Archer v Simon Transport Pty Ltd - [2016] QCA 168

SUPREME COURT OF QUEENSLAND

CITATION:

Archer v Simon Transport Pty Ltd [2016] QCA 168

PARTIES:

KEVIN ARCHER

(applicant)v
SIMON TRANSPORT PTY LTD
ACN 009 898 159
(respondent)

FILE NO/S:

CA No 11294 of 2015
DC No 2313 of 2015

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Criminal)

ORIGINATING COURT:

District Court at Brisbane – [2015] QDC 263

DELIVERED ON:

21 June 2016

DELIVERED AT:

Brisbane

HEARING DATE:

17 May 2016

JUDGES:

Margaret McMurdo P and Gotterson JA and Atkinson J
Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.   The application for leave to appeal is granted and the appeal to this Court is allowed with costs.

2.   The order of the District Court is set aside and, instead, the appeal to that court is allowed with costs.

3.   The decision of the Magistrates Court is set aside and, instead, the application to strike out the complaint is refused.

4.   The matter should be remitted to the Magistrates Court for hearing in accordance with law.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – JURISDICTIONAL MATTERS – where the applicant laid a complaint under the Justices Act 1886 (Qld) that, contrary to s 32 of the Work Health and Safety Act 2011 (Qld) (‘WHS Act’), the respondent failed to comply with its duty under s 19(1) of the WHS Act and this failure exposed an individual to a risk of serious injury – where a District Court judge upheld the decision of the Industrial Magistrates Court striking out the complaint for want of jurisdiction on the basis that the complaint was insufficiently particularised – where the complaint set out the ways in which the employer failed to comply with its duty and measures which should have been taken to obviate the identified risks – whether leave to appeal should be granted – whether the complaint was adequate to invoke the jurisdiction of the Magistrates Court

District Court of Queensland Act 1967 (Qld), s 118
Justices Act 1886 (Qld), s 48
Occupational Health and Safety Act 2004 (Vic), s 20, s 26
Work Health and Safety Act 2011 (Qld), s 18, s 19, s 32

Baiada Poultry Pty Ltd v Glenister [2015] VSCA 344, considered
Bell v Hendry & Ors [2014] ICQ 18, cited
Coggins v Steelcon Cava Pty Ltd [2014] ICQ 22, cited
Daytona Trading Pty Ltd v McGarry [2014] ICQ 21, cited
DPP v Vibro-Pile (Aust) Pty Ltd [2016] VSCA 55, considered
Harrison v President of the Industrial Court of Queensland & Ors[2016] QCA 89, cited
John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508; [1987] HCA 42, considered
Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77, cited
Karimbla Construction Services P/L v President of the Industrial Court of Qld & Ors [2014] QSC 56, cited
Kirk v Industrial Court (NSW) (2010) 239 CLR…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] QCA 168
Decision Date: 21 June 2016

CaseChat Overview and Summary

Archer lodged a complaint with Simon Transport Pty Ltd under the Justices Act 1886 (Qld), alleging that the company had failed to comply with its duty under the Work Health and Safety Act 2011 (Qld) (‘WHS Act’). Archer claimed that Simon Transport Pty Ltd’s failure to comply with s 19(1) of the WHS Act exposed an individual to a risk of serious injury. The Industrial Magistrates Court struck out the complaint for want of jurisdiction, stating that it was not sufficiently particularised. Archer appealed this decision to the District Court, which was dismissed. Archer then sought leave to appeal to the Court of Appeal, arguing that the complaint was adequate to invoke the jurisdiction of the Magistrates Court.

The central issue for determination was whether the complaint was sufficiently detailed to invoke the jurisdiction of the Magistrates Court under the WHS Act. Specifically, the Court had to consider whether the complaint sufficiently particularised the grounds upon which it was based, as required by the Justices Act 1886 (Qld). The Court examined the substance of the complaint and whether it set out the ways in which Simon Transport Pty Ltd failed to comply with its duty and the measures which should have been taken to mitigate the identified risks.

The Court held that the complaint did set out the ways in which Simon Transport Pty Ltd had failed to comply with its duty under the WHS Act and the measures which should have been taken. The Court concluded that the complaint was sufficiently particularised to invoke the jurisdiction of the Magistrates Court. The Court found that the District Court had erred in law by dismissing the appeal without making a finding as to whether the complaint was sufficient to invoke the jurisdiction of the Magistrates Court. Consequently, the Court granted leave to appeal and allowed the appeal with costs, setting aside the order of the District Court and the decision of the Magistrates Court. The matter was remitted to the Magistrates Court for hearing in accordance with law.

The Court ordered that the application for leave to appeal be granted and the appeal to the Court of Appeal be allowed with costs. The order of the District Court was set aside and, instead, the appeal to that court was allowed with costs. The decision of the Magistrates Court was set aside and, instead, the application to strike out the complaint was refused. The matter was remitted to the Magistrates Court for hearing in accordance with law.

Orders

Orders of the court

1. The application for leave to appeal is granted and the appeal to this Court is allowed with costs.

2. The order of the District Court is set aside and, instead, the appeal to that court is allowed with costs.

3. The decision of the Magistrates Court is set aside and, instead, the application to strike out the complaint is refused.

4. The matter should be remitted to the Magistrates Court for hearing in accordance with law.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Archer v Simon Transport Pty Ltd [2016] QCA 168
PARTIES:	KEVIN ARCHER (applicant)v SIMON TRANSPORT PTY LTD ACN 009 898 159 (respondent)
FILE NO/S:	CA No 11294 of 2015 DC No 2313 of 2015
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave s 118 DCA (Criminal)
ORIGINATING COURT:	District Court at Brisbane – [2015] QDC 263
DELIVERED ON:	21 June 2016
DELIVERED AT:	Brisbane
HEARING DATE:	17 May 2016
JUDGES:	Margaret McMurdo P and Gotterson JA and Atkinson J Separate reasons for judgment of each member of the Court, each concurring as to the orders made
ORDERS:	1. The application for leave to appeal is granted and the appeal to this Court is allowed with costs. 2. The order of the District Court is set aside and, instead, the appeal to that court is allowed with costs. 3. The decision of the Magistrates Court is set aside and, instead, the application to strike out the complaint is refused. 4. The matter should be remitted to the Magistrates Court for hearing in accordance with law.
CATCHWORDS:	ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – JURISDICTIONAL MATTERS – where the applicant laid a complaint under the Justices Act 1886 (Qld) that, contrary to s 32 of the Work Health and Safety Act 2011 (Qld) (‘WHS Act’), the respondent failed to comply with its duty under s 19(1) of the WHS Act and this failure exposed an individual to a risk of serious injury – where a District Court judge upheld the decision of the Industrial Magistrates Court striking out the complaint for want of jurisdiction on the basis that the complaint was insufficiently particularised – where the complaint set out the ways in which the employer failed to comply with its duty and measures which should have been taken to obviate the identified risks – whether leave to appeal should be granted – whether the complaint was adequate to invoke the jurisdiction of the Magistrates Court District Court of Queensland Act 1967 (Qld), s 118 Justices Act 1886 (Qld), s 48 Occupational Health and Safety Act 2004 (Vic), s 20, s 26 Work Health and Safety Act 2011 (Qld), s 18, s 19, s 32 Baiada Poultry Pty Ltd v Glenister [2015] VSCA 344, considered Bell v Hendry & Ors [2014] ICQ 18, cited Coggins v Steelcon Cava Pty Ltd [2014] ICQ 22, cited Daytona Trading Pty Ltd v McGarry [2014] ICQ 21, cited DPP v Vibro-Pile (Aust) Pty Ltd [2016] VSCA 55, considered Harrison v President of the Industrial Court of Queensland & Ors[2016] QCA 89, cited John L Pty Ltd v Attorney-General (NSW) (1987) 163 CLR 508; [1987] HCA 42, considered Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77, cited Karimbla Construction Services P/L v President of the Industrial Court of Qld & Ors [2014] QSC 56, cited Kirk v Industrial Court (NSW) (2010) 239 CLR…