinsall v Bell

Case [2016] ICQ 2

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Addinsall & Ors v Bell [2016] ICQ 002

PARTIES:

FILE NO:

PARTIES:

FILE NO:

PARTIES:

FILE NO:

PARTIES:

FILE NO:

TONY JOHN ADDINSALL

(appellant)
v

STEWART LYNN BELL

(respondent)

C/2015/10

EDWARD COLEMAN
(appellant)
v

STEWART LYNN BELL

(respondent)

C/2015/11

WILLIAM JAMES MCDONALD
(appellant)
v

STEWART LYNN BELL

(respondent)

C/2015/12

MCG QUARRIES PTY LTD
(appellant)

v
STEWART LYNN BELL

(respondent)

C/2015/13

PROCEEDING:

Appeal

DELIVERED ON:

19 February 2016

HEARING DATE:

9 June 2015

MEMBER:

Martin J, President

ORDER/S:

In matter C/2015/10, the appeal is dismissed.

In matter C/2015/11, the appeal is dismissed.

In matter C/2015/12, the appeal is dismissed.

In matter C/2015/13, the appeal is dismissed.

CATCHWORDS:

MAGISTRATES – COMMENCEMENT OF PROCEEDINGS – DUPLICITY, AMBIGUITY AND UNCERTAINTY – GENERALLY – where the respondent made complaints about each of the appellants – where the Industrial Magistrate dismissed the appellants’ application to have the complaints struck out or stayed – where the appellants appeal that decision – where the respondent filed a notice of contention in respect of each of the appeals – whether the charges referred to irrelevant regulations and by so doing failed to disclose offences known to law – whether the charges proceeded on the basis that a breach of the Mining and Quarrying Safety and Health Regulation 2001 amounted to a breach of the Mining and Quarrying Safety and Health Act 1999 such that they were insufficiently precise or resulted in duplicity

Acts Interpretation Act 1954

Mining and Quarrying Safety and Health Act 1999 ss 6, 7 ,19(1), 20, 31, 32, 34 ,35 , 36, 39, 234
Mining and Quarrying Safety and Health Regulation 2001 s 4, 100

CASES:

Clarke v La Franchi Supreme Court of Victoria, Appeal Division, unreported, 10 June 1994
Diemould Tooling Services Pty Ltd v Oaten [2008] SASC 197
Kirk v Industrial Court (NSW) (2010) 239 CLR 531; [2010] HCA 1
NK Collins Industries Pty Ltd v President of the Industrial Court [2014] 2 Qd R 304
St Clair v Timtalla Pty Ltd & Anor (No 2) [2010] QSC 480

APPEARANCES:

E S Wilson QC with A Scott instructed by Mills Oakley for the appellants

P J Davis QC with T Ryan instructed by McInnes Wilson for the respondent

  1. On 5 June 2012 Sean Scovell was working in the crushing plant at Moranbah South Quarry. While performing maintenance work on the plant, Mr Scovell was seriously injured and, as a result of those injuries, died.

  2. On 3 June 2013 Stewart Bell made four complaints under the Mining and Quarrying Safety and Health Act 1999 (the Act). In each complaint he alleged that there had been contraventions of the Act by the respondents (the appellants in these appeals) which had caused Mr Scovell’s death.

  3. The persons charged were:

    (a)MCG Quarries Pty Ltd (MCG) – the operator of the quarry;

    (b)William McDonald – the executive officer of MCG;

    (c)Tony Addinsall – the Site Senior Executive (SSE) on 5 June 2012; and

    (d)Edward Coleman – the SSE between 17 October 2010 and…

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AGLC
Addinsall v Bell [2016] ICQ 2
Case
[2016] ICQ 2
Decision Date

CaseChat Overview and Summary

In the matter of Addinsall v Bell, the appellants sought to have complaints made by the respondent against them struck out or stayed. The respondent had filed complaints under the Mining and Quarrying Safety and Health Act 1999 (Qld) and the Mining and Quarrying Safety and Health Regulation 2001 (Qld). The Industrial Magistrate dismissed the appellants’ application to have the complaints struck out or stayed, leading to an appeal by the appellants. The respondent filed a notice of contention in respect of each of the appeals, asserting that the charges referred to irrelevant regulations and failed to disclose offences known to law, leading to ambiguity and duplicity. The court had to determine whether the charges were sufficiently precise and whether they properly referred to the relevant offences.

The central legal issue was whether the charges against the appellants were precise enough to inform them of the nature of the allegations against them and whether they were subject to duplicity by referring to irrelevant regulations. The court examined whether the charges referred to the correct legal framework and whether they were clear enough for the appellants to understand and prepare a defence. The court also considered whether the charges adequately specified the time and circumstances of the alleged offences.

The court found that while the use of the term "and/or" in the complaint was inelegant and should be avoided, it did not render the charges unintelligible. The court concluded that the appellants had not demonstrated that the Industrial Magistrate had erred in their decision. The appeal was dismissed, as the court found that the charges were sufficiently precise and did not suffer from duplicity. The court noted that liability for failure to comply with an obligation could continue even after the person ceased to be bound by the Act, and that the failure to comply need not coincide with the event alleged to have resulted from that failure. The court also suggested that the respondent might seek an amendment to the charges to clarify the time of the failure to comply.

For these reasons, the appeal was dismissed, and the notice of contention was deemed unnecessary to consider.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

While the use of the term “and/or” is inelegant and should be avoided, its presence in the complaint does not render the charges unintelligible.Conclusion The appellant has not demonstrated that the Industrial Magistrate fell into error. The appeal is dismissed. The appellant in this appeal advances a separate argument about the two charges laid against him. The first charge is that, on 5 June 2012, he failed to discharge the obligation imposed upon him as Site Senior Executive under s 39(1)(a) of the Act. The second charge is that, on 5 June 2012, he failed to discharge the obligation imposed upon him under s 36(1)(a) of the Act. Each charge alleges that the failure to discharge the relevant obligation occurred on 5 June 2012, the date of Mr Scovell’s fatal injury. Mr Coleman argues that as he ceased to be Site Senior Executive on 14 February of that year, he could not have been in breach on 5 June. So much can be accepted. But, the liability to be charged for a failure to discharge an obligation will continue to exist even when the person ceases to be subject to the Act. A failure to comply with an obligation need not coincide with an event which is alleged to have been the result of that failure. A failure to comply may result in an injury at a time when the particular person is no longer bound by the Act. Mr Bell proposes to seek an amendment to the charges which will allege that the failure to comply occurred at a time when Mr Coleman was the Site Senior Executive. That is consistent with the particulars which were originally provided with the charge. It is an application which, on the material, one might expect to be granted. In that case, there is no point in considering this argument any further. For those reasons, and those given in Addinsall v Bell, the appeal is dismissed. For the reasons given in Addinsall v Bell the appeal is dismissed. For the reasons given in Addinsall v Bell the appeal is dismissed.The notice of contention In light of the decision in each appeal, the notice of contention need not be considered.

Ratio Decidendi

Legal Principle Established

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