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Bell v Hendry

Bell v Hendry

Case [2014] ICQ 18 2 July 2014

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INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Bell v Hendry & Ors [2014] ICQ 018

PARTIES:

STEWART LYNN BELL
(appellant)
v
KEVIN JAMES HENDRY
(respondent)

CASE NO:

C/2013/11

PARTIES:

STEWART LYNN BELL
(appellant)
v
MANSELL MINING AND SHOTCRETE PTY LTD
(respondent)

CASE NO:

C/2013/12

PARTIES:

STEWART LYNN BELL
(appellant)
v
MOUNT ISA MINES LIMITED
(respondent)

CASE NO:

C/2013/13

PARTIES:

STEWART LYNN BELL
(appellant)
v
MANSELL MINING AND SHOTCRETE PTY LTD (respondent)

CASE NO:

C/2013/14

PROCEEDING:

Appeals

DELIVERED ON:

2 July 2014

HEARING DATE:

24 February 2014

MEMBER:

Martin J, President

ORDER/S:

In matter C/2013/11 the appeal is dismissed.

In matter C/2013/12 the appeal is dismissed.

In matter C/2013/13 the appeal is dismissed.

In matter C/2013/14:

the appeal is allowed;1.

the decision of the Industrial Magistrate, so far as it relates to the quantification of costs is set aside; and2.

that matter is remitted to the Industrial Magistrate to proceed according to law.3.

CATCHWORDS:

MAGISTRATES – COMMENCEMENT OF PROCEEDINGS – DUPLICITY, AMBIGUITY AND UNCERTAINTY – GENERALLY – where a worker suffered serious injuries at a mine – where the appellant laid complaints again the worker’s employer, the mine operator, and the Site Senior Executive of the mine purporting to allege breaches of safety and health obligations – where the complaints, particulars, and further particulars were prolix, incoherent and otherwise confused – whether the complaints disclosed offences known to the law – whether the complaints were so flawed as to be void and not susceptible to amendment

PROCEDURE – COSTS – APPEAL AS TO COSTS – WRONG EXERCISE OF DISCRETION – where the Industrial Magistrate awarded the employer its costs of defending the complaint – where these costs were set at $60,000 – whether the Magistrate’s reasons fully disclose the basis for this calculation of quantum

Acts Interpretation Act 1954, ss 4, 32C
Justices Act 1886, ss 42, 43, 47, 48, 158, 158A, 158B
Mining and Quarrying Safety and Health Act 1999, ss 31, 35, 36, 39, 234
Statutory Instruments Act 1992, s 20

CASES:

Broome v Chenoweth (1946) 73 CLR 583; [1946] HCA 53, applied
DPP v Kypri (2011) 33 VR 157; (2011) 207 A Crim R 566; [2011] VSCA 257, referred to
GPI (General) Pty Ltd v Industrial Court (NSW) (2011) 207 IR 93; [2011] NSWCA 157, referred to
Johnson v Miller (1937) 59 CLR 467; [1937] HCA 77, cited
Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1, applied
NK Collins Industries Pty Ltd v The President of the Industrial Court [2013] QCA 179, applied

APPEARANCES:

D Kent QC and M Nicholson on behalf of the appellant, instructed by G R Cooper Crown Solicitor
J Murdoch QC for the respondent Hendry, instructed by Sparke Helmore
A Glynn QC for the respondent Mansell Mining and Shotcrete Pty Ltd, instructed by Simpson Quinn Lawyers
M Burns QC and A Scott for the respondent Mount Isa Mines Limited, instructed by Minter Ellison

Introduction

On 27 July 2009…

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.

Continue reading Bell v Hendry

Details

AGLC: Bell v Hendry [2014] ICQ 18
Case: [2014] ICQ 18
Decision Date: 2 July 2014

CaseChat Overview and Summary

The case of Bell v Hendry involved the appellant, Bell, who laid complaints against the respondent, Hendry, who was the employer of a worker injured at a mine. The appellant, Bell, also complained against the Site Senior Executive of the mine, alleging breaches of safety and health obligations. The complaints, particulars, and further particulars were prolix, incoherent, and confused, raising questions about whether they disclosed offences known to the law and whether they were void and not amendable. The matter was brought before the Industrial Court, which was tasked with determining the validity and clarity of the complaints, as well as the appropriateness of the costs awarded to the respondent.

The legal issues before the court centred on the duplicity, ambiguity, and uncertainty of the complaints. The court had to determine whether the complaints were so fundamentally flawed that they were void and could not be amended. Additionally, the court had to assess whether the Industrial Magistrate's award of costs to the respondent was justified and whether the reasons provided by the Magistrate were sufficient to justify the quantum of costs awarded.

The court found that the complaints were indeed fundamentally flawed, being prolix, incoherent, and confused, and that they did not disclose offences known to the law. Consequently, the complaints were void and not amendable. Regarding the costs, the court held that the Industrial Magistrate had exercised his discretion wrongly by awarding costs to the respondent without providing adequate reasons for the quantum of costs awarded. The court determined that the reasons provided by the Magistrate were insufficient to justify the $60,000 award and required a more detailed explanation.

In conclusion, the court quashed the Industrial Magistrate's decision on the costs, finding it to be a wrong exercise of discretion due to inadequate reasons provided. The court did not overturn the decision regarding the invalidity of the complaints but reinforced that the complaints were void and not amendable. The costs awarded to the respondent were set aside, and the matter was remitted for reconsideration of the appropriate quantum of costs, if any, to be awarded to the respondent.

Orders