Bauer Foundations Australia Pty Ltd v President of the Industrial Court of Qld - [2011] QSC 103

SUPREME COURT OF QUEENSLAND

CITATION:

Bauer Foundations Australia Pty Ltd v President of the Industrial Court of Qld & Anor [2011] QSC 103

PARTIES:

BAUER FOUNDATIONS AUSTRALIA PTY LTD
ACN 108 981 022
(applicant)
v
PRESIDENT OF THE INDUSTRIAL COURT OF QUEENSLAND
(first respondent)
JUANITA SALTMER

(second respondent)

FILE NO:

SC No 10757 of 2010

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

6 May 2011

DELIVERED AT:

Brisbane

HEARING DATE:

3 May 2011

JUDGE:

Chief Justice

ORDER:

1.    The application is dismissed;

2.    The applicant is to pay the second respondents’ costs of and incidental to the application to be assessed on the standard basis; and

3.    No order as to the first respondents’ costs.

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – JURISDICTIONAL MATTERS – where the applicant pleaded guilty to contravention of s 24 Workplace Health and Safety Act 1995 with circumstance of aggravation – where the applicant was fined $200,000 and this sentence was upheld on appeal by the President of the Industrial Court of Queensland – where the applicant seeks review of that decision under the Judicial Review Act 1991 (Qld) on the grounds of jurisdictional error – whether the President’s treatment of two factual errors made by the Magistrate amounted to jurisdictional error – whether the President misconceived the extent of the guilty plea entered by the applicant – whether the sentencing discretion could extend to having regard to all steps taken or not taken to avoid the risk

Industrial Relations Act 1999 (Qld), s 349
Judicial Review Act 1991 (Qld)
Penalties and Sentences Act 1992 (Qld), s 9

Workplace Health and Safety Act 1995 (Qld), s 24, s 28

Craig v South Australia (1995) 184 CLR 163, cited
House v The King (1936) 55 CLR 499, cited
Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531, cited

Thiess Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 252, cited

COUNSEL:

R Douglas SC for the applicant
No appearance for the first respondent

S Keim SC with P Matthews for the second respondent

SOLICITORS:

Freehills for the applicant
No appearance for the first respondent

Legal and Prosecution Services WHSQ for the second respondent

CHIEF JUSTICE:

Introduction

The applicant pleaded guilty before an Industrial Magistrate to contravening s 24 of the Workplace Health and Safety Act 1995 (Qld) by failing to discharge its obligation under s 28 of that Act. The complaint alleged that the applicant’s workers were exposed to risks to their health and safety, being “the risk of death or injury” to workers. The source of the risk was identified as an “inadequately secured counterweight” and “the system of work for [its] removal … from … [a] drilling rig”. The complaint further alleged what is under s 24(1)(b) a circumstance of aggravation, namely the resultant death of Mr Bowden. That meant that the maximum penalty was increased to 1,000 penalty units or two years imprisonment.

The…

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

AGLC: Bauer Foundations Australia Pty Ltd v President of the Industrial Court of Qld [2011] QSC 103
Case: [2011] QSC 103
Decision Date: 6 May 2011

CaseChat Overview and Summary

In the case of Bauer Foundations Australia Pty Ltd v President of the Industrial Court of Qld, the applicant, Bauer Foundations Australia Pty Ltd, sought judicial review of a decision made by the President of the Industrial Court of Queensland upholding a fine of $200,000 for contravention of the Workplace Health and Safety Act 1995. The applicant had pleaded guilty to the offence with an aggravating circumstance. The primary issue before the court was whether the President's treatment of two factual errors made by the Magistrate constituted a jurisdictional error. Additionally, the court examined whether the President misconceived the extent of the guilty plea entered by the applicant and whether the sentencing discretion could extend to considering all steps taken or not taken to avoid the risk.

The court meticulously reviewed the President's approach to the factual errors, noting that the President's decision to uphold the Magistrate's findings was consistent with the applicable legal principles. The court found that the President correctly assessed the errors and did not misconceive the scope of the guilty plea. Furthermore, the court held that the President's consideration of the sentencing discretion was within the bounds of the law, as the President was entitled to take into account all relevant factors, including steps taken to mitigate the risk. Consequently, the court determined that there was no jurisdictional error in the President's decision.

As a result of this determination, the application for judicial review was dismissed. The court ordered that the applicant would pay the second respondent's costs of and incidental to the application, to be assessed on the standard basis. No order was made regarding the costs of the first respondent. This outcome underscores the importance of adhering to legal principles in the exercise of judicial and administrative discretion.

Orders

Orders of the court

1. The application is dismissed;

2. The applicant is to pay the second respondents’ costs of and incidental to the application to be assessed on the standard basis; and

3. No order as to the first respondents’ costs.

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:	Bauer Foundations Australia Pty Ltd v President of the Industrial Court of Qld & Anor [2011] QSC 103
PARTIES:	BAUER FOUNDATIONS AUSTRALIA PTY LTD ACN 108 981 022 (applicant) v PRESIDENT OF THE INDUSTRIAL COURT OF QUEENSLAND (first respondent) JUANITA SALTMER (second respondent)
FILE NO:	SC No 10757 of 2010
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Brisbane
DELIVERED ON:	6 May 2011
DELIVERED AT:	Brisbane
HEARING DATE:	3 May 2011
JUDGE:	Chief Justice
ORDER:	1. The application is dismissed; 2. The applicant is to pay the second respondents’ costs of and incidental to the application to be assessed on the standard basis; and 3. No order as to the first respondents’ costs.
CATCHWORDS:	ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS OF REVIEW – JURISDICTIONAL MATTERS – where the applicant pleaded guilty to contravention of s 24 Workplace Health and Safety Act 1995 with circumstance of aggravation – where the applicant was fined $200,000 and this sentence was upheld on appeal by the President of the Industrial Court of Queensland – where the applicant seeks review of that decision under the Judicial Review Act 1991 (Qld) on the grounds of jurisdictional error – whether the President’s treatment of two factual errors made by the Magistrate amounted to jurisdictional error – whether the President misconceived the extent of the guilty plea entered by the applicant – whether the sentencing discretion could extend to having regard to all steps taken or not taken to avoid the risk Industrial Relations Act 1999 (Qld), s 349 Judicial Review Act 1991 (Qld) Penalties and Sentences Act 1992 (Qld), s 9 Workplace Health and Safety Act 1995 (Qld), s 24, s 28 Craig v South Australia (1995) 184 CLR 163, cited House v The King (1936) 55 CLR 499, cited Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531, cited Thiess Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 252, cited
COUNSEL:	R Douglas SC for the applicant No appearance for the first respondent S Keim SC with P Matthews for the second respondent
SOLICITORS:	Freehills for the applicant No appearance for the first respondent Legal and Prosecution Services WHSQ for the second respondent